Filipovski v Ogemi Services Pty Ltd - [2009] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3765 of 2007

VIOLETA FILIPOVSKI	Appellant
	v
OGEMI SERVICES PTY LTD & ANOR	Respondents

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JUDGES	BUCHANAN, NEAVE JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 November 2008
DATE OF JUDGMENT	9 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 230
JUDGMENT APPEALED FROM	Filipovski v Ogemi Services Pty Ltd & Anor (Unreported, County Court of Victoria, Judge Lewis, 16 November 2007)

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ACCIDENT COMPENSATION – Accident Compensation Act 1985 ss 134AB(16), (19) and (38) – Appeal against refusal of lower court to grant leave to commence proceedings to recover damages – Inconsistent evidence as to when injury suffered – Adverse findings by trial judge as to the credibility of witnesses – When injury suffered – Whether s 134AD, Accident Compensation Act 1985, applies to appeal on question of whether injury suffered on or after 20 October 1999 – Whether compensable injury established by aggravation of injury – Whether reasons inadequate – Appeal dismissed.

PRACTICE AND PROCEDURE – Application for leave to admit new evidence relevant to date injury suffered – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Kennan SC with Mr M J Stiffe	Ellis Palmos & Co
For the Respondents	Mr J L Parrish SC with Mr M F Fleming	Lander & Rogers

BUCHANAN JA:

I have had the advantage of reading draft reasons for judgment prepared by Neave JA.

I agree with her Honour, for the reasons she has stated, that this Court’s determination of the question whether the appellant suffered a compensable injury on or after 20 October 1999 is covered by the provisions of s 74(3) of the County Court Act 1958. The question whether that injury met the description of a serious injury is a distinct question governed by the provisions of s 134AD of the Accident Compensation Act 1985. The fact that both issues may involve consideration of common evidence does not mean that they are inextricably intermingled.

I also agree with Neave JA, again for the reasons she has stated, that the appeal should be dismissed.

NEAVE JA:

The appellant, Violeta Filipovski, applied in the County Court for leave to issue proceedings under the Accident Compensation Act 1985 (‘the Act’) to recover damages for a serious injury to her lumbar spine and a serious psychiatric injury, which she alleged had occurred in the course of her employment with Ogemi Services Pty Ltd (the first respondent) from 20 October 1999 until approximately 7 June 2000.[1] Her claim to have suffered a serious psychiatric injury was withdrawn in the course of the County Court hearing.
[1]See ss 134AB(16)(b) and (19).

The County Court judge held that Mrs Filipovski had not established on the balance of probabilities that she had suffered a compensable injury to her lumbar spine on or after 20 October 1999.[2] It was therefore unnecessary for his Honour to

decide whether the injury was a serious injury, as defined by s 134AB(38)(b) of the Act.…

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: [2009] VSCA 230
Decision Date: 9 October 2009

CaseChat Overview and Summary

In the case of Filipovski v Ogemi Services Pty Ltd, the appellant sought to appeal against a refusal by the lower court to grant leave to commence proceedings for damages. The lower court had ruled against the appellant's claim on the basis that the injury alleged was not compensable under the Accident Compensation Act 1985. The court needed to determine whether the appeal was valid, the date of the injury, and if the injury was compensable.

The central legal issues revolved around the applicability of section 134AD of the Accident Compensation Act 1985 to the appeal and whether the reasons provided by the trial judge were adequate. Additionally, the court had to ascertain the exact date of the injury and whether the injury was established by an aggravation of a pre-existing condition. The appellant argued that the injury occurred after the effective date of 20 October 1999, while the respondent claimed otherwise. The court also considered the credibility of the witnesses and the consistency of their testimonies.

The court found that the appeal was not valid as section 134AD did not apply, and the reasons given by the trial judge were sufficient. The court held that the inconsistency in the evidence regarding the date of the injury, combined with adverse findings about the credibility of the witnesses, supported the lower court's decision. The court concluded that the injury was not compensable, as it was not established by an aggravation of a pre-existing injury. The application to admit new evidence relevant to the date of the injury was also dismissed.

The appeal was dismissed, and no further proceedings were allowed. The lower court's decision stood, and the appellant's claim for damages was rejected.

Orders