| 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…
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- Case
- [2016] VSC 435
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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