Russo v TAC
[2018] VSC 203
•27 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST |
S CI 2017 03992
| FRANK RUSSO | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2018 |
DATE OF JUDGMENT: | 27 April 2018 |
CASE MAY BE CITED AS: | Russo v TAC |
MEDIUM NEUTRAL CITATION: | [2018] VSC 203 |
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ADMINISTRATIVE LAW — Transport accident claims — Claimant seeking VCAT review of Transport Accident Commission’s decision not to allow medical claims — Procedural orders of VCAT to facilitate review — Compulsory conference — Consent orders ending VCAT proceeding — Appeal by claimant — Associate Justice refused leave — Appeal to Court — No error established — Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr J Valiotis | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Mr Russo appeals from orders of an Associate Justice of 12 February 2018 refusing him leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘Tribunal’), dismissing his originating motion and ordering him to pay the Transport Accident Commission’s costs of the proceeding.[1] Mr Russo seeks an order reinstating his originating motion seeking leave to appeal the VCAT orders, and the remittal of the proceedings to VCAT for rehearing.
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.
The proceeding before the Associate Justice was an application by Mr Russo for leave to appeal on questions of law from orders of VCAT of 5 and 7 September 2017. The order of 5 September 2017 was procedural and fixed a directions hearing on 7 September particularly to ensure that Mr Russo had arranged for medical practitioners to attend for cross-examination by TAC at the substantive hearing which was fixed for 12 September 2017.
The orders of 7 September 2017 were described as by consent of the parties and included:
1.Today commenced as a directions hearing at 2:00pm and was converted to a compulsory conference at approximately 2:50 pm.
2.By consent, the decision of the respondent made on 18 September 2014, (the decision under review in this proceeding), is varied in that the respondent has to pay the applicant the sum of $1,600 by close of business on 21 September 2017.
3. No order as to costs.
4.The hearing in this proceeding, which was scheduled to commence on 12 September 2017, is vacated.
The order of the Associate Justice recites that after hearing Mr Russo’s submissions about the VCAT order of 5 September 2017, his Honour decided ex tempore that there was no error of law in that decision, and no injustice, substantive or procedural and that he refused leave to appeal.
Background
Mr Russo sustained injuries following a transport accident in 1999, his no fault claim to TAC was accepted and his common law damages claim was settled in December 2005 by the execution of a Deed of Release. He sought further treatment funding from TAC for an umbilical hernia and a inguinal hernia. Liability for the inguinal hernia was rejected by the TAC in September 2014 and Mr Russo commenced proceedings in VCAT in February 2015 for the review of that decision, seeking orders for his out of pocket expenses, for ongoing medical expenses and costs. On 28 October 2015, Mr Russo offered to resolve his application on the basis that TAC conceded that it had breached the Deed of Release dated 21 December 2005. On 10 November 2015, TAC made an offer of $1600 with no order as to costs, for the gap payment and out of pocket expenses relating to the inguinal hernia repair, but Mr Russo rejected it. The hearing was fixed for 12 September 2017. Procedural orders were made on 5 September 2017 including ordering a directions hearing on 7 September 2017. During the conduct of the second hearing it was converted into a compulsory conference and the TAC offer of $1600 was repeated, and Mr Russo accepted it. The consent orders were then made.
The Associate Justice’s consideration of the orders of 5 and 7 September 2017
The Associate Justice described the order of 5 September 2017 as ‘purely procedural in nature, as part of the case management referable to the proximity of the hearing date’. His Honour set out the history in detail of the VCAT proceedings and saw no error of law made in the making of the procedural orders. They were necessary orders and:
On their face, they were necessary to deal with the proper adjudication of Mr Russo’s application and to ensure a fair hearing of his application and the burdens put on Mr Russo, that is to ensure the presence of the doctors, was a necessary part of the application.[2]
[2]Transcript of Proceedings, Frank Russo v Transport Accident Commission (Supreme Court of Victoria, S CI 2017 03992, Mukhtar AsJ, 12 February 2018) 36 (‘T’).
So far as the orders were concerned, his Honour noted that the directions hearing that day was converted to a compulsory conference. The issue in the proceeding was whether Mr Russo’s claim for the cost of surgery or other expenses concerning the inguinal hernia were claimable because it was an injury arising out of the 1999 motor car collision.
His Honour’s order also recited that after commencing his address to the Court concerning the second Tribunal order, Mr Russo said, in effect, he was not going any further and he left the Court. The Associate Justice’s order recited that his Honour proceeded on the basis of the materials contained in the Court Book and the transcript of the Tribunal proceedings and he gave ex tempore reasons for refusing leave to appeal the second order. The Associate Justice noted that that order was made by consent and that he did not see anything in the transcript of the Tribunal hearing to raise any apprehension of procedural unfairness, impaired faculties, or anything to vitiate Mr Russo’s consent.
