Esso Australia Pty Ltd v Robertson [2004] VSCA 79

"Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment".

Orders under Part 4 of the Sentencing Act are, it is submitted by the respondent, "made on or in relation to the trial" of a person on presentment, at least in circumstances like the present, and so leave to appeal should have been sought under s.567 of the Crimes Act. According to the respondent's outline, the present application was therefore incompetent.

13. It seems to me that either way there are difficulties with the argument. The respondent's argument, although attractive, falls into difficulty when consideration is given to s.568(4) of the Crimes Act, providing that on appeal against sentence this Court may "quash the sentence" passed at trial and "make such other order warranted in law (whether more or less severe) in substitution". Whether or not those words would be apt in the case of an appeal against an order for compensation against a person convicted on presentment, there must be some doubt whether they are apt when the appeal is against an order granting an extension of time within which to make a claim for compensation. Moreover, while the provisions of the Crimes Act might be apt in the case of an appeal by a person convicted on presentment who has suffered an order for compensation under Part 4 of the Sentencing Act, what of an appeal by the victim, dissatisfied by the refusal of an award? An appeal by the victim does not fit easily, if at all, within Part VI of the Crimes Act. And what of the interest of the Crown? Has the Crown, as the prosecuting authority, no interest in a dispute over compensation under Part 4 of the Sentencing Act? There is the added consideration, which might be relevant, that the word "sentence" was extended to include orders under Parts 3, 4 and 5 of the Sentencing Act before, not after, Part 4 was amended to include sections such as 85B and 85D.

16. Nevertheless, there is much force in the view expressed by the trial judge that the compensation provided for by Part 4 of the Sentencing Act is indeed an incident of the criminal proceeding. It scarcely seems appropriate for two judges on an application such as this to pass upon the rights and wrongs of the competing arguments. The question is a novel one; I believe it has not yet been considered by this Court. It is a problem, moreover, founded in the particular legislative provisions in Victoria.

19. When the matter was called on for hearing this morning, Mr Curtain, who appeared for the applicant, said that he was persuaded by the outline of submissions of the respondent that the matter was appropriately dealt with on the criminal side rather than the civil side but, as will be apparent, this is not a view that I necessarily share at this stage. What can be said, however, is that, if the order made in the Trial Division on 19 March 2004 is subject to appeal as an appeal against "sentence" within s.567 of the Crimes Act, the applicant needs leave to appeal by force of that Act. The applicant might also need an extension of time within which to seek that leave, any such application being due within 14 days after the making of the order. No such application has yet been made otherwise than by the summons filed on 2 April which is headed in the Civil Division

22. If the order made on 19 March is not susceptible of appeal under s.567 of the Crimes Act, I should have thought that it probably does ground an appeal under s.17 of the Supreme Court Act, an appeal on the civil side. If so, leave to appeal is again needed, this time because the order made on 19 March is plainly interlocutory: see s.17A(4)(b) of the Supreme Court Act. It is obviously on this basis that the summons of 2 April was filed and the application was within time: see Rule 64.03.

25. Although much has been made in the outlines of argument of the difference between the two appeals, the one under s.567 and the other under s.17, it seems to me that the argument is premature. The summons itself simply seeks leave to appeal; it was an application made within 14 days of the order under appeal and so was within time, whatever the nature of the appeal. The only difficulty facing the applicant is that the summons is headed in the Civil Division and is in a form appropriate to an application under Order 65 of Chapter I, rather than an application for leave to appeal against sentence under Order 2 of Chapter VI. But that is only a matter of form and these days we are less obsessed with forms than perhaps was so 100 years ago. In other words, application having been made in timely fashion, no matter the nature of the appeal, I really see no reason why this Court should not entertain the application, leaving it to the Court which determines any appeal to decide whether the application was properly brought under Order 65 of Chapter I or should be taken to have been brought under Order 2 of Chapter VI. And when this was proposed during argument, Mr Dreyfus said that he was content that the matter should proceed in that fashion, as an application for leave to appeal, irrespective of the nature of the appeal.

