Koutroumanis v Transport Accident Commission
[2009] VSCA 119
•22 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3877 of 2008
| ELEFTHERIOS KOUTROUMANIS | |
| Applicant | |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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APPLICATION ON SUMMONS
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JUDGES: | REDLICH JA and KYROU AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 May 2009 | |
DATE OF JUDGMENT: | 22 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 119 | |
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APPLICATION – Leave to appeal – Refusal by Victorian Civil and Administrative Tribunal to grant adjournment – Whether discretion miscarried – Whether denial of opportunity to be heard – Relevance of absence of prejudice to other party – Applicant precluded from relying on appeal upon prejudice not raised at hearing – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Alexander | Mr S Angelatos & Co |
| For the Respondent | Ms A M Magee | Solicitor to the Transport Accident Commission |
REDLICH JA:
I will ask Justice Kyrou to deliver the first judgment in this matter.
KYROU AJA:
The applicant, Mr Koutroumanis, has sought leave to appeal from an order of a judge of the Trial Division. The order dismissed an appeal from a decision of the Victorian Civil and Administrative Tribunal made on 8 November 2005. The Tribunal had affirmed a decision of the respondent, the Transport Accident Commission ('TAC'), to cease paying for medical treatment Mr Koutroumanis was receiving for a medical condition.
TAC initially accepted that the medical condition arose out of a transport accident in 1994 and began paying for its treatment. It ceased to fund the treatment in 2002. Mr Koutroumanis applied to the tribunal for a review of TAC's decision on 4 February 2003.
The hearing before the tribunal was initially set down for 21 November 2003. However, Mr Koutroumanis applied for and was granted adjournments in respect of this and three subsequent scheduled hearing dates. Eventually, the hearing was scheduled for 31 October 2005. At a directions hearing on 25 October 2005, Mr Koutroumanis's solicitor, Mr Angelatos, unsuccessfully applied for a further adjournment. He again applied for an adjournment at the commencement of the hearing on 31 October 2005. The tribunal refused, and a hearing took place on that day and on 7 and 8 November 2005. The tribunal eventually affirmed TAC's decision.
The appeal to the Trial Division was on the grounds that the tribunal's refusals to grant an adjournment were wrong in law and that the hearing was conducted in a manner that denied Mr Koutroumanis natural justice. After a detailed and careful review of the history of the proceeding before the tribunal, including Mr Koutroumanis's four successful adjournment applications, the judge below held that there was no legal basis to impugn the tribunal's exercise of its discretion to refuse an adjournment, and that there had not been a denial of natural justice.
Mr Koutroumanis was represented by Mr Alexander of counsel before the judge below and before us. TAC was represented by Ms Magee of counsel on both occasions.
The grant of leave to appeal is discretionary. Factors relevant to the grant of leave include whether there is a real and significant argument that error exists, whether there is sufficient doubt as to the correctness of the judge's order, and whether substantial injustice would arise if any such error is left unreversed.[1]
[1]Victoria Police v Marke (Unreported, Supreme Court of Victoria, Court of Appeal, Nettle and Dodds-Streeton JJA, 14 March 2008), [23].
Mr Koutroumanis has not filed a proposed notice of appeal. He has, however, filed a document entitled 'Outline of argument - Grounds for appeal'. From that document it can be discerned that Mr Koutroumanis seeks to rely on several grounds of appeal, some of which overlap.
In support of his grounds of appeal, Mr Koutroumanis has relied on affidavits sworn by him on 7 November 2008 and 12 May 2009. TAC did not object to the affidavits, but submitted that the Court should give them little, if any, weight. While I doubt the admissibility of the affidavits, in view of the position adopted by TAC, I have taken the contents of the affidavits into account in so far as they are relevant.
In my opinion, none of the grounds relied upon by Mr Koutroumanis has legal merit.
The first ground is that the tribunal's refusal to grant an adjournment denied Mr Koutroumanis the opportunity of presenting his case fully and properly, contrary to s 97 of the Victorian Civil and Administrative Tribunal Act1998 (‘VCAT Act’), which requires the tribunal to act fairly and according to the substantial merits of the case, and that this failure constitutes an injustice.
