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

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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

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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.

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

BEACH JA

KYROU JA:

Introduction

1. 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’). 

1. 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.

1. 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.

1. 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

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

1. 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.

1. 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 bottom of the page, and is not able to be deciphered.  The first word (or part thereof) of some of the first 40 lines has been cut off, making a document that is difficult to read even more difficult.

1. The indorsement on the fourth page of the 2015 writ continues onto the fifth page.  The fifth page only contains 39 lines of handwriting.  The first half of the fifth page appears to be a continuation of what is said on the fourth page.  The second half of the fifth page begins:

PS For the court and Judge’s attention …

1. The sixth, seventh and eighth pages of the 2015 writ contain colour photographs with some commentary in handwriting around them.  The ninth page appears to be a Medicare bulk bill assignment advice.  This page also has some handwriting on it.  The 10^th to 18^th pages are more colour pictures with handwriting on them.  Some of the handwriting is in biro, and some appears to be written with a black marker pen.  By way of example, the 18^th page is a picture of a young woman, with the following written in black marker pen over the top of the picture:

This chick looks just like the digest man tryin’ to play me.

1. The endorsement on the fourth page of the document begins as follows:

As per my previous application after discussion with the Supreme Court has advised me that I should reapply as TAC was using the judge’s excuse to argue about nothing to do with my TAC in an effort to stall time, so I am explaining in better order for the judge to prevent [undecipherable] TAC Corporate from abusing the court system against me again.  [Undecipherable] claim for compensation entitlements I have against TAC are due to a [motor] accident 2001, after that accident the TAC paid for treatments at my doctors and the hospital for some time treatments including acupuncture [undecipherable] which in 2002 I had a physical exam with the TAC medical professional examiner at which time I was to by that TAC staff I wasn’t getting money from them which I didn’t ask for at that time just to be fixed as I had pain issue I felt needed to be checked.  The exam proceeded and I was then shown the door after being given instructions that if I exercised and got on with life I would have no further pain issue and after having scans done …

1. The reference in the first line of the indorsement to a previous application is, we assume, a reference to a County Court writ issued by the applicant against the TAC in 2012.  In that claim, the applicant sought to sue the TAC in relation to advice he alleged he had been given by the TAC ‘to proceed with life’.  In that earlier proceeding, the applicant also sought damages ‘for 10 years pain and suffering for medical negligence’.  That proceeding was struck out by a judge in October 2012.

The applicant’s material

1. In support of his application for an extension of time, the applicant has filed an affidavit in which he has deposed to a belief that he may not have been out of time when he sought to file his application for leave to appeal.  It is not necessary for us to consider this matter further because, if we concluded that the applicant had any prospects of success in respect of his proposed application for leave to appeal, then we would not regard the delay of a few days as material.  Specifically, if we were to conclude that the applicant had any reasonable prospects of success in his application for leave to appeal then we would be prepared to grant the extension of time that the applicant seeks.

The merits of the proposed application for leave to appeal

1. In our view, it would be futile to grant the applicant the extension of time that he seeks.  The 2015 writ is plainly irregular[1] and has not been prepared in accordance with the County Court Rules.[2] Indeed, in his application for leave to appeal, the applicant accepts that the 2015 writ is ‘presently not prepared in accordance with the County Court Rules’.  Moreover, in the applicant’s written case, the applicant concedes that the 2015 writ is in an ‘irregular form’.

   [1]Cf r 27.06(1) of the County Court Rules.

   [2]Cf r 27.06(2) of the County Court Rules.

1. The decision of the County Court judge to direct the Registrar not to permit the applicant to file the 2015 writ was an interlocutory discretionary decision about a matter of practice and procedure.  While a different judge may possibly have come to a different conclusion,[3] there is no real prospect that the applicant might ultimately persuade this Court that there has been any error in the exercise of the County Court judge’s discretion.[4] 

   [3]See, eg, Re Clement [2011] VSCA 40; Djime v Le [2016] VSCA 105.

   [4]See House v The King (1936) 55 CLR 499, 504–5; In re the Will of Gilbert (dec) (1946) 46 SR (NSW) 318, 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177; The Commissioner of the AFP v Dong Hua International Investments Pty Ltd [2016] VSCA 15 [31].

1. The 2015 writ is manifestly defective. Not only has it not been prepared in accordance with the County Court Rules, any proceeding commenced upon its filing would undoubtedly be irregular. Moreover, any such proceeding would be an abuse of process because it would be foredoomed to fail.

1. In his written case, the applicant asserts that the 2015 writ constitutes a claim for statutory benefits under the Transport Accident Act 1986 and a claim for common law damages pursuant to s 93 of that Act.  Two points may be made.  First, the County Court does not have jurisdiction to hear disputes between the victims of transport accidents and the Transport Accident Commission concerning the payment of statutory benefits.  That jurisdiction belongs to VCAT.[5]

   [5]See Pt 4 of the Transport Accident Act 1986, and in particular s 77 thereof. Cf s 264 of the Workplace Injury Rehabilitation and Compensation Act 2013 which gives the County Court jurisdiction in respect of disputes about statutory entitlements in claims under that Act.

1. Secondly, in order for the applicant to recover common law damages, he needs to comply with s 93 of the Transport Accident Act. While the applicant might have an entitlement to seek leave to commence a common law proceeding pursuant to s 93 of the Transport Accident Act, he presently has no entitlement to make a claim for damages pursuant to that section.

Conclusion

1. The application for an extension of time must be refused.

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