Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70

Introduction and summary .................................................................................................

County Court proceeding - serious injury application ......................................

What is the source of the right to seek leave to appeal from the County Court? ......

Was the judge's 'ruling' a 'judgment' or 'order'?..............................................................

Conclusion ............................................................................................................................

1 On 17 March 2016, this Court determined to refuse this application for leave to appeal, for want of jurisdiction. It made an order to that effect. The Court indicated that it would deliver its reasons in support of the order it made in due course. These are those reasons.

2 The relevant issues raised by the application are two-fold: (1) What is the source of the right to bring an application for leave to appeal to the Court of Appeal from the County Court? In particular, does the right lie in s 74 of the County Court Act 1958 or does it lie in s 10(1)(c) of the Supreme Court Act 1986?[1] (2) If the former, was the 'ruling' made by the judge on 1 December 2015 a 'judgment' or 'order' within the meaning of s 74 of the County Court Act?

3 In our opinion, it is s 74 of the County Court Act which confers the right to bring an application for leave to appeal from the County Court. Section 74 permits applications for leave to appeal to the Court of Appeal only in respect of any 'judgment' or 'order' of the Court and the 'ruling' made by his Honour was neither a 'judgment' nor an 'order'. The applicant, Moorabbin Transit Pty Ltd ('Moorabbin Transit'), had no right to seek leave to appeal to this Court and this Court had no jurisdiction to deal with the application.

County Court proceeding - serious injury application

4 The application for leave to appeal arose out of a proceeding in the County Court in which the respondent, Wageeh Bekhit ('Bekhit'), sought leave to bring common law proceedings for damages in respect of an injury arising out of, or in the course of, his employment in accordance with s 134AB(16)(b) of the Accident Compensation Act 1985. A court must not give leave unless it is satisfied on the balance of probabilities that 'the injury is a serious injury'.[2] Bekhit relied upon paragraphs (a) and (c) of the definition of 'serious injury' in s 134AB(37), namely 'permanent serious impairment or loss of a body function' or 'permanent severe mental or permanent severe behavioural disturbance or disorder', respectively.

5 During the opening address, on 30 November 2015, senior counsel for Bekhit, the plaintiff, sought to argue that Bekhit suffered an injury throughout the course of his employment as a bus driver. This was later referred to by the judge as a 'course of employment' or 'system of work' injury. Counsel for Moorabbin Transit, the defendant, informed the judge that Moorabbin Transit would argue that there were separate incidents that occurred during the course of the plaintiff's employment, including an early incident in 1998, a second incident in 2004, and a third incident in 2011, the latter two being alleged in the draft statement of claim. He submitted that it would be 'inappropriate to attempt to aggregate those, not only the injuries and impairments that flow from each of those incidents but to also rely upon each of the incidents as leading to the current consequences that the plaintiff complains of'. There then followed discussion between the judge and counsel about the task that faced the Court - was the judge to undertake two analyses, the first about a system of work and the second about separate incidents? His Honour emphasised that it was necessary to resolve the approach to be adopted promptly because he recognised that if Moorabbin Transit was correct 'the cross-examination would invariably be different because you'd be quite entitled to focus upon the discrete incidents and the symptoms associated and the recovery and things of that nature'. He accepted that 'if there's evidence that would enable me to do the disentangling and I should, I will, but the question is should I?'. The judge adjourned the hearing to enable both parties to undertake research overnight in respect of the approach he should adopt.

6 On the following day (1 December 2015) senior counsel for Bekhit produced a proposed amended draft statement of claim which deleted previous references to specific incidents and relied solely upon an alleged course of employment injury. Senior counsel for Moorabbin Transit[3] indicated that she needed to obtain instructions because of the changes to the way Bekhit put his case. The judge determined to give Moorabbin Transit time for that purpose. Before the hearing was adjourned, senior counsel for Moorabbin Transit enquired of the judge as to his position about the approach he would adopt to the hearing of the serious injury application.

