Kennedy v Shire of Campaspe [2015] VSCA 47

1 The applicant tripped on the lip of a paver while walking along a street. She sued the Shire of Campaspe. The trial judge held that although the applicant may well have had an arguable case based upon negligence, the operation of the Road Management Act 2004 prevented her from succeeding.[1] The applicant seeks leave to appeal from that judgment.[2]

2 Leave is necessary because of the introduction in November 2014 of a new appeal regime. Under the old system, the applicant would not have required leave and would have been entitled to appeal as of right.[3] In this regard, it was principally only appeals from interlocutory orders that required leave and leave would be granted if the decision was attended with sufficient doubt to justify the grant of leave, and substantial injustice would flow if the decision was not reversed.[4]

3 The new civil appeals regime requires that leave to appeal be obtained in almost all cases regardless of whether the decision is final or interlocutory. Section 14A of the Supreme Court Act 1986 provides:

(1) Subject to subsection (2), any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.

(2) Leave to appeal is not required -

(a) for an appeal from a refusal to grant habeas corpus; or

(b) for an appeal under the Serious Sex Offenders (Detention and Supervision) Act 2009; or

(c) if the Rules provide that leave to appeal is not required, whether in any particular class of application or proceeding or generally.

(3) For the purposes of this section, civil appeal means an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal.

4 Under the new regime, the concept of an appeal having a real prospect of success is introduced. Section 14C of the Supreme Court Act provides:

The Court of Appeal may grant an application for leave to appeal under section 14A only if it is satisfied that the appeal has a real prospect of success.

5 The use of the permissive 'may' suggests that even if satisfied that the appeal has a real prospect of success, the Court may nevertheless refuse to grant leave in the exercise of its discretion. In making the second reading speech for the bill introducing the new appeal regime, the then Attorney-General stated that the reforms were to 'modernise and simplify appeal processes and improve the flexibility of courts ... to finalise unmeritorious cases.'[5]

6 The analogous phrase 'no real prospect of success' appears in s 63 of the Civil Procedure Act 2010. That section concerns when a court may give summary judgment and was considered by this Court in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[6] Having reviewed the legislative history and authorities concerning comparable provisions in the United Kingdom, Queensland and at a federal level, Warren CJ and Nettle JA (as his Honour then was) stated:

... the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.[7]

... it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried.[8]

8 The 'real' rather than 'fanciful' formulation has also been applied in respect of Rule 52.3(6) of the Civil Procedure Rules 1998 (UK).[9] That rule also concerns leave to appeal and currently provides:

Permission to appeal may be given only where -

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.[10]

9 The alternative basis in (b) for granting leave in the United Kingdom has not been replicated in this State.

10 The test for leave to appeal to this Court is also in contrast to the specified legislative criteria for granting special leave to appeal to the High Court. In considering whether to grant special leave, the High Court may have regard to any matters that it considers relevant and must have regard to whether a question of law of public importance is involved or in respect of which the High Court is required to resolve differences of opinion as to the state of the law and whether the interests of the administration of justice require consideration by the High Court.

11 In our view, if an appeal does not have a real prospect of success, the Court cannot grant leave even if, for example, there is some other compelling reason why the appeal should be heard or a matter of public importance is at issue.

12 Attention must be focussed on the words 'real prospect of success' used by the statute. Bearing that in mind, those words should be construed consistently with this Court's interpretation of s 63 of the Civil Procedure Act. That is, the Court may only grant leave where the appeal has a 'real' as opposed to a 'fanciful' chance of success. This also accords with the interpretation given to the same words in the UK Civil Procedure Rules relating to appeals.

13 Naturally, there will be some cases where the prospects of the appeal are strong, others where the prospects are weaker but it cannot be said that they are fanciful, and others where the prospects are fanciful. For the purposes of leave, it is only necessary to distinguish between those whose prospects are real and those whose prospects are fanciful. There is no bright line that divides the two. Nor is it useful to devise other categories using terminology deployed in other situations.

14 There are, of course, some different considerations that may play a part in the exercise of the Court's residual discretion to refuse leave, even where the appeal has a real prospect of success. For example (and without limiting the possibilities), there may be cases where even though the prospects of the appeal are real, no substantial injustice will be done if the decision stands. This may be particularly so when the appeal is from an order as to practice and procedure. No such considerations are at play in this case.

15 In our view, the applicant should have leave to appeal.

16 As we have said, the trial judge considered that the plaintiff had a case in negligence which was arguable or better,[11] but he found that the 'unfortunate plaintiff'[12] failed because of statutory defences under the Road Management Act.

17 The trial judge was referred to no applicable Victorian authorities on the relevant statutory provisions and there are none cited in the respective written cases. The trial judge repeatedly referred to drafting problems, lack of clarity and difficulty in construing those provisions.[13] The judge applied a New South Wales Court of Appeal decision[14] which the applicant argued was inapplicable as the legislation in New South Wales is different.

18 Further, the case raised difficult issues as to the application of Jones v Dunkel[15] and as to the meaning and application of the term 'actual knowledge.'

19 This applicant should be given the opportunity to obtain an appellate determination of these issues. The appeal has a prospect of success which is real in the sense that it is not fanciful. She should have leave to appeal on all the proposed grounds.

[1] Kennedy v Shire of Campaspe [2014] VCC 1833 [134].

[2] County Court Act 1958 s 74(1).

[3] County Court Act 1958 s 74(1) prior to its amendment by Courts Legislation Miscellaneous Amendments Act 2014 s 11(1) to insert a requirement for leave from this Court to appeal.

[4] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 441-2.

[5] Second reading speech, Courts Legislation Miscellaneous Amendments Bill 2014, 25 June 2014, 2276.

[6] [2013] VSCA 158.

[9] Tanfern Ltd v Cameron-MacDonald [2000] 2 All ER 801, 807 [21] (Brooke LJ, Lord Woolf MR and Peter Gibson LJ agreeing).

[10] At the time that Tanfern Ltd v Cameron-MacDonald [2000] 2 All ER 801 was decided, the words 'will only be given' appeared in the introductory wording of r 52.3(6) rather than the words 'may be given only' as they now appear.

[11] [2014] VCC 1833, [90]-[91].

[13] Ibid [2], [5], [39], [77], [79] (twice), [105], [124], [131].

[14] North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240.

[15] [2014] VCC 1833 [122]-[123].