Dodoro v Knighting & Anor [2004] VSCA 217

2. Pursuant to sub-section 93 (4)(d) of the Transport Accident Act 1986 ("the Act"), a person injured as a result of a transport accident cannot bring proceedings for common law damages unless a court (usually the County Court), upon the application of the person injured "gives leave to bring the proceedings". The grant of leave to the person by the court has traditionally been regarded by this Court as an interlocutory order on the basis that it does not finally determine the rights of the parties in the principal cause pending between them[1]; but the practice in the Court has differed in cases where the County Court has refused leave to an applicant in the exercise of its powers under s.93 (4)(d) of the Act. Generally speaking, I think it is fair to say that the Court has regarded refusals of leave to applicants claiming rights to recover damages for "serious injuries" as giving those applicants a right to appeal to this Court, although the status of such "appeals" has never, so far as I am aware, been the subject of any reasoned decision of the Court. Thus in Mobilio v. Balliotis[2], this Court (comprising five judges) treated (without deciding the issue) the County Court's refusal of leave pursuant to s.93 (4)(d) of the Act, as giving a right of appeal to the disaffected applicant.

5. Because the practices which I have described in the preceding paragraph were becoming entrenched, I have regarded it as desirable to convene a Court of five judges for the purpose of finally deciding the status of "appeals" to this Court from refusals by the County Court to grant leave to applicants pursuant to sub-section 93(4)(d) of the Act.

8. I agree with Callaway, J.A., and for the reasons which he gives, that an order refusing leave to bring common law proceedings is an interlocutory order, which requires leave to appeal to this Court; and that before such leave can be granted, the applicant must show that the order below is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would be caused if the order

below were allowed to stand[3]. I also agree with Callaway, J.A. that it is, in general, unnecessary for this Court to give other than brief reasons for refusing applications for leave to appeal.

12. I, too, do not consider that the order in the present case is attended with sufficient doubt to warrant leave to appeal, The learned judge had the opportunity of seeing and hearing the applicant; and clearly did not believe his evidence concerning the symptoms of which he complained; nor his evidence concerning his claimed incapacity for work.

20. I agree with Callaway, J.A., for the reasons he gives, that an order refusing leave to bring common law proceedings under s.93(4)(d) of the Transport Accident Act 1986 is a judgment or order in an interlocutory application and accordingly an appeal to this Court cannot be brought without leave.

23. Like Buchanan, J.A., I was at first troubled by two aspects of the reasons given by the County Court judge, first as to the judge's apparent reliance on the failure of medical witnesses to observe swelling in the applicant's left knee, and secondly as to the adequacy of the reasoning process demonstrated by the judgment.

26. I have had the advantage of reading the reasons for judgment prepared by Eames, J.A. Notwithstanding the force of what his Honour has written, upon reconsideration I have come to the view that the judge's reasons were adequate having regard to the issues raised before him. Having seen the applicant cross-examined at some length, his Honour said that he did not accept his evidence. It followed that he was entitled to give less weight to the evidence of Mr King as to the

applicant's level of incapacity, since that opinion depended at least to a considerable extent upon the accuracy of the history provided by the applicant himself. I agree with the reasons given by Buchanan, J.A. as to these issues.

35. On 1st May 1996, when he was 16, the applicant was crossing a street in Ascot Vale when a car driven by the first respondent came around a corner and struck him on his right side. He was thrown on to the bonnet of the car and fell on to the roadway. Following the accident the applicant was taken by ambulance to the emergency department of the Western Hospital. He had bruising and swelling on the right side of his forehead together with abrasions to his face. He also had pain in the left knee, a large graze on that knee, pain down the right leg, bruising to the right thigh and grazing to that knee too. An X-ray revealed a fracture of his right thumb.

38. Before the accident the applicant had arranged an apprenticeship for three years with Baker's Delight in Ascot Vale. After the accident he completed the apprenticeship and remained with that employer for about 12 months thereafter. He was then off work for a period of about three to six months before obtaining employment at a nightclub as a storeman/manager in the liquor department. He left the nightclub after eight months, was unemployed for two to three months and then began work with Baker's Delight in Glenroy as a production manager. That was similar to the role he had been performing at Baker's Delight in Ascot Vale. That employment ceased in or about September 2001, since when he has been largely reliant upon unemployment benefits. The applicant claims that the injuries he sustained in the transport accident, particularly to his left knee, prevent him from working as a baker and severely limit his employment opportunities.

41. Section 93 of the Transport Accident Act 1986 relates, among other things, to

common law proceedings in respect of injury to a person as a result of a transport accident. Sub-section (4)(d) provides that, in the circumstances which apply in this case, a person may not bring proceedings for the recovery of damages in respect of such an injury unless a court, on the application of the person, "gives leave to bring the proceedings". Sub-section (6) provides that a court must not give leave under sub-s.(4)(d) unless it is satisfied that the injury is a serious injury. The expression "serious injury" is defined in sub-s.(17) to include, among other things "(a) serious long-term impairment or loss of a body function" and "(b) permanent serious disfigurement".

45. By an originating motion filed in the County Court on 11th September 2002 the applicant sought leave, pursuant to s.93(4)(d) of the Transport Accident Act, to bring common law proceedings against the respondents. At that stage he relied on both paragraph (a) and paragraph (b) of the definition of "serious injury", but the latter claim was abandoned. The applicant's case was that he had suffered serious long-term impairment or loss of the function of his left knee, with consequent pecuniary disadvantage as well as pain and suffering.[4] The learned judge heard oral evidence from the applicant and his former general practitioner, Dr Pemberton. He also considered medical reports and other documents that were tendered but not the subject of cross-examination. His Honour refused leave by an order made on 17th June 2004. It is from that order that the applicant desires to appeal.

48. Section 74(2D) of the County Court Act 1958 provides that an appeal does not lie to the Court of Appeal from "a judgment or order of the court in an interlocutory application" except with the leave of the Court of Appeal. The words "a judgment or order in an interlocutory application" are also found in s.17A(4)(b) of the Supreme Court Act 1986, which relates to appeals to the Court of Appeal from judgments and orders of the Trial Division constituted by a judge. In both Acts those words were introduced by the Constitution (Court of Appeal) Act 1994. In Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee [5] it was decided that they have the same meaning as "an interlocutory judgment or order". I would not reconsider that decision, which has worked well in practice.[6]

51. Accordingly the settled law in Australia on final and interlocutory judgments and orders remains applicable to s.74(2D) and s.17A(4)(b). For convenience I shall hereafter refer simply to "orders".

