Bunney v Ryan [2018] VSCA 326 (6 December 2018)

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MATTHEW BUNNEY	Applicant

v

GARY FRANCIS RYAN	Respondent

JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	6 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 326
JUDGMENT APPEALED FROM:	Bunney v Ryan (Unreported, Victorian Court of Appeal, Irving JR, 3 April 2018)

PRACTICE AND PROCEDURE – Leave to appeal – Application for extension of time –Review of decision of Registrar refusing extension of time – Delay of 31 months – No adequate reasons for delay – No prejudice to respondent – Proposed appeal devoid of merit – Application refused – Supreme Court (General Civil Procedure) Rules 2015 r 64.42.

APPEARANCES:	Counsel	Solicitors

No appearances

1 This is a review of a decision of a registrar of this Court refusing the applicant an extension of time to file an application for leave to appeal. The applicant seeks to appeal against orders made by a judge of the County Court on 8 May 2015.^[1]

2 For the reasons that follow, I am of the view that the application to set aside the decision of the registrar must be refused.

3 The applicant was employed as a truck jockey in the respondent’s furniture removal company.^[2] On the applicant’s account, on 4 October 2007, he was assisting a co-worker to load a refrigerator unit onto the back of a truck when a gust of wind blew the door of the truck. The door hit the left side of the applicant’s head and upper chest, causing him to fall against the right rear side of the truck and then onto the forks of an adjacent forklift. He lost consciousness for 10 seconds. When he stood up, he felt pain in the right side of his chest as well as in his right hip and knee.^[3]

4 The applicant sought leave pursuant to s 134AB of the Accident Compensation Act 1985 (‘Act’) to bring a proceeding for damages for pain and suffering and loss of earnings consequent on the injury he sustained in the accident.^[4] Section 134AB sets out pre-conditions for the recovery of damages in respect of injuries sustained out of or in the course of employment. Relevantly, pursuant to sub-s (2), the applicant would be entitled to recover damages if the injury he sustained was a ‘serious injury’. That term is defined to include a ‘permanent serious impairment or loss of a body function’ (paragraph (a)) and a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ (paragraph (c)).^[5]

5 The applicant (who was unrepresented) filed affidavits and particulars of injury in which he described the injuries he allegedly sustained as a result of the accident.^[6] The judge took the applicant to be identifying six ‘impairments’ within the meaning of paragraph (a) and chronic pain syndrome as a physical condition. Alternatively, chronic pain syndrome was a mental injury which, together with a behavioural disorder, anxiety and depression, was to be considered under paragraph (c).^[7]

6 The applicant had consulted a number of medical practitioners in relation to the injuries he allegedly sustained both as a direct result of the accident and as a consequence of the ‘altered postures and gaits resulting from those initial injuries’.^[8]

7 The judge noted that, between the date of the accident and the end of December 2007, the applicant had received treatment from a local general practitioner, Dr Singh at Warrnambool Medical Clinic, and a chiropractor.^[9] In the first six months of 2008, he attended Warrnambool Medical Clinic on a number of occasions, but none of those attendances related to the complaints which he attributed to the accident.^[10] His Honour observed that the records of Warrnambool Medical Clinic showed that:

complaints of and findings in relation to any injury beyond his chest wall are indeed scant, and that complaints of hip pain are nowhere to be found, and that, although he continued to attend for other painful conditions in the early months of 2008, no reference to any injury arising from the accident appears.^[11]

8 In his submissions, the respondent contended that the applicant had quickly recovered from the effects of the accident, that a number of the claimed injuries arose before or after the accident, and that the applicant bore the onus of establishing what harm was attributable to the accident. The respondent also contended that the applicant was an unreliable historian.^[12]

9 In reply, the applicant contended that any pre-existing injuries had been short-lived and had not prevented him from working. He also maintained that he had sought treatment for his injuries between December 2007 and June 2008. He claimed to have received treatment at ‘Flagstaff’ and ‘Turning Point’ but, when the respondent’s solicitors contacted these entities, they were told there were no records from this period.^[13]

10 In the result, the judge was not satisfied that any of the applicant’s alleged physical or mental injuries resulted from the accident or caused the requisite degree of impairment.^[14]

11 The judge found that the applicant had suffered no lasting impairment from the accident. His Honour stated that he had found the applicant to be an unreliable witness and that this finding, combined with the absence of any recorded complaint of symptoms between late December 2007 to June 2008, pointed strongly to the conclusion that he had recovered from the soft tissue injury sustained in the accident by December 2007.^[15] His Honour was not satisfied that the applicant suffered from a chronic pain syndrome, and found that his substance abuse disorder pre-dated the accident.^[16]

12 The judge also found that the applicant’s complaints of pain and dysfunction had been ‘so variable in their degree and location over the years since the accident that it is extremely difficult to isolate any one of them and examine whether that particular impairment has consequences ... which satisfy the test set out in the section’.^[17]

13 The judge made orders dismissing the applicant’s application for leave to bring a proceeding for the recovery of damages.

