Peers v Fletcher - [2024] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0122

VALERIE PEERS	Applicant
v
MARTIN FLETCHER	First Respondent
-and-
MAGISTRATES’ COURT OF VICTORIA	Second Respondent

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JUDGES:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 275
JUDGMENT APPEALED FROM:	Peers v Australian Health Practitioner Regulation Agency [2024] VSC 110 (Gorton J); Peers v Fletcher (& anor) [2024] VSC 427 (Watson J)

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JUDICIAL REVIEW – Appeal – Application for extension of time to file application for leave to appeal against orders as to costs – Application in respect of two separate proceedings – Delay of six months in respect of first proceeding and six weeks in respect of second proceeding – Applicant self-represented litigant – No adequate explanation for delay – Proposed grounds of appeal not sufficiently arguable – Application for extension of time refused.

Supreme Court (General Civil Procedure) Rules 2015, rr 64.05, 64.08, 64.15, referred to.

Gippsreal Ltd v Kenny [2016] VSCA 65, considered, Northern Territory v Sangare (2019) 265 CLR 164, applied.

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Counsel
Applicant:		In person
First Respondent:		Ms Catherine Boston KC with Mr Minh-Quan Nguyen
Second Respondent:		No appearance
Solicitors
Applicant:	In person
First Respondent:	Russell Kennedy Lawyers
Second Respondent:	No appearance

KAYE JA:

By an application filed on 17 October 2024, the applicant, pursuant to r 64.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), applies for an extension of time within which to file and serve an application for leave to appeal from orders made by the Trial Division of this Court in two separate proceedings. The application for an extension of time has been referred to me, to be determined on the papers, pursuant to r 64.15(1) of the Rules.
In each proceeding, the first respondent, Martin Fletcher, was the first defendant, and the second respondent, Magistrates’ Court of Victoria, was the second defendant. Mr Fletcher is the Chief Executive Officer of the Australian Health Practitioner Regulation Agency (‘AHPRA’).

The first proceeding

In the first proceeding (S ECI 2023 04834), the applicant, by originating motion, applied for judicial review of a decision by a magistrate not to make a suppression order in proceedings involving the applicant.
That proceeding, together with two other proceedings in which the applicant is the plaintiff, was listed for hearing before Gorton J on 23 February 2024.
On 22 February 2024, the applicant served on the respondents in the proceeding an unsworn affidavit, seeking an adjournment of the hearing on 23 February 2024, together with a medical certificate. In response, the solicitor for the respondent notified the court that the respondent would consent to the applicant appearing remotely on 23 February 2024, that the respondent neither consented to, nor opposed, the applicant’s request for an adjournment, and that the respondent would apply for costs thrown away by reason of the adjournment, if the matter was adjourned.
On the following day, 23 February 2024, the matter came on…

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.

Continue reading Peers v Fletcher

Details

AGLC: Peers v Fletcher [2024] VSCA 275
Case: [2024] VSCA 275
Decision Date: 21 November 2024

CaseChat Overview and Summary

In Peers v Fletcher, the applicant sought an extension of time to file an application for leave to appeal against orders as to costs in two separate proceedings. The applicant was self-represented and had experienced delays in filing the application for leave to appeal, amounting to six months for the first proceeding and six weeks for the second. The respondent opposed the application on the basis that there was no adequate explanation for the delay, and the proposed grounds of appeal were not sufficiently arguable.

The legal issues before the court were whether the applicant could be granted an extension of time to file the application for leave to appeal, and if so, under what circumstances. The court had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, and the cases of Gippsreal Ltd v Kenny and Northern Territory v Sangare. The court had to determine whether the applicant's delay was excusable, and whether the proposed grounds of appeal were arguable.

The court found that the applicant had not provided an adequate explanation for the delay, and that the proposed grounds of appeal were not sufficiently arguable. The court held that the applicant had not demonstrated any exceptional circumstances that would justify an extension of time, and that the delay had caused prejudice to the respondent. The court held that the application for extension of time was refused. The court also noted that the applicant had not demonstrated that the proposed grounds of appeal were arguable, and that the application for leave to appeal would likely be unsuccessful.

The court did not make any orders in relation to the application for extension of time, and the applicant's appeal against the orders as to costs in the two separate proceedings remained unfiled. The court held that the applicant's delay in filing the application for leave to appeal was not excusable, and that the proposed grounds of appeal were not sufficiently arguable. The court held that the application for extension of time was refused, and that the applicant's appeal against the orders as to costs in the two separate proceedings remained unfiled.

Orders