Applicant v First Respondent

Supreme Court of Victoria|2015-05-29|Before: DERHAM AsJ

ADMINISTRATIVE LAW - Extension of time to apply for leave to appeal VCAT decision - Leave to appeal - Whether adequate explanation for the delay in applying - Whether questions of law - Challenges to findings of fact - Whether findings of fact open on the evidence - Whether real or significant argument that VCAT fell into error - Explanation for the delay in applying for leave to appeal not adequate - No real or significant argument that VCAT fell into error in a way significant to the ultimate finding - Leave to appeal out of time refused - Victorian Civil and Administrative Tribunal Act 1998, ss 148(1) and 148(5).

1 The plaintiff ('Advaland') applies by originating motion filed 8 May 2014 for -

(a) An order under s 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') extending the time for leave to appeal the orders and decision of VCAT made on 4 February 2014 in proceeding no. D700/2013; and

(b) If leave is granted, an order under s 148(1) of the VCAT Act granting it leave to appeal those orders and that decision.

2 On 21 July 2014, I ordered that Advaland provide security for the defendants' costs of the proceeding up to and including the application for leave to appeal in the sum of $15,000.00. I also made orders for the plaintiff to provide the defendants with an electronic version of the audio recording and the transcript of the hearing held on 13-17 January 2014 at the Tribunal, and for the filing and service of further affidavits and an amended draft notice of appeal (one which complied with Rule 4.11 of the Supreme Court (Miscellaneous Civil Proceeding) Rules 2008, in the event that the security for costs was provided).

3 A deluge of affidavits have followed raising disputes at a factual and legal level. Both the application to extend the time for leave to appeal and the question of whether leave to appeal should be granted were hotly contested.

(a) Whether the reasons for the application for leave to appeal being made out of time should be accepted and, if accepted, warrant the extension of time sought;

(b) Whether there is an arguable case that the decision of the VCAT Senior Member is in error and gives rise to questions of law warranting the grant of leave to appeal; and

(c) Whether the decision made by the VCAT Senior Member in consequence of the defendants filing an application to dismiss the proceeding under s 75 of the VCAT Act, gives rise to a substantial injustice to Advaland so as to warrant fragmenting the VCAT proceeding.

5 For the reasons that follow, I have concluded that the explanations for the delay in applying for leave to appeal are unsatisfactory, that prejudice to Advaland, (other than the usual prejudice arising from an adverse decision), has not been established, and that there is no real or significant argument that VCAT fell into error of the kind that is important to the substantive appeal succeeding. For these reasons I conclude that this is not a proper case for the grant of an extension of time within which to apply for leave to appeal

6 In June 2013, Advaland made application in VCAT seeking payment for work performed under a domestic building contract dated 6 August 2010 that Advaland alleged it had entered into with the first defendant ('Mr Bitcon'). The claim was for about $210,000.

7 On 2 October 2013, orders were made by Judge McNamara (sitting as Vice President of VCAT) that the proceeding be set down on 13 January 2013 for determination of a preliminary question raised by the first defendant as to whether Advaland was the contracting party.

(a) Is the applicant the contracting party, as builder, of the building works the subject of this proceeding?

(b) What document constitutes the written contract between the parties?

9 Mr Bitcon is the owner of a residential property at 20 Staunton Lane, Glen Iris, a suburb of Melbourne. On or about 6 August 2010 Mr Bitcon contracted with either Advaland or its director, Mr Crespin, in his personal capacity, for the construction of a residential dwelling on the property.

10 The parties fell into dispute during the course of the building works and this led to the building contract being terminated. Advaland commenced proceedings in VCAT against Mr Bitcon for recovery of money allegedly owing under the contract. Mr Bitcon defended the claim on the ground that no contract existed between him and Advaland. Mr Bitcon alleged that the building contract was between him and Mr Kitchener Crespin in his personal capacity

11 The preliminary questions were heard by Senior Member Riegler commencing on 13 January 2014 and proceeding on 14, 15, 16 and 17 January 2014. Advaland called three witnesses, including an expert forensic document examiner, one Trevor Joyce. Mr Bitcon called six witnesses. The second defendant took no part in the determination of the preliminary questions. Two versions of the contract were tendered in evidence on behalf of each Advaland and the first defendant.

12 On 4 February 2014, Senior Member Riegler published his reasons and made orders. He found and declared that -

(a) Advaland is not the original contracting party and that the original contracting party is Kitchener Crespin;

(b) The version of the contract exhibited to the affidavit of Spencer John Bitcon dated 6 December 2013 as exhibit 'SJB-1' constitutes the written contract between Spencer John Bitcon and Kitchener Crespin.

13 There were two versions of a Master Builders Association contract before the Tribunal. The version put into evidence by Mr Bitcon had affixed to the front cover and first page the name of the builder 'Kitch Crespin' on a white 'Dymo' label. The version advanced by Advaland had 'Advaland P/L' handwritten on the front cover.

14 Each version of the contract had an addenda. Mr Bitcon's addenda had a printed date of 3/09/10 at the bottom of each page. Advaland's addenda had on its first page the printed date 25/01/11 and on the second page a printed date of 3/09/13, a date which post-dated the signing of the contract by more than three years on either parties' version of the events.

15 The first affidavit filed on behalf of Advaland by Mr Crespin[1] provoked a response from Mr Bitcon's solicitor that in turn encouraged Advaland to respond, and so on, thus giving rise to a series of disputes of fact concerning the circumstances that Advaland advanced to explain its delay in applying for leave to appeal and as to the questions of law advanced. Both parties' affidavits mixed facts, opinion and submission, and descended to a detailed review of the material before the Senior Member, the evidence given by Advaland's expert, and a tendentious exchange of accusations, responses, objections and explanations. It is neither necessary or appropriate in these reasons to give a complete account of the evidence and the argumentative affidavits. The account that follows attempts to extract such of the material as is necessary for decisions on the questions before me.