7 What followed was an exchange between the judge and senior counsel on the scope of the evidence Moorabbin Transit would be permitted to lead. The exchange occupies over 10 pages of transcript. Moorabbin Transit submits that the judge's 'ruling' is to be found in that part of the transcript.

8 The judge indicated that if Bekhit's system of work case was 'arguable' he would perhaps not need to consider the evidence in relation to each specific incident separately. He said:

[I]f it's arguable that the whole thing can be cast as a course of employment case then my view about it is that to suggest that I've got to look at every lifting incident about which a claim might be made in circumstances in which there is an allegation, well, I have had a sore back and this is an aggravation of it, or the evidence is to that effect I think what that does is move trial issues into application issues and there is no place for it.

So that is my view about the case.

9 The judge subsequently referred to the test in Alcoa of Australia Ltd v McKenna[4] of asking whether an allegation was 'arguable' or 'bound to fail' and appeared to consider that this was the test he should apply. He also suggested that Moorabbin Transit would bear the onus to satisfy him that the circumstances did not give rise to a course of employment injury:

[T]he defendant would have to satisfy me that the work process relied upon is such that it's a complete artificiality to describe it as a work process rather than specific incidents and I think the defendant would have the onus and and in the absence of the defendant making good that onus I would not allow evidence about it.

10 In part of the exchange with senior counsel the judge spoke in a manner that Moorabbin Transit submits foreclosed any opportunity for it to lead evidence that the test for an aggravation injury was not met:

COUNSEL: ... Your Honour can't hold the defendant out from arguing aggravation ...

HIS HONOUR: Yes I can. ... I can shut you out, absolutely I can, because I can say the course of employment, and if you want to tell me you want to run 1998 and I don't think there is a bit of evidence about it I will shut you out.

COUNSEL: But if I wanted to run 2004 and say that was a specific incident, if I wanted to run 2011 as a specific incident is Your Honour saying we're not going to be able to do that?

HIS HONOUR: If it's course of employment, that's exactly what I'm saying.

11 Further on in the transcript, the following appears:

HIS HONOUR: You see, all I'm saying is you can pick the most bizarre situation so there are a range of possibilities, that is the issue. But the end point of it is that if in fact the law recognises as it does that course of employment can generate by reason of repetitive activity an incapacity, if the plaintiff makes that allegation and the allegation is arguable in the sense of the test laid out in Alcoa and as I said, it's a pretty low threshold, then I think that the defendant is shut out from trying to put that there is an aggregation of [incidents] and that the court has to determine them separately.

COUNSEL: Is Your Honour prepared to rule that and provide reasons for that?

HIS HONOUR: I have just provided it, I have just told you exactly my reasons, this is being recorded, I'm not going to look at it again. I haven't heard the argument about it but unless you put to me that in this case it's artificial such that no court could take the view that the plaintiff has the right to maintain a course of employment case then what I would do is deal with it as course of employment, give leave as course of employment and make it quite clear the only analysis that I had undertaken was course of employment and the plaintiff would be running a course of employment case if he got leave to commence such a case, if he didn't it wouldn't make any difference. That's my ruling. It will be on transcript, I don't think I need to revise it, everyone can take that as done and I would be more than happy to have some guidance from a superior court as to whether I'm mistaken, but I don't think at this level at this time that is going to be available to the parties, but it may well be in due course ... .

12 Senior counsel asked for the matter to be stood down for a short time. On resumption, the exchange continued. Senior counsel for Moorabbin Transit submitted that the judge could not simply accept, on the basis of how the case was put by Bekhit, that the case was one of a 'course of employment' injury. She submitted that Moorabbin Transit was entitled to lead evidence, and to argue, against the proposition that Bekhit suffered a 'course on employment' injury. She said that she understood the judge to be saying that Moorabbin Transit was not entitled to do that. She sought either to be heard further on the issue or to have the judge's written reasons. The judge responded:

