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[2015] VSC 568
General information, not legal advice.
Supreme Court of Victoria
2015-10-16
Mukhtar AsJ
Original judgment source is linked above.
APPEAL ― Appeal from Magistrates' Court ― Statutory requirement to bring appeal in 30 days from Magistrates' order ― Leave of Supreme Court required to appeal outside 30 day time limit ― Statutory requirement to show "exceptional circumstances" for not instituting appeal in time ― Onus on applicant ― Solicitor's assertion of difficulty in obtaining instructions to bring appeal ― Onus not discharged ― Leave to appeal refused ― Magistrates' Court Act 1989 (Vic), s 109
1 Under s 109(1) of the Magistrates' Court Act, a party to a civil proceeding may appeal to this Court on a question of law from a final order of the Magistrates' Court. Under s 109(2)(a) the appeal must be instituted not later than 30 days after the day on which the Magistrates' order was made. This Court is empowered under s 109(5) to grant leave to appeal outside the 30 day time limit. That provision dictates that the Court can only do that if first, it is of the opinion that the failure to institute the appeal within time was due to "exceptional circumstances", and secondly, if satisfied that the respondent's case would not be materially prejudiced because of the delay.
2 This case in the Magistrates' Court, started in March 2014, was a claim by a worker for compensation for personal injuries under the Accident Compensation Act. The Magistrates' Court dismissed the claim without the necessity to consider its merits because it sustained a threshold defence that terms of settlement made in 2009 in earlier litigation concerning the same workplace incident precluded Mr Bucic from making the claim. The Magistrate made a final order on 5 September 2014. An appeal had to be filed by 5 October 2014. Mr Paul Simon, a sole practitioner, acted as instructing solicitor for Mr Bucic in the proceedings below and in this application. He filed a notice of appeal on 17 November 2014. That was 42 days out of time.
3 I presume to say the 30 day time limit is ample, considering appeal periods in general in civil litigation. The requirement of exceptional circumstances has a natural stringency or testing quality about it. It has regard to the apparent public interest in bringing closure on decisions of the State's Magistracy who (like the Victorian Civil and Administrative Tribunal) deal with a high throughput of disputes affecting ordinary people or public affairs, or the lower scale of trade and commerce, all with widespread variety. The right of appeal is limited to a question of law, and the 30 day time limit carries with it the desideratum of finality.
4 Yet it is not uncommon to have disputes over applications for leave to appeal out of time. And it is remarkable how much judicial attention has had to be given to the meaning or application of s 109(5).[1] Those authorities make it enough to say here: (i) the onus is on the applicant to show 'exceptional circumstances', an expression that is intended to place a considerable bar in the way of an applicant; (ii) 'exceptional circumstances' means circumstances outside reasonable anticipation or expectation; (iii) the Court is not concerned with the merits of the appeal but confines itself to the conduct of the applicant, and any agents acting, and the explanation for failing to lodge the appeal in time; and (iv) evidence must therefore be clear and cogent. That is quite an onus for any applicant.
5 This application was opposed methodically, and it put the evidence to the test. There was, remarkably, no affidavit from Mr Bucic. The attempt to explain the failure to lodge the appeal in time came, in effect, entirely from Mr Simon in five affidavits. But I am afraid to say, the explanation was vague and unclear. The shortcomings in the evidence caused fragmented hearings over three days, with evidentiary rulings and cross-examination of Mr Simon. There was a real and effective challenge to the sustainability of the explanation given by him.
6 In essence, Mr Simon swore that his client Mr Bucic was often distressed, anxious, confused and had memory problems as a result of lower back and other injuries which '...has made very difficult for me to take instructions related to this appeal'.[2] In his ultimate affidavit, this altered to saying Mr Bucic 'was not able to provide instructions to me due to his psychiatric condition and dependence on his wife to interpret and explain matters to him'. There were no language barriers or difficulties. Mr Simon says he was reliant on Mr Bucic's wife, a clerical officer at the Royal Melbourne Hospital, to obtain instructions about an appeal and had multiple telephone contacts with her. Time ran out on 5 October 2014. He said 'It was not until one or two days before 10 November 2014 that I was able to obtain instructions about the application for review (sic) and I then attended the applicant with his wife to complete and sign the application'[3] The application was for a waiver of filing fees on the grounds of financial hardship, which was granted.
