Nimesh Watapaldeniya v Transport Accident Commission

[2022] VSCA 50

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:

1. 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.

1. 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].

1. 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.

1. 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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