Vasilev v Northern Territory of Australia
[2018] NTSC 81
•28 November 2018
CITATION:Vasilev v Northern Territory of Australia [2018] NTSC 81
PARTIES:VASILEV, Radostin
v
NORTHERN TERRITORY OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 8 of 2018 (21700623)
DELIVERED: 28 November 2018
HEARING DATE: 21 May 2018
JUDGMENT OF: Kelly J
REPRESENTATION:
Counsel:
Appellant:Self represented
Respondent: JW Roper
Solicitors:
Appellant:Self represented
Respondent: Hunt & Hunt Lawyers
Judgment category classification: C
Judgment ID Number: Kel1813
Number of pages: 19
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINVasilev v Northern Territory of Australia [2018] NTSC 81
No. LCA 8 of 2018 (21700623)
BETWEEN:
RADOSTIN VASILEV
Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 November 2018)
Introduction
This is an appeal from an order of the Work Health Court made on 22 January 2018, dismissing the appellant’s application on his failure to appear at the hearing.
The time for filing of any appeal against that judgment expired on Monday, 19 February 2018. The appellant filed an Application for Leave to Appeal on Thursday, 22 February 2018.
The essence of the appellant’s complaint is his contention that the Work Health Court should have permitted him to appear at the hearing of his application by telephone.
Background
On 28 October 2016 the respondent’s insurer gave notice of the decision to cancel the appellant’s weekly compensation pursuant to the Return to Work Act (NT) (“the Decision”).
From 16 November 2016 to 20 February 2018, the appellant made three applications in the Work Health Court to set aside the Decision and reinstate the appellant’s weekly compensation. The appellant also made four applications for interim benefits. The applications for interim benefits were all unsuccessful.
The first application to the Work Health Court to set aside the Decision and reinstate the weekly compensation commenced on 4 January 2017. It was struck out on 22 January 2018 after the appellant failed to appear at the settlement conference, two pre-hearing conferences, and three directions hearings in the Work Health Court. Costs were awarded in favour of the respondent.
The second application to the Work Health Court to set aside the Decision and reinstate the weekly compensation commenced on 11 July 2017. It was struck out by the Work Health Court pursuant to rule 7.13 in default in the appellant’s attendance and costs were awarded in favour of the respondent on 5 October 2017.
The third application to the Work Health Court to set aside the Decision and reinstate the weekly compensation commenced on 15 September 2017 and was struck out in the Work Health Court on 20 February 2018 for want of prosecution after the appellant failed to appear at three initial directions conferences. A costs order was made in favour of the respondent.
This appeal arises out of the first application to set aside the Decision.
The course of the first application
On 28 February 2017, the parties appeared personally with their solicitors at an initial directions conference before a Judicial Registrar in the Work Health Court. The appellant was represented by Mr Antony Downs. The Judicial Registrar made the following orders:
1. Worker to file and serve Statement of Claim within 14 days of today.
2. Employer to file and serve Defence within 14 days of service of Statement of Claim.
3. Mutual discovery within 14 days thereafter.
4. Adjourned to Pre-Hearing Conference at 9:00am on 18 April 2017, with represented parties excused from further attendance.
The statement of claim was filed on 21 March 2017 by the appellant’s solicitors. On 31 March 2017, the respondents filed their defence and counterclaim.
The matter came before the Work Health Court on 18 April 2017 for a pre-hearing conference. On that date, the matter was adjourned to a pre-hearing conference on 18 May 2017.
On 18 May 2017, the matter was listed for a settlement conference before the Judicial Registrar on 3 July 2017.
On 3 July 2017, an order was made in chambers that the settlement conference be adjourned to 31 July 2017 at 2.00pm.
On 19 July 2017, the appellant’s solicitor, Mr Downs, filed a Notice of Ceasing to Act.
On 27 July 2017, the respondent’s solicitor, Peggy Cheong, received an email from another solicitor, Asha McLaren, advising that she had received instructions to act for the appellant and requesting an adjournment of the settlement conference for no more than four weeks. The respondent did not object to the adjournment on the basis that Ms McLaren had only been recently instructed by the appellant.
On 28 July 2017, Ms Cheong for the respondent emailed the Judicial Registrar asking for orders to be made by consent adjourning the settlement conference as the parties were not ready to proceed. In that email, Ms Cheong said, “… [I]n particular, I understand that the worker, Mr Vasilev requires medical/psychiatric treatment and assistance is not able to attend or participate in a settlement conference at the present time.”
