296. Review of refusal to certify

296. Review of refusal to certify

(1) If a judge refuses to certify under section 295(3), the party which requested certification may apply to the Court of Appeal, in accordance with the rules of court, for review of the decision.

(2) An application for review under subsection (1) is commenced by filing a notice of application for review in accordance with the rules of court—

(a) subject to paragraph (b), if the trial has not commenced when the judge refuses to certify, within 10 days after the day on which the judge refuses to certify or any extension of that period granted under section 313; or

(b) if the trial commences within 10 days after the day on which the judge refuses to certify, within 2 days after the day on which the trial commences or any extension of that period granted under section 313; or

(c) if the trial has commenced when the judge refuses to certify, within 2 days after the day on which the judge refuses to certify or any extension of that period granted under section 313.

(3) A copy of the notice of application for review must be served on the respondent in accordance with section 392 or 394, as the case requires, within the relevant period specified in subsection (2) for filing the notice.

(4) On a review under subsection (1), the Court of Appeal—

(a) must consider the matters referred to in section 295(3); and

(b) if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision.

The trial court's refusal to certify was affirmed in Wells v The Queen [2010] VSCA 100, the Court referring to its previous decision in McDonald v DPP [2010] VSCA 45:

Ashley JA [at 17]:

17 In Mc Donald v DPP I said this:

It is, I think, correct to say that if the judge concludes that the decision meets the statutory description in paragraph (b) – that is, ‘that the decision is ... of sufficient importance to the trial to justify it being determined on an interlocutory appeal’ – then the judge must certify. At that point, no question of the exercise of a discretion arises. But in determining whether the circumstances fit the description in paragraph (b), the judge is required, as I see it, to make what may be called a value judgment. In this case, the judge was rightly of the opinion that an appeal would be quite hopeless. In those circumstances, it could not have been concluded, and should not have been concluded by his Honour that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. An argument, if accepted, may be such as would render a trial unnecessary. But if the argument is without any merit, it cannot be said that it possesses the quality of ‘sufficient importance to the trial’ which is required by paragraph (b).

I should finally make this observation. Nothing that I have said should be taken to mean that, if a judge considers an unsuccessful argument to have been something better than absolutely hopeless, the statutory description will necessarily be satisfied. Nor should it be taken to imply that the value judgment must necessarily be confined to consideration of prospects of success. Simply, there should not have been certification in the present case because, as the learned judge rightly concluded, the point raised lacked any legal merit.

18 In the same case, Redlich JA added the following:

As this case indicates, where the trial judge is of the view that the interlocutory decision is so plainly correct that the argument to the contrary is hopeless or foredoomed to fail, it is not an appropriate case in which to grant a certificate. In other circumstances, the trial judge is required to assess the relative merit of his or her conclusion and the degree to which it could be said that his or her decision is attended by doubt. I would not wish it to be understood that because a trial judge concludes that their decision may be attended by some doubt, that it necessarily follows that a certificate should be granted.