Appellant v Respondent

Supreme Court of Victoria|2015-11-16|Before: JOHN DIXON J

PRACTICE AND PROCEDURE - Appeal to judge of trial division from associate judge - Application for leave to extend time to commence Order 56 proceeding dismissed by order of associate judge - Proceeding would have sought judicial review of appellant's conviction by a magistrate under s 16(1) of the Building Act 1993 - Appellant earlier refused leave by the County Court to appeal out of time pursuant to s 263 of the Criminal Procedure Act 2009, which was refused - Whether proceeding futile - Whether appellant precluded from judicial review by election to pursue county court appeal - Appellant failed to establish special circumstances before the associate judge - No error by the associate judge demonstrated - Whether order worked an injustice and appealable without specific error shown - Appeal dismissed - Order 56 and r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 considered.

2 On 2 July 2012, the appellant was convicted in the Bendigo Magistrates' Court of carrying out work without a building permit contrary to s 16(1) of the Building Act 1993. The appellant sought to appeal this decision in the County Court by way of re-hearing but he did not file his appeal within 28 days of the order of the Magistrates' Court. The period in which the appellant could file an appeal from the decision of the Magistrates' Court expired on 31 July 2015. The appellant stated that within this 28 day period he was informed by County Court staff that there was no time limit on an appeal from the decision of the Magistrates' Court. If this advice was given, it was incorrect. For the purposes of the proceeding, the associate judge accepted the appellant's uncorroborated evidence regarding the advice received from the County Court.

3 When on 2 January 2013 the appellant filed an appeal in the County Court against the magistrates' decision, it was heard as an application for leave to proceed out of time. At the Bendigo County Court on 7 June 2013, a judge refused leave to appeal. Neither a transcript of that hearing nor any written reasons of the judge were in evidence before the Court on this application.

4 The associate judge accepted that the appellant first learned of the possible option of judicial review on 17 October 2013 in the course of enforcement proceedings before another judge in the County Court. About a week later, the appellant obtained legal assistance from the Loddon Campaspe Legal Centre ('the Centre').

5 Order 56.02 of the Rules provides that an application for judicial review must be brought within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose, in this instance the date of the Order made in the Magistrates' Court. The time in which to make such an application had expired on 31 August 2012. Nonetheless in approximately December 2013, the appellant began preparing an application to this court for judicial review of the Magistrates' Court decision. The Centre continued to act for the appellant until at least 12 February 2014, the date of a brief to counsel to advise prepared by a solicitor from the Centre. The appellant did not receive assistance from Centre in preparing his application to this Court for judicial review.

6 On 11 April 2014, the appellant wrote to this Court enclosing a proposed judicial review application. On 12 May 2014, the registry informed the appellant he was out of time to seek judicial review, and that this circumstance would need to be addressed in his application. On 6 January 2015, the appellant successfully filed an application for judicial review in this Court. The documents that the appellant successfully filed are dated 11 April 2014. The application was more than 28 months out of time. The appellant gave evidence that he in fact made three attempts to file this application, but he was unable to provide details of the second attempt. For the purposes of the application, the associate judge presumed that this attempt occurred at some stage between 12 May 2014 and 6 January 2015.

7 Again, given the application was not made with time, it was heard as an application for extension of time to bring an application for judicial review. It was heard on 30 April 2015 and the associate judge refused the application.

8 The appellant appeals from the decision of the associate judge under r 77.06 of the Supreme Court (General Civil Procedure Rules) 2005 ('the Rules'). An appeal from a decision of an associate judge under r 77.06 is no longer by way of a hearing de novo and ordinarily requires the appellant to show error on the part of the associate judge before appellate power may be exercised.[1] Rule 77.06 characterises an appeal as being by way of re-hearing, such that the appellant must demonstrate a legal, factual or discretionary error by the associate judge.[2]

9 For the reasons given below, the appellant has not demonstrated error in the decision of the associate judge. Accordingly, the appeal will be dismissed.