An order was made in chambers on 31 July 2017, vacating the settlement conference and the matter was re-listed on 28 August 2017 with the attendance of represented parties required.
On 28 August 2017, Ms McLaren and the respondent appeared at the settlement conference. The appellant did not attend. He advised that he was unable to attend due to an injury to his leg and stated that he had no transport to attend Court.[1] The appellant was not contactable by telephone on this occasion.[2] The matter was adjourned to a further pre-hearing conference on 8 September 2017.
The appellant again did not appear at the adjourned pre-hearing conference on 8 September 2017. The Judicial Registrar adjourned the matter to a further pre-hearing conference on 5 October 2017 and advised the parties that she was not prepared to schedule any further settlement conferences.
On 5 October 2017, Ms McLaren sent an email to the Judicial Registrar and Ms Cheong advising that the appellant was unwell and unable to attend the pre-hearing conference. The matter was adjourned to a pre-hearing conference on 19 October 2017 with case management statements to be filed and served on or before 17 October 2017.
On 19 October 2017, the appellant’s application was listed for hearing before a judge in the Work Health Court for five days commencing on 12 March 2018.
On 10 November 2017, parties were notified that the matter was listed for a directions hearing on 12 December 2017.
On 1 December 2017, the appellant attended an appointment with psychiatrist Dr Dinesh K. Arya. Dr Arya composed the following letter on the same date:
To whom it may concern
Re: Radostin Vasilev
I am a psychiatrist by training and Fellow of the Australian and New Zealand College of Psychiatrists. Radostin has been receiving treatment from me and has been under my care for several months. Radostin is currently receiving treatment for an anxiety disorder and depression.
On 1 December 2017, Radostin attended a follow-up appointment at my clinic. Radostin told me that he is currently attending Court although is represented by his lawyer during court proceedings.
Radostin finds attending court proceedings anxiety provoking. After attending the Court, Radostin often finds his moods deteriorates. He also finds it is quite exhausting for him to attend court.
I would support Radostin’s request to be exempted from attending court proceedings.
Yours sincerely
Dinesh K. Arya
Psychiatrist
On 10 December 2017, the appellant emailed Tina Weir, the Civil Registrar of Darwin Local Court, the following:
Tina,
As we spoke,
Please be aware Asha is not representing me no more.
I’m seeking adjournments on all my court dates please,
As I’m supported by my treating specialist not to attend court as it aggravates my workplace injury.
I need to find a new lawyer to represent me.
Please find attached his letter/certificate.
The appellant attached the letter from Dr Arya dated 1 December 2017 and a statement of fitness for work progress certificate.
There was no appearance by or on behalf of the appellant at the directions hearing on 12 December 2017, and the directions hearing was adjourned until 9 January 2018. The Court file notes: “adjournment for purposes of obtaining legal representation for Worker” and “in absence of attendance of Worker or his legal representative (either in person or by telephone) the Employer may apply for Judgment”.
On 27 December 2017, Tianna Williams, Acting Civil Registrar of Darwin Local Court, contacted the appellant via email and stated in an email with the subject line ‘electronic filing’:
Unfortunately we cannot accept Court documents by email.
If you wish to lodge documents electronically you must apply to the Chief Judge in writing for his authorisation according to Rule 3.10 of the Local Court (Civil Jurisdiction) Rules.
The appellant replied by email requesting the email address of the Chief Judge. Ms Williams replied providing the postal address of the Chief Judge and stating that there is no direct email address.
Later that day, Ms Williams informed the appellant by email:
If you send through your request through email we can bring it to the Chief Judge’s attention and inform you if he accepts the document of not.
Still on 27 December 2017, the appellant sent through the following email in respect of the application to file court documents via email:
To chief judje
It’s Radostin Vasilev
12/03/1981
0434039631
Please allow me to submit court files vie email media?
I appreciate your help.
Looking forward to hearing from you.
Thank you.
On 2 January 2018, the appellant emailed Ms Williams informing her that he was still unrepresented and was available for a telephone appearance for the court dates in the New Year.
On 5 January 2018, Ms Williams informed the appellant that his application to lodge documents via email had been refused by the Chief Judge. She also informed him that his application to attend the directions hearing on 9 January 2018 by telephone was refused by Judge Fong Lim.