7 It is not the client (who, Mr Simon says, as at November 2014 was able to give him instructions to appeal) who is claiming exceptional circumstances, or verifying the exceptional circumstances asserted by his solicitor. Rather, this application has been propounded by Mr Simon on the basis of his conduct of the matter as solicitor and his asserted predicament. He was conscious of the time limit and has squarely sought to portray the difficulties under which he said he was labouring, and has attempted to explain how he went about conducting the client's affairs, and pursuing the question of appeal.
8 At the end of the hearing on 30 September 2015, I made a decision ex tempore to refuse the application, with reasons to be published subsequently. In essence, I announced it was not enough to assert a belief that Mr Bucic was incapable of giving instructions without putting forward facts to demonstrate that incapacity, or the grounds of that belief. I found that, when tested in Court, his asserted explanation that he could not file the appeal because he could not get instructions could not be demonstrated or substantiated. Nor was it consistent with other circumstantial or objective facts. Thus, the applicant had failed to discharge the onus of showing exceptional circumstances. What follows is an elaboration of my reasons.
9 At the outset, I should say that Ms Jardine of counsel for the applicant urged the Court to see that Mr Simon had 'stuck to his client', and to not treat the application as an assessment of Mr Simon's professional conduct or standards. I shall assume the former (for the client does not say otherwise); and not purport to do the latter. But of course, it is Mr Simon' explanation of his conduct that comes to be examined in this application.
10 I am bound first to give an account of the procedural history as best I can from the materials and the nature of Mr Bucic's case so as to understand what sort of matters of advice or instruction might be supposed to be needed in the circumstances.[4] For present purposes, it is not necessary to refer much to provisions of the Accident Compensation Act 1985 under which claims were made.
11 Mr Bucic claims he suffered personal injuries when he fell from scaffolding whilst working as a brick cleaner. The incident occurred on 30 October 2007. In November 2007, he lodged a claim for compensation under the Accident Compensation Act for weekly payments of compensation for incapacity, and compensation for medical and like expenses. That may be called the original claim. His claim form described his injury as a fractured rib, punctured lung, fractured right arm, back injury and head injury. In January 2008, his claim was rejected by the insurance agency for the Victorian WorkCover Authority ('the VWA') on the basis that he was not a worker within the meaning of the legislation, and, that his claimed injury did not arise out of, or in the course of, his employment.
12 He then sued in the Magistrates' Court on 2 June 2008. He sought a declaration that he was entitled to compensation in the form of weekly payments for incapacity from 30 October 2007, and a declaration that he was entitled to compensation under s 99 of the Accident Compensation Act from 30 October 2007.
13 The defendant took multiple defences to that claim which can be adumbrated as follows: (i) the rejection was only for a claim under s 99 of the Accident Compensation Act 1985; (ii) a certificate issued under s 49 of that Act was only issued for a dispute relating to s 99 of the Act; (iii) the plaintiff is not a 'worker'; (iv) 'the plaintiff had not made a claim for compensation and therefore no claim for compensation was referred to conciliation prior to the commencement of the proceedings'; (v) the plaintiff was not or was no longer entitled to weekly payments; (vi) the plaintiff was not incapacitated for employment or at all; and (vii) if he was incapacitated, his employment was not a significant contributing factor.
14 Limited correspondence is before me in which the plaintiff thought there had been a 'serious misunderstanding' about the claim. That is, the worker was claiming both weekly payments and medical expenses, yet, the rejected claim concerned only medical treatment expenses. It appears by correspondence in October 2008, that Mr Bucic's claim came to be treated as a claim for both weekly payments and medical and like expenses. That helps understand what happened next, which is a crucial event.
