Makdessi v Victims Compensation Fund Corporation

[1999] NSWDC 13

New South Wales

District Court

CITATION:	Makdessi v Victims Compensation Fund Corporation [1999] NSWDC 13
TRIBUNAL:	Victims Compensation Tribunal
PARTIES:	Raymonda Makdessi Victims Compensation Fund Corporation
FILE NUMBER(S):	376 of 1999
CORAM:	Robison DCJ
CATCHWORDS:	leave :- leave to proceed out of time leave :- section 39 leave :- Part 6, r.60 of the District Court Rules
LEGISLATION CITED:	Victims Compensation Act 1996 Interpretation Act 1987 s.76
CASES CITED:
DATES OF HEARING:	16/11/99
DATE OF JUDGMENT:	16 November 1999
LEGAL REPRESENTATIVES:	Ms Ryan Mr R Quickenden

JUDGMENT:

DCV1865 1248/99 CJ-I2


~16/11/99 4

HIS HONOUR: This is an application by motion, brought by the appellant, seeking leave to proceed out of time, pursuant to Part 16 of the District Court rules, and based on the statements in support enclosed with the motion.
The reality of the application is an application for leave, having regard to the power of the Court to dispense with the requirements of the rules relating to periods in which proceedings may be commenced without leave.
The issue before me is whether I should grant the appellant leave to proceed with the motion. I note that there is reference to s.39 of the Victims Compensation Act 1996, and I note that within the period of time enunciated in that provision, there was, received in the Court registry a notice of appeal and it bears a receipt date of 6 April 1999.
The material relied upon by the appellant is comprised of two affidavits. Firstly, an affidavit of Mr Nassir Bechara, who was previously employed as a law clerk with the firm of Gerard Malouf and Partners, and there is an affidavit of Mr Malouf of 3 September 1999 and he has also given oral evidence today.
In addition, by way of background information, I have considered an affidavit of the appellant, Raymonda Makdessi, and this concerns the circumstances which involved his involvement in an act of violence which allegedly occurred in March 1997. It is common ground that an application for compensation was lodged with the Tribunal. It was dealt with by an assessor and then ultimately dealt with by the Tribunal itself, and I note the reasons for the appeal determination, which was made on 9 March 1999. I note the basis of the appeal and the appellant asserts there was a denial of procedural fairness when the further evidence submitted to the Tribunal was not considered.
Returning, however, to the question of the leave application, it is important for the Court to bear in mind, as with all applications to extend time, where the Court's discretion is involved, for the Court to give very careful consideration to the explanation for the delay itself. There may well be, in some situations, suggestions of prejudice and other factors which may arise from those factual circumstances, but the starting point, indeed the threshold point in any such application is the explanation itself.
In this regard, I turn to the provisions of Part 6 r 60C, in which it is stated that "[a]n application for leave must be made by notice of motion under Part 16" and "[a]n application for leave must be filed and served within 2 months of the date on which the relevant notice of the determination sought to be appealed against was served as referred to in section 39(2) of the Compensation Act."
Further, "[a]n application to extend the time prescribed in subrule (2), or to allow further time to appeal under section 39(2) of the Compensation Act, must be made by notice of motion under Part 16... An application for leave must include or be accompanied by a statement identifying the determination sought to be appealed against, a statement of the question of law on which it is sought to appeal and the grounds of the proposed appeal."
I note the following provisions of Part 6 r 60C. As I indicated earlier, the notice of appeal itself was certainly lodged within time, but the motion and the statement of issues were not, and that is the issue before me now.
In hearing this application, I have given very careful consideration to the affidavit material and the evidence of Mr Malouf. In particular, as I had indicated to the parties before the close of submissions today, I was interested in the period after March 1999 to the time of filing the notice of motion and that is an important area to consider, having regard to the onus cast upon the applicant who seeks leave. True it is the rule does say that an application for leave must be filed and served within two months of the date on which the relevant notice of determination sought to be appealed against was served, as referred to in s.39(2). There is a question of the service of the determination that has arisen as an issue and I have taken those submissions into account. I have been referred to the provisions of the Interpretation Act 1987, that is, s.76, which refers to service by post. The opening portion of the provision under s.76 is stated as follows:
Under subs 1: "If an Act or instrument authorises or requires any document to be served by post (whether the word 'serve', 'give', or 'send' or any other word is used), service of the document... may be affected by properly addressing, prepaying and posting a letter containing the document;"
I note the provisions of that section, but at the same time, when considering the submission to the extent of service and its lack of definition elsewhere, that there is a clear and stated admission in the notice of appeal itself, that the determination was one which bore a reference and was one which was received on 25 March 1999. That notice of appeal is signed by the solicitor for the appellant by his employed solicitor, Mr Kolokossian. It appears to bear a date of 6 April 1999, but in any event it was lodged in the District Court here at Parramatta on 6 April 1999.
