Kuek v Victoria Legal Aid
[1999] VSCA 44
•27 April 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 5952 of 1997 No. 5953 of 1997 No. 5954 of 1997
GABRIEL KUEK
Appellant
v
VICTORIA LEGAL AID & ORS.
Respondents
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JUDGES: WINNEKE, P., TADGELL and ORMISTON, JJ.A. WHERE HELD: MELBOURNE DATES OF HEARING: 24 and 25 March 1999 DATE OF JUDGMENT: 27 April 1999 MEDIA NEUTRAL CITATION:
[1999] VSCA 44 1st Revision - 24 May 1999
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Administrative law - Orders to review decisions of Costs Disputes Committee of Victoria Legal Aid - Time limits - Operation of ss. 4(1) and 8 of Administrative Law Act 1978 - Doctrine of equitable tolling discussed.
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APPEARANCES: Counsel Solicitors For the Appellant Mr. D. Perkins Kuek & Associates For the Firstnamed Ms. D. S. Mortimer Victoria Legal Aid Respondent For the Secondnamed to Mr. L. W. Maher Allan McMonnies Sixth-named Respondents
WINNEKE, P.:
I have had the advantage of reading in draft the judgment prepared by Tadgell, J.A. For the reasons assigned by his Honour, I agree that these appeals should be dismissed.
TADGELL, J. A.:
There are before the Court three appeals challenging three distinct orders made by Coldrey, J. on 26 February 1998. Each of the impugned orders discharged with costs one of three orders for review that had been granted by Master Wheeler on 30 June 1997 upon the application of the appellant pursuant to s.3 of the Administrative Law Act 1978.
Each of the Master's three orders was purportedly granted for the review of one of three decisions made by the second, third, fourth, fifth and sixth respondents, allegedly constituting the Costs Disputes Committee of the first respondent, Victoria Legal Aid, a body corporate which it will be convenient to call VLA. Each decision was made following a request by the appellant, a solicitor, for a re-consideration of a refusal by VLA to increase the amount of legal aid that had earlier been granted to an individual who, having been charged with criminal offences, had become a legally- aided client of the appellant. Each decision of the Committee was to the effect that the grant of legal aid in question should not be increased. The first of the decisions was made on 9 May 1996 in relation to a man called Rodriguez and notified to the appellant by letter dated 14 May 1996. The appellant on 17 May asked VLA for reasons for the decision but VLA advised him by letter dated 11 June 1996 that "the Costs Disputes Committee does not publish reasons". Following a series of correspondence on the subject VLA wrote on 4 December 1996 to the appellant to say that "the Costs Disputes Committee does not believe it is obliged to produce reasons and declines to provide any reasons". The second and third decisions of the Committee were both made on 28 November 1996 in relation respectively to men named Huynh and Phung, and were notified to the appellant by letter dated 3 December 1996. The appellant on 17 December sought reasons for those two decisions and, having received none by 18 April 1997, wrote to VLA in relation to each of the three clients to say -
"Pursuant to the Administrative Law Act and the Freedom of Information Act we hereby request that you provide us with copies of the Costs Disputes Committee's reason for its decision within thirty days of the date of this letter."
By letter dated 6 June 1997 a person described as "Freedom of Information Officer" wrote to the appellant on VLA letterhead referring to all three of his clients and stating -
"Victoria Legal Aid is unable to provide you with reasons for the Costs
Disputes Committee's decision as no such reasons have been given."That letter evidently precipitated the applications to Master Wheeler for the three orders for review which were granted on 30 June 1997.
Coldrey, J., before whom the orders for review were eventually made returnable with the results I have noted, was invited on behalf of the six respondents to the three proceedings before him (the parties to each proceeding being the same) to decide as a preliminary issue that each proceeding was void because it had been brought outside the period prescribed by s.4(1) of the Administrative Law Act 1978. The preliminary issue was argued by all parties on the assumption that the Costs Disputes Committee was a tribunal to whose decisions the provisions of the Administrative Appeals Act applied. His Honour decided the issue favourably to the respondents and it was on that basis alone that each of the orders for review was discharged. Hence these appeals.
Sections 3, 4(1) and 8 (so far as now relevant) of the Administrative Law Act
provide as follows -
"3.
Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.