16 In his affidavit of 8 May 2014, Mr Crespin deposed that he received the reasons and orders of Senior Member Riegler on about 6 February 2014. He read them and formed the view that one of the factual findings was not supported by the evidence adduced at the hearing.

17 On 12 February 2014 he made a formal request for the audio recording of the hearing. On 18 February 2014 he emailed to VCAT following up his request for the audio recording. On about 20 February 2014 he received the audio CD of the preliminary hearing from Merrill Corporation. Between 21 February 2014 and 13 March 2014 he listened to all 5 days of the audio recording. At that time he was unaware that there was a 28 day time limit within which to seek leave to appeal from VCAT.

18 He is a volunteer with the Country Fire Authority. During the period 21 February and 13 March 2014 he was preoccupied with fighting the fire at Hazelwood in the La Trobe Valley. He also needed to raise funds to obtain a transcript of the proceeding, which he said cost in excess of $7,000. It was not until 31 March 2014 that he ordered the transcript.

19 On 22 April 2014 he received by email a copy of the transcript. He then immediately instructed his solicitors to set about arranging an application for leave to appeal.

20 Mr Crespin then identifies a number of matters said to be errors of law of the Senior Member. These alleged errors are overtaken by subsequent changes in the formulation of the questions of law identified in the Amended Proposed Notice of Appeal and in argument at the hearing.

Mr Pergl's Affidavits and Mr Crespin's Responses

21 Mr Bitcon's solicitor responded[2] pointing out a number of matters that had not been referred to by Mr Crespin in his affidavit that were said to be relevant to the late application for leave to appeal. To this affidavit Mr Crespin responded by affidavit sworn on 2 October 2014, on the eve of the hearing. So far as relevant, the matters to which Mr Pergl refers, and Mr Crespin's responses, are set out in the following paragraphs.[3]

22 There was a directions hearing before Senior Member Riegler on 6 March 2014 at which Mr Crespin appeared in person for Advaland (notwithstanding that he still had solicitors on the record who had appeared for him at the hearing of the preliminary questions). Mr Crespin notes, in his response, that he appeared because it was a directions hearing and he wished to minimise the costs. Mr Pergl said that Mr Crespin informed the Tribunal that he intended to pursue a claim in his own right against Mr Bitcon and Mr Allan Gaskell (a matter Mr Crespin does not expressly contest) and in consequence he was added as an applicant. Mr Crespin, on the other hand, says that Counsel for Mr Bitcon made application that he be joined personally to the proceeding.

23 The Tribunal then struck out Advaland's points of claim and set down a timetable for the conduct of the proceeding, including the filing of amended points of claim. The orders made also noted that Mr Crespin was represented by the then solicitors for Advaland.[4] No amended points of claimed were filed or served as ordered, or at all.

24 On 26 March 2014 the solicitors for Mr Crespin and Advaland wrote to Mr Pergl informing him that they did not have instructions to prepare amended points of claim in Mr Crespin's personal capacity and an extension of time was sought.[5] For a variety of reasons given in Mr Pergl's lengthy response, an extension of time was refused. This lead to Advaland making application to the Tribunal for an extension of time.

25 On 15 April 2014, Mr Pergl was notified by Wantrup & Associates, the solicitors for Advaland, that they no longer acted for it in the VCAT proceeding.

26 There was then a directions hearing in the VCAT proceeding on 17 April at which Mr Crespin appeared on his own behalf and on behalf of Advaland and told the Tribunal that the applicants were ready to file their points of claim that day. No mention was made of any intention to seek leave to appeal the Senior Member's decision. Orders were made on 17 April for the future conduct of the VCAT proceeding, including that the amended points of claim be filed and served by 24 April 2014. Mr Crespin responded that he had not then received legal advice relating to any appeal so it was not appropriate to mention the matter.

27 Despite Mr Pergl writing on 23 April 2014 reminding Mr Crespin that his points of claim were due the next day, none were filed or served.

28 On 29 April 2014, there was a hearing in a County Court proceeding between Mr Crespin as plaintiff and Mr Bitcon as defendant at which Mr Lanza, solicitor, told Mr Pergl that Advaland was considering appealing the Senior Member's decision. This was the first notice of this possibility given to Mr Bitcon.

29 On 8 May 2014 the Originating Motion and summons in this proceeding were filed. Mr Bitcon, by his solicitors, filed an appearance on 6 June 2014.

30 On 30 June 2014 Mr Pergl wrote to Mr Crespin and Advaland pointing out that it was not possible for the parties to take any step in the VCAT proceeding until the outcome of the application for leave to appeal in the Supreme Court was known. No response was received. On 3 July VCAT made orders vacating a compliance hearing date that had been set and advising that orders would be made in chambers. Those orders were made on 3 July and notified on 9 July.

31 Mr Pergl then addresses the apparent reason advanced by Mr Crespin for the delay arising out of the need to pay for the VCAT transcript. Mr Pergl refers to an exchange that occurred in a directions hearing before me on 21 July 2014 when I enquired of Counsel for Advaland whether the transcript had been paid for, and counsel had turned and asked Mr Crespin that question and received an answer 'yes it has', which was audible to all in Court at the time. Objection was taken to this evidence on the basis that it was a privileged communication between client and counsel. That is, it was the subject of client legal privilege under s 119 of the Evidence Act 2008. Although Mr Clarke, of Counsel, who appeared for Mr Crespin, resisted the proposition, it appeared to me at the time, (and now), that if (as was the case) after Mr Crespin told his then Counsel something, Counsel told me what was said, then it has lost any confidentiality; and confidentiality is essential to maintenance of the privilege.