If there is any question of service of the determination, in my view, service has been admitted by the appellant by virtue of the Notice of Appeal, and, in my view, there is no further need to consider that issue.
The substantive issue before me now is whether I should, in all the circumstances, grant leave to extend time, and to that end various considerations need to be taken into account. The Court is obliged to consider all relevant facts and circumstances. There are many authorities concerning the obligations cast upon the Court when considering the exercise of a discretion. A discretion should not be exercised through any whim or fancy. It should be exercised judicially and in accordance with the principles stated in those authorities, and I have noted that, to a point, it appears that some explanation has been provided for the delay.
I say "to a point" because the two affidavits to which I refer, that is, those from Mr Malouf and Mr Bechara, really do not take the matter beyond the end of March 1999, when Mr Bechara left his employ with Mr Malouf. It is important to reflect on certain portions of these affidavits. I note in the affidavit of Mr Bechara, sworn 15 November 1999 that he refers to his employment as a law clerk with Mr Malouf's firm between 16 May 1997 and 31 March 1999. He is now employed elsewhere.
He was admitted as a legal practitioner on 16 July 1999. He has said in paragraph 7 of his affidavit that he left the employ of Mr Malouf's firm "on or around 31 March 1999 for personal reasons" and there has been no challenge to those personal reasons, although I do note that Mr Bechara was required for cross examination on his affidavit but, in the submissions that I have received thus far, it appears that there has been no challenge to the extent of the work that that firm was undertaking at the time, and it does appear that Mr Bechara, on the strength of this affidavit had a number of personal difficulties, including a relationship breakdown, and he was apparently also required to look after his father who had suffered a brain damage style injury in a work related accident. No doubt there were a number of matters occupying the mind of Mr Bechara who was certainly a very busy law clerk up to the time that he left on 31 March 1999.
Mr Malouf has deposed in his affidavit that on 31 July 1997 he "held an initial conference with Mr William and Mrs Raymonda Makdessi" in relation to the act of violence. He refers to this as an "armed robbery, committed against them on 18 March 1997 whilst" they were employed in a Post Office, and it has been helpful to consider the affidavit of Mr Makdessi which sets out certain background information, and I give that appropriate weight in the circumstances. That affidavit itself does not touch upon the questions of delay in the lodging of the Motion as required by the rules.
In any event Mr Bechara was quickly "assigned the day to day carriage of this matter" by Mr Malouf, and Mr Bechara effectively conducted the matter on behalf of the appellant after he received the instructions from Mr Malouf. It does appear that Mr Malouf adopted a watching brief style practice within his firm of keeping an eye on things as they came in and as they went out. After all he, being the principal of the firm, does have an obligation to ensure that his office is run properly.
Time then progressed and I note that Mr Bechara sent correspondence to doctors requesting medical reports. I note what is annexed to the affidavit of Mr Malouf to that end. There is reference to Mr Bechara causing the application for compensation to be served on the tribunal. There is indication of a letter being sent to Jerry Kekatos and Associates, seeking an economic loss detail, and Mr Bechara was clearly a very busy man. He had what one could only describe as an enormous case load within that firm, and he refers to approximately 200 to 300 files and that is a significant case load.
He expresses a view that it was "unfortunate that Mr Bechara overlooked the various correspondences that flowed from the Tribunal, including the numerous determination dates and adjournments." He also appears to blame Mr Bechara for failing "to follow up the requested medical reports and to provide supporting evidence to the Tribunal prior to the determination of [the] matter," and then he refers to the file being "reassigned" to Mr Aboud after Mr Bechara left the employ of the firm on 31 March 1999.
I do note however that Mr Malouf, in his oral evidence, does concede his ultimate responsibility in the question of the handling of this matter and that is not surprising, having regard to his role as principal in the firm, which assumed the responsibility of properly preparing the case for their client Mr Makdessi.
It would appear also from his evidence that he had a degree of working knowledge of the Victims Compensation Act 1996. I infer from his evidence that he has had considerable experience under the earlier legislation, sometimes referred to as the old Act, that is the 1987 Act. But the new Act is in fact a new piece of legislation which casts an entirely new regime for considering and assessing claims of this nature and the Act does set out in some considerable detail various time limits which need to be observed very carefully by those who undertake the responsibility of acting for the victims of crime.
