Plaintiff v Defendant

(1) A proceeding under this order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.

(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

2 The relevant dates in the present case are as follows. The medical panel's opinion was certified on 4 December 2006. Sixty days thereafter would fall on 2 February 2007. The medical panel's opinion was received by the plaintiff's representatives on 17 January 2007. Sixty days thereafter would fall on 19 March 2007. On the date of receipt of the certificate, the plaintiff's solicitors requested reasons for the opinion. Reasons were received on 23 January 2007, and sixty days thereafter falls on 26 March 2007. The present proceeding was issued on 23 March 2007, and the sequence of events I have described gives rise to the threshold question of the need to extend time.

3 The amended originating motion filed in Court seeks relief, firstly, upon grounds of what is said to constitute jurisdictional error by failing to take into account considerations which the panel was bound in law to consider. It is apparent from the terms of this complaint that it is founded upon inferences which the plaintiff would contend can be drawn from the terms of the reasons delivered on 23 January 2007.

4 The further ground upon which relief is sought, is the alleged failure by the panel to provide adequate reasons for opinions. Self evidently, this complaint is wholly founded upon the reasons received on 23 January 2007.

5 Mr Horner has submitted on behalf of the plaintiff that insofar as is necessary, I should be satisfied that special circumstances exist by reason of a combination of the following circumstances. Firstly, the panel's opinion did not enable the plaintiff's legal advisers to form a view as to whether there was a basis for judicial review with respect to it. It was only when reasons were received that this opinion could be formed. Secondly, it is submitted that the plaintiff has an arguable case. Thirdly, it is submitted that the prejudice flowing from a failure to have the opportunity to seek judicial review would be very significant. Fourthly, emphasis is placed on the length of delay involved and in particular the fact that if the relevant date is taken to be that of the receipt of the panel's opinion, the proceedings are out by five days only, and that if it is taken to be the date of receipt of the reasons, the proceeding is in fact within time. Fifthly, it is submitted that the failure to institute the proceeding more expeditiously is explained by the fact that Counsel retained in the matter was seriously ill with pneumonia.

6 It is submitted on behalf of the fifth defendant, who it appears is the true contradictor in the matter, that the certificate of the panel is dated 4 December 2006, and this proceeding was, in strictness, required to be issued by 5 February 2007. It is further submitted, that the sequence of events which has occurred does not have any special quality about it, and in particular, delay by legal representatives should not be regarded as a proper basis for a conclusion that the circumstances are special.

7 In my view, insofar as is necessary, leave should be given to extend the time fixed by rule 56.02(1). I say "insofar as is necessary" because the first rule provides that the proceeding be commenced within 60 days after the date when the grounds for the grant of relief or remedy claim first arose. It seems to me that as a matter of fact, the grounds upon which the plaintiff relies could not be said to arise until receipt of the reasons. It further seems to me that commencement within 60 days of the giving of such grounds is the core requirement of rule 56.02.

8 Having said this, I accept that sub-rule (2) is problematic from the plaintiff's point of view. As I have said, it states that:

Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.

There may be room for doubt as to whether the Board's opinion should be regarded as ejusdem generis with "any judgment, order, conviction, determination or proceeding" but I do not find it strictly necessary to decide this point and will assume for present purposes that it is to be so regarded.

9 The problem which the sub-rule implicitly raises, is one which has arisen from time to time with respect to orders of a Court, in circumstances where an order is pronounced but written reasons do not issue for some time thereafter. It seems to me that, at least in cases where reasons are taken to be necessary to the completion of the Courts' function, it is difficult to say that the Courts' function is completed on the date that it is pronounced without reasons.[1]

10 This general proposition, however, may not assist in the case of an administrative decision where it is clear that a valid opinion may be expressed without the giving of reasons. In this sense, there is some real force in Mr Fleming's submission that the sequence of events that has occurred is not unusual and, further, that there is a need for leave in the present case.

11 Nevertheless if leave is required, it seems to me that the basic principle stated in sub-rule (1) should be taken to inform the notion of special circumstances referred to in sub-rule (3), and that circumstances in which reasons forming the basis upon which relief is claimed were not received until a date within 60 days prior to the commencement of the proceeding are relatively easily characterisable as special in terms of the rule, because they demonstrate compliance with what I take to be the underlying philosophy of the rule.

12 It is also relevant that there is at least prima facie an arguable case and that the plaintiff will, I accept, suffer potentially significant prejudice if the Court does not exercise its discretion. It is further relevant that the length of delay in absolute terms, both from the date of the receipt of the original certificate by the plaintiff's legal advisers and indeed from the original making of the certificate having regard to the intervening Christmas period, was not substantial. I place no weight upon the fact that Counsel for the plaintiff was ill during the period during which, as he said, the clock was ticking. It seems to me that it is unnecessary to place any weight upon that factor, save to note that it does provide some explanation for the delay. I do not regard it as giving rise to special circumstances in itself, for the reasons identified by Balmford J in the case of Prencipe v Nisselle.[2]

13 Nevertheless, for the reasons I have stated, I believe that leave should be granted and the Court should extend the time fixed by paragraph (1) of rule 56.02.

14 Having heard Mr Horner elaborate the basis of the plaintiff's case, I am also of the view that the originating motion should be further amended. Firstly, the motion as amended pursuant to the order of Master Kings made on 8 May 2007 should have inserted in it the date 17 January 2007 at the commencement of paragraph 8. Secondly, paragraph 11 should be amended at its outset to read:

The medical panel fell into jurisdictional error and/or committed error of law on the face of the record by failing to take into account considerations it was bound in law to consider when determining its opinion.

In my view, this amendment should be made to avoid the need for debate as to whether the matters particularised give rise to jurisdictional error as distinct from errors of law. Insofar as they will be sought to be demonstrated by reference to the reasons, it seems to me that, if they are good points, they constitute errors of law which can be derived and discerned from a reading of the record.

I will hear Counsel in relation to the costs of today.

(Discussion ensued.)

HIS HONOUR:

15 The underlying nature of today's application is one properly characterisable as an application for the exercise of indulgence to the plaintiff and it seems to me that he should not be entitled to have the costs of that application reserved. On the other hand, the fifth defendant has unsuccessfully opposed today's application, and despite professing in essence to assist the Court, the written submissions quite clearly raise objections to the exercise of the Court's discretion, and it seems to me that if the defendants ultimately lose this action they should not get the costs of today.

16 In the circumstances, what I propose to do is reserve the defendants' costs of today.

Mr Horner, can you submit an appropriate form of order electronically to my associate?

MR HORNER: Yes, your Honour.

HIS HONOUR: That order will recite at its conclusion a direction that the order be prepared by the solicitors for the plaintiff and authenticated by the judge pursuant to rule 60.04, and when you prepare that order you will provide a copy to your opponent at the same time that you provide it to the Court. I will make those orders.

[1] See Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 21 generally as to the obligation to give reasons in conjunction with a judgment.

[2] [1999] VSC 137