I will set out at length the Court's response to the appellant's submissions in order that the appellant appreciate the basis for the Court's refusal to grant him the leave he seeks but there is a point about the jurisdiction sought to be invoked by the appellant that is sufficient to dispose of the appeal because it provides a complete answer to the application if leave were granted.
The appellant sought to invoke the common law jurisdiction of this Court to review decisions of inferior courts, which is now governed by the procedure set out in Order 56. The jurisdiction is supervisory in that the Court is concerned with the legality of what was done by the court or tribunal below. The jurisdiction is not to be invoked to review the decision of a magistrate made by a final order. The jurisdiction does not entitle this Court to canvass all matters that it would on an appeal, whether it be a hearing de novo as in the case of an appeal to the County Court under s 254 of the Criminal Procedure Act 2008 or an appeal by rehearing on appeal to this Court under s 272 of that Act_,_ where the question usually is whether the decision is right or wrong, because in proceedings under O 56 the Court is not concerned with the merits of the decision under review.[3] Given these choices, the nature of the jurisdiction that the appellant seeks to invoke is important.
The appellant exercised one of the other choices open to him when he appealed the Magistrates' Court decision pursuant to s 254 of the Criminal Procedure Act 2009. Although that appeal was out of time, it was treated as an application for leave to appeal out of time under s 263 of that Act, but relief was refused. The appellant accepted that refusal.
The appellant could have, within 28 days of the final order in the Magistrates Court, appealed to this court on a question of law. He did not do so. Had he done so when he issued this proceeding, the appeal would have been deemed to be an application for leave to appeal[4] and the appellant would have been required to show that his failure to commence the appeal within the period of 28 days was due to exceptional circumstances and that there would not be material prejudice to the respondent to the appeal because of the delay. The Supreme Court has the power on a s 272 appeal to remit the case for rehearing in the Magistrates' Court, with or without any direction in law.
Relief under Order 56 is discretionary, and the primary difficulty faced by the appellant is first, that the procedure under O 56 is not available to him in the circumstances, and secondly, he elected to take appropriate path to relief and waived his right to pursue any alternative path. This is made clear by the Court of Appeal in Kuek v Victoria Legal Aid[5]. Phillips JA stated:

It is important that in relying in the originating motion upon alleged errors of law on the face of the record, the appellant was seeking on his application under Order 56 to raise matters that could have been agitated on appeal under s 109 had his appeals been in time. A claim for jurisdictional error, if properly established, might be in different case, but I am not now dealing with that. In relation to alleged errors of law, the appellant was not seeking recourse to Order 56 because of some alleged defect or insufficiency in the appeal permitted under s 109. As pointed out by the trial judge, the appellant was seeking merely to circumvent one of the limitations quite plainly imposed on an appeal by s 109 and it cannot be that a would-be appellant, who fails to act in timely fashion under s 109, can re-cast his or her appeal as an application for judicial review under Order 56 where the time limit is not 30 days but 60. Ashley J said in Stefanovski v Murphy at first instance:

"I have serious doubts whether the Order 56 procedure is available where a final order has been made by a Magistrates' Court where the matter sought to be raised by originating motion could be agitated on appeal under s 92".

His Honour was speaking of an appeal under s 92, but like considerations obtain in respect of an appeal under s 109. In my opinion, this Court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 - or at all events may not raise with any real chance of success - a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s 109. In other words, if the proper course is an appeal under s 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative. As has been said, judicial review should not be seen as a means of appealing from the decision of a magistrate ... (Citations omitted)

15 In light of this, the appellant had no real chance of success in the application even if granted leave to pursue it out of time. After the Magistrates' Court decision, the appellant's right to seek to vindicate the injustice he perceived that he had suffered, was to choose between an appeal by way of rehearing on the merits to the County Court or an appeal on a question of law to this Court.

16 The appellant chose the first option. Having elected for that path, it is not now open to the appellant to seek judicial review in this Court on grounds that could properly have been raised under s 272. For this reason, were I persuaded for any other reason to overturn the associate judge's decision and give the appellant leave to proceed, I would refuse to do so on the basis that it would be futile because a court considering the application under Order 56 would almost certainly refuse it on the discretionary ground that the appellant had not adopted the correct procedure.

17 I will now consider the submissions that were put to me by the appellant.

18 The issue before the associate judge was that r 56.02(3) provides that the Court shall not extend the time fixed by r 56.02(1) 60 days except in special circumstances. If special circumstances are found, the Court may, in its discretion, extend the time in which to apply for judicial review.

