Applicant v Respondent

2 The application was listed for hearing in Court on Tuesday 24 March 2020. The parties have agreed, by email, to the extension of time application being determined on the papers. The email from the applicant was expressed in qualified terms. I had not formed a preliminary view on the application when the parties were notified, and accordingly the qualification proposed by the appellant was not applicable. The Court has restricted the use of oral hearings in response to the COVID-19 pandemic.

3 The applicant seeks leave to appeal from two VCAT decisions. The primary decision was dated 12 July 2017 and the penalty decision was dated 27 September 2017. The decisions were in disciplinary proceedings concerning conduct of the applicant as a legal practitioner. The disciplinary proceedings followed a complaint filed by Mrs Hanna with the Commissioner on 18 February 2013. Mrs Hanna and her husband had been clients of the applicant.

4 Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 allows for an appeal from a decision of VCAT by leave to the Supreme Court of Victoria. Section 148 (2) provides:

An application for leave to appeal to the Trial Division of the Supreme Court must be made -

(a) within 28 days after the day of the order of the Tribunal, unless the rules of the Supreme Court otherwise provide; and

(b) in accordance with the rules of the Supreme Court.

5 The current version of the Act includes amendments that commenced on 1 May 2018 which is after the date of the VCAT decisions but prior to the commencement of this Supreme Court proceeding.

6 The earlier version of s 148(2) was in similar terms and imposed the same time limitation of 28 days:

An application for leave to appeal must be made -

(a) no later than 28 days after the day of the order of the Tribunal; and

(b) in accordance with the rules of the Supreme Court.

7 The power to extend time is provided by s 148 (5) of the Act:

The Trial Division of the Supreme Court may at any time extend or abridge any time limit fixed by or under this section.

8 Section 148(5) was also amended with effect from 1 May 2018. Prior to the amendment [and at the time of the VCAT decisions] the sub-section provided:

The Court of Appeal or the Trial Division, as the case requires, may at any time extend or abridge any time limit fixed by or under this section.

9 On 1 October 2019 the applicant filed this proceeding seeking 'leave to appeal out of time' against the decision and orders of VCAT on 12 July 2017 and 27 September 2017.

10 On 22 October 2019 the applicant filed a Summons [Form 46A] for 'a directions hearing for leave to appeal out of time.' The Notice of Appeal was not filed within 28 days of the decisions of VCAT as required by s 148 (2) of the VCAT Act. The applicant asks the court to exercise the power created by s 148(5) to extend the time in which to file the application for leave to appeal.

11 The application for leave to appeal against the orders made by VCAT on 12 July 2017 is over 25 months out of time. The application for leave to appeal against the orders made by VCAT on 27 September 2017 is over 22 months out of time.

12 The original notice of appeal sets out 54 'Questions of Law' and recites separate 'Grounds of Appeal' for each. The Notice of Appeal runs to 28 pages. An affidavit in support was filed, of some 66 pages, apparently deposed to in Cannes, in the French Republic, on 16 October 2019. The affidavit is expressed in terms that it purports to be 'sworn or affirmed'. The Oaths and Affirmations Act 2018 (Vic) provides in s 7 that a person may choose whether to take an oath or make an affirmation. The form of the document lodged by the applicant fails to make that choice. The Act provides in s 17 and s 29 that minor non-compliance does not affect the validity of an affidavit. I am prepared to proceed with reliance on the affidavits although it is not clear that the defects are of a minor nature.

13 A bundle of exhibits to the affidavit was filed on 16 October 2019. The bundle contains some 187 pages. The certificate recites 'This is the exhibit now produced and shown to the deponent at the time of swearing/affirming that person's affidavit on [blank] October 2019'. The certificate is defective as it fails to identify that it contains the documents shown to the deponent at the date of making the affidavit. The exhibit is marked 'JLB-1' and some of the documents are indexed at [55] of the affidavit. Also, I have not been provided with authority to establish that the affidavit was made in accordance with the requirements for affidavits made outside of Victoria.[1] I am prepared to proceed with reliance on the affidavit for the purposes of this decision, notwithstanding the defect appearing from the absence of a date on the exhibits.[2]

14 The affidavit dated 16 October 2019 sets out circumstances relied on by the applicant in support of the application for an extension of time. Those circumstances and the applicable paragraphs of the affidavit are as follows:

(a) conduct of the Commissioner, her office and others on her behalf in the period from February 2013 to October 2019 at [3] to [134] with reference to JLB-1 exhibits described in [55]. The conduct relates in part to an allegation of 'tampering' with the solicitor's file that the applicant had produced see [66] and [75];

(b) evidence adduced from VCAT proceedings J82/2013 and J130/2013 at [135] to [148]; and

(c) that each question of law and ground of appeal has reasonable prospects of success at [149] to [241].