14 The applicant filed an application for leave to appeal on 11 December 2017, some two years and seven months after the judge delivered his oral reasons for judgment.

15 It is convenient to set out the applicant’s proposed grounds of appeal in full:

l. judgment was erred that treatments i had in a 6 month gap period a few months after initial date of injury 04/10/2007 judgment was that it never existed the gap period treatments 04/10/2007 to june 2008 contradicting my under oath records of treatments i received in this period

the trial judge was wrong at law to set aside my impairment level of 10 percent for no adequate or appropriate reason. and to not give myself the plaintiff a reasonable chance or any opportunity to confirm the evidence used against my oath of the gap period from the defendants on the bar records used over my oath evidence proven to be in error in appeal fresh evidence the trial judge was wrong at law to set aside impairment level for no adequate or appropriate reason and was wrong at law in judgment of treatments i received in the gap period and was done by no adequate findings of evidence only the judge's opinion proven to be wrong at law

evidence from the defendants which fresh evidence available now proves in this appeal and has a great prospect of success to reverse judgment .and was not confirmed by the plaintiff the defendant's account of evidence given on the bar or by the trial judge as a self represented plaintiff under section 98c my right to a fair trial was not given under the running of the court by the trial judge to confirm my response to the defendants on the bar records to be authentic evidence used against me leading to injustice outcome from a error in defendant's evidence used and wrong at law the trial judges way of accepting this unauthenticated evidence used to throw out all my evidence and credibility lost from this wrong at law decision and handling of such crucial evidence against me all the said on the bar records from the defendants in relation to the gap of records for treatments where an error completely inaccurate and used by the trial judge over my under oath evidence in relation to the gap period allowing with these records used to make a ruling to throw out all my supporting evidence based on the gap period not in court records and leaving no credibility from the defendants on the bar records and my under oath differences to my witness credibility and credibility overall

(2) judgment to surveillance and court room appearance made by the trial judge has erred wrong at law and pure injustice.

judgment overlooked the weight of my supporting evidence to my right hip findings on x ray said to be clear on film by the trial judge and shown not clear on film in evidence in the court evidence overlooked by the trial judge this was inaccurate and the trial judge was wrong at law to overlook such crucial evidence available to him in the court books

supporting evidence proves this was not clear on film and in judgment it was stated in his reasons for judgment to my hip x ray is said to be clear on film which was inaccurate and wrong at law

(3) fresh claim for hip surgery and hip impairment as fresh evidence proves is a result of the work injury as evidence in hearing showed and was overlooked by the trial judge which was said to be clear on x ray by the trial judge recent hip surgery shows the extent of hip damage surgery on 04/05/2017 that the fresh evidence and impairment differences to claimed chronic pain under section 98c common law claim in the hearing the difference is huge as was thrown out this claim for hip cam impingement in new affidavit of 2015 for this hip cam impingement by his honour as was said unreadable . the 2015 affidavit was ordered by the directions group hearing trial judge to make this 2015 affidavit however the trial judge refused to take onboard the direction hearing trial judges orders and said he would run the hearing as he pleased as i was self represented he could run it many ways . this was wrong at law in not providing adequate or appropriate reason to throw this 2015 affidavit out as was typed on computer and readable also dr kenneth myers was the only independent medical examiner who supported my hip as work related and no other drs saw the hip cam impingement findings as was shown on film in 2014 and dsr myers was last independent medical examiner i seen in 2015 making it crucial evidence to hip claim this report was thrown out as was said to have no medical history expertise on report only professor general surgeon dr kenneth myers the trial judge was unable to confirm his expertise this was wrong at law as dr kenneth myers report has in his report a history of where he had worked

(4) all my supporting evidence was thrown out in erred judgment by the trial judge from the defendants accepted error in evidence given on the bar record.leaving only the defendant's report in judgment not thrown out which had no findings to hip in the report as was after that examination my hip injuries were found on film from same complaints to hip seen by dr max wearne defendants report used this was wrong at law as paragraph (a) stated reasoning for this and was erred judgment