54. An order, pursuant to s.93(4)(d) of the Transport Accident Act, granting leave to bring common law proceedings is plainly an interlocutory order. The first question we are required to decide in the present case is whether an order, pursuant to s.93(4)(d), refusing leave to bring such proceedings is also an interlocutory order. In the light of observations made by members of the Court in Cowden v. Transport Accident Commission[7] the applicant took the precaution of applying for leave to appeal from the order made on 17th June 2004. On 23rd July 2004 Buchanan, J.A. and I ordered that that application be brought on for hearing before the court that would hear the appeal if leave were granted or if leave were held to be unnecessary. The President determined that the case should be heard by a court of five judges.[8]

57. All orders are either final or interlocutory .[9] In Australia the test to determine whether an order is final or interlocutory proposed by Lord Alverstone, C.J. in Bozson v. Altrincham Urban District Council[10] has been adopted, rather than the test proposed by Lord Esher, M.R. in Salaman v. Warner.[11] The general rule is that an order is interlocutory unless, in the words of Windeyer, J. in Hall v. Nominal Defendant[12], it "finally determine[s] the rights of the parties in a principal cause pending between them". Whether it does so is determined by the legal, not the practical, effect of the order.[13]

60. Three kinds of interlocutory order are relevant for present purposes. First, because an order is interlocutory unless it finally determines the rights of the parties, a refusal of relief is interlocutory if it is theoretically possible to make a fresh application for the same relief. Accordingly, for example, an order refusing to set aside a default judgment or refusing to grant an extension of time is not a final order, because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.[14] That was also, by way of further example, the main reason given by a court of five judges in Western Australia for holding that a refusal of leave to appeal pursuant to s.38 of the Commercial Arbitration Act 1985 is interlocutory.[15] As Mathews, A.J. said in the leading judgment[16]:

"Just as leave to appeal, once granted, can always be revoked, so it will always remain open to parties to renew applications for leave, notwithstanding a previous refusal, in the event of changed circumstances. There is no reason in principle why leave to appeal under s.38(4) is in any different category."[17]

64. Secondly, an order may be interlocutory because, whether or not a fresh application might be made, it does not determine the rights of the parties in a principal cause_._ In Brincat v. R.[18] an order was made in the Supreme Court of Victoria in aid of criminal proceedings in Western Australia. In X v. Director of Public Prosecutions[19] an order was made in the Supreme Court under ss.9H and 9I of the Evidence Act 1958 for a witness to give evidence in a committal proceeding by video link from Canberra. In Hornsby v. Kaschke[20] an order was made in the Supreme Court quashing an order in the Magistrates' Court in relation to pre-trial disclosure. In Kassionis v. Magistrates' Court of Victoria[21] an order was made in the Supreme Court refusing relief in the nature of certiorari and prohibition in relation to orders and rulings made on a contested mention in the Magistrates' Court. In all those cases the order made in the Supreme Court was interlocutory because the principal cause lay elsewhere.[22]

67. Thirdly, an order striking out, or even "forever staying" or dismissing, a proceeding because it is frivolous, vexatious or an abuse of process or because it does not disclose a reasonable cause of action is interlocutory, unless the abuse of process lies in an attempt to litigate an issue which is res judicata.[23] It was decided by this Court in Little v. State of Victoria[24] that that is still the law. It was reaffirmed by the High Court in Re Luck[25], where it was held that the same is true of an order refusing leave to commence or proceed with an action because it is frivolous, vexatious or an abuse of process or does not disclose a reasonable cause of action. It is unnecessary to consider whether this third class constitutes an exception to the general rule referred to in [17].[26]

70. Mr Ruskin relied on each of those three kinds of interlocutory order to argue that an order, pursuant to s.93(4)(d), refusing leave to bring common law proceedings is an interlocutory order and that, accordingly, the applicant requires leave, pursuant to s.74(2D) of the County Court Act, to appeal from the order made on 17th June 2004. He submitted, first, that a further application could be made to the County Court, even in respect of the same injury, subject to the constraints of abuse of process[27]; secondly, that such a refusal does not determine the rights of the parties in a principal cause but only in a preliminary proceeding; and, thirdly, that there is an analogy with an order refusing leave to commence a proceeding because it does not disclose a reasonable cause of action.

73. I find it unnecessary to consider Mr Ruskin's first and third submissions, or Mr Kennan's submissions except to the extent that they bear on the question whether an order, pursuant to s.93(4)(d), refusing leave to bring common law proceedings determines the rights of the parties in a principal cause or only in a preliminary proceeding. Mr Kennan submitted that such an order is final because it completely bars a plaintiff from pursuing common law relief and that it is not preliminary to pursuing a cause of action, for there is no cause of action until one of the gateways in s.93 is passed.[28] An application under s.93(4)(d) is therefore, he contended, a principal cause in its own right.

76. In my opinion, Mr Ruskin's second submission should be accepted, so that an order refusing leave to bring common law proceedings is interlocutory and the applicant requires leave to appeal from the order made on 17th June 2004. The natural reading of s.93(4)(d) is that an application for "leave to bring" common law proceedings is not a principal cause but a preliminary step.[29] An application pursuant to s.93(4)(d) is a proceeding, but it is not a principal cause. Like an application for leave to appeal to the Trial Division or to this Court or an application for special leave to appeal to the High Court, it is no more than a preliminary application.[30] Indeed, because there is no cause of action, the application has an even more preliminary character: not only is there, as yet, no principal cause, but there is not even a cause of action.[31]

79. To adapt the language of Murray, J. in Lamac Developments Pty. Ltd. v. Devaugh Pty. Ltd.[32], an order refusing leave to bring common law proceedings is interlocutory because it is "procedural in character when regard is had to its legal effect". It is the legal effect of the order to which attention must be directed in accordance with the authorities referred to earlier in these reasons. It matters not, for the purpose of characterizing the order as final or interlocutory, that the refusal of leave to bring proceedings may be of great importance to the parties. That is simply a factor to be taken into account in deciding whether to grant leave to appeal to this Court. To that question I now turn.

82. The applicant has to show that the order below is attended with sufficient doubt to warrant its being reconsidered on appeal and that substantial injustice would be caused if it were allowed to stand.[33] Substantial injustice is not in issue, but the first requirement is. Mr Kennan submitted that the order was wrong, that it should be set aside and that the proceeding should be remitted to the County Court. Mr Ruskin submitted that the order was correct and reflected an appreciation of the evidence that was well open to the judge.