15 The affidavit dated 16 October 2019 refers to the VCAT decision dated 12 July 2017 at [78] and the reasons for decision are included in exhibit JLB-1 at page 103. The VCAT decision dated 27 September 2017 is mentioned at [80] and the reasons for decision appear in exhibit JLB-1 at page 186. The affidavit states at [17] that on 6 September 2019 a decision of VCAT in relation to a civil claim for legal fees decided the Costs Court was the appropriate forum to determine the reasonableness of the costs charged. The affidavit at [18] refers to correspondence of 3 October 2019 in relation to an apparent dispute concerning a letter dated 30 January 2013. The affidavit at [67] refers to the identification on 2 August 2019 of 'missing or removed' documents associated with the applicant's 'original' file.

16 A further affidavit of the applicant together with exhibits was filed on 16 November 2019. The affidavit was 'sworn or affirmed' on 14 November 2019 at Hadfield 3046 before an acting Sergeant at the Fawkner Police Complex. The exhibits to the November 2019 affidavit comprise some 2,013 pages. The first 1,582 pages include the transcript of proceedings of the hearing at VCAT commencing on Monday 7 November 2016 before Senior Member Mr Smithers and Member Ms Bignell and concluding on 4 August 2017. The exhibit 'JLB2' is some 360 pages of transcript of the hearing on 31 July 2019 before VCAT in the Legal Practice List. The balance of the bundle of exhibits from page 1,966 to 2,013 is marked JLB3 and includes correspondence as described in paragraph 5 of the affidavit dated 14 November 2019.

17 The affidavit dated 14 November 2019 includes the applicant's recollection of conversations he had at a meeting on or about 2 August 2019 at the office of the Legal Services Commissioner. The evidence about the conversations is apparently directed to questions the applicant has concerning the file described as 'the original client file which the Commissioner alleges the applicant provided in 2013'. The evidence indicates the applicant's concerns as to the state of the file and questions raised by the applicant as to the person or persons who may have worked on the file since 2013.

18 On 21 November 2019, the respondent filed a Notice of Appearance in this proceeding. Orders were made by Clayton JR on 27 November 2019, granting leave to the applicant to amend his Notice of Appeal and setting a timetable for the hearing and determination of the application for an extension of time.

19 On 26 December 2019, an Amended Notice of Appeal was filed. The Amended Notice has 18 pages [compared to 28 in the original court document] and 18 'Questions of Law' with 'Grounds of Appeal' [compared to 54 originally].

20 Clayton JR directed that the applicant file an outline of submissions and any further affidavits by 31 January 2020. On 16 January 2020 the applicant filed his outline of submissions. An affidavit dated 16 January 2020 has also been filed by the applicant. There is a degree of overlap between the affidavit and the submissions for the applicant. It contains submissions and exhibits a further 208 pages of documents. The exhibit JLB-1 is from page 10 of the bundle to page 133. It includes [numbered pages 20 - 21] correspondence dated 12 November 2019 from solicitors concerning County Court proceedings between VLSC and Mr Beling. The exhibits include [pages 22 - 39] email correspondence between Mr Beling and the solicitor for the respondent in relation to a request to inspect documents, arrangements for the inspection and proposed orders in the County Court.

21 At page 40 the exhibits include a copy of the closing submissions of the Commissioner in VCAT matter J71/2015 dated March 2016. At pages 74-133 the closing submissions for the respondent in the VCAT matter dated 23 April 2017 are included.

22 The exhibits filed by the applicant in this proceeding on 16 January 2020 continue with JLB-2 at pages 134-197. This exhibit is the defence and counterclaim filed by Mr Beling in the County Court proceeding CI-19-03745. The applicant refers to the defence and counterclaim in his submissions as contained in the affidavit dated 16 January 2020 at [25] and [26].

23 The exhibits filed by the applicant in this proceeding on 16 January 2020 continue with JLB-3 at pages 198-217. This exhibit contains orders of VCAT and correspondence concerning the listing of the VCAT proceedings, as discussed by the applicant in his affidavit at [27]. In VCAT matter J82/2013, Mr Beling was the applicant and Mr and Mrs Hanna were the respondents. In VCAT matter J130/2013 Mr and Mrs Hanna were the applicants and Mr Beling was the respondent. The orders and correspondence in those two matters were created between 24 November 2017 and 8 May 2019.

24 In this proceeding and as required by the orders of Clayton JR, written submissions on behalf of the respondent were filed on 26 February 2020.

25 In Trkulja v Dobrijevic[3] the Court of Appeal said:

The principles, relating to the application for an extension of time, are well established. The guiding principle is that the discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. The applicant, for an extension of time, must explain the delay, and the explanation must justify the delay being excused. The Court should take into account the history of the proceedings and the conduct of the parties. A relevant consideration is that, in the case of a proposed appeal, the successful party, at first instance, has a legitimate interest in the finality of the decision in that party's favour. The Court does take into account its assessment of the prospects of success of the appeal, on such an application, bearing in mind, however, that the parties are not in a position to address a full argument on that issue, nor is the Court in a position to make a detailed assessment of it.