15 On 28 January 2009, the parties made written terms of settlement signed by counsel. The terms said, with my underlining, and without corrections −
In consideration of the Parties consent to the Court Orders made this day and with the Defendant denying liability the Defendant will pay in full settlement of these proceedings: (1) weekly payments at the rate for no current work capacity for the period 30-10-07 to 30-5-08 (but not thereafter) subject to: (a) Tax, (b) Provision of valid workcover certificates of incapacity and (c) Centrelink indemnity and (2) Reasonable medical & like expenses for the same period (but not thereafter) subject to production of valid accounts or receipts & HCS. This settlement is without prejudice to either parties rights under s.98C and s.134(HB) of the Act.
Defendant to pay Plaintiffs costs on scale F.
Proceedings otherwise dismissed.
16 A 'Notice of Order Made' by the Magistrates' Court in that proceeding records that on 28 January 2009 an entry was made in the Court's register that the claim was dismissed by consent.
17 The subsequent events are not clear to me. In evidence is a subsequent 'Worker's Claim for Impairment Benefits Form' under the Accident Compensation Act for non-economic loss, dated 6 April 2009. Mr Bucic there described the injury conditions as concerning his back; his right arm; his chest and lungs; 'neurological'; and psychiatric. In August 2009, the VWA or its claims agent acknowledged the claim under s 98C. It accepted liability for those injuries (despite its denial of liability of employment in the original proceeding) except a neurological condition inclusive of hearing and eyesight. The Authority determined he was suffering a whole person physical impairment of 6 per cent and a whole person psychiatric impairment of 5 per cent, giving a combined whole person impairment of 13 per cent. The Authority calculated his entitlement under s 98C and/or s 98E of the Act for non-economic loss in the amount of $11,620. The matter was then referred to a Medical Panel under the Act which gave a Certificate of Opinion dated 5 October 2009. The Panel formed the view Mr Bucic had a 9 per cent whole person impairment resulting from the accepted lower back, right wrist, chest, lungs and psychiatric injuries when assessed under s 91 of the Act. The degree of impairment included 7 per cent whole person impairment. The degree of impairment was said to be permanent. The Panel also formed the opinion there was a 5 per cent psychiatric impairment which was permanent, but there were no benefits paid in that regard. The combined whole person impairment was 14 per cent. A subsequent letter to Mr Bucic informed him that he was entitled to compensation for non-economic loss in the amount of $13,310. He accepted that compensation.
18 Mr Bucic then filed a Worker's Injury Claim Form in October 2012 arising out of the same incident. The claim seems to have included injury to his neck which introduced the question whether this was a new and different claim. The claim form described the injury as 'neck, psychiatric injury, hands and arms, stomach, constipation, sleeplessness from pain and stress.' In response to enquiry 'If you did not report the injury/condition, or if there was delay, please explain why' he wrote the response: 'Neck injury not diagnosed until recently.' I gather that Mr Bucic had surgery in October 2013 for a disc fusion.
19 Mr Bucic then filed a second complaint in the Magistrates' Court on 27 March 2014. The complaint is not in evidence. A general understanding of that proceeding can only be distilled from a transcript of a two day hearing before Magistrate Mr B Wright on 19 and 20 August 2014 in which both parties were legally represented. I gather the claim was a challenge to the Authority's refusal to make any payments on the claim in which Mr Bucic sought payments as from 17 October 2013. That is, after his surgery.