19 The associate judge duly considered the applicable test of whether special circumstances exist regarding an application for an extension of time. Her Honour noted that 'the whole of the circumstances must be taken into account in the particular case, not just the reasons for the failure to bring within time'.[6] Her Honour identified the relevant considerations to be as follows:[7]

(a) prospects of success. What the plaintiff must show is that he has an arguable case, but he does not need to show at this stage that he will succeed, only that it is not doomed to fail or that he has at least a real prospect of success;

(b) the injustice to the plaintiff if the order that he wants to challenge is allowed to stand;

(c) the prejudice to the defendant if the extension is granted;

(d) any relevant difficulties in obtaining legal aid;

(g) the fact that there is a public interest in the finality of litigation which is reflected in the case of judicial review by the fact that a relatively short period within which a legal proceeding must be brought is specified;

(h) any public interest in the determination of the issues that Mr Wilson wishes to argue, that is, is there a broader public interest as well as his own particular interest in having those issues considered; and

20 The application was opposed by the respondent on the sole basis that there was a more appropriate way by which the appellant could challenge the order of the Magistrates' Court, namely, by way of an appeal on a question of law pursuant to s 272 of the Criminal Procedure Act 2009 (Vic).[8] The respondent submitted that the existence of this alternative avenue was a relevant consideration.

21 The associate judge considered each of these factors, and I will summarise her findings in respect of each factor:

(a) the judge assumed there was a prospect of success given the defendant did not contend otherwise;[9]

(b) the judge noted the plaintiff's assertion that he was innocent of the charge on which he had been convicted by the magistrate, and noted his submission that because he was in fact innocent, he would suffer injustice if an incorrect decision was allowed to stand.[10] However, the judge also noted that 'injustice is not just about the correctness of the decision, the whole question of injustice must be viewed against other factors, including Mr Wilson's conduct and the prosecution of his challenges, having regard to relevant time limits and the question as to whether there were other avenues available and taken to challenge the Magistrates' Court decision';[11]

(c) the judge assumed that no prejudice would be suffered by the respondent should the extension be granted, as the respondent did not contend otherwise;[12]

(d) the judge accepted that the appellant had difficulties obtaining legal assistance, however, there was little evidence as to the circumstances in which the Centre ceased to act for the appellant or the advice which they gave him;[13]

(e) there had been a significant delay in making the application - even on the most favourable view of it, the delay was over a year;[14]

(f) no explanation was provided for the most of this delay, principally the periods between February and April 2014, and the middle of May 2014 and January 2015;[15]

(g) the short period of 60 days in which an appeal can be brought under Order 56 is indicative of the need to resolve matters quickly, particularly when public authorities are involved;[16]

(h) there may be some broader significance to the issue of subcontractor responsibility with respect to building permits;[17] and

(i) it was significant that the plaintiff had a number of options to challenge his conviction in the Magistrates' Court, and made a choice at that time as to which he would pursue.[18]

22 On 8 May 2015, the associate judge provided a Notification of Error in Reasons for Judgment, in which her Honour noted that:

I was in error in stating that there was an avenue of appeal to the Court of Appeal from the refusal to extend time. There is no avenue of further appeal from the County Court on its determination of an appeal by way of fresh hearing from the Magistrates' Court, and it would appear that this would also apply to a refusal to extend time where such appeal is brought out of time. The only avenue by which an aggrieved appellant may further challenge the determination of the County Court on an appeal by way of fresh hearing from a Magistrates' Court conviction is by way of judicial review.

...

Notwithstanding this error, I consider that my refusal to extend time is supported by the other matters to which I referred in my earlier reasons.[19]

23 The appellant made a number of submissions by which he sought to establish error by the associate judge. I have summarised the appellant's submissions as best I was able to follow them.

24 The appellant made a number of submissions regarding time:

(a) the associate judge focused unduly on time and the delay in bringing the application, instead of focusing on special circumstances. This was an incorrect interpretation of Order 56, in that the time element of r 56.02 should not be imported into r 56.02(3). He further submitted that a consequence of this was that the associate judge made an order under the wrong rule, 56.02, rather than 56.02(3);

(b) additionally, r 56.02(3) 'does not require that there be special circumstances related to the reason for the late application, but requires merely special circumstances be present'[20]. Accordingly, her Honour's finding that none of the evidence explained the delay was irrelevant, as this was an impermissible focus on time instead of special circumstances;

(c) the associate judge incorrectly focussed her consideration on, and only took into account, the narrow period of time after October 2013; and

(d) the incorrect information the appellant received from the County Court should have been a considerable factor in the appellant's favour.