26 Derham AsJ in Advaland Pty Ltd v Bitcon and Anor[4] outlined five conceptually similar criteria to be considered in the exercise of the power to grant an extension of time, being:

(a) the length of the delay;

(b) the reasons for the delay;

(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

(e) the importance of the subject matter.

27 These well settled principles are identified in decisions relied on by both parties in the submissions before me. The applicant cited Muto v Secretary to the Department of Planning and Community Development;[5] Feiglin v Ainsworth;[6] and Jackamarra v Krakouer.[7] The respondent cited Brandwill Holdings Pty Ltd v Jonson;[8] and Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd.[9] The respondent also relied on Derring Lane Pty Ltd v Fitzgibbon[10] and Edwards v Transport Accident Commission.[11]

28 When considering the granting of an extension of time it is also necessary to bear in mind the nature and purpose of the statutory timeframe prescribed in which to make an application.

29 McHugh J in Brisbane South Regional Health Authority v Taylor[12] observed:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.

30 Expanding on this, Emerton J in Brandwill Holdings Pty Ltd v Jonson & Ors[13] observed that statutory deadlines also satisfied the 'general need for finality in litigation' and provided the parties to a dispute a measure of certainty.

31 Finally, it naturally follows, that a further purpose of deadlines is to ensure there is no 'untoward delay in achieving some finality in litigation.'[14] This again reaffirms the need for an extension of time to not merely be arguable, but justifiable, in the circumstances.

32 The applicant in his outline of submissions filed on 16 January 2020 does deal with the relevant factors per Trkulja - the length of delay, the reason for the delay, whether there is prejudice to the respondent and the merits of the proposed appeal.

33 The applicant's outline of submissions filed on 16 January 2020 at [2] and the affidavit dated 16 January 2020 at [3] submit the length of delay should be regarded as only 'about a 25 day delay between the date of the VCAT decision on 6 September 2019 and filing the application on 1 October 2019'.

34 The applicant seeks to rely on alleged delay in VCAT listing other proceedings which were heard in 2019 for reasons set out in the submissions at [8]. In the affidavit dated 16 January 2020, it is argued the extension of time should be granted taking into account the 'evidence given in VCAT in late July 2013'. It appears the paragraph intends to refer to evidence given in late July 2019. The orders for the hearing of the two matters in VCAT are exhibited in JLB-3 and show the hearing occurred in 2019, not 2013. I proceed on the basis that the affidavit contains a typographical error in the reference to 2013, and it should be a reference to 2019.

35 The affidavit dated 16 January 2020 at [27] and the submissions at [8] set out the applicant's submission concerning alleged delay by VCAT listing other proceedings filed in 2013 for hearing in July 2019. The submission is the delay in listing those matters prevented the applicant from having recourse to other evidence which he now considers to be relevant to the appeal and to undermine the decisions of VCAT delivered in 2017 the subject of this application.

36 The submissions at [9] and the statements in the affidavit dated 16 January 2020 from [6] to [16] develop the proposition as to the 'fresh evidence' given in 2019. The applicant refers to three witnesses, Mrs Tracie Hanna, Mr Gary Stockton and Mr Joshua Kohn. The submission seeks to link the evidence of these witnesses to the proposed grounds of appeal. The submissions deal with the so-called 'fresh evidence' as a reason for the delay. The submission is also a necessary part of understanding the submission advanced about the length of the delay.

37 The applicant relies on a case from the criminal jurisdiction concerning fresh evidence namely Bowden v R[15] [incorrectly cited as Bowen v R] and a case concerning the introduction of further evidence in corporations law concerning derivative proceedings, Foody v Horewood.[16] These submissions appear at [9] of the outline of submissions.

38 The applicant in his submissions at [5] to [7] refers to 'oppressive conduct' of the respondent and her refusal to co-operate. In the affidavit dated 16 January 2020 at [3] the applicant refers to 'the Commissioner's uncooperative and oppressive conduct as recently as 8 January 2020'. The submission is developed at [19] of the affidavit with reference to correspondence included in exhibit JLB-1. The substance of this submission was also raised in [7] of the affidavit dated 14 November 2019, with reference to exhibit JLB-3, and was alluded to in various paragraphs of the applicant's affidavit dated 16 October 2019, notably paragraphs; [111]; [114]; [117]; [120]; [125-127]; [129]; [133] and [134].

39 The applicant's submissions at [3] and his affidavit dated 16 January 2020 at [17] rely on his impecuniosity and inability to afford legal representation or advice as matters providing explanations for the delay in making the application for leave to appeal.