4(1)
An application for review shall be made ex parte not later than thirty days after the giving of notification of the decision or the reasons therefor (whichever is the later) supported by evidence on affidavit showing a prima facie case for relief under section 7.
... 8(1)
A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.
(2)
The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.
(3) The statement of reasons shall be in writing and furnished within a reasonable time.
(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record. ... ".
The amended notice of appeal refers to a multitude of alleged errors on the part of the judge but nearly all of them appear to me to be misconceived inasmuch as they refer to facts and circumstances referred to by his Honour that were not referable to the orders which alone are the subject of appeal, namely those discharging the orders for review. The learned judge was apparently invited on behalf of the appellant to entertain, concurrently with the return of the orders for review, an application by way of alternative relief for an order under s.8(4) of the Administrative Law Act that the respondents furnish a statement of the reasons of the Costs Disputes Committee. His Honour was asked to allow the filing of a summons making such an application but refused it for the reason, among others, that the evidence before him showed that the Costs Disputes Committee was formally disbanded on 21 November 1997 and had no successor in title or function. The appellant's notices of appeal do not purport to encompass an appeal against that refusal. In any event the order of refusal was, as I understand, at best one made on an interlocutory application, an appeal against which could not be brought without leave; and no leave has been granted or even sought.
The only question properly raised for the consideration of this Court is whether the learned judge was correct to conclude that the remedy by way of order for review was incompetent because it had been sought before Master Wheeler out of time. I have no doubt that his Honour was correct.
Before Coldrey, J. counsel who then appeared for the appellant conceded, as his Honour noted in his reasons, that the time limits imposed by s.4(1) are mandatory and cannot be waived. So much was decided by Batt, J. in Keller v. Bayside City Council [1996] 1 V.R. 356, at 360-5. Accordingly Coldrey, J., as he expressed himself, did not pause to give further consideration to that matter. Counsel for the appellant before us was prepared to accept that the time limits imposed by s.4(1) are mandatory but contended by means of two arguments that they had not been infringed. First, it was said in counsel's written outline of argument that what he called "the final refusal to provide reasons" was conveyed by the letter of the so-called Freedom of Information Officer of 6 June 1997, until which date the period referred to s.4(1) did not begin to run; so that the application to Master Wheeler was made within the prescribed period of thirty days. That argument was not much pressed orally in this Court, but the second was. This was to the effect that time does not begin to run, for the purpose of s.4(1), until reasons for the relevant decision are given and that, none having been given in this case, the applications to Master Wheeler were not caught by any time requirement at all imposed by s.4(1).
In my opinion neither of these arguments is sustainable. The language of s.4(1) takes as the time when the relevant period of thirty days begins to run "the giving of notification of the decision or the reasons therefor (whichever is the later) ...". There is no mention in the sub-section of a failure or any refusal to provide reasons. In Keller's Case Batt, J. indicated, at 371, (and in this Coldrey, J. agreed, and so with respect do I) that a request for reasons within thirty days of the giving of notification of the decision does not suspend the running of time, for the purpose of that provision, pending compliance with the request.
The scheme of ss.3 and 4 can, I think, be stated thus. Upon the giving of notification of a tribunal's decision to a person affected by it, a period of thirty days begins to run during which that person is entitled to apply for an order under s.3. Rules 77.01(b) and 77.03 of Chapter I of the Rules of Court respectively authorise and require the application to be made to a Master. At the end of that period the entitlement ceases. If, however, during or after that period of thirty days, the person is given notification of the reasons for the decision following a request made in accordance with s.8 of the Act or an order made upon application to the Supreme Court under that section (to which rule 77.01(b) does not apply) a separate period of thirty days commences to run by virtue of the giving of notification of the reasons. A person dissatisfied with the reasons of which notification is so given is entitled, during the whole of the separate thirty-day period, to apply for an order under s.3, even though the first period of thirty days has elapsed.
Upon the facts now relevant, time began to run for the purpose of s.4 in the case of Rodriguez no later than 17 May 1996, when the appellant wrote seeking reasons for the decision, of which he had been notified in the letter from Victoria Legal Aid dated 14 May. Time began to run in the case of Huynh and Phung on 4 December 1996, for counsel below conceded that the letter from Victoria Legal Aid dated 3 December had been received on the 4th. The appellant's requests for reasons on 17 May 1996 (in the case of Rodriguez) and on 17 December 1996 (in the cases of Huynh and Phung) did not suspend the running of the relevant thirty-day periods which commenced to run when notification of the decisions respectively was given.
