Cayford v Let Danny Do it Pty Ltd - [2021] VSC 707

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03382

RYAN CAYFORD	Applicant
v
LET DANNY DO IT PTY LTD (ACN 85 607 960 681)	Respondent

---

JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF JUDGMENT:	29 October 2021
CASE MAY BE CITED AS:	Cayford v Let Danny Do It Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 707 (First revision: 5 November 2021)

---

ADMINISTRATIVE LAW – Appeal of decision of Magistrates’ Court of Victoria – Extension of time to appeal – Workplace injury – Whether Magistrate wrongly drew Jones v Dunkel inference – Whether Jones v Dunkel inference may be drawn in rejecting direct evidence of a witness – Where lack of contemporaneous evidence of injury – Criteria for establishing whether co-worker in employer’s camp or worker’s camp – Error of law established – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr AG Uren QC Mr SD Dawson	Rubicon Compensation Lawyers
For the Respondent	Mr R Kumar	Russell Kennedy

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. Extension of time.......................................................................................................................... 2

C. Did the Magistrate draw a Jones v Dunkel inference against Mr Cayford that contributed to the decision to reject his evidence?................................................................................................. 2

D. Did the Magistrate err in law in drawing a Jones v Dunkel inference?............................ 4

D.1.The criteria for the drawing of an inference and Mr Cayford’s contentions.............. 4
D.2.Was the inference open in circumstances where Mr Cayford gave direct evidence that the respondent was challenging only by reference to inference?....................................... 5
D.3.Was it open to the Magistrate to conclude that Mr Symbardis was in Mr Cayford’s ‘camp’?................................................................................................................................................ 8
D.3.1.The interpretation of the criterion......................................................................... 9
D.3.2.Was the inference available here?....................................................................... 13
D.3.3.Final comment — onus in the third criterion.................................................... 16

E. The unnoticed statement........................................................................................................... 16

F. Disposition................................................................................................................................... 18

HIS HONOUR:

A. Introduction

Mr Cayford injured his left knee lifting heavy weights in a gym, that is, outside employment, in late 2014. He then worked as a furniture removalist for Let Danny Do It Pty Ltd, the respondent, between August and November 2015,[1] and then again between January 2017 and May 2018. The respondent was managed by Daniel Yates. Mr Cayford says that he suffered compensable injury[2] to his left knee in the course of this employment both in a specific incident on 14 March 2018 and by ‘gradual onset’ as a result of heavy work over time. The specific incident of injury was said to have occurred when he was lifting a heavy piece of furniture with a co-worker, Mr Symbardis. He claimed compensation from the respondent under the Workplace Injury Rehabilitation and Compensation Act 2013. His claim was rejected, and so Mr Cayford commenced a proceeding in the Magistrates’ Court of Victoria in which he sought to establish his entitlement to compensation. The respondent denied that Mr Cayford had injured his knee in his employment and contended that his symptoms were instead the result…

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.

Keep reading for free

Create a free CaseChat account to read Cayford v Let Danny Do it Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 707
Decision Date: 29 October 2021

CaseChat Overview and Summary

In the matter of Cayford v Let Danny Do it Pty Ltd, the respondent, an employee, sought to appeal a decision of the Magistrates' Court of Victoria. The dispute arose from an incident where the respondent sustained a workplace injury, and the Magistrates' Court dismissed the appeal on the grounds of late filing. The appellant, the employer, argued that the Magistrates' Court had erred in its application of the principles set out in Jones v Dunkel, leading to an incorrect inference being drawn, which in turn led to the dismissal of the appeal.

The primary legal issue before the court was whether the Magistrate erred in drawing an inference from the absence of evidence regarding the injury, and whether such an inference could be drawn in the face of direct evidence from a witness. Additionally, the court had to determine the criteria for establishing whether a co-worker was in the employer's or the employee's camp and whether the Magistrate had erred in applying these criteria.

The court found that the Magistrate had indeed erred in drawing an inference in the absence of contemporaneous evidence of the injury, and that such an inference could not be drawn when direct evidence from a witness was available. The court clarified the criteria for determining whether a co-worker was in the employer's or employee's camp, and held that the Magistrate had applied these criteria incorrectly. As a result, the court concluded that an error of law had been established, and allowed the appeal.

The court ordered that the appeal be allowed, and the decision of the Magistrates' Court of Victoria be set aside. The matter was remitted back to the Magistrates' Court for reconsideration in light of the court's findings.

Orders