40 The applicant submits at [10] of his outline and at [28] of his affidavit dated 16 January 2020 that there is little or no prejudice to the respondent if time was to be extended.

41 The applicant's submissions address the merits of the appeal at [11] to [30] of the outline of submissions, addressing each of the grounds of appeal numbered 1 to 17 in detail.

42 The submissions for the respondent are summarised at [13] of the Outline filed on 26 February 2020 in the following terms:

In the present case, the inordinate delay, the lack of adequate reason for the delay and the absence of good reason for excusing the delay are fatal to a favourable exercise of the discretion to extend time.

43 The respondent submits [22] the public interest in finality in litigation is relevant to the question of prejudice and the exercise of discretion to extend time. The respondent at [23] does not concede there is an arguable case on the merits of the appeal. The respondent also addresses [24] and [25] matters raised by the applicant concerning the relevance of a settlement deed between the parties.

44 The applicant asserts the delay in the hearing of the other VCAT matters is relevant to the failure to commence the appeal in 2017. I do not accept the delay in hearing the other VCAT matters offers any explanation for that failure. The 2017 decisions of VCAT dealt with conduct in 2012 and 2013. The purpose of the time limit for commencement of an appeal is to ensure there is no untoward delay in achieving some finality in litigation, as stated in Trkulja.[17]

45 I reject the argument advanced by the applicant that the delay is only about 25 days. The application for leave to appeal is from the two decisions in 2017. The decision in other proceedings in 2019 does not have any consequence whereby time was 'suspended' or did not run against the applicant. The two 2017 decisions were final decisions and concluded the proceedings between Mr Beling and the Legal Services Commissioner. The other proceedings determined in 2019 were between Mr Beling and Mr and Mrs Hanna. There is no justification to support the argument that the period between the two decisions in 2017 and the decision in October 2019 can be ignored or disregarded. I do not accept it is correct to have regard to the evidence given in 2019 to assess the length of delay. For reasons which follow I do not consider the 2019 evidence is 'compelling' in the manner in which the applicant asserts.

46 The proper conclusion is the delay is significant and substantial. At paragraph 2 of the outline of submissions the applicant appears to concede this but submits that when the 'fresh and compelling' evidence is considered the delay is only 25 days. That reasoning is not persuasive and I reject it.

47 The right to apply for leave to appeal is afforded to the parties to the VCAT proceeding by s 148 of the VCAT Act and is to be exercised within 28 days after the order. The power to extend time is created by s 148(5). The submission for the applicant that evidence given in 2019 is a ground for an extension of time does not address the need for an explanation of the delay. The applicant seeks to use later events to explain the delay. The time to appeal expired in 2017. The fact evidence was given in 2019 does not afford an explanation for why the appeal was not commenced within 28 days of the decision in 2017.

48 From the submissions and the affidavit dated 16 January 2020 I understand the argument advanced by the applicant to be that upon hearing the evidence in 2019 he believes he has good grounds of appeal, namely the VCAT decision could not be made by a rational tribunal in face of the fresh and compelling evidence. The submission does not address the fundamental concern of the power to extend time which is to consider why the appeal was not commenced in time. The applicant has not explained why the appeal was not commenced in 2017, as required by the VCAT Act. Instead, the applicant has advanced grounds to explain why the application has been commenced in October 2019. They are two different propositions and the applicant has failed to address the appropriate proposition, namely the reason for the delay.

49 In the outline of submissions the applicant addresses several different topics under the heading 'Reasons for the Delay':

(a) paragraphs 3 and 4 address the applicant's impecuniosity and inability to afford legal representation or advice;

(b) paragraphs 5, 6 and 7 address the alleged oppressive conduct of the Commissioner;

(c) paragraph 8 addresses delay by VCAT listing proceedings for hearing in July 2019; and

(d) paragraph 9 addresses the fresh evidence.

50 The applicant's impecuniosity and inability to afford legal representation or advice is the subject of submissions and the affidavit dated 16 January 2020. The submissions include at both [3] and [4] the plea 'impecuniosity is a matter beyond the applicant's control' and the 'inequality of arms' should not deny him the right to have the appeal heard on the merits.' The submissions refer to the decision in Liu v Resi Ventures (No 2)[18] but that is a decision for security for costs. It is not a decision for an extension of time to appeal. The applicant has not referred to any authority in which impecuniosity of itself has supported an extension of time.

51 The affidavit dated 16 January 2020 and submissions refer to the quantum of costs claimed by the Commissioner. The costs order was made on 27 September 2017 when VCAT ordered Mr Beling to pay the Commissioner's costs in relation to charges 1 and 3, but not charges 2 and 4. It is apparent the quantum of costs was not known as at that date, or for some time thereafter. The costs claimed by the Commissioner are part of the subject matter of correspondence dated 17 May 2018 [page 234 of the exhibits filed on 16 January 2020]. The respondent submits at [18] the costs proceedings were not finalised until almost two years after the expiry of the 28 day period for seeking leave to appeal.

