Simjanoski v La Trobe University

[2004] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4956 of 2004

YANE SIMJANOSKI & ORS
	Applicants
v.
LA TROBE UNIVERSITY & ORS	Respondents

APPLICATION ON SUMMONS

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2004
DATE OF JUDGMENT:	23 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 125

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Appeal – Relief in the nature of certiorari – Whether refusal final or interlocutory – Application for leave to appeal from interlocutory order of judge in Trial Division – Whether detailed reasons need be given for refusal of leave to appeal – Supreme Court Act 1986, s.17A(4)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P.G. Nash, Q.C. Ms N. Karapanagiotidis	Access Law
For the 1st Respondent Other Respondents	Ms D.S. Mortimer, S.C. No appearance	La Trobe University

CALLAWAY  J.A.:

1. On 27 May 2004 a judge in the Trial Division refused relief in the nature of certiorari, and other relief dependent thereon, sought by the applicants. The applicants correctly apprehend that they require leave to appeal against that order because it is an "order in an interlocutory application" within the meaning of s.17A(4)(b) of the Supreme Court Act 1986, as that expression was interpreted in Border Auto Wreckers Wodonga Pty. Ltd. v. Strathdee[1].  The most recent discussion of the point is to be found in Victoria Legal Aid v. The County Court and The Gatehouse Clinic[2].  It is not every refusal of relief in the nature of certiorari that is interlocutory, but the present refusal was of that nature.  Mr  Nash so submitted and the submission should be accepted.  It is therefore unnecessary to say much about the exceptions.  Generally speaking, they relate to cases where relief is refused in a principal cause on a basis that admits of no further application even with an extension of time.[3] 

   [1][1997] 2 V.R. 49.

   [2][2004] VSCA 113.

   [3]See A. Hudson Pty. Ltd. v. Legal & General Life of Australia Ltd. (1985) 1 N.S.W.L.R. 701 especially at 715-717 and Harding v. University of New South Wales [2002] NSWCA 325 at [42].

1. In case counsel's submission was not accepted, the applicants sought leave to amend the summons by adding a paragraph seeking an extension of time in which to appeal.  It follows from what I have said that there is no need to amend the summons and leave to amend it should be refused.

1. The Court has had the benefit of outlines of submissions, albeit filed very late in the case of the applicants, and oral argument on behalf of the applicants.  We did not call upon counsel for the first respondent, who informed us in her outline that the other respondents will abide the order of the Court.

1. It is the practice of the Court in most cases not to give other than general reasons for refusing leave to appeal under s.17A(4)(b). That practice, which goes back to X v. Director of Public Prosecutions[4], is not affected by Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue[5], which disapproved a practice in the Trial Division of giving no reasons at all and was concerned with applications for leave to appeal under s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998. Such applications usually relate to final orders and the Tribunal is not a court.[6]  Nevertheless the Court has always made limited exceptions in appropriate cases.[7]

   [4][1995] 2 V.R. 662 at 623 and 626-627.

   [5](2001) 207 C.L.R. 72.

   [6]See also Energy Brix Australia Corporation Pty. Ltd. v. National Logistics Co-Ordinators (Morwell) Pty. Ltd. (2002) 5 V.R. 353 at [37].

   [7]See, for example, Lucas v. Public Transport Corporation Victoria (2000) 1 V.R. 156 at [14] and King v. Lintrose Nominees Pty. Ltd. (2001) 4 V.R. 619 at [22] and [35].

1. This is a case where something should, I think, be said about the principal ground of appeal.  The applicants' best point is that, at [39] of her reasons, the learned judge appears to have misdirected herself as to the test for apprehended bias.  I say "appears" because the word "would" in that paragraph may have been a slip of the tongue.  Her Honour had just set out passages from two High Court cases in which the test was correctly stated, but the error was unfortunate given that she apparently perceived this to be a borderline case.  In determining whether to grant leave to appeal, however, it is the order on which one should focus.  It is the order that must be attended with sufficient doubt to warrant the grant of leave.  It is rarely enough to point to an error in the reasons if the appeal has insufficient prospects of ultimate success.[8]

   [8]If authority is required for that proposition, see King v. Lintrose Nominees Pty. Ltd. at [22].

1. In the present case I consider that the same result would follow, as regards apprehended bias, even if one applied the correct test.  The coffee incident was regrettable but insubstantial, even though it involved Dr Sommer.  I do not overlook Mr  Nash's submission that its significance is to be assessed in context, the context being the partially inquisitorial style in which the hearing was conducted and the extent of questioning by Dr Sommer.

1. As to the other grounds of appeal, I am content to follow the practice reaffirmed in X v. Director of Public Prosecutions.  I accept that, if the order were wrong, it would cause substantial injustice to the applicants, but I am not persuaded that it is attended with sufficient doubt to warrant the grant of leave to appeal. 

1. I would refuse the application.

BUCHANAN, J.A.: 

1. I agree.

CALLAWAY J.A.: 

1. The orders of the Court will be as follows: 

1.     The application to amend the summons filed on behalf of the applicants on 10 June 2004 is refused.

2.     The application for leave to appeal made by that summons is refused with costs.

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