It cannot be correct to say that, where a person affected by a decision is notified of it but is not notified of reasons for it, time begins to run for the purpose of s.4(1) only if and when reasons are subsequently provided. To construe s.4(1) in that way would give it no work to do when the complaint in respect of which an order for review is sought is a failure or refusal to give reasons for the decision. A complaint of that kind, among others, is one which the Act is obviously designed importantly to facilitate. Yet an intention by the draftsman to allow the pursuit of such a complaint without reservation is very unlikely because of the uncertainty and inconvenience that would be thereby engendered. Parties (referred to towards the end of s.3) interested in maintaining a tribunal's decision - and also the Tribunal itself - are to be considered as well as those who are concerned to impugn it. I should be unwilling, in the absence of necessity, to construe s.4(1) as countenancing a review of a decision at any time an objector should choose unless notification of reasons for it have been given to the person seeking the review. I should regard s.4 as rendering an application for review incompetent after the expiration of a relevant period of thirty days, as I have explained above. An order for review granted by a master outside that period is liable to be discharged upon its return, as the orders returnable before Coldrey, J. were: R. v. Mackenzie, ex parte Balloch (1881) 7 V.L.R. (L) 328; Burns v. Bowman [1960] V.R. 470; and cf. Ramsay v. L..M. Ericsson Pty. Ltd. [1989] V.R. 383.
In Keller v. Bayside City Council, supra, Batt, J., at 362, and again at 375, treated the period referred to in s.4(1) as going "to jurisdiction", a notion adopted in the present proceedings by counsel for the respondents and by Coldrey, J. No doubt s.4(1) imposes prerequisites to the grant of an order for review. With respect, however, I should prefer not to speak of "jurisdiction" in the context. To do so is, I think, unnecessary and apt to confuse. It is true in a particular sense to say that the Administrative Law Act 1978 conferred statutory jurisdiction on the Supreme Court that it did not previously have. It is as well to be clear, however, that the Act was largely concerned with procedures designed to render more effective the already existing powers of the Supreme Court to review decisions of administrative tribunals and to confer a wider locus standi to seek, vis-à-vis tribunals, remedies of a kind that the Supreme Court always had jurisdiction to grant. The entitlement to apply under the Act for those remedies was conferred subject to conditions: cf. Scott v. Commercial Hotel Merbein Pty. Ltd. [1930] V.L.R. 25, at 27, per Irvine, C.J. One such condition is that the application be made within a prescribed time, which the Court has no power to enlarge. The point is really no more complex than that. Master Wheeler, as a judicial officer of a superior court, did have jurisdiction to entertain an application for the orders for review that he granted, and to grant them; and Coldrey, J. had undoubted jurisdiction to discharge them for the reason that the appellant had not been entitled to apply for them. The orders were, for that reason, irregular and not "effectual", to use the language of the Full Court in R. v. Mackenzie, supra, at 329. To say that the non-compliance with s.4(1) went to "jurisdiction" adds nothing to the concept of irregularity or ineffectualness.
The appellant relied, both before Coldrey, J. and in this Court, on the decision of Gobbo, J. in State Electricity Commission v. Commissioner for Equal Opportunity [1992] 1 V.R. 79. That case relevantly decided no more than that the failure of a tribunal, to which the Administrative Law Act applies, to provide reasons conformably with s.8 can afford a ground of an order for review granted under s.3. The efficacy of such a ground will of course depend on the regularity or effectualness of the order for review: it cannot serve to render the order for review regular or effectual when it is irregular and ineffectual because applied for out of time. The State Electricity Commission Case is therefore, in my opinion, of no assistance to the appellant here.
Counsel for the appellant took issue in various ways with the learned primary judge's appreciation of the nature, characterisation, duties and obligations of the Costs Disputes Committee. In particular, counsel criticised the judge's acceptance of evidence that the Committee had been disbanded and his conclusion that an order directed to it under s.8 would be futile. These animadversions on his Honour's reasoning were, however, beside any point that is germane to these appeals. They bore not at all on the question whether the grant of the orders for review was effectual.