52 It is incorrect to submit, as the applicant does, the quantum of the costs claimed by the Commissioner is relevant as a reason for delay in bring the application for leave to appeal. The 28 day period allowed for an application for leave to appeal suggests it must be undertaken promptly. I do not accept the impecuniosity of the applicant affords grounds for the exercise of the discretion to extend time within which to seek leave to appeal.

Fresh Evidence submission and VCAT listing in 2019

53 The content of the so-called 'fresh and compelling' evidence relied on by the applicant does not provide a reason for the delay and does not justify the delay being excused. The evidence given in 2019 related to the events of 2012 and 2013. It is not the case that anything had changed. The VCAT decisions under appeal were based on the evidence presented in 2017. Mr Beling had the opportunity to call such evidence as he wished to rely on for the VCAT hearings in 2017. The presentation of different evidence in 2019 does not justify the delay. I understand the applicant relies on the evidence to say the original VCAT decisions of 2017 should be revisited but that is not the same thing as providing a justification for the delay.

54 The submission based on 'fresh evidence' fails to satisfy the principles stated in Trkulja v Dobrijevic set out above. I reject the applicant's submission that his reliance on that evidence to support his grounds of appeal constitutes a basis for the court to extend time to appeal. I understand his case to be the evidence might be relied on for a review of the VCAT decisions, but I disagree that it in any way explains the delay of over two years. It may be that the evidence was given in 2019, but it is evidence about events which occurred in 2012 and 2013. I do not accept that the listing of the VCAT proceeding in 2019 is a reason for an extension of time.

55 The cases relied on by the applicant show there is a distinction as a matter of law between 'fresh' evidence and 'new' evidence. The approach of an appeal court differs depending on the nature of the evidence: Bowden v R.[19] The difference underlies the observations made in Bowden at [35] concerning a failure to adduce relevant evidence which, had reasonable diligence been employed, would have been available at trial. In Foody v Horewood[20] the Court considered differences of approach relating to evidence of matters before trial [61] and evidence of matters after trial [62] and [66]. The question of reasonable diligence is relevant to evidence of matters before trial. Evidence of matters after trial is only rarely admissible, and generally only if it corrects an estimation or assumption common between the parties.

56 The applicant directs his submission to 'fresh evidence' at [9] and describes it as 'evidence which was not available at the time of the hearing'. However that is not the test. The events of 2012 and 2013 were the subject of the evidence. The fact certain witnesses gave evidence about those events at a hearing in 2019 does not show the evidence was not available in the sense that the evidence was 'new' or 'fresh'. Rather, it shows that evidence about the events of 2012 and 2013 was not called in the VCAT hearings in 2017 by choice, or through a failure to exercise reasonable diligence to adduce relevant evidence. To the limited extent it is possible to make an assessment of the evidence described in the applicant's submissions and affidavit dated 16 January 2020 it does not establish grounds for an exercise of the discretion to extend time to appeal.

57 There is an additional difficulty with the submissions for the applicant concerning the delay in listing VCAT proceedings in 2019 and the so-called fresh evidence. The difficulty arises from the nature of the appeal from the earlier VCAT decisions of 2017. Section 148 provides for an appeal on a question of law. I accept there are occasions when a failure to take into account relevant evidence may constitute an error of law and may provide a ground of appeal on a question of law. However that is not the case here. The submissions for the applicant identify so-called fresh evidence given in 2019 as evidence that was not available to the Tribunal. The cases relied on by the applicant where fresh evidence has allowed for a matter to be re-opened are not matters limited to an appeal on a question of law. They are cases where the fresh evidence provides a ground for the re-consideration and re-assessment of the merits of the original decision. An appeal limited to a question of law such as the appeal created by s 148 of the VCAT Act is more difficult to justify on grounds of fresh evidence.

58 For the reasons I have given, the delay by VCAT in listing the other matters does not provide a ground for this Court to extend the time within which the applicant can seek leave to appeal. The evidence given at the VCAT hearings in 2019 is arguably not fresh evidence in the sense required by the authorities. However, even if it were to be fresh evidence, I do not accept that it affords a ground for an extension of time for leave to appeal on a question of law.

59 The applicant's reliance on the conduct of the Commissioner and other persons on behalf of the Commissioner and her office does not explain the failure to commence the appeal within 28 days of the decisions of VCAT. The conduct of the Commissioner was an issue before VCAT for the first decision in 2017. There is nothing in the submissions or the affidavit dated 16 January 2020 to show the conduct of the Commissioner is a reason for the appeal not having been commenced in 2017, within the allowed time.