On the appeal, the judge below reviewed in detail what took place at the hearing before the tribunal by reference to the transcript, and concluded that Mr Koutroumanis was given a proper opportunity to present his case, and that there had not been a denial of natural justice or any error of law on the part of the tribunal. Mr Koutroumanis has not identified any error in the judge's reasons. I have considered those reasons and cannot find any error in the principles that her Honour applied or the conclusions that she reached.
Mr Koutroumanis was represented at the hearing before the tribunal by Mr Angelatos. He informed the tribunal on 25 October 2005 that:
the most appropriate thing is that [the hearing] does proceed, certainly there's no basis for any further adjournment.
I agree with the judge below that this was a significant concession. It does not appear that Mr Angelatos complained at any time during the hearing before the tribunal that the hearing was not fair.
The fact that Mr Angelatos practised as a solicitor and was not experienced in advocacy does not affect whether the hearing was fair, nor does Mr Koutroumanis's belief that he was appearing for himself and that Mr Angelatos was merely assisting him. The fact is that Mr Angelatos adopted the role of advocate for Mr Koutroumanis.
The second ground is that the tribunal's refusal to grant an adjournment resulted in Mr Angelatos being unable to properly cross-examine TAC's witnesses, contrary to s 102(1)(b) of the VCAT Act, which requires the tribunal to allow a party a reasonable opportunity to examine, cross-examine or re-examine witnesses. Mr Alexander conceded before us that Mr Koutroumanis did not argue this case before the judge below on this basis, and that there was no evidence before her Honour by which she could have analysed the appeal in the way now suggested by Mr Koutroumanis.
The third ground is that the tribunal should have granted the adjournment because TAC would not have suffered any prejudice by the adjournment. This does not constitute a ground of appeal against the decision of the judge below. Her Honour referred to the well-established principle that an appellate court will ordinarily not interfere with the exercise of a discretion to refuse an adjournment unless this causes injustice by preventing a party from presenting his or her case. I see no error in her Honour's application of that principle in this case.
Mr Alexander submitted that, notwithstanding that particular matters were not put to the tribunal to justify the granting of an adjournment, an adjournment should nevertheless have been granted because Mr Koutroumanis may have taken further steps that may have assisted his case. In support of this submission, he referred to steps Mr Koutroumanis did in fact take in 2009 and contended that, had Mr Koutroumanis been given an adjournment in 2005, he may have taken those steps then.
However, as Mr Alexander properly conceded, the question whether the tribunal correctly applied the principles for granting an adjournment must be applied by reference to the evidence and submissions before the tribunal when it made that decision, rather than by reference to subsequent events. Mr Alexander was not able to point to any evidence or submissions that were put to the tribunal in support of an adjournment which the tribunal failed to properly take into account.
The fourth ground is that the tribunal's refusal to grant an adjournment deprived Mr Koutroumanis of the benefit of his treating doctors preparing a further report for use before the tribunal. In my opinion, the judge below correctly rejected this argument. Mr Koutroumanis had failed to comply with orders made by the tribunal on 7 July 2005 that he obtain reports from those doctors and provide copies of them to TAC. Despite this failure, the treating doctors, Dr Papadopoulos and Dr Andreanakis, appeared as witnesses before the tribunal. There was no evidence before the tribunal that Dr Papadopoulos had been asked to provide another report and had refused to do so, and this allegation was not put to him when he gave evidence. In fact, as Mr Alexander conceded before us, Dr Papadopoulos prepared a report in July 2005 and this was before the tribunal.
In relation to Mr Koutroumanis's general practitioner, Dr Andreanakis, the judge below noted that the tribunal had released Dr Andreanakis's files to Mr Angelatos on 31 October 2005 to enable that doctor to prepare a report before he gave evidence on 7 November 2005. Dr Andreanakis did not prepare a further report or say that he did not have time to prepare a report.
Moreover, the history of this proceeding shows that, on a number of occasions, Mr Koutroumanis relied upon the absence of any further report from his general practitioner or his unavailability for the purpose of seeking further extensions of the hearing date.
