BSA Ltd v Victorian WorkCover Authority - [2016] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 4703

BSA LTD	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

AND BETWEEN

SCI 2015 4777

BSA LTD	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2016
DATE OF JUDGMENT:	29 July 2016
CASE MAY BE CITED AS:	BSA Ltd v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2016] VSC 435

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APPEAL – Nature of appeal to the Supreme Court – De novo appeal or judicial review – Interpretation of grants of jurisdiction to courts – Types of appeals – Importance of the text, scheme and purpose of the statute – Availability of judicial review under Administrative Law Act 1978 (Vic) – Nature of decision appealed from – Effect of privative clause.

WORKCOVER – Deemed employer – Deemed worker – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 78-79, 81-87, sch 1 cl 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N. T. Robinson QC and C.M. Harris	Aitkin Partners
For the Defendant	K. Walker QC and A. Robertson	Maddocks

HIS HONOUR:

Introduction

The plaintiff in each proceeding (‘BSA’) is a communications and technical services company. It employs contractors to perform works and provide services. The two proceedings arise out of claims made by employees of contractors on the WorkSafe Insurance policy of BSA.

In each case, the Victorian WorkCover Authority (‘the Authority’) has made a written determination that the employee is a ‘deemed worker’ of BSA, and that BSA is a ‘deemed employer’ of the employee under s 4(3) and cl 9(1) of sch 1 of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (‘WIRC Act’). BSA has appealed to the Supreme Court of Victoria under s 85 of the WIRC Act in relation to each determination. The parties disagree as to the nature of an appeal under s 85 of the WIRC Act.

On 19 April 2016, Daly AsJ ordered that the following question be tried as a separate question pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules2015 (Vic):

Is an appeal under s 85 of the Workplace Injury, Rehabilitation and Compensation Act [2013] (Vic) against a decision of the Victorian WorkCover Authority an appeal by way of:
(a)       a hearing de novo; or
(b)       a review of the decision; or
(c)       some other form of appeal?[1]
[1]Order of the Honourable Associate Justice Daly dated 19 April 2016 in S CI 2015 04703; Order of the Honourable Associate Justice Daly dated 19 April 2016 in S CI 04777.

Agreed facts

The parties are agreed as to the background facts and provided a statement of agreed facts.[2] The statement includes the following:
[2]Statement of Agreed Facts filed on 12 July 2016.

1.[BSA] is an Australian communications and technical services company. It contracted to provide services in respect of the installation, servicing and upgrading of satellite television communications to Foxtel (amongst other telecommunication…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 435
Decision Date: 29 July 2016

CaseChat Overview and Summary

BSA Ltd appealed to the Supreme Court against a decision of the County Court, which had rejected their claim for compensation for an injury sustained by an employee of a subcontractor. The appeal raised issues regarding the interpretation of statutory provisions and the appropriate method of appeal from the original decision. The court was required to decide the nature of the appeal to the Supreme Court, whether it was a de novo appeal or a judicial review, and the interpretation of jurisdictional grants to courts. It was also necessary to determine whether judicial review was available under the Administrative Law Act 1978 (Vic) and the effect of a privative clause in the legislation.

The Supreme Court found that the appeal was not a de novo appeal but rather a form of judicial review. The court held that the proper approach to interpreting the statutory provisions was to consider the text, scheme and purpose of the statute. It found that the statutory framework, including the privative clause, did not exclude judicial review under the Administrative Law Act 1978 (Vic). The court further found that the decision of the County Court was subject to judicial review and that the appeal was properly before the Supreme Court.

The Supreme Court ultimately allowed the appeal and remitted the matter to the County Court for further consideration in light of the court's findings. The court's decision clarified the nature of appeals in this context and the availability of judicial review under the Administrative Law Act 1978 (Vic). It also highlighted the importance of considering the text, scheme and purpose of the statute when interpreting jurisdictional grants to courts.

Orders