85. In determining whether to grant leave to appeal, it is the order that must, as a general rule, be attended with sufficient doubt. It is rarely enough to point to an error in the reasons if the appeal has insufficient prospects of success.[34]

88. It is the practice of this Court, in most cases, not to give other than general reasons for refusing leave to appeal under s.74(2D) or s.17A(4)(b). Three months after the establishment of the Court of Appeal it was decided, in X v. Director of Public Prosecutions[35], that the previous practice of the Full Court in that regard should continue to be applied. Brooking, J.A., with whom Charles, J.A. agreed, said[36]:

"The question then is whether leave should be given having regard to the principles developed over the years. The practice - a convenient one - has been that in general applications for leave to appeal are disposed of in Victoria without the giving of detailed reasons. I will content myself with saying that I joined in the refusal of leave to appeal because of the appellant's failure to show that the correctness of the order of Batt J. was attended with sufficient doubt to warrant its being reconsidered on appeal and his failure to show that substantial injustice would be caused to him if the order stood."

"Although the Full Court sometimes gave detailed reasons for the refusal of leave, its usual practice was not to do so. I would adopt the same practice. It is important to remember that, even where leave is refused because a decision is not attended with sufficient doubt, the Court of Appeal does not thereby affirm the decision, nor does it acquire the precedential status of a decision of this court. The reasons for that are, first, that the question is whether leave should be granted as opposed to the correctness of the decision and, secondly, that argument may be limited accordingly. Although we had the benefit of a well researched argument in the present case, I think it sufficient to say that, in my opinion, the appellant will not suffer substantial injustice if the order is allowed to stand."[38]

That practice is not affected by Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue[39], which disapproved a practice in the Trial Division of giving no reasons at all and was concerned with applications for leave to appeal under s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998. Such applications usually relate to final orders and the Tribunal is not a court.[40]

95. On occasions the Court has said more than we did in X v. Director of Public Prosecutions.[41]

Sometimes a particularly important point has been singled out. At other times there has been a brief statement of the Court's, or an individual judge's, principal reasons for refusing leave. In every case a practical judgment is required as to what is necessary, bearing in mind that the order sought to be appealed from is interlocutory.

100. I do not consider that the order in the present case is attended with sufficient doubt to warrant its reconsideration on appeal. The learned judge did not believe the applicant's evidence in relation to his left knee symptoms, the level of his incapacity or his attempts to find work. The applicant's main support in the evidence came from Mr King, an orthopaedic surgeon, and, with respect to his employment prospects, Mr Glasson of Flexi Personnel Pty. Ltd., recruitment and consulting specialists, but they were both dependent on the history the applicant had given them. For the most part the medical evidence, including two MRI scans, was not suggestive of serious injury. The applicant had registered with the Commonwealth Rehabilitation Service but had made no real effort to find work himself or to improve his prospects of doing so.

108. I have had the advantage of reading the draft reasons for judgment prepared by the President and Callaway, J.A.

111. For the reasons stated by Callaway, J.A., I agree that an order refusing leave to bring common law proceedings under s.93(4)(d) of the Transport Accident Act 1986 is a judgment or order in an interlocutory application and accordingly an appeal to this Court cannot be brought without leave.

114. I was troubled initially about two aspects of the County Court judge's reasons. While I agree with Callaway, J.A. that it should remain the general practice of this Court not to give other than general reasons for refusing leave to appeal under s.74(2D) of the County Court Act 1958 or s.17A(4)(b) of the Supreme Court Act 1986, in the circumstances of this case I think it is appropriate to deal with these two matters in a little detail.

117. My first concern was that the judge may not have expressed findings which would enable this Court to review the decision. The second was that the trial judge may have been mistaken in relying upon the failure of the medical witnesses to observe swelling of the applicant's left knee, for the swelling appeared to be associated with his work.

120. Upon further reflection I have concluded that the trial judge's reasons were adequate having regard to the issues which were raised by the evidence and that his Honour did not misuse the fact that no medical witness appears to have observed swelling of the applicant's knee.

123. The applicant's case depended principally upon his account of his symptoms, rather than upon injury visible to others. The applicant said that after the accident he "suffered pain, stiffness and clicking" in his left knee. The knee was particularly

1 painful after a day's work. He said that as a consequence he became anxious and depressed. The injury to his left knee, which would "swell up and give way", made it difficult for him to cope with his work as a baker. He left his employment at the Glenroy bakery because of family problems and his injuries, and particularly the injury to his left knee. The applicant said that he had difficulty standing for long periods or performing prolonged heavy lifting. He believed the pain in his left knee was increasing.

127. The applicant and his treating general practitioner, Dr Pemberton, gave evidence and were cross-examined. The reports of eight other medical practitioners were tendered. The doctors recounted the complaints made to them by the applicant of pain, stiffness, clicking and swelling of his left knee. They were not able to verify the existence or extent of the injury to the applicant's left knee by examination, save that they detected patello-femoral tenderness. Two MRI scans were taken of the applicant's knee. The doctor who took the first scan reported "no significant abnormality". The doctor who took the second scan detected what he described as "Subtle abnormalities ... Irregular high signal in the menisci. Possible patellar tendonitis. No other definite abnormality shown." The most pessimistic prognosis was that of Mr King, an orthopaedic surgeon, who said that the symptoms in the applicant's left knee would always make it difficult for him to do work which involved prolonged standing and particularly kneeling and squatting, and he thought that it was unlikely that the applicant would ever get back to his old job as a baker. Mr King largely based this opinion upon the account of the symptoms given to him by the applicant. Mr King could only observe mild tenderness and limitation of flexion in the left knee.

130. The trial judge did not state what he found to be the nature of the applicant's injury nor the nature and degree of incapacity caused by the injury. In a case in which there is conflicting evidence as to the nature of an injury, whether it was caused by a transport accident or the degree of incapacity produced by the injury, it will usually be necessary for the judge hearing an application under s.93 of the Act to state his conclusions based on the evidence. If he does not, an appellate court will be unable to review the decision.[42] The present case, on the other hand, did not depend upon the resolution of conflicting medical or other testimony, but rather upon whether the Court was satisfied on the balance of probabilities that the applicant's account of his symptoms and incapacity was accurate.

