Legal Research
Cases
Edwards v McSaveney

Edwards v McSaveney

Case [2005] VSCA 252 19 October 2005

Limitation Periods

Knowledge

Subjective Knowledge

Civil Litigation & Procedure

Type to search within this case.

Revised

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3776 of 2004

CRAIG EDWARDS
	Applicant
v.
DAVID McSAVENEY and ROSEMARY McSAVENEY	Respondents

---

JUDGES:	CHERNOV, NETTLE and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2005
DATE OF JUDGMENT:	19 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 252

---

Accident compensation – Application under s.135A(4)(b) Accident Compensation Act 1985 – Whether application unavailable by reason of s.135AC – s.135AC(b) – Whether “the incapacity arising from the injury” was known to the applicant before a certain date – Knowledge subjective to the applicant – Characterization of subjective knowledge by trial judge – Whether bare hope a part of, or decisive of, the applicant’s knowledge – Leave to appeal refused.

Accident Compensation Act 1985, s.135AC(b).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. P. Kennan, Q.C. with Mr A.D.B. Ingram	Holding Redlich
For the Respondents	Mr J.H.L. Forrest, Q.C. with Mr P.H. Solomon	Solicitor to the Victorian Workcover Authority

CHERNOV, J.A.:

I will invite Ashley, J.A. to deliver the first judgment.

ASHLEY, J.A.:

Statement of the case

Before the Court, in form, is an appeal against orders made by a County Court judge on 17 September 2004 by which his Honour dismissed an application made by the putative appellant under s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”). It is not in debate, however, that Craig Edwards, the unsuccessful party below, requires leave to appeal. The matter proceeded before this Court on the basis that leave to appeal was sought; and, in the event that leave was granted, that the appeal be determined. In the circumstances it is convenient to refer to Mr Edwards as the applicant.

Before the court at first instance there was, in addition to Mr Edwards’s application, a summons issued by the respondents, David and Rosemary McSaveney, which sought an order that the application be struck out or permanently stayed in reliance upon s. 135AC of the Accident Compensation Act. The learned judge decided that the respondents’ summons was incompetent, but that he could consider s.135AC in the context of determination of the s.135A(4)(b) application. His Honour was right to conclude that s.135AC should be considered; but on proper analysis it ought to have been considered in the context of the respondents’ summons. [1]
[1]See Paget v JLT Workers Compensation Services Pty Ltd and anor [2005] VSCA 144 at [20] per Callaway JA.

Before going on, it is convenient to set out s.135AC. Thus –
“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced –
(a)subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b)if the cause arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application…

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 Edwards v McSaveney

Details

AGLC: Edwards v McSaveney & Anor [2005] VSCA 252
Case: [2005] VSCA 252
Decision Date: 19 October 2005

CaseChat Overview and Summary

In Edwards v McSaveney, the applicant sought to exercise an option under section 135A(4)(b) of the Accident Compensation Act 1985. The dispute centred on whether the applicant's right to make such an application was precluded by section 135AC(b) of the Act. Specifically, the issue was whether the applicant had knowledge of the incapacity arising from the injury before a particular date. The case was heard in a relevant Australian court, which had to determine the correct interpretation of the applicant's knowledge as per section 135AC(b). This involved examining whether the applicant's knowledge was subjective and whether a mere hope could form part of or be decisive of that knowledge.

The court examined the trial judge's characterization of the applicant's subjective knowledge, considering whether a bare hope could constitute part of, or be decisive of, the applicant's knowledge. The interpretation of "knowledge" under section 135AC(b) was pivotal, as it determined the applicability of the section to the applicant's situation. The court also had to decide whether the applicant's hope, without more, could be sufficient to establish knowledge of the incapacity for the purposes of the Act.

The court concluded that the trial judge's characterization of the applicant's knowledge was not in error, and a bare hope did not form part of, or decisively constitute, the applicant's knowledge for the purposes of section 135AC(b). Therefore, the applicant's right to exercise the option under section 135A(4)(b) was not precluded by section 135AC(b). The court found that the applicant's knowledge was not sufficiently established to trigger the preclusion under section 135AC(b). Consequently, the application was not unavailable to the applicant.

The court's decision affirmed that the applicant could proceed with their application under section 135A(4)(b) of the Accident Compensation Act 1985. The court's refusal of leave to appeal further solidified the outcome, ensuring that the applicant's right to make the application was upheld.

Orders