On 8 January 2018, the appellant requested via email that Ms Williams forward the presiding judge his medical certificates and said he would be available by phone as he could not attend. Ms Williams responded that she would put the appellant’s email as a note on the Court file. The email added:
[P]lease be aware that orders may be made in your absence.
In an email sent at 8.09PM the same day, the appellant responded:
Well,
Is that the justice you work for?
Please forward them the letter of Dr arya that states it’s better for me not to attend.
Also please forward them the documents below attached.
Judge moris gave me one month to find a lawyer, although half of it holidays?
Judge this and judge that don’t allow me to participate over the phone and send file via email?
Julian ignored all evidence and gave insignificant reasons not to grant me interim benefits?
Julian made an order that the case will be struck if I don’t prosecute my claim.
I’m asking How to prosecute my claim
1: when I don’t have a lawyer, as I cannot afford to?
2: when don’t have income to survive and travel?
3: when I have been recommended not to attend court ,
As it aggravates my work place injury?
4. I had said clearly: the employer is in breach of sec 75a of the act. I have not done anything wrong and I always followed all reasonable instructions.
A. The employer multiple times obstructed my application in centrelink.
B. The employer still don’t pay me, even I’m unfit to work.
C. The employer didn’t rehabilitate me or retrain me nor provided me with job.
The evidence is there: I had sent it to you with all my emails.
If they want to call me to confirm, please dial 0434039631.
Otherwise,
I give up. Do whatever you want,
I can’t fight myself with the injustice,
As its a social commitment.
Let the judge know.
I have said.
To this email the appellant attached Dr Arya’s letter dated 1 December 2017, the statement of fitness for work progress certificate,[3] a Centrelink letter dated 29 December 2017[4] and a statement of fitness for work progress certificate dated 8 January 2018 by Dr Ajith Mahavithana. The clinical findings by Dr Ajith Mahavithana noted:
Anxiety and restlessness, poor concentration, PTSD
Admitted to ED on last Friday, 05.01.2018 after discussion with Insurer due to faintishness, jaw pain chest pain and neck pain and in ED reported uncontrolled hypertension (ED doctors letter available)
At the directions hearing on 9 January 2018, Ms Cheong appeared on behalf of the respondent and there was no appearance by the appellant. The matter was listed for a further directions hearing on 22 January 2018. The Court made orders that also included that should the Worker fail to appear at the next listing that judgment be awarded in favour of the Employer with costs and that the proceedings be otherwise dismissed.
On 11 January 2018, the appellant filed an affidavit seeking leave to appear via telephone and for documents to be accepted via email. The affidavit also stated:
I want to attend but can’t as I already fainted four times, in court, and I have medical certificate that exempts me from attending court.
On 11 January 2018, the appellant contacted Victoria Bell via telephone and email asking her to act for him. She said she needed to review his court documents in order to ascertain if she was in a position to accept instructions.
On 11 January 2018, the appellant emailed Tina Weir, the Civil Registrar of Darwin Local Court, asking to have access to his file documents to give to Ms Bell.
On 15 January 2018, Ms Williams responded to the appellant’s email stating that he needed to provide written authority to allow Ms Bell to access his court file.
On 15 January 2018, Ms Bell stated she was unable to assist the appellant as there was insufficient time for her to review the file documents.
On 15 January 2018, the appellant informed Ms Weir that he had an appointment with another solicitor Ms Merran Short on 22 January 2018 at 3.00pm.
On 18 January 2018, Ms Weir responded to the appellant by email:
You will be required to attend Court in person or via a legal representative on Monday 22 January 2018 at 9.30am. Her Honour Judge Fong Lim has advised that she does not accept your medical certificate that you have provided to the Court stating that you cannot attend Court.
In response on 18 January 2018, the appellant stated:
Sorry,
I don’t understand?
Could you tell me which certificate she doesn’t accept and why?
Does she accept my injury and medical conditions?
I don’t have a lawyer yet,
It seems they all need money and I don’t have.
I will have to present myself, but I can’t in person.
I am happy to do over the phone.
I have requested details of the allegations of the insurer,
But it seems they don’t have evidence.
What is my pathway further if I’m not able to attend for medical reasons?
On 22 January 2018, Ms Cheong appeared on behalf of the respondent at the further adjourned directions hearing. There was no appearance by the appellant. Judge Fong Lim awarded judgment in favour of the Employer with costs fixed at 100% of the Supreme Court scale. The trial dates were vacated.