The practice of Mr Malouf appeared to be one which involved a review of the Act in general terms, both with Mr Bechara and other members of his staff, and I accept that evidence.
He was aware of some correspondence which came in from the respondent and he made notes at times which required others to follow things up, but it would appear from a day to day point of view he himself did not have the hands on conduct of this matter and left it to Mr Bechara, who was a clerk in his employ.
From the respondent's side of this application there is an affidavit of Robert Anthony Hosking of 14 September 1999 and he refers to the determination of the assessor on 23 April 1998 in which the application was dismissed without costs. He refers to the appeal being subsequently lodged and that being dismissed without costs in March of this year. He then refers to the position concerning the District Court proceedings and the service of an unsealed Notice of Appeal on 7 April 1999.
He refers to the matter being listed for callover on 3 May 1999 in which a hearing date was sought. It was noted, he says, at that time that the appellant had not filed and served a Notice of Motion seeking leave to appeal, nor had Part 6, Rule 60C been complied with. The matter was listed for further callover in May of this year to enable the appellant to comply with those rules.
It would seem that the respondent has taken a very responsible and co-operative attitude to this appeal and bearing in mind this is relatively new legislation and no doubt it has taken some time for the effects of the legislation to become known to the profession generally, such an approach on the part of the respondent is one which should be in fact commended, but a copy of the relevant rules was provided to the appellant's legal representative at the callover.
At the callover on 17 May non-compliance was again noted, and it was adjourned to another callover on 19 July. It was referred to a Directions Hearing on 10 August 1999. There were certain directions made at that Directions Hearing. On 2 September 1999 the respondent received by fax an unsealed Notice of Motion and the accompanying documents.
The affidavit also annexes correspondence of 7 April 1999 which clearly directs the appellant's legal representatives to the provisions of the Act and Rules which needed to have been complied with. I frankly do not know what more the respondent could have done at that time.
It is unfortunate that there is no evidence before me at all as to what the position was within the firm of Gerard Malouf and Partners after Mr Bechara left the employ until such time as Mr Aboud received the responsibility of the conduct of the matter of the matter and there is no further affidavit evidence upon which the Court can give any consideration as to the circumstances which post dated the end of March 1999 to the time that the Motion was filed in September of this year, and in my view that is a significant omission. It is a deficit in the application and it is incumbent upon the appellant to provide such evidence either through the solicitors or through the appellant himself, particularly having regard to the nature of the relationship of the instructions between the appellant and the firm of solicitors.
These are matter which should be determined on the evidence and at this stage I find that there is insufficient evidence which would in fact justify the granting of leave to extend. The Court clearly has a discretion, but I again indicate that that is a discretion which has to be carefully exercised. If there is any prejudice that, in any event, does not relieve the appellant from effectively satisfying an obligation to provide a full and satisfactory explanation for the delay because I consider that, at the very least, was something that should have been provided. It has not been provided. Any inferences that one can draw from the other affidavits as to what may or may not have happened after 31 March, in my view, would be too long a bow to draw to assume that the problems pre-dating 31 March continued on thereafter. The record speaks for itself.
In my view, for those reasons, the relief sought should be refused. I make the following orders: I decline to make an order in accordance with Paragraph (1) of the Notice of Motion. The Motion is dismissed. The exhibit on the Motion may be returned.
Any further applications at this stage?
COUNSEL ADDRESSED ON COSTS
HIS HONOUR: I think costs should follow the event of the disposition of the Notice of Motion. There is no reason to depart from the Rule. Clearly costs should be as agreed or as assessed. I make the following further order: the appellant is to pay the respondent's costs of the Notice of Motion as agreed or assessed.
QUICKENDEN: Your Honour there is only one other application. And your Honour will probably need to adjourn the matter for this application unfortunately, and that is, that pursuant to Part 39A Rule 14 the applicant's solicitor be directed to repay to the applicant costs which the applicant has been ordered to pay in this Court, and that is three sets of costs.

COUNSEL ADDRESSED ON FURTHER APPLICATION FOR COSTS

HIS HONOUR: I note the respondent seeks costs pursuant to Part 39A Rule 14. I give liberty to apply on fourteen days notice to each party in the event that such application is to be pursued. The parties should notify my associate of any resolution being reached to close the file off. I direct the parties to notify my associate if any resolution of this question of costs is made.