Counsel for the appellant further sought to make a point that was not put below, namely that the Costs Disputes Committee was in dereliction of its duty because it had not even considered the appellant's requests for reasons for its decisions of 9 May and 28 November 1996. So much appeared, it was said, from an affidavit sworn by the second respondent on behalf of the other respondents on 11 February 1998, shortly before the hearing before Coldrey, J. began. The deponent swore that the VLA Board formally disbanded the Committee on 21 November 1997; and that the Committee had not in fact met since 28 November 1996, when it considered the appellant's complaints in respect of Huynh and Phung, among other matters on its agenda. It was submitted for the appellant that that evidence showed that VLA was prepared to conceal until the eve of the hearing before Coldrey, J. an important fact, namely that the Committee had not dealt with the appellant's requests for the provision of reasons. It was also submitted that the so-called disbanding of the Committee had been ineffectual because, before 21 November 1997 the orders for review had been made against it: the argument was that VLA could not avoid the incidence of the Act with respect to the Committee by the expedient of disbanding it.
I should very much doubt that the evidence now relied on by the appellant does demonstrate that his requests for reasons were not duly considered. That reasons were not given is clear; but as early as 4 December 1996 the appellant was advised by VLA that the Committee did not believe it was obliged to produce reasons and that it declined to provide any. In any event the mere fact that the Committee had not met since 28 November 1996 was not inconsistent with an intention of its members to adhere to the attitude expressed on 4 December 1996. Moreover, I should not be prepared to say, in the absence of clear evidence of the terms and circumstances of the establishment of the Committee, and of its purported disbanding, that it was not validly disbanded.
At all events, I have been unable to understand how these matters can affect the question of validity of the orders for review. In the end, as I followed it, it was said for the appellant that they do so by virtue of an application of the doctrine of equitable tolling. The argument - or rather the assertion - pursuant to which the appellant sought to rely on the doctrine was nothing if not succinct. We were left largely to discover for ourselves both an exposition of the doctrine and any basis for its application. The burden of what was said for the appellant seemed to be that the affidavit of 11 February 1998 revealed only on that date what was said to be the falsity of earlier implications in correspondence from VLA that the Committee had considered the requests for reasons for its decisions. It was said to follow that, to treat time as having run under s.4(1), before the revelation of the so-called falsity, would be inequitable and infringe the doctrine of equitable tolling. We were referred to a single decision on the point, Wolin v. Smith Barney Inc. (1996) 83 F. 3d 847, a decision of the United States Court of Appeals, Seventh Circuit. It was there said, at 852, that equitable tolling ("tolling" being evidently used in the sense of enticing or alluring by acts of concealment) -
"... is invoked when the prospective plaintiff simply does not have and cannot with due diligence obtain information essential to bringing a suit."
The attempt to invoke any such doctrine in this case is in my opinion quite hopeless. The point was not raised below and there is no reason whatever to justify its being entertained here: see, e.g. Geelong Building Society (In Liquidation) v. Encel [1996] 1 V.R. 594, at 604-8, and the authorities there considered. If a doctrine of the kind could ever be invoked in the case of a provision such as s.4, its application would obviously depend on precise findings of fact, such as there were in the case of Wolin, supra. No such findings were made by Coldrey, J., and the possibility of making them was not even considered. They were simply irrelevant to the question he was invited (by consent) to decide. Nor can any such findings of fact be made in this Court.
Each appeal should be dismissed
ORMISTON, J. A.:
I have had the benefit of reading the reasons for judgment of Tadgell, J.A. in draft form and, subject to the minor matters to which I now refer, I agree that this appeal should be dismissed for the reasons he states.
