Trkulja v State of Victoria

[2011] VSCA 255

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0105

MILORAD TRKULJA

v

STATE OF VICTORIA

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JUDGE:	HARPER JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2011
DATE OF JUDGMENT:	24 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 255

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PRACTICE AND PROCEDURE – Application for an extension of time within which to file and serve a Notice of Appeal – Failure by applicant to produce the proposed Notice of Appeal – No basis for appeal to succeed – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
Mr M Trkulja appeared in person
For the Respondent	Mr S A O’Meara	Victorian Government Solicitor

HARPER JA:

1. This is an application made by summons dated 13 July 2011 for an extension of time within which the applicant may file and serve a Notice of Appeal from a decision of Beach J made in the Supreme Court on 10 June 2011. 

1. The summons refers explicitly to an extension of time to serve the Notice of Appeal, as well as an extension of the time within which to file that Notice.  However, in evidence given before me this morning, the applicant, Mr Trkulja, swore that in fact the Notice of Appeal in question was served on the respondent on 21 or 22 or 23 June this year, one or other of those days.  If that is correct, then there is no need to seek an extension of time for the service of such Notice because such service would have been effected within the 14 days allowed from the date of his Honour's judgment of 10 June.

1. The respondent challenges the evidence that the Notice of Appeal was served at all, let alone on one or other of the days postulated by the applicant; and there is no evidence before me to substantiate or corroborate the oral evidence of the applicant concerning the date of service.

1. Not only is there no evidence to corroborate the bald statement of the applicant that the Notice of Appeal was served on one or other of the days designated by him, but the Notice of Appeal itself has not been produced.  I am therefore unable to examine the very Notice in respect of which the extension of time is sought.

1. That matter is of particular significance given that one of the considerations that I must take into account is whether or not service of the Notice or its filing, if an extension of time were granted, would be efficacious in advancing the case which the applicant seeks to prosecute.

1. Without the Notice of Appeal, I am not in a position to make a judgment on that matter.

1. The applicant has said that he did not appreciate that the Notice might be relevant to this application.  I find it very difficult to accept that proposition as a proposition of truth.  The applicant is not a lawyer and he cannot be expected to have the knowledge of Court proceedings or procedures which a lawyer might have.  On the other hand, it takes no intelligence at all to appreciate that if you are seeking an extension of time to file and serve a particular document, it would appropriate to have that document available to the Court in order for the Court to properly assess the validity of the application.

1. I am, for that reason alone, inclined to either dismiss the application for an extension of time or to adjourn it to allow the applicant to bring the Notice of Appeal to Court or to produce it in some other proper way.

1. The second option, however, must be considered in the light of the substantive merits of any appeal that might be taken from the judgment of his Honour of 10 June.  That judgment followed an application in relation to the sufficiency of discovery made pursuant to an order of Daly AsJ made on 18 March 2009 and authenticated on 31 March of that year. 

1. By that order, her Honour ordered that the then defendant, the present respondent, the State of Victoria, make discovery to the then plaintiff, the present applicant, of all documents which are or have been in its possession tending to assist in ascertaining the description of any person who conceived, created, published or disseminated or contributed in any way to the conception, creation, publication or dissemination of the documents set out in the exhibits marked “MT1” and “MT2” to the affidavit of the applicant sworn on 10 February 2009.

1. There is evidence before me that the then defendant, the present respondent, has obeyed that order.  The evidence principally comes from a letter from the applicant's then solicitors, Messrs Gibson, to the solicitors for the respondent dated 14 May 2009.  The substance of that letter was reported to the Court by letter addressed to the associate to Daly AsJ again dated 14 May 2009. 

1. In a letter to the Court, Gibsons Solicitors, under the hand of Kevin Dorey, a solicitor with that firm, told the Court that the respondent has: 

Now provided satisfactory discovery in accordance with the order of her Honour Associate Justice Daly made on 18 March 2009.  Accordingly, we now seek to vacate the adjourned return of our client's summons set down for 15 May 2009.

1. That summons had sought orders requiring obedience to the orders made by Daly AsJ.

1. In his judgment of 10 June this year, Beach J referred to the order of Daly AsJ, referred to the Gibsons letter, and referred to a DVD (which the applicant claims is a ‘document’ within the relevant definition of that term) which ought to have been discovered pursuant to Daly AsJ's order.  That DVD was described by his Honour in the following terms: 

It appears that the DVD contains a large number of documents both in English and possibly Serbian, containing pictures together with approximately 17,000 Word documents, 7,500 PDF documents, and 1,700 emails.  Realistically many of these documents, if not the greater portion, could not have any relevance to this proceeding.  Various applications have been made to the County Court which have produced orders exhibited to an affidavit of Richard Ellis relied upon by the Chief Commissioner.  The issue of the subpoenability of the DVD has been canvassed in these proceedings.  Orders adverse to the plaintiff's inspection have been made. 

1. There is nothing in the material before me to suggest that the orders of Daly AsJ had not been obeyed by the respondent, or that the ruling of Beach J was incorrect. 

1. I am further satisfied that in any event, any deficiency in discovery in relation to the identification of a person or persons who might have defamed the applicant can be made good by other means. 

1. I do not wish by anything I am about to say to in any way preclude the proper consideration of an application which might be made in the relevant proceeding or proceedings in the County Court, but the position as the applicant has informed me in his sworn evidence, is that he has taken proceedings in the County Court in defamation against a Mr Markovic.  The applicant has told me in his sworn evidence that he has some proof to substantiate the proposition that Mr Markovic has defamed him.  He tells me he seeks further proof.  If such further proof is properly obtainable by discovery, then proceedings for that discovery ought to be taken in the County Court in the proceeding brought against Mr Markovic given that they are the proceedings which directly relate to the relief which the applicant seeks.

1. Accordingly, even if there were a basis for thinking that the decision of Beach J might, following the filing and service of a proper Notice of Appeal, be overturned on appeal - and I am by no means convinced that there is - then the applicant, no matter what the fate of the present application, has preserved to him such rights as he may have to appropriate discovery in the County Court proceedings. 

1. In summary, in my opinion, there is no basis for acceding to an application for an extension of time to file and serve the Notice of Appeal, first because the applicant himself swears that the Notice was served and, in relation to the filing, because the Notice itself has not been produced.

1. Further, there is no basis, in my opinion, for thinking that an appeal against the decision of Beach J would succeed.

1. Finally, if the applicant has any appropriate remedy in relation to a deficiency in his proofs going to the identity of any person who might have defamed him, then he has that remedy in the County Court proceeding which he says he has brought against Mr Markovic.

1. For those reasons, the application made by summons of 13 July 2011 is dismissed.

1. (Discussion re costs)

1. According to law, there is no reason why the application for costs should not be acceded to.  Costs normally follow the event, that is they go to the successful party unless there is some reason they should not.  There is no reason of which I am aware why the ordinary order should not be made in this case.

1. I accordingly will order that the costs of this application be paid by the applicant to the respondent.

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