32 Mr Pergl then refers to information obtained by him from the transcript provider that Advaland had not, and at the date of his affidavit of 25 August still had not, paid for the transcript, notwithstanding that his counsel had advised at the hearing before me on 21 July 2014 that the transcript had been paid for. When matters relating to payment of the transcript were included in correspondence between solicitors there ensued a debate about a breach of Advaland's right to privacy and the relevance of the failure of Advaland to pay for the transcript, which need not be repeated here.

33 Mr Crespin (in his affidavit of 2 October 2014), explains the sequence of events concerning the payment for the transcript. No application to cross-examine Mr Crespin on this, or any other matter, was made. Suffice it to say, Mr Crespin swore that he had paid a negotiated price and was not being pursued for any further amount.

34 Then Mr Pergl addresses the plaintiff's evidence that he was unaware of the 28 day time limit provided in s 148 of the VCAT Act. The point made here by Mr Pergl is that at all relevant times until 17 April 2014 Advaland and Mr Crespin were represented by Wantrup & Associates, in particular by Mr Lanza, who personally appeared throughout the VCAT hearing in January 2014. Mr Crespin responded that as at 6 March 2014 Advaland's solicitors had suspended work on all matters and that was the position as at 17 March 2014 as well. It was not until the end of March 2014 that he was told by his legal advisers that there was a period of 28 days after the making of the VCAT orders within which to make application for leave to appeal.

35 On 4 September 2014 Advaland filed an affidavit of Mr Crespin sworn on 22 August 2014. The affidavit and exhibits are contained in three lever arch folders. In that affidavit Mr Crespin:

(a) Refers to several post-contractual documents[6] that showed the building contract was in fact performed by Advaland, so as to support a proposed ground of appeal that the Senior Member had failed to have regard to evidence of post-contractual conduct in order to ascertain which parties entered into the contract;

(b) Refers to events involving the continued suspension of his building licence that were said to arise from the findings of the Senior Member and other actions of the Building Practitioners Board consequential on the decision that give rise to serious prejudice to him and harm to his reputation if leave to appeal is not granted; and

(c) Exhibits the affidavits and evidence given in the VCAT hearing before Senior Member Riegler.

36 In response, Mr Pergl swore an affidavit on 5 September 2014:

(a) Putting in issue that the continued suspension was a product of the VCAT decision and contesting that there is any harm to him or his reputation arising from the decision;

(b) Objecting to the admission of some affidavits said to have been exhibits in the VCAT proceeding on the basis that they were expressly not relied upon and not tendered as exhibits at the hearing;

(c) Taking issue with Mr Crespin's selective reference to the transcript of the evidence of Mr Joyce as to his examination of the version of the contract advanced by Advaland.[7] In this connection, he refers to later evidence given in cross-examination where Mr Joyce said he could not arrive at a conclusion as to whether there had been Dymo type labels on the Advaland version of the contract and that he could never be certain even if he had examined the document for evidence of adhesion of a label or evidence of a label being applied;[8] and

(d) Referring to prejudice suffered by Mr Bitcon by the stultification of the VCAT claim, in which it is proposed to bring a cross-claim for damage for breach of contract by Mr Crespin.

37 Section 148(5) of the VCAT Act empowers this Court to extend the 28-day time limit fixed for seeking leave to appeal. Whether or not to extend the time for appealing is in the discretion of the Court.[9] Although the discretion to extend time is unfettered, like all discretions it has to be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or relevant to the matter, and it should be exercised flexibly with regard to the facts of the particular case.[10]

38 A consideration relevant to the exercise of the discretion is that upon the expiry of the time limited for appeal, or in this case, an application for leave to appeal, the defendant has a vested right to retain the judgment or order unless the application is granted: Vilenius v Heinegar;[11] Hughes v National Trustees, Executors & Agency Co of Australasia Ltd.[12]

39 The Court does not decide an application to extend or enlarge time for doing an act according to some formula.[13] The factors identified in the authorities, however, provide a useful guide. They include:[14]

(c) Whether there is an arguable case for the grant of leave to appeal if an extension of time is granted;

(d) The weighing of the extent of prejudice to the appellant and respondent if time is extended; and

40 In some cases, where the delay has not been long and the reason has been an error in the understanding of the correct procedure by the would-be appellant's legal advisors, much has depended upon the extent to which the appellant would be prejudiced by the Court refusing its application and any prejudice to the respondents occasioned by granting it.[15] This, inevitably, brings into play the chances of leave being granted if an extension of time is granted and thus whether it is arguable that the Tribunal made an error of law.

41 In a general, an extension of time will be granted where it is in accordance with the justice of the case to do so.[16] Clearly, the party seeking the extension bears the onus of proving that it should be granted. An extension will not be granted if the case is hopeless, unarguable or bound to fail, because it would be futile to grant the extension in those circumstances.[17]

42 Advaland submits that the length of the delay in this case is minimal. The decision the subject of the application was given on 4 February 2014 (although Mr Crespin said he did not receive it until 6 February 2014) and the originating motion was filed on 8 May 2014. The delay, is accordingly, in the order of two months. The reasons for the delay are -

(a) That Advaland did not know of the time limit until after it had expired and was waiting on the transcript of the hearing at VCAT to enable him to obtain legal advice as to whether he had grounds to appeal;

(b) The questions of law to be raised in the appeal are arguable and important; and

(c) In particular, whether post-contractual conduct may be taken into account in determining whether a contract was entered into between the plaintiff and defendant, or between Crespin personally and the defendant, is significant from a legal perspective and for the plaintiff because of consequences for him arising from his registration as a builder and for insurance cover.