(5) judgment was erred saying all injuries had resolved which evidence thrown out in hearing proves they had not resolved and the trial judge not accepting the total impairment assessment level of 10 percent under the ama guidelines accepted by insurer and myself from dr timothy gaile impairment assessment specialist the trial judge was wrong at law to set aside the ama guidelines of impairment level accepted by both parties following erred judgment throwing all my supporting evidence out allowed this to happen injustice outcome from the set aside impairment level for no adequate or appropriate reason and hip requires surgery from the same initial xray and mri in court evidence with fresh evidence showing in report from hip surgeon the extent of damage to hip from the first treating specialist seen since hip findings on film in 2014 dr kunle and other reports of professor kenneth myers from 2014 and albert kaplan 2014 all reports in relation to my hip before fresh claim reports included in this appeal

my section 98c common law claim was dismissed with no adequate or appropriate reason to do so also with erred judgment and injustice outcome^[18]

16 On 15 January 2018, the applicant filed an extension of time application. In support of the application, the applicant relied on his own affidavit dated 23 August 2017 and written submissions dated 11 December 2017. The respondent opposed the application. He relied on an affidavit of his solicitor affirmed on 20 February 2018 and written submissions of the same date.

17 On 3 April 2018, a registrar of this Court refused the extension of time application. The applicant sought a review of the registrar’s decision by email dated 13 September 2018. On 1 November 2018, the registrar referred the matter to me for determination.^[19] Both parties consented to the matter being determined on the papers.^[20]

18 At this point, it is necessary to say something of the nature of a review of a registrar’s decision in respect of an extension of time application.

19 In Bisognin v Hera Project Pty Ltd,^[21] this Court stated that an application for review of a Registrar’s decision proceeds under r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).^[22] That rule provides that ‘the Court of Appeal ... may set aside or vary any direction given or order made by an Associate Judge or the Registrar’. An application for an order under paragraph (8) is to be dealt with on the basis of the application, written cases and documents filed by the parties prior to the decision of the associate judge or the registrar,^[23] and further material may not be relied upon except with the Court’s leave.^[24]

20 In Leeworthy v Registrar of the Licensing Appeals Tribunal,^[25] Tate and McLeish JJA observed that there is scope for debate as to the nature of the Court’s jurisdiction on a review of a registrar’s decision in respect of an extension of time application.^[26] Their Honours provisionally accepted the view stated in Bisognin that the review proceeds under r 64.42(8).^[27] Their Honours observed that such a proceeding resembles a hearing de novo in that the material before the Court is limited to that which was before the registrar (although further material may be permitted by leave of the Court).^[28]

21 Tate and McLeish JJA noted that an exercise of jurisdiction under r 64.42(8) is not characterised as an appeal and therefore does not attract the provisions of s 14A of the Supreme Court Act 1986. Their Honours declined to resolve the question whether leave to appeal is required but proceeded on the basis that, if leave was required, it should be granted in the circumstances of the case before them.^[29]

22 The approach taken in Leeworthy in relation to the Court’s jurisdiction and the question of leave was followed in Lopez v Harstedt Pty Ltd.^[30] Neither party addressed the question whether leave is required. In the circumstances, I propose to take the course, most favourable to the applicant, that leave is not required. I do so because, in Bisognin, three members of the Court did not proceed on the basis that leave is required and, as will appear, no different outcome would have followed had I applied the requirement for leave.

23 I have had regard to the affidavit material and submissions that were before the registrar. For completeness, I note that neither party has sought to file further material since the registrar handed down his decision.

24 Rule 64.05 of the Rules relevantly provides that an application for leave to appeal must be filed within 28 days of the decision to which the application relates. The judge delivered oral reasons for judgment on 8 May 2015. As the respondent correctly observes, the applicant therefore had until 5 June 2015 to file an application for leave to appeal.

25 I note that the applicant lodged an application for leave to appeal on 4 June 2015 which was not accepted for filing. The applicant was granted an extension of time to 12 June 2015 to rectify the defects in the application, but did not do so. I pause to note that this signifies that the applicant was aware of the facility for bringing an application for leave to appeal and also of the time limits imposed for doing so. As noted above, the applicant’s proposed application for leave to appeal was filed on 11 December 2017, some two years and seven months after judgment was delivered.

26 The Court has a discretionary power to extend the time for the filing of an application for leave to appeal. In determining whether to exercise that discretion, several factors assume prominence, including the length of the delay, the reasons for the delay, and the extent of any prejudice suffered by the respondent or a third party.^[31] An extension of time will not be granted where the proposed appeal is ‘so devoid of merit that it would be futile to do so’.^[32]

27 The applicant’s egregious delay in commencing a proceeding in this Court in circumstances where he was granted an extension of time to rectify his application calls for a satisfactory explanation.