Written reasons, you have written reasons because there is a transcript. There it is in writing, simple as that, you have it. Unless you tell me that you want to put a position to me that the way in which the plaintiff puts his case is that it's [a] course of employment [case] is not arguable because it's not capable of being categorised as such then it falls into the category of cases which are just like the same repetitive lift over a period of time, that is a very course of employment. Bell Radiology v McGrath was a less strong course of employment case but there are a range of activities which make it clear that it's [a] course of employment [case], and unless the defendant is going to tell me this can't be characterised as being course of employment because to do so strains the descriptive nature of the work such as to make it a no-go on the basis of the test in Alcoa, then this case is going to be limited to course of employment. That's my ruling. If you want to put that position to me then you can do it at the retrial but that is the position, that it so strains it that it's artificial and inappropriate on the basis of the Alcoa test then it's course of employment, I'm not going to revise what I have said, I have said it, I have made it clear, that's the way this case will proceed.

13 There is clear authority for the two propositions that a plaintiff cannot, in a proceeding for leave under the Accident Compensation Act, impermissibly aggregate the effect of different injuries to establish serious injury,[5] and a plaintiff is only entitled to leave for an aggravation of an earlier injury if the aggravation itself satisfies the meaning of 'serious injury'[6] ('the two propositions').

14 Mr Keogh SC, who appeared for Bekhit on the application for leave to appeal, conceded the validity of the two propositions. He conceded that Moorabbin Transit ought be permitted to marshal evidence on the question of the impermissible aggregation of multiple injuries, and the question of aggravation. He argued that a proper reading of the transcript indicated that the judge was intending to permit that course but that, if there was any confusion about that, Bekhit conceded that Moorabbin Transit can lead further evidence in relation to issues raised by Lu v Mediterranean Shoes Pty Ltd and Petkovski v Galletti. He also conceded that if a proper reading of the judge's 'ruling' suggested that his Honour was intending to preclude Moorabbin Transit from either marshalling evidence on the two propositions or presenting argument with respect to them, his Honour would be wrong to do so.

15 Mr Ruskin QC, who appeared for Moorabbin Transit in this Court, accepted that ultimately in the serious injury application the judge might form the view that there was only one injury and the injury occurred over time in the course of employment, but maintained that such a decision could only be arrived at after hearing all of the evidence, including evidence on aggregation and aggravation, and by taking account of the closing submissions of the parties on those issues. Mr Keogh did not contest this.

16 Mr Keogh accepted that the standard to be applied by a judge in a proceeding for leave under the Accident Compensation Act is the balance of probabilities both at the first stage of identifying 'the injury' and at the second stage of determining the consequences of the injury. He conceded that the Alcoa standard of 'arguable' or 'bound to fail' is not the applicable test for identifying 'the injury' in a serious injury application. He accepted that the Alcoa test had no relevance to this serious injury application. He submitted that there was an unsatisfactory nature to the discussion between the judge and counsel in the County Court. Although the matter did not proceed to full argument, there is no apparent reason for doubting the correctness of the concessions made by Mr Keogh.

17 For the reasons we give below, with respect to our conclusion that the Court of Appeal had no jurisdiction to entertain Moorabbin Transit's application for leave to appeal, it is unnecessary for us to resolve which interpretation of the judge's 'ruling' is correct.

What is the source of the right to seek leave to appeal from the County Court?

18 Mr Ruskin submitted that there are two independent sources of jurisdiction for the Court of Appeal to hear and determine an application for leave to appeal. The first is s 74 of the County Court Act and the second is s 10(1)(c) of the Supreme Court Act.

19 Section 74 of the County Court Act relevantly provides:

(1) Subject to this section, any party to a civil proceeding who is dissatisfied with any judgment or order of the court constituted by a judge ... may appeal from the same to the Court of Appeal with leave of the Court of Appeal ... .

(2) An appeal by a party referred to in subsection (1) must be commenced by filing an application for leave to appeal in the Court of Appeal within 28 days after the date of judgment or order of the court being appealed.[7]

20 It is apparent that an application for leave to appeal under s 74 of the County Court Act can only be made with respect to a 'judgment' or 'order' of the County Court. To that extent, it is restrictive.

21 Section 10(1)(c) of the Supreme Court Act relevantly provides:

Subject to this Act, the Court of Appeal has jurisdiction to hear and determine -

...