Section 3 of the Administrative Law Act 1978 gives a right, not previously available in the form here given to parties to administrative decisions, to apply for an order for review of decisions of tribunals as therein defined. The right is given subject to certain conditions as to time which require that an application for review shall be made not later than thirty days from two ascertainable dates both of which or only one of which may occur. The first of those starting points is the "giving of notification of the decision", which is an event which must by definition occur having regard to the fact that the word "decision" includes "a refusal ... to make such a decision": see s.2. The second starting point, which is entirely beneficial to the proposed applicant, arises after the "giving of ... the reasons therefor": see s.4(1). That event may not occur, as was here the case, but the object obviously enough intended is to give a person affected a further opportunity to make application when that person had the benefit of reading the reasons for the decision. That benefit may in circumstances have been fruitless, and possibly would have required a different interpretation of s.4, but for the other beneficial provisions contained in s.8 of the Act. That section permits not only a request for reasons to be made to a tribunal but also gives specific powers to the Supreme Court, upon a failure to furnish those reasons within a reasonable time, to order the Tribunal to furnish a statement of reasons. Further, and most importantly, it gives the court power to make such orders "as might have been made if error of law had appeared on the face of the record", if an order for the furnishing of reasons is not complied with: see s.8(4). Thus, other than the disadvantage which might flow from inconvenience and delay, a person affected has the benefit of a further procedure which not only may provide the reasons which would set in train the second time limit in s.4 but which also gives even greater benefits, if the Tribunal is recalcitrant, in that there is a deemed error of law upon failure to comply with the Court order. There would seem therefore little reason for implying into s.4 some right, or some qualification to the restriction on an applicant's right, which might otherwise be implied if the Tribunal could frustrate the rights of persons affected by refusing to give reasons. Moreover such a conclusion means that there is no reason to read the language of s.4 in the manner suggested by the appellant which would require the right to reply for an application for review to remain open for an indefinite period until reasons were in fact furnished.
Consequently, I would agree with Tadgell, J.A. and with the observations of Batt, J. in Keller v. Bayside City Council [1996] 1 V.R. 356 that the time limits stated in s.4 are mandatory. However, I would respectfully agree with Tadgell, J.A. that I would prefer not to describe the consequence of failing to comply with the time limits as going to jurisdiction in the strict sense. At least on the basis of the argument put to this Court and the authorities cited to it, I see no reason to conclude that if the time limit, or both time limits, imposed by s.4 has or have expired that the Supreme Court is without jurisdiction in the sense that if no objection to competency is made it would be obliged to decline jurisdiction to hear an application to review. That was not however the basis of any argument before this Court, except perhaps by implication, and the matter of waiver and the like should best be left to a day when full argument had been put on that issue.
I also agree with what Tadgell, J.A. says about the circumstances relating to the proposed application insofar as they are relevant to this appeal. Lest it be thought that the Court be making over subtle excuses for a body blatantly failing to dispense natural justice, it should be noted that the Costs Disputes Committee was at all times an unpaid group of volunteers who were prepared to accept appointment to act as informal "arbitrators" between Victoria Legal Aid and solicitors willing to act, as was the appellant, at reduced rates for persons otherwise unable to have legal representation, for the purpose of fixing appropriate fees in varying cases. When the Committee met it seems that they had over twenty cases to reach in the course of an evening. It is not surprising that the Committee found it a burden to produce reasons for what might have seemed to them routine cases.
One final matter should be mentioned. I agree with Tadgell, J.A. that the thirty days limit was not extended by reason of the application of the principle, known in the United States of America, at least in recent years, as "equitable tolling". It is said to be a rule of some antiquity, derived from the Latin maxim "contra non valentem agere nulla currit prescriptio, in other words, the prescriptive or limitation period is tolled, or does not commence to run, "when a party is unable to exercise his cause of action when it accrues": 54 Corpus Juris Secundum: Limitation of Actions, para.86. In the present case it is said that the failure or refusal of the Costs Consultancy Committee to provide reasons, because it had been disbanded or because it otherwise ceased to meet and operate, must extend the relevant thirty day period until at least the time when there was a clear refusal to provide reasons in June 1997. As I would understand it, to "toll" a statute of limitations "means to show facts which remove its bar of the action": 54 C.J.S. para.83. The word is one not customarily used in English or Australian law but it has a respectable background in the sense that its use can be traced back to Britton's work on English law first published in about 1292. Interestingly, the Oxford Dictionary records its last known use, at least on the eastern side of the Atlantic, as being in 1818 and in the meantime it had appeared at least once in an act of the Parliament, in 11 Hen. VII, c.63 s.4. The dictionary definition of the verb is "to take away, bar, defeat, annul ...".