43 The defendants submitted that the application should be dismissed for the following reasons:

(a) Advaland, through its director Mr Crespin, had been dishonest about the reason that the application was made late;

(b) There is no prejudice to Advaland arising from the decision the subject of the application. That decision, concerning a preliminary question as to who was the party to the building contract, has minimal consequences for the balance of the hearing of the VCAT proceeding because both Advaland and Crespin have been made parties and they can advance their substantive claims in that forum in the alternative;

(c) There is, in any event, no arguable question of law involved in the application. What the proposed appeal seeks to do is to rerun the case below and to ignore the fact that Crespin fabricated Advaland's version of the contract addenda and the building contract;

(d) The draft notice of appeal does not properly identify any questions of law (despite Advaland having had an opportunity to amend it); and

(e) The expert evidence of Mr Joyce cannot override the overwhelming factual and contemporaneous documents that support Bitcon's version of the Building Contract, which was accepted by the Tribunal.

44 The defendants also submitted that the proposed appeal will further fragment the VCAT proceeding in circumstances where there is no prejudice that can be remedied only by the granting of leave to appeal. There will be no prejudice because both Advaland and Crespin are parties to the VCAT proceeding, and are able to agitate their respective claims against Mr Bitcon in the alternative.

45 The Mr Bitcon, through the evidence of his solicitor and in submissions, sought to establish that the reasons advanced by Mr Crespin for his delay in applying for leave to appeal were dishonest. It certainly appeared that the account given by Mr Crespin of what had been happening between the time he received the orders of VCAT and the commencement of this application omitted a variety of relevant facts. These include his appearances at direction hearings in VCAT (6 March and 17 April 2014), the fact that he was added as a party to the VCAT proceeding, and that directions were made for the filing and service of points of claim and defence and the like. There was also a great debate about whether or not he had misled the Court regarding a statement made that he had paid for the transcript when there was evidence to suggest that he had not done so.

46 There was no application by the defendant to cross-examine Mr Crespin. Without cross-examination, I am reluctant to come to any definite conclusion about Mr Crespin's honesty. I am also of the view that whether he has been entirely honesty in his initial explanations for the delay is not now really the point. By the process of successive affidavits, Mr Crespin has had an opportunity to put everything forward in support of his application to extend the time for applying for leave to appeal. The sequence of affidavits must be assumed to reveal everything that Advaland considers explains the delay. The gaps in the picture of what was happening during the period of delay may be presumed not to assist Advaland. The gaps in the story seem to me to be as follows:

(a) It was not until 6 days after receiving the orders and reasons (the judgment) that he sent off a request for the audio recording of the hearing (on 12 February). There is no explanation for that delay;

(b) The reason for his solicitors ceasing work on all Advaland's matters as at 6 and 17 March 2014 is unexplained, although the clear inference is that there was a shortage of money. But why were they not involved earlier? Presumably the explanation is the same;

(c) There is no mention of approaching the solicitors engaged to act for Advaland, or having any contact with them to obtain their assistance, until 22 April 2014, when the transcript was received (after some delays);

(d) The extent to which he was required to devote his time to fighting the fire at Hazelwood between 21 February and 13 March 2014 is unclear. Presumably it was not total preoccupation as during this period he says he listened to the audio recording of the five days of hearing before the Senior Member;

(e) Even after learning of the time limit for appeal at the end of March 2014, there is further delay of 38 days. Some of that time might be explained by the delay in obtaining the transcript, but there is no mention of instructing solicitors before the transcript was obtained and that is odd and unexplained; and

(f) Mr Crespin immediately instructed his solicitors to set about arranging an appeal after he received the transcript on 22 April 2014. There is no explanation for the delay between that date and the launching of the appeal, a period of 16 days. It would be reasonable to conclude that time of a week or more might be occupied by the solicitors preparing the application for leave to appeal. But there is no explanation for why instructing Advaland's solicitors was left so late.

47 Mr Crespin says he did not know of the 28-day limitation period for making application for leave until the end of March, well after the time had expired. The fact that he had solicitors on the record is clearly relevant. The implication from the affidavits of Mr Crespin is, however, that they were not instructed to commence the application for leave under s 148(5) and for leave to appeal until the transcript of the hearing was received. Mr Crespin appeared in person at VCAT on 6 March and 17 April 2014. The solicitors had ceased work on all matters as at 6 March and 17 March 2014. The absence of an explanation for not instructing the solicitors when he found out about the time limit at the end of March 2014 is significant, especially in the light of his appearance before the VCAT on 17 April 2014. One might reasonably conclude that at that point Advaland had made no decision to challenge the decision of the Senior Member.

48 In considering the reasons for delay that have been advanced, and in assessing the other matters that have been revealed by the succession of answering affidavits, it is relevant to have regard to the burden of proof. That burden rests on Advaland. The first affidavit from Mr Crespin (sworn 8 May 2014) reveals a leisurely approach to the vindication of his rights. The fact that the first affidavit in support of the application omitted to reveal that during the period of the delay Advaland had taken steps in the VCAT proceeding seems to me to be significant. Why, I ask rhetorically, do litigants who are contemplating appealing continue with the proceeding which they contemplate appealing? The inference is to my mind clear: Mr Crespin, on behalf of Advaland, had made no decision to appeal and had no advice as to the merits of any appeal until after 22 April 2014 when the transcript was received. This explains his inconsistent conduct in continuing with the VCAT proceeding and also the gaps in the explanation for the delay.