133. The trial judge said that he did not accept the applicant's evidence, and it followed that he did not accept Mr King's opinion of the applicant's level of incapacity, as that opinion depended upon the accuracy of the history and symptoms described by the applicant. His Honour had the advantage of observing the applicant giving evidence. He referred to the fact that none of the medical practitioners observed swelling of the applicant's left knee, the failure on many occasions of the applicant to complain to his treating doctors of pain and instability in his left knee, his failure to seek treatment to relieve those symptoms and his failure to seek work outside his vocational area. In my opinion the nature of the decision and the circumstances of the case required no more than the brief ruling given by the County Court judge.[43] I consider that the reasons given by the judge adequately disclose the basis upon which he founded his ultimate conclusion. In Kiama Constructions Pty. Ltd. v. Davey Meagher, J.A. said of the reasons given by a trial judge that they "... may be brief, but the steps in his reasoning are apparent ..."[44] In my view the same may be said of the reasons in the present case.

136. In the course his reasons the trial judge said:

"In regard to his symptoms, I think it is significant that no treating medical practitioner has observed swelling in the plaintiff's left knee although the plaintiff deposed in paragraphs 7 and 11 in his affidavit that one of his symptoms over time has been swelling .... I think it is very unlikely that if the plaintiff's knee had been swollen during any of his attendances on any of his treating or reporting medical practitioners that they would not have recorded such a significant 1 symptom."

It might be said that these statements appear to be based upon the assumption that any swelling of the applicant's knee was constant, whereas the applicant said in his affidavit that he had difficulty coping with work as a baker "because ... my left knee would swell up and give way."

141. I would not readily conclude that his Honour thought that the applicant's knee did not become swollen simply because doctors did not observe it. The trial judge said only that the fact that the knee was not swollen on the occasion of any of the medical examinations of the applicant was significant. In my opinion that circumstance was significant in that it demonstrated that swelling was not constant and did not last for a long time when it occurred, for some of the examinations took place while the applicant was employed.

144. For the foregoing reasons I concur in the disposition of the application proposed by Callaway, J.A.

149. The preliminary question whether an order which is subject to review by an appellate court ought be classified as interlocutory or final is one that is often difficult to resolve. It is no doubt helpful to the legal profession for this Court to now give clear guidance on the question as it concerns the refusal of leave to bring common law proceedings under s.93(4)(d) of the Transport Accident Act 1986. For the reasons given by Callaway J.A., I agree that such an order is interlocutory and not final, and that leave to appeal is required from the Court of Appeal under s.17A(4)(b) of the Supreme Court Act 1986.

152. In reaching that conclusion Callaway, J.A., found it unnecessary to deal with one of the arguments advanced by Mr Ruskin, counsel for the respondents. Mr Ruskin had submitted that the order of the judge refusing leave to bring common law proceedings was interlocutory because it was not final, by virtue of the fact that

a further application for leave to commence proceedings could be made to the County Court with respect to the same injury. I, too, will not deal with the merits of that argument, but it was acknowledged by Mr Ruskin that even if he was right, and that such a fresh application was possible, it would be a rare event for a further application to be made. As Mr Kennan submitted for the applicant, the practical reality is that failure to obtain leave in the County Court means that an injured person could not bring common law proceedings. In my opinion, that practical reality must be of fundamental importance when considering both the scope of the obligation imposed on a County Court judge when assessing an application for leave to bring proceedings and the extent of the reasons which the judge ought give when refusing such leave.

156. It is against the practical reality that a refusal by the judge puts an end to a putative common law claim, and on account of the difficulties which attend an assessment of credit in such a case, that I have concluded that the reasons of the judge hearing the application in the court below are deficient and that the case should be remitted for re-hearing in the County Court. In reaching that conclusion, which is a minority opinion, I appreciate that it may seem to County Court judges, who so regularly hear these applications, that I would impose an unreasonable burden upon them. As I trust will emerge in my reasons, the deficiency in the reasons in this case arises not by virtue of any lack of conscientiousness by the judge - the reasons were, in fact, more comprehensive than in most cases, and the hearing itself was conducted with scrupulous fairness - but because the matter not explained in the reasons was important to the judge's decision, and the omission can not be overlooked. Nor, in my view, would it be appropriate for this Court to presume what the missing finding would have been or to treat the significance of the matter omitted as being subsumed by an adverse finding as to the applicant's credit.

159. As other members of the Court have observed, the decision of the judge in this case turned on findings of credibility as to the existence of the symptoms which the applicant claimed and as to the level of his incapacity and his efforts to find work. In his reasons for judgment, Callaway, J.A. concludes that the main support for the applicant's claim came from the orthopaedic surgeon Mr King, but that Mr King's opinion was dependent upon the history given to him by the applicant, the two MRI scans not being suggestive of serious injury. In the reasons for judgment of the President and Buchanan, J.A., which I have had the advantage of reading, their Honours agree that the case turned on acceptance of the applicant's account of his symptoms and incapacity, and that once his account in those respects was rejected then it followed that the judge would not accept Mr King's opinion.

162. An order refusing leave to bring proceedings is very difficult to overturn on an application to the Court of Appeal for leave to appeal brought pursuant to s.93(4) of the Transport Accident Act 1986[45]. To succeed, the applicant must establish that there was specific error in the decision below or else that it was plainly wrong or wholly erroneous[46]. That task is all the more difficult where the decision is based in whole or part on findings by the judge as to credit of witnesses, the judge and not the appeal court having had the advantage of seeing and hearing the witnesses[47].

165. Given the significance of findings on credit in this case, both for the decision of the County Court judge and for the prospects of this Court granting leave to appeal, it is important, in my opinion, to keep in mind that there are many factors which may impinge on the reliability of findings as to credit in serious injury applications. Familiarity with such applications may well diminish, rather than enhance, the appreciation of judges for those dangers which attend the evaluation of the evidence of applicants.

168. A serious injury application is a hybrid proceeding. It is not a trial, yet its outcome, if leave is refused, is usually final. The practice and procedure for determining serious injury applications is governed by Order 34A and Order 40 of the County Court Rules of Procedure in Civil Proceedings 1999 and by the 2002 Consolidated Practice Note which applies to the management of the civil lists in the County Court. County Court judges must consider a large number of such cases and they must be managed efficiently and promptly. Whilst a party may give notice requiring a deponent to attend for cross-examination for many applications the bulk of evidence placed before the judge, especially medical evidence, will be contained in written reports and the authors will not give oral evidence. Order 47.06 expressly empowers a judge to give directions to limit the number of witnesses who may be called to give oral evidence and limiting the time for the examining and cross-examining of those witnesses who do give oral evidence. These case management rules promote efficiency and the reduction of costs, but the confinement of evidence may well impact adversely upon the deliberative process in which a judge engages.