(c) all appeals from the County Court constituted by a Judge of that Court.

22 Mr Ruskin submitted that s 10(1)(c) is a wide grant of jurisdiction which, unlike the grant of jurisdiction under s 74 of the County Court Act, does not depend upon there being a judgment or order of the County Court. He argued that s 10(1)(c) is not conditioned upon the type of decision made by the County Court.

23 He also referred to the regime under the Supreme Court Act governing the requirement for leave to appeal. Section 14A(1) of the Supreme Court Act relevantly provides that

any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal.

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.[8]

25 Section 14B(1) imposes a 28-day limit for applications for leave to appeal under s 14A:

An applicant for leave to appeal under section 14A must file an application for leave to appeal within 28 days from the date of the judgment, order, determination or other decision which is the subject of appeal unless the Rules otherwise provide.[9]

26 Mr Ruskin argued that the breadth of the jurisdiction conferred by s 10(1)(c) is confirmed by reference to s 14B(1), which subsection contemplates that a 'determination or other decision' may be the subject of appeal. He argued that the requirement for leave to appeal, imposed by s 14A(1), cannot be used to read down the grant of jurisdiction conferred by s 10(1)(c).

27 He also contended that Order 64 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') confirms the broad view of the Supreme Court's jurisdiction. Rule 64.01(1) provides:

In this Order, unless the context or subject matter otherwise requires -

(b) an application to set aside or vary a decision;

(c) an appeal by way of rehearing or judicial review;

and, subject to the County Court Act 1958, includes an appeal from the County Court ...[10]

decision includes judgment, order, determination, verdict, ruling, finding or declaration;

An application for leave to appeal or a notice of appeal shall -

(a) identify the decision to which the application for leave to appeal relates or the decision appealed, as the case may be.[11]

30 Mr Ruskin submitted that reading together ss 10, 14A and 14B of the Supreme Court Act (in the light of Order 64) it should be understood that the procedure for an application for leave to appeal in a civil appeal is not limited to judgments or orders but rather extends to determinations and other decisions. In other words, 'civil appeal' in s 14A(3) should be read as including appeals from determinations and other decisions (as well as appeals from judgments or orders). Unless the sections were read in this way, it was contended, it would be possible for an appeal to be brought under s 10 against a 'decision' that is not a judgment or order (s 10 being relevantly unrestricted) and yet there would be no requirement for leave to appeal under s 14A because such an appeal would not be a 'civil appeal' as defined (as s 14A is concerned with appeals from 'judgments or orders', by reason of the definition of 'civil appeal' in s 14A(3)). Mr Ruskin argued that this would create an absurdity. He submitted that it would be wrong to read into s 10(1)(c) the restriction from s 14A ('judgment or order'), thereby 'reading down' s 10; rather, the requirement for leave to appeal under s 14A(1) should be 'read up' as extending to 'civil appeals' defined so as to include appeals from determinations and other decisions (as supported by Order 64), all of which would fall under s 10(1)(c).

31 He also relied upon Northern Health v Kuipers[12] as indicating that there had been some recognition by this Court that there is a potential argument about whether ss 14A to 14D of the Supreme Court Act and s 74 of the County Court Act are mutually exclusive procedures. It was not necessary to resolve that argument in Kuipers.

32 In response, Mr Keogh submitted that it was important to distinguish between the jurisdiction the Court has to hear and determine an appeal and the right a litigant has to appeal (or to seek leave to appeal). He argued that once one appreciates the distinction between the 'jurisdiction' the Court has, and the 'right' of the litigant to commence the appeal (by means of an application for leave to appeal), it is apparent that while s 10(1)(c) confers a general jurisdiction on the Court of Appeal to hear appeals from the County Court, the right to appeal is conferred by s 74(1).