28 In his affidavit and submissions, the applicant sets out a number of reasons for the delay. First, he claims that the judge took over eight months to release a revised copy of his reasons. Second, he says it has taken him time to obtain archived records from Flagstaff Crisis Accommodation and Turning Point which he intends to adduce as fresh evidence. Third, he states that medical problems have impeded his ability to prepare his appeal. Finally, he states that he has had difficulty complying with the relevant practice direction.

29 Turning to the first explanation, the applicant claims that he only received a copy of the judge’s revised reasons eight months after oral reasons were delivered on 8 May 2015. The respondent disputes this claim. The respondent’s solicitor, Ms Moloney, deposes that the revised reasons were circulated to the parties on 12 August 2015. A copy of the email from the transcript provider attaching the reasons is exhibited to Ms Moloney’s affidavit. On this issue, I infer from the evidence of Ms Moloney that a copy of the revised reasons had been sent to the applicant on 12 August 2015.

30 Even accepting that the applicant required the revised reasons to prepare his application for leave to appeal, I note that there was a delay of some two years and four months between the date the revised reasons were provided to the parties and the date the applicant filed his proposed application for leave to appeal.

31 The second explanation given by the applicant relates to the time taken for him to obtain records from Flagstaff Crisis Accommodation and Turning Point. He states that, after receiving the judge’s revised reasons, he ‘investigated the evidence in the gap period [December 2007 to June 2008]’ and ‘contacted services I had treatments thru [sic] about a year later’. He says these entities told him that they held the relevant records, but that it would take time to retrieve them from the archives.

32 The applicant’s affidavit and submissions do not clearly disclose when he made contact with Flagstaff Crisis Accommodation and Turning Point and when he received records from them. His submissions indicate, however, that he did not contact these entities until at least a year after oral reasons for judgment were delivered.^[33]

33 The third explanation given by the applicant is that his ability to prepare the proposed appeal has been impeded by reason of ongoing problems with his right hip and surgery performed on his hip in May 2017. He refers also to difficulties associated with having to prepare the appeal using IT facilities at a community centre.

34 Finally, the applicant claims that he has previously attempted to lodge ‘a couple of appeals’ but these were not accepted for filing because they did not comply with the relevant practice direction.

35 In my view, none of the reasons given by the applicant, either individually or in combination, provide an adequate explanation for the delay; they only explain part of the delay. The applicant does not explain why he failed to file a revised application for leave to appeal in June 2015 within the extended period granted to him. The applicant’s affidavit evidence and submissions lack specificity, and there were long periods of time in which he failed to prosecute his proposed appeal for no apparent reason. To take one example, the applicant does not explain why he waited over a year before contacting Flagstaff Crisis Accommodation and Turning Point. The applicant’s medical problems may provide context for the delays but, in the absence of specific evidence concerning their effect on the applicant, they do not constitute a satisfactory explanation, nor does his professed difficulty in complying with the Court’s procedural requirements.

36 The respondent did not submit that it would prejudiced if the Court were to grant the extension of time sought. However, there remains the importance of finality in litigation and the broader requirements on all participants in the judicial process to act in a timely way that advances the expeditious administration of justice. Timeliness is not an absolute virtue, and the power in the Court to extend time is a vital part of the Court’s armoury to avoid injustice. But there must be a good reason to do so.

37 On an application for an extension of time, the Court’s assessment of the prospects of success of the proposed appeal must be made without the benefit of full submissions from the parties. For that reason, courts will typically refuse an extension of time on this aspect only where the outcome is clear and to avoid the futility of allowing a matter to proceed which will inevitably fail. However, short of that case, it is still relevant to estimate, as best it can be done, the prospects of success and to place that assessment in the mix.

38 It is not easy to make sense of the applicant’s proposed grounds of appeal. In broad terms, the applicant appears to complain about rulings made by the judge and the judge’s findings on the evidence. In particular, he contends that the judge erred in ‘throwing out’ his supporting evidence and finding that he had not received treatment for his injury between December 2007 and June 2008.

39 The applicant submits that the records which he has obtained from Flagstaff Crisis Accommodation and Turning Point will assist him in establishing that he received treatment for his injury between December 2007 and June 2008, contrary to the judge’s finding.

40 The respondent submits that the proposed application for leave to appeal lacks merit. It is said that the judge’s findings as to the applicant’s credibility and his alleged injury are sound, and the applicant has not advanced any cogent submission which impugns those findings. The respondent further submits that the fresh evidence which the applicant proposes to adduce does not assist his case.

41 The applicant has lodged an application to adduce fresh evidence which is yet to be accepted for filing. In support of that proposed application, the applicant relies on his own affidavit dated 23 August 2017 to which various documents are exhibited. It is expedient for me to have regard to that affidavit in determining this application, particularly in light of the competing submissions on the value of the fresh evidence which the applicant proposes to adduce.

