Begum v Victorian WorkCover Authority (Ruling)

[2025] VCC 192

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-04310

TARA BEGUM	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2025
DATE OF RULING:	18 February 2025 (ex tempore)
CASE MAY BE CITED AS:	Begum v Victorian WorkCover Authority (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 192

RULING
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Subject:ACCIDENT COMPENSATION

Catchwords:              Preliminary argument – filing of originating motion – electronic lodgement – whether originating motion filed within time

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013; County Court Civil Procedure Rules 2018

Cases Cited:Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR (NSW) 141; Fujitsu Australia Ltd v Dewar Electronics Pty Ltd & Adda Corporation [2001] VSC 222

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Dealehr with Mr  N Muniz Saavedra	Emmanuel Lawyers
For the Defendant	Mr M Fleming KC	Hall & Wilcox

HIS HONOUR:

1This is an application by the plaintiff for the following orders: 

(i) That the Originating Motions filed by the plaintiff on 19 July 2024, were filed within the thirty days prescribed by s335(d)(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). 

(ii) Alternatively, the Originating Motion filed by the plaintiff on 22 July 2024 be abridged pursuant to Rule 3.02 of the County Court Civil ProcedureRules 2018 to be filed within the thirty days prescribed by s335(2)(d) of the Act.

2If I was against the plaintiff, then the defendant submits that the Originating Motions be dismissed with costs. 

3For the reasons which follow, I accept the plaintiff's submissions and I will make orders in the terms similar to the first order sought by the plaintiff in her summons.

4As this matter was heard as a short preliminary argument, and the facts are both short and non-contentious, my reasons can be briefly stated. 

5First, the filing of a document is not simply the lodging of forms on the CITEC electronic lodgement platform which is used exclusively by the Common Law Division of the County Court in respect of lodging originating processes. 

6I accept the defendant's submission on this point, that the filing on 19 July 2024, on CITEC, was not filing for the purpose of r28(11) and r28(12) of the Rules.  Rather, what is required, is the satisfaction by the registrar that the Rules have been complied with.

7Similarly, I accept the defendant's submission that part of that satisfaction is the lodging of documents with the solicitor's correct Victorian address and solicitor's code as authorised by the Victorian Legal Service Board Commission (“VLSBC”).  This much is required by r5.07(1)(e).  This is important to ensure VLSBC-approved solicitors are engaged, and there is a proper way to serve documents and contact that practitioner.

8Bearing these matters in mind, it is useful to look to the events of 19 July 2024 and determine if these matters were known to the Court's registry at that time.  This starts with the Originating Motion originally filed on 3 July 2024.  It clearly bears an interstate address in respect of the solicitor's address.  This was not in compliance with the Rules, and the document could not be filed.  The plaintiff's solicitor was in fact a Victorian solicitor with a Victorian practitioner's code allocated by the VLSBC, who had incorrectly used his firm's Queensland address in the tram tracks of the Originating Motion. 

9He was informed of the error that day by the County Court Common Law Registry.  He immediately responded, providing his Victorian address for service, being Level 19/269 William Street, Melbourne.[1] 

[1]See Exhibit YGK9.

10He then amended the Originating Motion to reflect his Victorian address and filed it with CITEC.  He was told that any change to the address needed to be processed by the VLSBC, which could take some time.  I consider Registry took all prudent steps at this stage, as ensuring compliance with the Rules was important.

11Unbeknownst to Registry, however, on 19 July 2024, at approximately 12.29 pm, the VLSBC finally updated the plaintiff's solicitor’s address, which conformed to the address that had been provided to Registry some two weeks prior.[2]

[2]See Exhibit YGK17.

12In an attempt to ensure proper filing, the plaintiff's solicitor filed an originating motion in the proper form with his correct solicitor code and updated Victorian address on 19 July 2024, at 14:48 hours, and again at 15:24 hours. Both documents were rejected.  The reason being, it seems, that the Court CITEC platform was not syncing with the updated VLSBC electronic system.  Quite clearly, the plaintiff's solicitor and the Originating Motion had satisfied all the requirements of the Rules. 

13However, as the two computer systems were not syncing, this meant the document was electronically rejected.  This does not mean, of course, that there was no satisfaction by the Registry that the requirements of r28(11) and r28(12) were met.  Quite clearly they were, and there resided no power to reject the document in that circumstance.

14That rejection was a function of the computer system.  The Rules do not repose in a computer system the power of being satisfied.  Rather, that power resides in the Registrar.  Rule 28(11) mandates that the Registrar must accept the document as filed where such satisfaction was obtained.  Here it was, because as of 19 July 2024, at 12:29, the VLSBC had updated the solicitor's address.  The Originating Motion filed later that day contained that address and the correct solicitor's code. 

15Having found that there was compliance with the Rules as to the filing of the Originating Motion, it now falls to decide if I have the power to make the Orders sought.  The plaintiff relies, in particular, on r2.04 to found the power to make the orders sought.  That order deals with non-compliance with the Rules. 

16Given my finding above, I do not consider there has been non-compliance with the Rules.  As such, reliance on r2.04 is inapt.

17It was next contended by the plaintiff that the Court had an inherent power to ensure justice was done.  Both parties relied on Morres v Papuan & Rubber Trading Co Ltd[3] particularly the Chief Justice’s comments at 144.

[3](1914) 14 SR (NSW) 141.

18Both parties accepted the principles in that case applied here.  Comments there by the Chief Justice make plain that the Rules should not be allowed to stand in the way of justice.  Here, the matter does not rise even that high, for there has not been a breach of the Rules.  Rather, there has been a failure in the Court's electronic system that stymied the filing of the Originating Motion on 19 July 2024. 

19In order to exercise any power to correct this failure, I must consider the reasons for the failure of the plaintiff's solicitor to have a regularly filed originating motion by 20 July 2024. 

20In addition, it is necessary to examine the prejudice to the other party in this matter, being the Victorian WorkCover Authority. The defendant here relied on Fujitsu Australia Ltd v Dewar Electronics Pty Ltd and Adda Corporation.[4]

[4][2001] VSC 222.

21As to the plaintiff's position, I consider the affidavit of the plaintiff's solicitor clearly sets out the reasons this situation has arisen.  I consider he acted prudently and in a timely manner at all times after receiving the Court's email on 3 July 2024 at 16:03 hours.

22It is also significant that, if the Originating Motion is not filed within time, the Originating Motion will be dismissed and no further application can be made, pursuant to s338 of the Act, to further the plaintiff's serious injury application, and potentially common law rights. In that circumstance, the plaintiff will forever lose the possibility of her common law claim. That is a significant loss to bear for an individual plaintiff.

23If the matter is allowed to proceed, the defendant will obviously have to defend the action. This is an issue of time and expense. However, the defendant is a statutory body with experience and resources. It is well organised to defend the action, given the application was filed some time ago with all accompanying material, as is required in accordance with the Act. I do not consider the defendant will suffer any significant prejudice.

24Assessing these matters, I consider it necessary to draw on the inherent power of the Court to ensure that an injustice is not wrought. 

25To this end, I propose to make an order that the Originating Motion filed with the Court on 19 July 2024 at 14:48 hours, is taken as filed that day, in compliance with the requirements of s335(2)(d)(1) of the Act.

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