The appellant appeals to this court from that decision.
Proceedings in the Supreme Court
A directions hearing was held on 16 April 2018. I gave leave for the appellant to appear by telephone. I made it clear that I was giving leave to the appellant to appear by telephone because the directions hearing had been listed on short notice and that it was not in response to, or as a result of, the letter from Dr Arya which had been sent to the Work Health Court. On that date I made the following directions:
1. The Appellant is to file and serve summary of submissions and list of authorities within 14 days.
2. The Respondent is to file and serve summary of submissions and list of authorities within 28 days.
3. The hearing listed on Monday 14 May 2018 at 10.00am for one day is vacated.
4. The hearing is re-listed on Monday 21 May 2018 at 9.00am for 1 hour.
5. The Appellant does not have leave to appear at the hearing by telephone.
I gave the appellant leave to file submissions via email and indicated that the appellant’s submissions should address the following issues:
(a) why he did not file a notice of appeal on time,
(b) why he should be allowed to appeal out of time,
(c) why the Judge in the Work Health Court was wrong, and
(d) what orders he asks this Court to make.
The appellant filed and served submissions via email on 17 April 2018.
The respondent filed and served submissions on 11 May 2018.
The hearing of the appeal
The appellant did not appear at the hearing of the appeal on 21 May 2018. My initial reaction was to dismiss the appeal on the appellant’s failure to appear. However, with the consent of the respondent, and in the interest of finally determining the appeal on its merits, I stood the matter down to enable telephone contact to be made with the appellant.
The appellant’s contentions
The appellant’s chief contention was that the Work Health Court judge was wrong to dismiss his application to that court for want of appearance, and should have given him leave to appear by telephone on the basis of the letter from Dr Arya.
The time for the filing of any appeal expired on 19 February 2018, three days after the appellant filed his Notice of Appeal. The appellant contended that this was due to his failure to comply with the form. He said that he had handwritten his notice of appeal and filed it on the due date. It was rejected by the Registry for misspelling and “other small adjustments” and he filed a typewritten notice of appeal three days later. The appellant submitted that he should be allowed to appeal out of time because his claim is genuine and it is in the interests of fairness.
The typewritten application for leave to appeal stated that the grounds of appeal appear in the affidavit of the appellant sworn on 22 February 2018 and were filed with the application. The proposed grounds of appeal and orders sought set out in his affidavit in support of the application, were:
1. The court ignored me as a person and my rights.
2. The court ignored my medical certificates that [were preventing] me to attend.
3. The court ignored my rights to attend by phone.
4. All local court order cancelled and me being paid weekly benefits for the last year I was unreasonably not paid.
5. If possible the interest I [incurred] to be paid as well.
6. The employer to rehabilitate me and retrain me.
7. The employer to provide me with job in the government.
8. Please grant me leave to attend over phone.
9. Please grant me leave to submit documents over email.
10. Please refer to lawyer Asha McLaren affidavit in my file.
11. Employer/insurer to pay for report of Dr. Dinesh Arya.
The appellant also contended that the judge and Registrar did not take serious account of the submissions of his legal representatives. Although he did not give details, it was apparent that the appellant was referring to the affidavit of his former solicitor, Ms McLaren, affirmed on 10 November 2017, in which she said:
On 17 October 2017, I sent an email to Ms Cheong, to which I have not received a reply. I raised the subject of the email with Ms Cheong on 19 October 2017 during the prehearing conference and was told: “No way! Or no chance! because the worker is unable to take directions, had behaved inappropriately towards female colleagues who are still traumatised by his behaviour, he has exhausted all or most of the return to work service providers and therefore, there was no chance of him being returned to work within the NT public service commission and that an inability to work process is underfoot for the worker” or words to that effect. She also informed me that my client will be “deemed to be able to work in December 2017 when the 104 weeks expire” or words to that effect.[5]
The respondent’s case
The respondent opposed leave to appeal being granted on the ground that the proposed appeal lacks merit: the decision of the Work Health Court is not attended by sufficient doubt to justify a grant of leave, and there has been no substantial miscarriage of justice. The respondent pointed to the history of the proceeding (set out above) and submitted that the appellant had been afforded a large number of opportunities to be heard and to address the Court on why the orders he complains of should not be made, and that he failed to meaningfully engage in that process.