(a) An email from a transcript provider to the applicant dated 15 May 2015 informing him that ‘[t]he court will not release the judgment to parties until it has been revised.’

(b) An email chain between the applicant and an employee of Flagstaff Crisis Accommodation. In an email dated 14 June 2016, the employee states that the applicant was a client of Flagstaff Crisis Accommodation from February to March 2008. The employee further states that ‘Flagstaff Crisis Accommodation provided a number of complimentary therapies at that time including massage and acupuncture services’ and that ‘it is probable that [the applicant] partook of them during his stay’ although ‘the records of attendance ... are long since gone’.

(i) an undated letter from an employee of Turning Point stating that no records have been retained in relation to the applicant’s contact with an employee of that service;

(ii) clinical notes of Dr Peter Moore with entries dated between 17 April 2007 and 17 March 2008, in which there is no mention of the accident or the alleged injury; and

(iii) a HDDP assessment form and case plan, both of which pre-date the accident.

(d) A list of various records and reports which appears to have been collated by the applicant.

(e) A report of Phong Tran, orthopaedic surgeon, dated 21 July 2016 and annexed notes relating to the applicant’s hip surgery in May 2017. No mention is made of treatment undertaken between December 2007 and June 2008.

(f) A report of Dr Andrew Muir, pain management consultant, dated 15 December 2016. Again, no mention is made of treatment undertaken between December 2007 and June 2008.

43 It appears to me that the applicant would have difficulty establishing that he should have leave to adduce the fresh evidence. The principles concerning the receipt of fresh evidence on appeal are well-established. In Clark v Stingel,^[34] this Court reiterated that leave to adduce fresh evidence on appeal should be given only if:

(a) by the exercise of reasonable diligence, such evidence could not have been discovered in time to be used in the original trial;

(b) it is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced; and

44 As the respondent observes in his submissions, the applicant indicated in the course of the trial that he had received treatment at Flagstaff and Turning Point. Accordingly, it would appear that, with reasonable diligence, he could have produced the records at trial. It is also difficult to see how the fresh evidence could have led to an opposite result in circumstances where that evidence does not demonstrate that the applicant received treatment for his injury between December 2007 and June 2008.

45 An appellate court will not interfere with a primary judge’s findings of fact unless those findings are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’ or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.^[36]

46 In my view, the applicant’s proposed grounds of appeal do not advance any contention or point to any material which might call into doubt the judge’s findings in a way that would justify an extension of time. As presently formulated, there is no reasonable prospect of the proposed appeal succeeding.

47 Given the absence of an acceptable explanation for delay and the poor prospects of success, I am not satisfied that it is in the interests of justice to extend the time in which to bring an application for leave to appeal.

48 For the reasons that I have given, the application for an extension of time must be refused. If an application to set aside the decision of the registrar is one which attracts the requirement for leave, I would have refused leave, however, in the circumstances, I shall simply order that the present application be refused.^[37]

49 Pursuant to r 64.42(11) of the Rules, the applicant is liable to pay the respondent’s costs of the application to set aside the decision of the registrar on an indemnity basis, unless the Court otherwise orders.^[38] The parties have cooperated by having the matter proceed without an oral hearing, and the application has proceeded on the basis of the material that was before the registrar in accordance with the Rules. In those circumstances, the parties have properly sought to minimise costs. I do not propose to hear further from the parties on the form of the costs order in circumstances where the differential between standard costs and indemnity costs could not be significant. I will order that the applicant pay the respondent’s costs of the application for review on the standard basis.

^[1] Bunney v Ryan (Unreported, County Court of Victoria, Judge Wischusen, 8 May 2015) (‘Reasons’).

^[27] Ibid [12]. The second respondent had submitted that the power of the Court to review the registrar’s decision was conferred by r 84.05 of the Rules. Their Honours considered that it would not be appropriate to finally resolve the question of jurisdiction because the applicant had appeared in person and the Court therefore did not have the benefit of submissions contradicting those advanced by the second respondent.

^[28] Leeworthy v Registrar of the Licensing Appeals Tribunal [2017] VSCA 353 [8].

^[33] The respondent says in his submissions that the applicant did not contact Flagstaff Crisis Accommodation until June or July 2016. This submission appears to be based on an email chain exhibited to an affidavit of the applicant dated 23 August 2017 which was filed in relation to his proposed application to adduce fresh evidence.

Supreme Court of Victoria - Court of Appeal

Bunney v Ryan [2018] VSCA 326 (6 December 2018)