Special circumstances and factors to be taken into account

25 The appellant made a number of submissions regarding the special circumstances of the application, and factors that should have been taken into account. He submitted that:

(b) the conduct of the Building Commission and its witnesses in the Magistrates' Court is a special circumstance;

(c) the associate judge did not give sufficient weight to the public interest considerations in the proceeding. The public interest was in:

(i) ensuring that the person responsible for the breach of the act is brought to justice, and an innocent person is not convicted;

(ii) ensuring that procedure is correctly followed, information is not withheld from parties, and that Magistrates' read and understand relevant precedents; and

(iii) allowing a defendant to cross examine a witness to prove they are lying under oath.

26 Additionally, the appellant submitted that the associate judge erred in taking into account the following matters:

(a) Despite the respondent's instructions not to oppose the application for extension of time, the associate judge forced counsel to oppose the application. Moreover, the associate judge then considered that the opposition to the application was a significant consideration; and

(b) The associate judge incorrectly stated and took into account that the appellant had the benefit of legal assistance.

Incorrect interpretation of appellant's submissions

27 The appellant further submitted that the associate judge made two errors regarding his submissions:

(a) Her Honour misunderstood the appellant's submissions regarding the time limit. The associate judge interpreted his submission to be that the time limit was 'unrealistic', whereas his submission was the time limit was not consistent, or 'in sync' with the legal system; and

(b) The appellant did not believe the associate judge read his submission, or his application for judicial review.

28 The appellant also made a number of submissions regarding procedural fairness:

(a) Although the appellant was supposed to receive a copy of all materials before the hearing, new materials were given to the appellant just before entering court on the day of the hearing, and he didn't have time to read or consider them. Although he raised this concern at the hearing, the associate judge did not do anything to ameliorate this problem;[21]

(b) It was a conflict of interest for the associate judge to only read her own decision during the hearing (Neuss v Magistrates' Court of Victoria);[22] and

(c) The appellant was entitled under the Victorian Charter of Human Rights and Responsibilities to a fair trial and appeal, neither of which he has had.

29 The appellant submits that the associate judge was incorrect in saying that there were other alternative avenues by which to review the Magistrates' Court decision. Further, in the Notification of Error in Judgment the associate judge recognised this error, but nonetheless did not change her decision.

The respondent's submissions and notice of contention

(a) rather than making an application for judicial review, the appellant should have appealed, or sought leave to appeal out of time, pursuant to s 272 of the Criminal Procedure Act 2009;

(b) where an appeal is available under s 272, an application for judicial review under Order 56 is generally not appropriate unless there are exceptional circumstances; and

(c) in the event this contention is rejected, and I find that the application was properly made pursuant to r 56.02, the respondent submits the associate judge did not make any error in determining that there were no special circumstances.

31 I will begin with a preliminary observation that the appellant's submissions misunderstand the distinction between 'special circumstances', and the factors that are considered and balanced by the Court, to determine whether, on the basis of the particular facts of the case, in totality they constitute special circumstances. Contrary to the appellant's submissions, a finding that a particular factor favours the appellant does not of itself constitute a special circumstance. It is no more than a relevant matter that goes into the balancing exercise undertaken by the Court in determining whether there are special circumstances. With this in mind, I make the following comments regarding the appellant's submissions.

32 The appellant submits that the associate judge unduly focused on time instead of special circumstances. This submission illustrates the error I have identified. The length of the delay in making the application and the reasons for this delay are directly relevant and important factors that go to the existence of special circumstances.[23] There was no error by the associate judge when she considered both the delay, and the reason for delay. The appellant's submission that the time element of r 56.02(1) cannot be imported into r 56.02(3) is misconceived. Further, the associate judge did not make the order being appealed under the wrong rule.

33 The appellant's submission that the associate judge examined an impermissibly narrow period (that from October 2013) is also misconceived. Her Honour did not only consider factors or events that occurred after that date. Rather, the importance of this period in the judge's reasons is that, to the appellant's advantage, the judge limited the delay that needed to be explained to the period since the appellant became aware of the possibility of judicial review.