It was open to and appropriate for the judge below to conclude that, in the absence of any evidence from the medical witnesses that they wished to prepare further reports or were hampered in preparing reports, Mr Koutroumanis had not established that he had been denied natural justice as alleged by him.
The fifth ground is that the tribunal's refusal to grant an adjournment denied Mr Koutroumanis a further investigation from Dr Coleman, whose opinion was against him. Mr Koutroumanis did not put his case on this basis before the judge below. There was no evidence before the judge by which her Honour could have analysed the appeal in the way now suggested by Mr Koutroumanis. He produced no evidence from Dr Coleman, despite the order of the tribunal that any reports from Dr Coleman were to be filed and served by 31 August 2005. There was no evidence that Dr Coleman wished to undertake a ‘further investigation’ as asserted by Mr Koutroumanis.
The judge below noted that at the 25 October 2005 directions hearing, Mr Angelatos informed the tribunal that Dr Coleman wished to see Mr Koutroumanis again and that Mr Koutroumanis 'reserve[d] his rights in relation to that issue'. It was open to and appropriate for the judge to conclude that Mr Koutroumanis had not established a denial of natural justice as alleged by him.
The sixth ground is that the tribunal's refusal to grant an adjournment prevented Mr Koutroumanis from briefing counsel. The judge below had said:
There is no evidence of anything which prevented Mr Koutroumanis from briefing counsel between 25 and 31 October 2005. Mr Angelatos did not submit to the Deputy President that the matter ought to be adjourned, so that a barrister could be briefed.
It should be observed that Mr Koutroumanis had made a deliberate decision not to engage counsel for the hearing. It was only after the conclusion of the tribunal proceeding that Mr Koutroumanis stated, in an affidavit sworn on 5 June 2006, that he had intended to brief counsel. It was open to and appropriate for the judge below to conclude that Mr Koutroumanis had not established a denial of natural justice as alleged by him.
The final ground is that the tribunal's failure to grant an adjournment deprived Mr Koutroumanis of the opportunity to provide further material in support of his case, including further reports from specialist medical practitioners. He contended that the evidence of the specialist witnesses would have been different had they had the opportunity to review the reports available prior to the hearing date. It was conceded before the judge below that there was no evidence of that matter having been raised before the tribunal and that there was no evidence that any further reports which might have been obtained would have assisted Mr Koutroumanis's position. In my opinion, the judge below was right to conclude that this ground had no substance and to reject it.
As Mr Koutroumanis has failed to establish that there is a real and significant argument that error exists or sufficient doubt as to the correctness of the decision of the judge below, I would refuse leave to appeal.
REDLICH JA:
There being no attack made on the ultimate conclusion reached by the tribunal affirming the respondent's decision to cease payments, I agree, for the reasons given by Justice Kyrou, that the application for leave to appeal should be refused.
I would only add these further observations. It was part of counsel's argument that although the applicant's concerns were not raised before the Deputy President, they none the less revealed that the adjournment should have been granted as he had not had an adequate opportunity to present his case. Assuming that there is a sound factual basis for those concerns, a matter which is itself not free from doubt, a party cannot assert error in refusing an adjournment on the basis of a breach of the hearing rule, that they were denied an opportunity to be heard, when the matters giving rise to those concerns were known to the party and were not raised at the time of the hearing. Different considerations may arise where the concerns rest upon facts which only came to light after the hearing.
In relation to one of the primary complaints, that the tribunal's refusal to grant an adjournment deprived Mr Koutroumanis of the benefit of his treating doctors preparing a further report for use before the tribunal, I would also observe that the tribunal followed the course of having the relevant medical witnesses attend the hearing and give evidence for the purpose of assisting the applicant to have their evidence placed before the tribunal. That was done in the context of a history of the proceedings which demonstrated that there was little or no prospect of those medical practitioners providing a written report or by some other means having their medical opinion placed before the tribunal. Mr Koutroumanis was permitted, through his advocate, to examine those medical practitioners without being confined to leading questions. The Deputy President did much more than she was obliged to do, to afford him procedural fairness, by providing him with the opportunity to have the medical practitioners' evidence placed before the tribunal.
The orders of the Court are:
The application for leave to appeal is refused.
The applicant pay the respondent's costs of the application.
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