60 The applicant asserts this conduct has denied the applicant the opportunity to explore the merits of his case on appeal [clause 5 of the outline of submissions]. The submissions refer to events in 2019 [at 6] and to the conduct of the County Court proceedings [at 6 and 7]. Those events do not offer a reason for the delay from 2017 to 2019. Conduct after the time period has expired does not provide a reason for not acting within the time period. I agree with the submission by the respondent that allegations of conduct after commencement of this proceeding cannot be relevant to an extension of time to commence this proceeding.

61 The VCAT decision of July 2017 is included in the exhibit JLB-1 to the affidavit apparently dated 16 October 2019 at page 103 of the exhibits. At [35] of the VCAT decision a description of four matters raised by Mr Beling in the Tribunal appears, and they reflect the same matters complained of in the submissions for an extension of time. The conduct of the Commissioner and her staff, and the events of 2019 (in which the applicant has continued to complain about that conduct) do not create a reason for delay in the commencement of the appeal. One illustration appears in paragraph 6 of the outline where it is complained that a person 'simply refused to file an affidavit'. There is no obligation to file an affidavit and the failure to do so in County Court proceedings in 2019 does not afford a reason for delay since 2017.

62 In paragraph 7 of the submission the applicant says he 'sought responses or affidavits' from several persons and that their 'obstruction' prevented the applicant from raising relevant issues on appeal. The submission is advanced with reliance on principles of 'admission by conduct' as stated in Amalgamated Television Service v Marsden.[21] The absence of a response or an affidavit does not provide any reason for the applicant's delay in failing to make application for leave to appeal within 28 days of the VCAT decisions. I do not consider the conduct invites the inference contended for, or can in any way be used as an admission by conduct. I reject the submissions that any conduct by the Commissioner, or persons on her behalf, constitutes a reason for the failure to commence the appeal within time.

63 I do not consider that the conduct of the Commissioner relied on by the applicant affords any ground for the exercise of my discretion to extend time. The complaints were raised with VCAT in 2017 and dealt with by VCAT. The conduct alleged since 2017 does not create any basis for an extension of time. The applicant has continued to raise complaints about the conduct of the Commissioner but the complaints do not justify the delay, nor do they provide a basis to excuse the delay by the applicant in commencing this proceeding. This is not a case where the conduct of the respondent is shown to afford a basis for the Court to grant an extension of time to the applicant.

64 I have considered the submissions for the applicant as to the reasons for delay, including: the applicant's impecuniosity; the conduct of the Commissioner; the delay in listing other VCAT proceedings; and the fresh evidence. Taking the several matters advanced by the applicant together or separately they do not afford grounds to grant an extension of time. The applicant says: he could not afford advice or representation; that the conduct of the Commissioner prevented his access to necessary information or documents; and that the delay in listing the other proceedings resulted in 'fresh and compelling' evidence not being available until July 2019. I reject the argument that such factors either provide a reason for the delay or grounds for excusing the delay.

65 Indeed, the applicant's submissions regarding the conduct of the Commissioner and her staff, in fact add a layer of complaint and complexity in a sense of self-fulfilment. The applicant continues to write to the commissioner and others and uses the response, or failure to respond, as a grounds for complaining about conduct. Such an approach does not afford a basis for an extension of time.

66 In my view, the applicant's submissions provide an explanation for why the application for leave to appeal was filed in October 2019. However, they do not explain the delay in the sense of saying why the application was not filed in 2017. Further, the factors do not provide an explanation which justifies forgiving the significant delay.

67 The authorities show the respondent is entitled to the benefit of the orders made in 2017. To disturb those orders prompt action was required in order to seek leave to appeal. The delay in taking such steps has not been explained by the applicant.

68 The case of Jackamarra v Krakouer[22] is cited by the applicant for the statement of legal principles governing an extension of time. This case concerned a procedural extension of time, not a substantive one, in the sense that the appeal there had been filed but proper steps had not been taken by the appellant to progress the appeal to hearing. The High Court expressed the view that there is room for a more generous exercise of the power in such cases, than for the commencement of an appeal out of time.[23]

69 The applicant also refers to the Court of Appeal decision of Muto v Secretary to the Department of Planning and Community Development[24] for a statement of the legal principles. On the facts of this case a delay of almost two years had elapsed and yet an extension of time was granted. In the result the appeal was allowed on one minor aspect only and otherwise dismissed, and the appellant was ordered to pay costs. The extension of time was granted due to the recent discovery of a legal issue which cast doubt on whether the Tribunal had not been properly constituted. The Court dealt with the extension of time issue briefly at [16] noting there would be no undue prejudice and there had been some explanation for the delay in seeking leave to appeal.