49 The prejudice likely to be suffered by Advaland if its application to extend time is not allowed turns very much on whether there is a significant argument that VCAT fell into error in concluding that it was the contract in the name of Mr Crespin that was the operative contract. The reason for that is that in this case I have concluded that there is not such a significant argument. The existence of a real prospect of establishing error is the most persuasive reason for the extension of time. However, if I am wrong in that conclusion, I am not satisfied on the evidence that the prejudice is anything other than the usual prejudice arising from an adverse decision. The damage brought about by the suspension of Mr Crespin's builder's licence clearly predates the VCAT decision and involves other matters that have been redacted from the documents produced by Mr Crespin. The damage to Advaland's and Mr Crespin's reputation is not clear having regard to the evidence adduced by Mr Pergl.

50 The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.

51 The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[18] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners' Board of Victoria.[19] That summary is as follows:

(a) Whether leave is granted or not must always depend upon the justice of the particular case;

(b) if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal's succeeding or failing;

(c) the applicant need not establish an error below - that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;

(d) although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;

(e) once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and

(f) where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.

[footnotes omitted]

52 Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part[20] of the following passage from the reasons of Phillips JA in Hulls:[21]

There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

[emphasis added]

53 In Hulls, Phillips JA considered an argument that the provision made by r 4.09 in some way provided criteria for the granting of leave to appeal. He somewhat emphatically rejected that this was the proper interpretation of the rule. But it is apparent in my view that the matters identified in r 4.09(2) that may guide an Associate Judge in refusing leave to appeal are consistent with, even on all fours with, the matters identified by the Court of Appeal in Hulls as circumstances in which leave to appeal may be refused.

54 The original proposed notice of appeal simply set out the grounds of appeal without identifying questions of law. On 21 July 2014 I ordered a further draft notice of Appeal - one that complied with r 4.11 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 - in particular that it should set out the questions of law upon which the appeal is brought.

55 A Further Amended Proposed Notice of Appeal was exhibited to the affidavit of Mr Crespin sworn 22 August 2014.[22] The grounds precede the questions of law and read like a notice of appeal in an appeal that is in the nature of a re-hearing. That is, the orders and various parts of the reasons are referred to and errors of law are identified. It is a long Notice (18 pages) and identifies 11 grounds with many sub-paragraphs to support the grounds. The questions of law identified in the Notice merely repeat the grounds with the preface 'whether'. The result is that it casts a very wide net. Altogether it is a most unsatisfactory draft Notice of Appeal.

56 Counsel for Advaland, however, identified the questions of law in the following way:

(a) The Senior Member failed to have regard to the post-contractual communications and documents in determining who were the contracting parties;

(b) The Senior Member drew the wrong inferences from the facts; and

(c) The Senior Member's finding that the expert engaged by Advaland (namely Trevor Joyce) did not examine a version of a contract tendered by Advaland to ascertain whether labels had previously been affixed to it was contrary to the evidence given by Mr Joyce.

57 The first question was put as a vehicle for questions of law to the following effect:

(a) Whether post-contractual communications and documents can be looked at to determine who were the contracting parties to a contract. It was submitted that it was reasonably arguable that they could be looked at for that purpose;

(b) Whether the Senior Member failed to address the post-contractual communications for the purpose of determining who were the contracting parties to a contract. It was submitted that he had failed to do so; and

(c) Whether the Senior Member's reasons for decision failed to assign reasons for rejecting the evidence of post-contractual communications or failed to explain why they were not relevant. It was submitted that the reasons did so fail.

58 The second question was a vehicle for a wide range of questions. They included:

(a) It was not reasonably open to the Senior Member on the evidence to find that Advaland's version of the contract had, at one stage, labels affixed to it which bore the name KITCH CRESPIN as builder (Notice of Appeal Question 5);

(b) The Senior Member was in error in finding that Advaland's version of a contract had at one stage labels affixed to it which bore the name KITCH CRESPIN as builder because that finding failed to address the evidence of Mr Joyce, the expert, that electrostatic techniques revealed that it was unlikely that labels had previously been affixed to Advaland's version of the contract and that the removal of Dymo type labels would be likely to tear the contract and/or be visible to the eye, and the expert evidence generally (Notice of Appeal Question 6);

(c) The Senior Member erred in finding, and it was not reasonably open to find, that Ms Sholtes gave evidence that between January and October 2010 she was employed by Advaland to prepare contract documents on its behalf. She said that in all cases she named the builder as Advaland Pty Ltd. ... In my view, this statement undermines the credibility of her evidence [paragraph 40 of the reasons] (Notice of Appeal Question 7);

(d) The Senior Member erred in law in making three findings on the same point of which two findings are by, necessary implication (and fact), erroneous and not reasonably open to make, namely:

(i) The addenda to the respondent's contract has a printed date of '3/7/2010' on all pages;

(ii) The addenda to the respondent's contract has a printed date of '3/09/10' at the bottom of every page; and

(iii) The addenda to the respondent's contract has a consistent date of '3 August 2010' on every page: (Notice of appeal Question 8).

(e) The Senior Member erred in law in drawing the wrong inferences in finding that the plaintiff is not the original contracting party and that the version of the contract advanced by Mr Bitcon constitutes the written contract, having regard to 17 items of uncontested evidence and findings of fact (10 of which refer to post-contractual communications or documents) (Notice of Appeal Question 9);

(f) The Senior Member erred in law in failing to assign reasons for rejecting and excluding evidence relied upon by Advaland, being the same 17 items referred to in the last question (Notice of Appeal Question 10); and

(g) The Senior Member erred in law by making inconsistent findings, being:

(i) Rejecting Mr Bitcon's evidence that he initialled both versions of the contract with the initials 'KC' but initialled only one set with the builders initials 'KC'; [paragraph 36 of the Reasons] and

(ii) Accepting that Mr Bitcon's version of the contract was a counterpart of the contract he signed and left under the tarpaulin at Mr Crespin's home [paragraph 45 of the Reasons] (Notice of Appeal Question 11).