28. Thus we have before us either, as the document itself suggests, an application under s.17A of the Supreme Court Act for leave to appeal against an interlocutory order or, alternatively, if the respondent is right, an application under s.567 of the Crimes Act for leave to appeal against sentence. Either way, the question arises whether it is appropriate to grant such leave.

31. If the application is considered as an appeal against an interlocutory order, I would not be disposed to grant leave to appeal at this stage. I see no injustice in allowing the matter to proceed to trial and the assessment of compensation, if any. After all, all that has happened so far is that the time within which to apply for compensation has been extended and any appeal at this stage is strongly opposed by the applicant for compensation, Mr Dreyfus contending not only that there would be no injustice in allowing the extension of time to stand, but also that the order made below is not attended by sufficient doubt to warrant appellate intervention.

34. Both sides addressed these two points in their outlines and we are grateful to them for their assistance in that regard. At the end of day, I think there is much force in Mr Dreyfus' submission that the order below is not attended by doubt, although I express no final view. Suffice it to say that, in my opinion, it is not attended by sufficient doubt to warrant appellate intervention, despite the applicant's argument that an appeal at this stage could save the expense of what might turn out to be an unnecessary trial.

37. If the application is considered as one seeking leave to appeal against "sentence", it cannot be irrelevant that in this case the "sentence", as defined by s.566, is but an order extending the time under s.85D. It is not yet an order awarding compensation. In those circumstances, the application is, I think, premature. For the most part the appeal against sentence which is envisaged by s.567 of the Crimes Act is an appeal against sentence once passed and arguably that section does not envisage an appeal against an interlocutory order on the path towards final "sentencing". That seems to me good reason for refusing leave to appeal at this stage against the order extending time, even if that order is, by dint of the statute, within the word "sentence".

40. Accordingly, by whatever route, I would refuse leave to appeal. I would not for the moment determine whether the application is properly made on the civil side or on the criminal side. There will be time enough to consider that if and when compensation is assessed in favour of Mr Robertson and any appeal is then brought. However, Mr Robertson should be aware that, if compensation were to be assessed in his favour and if Esso Australia Pty Ltd then appealed against the order for compensation and argued that no order for compensation could properly have been made because the extension of time was itself not properly granted, then if the appeal succeeded the award of compensation might be lost to Mr Robertson.

43. On behalf of Mr Robertson, Mr Dreyfus, as his counsel, accepted that an appeal at the end of day against an award of compensation could open up the correctness of the order made extending time, and hence the apprehension that I have just expressed. If the award of compensation is first made and then it were to be lost on the ground that the order for an extension of time was not properly made, no doubt that would occasion Mr Robertson much disappointment. But that risk seems to be the necessary corollary of the stand taken on his behalf today, opposing the leave to appeal which is sought.

46. 15 Fortified, however, by his opposition to the application, I am clear now, after hearing argument, that leave to appeal should be refused.

54. The question whether leave should be granted or refused is not one I have found easy but in the end I am not persuaded that it should be granted.

57. I would add that the concession by Mr Dreyfus referred to towards the conclusion of the presiding judge's reasons, with which reasons I agree, seems to me correct, because the order for extension would, on the hypothesis being considered, have affected the final result within the principle enunciated by members of the High Court in Gerlach v. Clifton Bricks Pty Ltd[1].

62. Does this meet the case, gentlemen? I would propose that as a preface to the order dismissing the application, it be recited that the parties are agreed that an appeal against an order for compensation made under s.85B in favour of the claimant could properly include a ground that the order made on 19 March 2004 was erroneous?

72. That's satisfactory except that probably the word "properly" is unnecessary.

82. Subject, then, to the "Other Matters" containing the recital I have mentioned, the Court orders that the application be dismissed with costs.

[1] [2002] HCA 22; (2002) 209 C.L.R. 478 at 483.