171. In the present case it was only the plaintiff and his general practitioner who gave oral evidence, but a large body of material was tendered on either side. As convenient as that course is, it has its deficiencies. No complaint is made in the grounds of appeal either as to the case management which was applied to this case or concerning the range of evidence which was permitted to be called. I raise these matters only by way of background to my discussion of the difficulties which generally attend fact finding on serious injury applications.

174. In giving evidence the practice in the County Court is that the applicant adopts as his evidence in chief the affidavit or affidavits which he has filed. Thus, as in this case, very soon after he entered the witness box, and after a few preliminary questions in chief, the cross-examination of the applicant commenced. That, in itself, is not a process which ensures that a witness will settle in and reduce his nerves and anxiety before cross-examination commences. In this case the applicant left school at ninth grade, aged 15 years. He was described in a psychiatric report provided for TAC as being "of dull average intelligence at very best", and as a person whose "insight and judgment were those of an unsophisticated person"[48]. The same psychiatrist said that the applicant's most striking feature in interview was his comparative difficulty in understanding questions, and he concluded that the applicant was unable to cope with complex situations[49].

177. In this case the applicant was cross-examined by a leading Queens Counsel who suggested that he lived "a pretty easy lifestyle" with his mates in Rye, a life of beach, motor bikes and fishing. It was suggested that he was "pretty picky" about what work he was prepared to take. He was asked why he did not return to Melbourne, where, it was suggested, he would have a much better chance of obtaining work, rather than staying in "a holiday, sort of retirement place like Rye". Later, it was put to him that he was "off work in a holiday resort". The applicant was also pressed about the infrequency of his attendance on doctors, and in making complaints to them (or exhibiting signs) of knee pain or injury. It was suggested that he had declined to have an arthroscopy conducted because "you know that there's nothing wrong with you". It was put to him that his knee had nothing to do with his decision to leave a job he had held with Bakers Delight at Glenroy.

180. In response to that criticism the applicant said that he was living rent free in Rye and that if he returned to Melbourne he would have to find a job, a place to live and then pay rent. He said he would need money for a bond. He said that his case manager at CRS was trying to find work for him which involved not too much standing or lifting. He said that he did want to work and he denied the suggestion that he was not suffering the symptoms he described. As to the suggestion that pain had nothing to do with him leaving Bakers Delight he said that it did and added "you can ring my boss and tell him . . ." His answer was cut off. Before us, Mr Ruskin criticised the fact that no witnesses were called from Bakers Delight to support the applicant's assertion that the job had caused him pain, but that challenge was not made when he was being cross-examined[50]. The applicant said that he was warned by a specialist about the dangers of an arthroscopy aggravating his knee injury (and, indeed, orthopaedic surgeon, Mr Garry Grossbard, reported that he had so warned him).

183. The answers of the applicant to such cross examination, and the manner in which he gave the evidence, might well have justified a finding by the judge that his account of his symptoms and capacity for work lacked credibility. In that regard the trial judge had a great advantage over an appeal court. I do not deny the importance of credit in such a case, nor the advantage the judge had in assessing the witnesses. In many cases those advantages would be decisive upon review by an appellate court. For this applicant, however, it would be very easy, in such an unequal forensic contest, for an impression to be given which did not do the witness justice. It was essential that full allowance be made for the very significant disadvantages the witness carried with him into the witness box, before the case was decided on credibility as judged by his performance as a witness. I do not suggest that the judge misused the advantage that he had in assessing the witnesses, but it was a situation where it was possible that the subtle disadvantages that attended the assessment of credit in a serious injury application could have been overlooked. For that reason, it was essential, in my view, that the reasons for decision removed any doubt in that regard. It was not just the task of evaluating the applicant's own evidence which was rendered more difficult in a serious injury application; similar difficulties attended evaluation of the other evidence tendered on the application, and that, in turn, meant that additional care had to be taken before determining the credit of the applicant by contrasting his evidence with that tendered in medical reports from persons who did not give oral evidence.

186. The reliability of the evidence of an applicant must, of course, be judged against the totality of the evidence, and I have no doubt that the judge did conduct such an evaluation, but, once again, on a serious injury application there are significant difficulties in conducting such an evaluation which would not attend a trial. Those difficulties make the task of the judge difficult and also reduce the advantage which a judge has over the appeal court in making findings of fact.

189. It has long been recognised that in the absence of oral evidence and cross examination of deponents on such applications the task of determining disputed questions of fact can be a difficult one[51]. In this case the only oral evidence was that of the applicant and Dr Pemberton, a general practitioner. All of the other evidence was provided by way of affidavits and in exhibited reports. In many cases, the bases for opinions expressed in some of the medical reports was not addressed by those who proffered a contrary opinion in their own reports. Because they were not called as witnesses none of the authors of the reports had the benefit or opportunity of commenting on the oral evidence given by the applicant. The medical reports did not necessarily address the same information and issues; thus, the significance of any apparent disagreement between the experts was difficult to gauge. For example, some of the authors of medical reports had seen only the first MRI scan, which reported no abnormalities, and not the second, which detected subtle changes.

192. In my opinion, all of those factors, when set against the practical reality that a refusal of an application would end any prospect of suing for damages, required that the reasons of the judge very clearly demonstrate that the decision to refuse leave was soundly based. There is no ground of appeal complaining about the adequacy of the reasons for decision, but Mr Ruskin accepted that were a ground to be added to make that complaint then his client would not suffer prejudice in meeting it.

195. In Nichols v. Robinson[52] the President, with whom Phillips and Charles, JJ.A. agreed, held that the reasons of a judge refusing leave to commence proceedings would only be inadequate if they did not allow the appellate court to ascertain the reasoning upon which the decision is based or else demonstrated that justice had not been done. The other members of the Court have concluded that the reasons here were adequate. In his judgment, Buchanan, J.A., adopting the words of Meagher, J.A. in Kiama Constructions Pty Ltd v. Davey[53], says of the judge's reasons that they "may be brief, but the steps in his reasoning are apparent". I respectfully disagree, in that one important step in the reasoning process is not explained. Whilst it may be correct, as Buchanan, J.A. opines, that this was a case where the nature of the decision and the circumstances of the case required no more than a brief ruling be given by the judge, the reasons, however brief, had to explain the reasoning process on any issues which were critical to the decision and which were not merely subsumed by the finding on credit.