59 The third question (see paragraph 56 (c) above) involved the contention that the Senior Member had made factual findings not supported by the evidence. At paragraphs [33]-[34] of the reasons the Senior Member commented on expert evidence given on behalf of Advaland concerning an examination of the building contract in the name of Advaland that it was contended was the contract entered into (as distinct from the contract on which Mr Bitcon, as owner, contended was the one entered into with Mr Crespin). He said:

During Mr Joyce's evidence, I asked whether he was able to determine whether Advaland's version of the MBA contract had, at some earlier point in time, been affixed with labels similar to those appearing on the Owner's version of the MBA contract. I asked whether those types of labels could be removed without there being some marks left on the document. Mr Joyce said that it was possible to remove the labels without there being any apparent destruction of the paper upon which they were affixed. In other words, it is possible that they could be removed without it being noticeable to the naked eye. He said that he could ascertain whether such labels had previously been affixed to the paper by using electrostatic imaging. He conceded, however, that he had not been asked to undertake that exercise. Therefore, he was not willing to proffer an opinion as to whether labels had previously been affixed to Advaland's version of the MBA contract.

It is regrettable that Mr Joyce did not examine the document to ascertain whether labels had previously been affixed to it. It seems to me that this question really lies at the heart of the dispute. In particular, what are before me are two versions of the same pro-form type contract. The Owner's version has white labels affixed to the cover and to the first page, naming Mr Crespin as the builder. Advaland's version does not have any white labels and the name Advaland P/L is handwritten on the cover and first page. It goes without saying that electrostatic imaging of Advaland's version of the contract may have provided material evidence as to whether the document had been altered. Without such evidence, I am left with largely circumstantial evidence from which I am asked to draw an inference one way or the other.[23]

60 In fact Mr Crespin contended that Mr Joyce had examined the document for evidence of whether the labels had previously been affixed and gave evidence of it. At page 63 of the transcript on 13 January 2014 he said he had, during a break in being cross-examined by Mr Kirby of Counsel, reviewed the images of the electrostatic examination of the contract and said 'there is no evidence of adhesive having being applied to the document'.

61 It is clear that post-contractual conduct cannot be looked at as an aid to the construction of a contract. It can be looked at, however, as an aid to deciding whether a contract has been entered into at all: See Gangemi v Osborne;[24] Brambles Holdings Ltd v Bathurst City Council.[25]

62 Advaland submitted that there was no difference in principle between the question of whether a contract was entered into between Advaland and Mr Bitcon or between Mr Crespin and Mr Bitcon or whether the contract was entered into at all. It was not seriously contested on behalf of Mr Bitcon that there was not a real and significant argument that post-contractual conduct might be looked at to determine who was the contracting party to a contract, particularly having regard to the observations of the New South Wales Court of Appeal in Pethybridge v Stedikas Holdings Pty Ltd[26] and the consideration of the matter by the Victorian Court of Appeal in Lederberger v Mediterranean Olives Financial Pty Ltd.[27]

63 Advaland submitted, and again it was not seriously contested, that what can be looked at was post-contractual communications between the parties themselves[28] post-contractual admissions,[29] and the circumstances surrounding the post-contractual exchange of communications.[30]

64 The defendants' answer to the post-contractual-conduct question of law was that although evidence of a number of post-contractual events and documents had been admitted into evidence before the Senior Member, it was never squarely put by the legal practitioner acting for Advaland that these post-contractual events should be taken into account in determining who were the parties to the building contract.

65 I was taken to the transcript of the hearing of submissions on Friday 17 January 2014 (T463 to T506) where the solicitor for Advaland made submissions regarding the evidence. At page 466 the Senior Member asked:

Is it the case that a finding on the contract will be determinative of who the builder will be? Or is it the case that a finding on the contract does not necessarily answer the second question who the builder is? Are there two questions for me to consider? One, who are the parties to the contract, if there is a contract? Two, who is the builder? Now, as I indicated to you, it may well be that the answer to the first question is an answer to the second question.

66 Mr Lanza, for Advaland, submitted that the Tribunal should address both questions,[31] and then made a series of references to post-contractual events, including the fact that there was an application signed by Mr Bitcon to authorise the building surveyor to grant a building permit to Advaland. But he related these events to the determination of the second question identified by the Senior Member and not to the determination of the question of who was the contracting party and which document constituted the contract.

67 In the course of argument before me Counsel for Mr Bitcon handed up the outline of final submissions that the Senior Member had permitted to be filed.[32] There is no reference in this submission to the Tribunal taking into account the post-contractual communications and documents for the purpose of determining who was the builder under the contract; that is, determining whether it was Advaland or Mr Crespin who was named as the builder in the contract.

68 It seems clear from the review of the transcript undertaken by the parties and put to me in argument, and from the written outline of final submissions filed on behalf of Advaland, that the application of post-contractual conduct to the determination of who was the contracting party was not an issue in the course of the hearing before the Tribunal, it was not run and no submissions were made about it. The Senior Member was not taken to any of the cases that were put before me. The case before the Senior Member was put on the basis that there were conflicting versions of the contract and that someone had fabricated the identity of the builder.