20 The complaint came before Magistrate Wright on 19 August 2014. Proceedings were transcribed. It proceeded as a determination of a preliminary question whether the claim was precluded by operation of the terms of settlement of the original action made in January 2009. Under those terms Mr Bucic agreed unequivocally he would not be entitled to weekly payments after 30 May 2008. The Authority contended that by the doctrine of issue estoppel or res judicata, this second legal action could not be taken; or alternatively it was precluded by an accord and satisfaction under the terms of settlement which had the effect of extinguishing Mr Bucic's cause of action. The case for Mr Bucic seemed to be that injury to the neck was not included in the earlier proceedings and therefore there could be no issue estoppel or res judicata in relation to a neck injury. It was submitted there was a change of circumstances that occurred after Mr Bucic underwent surgery and this was now a new claim and a later claim for incapacity even though it arose out of the same incident for which there had been a settlement.
21 The Magistrate reserved his decision on the preliminary question, and reconvened a court on 5 September 2014 to pronounce his decision. His Honour found that Mr Bucic was not prevented from bringing the proceeding under the doctrine of issue estoppel or res judicata. But His Honour did sustain the defence of accord and satisfaction. His Honour held that the consent orders and the terms of settlement were clear in their expression and their intent as governing legal relations for a single incident on a single date. As Mr Bucic had been paid compensation under the terms of settlement, it resulted, so His Honour held, in the extinguishment of the original cause of action for compensation. Thus, it was held Mr Bucic was prevented under the terms of the agreement from pursuing any more claims for weekly payments and reasonable medical and like expenses from 17 October 2013.
22 The transcript records his Honour stating that he proposed to issue his decision in writing and to distribute it to counsel in due course. That occurred on 22 September 2014. For the purposes of this application though, the applicant accepts 5 September 2014 as the relevant date for the purposes of s 109(5) of the Magistrates' Court Act on which time starts running. Thus, any appeal had to be brought by notice of appeal filed 30 days later on 5 October 2014.
23 The appeal was brought by a 'Summons on Originating Motion' (which was incorrect process) and a notice of appeal. Appeals are brought by notice of appeal and if it is brought out of time it is deemed to be a leave application under s 109(4). The issue in the notice of appeal was whether the principles of accord and satisfaction were applicable in a proceeding for statutory benefits, and whether the claim was for a new injury.
24 The application came before an Associate Judge on 17 December 2014 who adjourned it to me on 20 February 2015. There was no affidavit from the applicant at all. At that time, there were three affidavits from Mr Simon[5] and one from the plaintiff's wife, Vesna Bucic. I shall confine myself to the salient parts of those affidavits. In essence, Mr Simon says he believes Mr Bucic is suffering serious physical and psychiatric injuries from his accident. He says that from about September 2014 Mr Bucic was referred to a psychiatrist, Dr Albert Kaplan, and was undergoing treatment. The plaintiff's wife told him, Mr Simon, that the plaintiff was suicidal at times because of his injuries, his pain and suffering and his financial and family stresses. His second affidavit says:
25 The applicant's wife Vesna swore an affidavit on 19 February 2015. She says she believes her husband is suffering severe stress, anxiety and depression due to his injuries:
26 An affidavit in opposition was sworn by Rachael Cubela, a solicitor having the responsibility for the matter on behalf of the respondent. She swears that on 23 October 2014 (by which date the 30 day time limit had already passed) Mr Simon telephoned her and told her that the Magistrates' Court decision was going to be appealed and asked her whether she had instructions to accept service. She said she would need to obtain instructions. On the same day she left a telephone message to Mr Simon stating that she had instructions to accept service. Her evidence was not challenged. The significance of this evidence is that it is irreconcilable with Mr Simon's evidence that he could not get instructions for an appeal until the latest 10 November 2014.
27 Under cross examination on 20 February 2015, Mr Simon was unable to give responsive answers to necessary (and I would have thought expectable) questions about his conduct of the matter after the Magistrate's final orders, and to be explicative about his assertion that he had difficulties obtaining instructions. I am afraid to say much of the cross-examination was affected by his inability, or lack of preparation, to give precise answers to explain events and give dates. Thus, so many of his answers were couched in terms of what 'probably' happened and being very approximate about facts, and qualifying all answers by saying he would need to study his file. Despite that, I think the following facts emerged, which I shall narrate as follows with some interpolations..
