Martin v Fasham Johnson Pty Ltd - [2007] VSC 354

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4832 of 2007

JENNIFER MARTIN	Plaintiff
v
FASHAM JOHNSON PTY LTD	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 MAY 2007
DATE OF JUDGMENT:	20 SEPTEMBER 2007
CASE MAY BE CITED AS:	MARTIN v FASHAM JOHNSON PTY LTD
MEDIUM NEUTRAL CITATION:	[2007] VSC 354

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Appeal – Appeal from Victorian Civil and Administrative Tribunal – Leave to appeal – Extension of time – Appeal from Master’s order dismissing application allowed in part – Victorian Civil and Administrative Tribunal Act 1998, s.148(1) and (5).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Brett	Access Law
For the Defendant	Mr A.J. Laird	Schetzer Brott & Appel

HIS HONOUR:

By a notice dated 14 May 2007 the plaintiff, Jennifer Martin (“Dr Martin”), appealed against the order of a Master made on 10 May 2007 dismissing her application for leave to appeal against certain orders made by a Senior Member of the Victorian Civil and Administrative Tribunal (“VCAT”). That application was brought by originating motion and summons filed on 27 February 2007. It was supported by a 31 page affidavit of Mr Gabriel Kuek, Dr Martin’s solicitor and husband. The relief sought in the originating motion was for leave to appeal against:

(i)        Paragraphs 1, 5, 6, 7, 8 and 9 of the Orders of 30 January 2007;
(ii)       Paragraphs 1 and 2 of the Orders of 30 November 2006;
(iii)      Paragraphs 8, 9 and 10 of the Orders of 26 October 2006.

However, in the argument before the Master, on 1 May 2007, Dr Martin limited her application to one applying for leave to appeal against:

(a) paragraphs 1, 5, 7, 8 and 9 of the order made on 30 January 2007; and
(b) paragraph 8 of the order made on 26 October 2006.

The draft notice of appeal was amended to accord with this more limited application.

Pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), a party may, by leave, appeal, on a question of law, from an order of VCAT. The application for leave must be made no later than 28 days after the day of the order of VCAT (s.148(2)(a)). An extension of time under s.148(5) was therefore sought to apply for leave to appeal against paragraph 8 of the order made on 26 October 2006.

The Appropriate Test for Leave to Appeal

In Secretary to the Department of Premier and Cabinet v Hulls[1], Phillips JA laid down the following “guidelines” for a decision whether or not to grant leave under s.148 of the VCAT Act:

When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 354
Decision Date: 20 September 2007

CaseChat Overview and Summary

Martin brought an appeal against the decision of the Victorian Civil and Administrative Tribunal (VCAT) to dismiss his application for leave to appeal a Master's order. The dispute arose from an order made by a Master of the Supreme Court of Victoria, which Martin sought to appeal. VCAT dismissed his application for leave to appeal, leading to Martin's appeal to the Court of Appeal. The primary legal issue before the Court was whether Martin was entitled to an extension of time to appeal VCAT’s decision to dismiss his application for leave to appeal the Master’s order. Additionally, the Court had to determine whether the appeal from the Master's order should proceed.

The Court held that the statutory provisions of the Victorian Civil and Administrative Tribunal Act 1998 did not permit an appeal from VCAT's decision to dismiss an application for leave to appeal. However, the Court found that Martin was entitled to an extension of time to appeal VCAT's decision, given the circumstances of the case. The Court noted that the statutory framework under section 148(1) and (5) of the VCAT Act allowed for an extension of time in cases of special circumstances. The Court found that Martin's case met the criteria for an extension, as he had acted promptly in seeking legal advice and the delay was not attributable to any lack of diligence on his part.

As a result, the Court allowed the appeal from the Master's order in part, granting Martin the extension of time necessary to appeal VCAT’s decision. The Court did not permit the appeal from VCAT's dismissal of Martin's application for leave to appeal, as such an appeal was not available under the statutory provisions. The Court’s decision ensured that Martin could pursue his appeal against the Master's order within the extended timeframe, while clarifying the limited scope of appeals from VCAT decisions.

Orders