I do not consider that there is a sufficient explanation for the delay, even taking the most beneficial view to Mr Wilson and that is that I should look only from the period from October 2013.[24]

34 The appellant also submitted that the associate judge should have given considerable weight to the incorrect information he received from the County Court registry. The judge, again to the appellant's advantage, accepted the factual premise of his submission and I see no error in the way that her Honour dealt with the point:

He has said that he was misinformed by the County Court. For the purposes of today I accept that, but that was really relevant to the appeal to the County Court. It is not so relevant today because I focussed my consideration on the period after October 2013.[25]

Any incorrect information received by the appellant from the County Court registry about the appeal to that court from the magistrate was not relevant to this application, which directs a challenge to the magistrate's decision not that of the County Court judge. In any event, it was now impossible to say whether the judge had erred in refusing leave to appeal to that Court because that decision has never been challenged in any way and there was no record of the argument or the reasons for that decision before this Court.

Special circumstances and factors to be taken into account

35 The appellant submitted that the associate judge erred with respect to certain factors relevant to establishing whether special circumstances were present. First, the appellant submitted his dyslexia was a special circumstance. The associate judge expressly took this matter into account as a relevant factor:

Mr Wilson has stressed the personal difficulties that he faces, in particular his dyslexia and his limited means, and I take those matters into account.[26]

36 Secondly, with respect to the conduct of the Building Commission in the course of the proceedings before the magistrate, the associate judge correctly noted:

whatever the rights and wrongs of that it is not relevant to the challenge that he wishes to bring to the Magistrates' Court decision.[27]

37 Thirdly, he submitted that the associate judge gave insufficient weight to the public interest in the present proceeding. Contrary to this contention, the associate judge considered the public interest at length. Her Honour expressly considered what the appellant characterised as the public interest in ensuring that he was not wrongfully convicted when considering the factor of injustice to the plaintiff should the extension of time be refused. Her Honour commented:

Injustice is not just about the correctness of the decision, the whole question of injustice must be viewed against other factors, including Mr Wilson's conduct and the prosecution of his challenges, having regard to relevant time limits and the question as to whether there were other avenues available and taken to challenge the Magistrates' Court decision.[28]

38 The associate judge also considered the public interest in the determination of the issues raised by the appellant, namely, whether a subcontractor should be responsible for obtaining the building permit.[29] Her Honour then noted that there 'is unlikely to be any broader public interest in the procedural fairness issue',[30] that is, the conduct of the Magistrate. These submissions fail as the associate judge in fact considered these matters and I can see no error in the way that she did so.

39 The appellant submits that the associate judge forced the respondent to oppose the application for an extension of time, and the judge then considered this opposition significant. Examination of the transcript and the reasons for decision indicates that this is not the case. Given the respondent's submissions that the appellant adopted the wrong procedural remedy, it was appropriate for the associate judge to treat the application as opposed. The thrust of the respondent's entire submission was opposition to the nature of the appellant application. Furthermore, the respondent made it clear, and her Honour clearly appreciated, that the opposition was limited to a single basis, that already been communicated to the appellant.[31] This is evident in the following exchange:[32]

HER HONOUR: If you wish to have the opportunity to put any submissions in that regard including as to whether this is the appropriate way to proceed, then I will treat the matter as opposed.

COUNSEL: I simply wish to make clear that my instructions are not oppose the application in principle but in terms of the court proceeding under the correct provision, in my submission, that provision is s 272.

40 The appellant submitted that the associate judge then considered that this opposition was a significant factor. In the course of the hearing her Honour indeed noted:

But of course it is a significant matter whether the other party to the proposed action opposes that extension or not.[33]

I see no error in the judge's approach to the respondent's contention for, as noted above, in her reasons the associate judge clearly indicated that she appreciated the limited nature of the opposition, and extended her consideration of it no further.