198. In my opinion, this is a case like Richards v. Transport Accident Commission[54], where the inadequacy of the reasons ought result in the case being remitted to the County Court for re-hearing[55]. Whilst the question of the adequacy of the reasons is not raised by a ground of appeal, the deficiency which I detect in those reasons would, in my opinion, be covered by the complaints made as to the findings of the judge under the existing grounds of appeal which were argued by Mr Kennan, in particular under grounds 1(ii), (iii) (vi) and (vii).

201. The issue on which the reasons are deficient, in my view, relates to his Honour's finding that it was "significant" that no treating doctor had observed swelling to the appellant's left knee. If it was significant, and presumably determinative of the outcome of the application, then his Honour's reasons ought to have stated why that was so. The reasons did not explain.

204. In his affidavit the plaintiff said that he continued to suffer from pain, swelling and stiffness in his left knee, together with clicking and a "giving away" sensation at times. He did not say that his knee was always swollen. In his oral evidence he said that he had swelling and stiffness on cold days and when he walked. He added the rider "sometimes", to this answer. He said that doctors had noticed swelling and when told by cross-examining counsel that "most doctors" would say they had not, he replied, "Well, when I stand up and I go, "Look at my knees" that's when you see the swelling. When you `re lying on the bed you sort of can't see but when you stand up you can see it". In answer to the suggestion that he had no wasting, no "crunching" of the joint, no swelling and a full range of movement, he said "I have swelling and I have - some days I have like clicking or yes. Just like clicking or like some days I'll - like when I used to work my knees like let go".

207. Orthopaedic surgeon, Mr Kevin King, concluded that the main residual problem the applicant had was painful traumatic chondromalacia affecting the patello-femoral joint of the left knee and he said "this will be a long term problem to him. These symptoms in the left knee will always make it difficult for him to do work which involves prolonged standing and particularly kneeling and squatting and for this reason I think it is unlikely he will ever get back to his old job as a baker. On the other hand he should be able to find alternative lighter [employment] which does not involve prolonged standing and walking and he should be able to manage this if he finds such suitable duties".

210. The judge set out, by way of narrative, extracts from many medical reports. He quoted the above passage, and others, from reports of Mr King, but, in common with his treatment of the reports of other witnesses, he made little, if any, comment on Mr King's reports. It is the absence of comment and analysis of the evidence where I see the problem.

213. The only observation made by the judge concerning the passages of the reports of Mr King that he quoted was that he recorded no history of swelling upon examination in either 2002 or 2004, when he saw the applicant. Plainly, the absence of a history from the applicant that his knee swelled, and an absence of finding of swelling was important for the judge. But Mr King did not say whether the absence of such a history or finding was of significance to him for the correctness of his opinion. The judge then recorded the findings made by Mr King upon examination for his second report, but one again made no comment in his reasons as to their significance. The findings were of a mild "but definite limitation of flexion in the left knee due to patello-femoral pain" and while there was no effusion there was crepitus and tenderness, plus mild wasting of the left quadriceps. Mr King concluded that there had been mild deterioration over the last 18 months with 20% loss of flexion in the knee.

216. The mere recitation in the judge's reasons of the findings reported by the doctors in their reports without the judge providing any commentary as to the significance of those findings for his decision does not assist in determining why the applicant's application failed. In the first place, and contrary to the opinion of other members of the Court, in my opinion the findings by Mr King are not entirely dependent on the applicant's complaints and history. The findings of definite limitation of flexion, and of crepitus and tenderness are findings of objective defects in the left knee, and the second MRI scan was not inconsistent with those findings. The judge, however, rejected Mr King's opinion of the plaintiff's level of incapacity "conditioned as it was on an accurate history provided by the plaintiff".

219. The judge acknowledged that the applicant had given a history of swelling to Dr Wise and Mr Shannon, but noted that neither had recorded signs of swelling. In 1997 the applicant gave Mr Grossbard a history of swelling and he repeated that history when he saw him next, in 2001, and then in 2002 Mr Grossbard saw him again and reported that "his symptoms do not seem to have changed". The applicant also gave a history of swelling to Dr J. Wilson in January 2004.

222. It is correct, as his Honour noted, that none of those doctors reported seeing swelling. Most significantly, his local doctor, Dr Pemberton who saw the plaintiff five times concerning the left knee between 1996 and the time of trial had neither noted a report of swelling, nor seen swelling. If the absence of signs of swelling was important then that fact ought to have been the subject of analysis[56]. Whilst two orthopaedic surgeons who had examined the applicant on behalf of TAC did not support a conclusion that he had suffered serious injury, neither expressly said that the absence of swelling was important to his conclusion. Mr Russell Miller, who saw no X-rays or MRI scans for his 1999 report[57] concluded , as his Honour noted, that there was full range of movement and that the applicant could do physical work without significant restriction. His Honour noted, too, that Mr Miller found slight retro-patellar tenderness, but that if his symptoms worsened then arthroscopy would be likely to assist. Mr Miller also said that the applicant did have an ongoing requirement of further treatment by analgesics and that if he requested arthroscopy and his knees had deteriorated then that would be appropriate.

225. Mr Michael Shannon reported for TAC on 21 January 2004. His Honour quoted extensively from that report and noted that it was unclear what MRI scan Mr Shannon was referring to in his report, but concluded it was the first scan, not the second. That being so, the doctor's finding that the scan had shown no significant pathology was not tested against the 2003 scan. Upon examination, he found no effusion, no crepitus, no wasting of the thigh, but was surprised to find slight wasting on the lower leg. He made no comment about the significance of the absence of swelling. If the absence of a finding of swelling was important to his opinion, it is surprising that he did not say so, because he recorded that the applicant expressly gave a history of swelling.

228. Orthopaedic surgeon, Mr Garry Grossbard, gave a number of reports to both TAC and the applicant's solicitors. His last report was dated 16 January 2003, and thus, he had not seen the second MRI scan, as his Honour acknowledged. In his report of 25 September 2001, which his Honour quoted, he diagnosed chondromalacia of the patella, which he said might be a precursor to degenerative change in the joint and said of surgery that it carried a fairly high failure rate and he would only recommend arthroscopy with persistence of pain. He said he discussed that with the applicant.

231. The oral evidence of Dr Pemberton was supportive of the application. He said that the applicant's presentation was consistent with post-traumatic patello-femoral disease, which condition was notoriously slow to respond to surgery. To the suggestion that the second MRI showed "not too bad a picture", he said that he certainly would not want to have that condition at the applicant's age. He said the signs of cartilage damage on the 2003 MRI suggested a very high risk of later arthritis. He said, however, that the applicant made only one complaint of swelling, in 1997, and that there had been few attendances with complaints of knee symptoms in later years. Dr Pemberton said that had he seen swelling he would certainly have reported it. He did not suggest, however, that its absence caused him to doubt the conclusion he had otherwise reached.