69 That this was the way in which the case was run before VCAT is confirmed by the observations of the Senior Member at the conclusion of his reasons for the orders he made. At paragraph [46] of the Reasons the Senior Member observed:

At the conclusion of the hearing of this preliminary proceeding, I asked the parties whether I was to also determine the identity of the party which undertook the building work, as opposed to simply identifying the true contract documents and the parties to those contract documents. Mr Kirby submitted that my task was limited to determining the two preliminary questions set out above and that further evidence would need to be adduced in order to determine who actually carried out the building work. Mr Lanza submitted that it was open for me to make findings as to the identity of the party that undertook the building work, given that the orders setting out the preliminary questions were expressed generally. I do not consider it appropriate that I make findings in relation to the identity of the entity that constructed the building work, given Mr Kirby's submission that further evidence would need to be adduced in order to properly consider that question. Accordingly, I leave that question to be determined at final hearing.

70 The defendants relied upon the proposition that upon the hearing of an appeal the appellant is to an extent bound by the way in which he conducted proceedings in the Court or Tribunal below: See Coulton v Holcombe.[33] In Whisprun Pty Ltd v Dixon,[34] Gleason CJ, McHugh and Gummow JJ observed that it was inimical to the due administration of justice, if, on appeal, a party could raise a point that was not taken at the trial, unless it could not possibly have been met by further evidence at the trial. A point may be a new point even though it is in the pleadings or particulars, so it is necessary to look at the actual conduct of the proceeding to determine whether a party is raising a new point.

71 In my view, this principle stands as a direct barrier to Advaland now seeking to raise as a question of law on appeal the use of post-contractual conduct to determine who was the contracting party in this case. The fact that it was not run as an argument below means that by failing to consider it the Senior Member did not fall into appealable error.

72 In applying this kind of restriction on the ability of a plaintiff to raise an arguable case for the purposes of granting leave to appeal from VCAT, the distinction needs to be drawn between appeals from the trial of proceedings or matters, and appeals from determinations of interim orders or orders of the kind at issue here, namely the determination of a preliminary question.

73 I raised with the parties the issue of whether the potential to fragment the VCAT proceeding was a factor in this case. In this regard I note the observations of the Court of Appeal in Hulls[35] that:

Where the order sought to be appealed is interlocutory (or "interim" in the terminology of the V.C.A.T. Act) there may be particular reasons, based in justice to both parties, for not granting leave to appeal. There are strong considerations against the fragmentation of any proceeding, whether it be criminal or civil. Where a court is invited to grant leave to appeal from an order which is simply interlocutory, the litigation will be interrupted by the appeal, if leave is granted. Usually it is better if litigation is left to run its course, the parties being remitted to such rights of appeal as they have at the end of the day. Not only does that ensure that the litigation is not unnecessarily interrupted and completion not delayed without warrant; it also ensures that any interlocutory dispute will be seen and adjudged in its final context. Indeed, in the context of the final judgment the interlocutory dispute may be seen as having, or having had, little or no significance. Hence, in Niemann it was said that for leave to appeal from an interlocutory order must show, not only sufficient doubt about the correctness of the order, but also that there would be substantial injustice in leaving that order unreversed.

74 Whether the determination of preliminary questions is interlocutory or final may be a difficult question in the context of VCAT's jurisdiction and powers, and I was not addressed on that point. More importantly, there is no reason to think that Advaland is precluded from seeking leave to appeal at the end of the VCAT proceeding on all possible questions of law, including one or more of the questions now sought to be agitated, if they raise real and significant arguments that VCAT fell into error and are not precluded by the fact that they were not raised below.

75 The second question of law identified by Counsel for Advaland (see paragraph 56 (b) above) involves a direct challenge to findings of fact made by the Senior Member[36] In Rugolino v Howard,36 Bell J set out the principles which are applied by the Court in the exercise of its appellate jurisdiction in relation to findings of fact. Remembering the tribunal is not bound by the rules of evidence and can base its findings on any probative material, those princi[37]es apply equally here:37

In Roads Corporation v Dacakis,[38] Batt J held 'the question whether there is any evidence of a particular fact is a question of law.' Therefore a finding of fact is open to challenge as 'erroneous in law', but only if 'there is no probative evidence to support it'.[39] Similarly, in S v Crimes Compensation Tribunal,[40] Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if 'it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.' His Honour emphasised that the question was not whether the finding was 'reasonably open', for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.

S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners' Board of Victoria,[41] Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was 'not open'. After endorsing[42] the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries[43] that it was 'critical' to making findings of fact that they be based on the evidence, but there would be no error of law 'unless it can be shown that there was no evidence' to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council.[44] After approving the 'not open' test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman[45] where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was 'any evidence' to support it.[46]

In State of Victoria v Subramanian,[47] Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.

76 That challenge to the inferences drawn by the Senior Member in some instances turns upon both the proposition that there was no evidence to support a particular finding or in others that the finding was not reasonably open on the evidence. The former might amount to a question or questions of law but the latter will not. In an overall sense, the attack on the findings of the Senior Member is based upon what might loosely be called a merits review, in the sense that to succeed Advaland must establish that each of the findings attacked was not reasonably open on the evidence before a Senior Member.

77 I am not persuaded that any of the inferences that are attacked (see paragraph 58 above) give rise to a question of law which is important to the substantive appeal succeeding. True it is that there are some mistakes, and some inconsistencies in the observations, made by the Senior Member. But they have not been shown to be significant to the ultimate finding. Mr Bitcon's version of the contract was supported by contemporaneous documents, including documents adduced through independent th[48]d parties.48 A valuer of Charter Keck Cramer received a copy of Mr Bitcon's version of the contract before 5 [49]gust 2010.49 The National Australia Bank received Mr Bitcon's version of the contract on 12 October 2010, before the parties were[50]n dispute.50 The contract certified by Mr Gaskell (a chartered accountant) on 27 January 2011 was in the same form as Mr Bitcon's version of t[51] contract.51 These matters are mostly verified by reference to exhibits to Mr Pergl's affidavits, particularly his affidavit of 29 September 2014.

