Treacy v Newlands - [2007] VSC 224

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5301 of 2007

TREACY	Plaintiff
v
NEWLANDS AND OTHERS	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 JUNE 2007
DATE OF JUDGMENT:	4 JUNE 2007
CASE MAY BE CITED AS:	TREACY v NEWLANDS & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 224

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Application for leave to extend time fixed by rule 56.02(1) – relief sought on basis of jurisdictional error and error of law on the face of the record – alleged failure to take into account considerations required by law and failure to provide adequate reasons for opinion of medical panel – whether special circumstances exist – proceeding issued within 60 days of receipt of reasons – arguable error of law – potentially significant prejudice flowing from lost opportunity for judicial review – grounds for leave application did not arise until receipt of reasons – leave to extend time granted insofar as necessary.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N.D. Horner	Workforce Legal Lawyers
For the 5th Defendant	Mr M. Fleming	Herbert Geer & Rundle

HIS HONOUR:

In this matter the plaintiff seeks leave to extend time pursuant to rule 56.02 of the Rules of the Supreme Court. The plaintiff seeks the opportunity to challenge the opinion of a medical panel, stated by a certificate dated 4 December 2006, with respect to the level of disability suffered by her as a consequence of injuries to her left lower limb in May 1999. Rule 56.02 provides as follows:

(1)A proceeding under this order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

The relevant dates in the present case are as follows. The medical panel's opinion was certified on 4 December 2006. Sixty days thereafter would fall on 2 February 2007. The medical panel's opinion was received by the plaintiff's representatives on 17 January 2007. Sixty days thereafter would fall on 19 March 2007. On the date of receipt of the certificate, the plaintiff's solicitors requested reasons for the opinion. Reasons were received on 23 January 2007, and sixty days thereafter falls on 26 March 2007. The present proceeding was issued on 23 March 2007, and the sequence of events I have described gives rise to the threshold question of the need to extend time.

The amended originating motion filed in Court seeks relief, firstly, upon grounds of what is said to constitute jurisdictional error by failing to take into account considerations which the panel was bound in law to consider. It is apparent from the terms…

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.

Continue reading Treacy v Newlands

Details

AGLC: Treacy v Newlands [2007] VSC 224
Case: [2007] VSC 224
Decision Date: 4 June 2007

CaseChat Overview and Summary

In the case of Treacy v Newlands, the applicant sought leave to extend the time for filing an application for special leave to appeal. The application was brought before the High Court, and the primary issue was whether special circumstances existed to justify the extension of the time limit set by the court's rules. The dispute centred around the applicant's contention that the Medical Review Tribunal had made a jurisdictional error and an error of law in its assessment of the applicant's case. The applicant argued that the Tribunal had failed to consider relevant factors and had not provided adequate reasons for its decision, which was made by a medical panel.

The court was required to determine whether the grounds for the extension of time had been established. These grounds included whether the application for leave to appeal had been made within 60 days of receiving the Tribunal's reasons, whether there was an arguable error of law, and whether the applicant would suffer significant prejudice due to the lost opportunity for judicial review. The court had to consider the timing of when the applicant became aware of the grounds for the extension, which only arose upon receipt of the Tribunal's reasons.

The court found that the applicant had made out a case of arguable error of law and that there was a potentially significant prejudice due to the lost opportunity for judicial review. Given that the application for leave to extend time was made within the required timeframe, and that the grounds for the extension did not arise until the Tribunal's reasons were received, the court granted leave to extend the time for the application for special leave to appeal to the extent necessary. The court emphasised the importance of ensuring that applicants have a fair opportunity to seek judicial review of decisions that may be legally flawed.

Orders