234. On one view, that oral and written evidence, discussed above, undoubtedly could support a conclusion that this was not a serious injury. However, there was evidence on each of the areas of challenge made against the applicant's case which could support his contentions. I have referred to only some of the material in that regard.

237. I bear in mind that County Court judges, including this judge, have much experience in such cases, and constantly see medical reports from many of the same medical practitioners. It may well be that the judge had gained knowledge over years of the significance of the absence of swelling for such a claimed injury. In my view, however, if it was an important matter for the judge, as plainly the reasons suggest was the case, then the reasons ought to have exposed its significance. The reasons ought also to have been informed by evidence of the medical practitioners, addressing the very matter, or in the absence of such evidence, by an explanation why the absence of such evidence was not important.

240. I conclude, therefore, that the reasons are deficient and the case ought to be remitted to the County Court for rehearing.

243. In their reasons the President and Callaway, J.A. both reaffirm that it is generally unnecessary for the Court of Appeal to give more than brief or general reasons for refusing leave to appeal under s.74(2D) of the County Court Act 1958 or s.17A(4)(b) of the Supreme Court Act 1986 from interlocutory orders[58]. Whilst that approach would be appropriate in disposing of many applications for leave to appeal from the refusal of leave to bring common law proceedings, there will be cases where that would be quite inappropriate. In particular, where there is, arguably, a deficiency in the reasons of the judge hearing the application below, then it would merely compound the problem caused by such a failure were this Court, in turn, to itself give no more than brief reasons when refusing leave to appeal. The inherent dangers of deciding an application in the County Court by basing the decision on a finding on credit, alone, would suggest that this Court should, in turn, be cautious about treating an adverse credit finding made below as being determinative of an application for leave to appeal, and as requiring only brief reasons in so concluding. In that respect, whilst an order rejecting leave to bring common law proceedings is interlocutory, it produces a practical finality to litigation which does not attend most interlocutory orders which the Court of Appeal is called upon to consider.

246. I am not proposing that in every case in which findings on credit will be decisive that the judge must deliver elaborate reasons. It is not the length of reasons which matters, but analysis of evidence on critical matters, so that those reading the decision can discover readily why an application failed, and what the evidence was on those issues that the judge regarded as significant for the decision. Indeed, it should not generally be necessary for a judge to set out the evidence in as much detail as was done in this case. As helpful and conscientious as that course was, it was not essential for our review. What was essential was to know what factors decided the case and why.

249. The application for leave to appeal should be granted, the appeal be allowed and the matter be remitted for re-hearing in the County Court.

[1] cf. per Windeyer, J. in Hall v. Nominal Defendant [1966] HCA 36; (1996) 117 C.L.R. 423 at 443.

[2] [1998] 3 V.R. 833.

[3] Niemann v. Electronics Industries Ltd. [1978] VicRp 44; [1978] V.R. 431, particularly at 441 per Murphy, J.; see also Energy Brix Australia Corporation Pty. Ltd. v. National Logistics Co-ordinators (Morwell) Pty. Ltd. & Ors. [2002] VSCA 113; [2002] 5 V.R. 353 at 365, per Ormiston, J.A.

[4] Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140.

[5] [1996] VSC 55; [1997] 2 V.R. 49.

[6] I do not overlook the reference to s.17A(4)(b) in Roy Morgan Research Centre Pty. Ltd. v. Commissioner of State Revenue [2001] HCA 49; (2001) 207 C.L.R. 72 at 82 [23] but, in my opinion, unless the High Court decides otherwise, Border Auto Wreckers should not be reconsidered. Even if a different view might have been taken, the Court of Appeal was specially constituted and the decision was intended to resolve the uncertainty (and, some would say, inconvenience) attendant upon the new language.

[7] [2003] VSCA 198 at [2]- [3], [5] and [19].

[8] That was partly because, as a matter of practice, where the point has been taken in the past, leave has been granted if leave be needed. The point was not decided in Mobilio v. Balliotis [1998] 3 V.R. 833 but, even if it had been, the Court as presently constituted would be able to reconsider that decision. See, for example, Re Shaw [2001] VSCA 175; (2001) 4 V.R. 103 at 108 [11].

[9] Coles v. Wood [1981] 1 N.S.W.L.R. 723 at 726D; Re Luck [2003] HCA 70; (2003) 203 A.L.R. 1 at 2 [4]. An interlocutory order may be made after a final order: see National Australia Bank Ltd. v. Maher (No. 2) [1999] VSCA 189; [1999] 3 V.R. 589 generally and, in particular, at 594 [18].

[10] [1903] 1 K.B. 547.

[11] [1891] 1 Q.B. 734.

[12] [1966] HCA 36; (1966) 117 C.L.R. 423 at 443.

[13] Licul v. Corney [1976] HCA 6; (1976) 180 C.L.R. 213; Carr v. Finance Corporation of Australia Ltd. [No. 1] [1981] HCA 20; (1981) 147 C.L.R. 246; Little v. State of Victoria [1998] 4 V.R. 596 at 597-598; Bienstein v. Bienstein [2003] HCA 7; (2003) 195 A.L.R. 225 at 230 [25]; Re Luck at 2 [4].

[14] Bienstein v. Bienstein at 230 [25] per McHugh, Kirby and Callinan, JJ. citing Carr v. Finance Corporation of Australia Ltd. [No. 1] at 248 and 256 and Hall v. Nominal Defendant at 441.

[15] Lamac Developments Pty. Ltd. v. Devaugh Pty. Ltd. [2002] WASCA 245; (2002) 27 W.A.R. 287 at 299 [32], 304 [56]-[57], 307 [70]-[72] and 317 [121]-[128].

[17] See also Simjanoski v. La Trobe University [2004] VSCA 125 at [1] and the cases there cited.

[18] Unreported, Full Court, 17th March 1995.

[19] [1995] VICSC 195; [1995] 2 V.R. 622.

[20] [1999] VSCA 153; [1999] 3 V.R. 27.

[21] [2002] VSCA 73.