70 The applicant also refers to Feiglin v Ainsworth.[25] In this case delay was explained as a result of bankruptcy proceedings and the assignment of the cause of action the subject of the proceeding. The Court observed at [31] and [32] that the conduct of Feiglin did not give rise to any material delay which could be said to be the fault of Feiglin, and which in turn required explanation to justify the delay being excused. In my view this case is to be distinguished from the application before me. Although the submission is made that the delay was due to factors beyond the control of Mr Beling (such as his lack of funds and the delay with VCAT) those matters do not in reality explain the delay, or show that the delay occurred in circumstances which should not be attributed to Mr Beling. The events have occurred, and may have been out of his control, but I consider that they are not material to the delay and do not offer a relevant explanation for the delay on Mr Beling's part.

71 The applicant submits there is little or no prejudice to the respondent if time were extended. I consider there to be substantial prejudice. The respondent is entitled to the benefit of the decisions which have been on the record since 2017. Other events have transpired on the basis of those decisions. It is not possible to reverse all of the events.

72 In my view, the prejudice to the respondent from an extension of time to appeal is made clear from the applicant's affidavits. The affidavits show the applicant now disputes the status of the file and other documents used by the respondent. For the purposes of consideration of leave to appeal, the conduct of the staff of the respondent and the identification of the documents used for the disciplinary hearings would be put in issue by the applicant. The delay in bringing the appeal means staff members of the respondent might be asked to recall events from several years ago. That difficulty poses significant prejudice to the respondent over and above the work which would have been required had the appeal been commenced within time. The respondent and her staff would be required to recreate the conduct of the disciplinary proceedings which were concluded in 2017. There is clear prejudice to the respondent and to the prospects of achieving justice between the parties. I consider there to be prejudice to the prospects of any fair hearing of the appeal due to the length of delay in commencing this proceeding.

73 There is also prejudice arising from the suggestion inherent in the applicant's position that the former clients Mr and Mrs Hanna would be necessary witnesses, or that their evidence in 2019 would be relied on for the appeal. In exhibit JLB-1 filed on 16 January 2020, at pages 40-73, there is a summary of the Commissioner's submission to VCAT concerning the fact Mr and Mrs Hanna did not give evidence in the disciplinary proceedings. This appears on page 44 at paragraph 15 of the closing submissions of the Commissioner to VCAT in March 2017.

74 The aspects mentioned were the 'medical problems, various disabilities and the stress of giving evidence about an event so long after the event when they took no notes of the oral advice at the time'. I do not need to make a finding as to the accuracy of this submission. It is sufficient for the consideration of prejudice to observe that such a submission was advanced in 2019.[26] It is well recognised that prejudice arises as a result of delay.

75 The history shows that Mr Beling was the solicitor for Mr and Mrs Hanna in relation to Federal Circuit Court proceedings from August 2012 to January 2013. The closing submission was provided in March 2016 so the time period relied on was no more than a period of three years from the time the advice was given. That period is now in excess of seven years. The prejudice to the respondent as a result of the delay in seeking to appeal from the decisions of VCAT is evident from this history. The passage of time has the consequence that there is now no prospect of a fair hearing.

76 The need for finality in litigation is also a ground for this Court to refuse to exercise the power to grant an extension of time.

77 Mr Beling develops his submissions as to the merits of the proposed grounds of appeal in paragraphs [11] to [30] of the outline of submissions filed on 16 January 2020.

78 The authorities show the prospects of success is a factor to be considered in relation to the exercise of discretion to extend time to seek leave to appeal. However the statement of principle varies from case to case. In Feiglin the issue of merits was included as follows (at [21]):

If there is a proper explanation for the delay then the interests of justice ordinarily require an extension of time be granted. That said, if the appeal would be hopeless and would clearly fail if leave were granted, then the extension would be futile and ought not be granted.

79 A similar approach appears in Advaland v Bitcon, with Derham AsJ at [41] expressing it as:

In a general [sic], an extension of time will be granted where it is in accordance with the justice of the case to do so. 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.

80 That approach is consistent with comments of members of the High Court of Australia in Jackamarra v Krakouer:[27]

The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised.

81 In this case I am not satisfied there has been a proper explanation for the delay and consider the extension of time ought to be refused. A detailed consideration of the merits is not required and it is not possible to consider the merits in any detail for the reasons stated by the High Court and the Court of Appeal. Further in this case there are numerous questions of law each supported by numerous grounds of appeal. This matter is proceeding on the separate consideration of an extension of time application. The question of leave to appeal is not presently before the Court.

82 In order to consider the submissions advanced by Mr Beling it is necessary to mention the orders of VCAT from the 2017 decisions. The order of 12 July 2017 found Mr Beling guilty on charges 1 and 3 but charges 2 and 4 were dismissed.

83 Mr Beling was found guilty on charge 1 of professional misconduct for failing to exercise due care and competence in the course of legal practice and for failing to fulfil his duties to the Hannas during the period 24 August 2012 to 30 January 2013 to exercise proper care and conduct of the proceedings in which his clients were applicants and for which work he charged a fee in excess of $50,000.