It can thus be seen that the word "toll" has a meaning which is not unfamiliar inasmuch as it comprehends circumstances which would take away a right which might otherwise exist. In particular in the present context where it is most frequently used in the U.S.A., it covers those circumstances which would take away the right of a defendant to claim the benefit of a prescriptive period laid down by a statute of limitations. This may be seen from an examination of the headings to the paragraphs contained in works such as 54 C.J.S. para.83ff and 51 American Jurisprudence 2d para.138ff. However, when so understood, those headings reflect the bases for holding under statutes similar to the Limitation of Actions Act 1958 that limitation periods have not begun to run in certain stated circumstances, such as fraud or mistake (s.27), the extension of the period in favour of persons under disabilities (s.23), the revival of the right to sue and the effective substitution of a new period by reason of acknowledgement or part payment under ss.24 and 25 and the discretionary power in the court to extend the limitation period under s.23A, to mention only the better known of the various rights of extension and the like.
"Equitable tolling" would appear to reflect a more general approach of American courts in certain circumstances, albeit limited, to ignore a specified limitation period where a defendant ought in good conscience not to be permitted to rely on such limitations. In part this merely reflects exceptions arising out of fraud and the like and extensions which flow from the fact that a plaintiff is ignorant of the right to sue such as are referred to in paras.(1)(a) to (1)(c) of s.5 of the Limitations of Actions Act. Seemingly the principle goes back many years but it is interesting to note that the expression "equitable tolling" does not stand out in the 57 page discussion of tolling in vol. 51 of American Jurisprudence 2d published in 1970 nor at all in the index to the title, although there are many references in the 1998 cumulative supplement. With this may be contrasted the discussion in 54 C.J.S., see, for example, para.86, but that was published in 1987. The doctrine, if it may be so described, and its subsidiary rules, may be seen to be alive and well in cases such as Wolin v. Smith Barney Inc. (1996) 83 F. 3d. 847 and in a series of Supreme Court decisions such as the recent judgment in United States v. Beggerly (1998) 141 L. Ed. 2d 32 where one may note that Rehnquist, C.J. observed (at 41): "Equitable tolling is not permissible where it is inconsistent with the text of the relevant statute."
There is, as I would understand it, another group of exceptions to the running of time in the United States which are implied from necessity and are said to "toll" the various limitation periods. They arise out of a variety of circumstances such as the inability to serve a defendant when in prison, the death of a plaintiff's attorney at the time the limitation period runs out, the fortuitous closing of the court offices in unusual circumstances and the difficulties arising out of war. I would not wish to express any final conclusions on these matters but I would yet again seek to raise a caution as to the use of American authorities. In England, though minor exceptions are now held to exist, there was a very strict rule taken against allowing implied exceptions to statutes of limitation. The leading case is Prideaux v. Webber (1661) 1 Lev. 31; 83 E.R. 282 in which it was held that not even the suspension of the King's law during the period of the Commonwealth could prevent time from running where the cause of action arose before the Commonwealth came into existence. On the other hand it would seem, because of the particular circumstances giving rise to the creation of the United States and their development, that a more general approach was taken, at least in the early years, by the United States Supreme Court: see especially their attitude to the impracticability of serving process during time of war (foreign and civil) reflected in cases such as Hopkirk v. Bell (1806) 3 Cranch 454; 2 Law Ed. 497; and Hanger v. Abbott (1867) 6 Wall. 532; 18 Law Ed. 939. We obtained no assistance in argument as to how all these matters might be relevantly applied in the present case. Again I reiterate the difficulty in applying U. S. A. law from my own limited understanding of it.
Finally it should be noted that the present case is arguably not one of limitation at all since the right to apply for application for review is one given by statute and which is conditional upon the terms stated in the statute. That may be said to be akin to the limitations imposed on rights of appeal in general which are accepted to be the creature of statute. Until it was recently amended it was accepted for many years that the right of appeal from the County Court was limited to the period stated in the Act: see Morton v. Hampson [1962] V.R. 364. There were, as may be seen from the judgment especially at p.369-370, some very limited exceptions which the Full Court accepted as having been laid down in the earlier Full Court decision of Enders v. Rouse (1885) 11 V.L.R. 827. There both Williams and Holroyd, JJ. at 830-832 in their separate judgments accepted that there were some very limited exceptions where the rules for service could not be complied with by reason of an act of a court or the deliberate act of the defendant. Those exceptions may still be taken to exist in appropriate circumstances but nothing of the kind contemplated in those two cases existed in the present case and the tentative attempt to invoke the doctrine of equitable tolling was in no way made out in the present case, whatever be its proper description in the law of this State.
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