78 In relation to the third question (see paragraph 56 (c) above) it is clear, and it was not in dispute, that Mr Joyce was not asked to examine whether adhesive labels had been removed from Advaland's version of the contract. Moreover, despite the fact that Mr Joyce had during a break in his cross-examination looked at whether or not there was any evidence of adhesive of labels to the Advaland contract, nevertheless he said when pressed in cross-examination:

I can't arrive at a conclusion, I've deliberately avoided to coming to one. But, again, I would - I could never be certain, even if I had have examined the document for evidence of adhesion of a label or evidence of a label being applied, you could never come to a conclusion of certainty anyway. But I think in relation to the image that I've got before me, I think there is very strong evidence on the image alone to indicate that no label applied. But having said that I cannot definitely rule that out either.

79 It seems to me that the Senior Member could be forgiven for concluding from this evidence in the way he did in paragraphs [33] and [34] of his Reasons. But even if it is right to say, as Advaland does contend, that the Senior Member overlooked some aspects of that evidence, it is not fundamental to the ultimate conclusions reached because they turn very much on the factual evidence, particularly that drawn from the contemporaneous documents to which I have referred above.

80 In this way it can be seen that none of the questions of law advanced could give rise to any vitiating error, an error that has significance to the ultimate conclusion reached by the Senior Member. There is, accordingly, no real or significant argument to be put that error exists.

81 Overall, the consideration of these arguments brings into focus one of the important elements in the consideration of whether leave to appeal should be granted, and thus whether an enlargement of the time to appeal should be granted, and that is the ultimate governing consideration, the justice of the case as it appears to the Court, and that means justice to all parties not just the applicant.[52] The ultimate finding of the Senior Member, turning as it does significantly on the factual evidence drawn from the contemporaneous documents to which I have referred points firmly to the justice of the case favouring a refusal of leave to appeal and thus a refusal of an enlargement of the time for applying for such leave.

82 For the foregoing reasons I have concluded that:

(a) The explanations for the delay in applying for leave to appeal are unsatisfactory;

(b) Prejudice to Advaland, (other than the usual prejudice arising from an adverse decision), has not been established; and

(c) There is no real or significant argument that VCAT fell into error of the kind that is important to the substantive appeal succeeding.

83 For these reasons I conclude that this is not a proper case for the grant of an extension of time within which to apply for leave to appeal.

[1] The affidavit of Kitchener Crespin sworn on 8 May 2014.

[2] Affidavit of James Murray Pergl sworn 25 August 2014.

[3] There were objections rightly taken to some of Mr Pergl's affidavit, particularly where he expressed opinions or made submissions. I have ignored these aspects of the affidavits.

[4] Order 6 March 2014, Exhibit 'JMP-1' to the affidavit of Pergl sworn 25 August 2014.

[5] Exhibit 'JMP-2' to the affidavit of Pergl of 25 August 2014.

[6] Invoices for work performed, the engagement of a building surveyor to issue a building permit, the building permit itself (which named Advaland as builder), a certificate of home warranty insurance under s 135 of the Building Act 1993, and a letter dated 24 April 2012 advising Mr Bitcon of completion of the base stage of the home.

[7] Referred to below at paragraph 60.

[8] Exhibit KC-27 to the affidavit of Mr Crespin sworn 22 August 2014, at T65-66.

[9] See, eg, Davies v Transport Accident Commission [2000] VSC 379 at [20].

[10] Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517; [1985] 1 WLR 942; Latoudis v Casey, [1990] HCA 59; (1990) 170 CLR 534, 537.

[13] Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297 at 302.

[14] See Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 263; Jackamarra v Krakouer (1998) 195 CLR 516; Giurina v Owners Corporation No 1579 [2012] VSC 466 at [28]; Update Pty Ltd v Commissioner of State Revenue [2013] VSC 122 at [29].

[15] Per Warren CJ in Bendigo Bank v Csizmadia-Estok [2007] VSC 112 at [24].

[16] Carlos Constructions Pty Ltd v Housing Guarantee Fund Ltd [2002] VSC 444 at [5].

[17] See, eg, Loizou v University of Melbourne [2000] VSC 1 at [34].

[23] Advaland Pty Ltd v Bitcon [2014] VCAT 99 at [34].

[24] [2009] VSCA 297 at [23] per Nettle JA.

[25] [2001] NSWCA 61; (2001) 53 NSWLR 153 at 163-4, paragraphs [25] and [26] per Heydon JA (as he then was).

[27] [2012] VSCA 262 at [28]-[33] particularly at [31].

[28] ABC v XIVth Commonwealth Games Ltd (1998) 18 NSWLR 540.

[29] Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310 per Isaacs J; FAI Insurance Co Ltd v Savoy Pty Ltd [1993] VicRp 76; [1993] 2 VR 343 at 351.

[30] ABC v XIVth Commonwealth Games Ltd (supra at 550); Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528 at 531-2.

[37] Ibid [10]-[12]; See also IDirector of Liquor Licensing v Kordister Pty Ltd [2011] VSC 590 at [247].

[48] See paragraph [10]-[22] of the Reasons.

[49] See paragraph [9] and [42] of the Reasons.

[50] See paragraph [42] of the Reasons.

[51] See paragraph [22] and [41] of the Reasons.

[52] Secretary to the Department of Premiere and Cabinet v Hulls (1999) 3 VR 331; [1999] VSCA 117.

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