Dinatale v Sweeney Research - [2013] VSC 414

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

S CI 2012 06951

JOSEPHINE DINATALE	Appellant
v
SWEENEY RESEARCH PTY LTD	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2013
DATE OF JUDGMENT:	13 August 2013
CASE MAY BE CITED AS:	Dinatale v Sweeney Research
MEDIUM NEUTRAL CITATION:	[2013] VSC 414

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APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW – Accident Compensation – Weekly payments – Whether no current work capacity - Suitable employment – Whether worker able to return to work in suitable employment – Whether findings open – Reasons – Whether reasons inadequate – Magistrates’ Court Act 1989, s 109 – Accident Compensation Act 1985, ss 5 and 93C.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P G Nash QC with Mr C E Hangay	Slater & Gordon
For the Respondent	Mr R P Gorton QC with Mr R Kumar	Wisewould Mahony

HIS HONOUR:

Introduction

Between 1995 and 2007, the appellant was employed by the respondent as a market research interviewer. On 23 January 2007, the appellant lodged a WorkCover claim form pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”). In the claim form, the appellant described her injury as “RSI” affecting “both hands and right elbow”. The claim was accepted.

Weekly payments were made to the appellant, in accordance with the provisions of the Act, until terminated on 25 October 2009. The appellant’s weekly payments were terminated on the basis that she had been paid for a total of 130 weeks and had a current work capacity; alternatively, the appellant had no current work capacity but it was not likely that this would continue indefinitely.[1]
[1]Cf s 93CC of the Act as it was prior to 5 April 2010 (see now s 93C of the Act).

On 19 October 2011, the appellant, as plaintiff, commenced a proceeding against the respondent, as defendant, in the Magistrates’ Court. In the Magistrates’ Court proceeding, the appellant sought an order for weekly payments of compensation pursuant to s 93CC of the Act[2] from the date of the termination of her payments, and an order for such payments to continue into the future. The respondent resisted the appellant’s claim, contending that the appellant had a current work capacity within the meaning of the Act; alternatively, that any lack of current work capacity was not likely to continue indefinitely.
[2]As it was prior to its repeal on 5 April 2010 by s 31 of the Accident Compensation Amendment Act 2010 (the provisions of which (s 93CC) were substantially re-enacted in s 93C of the Act by s 31 of the same 2010 amending Act).

The Magistrates’ Court proceeding was heard by Magistrate Lauritsen[3] on 30 and 31 October 2012. On 19 November 2012, his Honour dismissed the appellant’s proceeding and ordered the appellant to pay the respondent’s costs.
[3]As his Honour then was.

Pursuant to s…

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.

Continue reading Dinatale v Sweeney Research

Details

AGLC: Dinatale v Sweeney Research [2013] VSC 414
Case: [2013] VSC 414
Decision Date: 13 August 2013

CaseChat Overview and Summary

Dinatale v Sweeney Research is an appeal from the Magistrates’ Court concerning an accident compensation claim. The plaintiff, Dinatale, sought weekly payments for total incapacity due to an injury sustained at work. Sweeney Research, the employer, contested the claim, arguing that Dinatale had the capacity to return to suitable employment. The court was required to determine the validity of the plaintiff’s claim for total incapacity and the adequacy of the reasons provided by the magistrate in their decision.

The legal issues before the court were whether the findings made by the magistrate were open on the evidence and whether the reasons provided were adequate. The court needed to consider the evidence presented and determine if the plaintiff had no current work capacity and if suitable employment was available. The court also had to assess whether the magistrate's reasons were sufficient under the Accident Compensation Act 1985 and the Magistrates’ Court Act 1989.

The court concluded that the magistrate's findings were open on the evidence, and the reasons provided were adequate. The court found that Dinatale had no current work capacity and that suitable employment was available. The reasons given by the magistrate were deemed sufficient, as they provided a clear analysis of the evidence and the legal standards applied. The court upheld the decision of the magistrate, affirming that Dinatale was entitled to weekly payments for total incapacity.

The final orders of the court were to dismiss the appeal and affirm the decision of the Magistrates’ Court, which granted Dinatale weekly payments for total incapacity. The court found that the magistrate's reasons were adequate and that the findings were open on the evidence. The plaintiff was thus entitled to continue receiving weekly payments as determined by the magistrate.

Orders