84 Mr Beling was found guilty on charge 3 of unsatisfactory professional conduct for failing during the period 24 August 2012 to 30 January 2013 to adequately advise his clients in the circumstances so as to permit his clients to give proper instructions.

85 The applicant submits a number of the proposed grounds of appeal have merit 'because of the sheer volume of evidence and submissions the Tribunal did not consider or sufficiently consider' [12] and [13]. The applicant develops his submissions as to the grounds of appeal for each ground 1 to 17. I have reviewed the submissions and considered each in detail. Several of the sections of the notice of appeal state a question of law and the grounds of appeal in terms that show no more than a re-statement of the question.

86 For example, question of law 11 is expressed in terms of whether the Tribunal erred because it failed to consider or sufficiently consider 'the misconceived allegations' the Commissioner made in a series of letters, emails and other conduct by the Commissioner. The grounds of appeal numbered 11.1 to 11.9 are formulaic statements of an answer to the question that the Tribunal has erred because it failed to consider individual matters. The grounds of appeal do no more than state the conclusion advanced by the applicant. The grounds do not advance any basis on which the merits can be assessed for the purposes of addressing the discretion as to whether to extend time to appeal.

87 The submissions for the applicant in respect of ground 11 [22] show the complaint is that the Commissioner has, in the view of the applicant, failed to observe professional standards in the legal profession. The submission advanced is the conduct of the Commissioner is such that if it had been the conduct of a practitioner then a charge of misconduct would follow. The conduct of the Commissioner is not an issue that constitutes a ground of appeal from the VCAT decisions. Therefore, on this basis, it is possible to say the proposed ground lacks merit and does not advance an arguable case.

88 My review of the merits of the proposed appeal does not satisfy me that the exercise of discretion is appropriate. Some of the authorities show that the merits of the appeal is of more significance in cases where there is a proper explanation for delay. In such cases if there is no merit, or insufficient merit the extension of time may be refused. However that is not the position here. I have determined there is no satisfactory explanation for the delay. The merits are of less significance in such a case. Nevertheless in my view the applicant has not established that there is sufficient merit in the appeal to warrant an extension of time to seek leave to appeal.

89 The submissions for the respondent deal with the merits of the proposed grounds of appeal at [23]. The respondent submits many of the matters raised are in substance factual issues or discontent with the conduct of the Commissioner. The respondent submits several of the grounds of appeal raise matters that were the subject of findings by VCAT. The respondent observes there is real difficulty in assessing whether there is an arguable case. In light of my conclusion that the delay has not been explained to justify an extension of time this difficulty is of less significance than it may have been.

90 The Court is minded to order the applicant to pay the costs of the respondent on the ordinary basis. The parties may make submissions as to the appropriate order for costs. I will hear from the respondent if she wishes to apply for an order that her costs be paid on any basis other than the ordinary basis.

1. The Court declines to extend the time in which the application for leave to appeal from VCAT orders dated 12 July 2017 and 27 September 2017 is to be lodged.

2. The Notice of Appeal filed in this proceeding on 1 October 2019 seeking leave to appeal out of time is dismissed.

3. If the parties do not agree as to the proposed orders to be made for the costs of the proceedings by 15 May 2020, written submissions should be filed and served by 29 May 2020 and the question of costs will be decided on the papers.

[1] Section 21, Oaths and Affirmations Act 2018 (Vic).

[2] Section 17, Oaths and Affirmations Act 2018 (Vic).

[3] [2015] VSCA 281, [27].

[4] [2015] VSC 235.

[5] [2013] VSCA 85; (2013) 38 VR 293.

[6] [2014] VSC 233 at [20] - [22].

[7] (1998) 195 CLR 516 at 519-24.

[8] [2014] VSC 356.

[9] [2013] VSCA 106 at [15].

[10] [2007] VSCA 79; (2007) 16 VR 563 at [119].

[11] [2013] VSC 557 at [36].

[12] [1996] HCA 25, [7]; [1996] HCA 25; (1996) 186 CLR 541, 553.

[13] [2014] VSC 356.

[14] Trkulja v Dobrijevic & Ors [2015] VSCA 281, [60].

[15] [2017] VSCA 46.

[16] [2007] VSCA 130.

[18] [2019] VSC 638.

[19] [2017] VSCA 46, [32] and [34].

[20] [2007] VSCA 130.

[21] [2002] NSWCA 419 at [78] - [88].

[22] (1998) 195 CLR 516.

[24] [2013] VSCA 85, [13].

[25] [2014] VSC 223, [20] - [22].

[26] Jackamarra v Krakouer (1998) 195 CLR 516, [29] (Gummow and Hayne JJ).

[27] (1998) 195 CLR 516 at [9].