Determination of the appeal
In order to prosecute an appeal, the appellant requires an extension of time under s 44(1) of the Limitation Act or an order under rules 2.04 and 82.02 dispensing with the necessity for compliance with rule 83.04.[6] The onus of satisfying the Court that the discretion to allow an appeal out of time should be exercised in his favour lies with the appellant.[7]
The discretion to grant leave is a broad one. In general, it must be shown that the decision in respect of which leave to appeal is sought is wrong, or at least attended with sufficient doubt to justify the grant of leave, and, in addition, that substantial injustice would be done by leaving the decision unreversed.[8]
The appellant has not provided a draft notice of appeal, without which it is difficult to properly assess the basis for, and merits of, his challenge to the decision below. However, his affidavit sworn in support of the extant application on 22 February 2018, tends to suggest that the basis for the challenge lies in a failure of the Court below to afford him with an opportunity to be properly heard – essentially because the Court refused to give him leave to appear by telephone.
The judge of the Work Health Court had a discretion to allow the appellant to appear by telephone. The principles in House v The King[9] apply to an appeal against the exercise of that discretion.
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The appellant contended that “he had a medical certificate that excused him from attendance”. That is not factually accurate.
(a)A doctor has no power to excuse someone from attendance at court. That is a matter for the judge.
(b)The letter from Dr Arya does not purport to “excuse the appellant from attendance”. Nor does it say that he is unable to attend for health reasons, either physical or psychological. All it says (relevantly) is:
… Radostin is currently receiving treatment for an anxiety disorder and depression.
…
Radostin finds attending court proceedings anxiety provoking. After attending the Court, Radostin often finds his moods deteriorates. He also finds it is quite exhausting for him to attend court.
I would support Radostin’s request to be exempted from attending court proceedings.
It would appear from the Court file that this letter was drawn to the judge’s attention and that her Honour determined that it did not provide sufficient reason for her Honour to exercise a discretion (which would rarely be exercised) to allow the appellant to appear at the trial of his substantive application to the Work Health Court by telephone. In coming to this decision, there is nothing to suggest that her Honour took into account any irrelevant considerations. Nor is the decision plainly unreasonable: quite the opposite, a decision to the contrary would have been most surprising. Litigants do not have a right to appear by telephone. A person who invokes the jurisdiction of the Work Health Court (or any other court) is expected to appear in person or by counsel to make his case. If he wishes to seek an indulgence such as the one sought by the appellant, then the onus is on him to establish why that indulgence should be granted. The Work Health judge formed the entirely reasonable view that the letter from Dr Arya was not sufficient for the purpose.
I agree with the respondent’s submission that that the decision of the Work Health Court is not attended by sufficient doubt to warrant a grant of leave to appeal and that no substantial injustice would follow from refusal of leave.
I also agree with the respondent’s submission that the appellant was given ample opportunity to be heard in relation to his application to the Work Health Court and he failed to avail himself of those opportunities. The matter was adjourned time after time due to the non-appearance of the appellant. He was given ample notice that the letter from Dr Arya would not be accepted as an excuse for his further non-attendance and that if he failed to attend on the next adjourned hearing date, his application would be dismissed.
Leave to appeal is refused.
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[1] Affidavit of Peggy Cheong affirmed on 13 April 2018, 4.
[2] Affidavit of Peggy Cheong affirmed on 13 April 2018, 4.
[3]The clinical notes of Dr Sheryl Silva read: Anxiety, and restlessness, poor concentration.
[4]This Centrelink Letter dated 29 December 2017 is titled ‘Rejection of your claim for Sickness Allowance’. It states: We cannot pay you Sickness Allowance because your incapacity is not temporary. You may be eligible for a Low Income Health Care Card. The Low Income Health Care Card can be claimed through your myGov account. If you do not have a myGov account, please go to my.gov.au to create one. You will then need to link it to Centrelink using your Customer Reference number.
[5]Affidavit of Ms Asha McLaren affirmed on 10 December 2017, 2.
[6]J-Corp Pty Ltd v Ingram [1988] NTSC 14 at 7-8.
[7]Brown v Northern Territory of Australia & Brown [2005] NTSC 26 at [10].
[8]Krishell Pty Ltd v Nilant [2006] WASCA 223 at [31] and [96]; Wilson v Metaxas[1989] WAR 285 at 294; See also Dean Mildren, The Appellate Jurisdiction of the Courts in Australia at pp 66-67
[9] [1936] HCA 40; 55 CLR 499 at 504 - 505
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