Kacinskas v McMahon

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 3483 of 2011

ALGIMANTAS KACINSKAS	Applicant
v
JOHN McMAHON OF PJ & T MOTORS	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2011
DATE OF JUDGMENT:	9 September 2011
CASE MAY BE CITED AS:	Kacinskas v McMahon
MEDIUM NEUTRAL CITATION:	[2011] VSC 458

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APPEAL FROM ASSOCIATE JUSTICE – Appeal out of time – Underlying application itself out of time – No adequate explanation of delays – Public interest in finalisation of VCAT decisions concerning claims of limited quantum – Inadequate documentation – No arguable question of law identified – VCAT decision not attended by material doubt – Leave requirements intended to protect both prospective appellants and respondents – Leave refused – Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	No appearance

HIS HONOUR:

1. In this matter, the applicant seeks to appeal the refusal by Associate Justice Mukhtar of an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’).  Associate Justice Mukhtar's decision was made on Wednesday 27 July 2011 and the present appeal was filed on Friday 26 August 2011.

1. Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 provides that appeals such as the present must be brought within five days.  The applicant says he thought he had 28 days to appeal.  I do not accept this justifies an extension of time for appeal from the order of Associate Justice Mukhtar for a series of reasons.

1. First, the applicant did not file the present notice of appeal within 28 days as he says he believed he should have. Secondly, the application before Associate Justice Mukhtar itself involved an application to extend time pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). It related to a decision of VCAT made on 13 December 2010. The proceeding was not instituted until 29 June 2011, more than six months later. This is more than five months after the time fixed for appeal by s 148 of the VCAT Act.

1. Thirdly, the proposed appeal relates to a dispute over the adequacy of repairs to a motor vehicle undertaken in August 2009 for the sum of $4,200.  Mr Kacinskas has told me this morning that in consequence of the inadequacy of those repairs, the motor vehicle has ultimately been left sitting in a paddock and it is now worth only $2,000 instead of $30,000 as would have been the case if the repairs were properly done.

1. It is the clear intention of the VCAT Act to provide simple and speedy resolution of disputes such as that which Mr Kacinskas has had with Mr McMahon's company over the repairs to the motor vehicle. There is a substantial public interest in achieving finality in respect of this sort of dispute in accordance with the scheme…