In his revised ruling, the Associate Justice noted that the TAC was disputing that the inguinal hernia was attributable to the collision and wanted to test any evidence to be adduced on behalf of Mr Russo. He noted that Mr Russo was accompanied by his son, and considered that he was not labouring under any impairment, disadvantage or disability which would have made him incapable of understanding the elements of the case and the conduct of the proceeding. There had been no breach of the requirements of procedural fairness. His Honour referred to some of the exchanges that occurred at the hearing of 7 September 2017. He also referred to the Deed of Release of December 2005 and to Mr Russo’s statement that he wanted to pursue his case in another court. Mr Russo made positive statements to the Senior Member that he wanted to ‘close the case’ and ‘re-apply somewhere else’. His Honour concluded that Mr Russo agreed to have his proceeding at the Tribunal end, so he could pursue his rights elsewhere. The Tribunal’s order was plainly a final order disposing of the application.
His Honour stated:
It appears that in truth what Mr Russo was seeking by means of this application was to revisit the date of release, the conduct of his solicitors who advised him at the time, the medical evidence concerning the hernia, all in aid of making an additional claim for pain and suffering as a result of the collision.[3]
[3]T 56.
His Honour considered that Mr Russo’s application for leave to appeal could be disposed of by refusing leave on the ground that Mr Russo left the court and abandoned the application. He added that he did not see in the transcript of Tribunal proceedings any suggestion of procedural unfairness or ‘importunity on Mr Russo’.[4]
[4]Ibid.
Mr Russo’s proposed notice of appeal
Mr Russo’s proposed grounds of appeal as contained in the proposed notice of appeal concentrate on documents that he had been requested to produce, which he says he attempted to provide to the Court and which were refused initially, but later accepted, but not considered. This appears to be a procedural fairness argument, but it has not been established that his Honour failed to take into account any relevant document. Mr Russo also alleged that the TAC did not complete the joint Court book and did not file relevant documents. He appears to allege that there was misleading conduct with the intention to pervert the course of justice before the Associate Justice or the Tribunal. There is no substance in those allegations. In his draft notice of appeal he also alleged that the Senior Member did not mention his claim for out of pocket travel expenses and gap for cost of his specialists’ reports, but the relevant matter before the Tribunal was the offer which was made and that Mr Russo accepted it.
In written submissions of 27 and 29 March 2018, Mr Russo alleged that the order of 7 September 2017 had the effect of varying the decision dated 18 September 2014, by which the TAC rejected liability for funding his right inguinal hernia operation.
Mr Russo set out the history of his medical treatment and the advice about treatment that he received from doctors. He alleged that TAC breached the Deed of Release entered into in 2005 by refusing to pay legal costs ordered by the County Court. However, as the Associate Justice noted, the preservation of rights contained in that Deed still required a demonstration that the medical and like expenses concerned an injury attributable to the 1999 motor car collision. Mr Russo stated that over the years he has sought further treatment, which TAC had refused to pay for, including physiotherapy and further treatment for his umbilical and inguinal hernias. He also submitted that the Tribunal’s orders were not final orders as the final hearing was scheduled for 12 September 2017 and the orders made did not include all the orders that he wished to seek at the hearing on that date.
In oral submissions, Mr Russo submitted that some pages of the transcript of the hearing before the Associate Justice were missing when he received the transcript. However, it seems clear that they were provided later, once his Honour, following usual practice, had revised his rulings. He complained that he had been unable to continue with the final hearing of his review application on 12 September 2017.
The TAC submitted that Mr Russo had failed to disclose an error of law in the Tribunal proceeding and had not identified any error that would raise any question to be disposed of should leave be granted. Nor had he established that the Associate Justice had erred.
Consideration of submissions
To succeed on this appeal Mr Russo must show an error by the Associate Justice. Before the Associate Justice, in order to obtain leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998, Mr Russo was required to identify a question of law in respect of which there is a real or significant argument that error existed and that substantial injustice would occur in leaving the order unreversed.[5] The Associate Justice’s orders involved the exercise of a discretion to refuse leave and Mr Russo had to establish an error in the exercise of that discretion.[6]
[5]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331; Zumpano v Banyule City Council [2016] VSC 420, [10].
[6]Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [30] (Warren CJ).
I have considered the transcript of the proceedings before the Associate Justice and before VCAT and the many documents that have been filed.
Mr Russo has not established an error in his Honour’s order or decision refusing leave to appeal from the 5 September 2017 order. His Honour was clearly correct that that order was designed to ensure that Mr Russo’s case could proceed on the listed hearing date, 12 September 2017.
Similarly, I am not persuaded that there was any error by the Associate Justice in dismissing Mr Russo’s challenges to the 7 September 2017 orders. None of the grounds of appeal on which Mr Russo relies has been established.
The matter had come to VCAT as an application to review TAC’s decision of September 2014. The review application was resolved by consent orders on 7 September 2017 and nothing put forward shows any error in the Associate Justice’s consideration of the application for leave to appeal. Mr Russo, who was accompanied by his son at the Tribunal hearing, accepted an offer made by TAC and consent orders were made. No case that the TAC had breached the Deed of Release has been established. Mr Russo must have known that the consent order of 7 September meant that there would be no further hearing on 12 September 2017. No possible basis for an assertion of a denial of procedural fairness or any improper conduct during the Tribunal hearing or on the application for leave to appeal has been established.
Moreover, while the leave to appeal application in respect of the order was being heard by the Associate Justice, Mr Russo walked out of the hearing and did not pursue it. That was his choice and that was his decision and he is bound by those actions.
Accordingly, the appeal is dismissed.
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