28 He says he did not obtain formal instructions to appeal until he attended the Bucic home on 10 November. That was the date upon which the fee waiver affidavit was sworn. The instructions to appeal came from Mrs Bucic. He initially got those instructions to appeal by telephone, and then arranged an appointment to go to their home to confirm the instructions. The reason for the visitation on 10 November was to sign the application for the fee waiver to commence the appeal. Yet, even before 10 November, it seems that he had instructions to appeal because on 23 October 2014 he had spoken to the respondent's solicitor to say that there would be an appeal. By that time, he said he did not have formal instructions to appeal but had discussed the matter with Mr Baume of counsel. He says the first discussion about a possible appeal was probably soon after the Magistrate's unwritten reasons were given on 5 September 2014. But, he said he would have wanted to wait until the written reasons were obtained before considering the matter (but the Magistrates transcribed reasons in Court had already stated the plain basis of the dismissal). After reasons were received, he spoke to his clients about an appeal. He said that by 23 October when he spoke to the respondent's solicitors to say that he had received instructions to institute an appeal, he said that he had not in fact received formal instructions to appeal. (This was troubling evidence.) The context, for him, was that he had had discussions with counsel Mr Baume about appealing. Yet, he admitted that he told the respondent's solicitors that the plaintiff would appeal. When pressed to explain what he meant by 'formal' instructions, he explained that it would be formalised when he completed the necessary documents such as the notice of appeal and then get instructions to formally lodge the documents. The discussions about appealing, even if they had been informal, came from discussions with counsel and with Mrs Bucic but not Mr Bucic. Mr Simon accepted that he was conscious of the 30 day time limit for bringing an appeal. He accepted that as time was ticking, he had to start dealing with the matter urgently. He said he told his client they had to decide whether to appeal because there was a 30 day time limit. At one stage, he seemed to be saying that he prepared a notice of appeal within 30 days but when pressed, said he would have to check the file. No such document was ever produced by him.
29 The cross-examination got to a point on 20 February 2015 where surprisingly it seems Mr Simon had not prepared himself to be tested on his affidavits by reference to the critical issue in the case concerning the steps he took to obtain instructions to appeal, and the precise dates. The court would have expected an experienced lawyer to condescend to reasonable detail about steps he took whilst the currency of the 30 day period was passing. The Court would expect him to explain what steps he took to energise his client or to make his client understand the nature of an appeal and its prospects and to then explain what barriers he encountered in obtaining instructions and what steps he took when urgency visited the matter. It was for that reason that on 20 February 2015 I suspended crossexamination to give Mr Simon an opportunity to better study his file and prepare himself for the questioning. In the order made that day I made the following statements under the rubric of "Other Matters":
30 After that adjournment, Mr Simon swore a third affidavit on 9 March 2015. He sought to condescend to further particulars about his attendances on the matter. From mobile phone records, he specifies the dates and times on which he made telephone contact with Mrs Bucic on (my count) 8 occasions between 11 September 2014 and 1 October 2014, and 18 occasions from 7 October 2014 to 21 November 2014. In addition, he says that he attended the home of Mr and Mrs Bucic on two occasions, and also had two conferences with them and Mr Baume of counsel (who appeared in the Magistrates' Court) to discuss the proceeding. That is as far as it goes. No dates. No file notes. No evidence on what was discussed. No facts to build a foundation for a case to say that instructions could not be obtained.
31 It appears from his affidavit that his contact really was with Mrs Bucic. He says:
32 As for the conversation with Ms Cubela on 23 October 2014, Mr Simon's affidavit of 9 March 2015 seeks to meet that by saying: 'The telephone attendance on Lander & Rogers was made to protect the applicant's legal rights regarding the proceeding.' The meaning of that is unclear or does not make sense, for the 30 day appeal period had passed on 5 October 2014.