41 The appellant also submits that it was incorrect to say that he had the benefit of legal assistance. Again, examination of the transcript and the reasons for decision indicates that the associate judge inquired about and understood the extent of any legal assistance received by the appellant. In particular:

(a) that the appellant did not receive a written opinion from counsel;[34] and

(b) that he did not have legal assistance in the preparation of his application for judicial review.[35]

42 The associate judge concluded about this issue, again I think correctly, as follows:

I accept that Mr Wilson has tried to obtain legal assistance and has been unable to afford it and has been unable to pass at least the means test for Victorian Legal Aid. He did have the benefit of legal assistance for a period of time by a legal centre in the Bendigo area ... It is also not clear whether he received from that source any advice as to avenues of challenge as opposed to the specific legal issue that is identified in the brief to advise. I assume, however, that Mr Wilson would have raised specifically the possibility of judicial review because, on his own affidavit, he became aware of this first in October 2013 and he approached the legal centre shortly after that date.[36]

Incorrect interpretation of appellant's submissions

43 The appellant submitted that the associate judge incorrectly interpreted his submission regarding the time limits on applications to appeal. The respondent contends that the judge interpreted the appellant's submission to be that the time limits were 'unrealistic' but, in fact, his submission was that they were not compatible with each other. In light of the respondent's submission before the associate judge, it was not unreasonable to describe the submission as being that time limits were 'unrealistic':

Mr Wilson could not submit judicial review before 60 days as Mr Wilson was still waiting for appeal after the 60 day period ... it is unreasonable to expect some one foresee events that would lead to the requirement for judicial review. It is doubtful that there has been any case were a person applies for judicial review whilst waiting for appeal.[37]

44 I consider that her Honour correctly addressed this submission as follows:

That submission is incorrect in law because the different ways of challenging a decision are intended to be alternatives; they are not intended to all be available one after the other. They are intended to be alternatives because they are directed to different forms of challenge.[38]

45 The appellant further contended that the associate judge had not read his submissions nor his application for judicial review. There is no basis in the materials before the court that might substantiate this assertion. To the contrary, the associate judge took the appellant and the respondent through the court file to ensure she had all the relevant documents, and made a point of taking time to read a document she had not had the opportunity to read in full.[39] Further, it is evidence from the transcript and the judge's reasons that she took considerable care to understand each of the appellant's submissions.

46 Although the appellant did only receive certain materials on the day of the hearing, I do not accept that the appellant suffered prejudice as a result. This is primarily because the appellant was not able before me to indicate any part of those materials that affected the decision of the associate judge, or that indicated that the associate judge was in error.[40]

47 There is no basis for the assertion that the associate judge was in a conflict of interest by reading one of her previous judgments which was directly relevant to the questions at hand. Additionally, I consider that the associate judge correctly dealt with the appellant's submissions before her regarding the Victorian Charter of Human Rights and Responsibilities, as follows:

Human rights is not an absolute concept ... you have rights to challenge court decisions but they are constrained by time limits and other legal principles.[41]

48 The corrections that the associate judge made to her reasons for decision only referred to the avenues of appeal from the decision of the County Court to refuse leave to appeal and were peripheral to the path of her reasoning. Her decision was not relevantly affected by that correction and error is not shown by that conduct.

Conclusions regarding the reasons of the associate judge

49 I have noted above when setting out the appellant's submissions that I have not identified any specific error in the associate judge's conclusion or in her Honour's reasoning. Where the orders from which an appeal is brought relate to a matter of practice and procedure (as they do in this case), an appellate court is to exercise 'particular caution' in reviewing the decision.[42] Whether there is a need to identify error in the judgment of the associate judge in appeals from an interlocutory decision before an appeal may be allowed may be controversial. In Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd,[43] Cavanough J questioned whether a distinction needs to be drawn between interlocutory and final orders. In the context of an appeal from a self-executing order, his Honour held that if, having regard to all of the circumstances, including the material contained in affidavits that were not before the primary court, injustice in the result flows from the operation of an interlocutory order of an associate judge of that kind, a judge of the Court may on appeal set aside or vary the order without assigning error to the associate judge's decision.

50 I refer to this decision because, when I explained to the appellant that he had elected to pursue an inappropriate procedure by way of Order 56, as discussed above, and sought his response, the appellant submitted that he was the victim of an injustice that the court was duty bound to remedy.

51 The relevant considerations that persuaded Cavanough J to find error in Mainstream Construction were derived by him from the decision of the Full Federal Court in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation.[44] Cavanough J was satisfied that the associate judge did not have regard to several of those considerations, many of which favoured the appellant in that case. Consequently, specific error was identified in that the discretion of the associate judge miscarried because the proper principles were not observed, and it needed to be re-exercised.