34 We consider that it would be wrong to construe s 10(1)(c) of the Supreme Court Act as providing an independent avenue of appeal from the County Court, wholly unrestricted, distinct from s 74 of the County Court Act. We do not consider that s 10(1)(c) should be read as conferring a right to appeal. If it were to be so read, this would suggest that appeals could generally be brought from any decision made by a judge of the County Court even if the decision related only, for example, to the admissibility of evidence, or, perhaps, a decision to refuse or grant an adjournment, or directions for the future conduct of a proceeding. Such unlimited consequences support the view that the broad construction of s 10(1)(c) is incorrect.

35 Furthermore, s 74 of the County Court Act would be rendered redundant if s 10(1)(c) had the force and effect for which Mr Ruskin contended, when s 74 is clearly premised on an understanding that there is not a general and unrestricted right to appeal to the Court of Appeal from any decision or determination of the County Court. The construction of s 10(1)(c) for which Mr Ruskin contended is also inconsistent with the long-standing position, as evidenced in McKenzie v Findlay,[13] that civil appeals to the Court of Appeal arise only from a 'judgment or order' of the County Court pursuant to s 74 of the County Court Act.

36 We consider that the distinction drawn by Mr Keogh between the right of a litigant to appeal and the jurisdiction of this Court to hear the appeal is a proper and well-founded distinction. The jurisdiction this Court has to hear appeals, by reason of s 10(1)(c) of the Supreme Court Act, is limited by reference to the range of decisions in respect of which a party has a right to appeal. Here, that right is conferred by s 74 of the County Court Act with the consequential restrictions it imposes, namely, that an appeal can only be brought from a 'judgment or order' of the County Court.

37 The regime imposed by ss 14A-14D functions only to govern the manner in which appeals may be brought to the Court of Appeal. It does not, and does not purport to, prescribe the range of decisions from which an appeal can be brought. This is confirmed by s 14A(3) of the Supreme Court Act which defines 'civil appeal' as an appeal 'for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal'. To determine if a party has a right to appeal it is necessary to identify whether the Supreme Court Act, or any other Act, for example, the County Court Act or the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'), confers that right to appeal, or whether the Rules provide for a right of appeal. The scope of that right, that is, the range of decisions from which an appeal can be brought, is to be determined by reference to the particular Act which confers the right. Relevantly, with respect to civil appeals from the County Court, that right is to be found in s 74 of the County Court Act and is restricted to 'judgments or orders'. By comparison, s 148 of the VCAT Act confers a right to appeal directly to the Court of Appeal only from an 'order' made by the Tribunal in the proceeding and with the further restriction that the Tribunal was constituted, for the purpose of making the order, by the President or a Vice President of the Tribunal, with or without others. In addition, the right to appeal is subject to the restriction that the appeal is limited to a question of law.

38 Furthermore, as observed in Kuipers, it is as yet undecided whether it is necessary for appeals brought under s 74 of the County Court Act to satisfy the requirements of ss 14A-14D (including the time-limits imposed by s 14B(1) and the test for a grant of leave as specified in s 14C)[14] or whether appeals from judgments or orders of the County Court, brought under s 74 of the County Court Act, need only satisfy the requirements of that section (including the time-limit as specified in s 74(2) and the traditional test for a grant of leave as set out in Niemann v Electronic Industries Ltd).[15] This issue was left unresolved in Kuipers. It is unnecessary to resolve it here. Suffice it to say that it is impermissible to seek to expand the range of matters from which an appeal can be brought by reference to the particular requirements (or the particular test) governing the grant of leave to appeal.

39 In light of our conclusion that civil appeals to the Court of Appeal can only be brought under s 74 of the County Court Act, we turn to the question of whether the impugned 'ruling' of the judge satisfied the requirements of being a 'judgment' or 'order' of the County Court.

Was the judge's 'ruling' a 'judgment' or 'order'?