33 Mr Simon swore a fourth affidavit on 1 June 2015. He exhibits a report from Dr Kaplan dated 12 March 2015 which he says was initially requested on 6 December 2014. Dr Kaplan's report states that he was first consulted on 10 September 2014, (that is, soon after the Magistrates' Court order on 5 September 2014) and has been treating Mr Bucic since then. It reports Mr Bucic saying that he developed neck pain over the past two or three years and was being prescribed a range of anti-inflammatory drugs over the years. He is married and his wife is aged 54. She is in good health and works full-time in a clerical position at the Royal Melbourne Hospital. They have a 32 year old son and twin sons aged 29. He has no family history of psychiatric illness. He was married in 1980 and his marriage has been happy and stable. His physical condition is described as a suffering of pain in his neck which radiates down his right arm to his hand. He suffers from pain in his lower back which radiates into his right hip and down his right leg to his foot. As for his psychiatric condition, the report says:
Mr Bucic stated that he feels stressed as a result of his accident, his compromised finances, and his chronic pain and disability. He feels depressed and has "zero" confidence. At times at night he becomes tearful and tries not to cry in front of his wife and sons. He feels that he has nothing to look forward to and he often experiences thoughts of suicide.
Mr Bucic complained that he feels constantly anxious, and he commented "that's my biggest problem". He is irritable and his wife, who accompanied him to his initial consultation, commented "he is always irritable. Especially with this court case - it's never-ending". He finds his ongoing litigation frustrating and he tends to snap. His wife commented "[He has] no patience at all".
34 I shall not refer to the rest of the report. It is significant I think that nothing in this report supports the view that Mr Bucic is somehow in a condition which prevents him from giving instructions. To the contrary, the report relevantly states under the heading 'Mental Health Examination' (with my emphasis):
Mr Bucic has spoken freely during his consultations. He presents as a polite and friendly individual. He has maintained good eye contact and no difficulty has been encountered in establishing rapport during his consultations.
Mr Bucic's thinking has been characterised by a preoccupation with his injuries and their impact upon his life. He has otherwise displayed no abnormalities of speech, thinking, or perception.
Mr Bucic appeared anxious and despondent. He has expressed intense feelings of frustration about his condition and his physical limitations, and fears for his future.
Mr Bucic has appeared on gross clinical examination to be of average intelligence. His insight has appeared unimpaired.
35 Ms Jardine sought to reduce the impact of this evidence by submitting that a consultation with Dr Kaplan where Mr Bucic is 'on the couch' so to speak ought to be seen as contextually different from the inter personal engagement in the context of solicitor-client communications. I do not accept this. They are both acting in his interests or looking to help. The difference is the necessity for Mr Simon to advise him on what was a legal question. Clients cannot be expected to understand the law which is why they look to their trusted advisors. Instructions to appeal are presumably based on that advice, including the time limits.
36 Cross-examination resumed on 3 June 2015. Mr Simon confirmed that his telephone contact was by mobile phone with Mrs Bucic. There were seven telephone calls between 11 September 2014 and 1 October 2014. He accepted that he would have discussed 'aspects of the case' with Mrs Bucic. He could not recall exactly what was said. He has no note of the discussions because they were on mobile phone. He eventually accepted that before 5 October 2014 he would have sought instructions from Mrs Bucic to commence the appeal. He cannot remember the precise date. He was conscious of the period of appeal. Then, after 5 October 2014, he spoke to Mrs Bucic on a further 19 occasions by telephone. He has no file notes. But he says he did discuss the appeal. He said he was acting in the matter pro bono and the client did not have the means to pay for the issuing fee so he discussed the appeal and the fee waiver application and the necessary affidavit.
37 Pausing there, it may be concluded therefore that he discussed with Mrs Bucic the appeal and the fee waiver application. What Mr Simon would not commit himself to saying was whether he had such a discussion before 5 October or after 5 October. It is astonishing that there is no file record of such a significant matter.