52 In this case, I am not persuaded that any injustice flows from the order of the associate judge and I am not persuaded that there was any error made by the associate judge. It is unnecessary to further consider Cavanough J's obiter dictum. The appellant asserts that injustice flows from his wrongful conviction by the magistrate. Assuming for the sake of argument that the appellant was unjustly convicted, any injustice in the result for the appellant flows from the refusal of the County Court to grant the appellant leave to appeal out of time. That is not injustice of the kind contemplated in Mainstream Construction. This is not a case where I would be minded, if otherwise persuaded, to set aside or vary the order without assigning error to the associate judge's decision.

53 The associate judge applied the correct legal test when considering the application. What an applicant needs to prove to establish special circumstances under r 56.02(3) has been considered in a number of cases and the most recent survey of those cases was made by J Forrest J in Lazarevic v Victoria Police.[45] Although that decision post-dates the decision of the associate judge, it is convenient to refer to it to show that the associate judge well understood and applied the applicable principles of law. The expression 'special circumstances' is by its very nature incapable of precise or exhaustive definition. Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special. It is not appropriate to seek to define the meaning of the phrase 'special circumstances'. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words.

54 It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days. The terms of the rule may be contrasted with other provisions requiring particular reasons for an extension of time. The language of the requirement in r 56.02(3) is significantly different from, for example, s 109(5) of the Magistrates' Court Act 1989 which provides for an extension of time to appeal, but only if the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances. That section was considered by McDonald J in Schwerin v Equal Opportunity Board,[46] and his Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.

(a) the rule requires the Court to be objectively satisfied that special circumstances exist;

(b) the existence of special circumstances is to be determined by reference to all the circumstances of a case;

(c) the factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:

(vi) whether the plaintiff has an arguable case, in the sense of real, not fanciful, prospects of success;

(vii) the justice to both parties, including the prejudice to the parties; and

(viii) the public interest in the finality of litigation.

56 The appellant has not been able to demonstrate that the associate judge erred in her identification of the proper test or her application and consideration of relevant factors.

57 The appeal is dismissed and the order of the associate judge is affirmed.

58 I will hear further submissions in respect of the question of costs and any other necessary consequential order.

[1] Neely v Southern Cross Feeds Pty Ltd (No 2) [2013] VSC 238, [5].

[2] Applebee v Monash City Council (2013) 196 LGERA 186, [9]-[20]; Re Ascot Vale Self-Storage Centre Pty Ltd (in liq) [2014] VSC 75; (2014) 98 ACSR 243, [2]-[18] ('Ascot'); Allesch v Maunz (2000) 203 CLR 172, [23].

[3] Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163, 175-6.

[6] Wilson v Building Commission (Unreported, Supreme Court of Victoria, Lansdowne AsJ, 30 April 2015) [15] ('Wilson').

[19] Notification of Error in Reasons for Judgment (8 May 2015, Lansdowne AsJ) [3], [5].

[21] [2013] VSC 321 ('Neuss').

[22] Neuss [2013] VSC 321, [32]-[35]; Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289.

[23] See, for example, Lazarevic v Victoria Police [2015] VSC 13, [36]-[40]; Mann v Medical Practitioners Board of Victoria [2002] VSC 256.

[24] Wilson (Unreported, Supreme Court of Victoria, Lansdowne AsJ, 30 April 2015) [37].

[32] Transcript of Proceedings, 30 April 2015, 8.

[36] Wilson ((Unreported), Supreme Court of Victoria, Lansdowne AsJ, 30 April 2015) [20].

[37] Affidavit of Russell Wilson, 29 Mary 2015, 2.

[39] Transcript of Proceedings, 30 April 2015, 9.

[40] Transcript of Proceedings, 29 September 2015, 29-31.

[41] Transcript of Proceedings, 30 April 2015, 75.

[42] Glezer v Deals.com.au [2014] VSC 202, [13]; Oswal v Carson [2013] VSC 355, [11].

[43] [2014] VSC 317 ('Mainstream Construction').

[45] [2015] VSC 13, [36]-[40]; see also Mann v Medical Practitioners Board of Victoria [2002] VSC 256.

Court (General Civil Procedure) Rules 2005

(2013) 196 LGERA 186

At a glance

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Judgment (138 paragraphs)

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Legislation Cited (4)

Cases Cited (6)