Ricky Bowman v Transport Accident Commission - [2016] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0039

RICKY BOWMAN	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

---

JUDGES:	BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 120

---

PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal from order of a judge of the County Court – Order of County Court judge directing the Registrar not to permit applicant to file writ and statement of claim – Interlocutory, discretionary decision on a matter of practice and procedure – Writ and statement of claim manifestly defective – Proceeding foredoomed to fail – Abuse of process – No real prospect that applicant will persuade Court of any error in judge’s discretion – Extension of time futile – Transport Accident Act 1986, ss 77 and 93, County Court Civil Procedure Rules 2008, r 27.06 – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent

BEACH JA

KYROU JA:

Introduction

This is an application for an extension of time within which to seek leave to appeal from an order of a County Court judge directing the County Court Registrar not to permit the applicant to file a writ and statement of claim dated 23 September 2015 (‘the 2015 writ’).

In refusing to permit the applicant to file the 2015 writ, the County Court Registrar relied upon r 27.06 of the County Court Civil Procedure Rules 2008 (‘the County Court Rules’). Subsequently, the matter was referred to the judge to determine whether the Registrar should be directed to permit the applicant to file the 2015 writ. Rule 27.06(3) of the County Court Rules permits a judge to direct the Registrar to accept a document for filing.

On 26 October 2015, the judge made an order in the following terms:

The Registrar is directed not to permit the plaintiff [applicant] to file the writ and statement of claim pursuant to r 27.06.

Section 74(2) of the County Court Act 1958 provides that an appeal from an order of a County Court judge must be commenced by filing an application for leave to appeal in the Court of Appeal within 28 days after the date of the order being appealed. The applicant was a few days out of time when he attempted to file an application for leave to appeal against the judge’s order on 30 November 2015.

The 2015 writ

The 2015 writ names the applicant as plaintiff. The defendant is described as ‘TAC Corporate’.

The fourth page of the document is headed:

Plaintiff’s indorsement of a statement of claim or of a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought.

Under this heading there is a block of 41 lines of handwriting. The bottom half of the 41^st line has been cut off at 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.

Keep reading for free

Create a free CaseChat account to read Ricky Bowman v Transport Accident Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 120
Decision Date: 27 May 2016

CaseChat Overview and Summary

Ricky Bowman sought an extension of time to appeal against a decision by a judge of the County Court that denied him leave to file a defective writ and statement of claim. The Transport Accident Commission opposed the application, arguing it was futile. The court had to determine whether an extension of time should be granted for the appeal, considering the defective nature of the original writ and statement of claim and the likelihood of success on appeal.

The court considered whether granting an extension of time would serve any useful purpose, given that the writ and statement of claim were so manifestly defective that the proceeding was foredoomed to fail. The court held that the judge’s decision was a discretionary interlocutory order on a matter of practice and procedure. The applicant had not demonstrated any real prospect that he would persuade the Court of any error in the judge’s discretion. The court found that the proceeding was an abuse of process, and therefore, the application for an extension of time was futile.

The court dismissed the application for an extension of time, finding that it would be futile to grant such an extension. The court emphasised that the applicant had not shown any real prospect of successfully persuading the Court of any error in the judge’s discretion. The application was denied, and the court held that the proceeding was an abuse of process. The court made no orders as to costs.

Orders