Sokol Rukaj v Commonwealth Insurance Ltd
[2016] VSCA 20
•18 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0153
| SOKOL RUKAJ |
| v |
| COMMONWEALTH INSURANCE LTD (ACN 067 524 216) |
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APPLICATION FOR LEAVE TO APPEAL
REASONS
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JUDGES: | WHELAN and FERGUSON JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 18 February 2016 |
DATE OF JUDGMENT: | 18 February 2016 |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 20 |
JUDGMENT APPEALED FROM: | [2014] VCC 1920 (Judge Lacava) |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Application for adjournment – Adjournment refused – No instructions to appear on application for leave to appeal – Application for leave to appeal dismissed without adjudication on the merits.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr Wei (Victor) Wang (Solicitor) | Ascot Solicitors |
For the Respondent | Mr M Wheelahan QC with Mr A Donald | Turks Legal |
WHELAN JA:
This proceeding concerns an insurance policy covering, amongst other things, malicious damage by a tenant to a property purchased by the applicant in 2011. One of the terms of that policy was that the applicant was not covered unless there was a signed tenancy agreement.
By March 2012 the tenant had vacated the property leaving it in a damaged condition.
In April 2012 the applicant made a claim under the insurance policy. It became apparent in the course of the dealings between the applicant and the insurer that the insurer considered that the exclusion concerning the absence of a signed tenancy agreement applied with the result that the applicant was not covered. In November 2012 the applicant’s then solicitors provided a copy of what purported to be a signed tenancy agreement to the insurer.
In June 2013 a proceeding was issued in the County Court seeking indemnity under the policy. One of the insurer’s defences was that there had been no signed tenancy agreement at the time of the loss. The insurer contended that the document which had been provided in November 2012 was a fraud, concocted by the applicant and his brother in order to meet the contention the loss was not covered because of the absence of a signed tenancy agreement.
The matter proceeded to a trial before Judge Lacava in October 2014 and, by an order made on 21 November 2014, Judge Lacava dismissed the applicant’s claim and ordered the applicant to pay the insurer’s costs. In substance, Judge Lacava accepted the insurer’s case that the purported signed tenancy agreement was a fraudulent concoction.
This application for leave to appeal was filed on 19 January 2015 with a written case as required by the Supreme Court (General Civil Procedure) Rules 2015. The respondent insurer filed its written case in response in February 2015 and the Registrar then made orders directed towards finalisation of the application book and other matters.
The application was fixed for hearing on 28 July 2015. On 27 July 2015 this Court made an order adjourning the application by consent to a date not before 5 November 2015. This was done upon the basis that the applicant suffered from a medical condition which meant that the application could not proceed at that time.
The matter returned to Court today. Over the last few days there have been communications from the applicant’s solicitors to the Registry and to the respondent’s solicitors to the effect that the applicant has been required to travel overseas for urgent medical treatment. The applicant sought the respondent’s consent to a further adjournment. The respondent was not prepared to consent.
Mr Wang, solicitor, appeared on behalf of the applicant and filed an affidavit of his principal, Mr Senad Dizarevic, sworn today. Mr Wang made it clear that his instructions were simply to ask for an adjournment, that he was not instructed to argue the application and was, in any event, not able to do so because of his limited familiarity with the matter.
The affidavit of Mr Dizarevic deposed to the fact that advice had been taken as to the prospects of success on the proposed appeal from senior counsel and that the applicant had been informed of that advice. He also deposed that on Monday, 15 February 2016, he had received a telephone call from the applicant’s mother who had told him that the applicant had been required to travel overseas immediately for urgent medical treatment. The affidavit then deposed to steps taken to seek consent to an adjournment and also steps taken to contact the applicant himself. Mr Dizarevic deposes that despite numerous attempts by himself and other employees of the firm, contact with either the applicant or the applicant’s brother, who was also involved in the relevant events, had not eventuated. The applicant’s solicitors have no further instructions.
The application for an adjournment is opposed by counsel appearing on behalf of the respondent. It is submitted that it is clear from the affidavit which has been sworn that the applicant is aware of the proceeding and that he has had advice from senior counsel about his prospects. It is submitted that the affidavit relied upon is an unsatisfactory basis upon which to order what is now a second adjournment.
In my view, this application for an adjournment must be refused. It is the second time that an application has been made on medical grounds. This Court has no proper affidavit material before it in relation to the applicant’s medical condition. Given the earlier adjournment, in my view it is inappropriate for the matter to be adjourned on the basis of the affidavit which has now been filed.
After the Court indicated that the application for an adjournment would not be granted, Mr Wang said that he was not in a position to appear on the application itself.
Senior counsel for the respondent suggested that perhaps the Court should treat the application as still on foot based upon the written case which had been filed approximately a year ago.
In my view that is not an appropriate course. The applicant has not appeared on the application other than for the purpose of seeking an adjournment. The adjournment will be refused. Whether the applicant wishes the application to proceed, and, if he does, what submissions would be made is unknown. It cannot be assumed that the written case would be adopted.
In all the circumstances, it seems to me that the appropriate course is to dismiss the application without an adjudication on the merits. The applicant could,
theoretically at least, bring a further application for leave to appeal out of time. It would of course be necessary in that context for him to provide a detailed explanation of his medical condition and of the events which have led to this hearing today.
The application for an adjournment should be refused and the application for leave to appeal should be dismissed.
FERGUSON JA:
I agree.
(Discussion as to costs)
WHELAN JA:
On the application itself, the order is that the application is dismissed, with costs, including reserved costs.
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