40 The words 'judgment' and 'order' in this context have received a restrictive interpretation by this Court. In McKenzie v Findlay[16] the Full Court of the Supreme Court (Winneke CJ, Pape and Adam JJ) held that a ruling of a judge of the County Court at the close of the plaintiff's case rejecting a submission that there was no case to answer was not a 'judgment or order' within s 74 of the County Court Act and that therefore no appeal lay to the Full Court from the ruling. The Court held that while the meaning of the words 'judgment' or 'order' may be flexible enough in another context to refer to the decisions of a judge made in the course of trial, within the context of s 74

they connote at the least a judicial act which affects the rights of the parties to an action or matter - a judicial act which purports to, or is capable of, disposing of such rights finally for the purpose of the relevant proceedings.[17]

41 The Full Court was reinforced in its view by the terms of s 73(1) of the County Court Act which, as it stood then, provided:

Every judgment or order made by the court or a judge, except as in this Act provided, shall be final and conclusive between the parties.

42 The Full Court held that the judge's refusal at the conclusion of the plaintiff's case to enter judgment for the defendants (on the basis that at that stage of the trial he rejected the defences of res judicata and issue estoppel)[18] 'was in no sense a final determination of any rights in suit in the action' because the ruling 'did not bind him in deciding at the conclusion of the trial'.[19] He remained free to enter judgment for the defendants at the end of the trial and thereby depart from his initial ruling. As the Court said:[20]

It was clearly open to the learned judge notwithstanding this refusal at the conclusion of the [plaintiff's] case to have pronounced judgment in favour of the [defendants] at the conclusion of the trial. ... By no rule of law was he bound to adhere to his previous ruling when finally pronouncing judgment in the action. ... [T]here was no reason why, when the time came for him to pronounce judgment in the action, he should not upon further consideration (perhaps in the light of further authorities coming to his notice) depart, if he thought fit, from the views of the law expressed by him in his previous ruling. We see no difference in principle between such a ruling as the present in the course of a trial and a ruling given in the course of a trial that certain evidence is inadmissible. There is no reason in principle or authority why in the subsequent course of a trial a judge should not reverse such a ruling if he thinks it was incorrect, and decide to admit evidence which he had previously rejected.

[T]he meaning of the word 'order' in s 74 of the County Court Act 1958 ... does not embrace an incidental ruling by a judge in the course of a trial not affecting the substantive rights in suit of the parties in the action before him.

44 In light of the submissions of Moorabbin Transit, described above, it is also noteworthy that at the time the Full Court delivered judgment in McKenzie v Findlay, in 1965, the then Supreme Court Act 1958 included an equivalent of s 10(1)(c), namely, s 34(1)(c) which relevantly provided:

The Full Court shall hear and determine -

...

(c) all appeals from the County Court.

45 The Full Court in McKenzie v Findlay made no mention of s 34(1)(c) of the Supreme Court Act 1958 yet it concluded, on the basis that 'judgment or order' was to be read in the restrictive fashion adopted by the Court, that '[i]n our opinion, this Court has no jurisdiction to entertain this appeal'.[22] In other words, given that McKenzie had no right to appeal to the Full Court, the Full Court had no jurisdiction to hear the appeal. This suggests that the Court did not consider that s 34(1)(c) conferred an independent source of jurisdiction upon the Full Court to entertain appeals from the County Court. This further confirms the view we have expressed above.

46 McKenzie v Findlay was applied by the Appeal Division of this Court in National Australia Bank Ltd v Russell[23] (Young CJ, Kaye and Murphy JJ) to dismiss as incompetent a purported appeal from a decision of the Credit Tribunal. The decision was a preliminary determination that 'crops' were capable of falling within the description 'farm machinery'. The Court held that although that decision was insupportable[24] it was not appellable as it did not finally dispose of the parties' rights and liabilities.[25]

47 It is also noteworthy that the conclusion that the appeal was incompetent was arrived at by the Appeal Division, in 1990, despite the Supreme Court Act 1986 containing an equivalent of the current s 10(1)(c), namely, s 11(1)(c) which relevantly provided:

The Full Court must hear and determine -

...