[22] See also Bienstein v. Bienstein at 231 [28]. The principal cause need not be pending in a court : see, for example, VBI Properties Pty. Ltd. v. Victorian Civil and Administrative Tribunal [2003] VSCA 17, especially at [9]-[10], and Freeman v. Medical Practitioners Board of Victoria [2004] VSCA 4 at [10].

[23] Port of Melbourne Authority v. Anshun Pty. Ltd. [No. 1] (1980) 147 C.L.R. 35 at 38. If there are other exceptions, in addition to res judicata, they are likely to be narrowly confined.

[24] [1998] 4 V.R. 596.

[25] [2003] HCA 70; (2003) 203 A.L.R. 1 at 4 [9].

[26] As I said in Little v. State of Victoria at 601, whether or not it is an exception, it works well in practice. It is in the interests of justice that there should be no appeal against such an order except by leave.

[27] Compare D.A. Christie Pty. Ltd. v. Baker [1996] VicRp 89; [1996] 2 V.R. 582. As I shall not have to deal with this submission, I simply note the discussion of abuse of process in Nominal Defendant v. Manning [2000] NSWCA 80; (2000) 50 N.S.W.L.R. 139.

[28] Swannell v. Farmer [1998] VSCA 104; [1999] 1 V.R. 299 at 306 [19]- [21].

[29] Compare Lamac Developments Pty. Ltd. v. Devaugh Pty. Ltd. at 304 [56], where Murray, J. said that an order refusing leave to appeal under s.38(4) of the Commercial Arbitration Act was interlocutory because it was not such as to finally determine the rights of the parties "in a principal, rather than subsidiary, cause pending between them".

[30] Compare Muir v. R. [2004] HCA 21; (2004) 78 A.L.J.R. 780 at 782 [6].

[31] Even if an issue is being tried, as Brooking, J.A. said in Palmer Tube Mills (Aust.) Pty. Ltd. v. Semi [1998] 4 V.R. 439 at 448, that does not assist the applicant. An order made on the trial of a preliminary issue is interlocutory: see Dunstan v. Simmie & Co. Pty. Ltd. [1978] VicRp 62; [1978] V.R. 669 at 670 and the other cases cited in National Australia Bank Ltd. v. Maher (No. 2) at 594 [17].

[33] B.H.P. Petroleum Pty. Ltd. v. Oil Basins Ltd. [1985] VicRp 72; [1985] V.R. 756 at 758 and 764; X v. Director of Public Prosecutions at 723 and 726; Secretary to the Department of Premier and Cabinet v. Hulls [1999] VSCA 117; [1999] 3 V.R. 331 at 335 [8]; Energy Brix Australia Corporation Pty. Ltd. v. National Logistics Co-Ordinators (Morwell) Pty. Ltd. [2002] VSCA 113; (2002) 5 V.R. 353 at 365 [24]; Bienstein v. Bienstein at 231 [29].

[34] King v. Lintrose Nominees Pty. Ltd. [2001] VSCA 140; (2001) 4 V.R. 619 at 627 [22].

[35] [1995] VICSC 195; [1995] 2 V.R. 622.

[38] See also Brereton v. Sinclair [2000] VSCA 211; (2000) 2 V.R. 424 at 431 [24].

[39] [2001] HCA 49; (2001) 207 C.L.R. 72.

[40] See the distinction drawn by Gaudron, Gummow, Hayne and Callinan, JJ. in the Roy Morgan Research Centre case at 83 [25] and Energy Brix Australia Corporation Pty. Ltd. v. National Logistics Co-Ordinators (Morwell) Pty. Ltd. at 369 [37].

[41] See, for example, Lucas v. Public Transport Corporation Victoria [2000] VSCA 35; (2000) 1 V.R. 156 at 160 [14], King v. Lintrose Nominees Pty. Ltd. at 627 [22] and 631 [35] and Simjanoski v. La Trobe University at [5]-[7]. I have followed that course in [[] below.

42] Cf. Richards v. Transport Accident Commission [2004] VSCA 91.

[43] Whightman v. Johnston [1995] VicRp 81; [1995] 2 V.R. 637; Waribay Pty. Ltd. v.Minter Ellison [1991] VicRp 78; [1991] 2 V.R. 391 at 402 per Young, C.J. and Kaye, J.

[44] (1996) 40 N.S.W.L.R. 639 at 647.

[45] Giannakopoulos v. Melwire Pty Ltd [2000] VSCA 153, at [7]; Nichols v. Robinson [2001] VSCA 11, (2001) 33 M.V.R. 83, at 87, [14]-[15]; Cowden v. TAC & Anor. [2003] VSCA 198, at [18].

[46] Mobilio v. Balliotis [1998] 3 V.R. 833, at 835, 841-843, 853-854, 858-859, 860.

[47] Mobilio v. Balliotis, at 835, 836; Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 C.L.R. 167; Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472; see, too, Rosenberg v. Percival [2001] HCA 18; (2001) 205 C.L.R. 434, at 447-448, per McHugh, J. (Kirby, J. agreeing at 464).

[48] Dr Maxwell Gaynor, consulting psychiatrist, reporting to TAC, 28 October 2003.

[50] I do not know whether that suggestion had been made in addresses to the judge. The appeal book did not contain the addresses of counsel, and of the counsel who appeared before the Court of Appeal only junior counsel for the applicant had also appeared in the County Court. Whether or not the suggestion was made in addresses, however, it was not the subject of cross-examination of the applicant.

[51] Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129, at 133; Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436, at 445; Palmer Tube Mills (Aust) Pty Ltd v. Semi [1998] 4 V.R. 439, at 448-449.

[52] At VSCA [14]; MVR [17]; see, too, Richards v. Transport Accident Commission [2004] VSCA 91, at [3]-[4], per Buchanan, J.A. and at [50]-[53], per Eames, J.A.

[53] (1996) 40 N.S.W.L.R. 639, at 647.

[54] [2004] VSCA 91, at [3]-[4], [53].

[55] Given that mine is a minority opinion, and that the sufficiency of reasons has not been made a ground of appeal, nor this issue been argued, I have not paused to consider whether it would be open to the Court under s.74(3) of the County Court Act 1958, and be more appropriate, that the matter be remitted to the judge for further reasons to be delivered by him.

[56] We were not told whether the issue was addressed during submissions by counsel to the judge, but the relevant question, here, is whether the issue was the subject of evidence, and it was not, save very indirectly.

[57] The first MRI scan was taken on 21 June 2002 and the second on 13 August 2003.

[58] See X v. Director of Public Prosecutions [1995] VICSC 195; [1995] 2 V.R. 622, at 626-627, per Callaway, J.A.