38 Then, Mr Simon gave evidence that the conference with counsel was some time before 7 or 10 November. He has no notes of the conference with counsel. The evidence was confusing because he later said that he believed one conference with counsel occurred before 5 October 2014. And as I understand his evidence, he was aware of the need to file the appeal within 30 days of the order. He then said he prepared the notice of appeal but cannot say when.
39 Mr Bucic speaks English so there was no need for an interpreter. When pressed to say when he first became aware there were difficulties obtaining instructions from Mr Bucic, he could not give any precise evidence of when he became aware of this. His evidence rose no higher to saying that he was never by himself, and Mrs Bucic would often have to speak up to help Mr Bucic to understand matters at hand. Mr Simon accepted that throughout the conduct of the hearing in the Magistrates' Court he was able to get instructions from Mr Bucic even though it involved the involvement of Mrs Bucic. He said he had no difficulty in getting meaningful instructions from her. He accepted that he did not seek a report from Mr Bucic's treating psychologist as to whether he was capable or incapable of giving instructions. He acknowledged the psychiatric report was obtained for the purpose of sending to the work cover agent as part Mr Bucic's psychological assessment. When it came to seeking a medical report from Dr Kaplan, it was no part of his instructions to Dr Kaplan for him to consider the ability of Mr Bucic's capacity to give instructions about the lodging of an appeal. At no time did he ever consider the question whether Mr Bucic needed to have a litigation guardian appointed. Even so, he accepted the person most suitable to become his litigation guardian would have been his wife from whom Mr Simon was obtaining instructions anyway. Mr Simon conceded that Mrs Bucic was ready willing and able to assist Mr Simon with procuring instructions from him and her about the lodging of an appeal. When he was pressed to divulge to the Court what discussions he had with counsel about an appeal in this matter after 5 September, Mr Simon was unwilling to do so on the grounds that it would divulge privileged information. The Court pressed Mr Simon on this but the evidence was most unsatisfactory. The evidence is that he had a conversation and some emails communications with counsel after 5 September 2014, and before the appeal was filed, but he cannot say when. Later, he divulged that he had two email communications on 22 September and 1 October 2014. Even then, he would not divulge the contents because he claimed they were privileged. The email on 22 September seemed to have only attached the written reasons of the Magistrate. Then when pressed on the question whether counsel was retained to provide advice in respect of this appeal on 5 September, Mr Simon's evidence was that there was not a specific retainer; Mr Baume of counsel was retained in this matter generally just as he was obtained about giving advice on other matters. This evidence was not at all clear.
40 The Court struggled to understand the evidence but eventually Mr Simon conceded that after 5 September 2014 Mr Baume was retained to advise on the question of an appeal. But he was asked to advise not just for an appeal in this matter but for other matters involving Mr Bucic as well. As I understood the evidence, what he was saying was that Mr Baume was on a continuing retainer. When the specific question was put whether Mr Baume was advised after 5 September to advise on an appeal, the answer was yes.
41 This permits a finding to be made that after the magistrate stated his reasons dismissing the claim in the Magistrates' Court, Mr Baume was retained to advise on the question of an appeal from the decision. There is no documentation to verify this but it is the fact as conceded by Mr Simon.
42 Thus, it seems to me great care must be taken with Mr Simon's assertion that it was difficult, or, that he was unable to get instructions. What does it mean to say 'I could not get instructions'? He does not give any evidence that he explained to Mr Bucic and his wife that the law imposed time limits on the filing of a notice of appeal. He does not give any evidence of the content of consultations with counsel. He does not explain the outcome or upshot or the trend of the multitude of telephone conversations he was having with Mrs Bucic in the relevant period. He does not say he sought to procure instructions whether or not to commence an appeal but that Mr Bucic simply could not comprehend the legal advice or Mr Bucic simply would not give him instructions.
