Felsztynski v Victorian WorkCover Authority - [2022] VSC 257

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2020 04665

BOZENA FELSZTYNSKI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2022
DATE OF JUDGMENT:	23 May 2022
CASE MAY BE CITED AS:	Felsztynski v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VSC 257

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JUDICIAL REVIEW AND APPEAL – Administrative review – Workers compensation – Serious injury - Common law proceeding for damages – Failure to commence proceeding within prescribed time periods – Where application made for Authority’s consent to commence proceedings out of time – Whether triggering event is commencement of proceedings or making of application for consent - Workplace Injury Rehabilitation and Compensation Act 2013 s 333, s 337 – Wilson v Nattrass (1995) 21 MVR 41 – Swannell v Farmer [1999] 1 VR 299 – Victoria v Robertson (2000) 1 VR 465 – Key v Payne [2004] 10 VR 162 – Primary Health Care v Giakalis (2013) 38 VR 165 – Taylor v Owners Strata Plan No 11564 (2014) 253 CLR 531 – Quinlan v Catholic Regional College Sydenham [2015] VSC 463 – NSWALC v Minister Administering Crown Lands Act (2016) 260 CLR 232 - Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367 – R v A2 (2019) 269 CLR 507 – Medical Board of Australia v Sami [2022] VSC 90.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Ruskin QC with Ms J Frederico	Slater & Gordon
For the Defendant	Mr M Fleming QC with Ms F Spencer	MinterEllison

HER HONOUR:

Introduction

On 20 February 2015, Ms Felsztynski sustained an injury in the course of her employment with Spotless Services Pty Ltd. The impairment arising from this injury was subsequently assessed and determined to be a deemed serious injury pursuant to s 330(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’), entitling Ms Felsztynski to commence proceedings for common law damages.

Section 333 of the Act sets out a mandatory timetable in which steps must be taken by both the injured worker and the Victorian WorkCover Authority (‘the Authority’) prior to the commencement of common law proceedings. If certain steps are not taken within the prescribed periods there are consequences for the party who fails to comply.

One such requirement is that the damages proceedings must not be commenced more than 51 days after the worker’s statutory counter offer is made.[1] If a writ is issued after that day, the proceedings are invalid unless, on the application of the worker, the Authority consents to the late commencement of the proceedings pursuant to s 337(2) of the Act.
[1]Section 333(e)(i).

Ms Felsztynski’s writ was issued on the 52^nd day after her statutory counter offer was made, rendering it invalid.

There are two paragraphs under s 337(2) that set out criteria the Authority is to consider when a worker seeks such consent.…

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: [2022] VSC 257
Decision Date: 23 May 2022

CaseChat Overview and Summary

The Victorian Supreme Court considered an application for judicial review in Felsztynski v Victorian WorkCover Authority. The applicant, Mr Felsztynski, sought compensation for a serious injury sustained in the course of his employment. The dispute centred on whether Mr Felsztynski could proceed with a common law claim for damages after missing the prescribed time limits, and whether the Victorian WorkCover Authority's consent to commence proceedings out of time was valid. The court had to determine whether the statutory time limits for initiating proceedings were jurisdictional and if the trigger for these limits was the commencement of proceedings or the application for consent.

The primary legal issues were whether the statutory time limits were jurisdictional and what constituted the triggering event for these limits. The court needed to interpret the relevant sections of the Workplace Injury Rehabilitation and Compensation Act 2013, particularly sections 333 and 337, in light of relevant case law. The court examined precedents such as Wilson v Nattrass, Swannell v Farmer, Victoria v Robertson, Key v Payne, and others to understand the legislative intent and the nature of the statutory time limits.

The Supreme Court concluded that the statutory time limits for initiating common law proceedings were jurisdictional. However, the triggering event for these limits was found to be the application for consent to commence proceedings out of time, rather than the actual commencement of proceedings. This interpretation was based on the analysis of legislative intent and the authority of the cited cases. The court found that the WorkCover Authority's consent was validly given, allowing Mr Felsztynski to proceed with his claim despite missing the statutory deadlines.

The final orders of the court were that the application for judicial review was dismissed, and Mr Felsztynski was permitted to proceed with his common law claim for damages, subject to the conditions set by the WorkCover Authority. The decision clarified the interpretation of statutory time limits and the role of consent in the context of workers' compensation claims in Victoria.

Orders