(c) all appeals from the County Court constituted by a Judge.[26]

48 This again confirms that s 10(1)(c) does not provide an independent and unrestricted avenue of appeal.

49 Moorabbin Transit submitted that the judge in substance delivered judgment or made an order on a preliminary question as to whether the employer bore an onus of proof to show that the worker had not suffered injury over the course of his employment. It also submitted that the judge had determined that the test in Alcoa would apply. It submitted that the 'technical absence' of an order or judgment giving expression to his Honour's determination should not function as an impediment to the entertaining of an appeal, there being no 'bright line' between judgments and orders, and incidental rulings.[27] The 'ruling' of the judge was argued to determine the onus and the scope of the inquiry on the main issue in the case with substantive consequences, most particularly the requirement for Moorabbin Transit to show that Bekhit's course of employment contention is absolutely hopeless or bound to fail.

50 In our view, we do not consider that the judge has, either in terms or in substance, finally disposed of the rights and liabilities of the parties. We consider that the circumstances here are somewhat analogous to those which prevailed in McKenzie v Findlay. Irrespective of whether the judge here intended at the early stage of the hearing to adopt an approach of excluding evidence or argument in respect of the two propositions,[28] the indication or 'ruling' the judge gave was in no sense a final determination of any rights in suit in the proceeding. This is so because the 'ruling' he gave did not bind him and he was free to depart from the views he expressed if he thought fit. The 'ruling' on the onus and scope of the inquiry that he may have appeared to adopt was, and is, clearly reversible. It is the lack of finality in the observations made by the judge that preclude them from acquiring the status of a 'judgment or order'.

51 We consider that, as adverted to in McKenzie v Findlay, the circumstances are similar to those where a judge declares certain evidence to be inadmissible but is then able to reverse such a ruling if he or she later considers it to be incorrect, and to decide to admit evidence that had previously been rejected. Here, the 'ruling' the judge gave did not bind him with respect to the approach he may ultimately adopt on the scope of the evidence to be led for the purpose of identifying 'the injury'. Nor did it bind the judge with respect to the test to be met by the parties or the onus to be applied. It did not bind the judge with respect to the orders he might finally pronounce. It was no more than an incidental 'ruling' in the course of the proceeding that can be corrected by the judge in the light of his further understanding of all the circumstances of the case and in the light of the applicable authorities.

52 For these reasons, we have concluded that the judge's 'ruling' does not amount to a 'judgment' or 'order' of the County Court from which an application for leave to appeal can be properly brought. The application for leave to appeal was incompetent. This Court had no jurisdiction to hear the application for leave to appeal.

[1] See [19] and [21] below.

[2] Accident Compensation Act 1985 s 134AB(19)(a).

[3] Moorabbin Transit was represented by senior counsel on 1 December 2015.

[4] [2003] VSCA 182; (2003) 8 VR 452 ('Alcoa').

[5] Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; (2000) 1 VR 511.

[6] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436. Although the Court in that case was concerned with an application for leave under s 93 of the Transport Accident Act 1986, the test is also applicable to leave applications under the Accident Compensation Act: AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309.

[12] [2015] VSCA 172 ('Kuipers') [6]-[16].

[13] [1966] VicRp 1; [1966] VR 3. See further [40]-[45] below.

[14] See Kennedy v Shire of Campaspe [2015] VSCA 47 [12].

[15] [1978] VicRp 44; [1978] VR 431.

[16] [1966] VicRp 1; [1966] VR 3.

[23] [1990] VicRp 82; [1990] VR 929.

[24] Ibid 935, where the Appeal Division said: 'The clearest of words would be necessary to enable the court to find an intention to prescribe "crops" as "farm machinery" but no such intention can be found in the Credit Act simply by referring to the definition of "goods". That definition is not a prescription within para (b) of the definition of "farm machinery".'

[25] See also Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268.

[26] The introduction of the Appeal Division in the Supreme Court of Victoria commenced on 31 July 1989 as part of the re-organisation of the Court's sittings and business following a decision of the Council of Judges in February of that year. The judges allocated to the Appeal Division, being initially six and later seven puisne judges together with the Chief Justice, were selected by the Chief Justice. Full Courts, constituted by members of the Division, continued to hear all civil and criminal appeals.

[27] R v Bozatsis (1997) 97 A Crim R 296.

[28] See [13] above.