43 One could suppose a case where a litigant was so disabled or unwell or psychiatrically disturbed that a solicitor is in no position, at least responsibly, to advise him and to solicit instructions. But the evidence simply does not support such a strained state of affairs. Whatever stresses and frustrations and depressed conditions Mr Bucic was experiencing, there is no support for the view that they were of a degree that rendered him unfit to comprehend legal advice or to give instructions. Moreover, it appears that the person who took responsibility to support Mr Bucic was his wife. There is no suggestion that she did not understand the significance of a time limit for the bringing of an appeal or that she could not be entrusted to help her husband overcome his moods and disorders to confront the question of whether or not to appeal. Moreover, one would have expected if the problem truly was as serious as Mr Simon portrays it, for him to have prudently notified the respondent of the real prospect of an appeal (if that be the fact) and to explain before the expiration of the appeal period the difficulties that he says he was under or the disabilities of his client in being able to properly instruct him. None of that occurred. To the contrary, he informed the respondent's solicitors of an intention to appeal albeit at a time when it was too late.
44 The only question for me is whether exceptional circumstances have been shown for the nonobservance of a time limit. It is only natural for a court to have regard to the pain and discomfort, the frustrations and the depressive effects of notoriously debilitating injuries such as neck and back injuries. However, despite that, he has his responsibilities to comply with something as significant as a time limit for an appeal which relatively speaking is plentiful at 30 days. Mr Simon does not say he feared his client could not comprehend what was being said or advised. The plaintiff's wife does not say he was in no position to comprehend anything. First, at no time has a litigation guardian been appointed for the applicant, or have any steps been taken in that respect. That is inconsistent with Mr Simon having a real belief that the applicant was incapable of providing him with instructions. He seems to have depended on Mrs Bucic. Mr Simon gave evidence that Mrs Bucic was ready, willing and able to assist him with procuring instructions. It is unclear, then, how the applicant's difficulty in giving instructions (if any) would have prevented the present appeal from being commenced within time. Her affidavit asserts her husband 'has difficulty in giving such instructions and he often becomes upset, confused and distressed when thinking about the accident and the claim'. She says she believes that he 'did not have capacity to provide instructions in the period between early September 2014 to about 10 November 2014'. But that cannot be accepted at face value. Not only are those statements unsupported by Dr Kaplan's reports, but they are merely asserted without any revelation of facts about the occasions on which she or Mr Simon attempted to have discussions with the applicant about this appeal and the outcome.
45 I find that the evidence does not sustain the assertion by Mr Simon that he could not get instructions. It is not necessary for me to make a finding about the probable reason why the appeal was not filed in time, or to make findings of credibility. The question is whether Mr Simon's explanation, he being in effect the propounder of the application, has been substantiated by clear and cogent evidence. In my view it has not. I cannot form the opinion, under the statute, that there were exceptional circumstances. That is, I cannot be satisfied that either the applicant was incapable of providing instructions to Mr Simon; or any difficulties Mr Simon had in receiving instructions constitute an 'exceptional circumstance' in the circumstances.
46 It is for those reasons the application was refused.
[1] See Schwerin v Equal Opportunity Board [1994] VicRp 60; [1994] 2 VR 279; Denysenko v Dessa [1996] VicRp 65; [1996] 2 VR 221; Hughes v Morgan [1998] VSC 147; Burlock v Wellington Street Investments [2009] VSC 565; Miao v Body Corporate SP 312 35U [2013] VSC 380; Adidem Pty Ltd v Cowdery [2014] VSC 533; Pole v Jasenthuhewage [2015] VSC 186.
[2] Affidavit of P Simon sworn 18 February 2015, para 5.
[3] Affidavit of P Simon sworn 18 February 2015, para 7.
[4] See exhibits to the affidavit of Rachel Cubela sworn on 16 December 2014, on behalf of the respondent.
[5] Sworn 3 December 2015, and 18, 19 February 2015.
Bucic
Arnej Pty Ltd [2015] VSC 568