Filipovski v Ogemi Services Pty Ltd & Anor

[2010] HCATrans 187

[2010] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M97 of 2009

B e t w e e n -

VIOLETA FILIPOVSKI

Applicant

and

OGEMI SERVICES PTY LTD

First Respondent

VICTORIAN WORKCOVER AUTHORITY

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JULY 2010, AT 11.38 AM

Copyright in the High Court of Australia

MR D.G. COLLINS, SC:   If the Court pleases, I appear with my learned friend, MR N.Y. RATTRAY, for the applicant. (instructed by GK Law)

MR S.A. O’MEARA:   If the Court pleases, I appear on behalf of the respondents.  (instructed by Lander & Rogers Lawyers)

HAYNE J:   Yes, Mr Collins.

MR COLLINS:   Your Honour, the special leave questions we propose are at page 114 of the application book.  In relation to proposed questions 1.1 and 1.2 we rely upon the summary of argument and do not have any additional submissions to make.  In relation to 1.3 the argument, essentially, is that whether the question of whether there was an aggravation of the applicant’s injury by her work after 20 October 1999 was a question of fact which the court was required to determine for itself, irrespective of whether on the proper construction of the Act – the Accident Compensation Act 1985 – given the nature of the inquiry, was to be determined under section 134AD of the Accident Compensation Act 1985 or section 74(3) of the County Court Act.

What is apparent, not perhaps from the express description of the nature of the examination of the majority of the court as to whether or not there had been aggravation, but from the substance of the approach is that they treated the two questions as being different, that whether the inquiry as to whether or not there had been an aggravation by work, or at least a significant contribution by work, to the aggravation subsequent to 20 October 1999, differed depending on whether it was determined under section 134AD or section 74(3). It is submitted that that was wrong and that is clear from the decision in Dwyer.

As the plurality judgment in Dwyer makes clear the second reading speech makes it clear that the reason section 134AD was introduced was to address this very problem that in determining whether an injury was a serious injury the Court of Appeal had applied the test in Mobilio. That is inconsistent with the proper exercise of the jurisdiction of the Court of Appeal under section 74(3). In Dwyer itself it was clearly exercise of the jurisdiction under section 134AD, but it was the approach to that question.

We submit that what is clear is Justice Neave addressed the question as one of significance as determining what was the proper approach to determining a question of whether there had been an aggravation and as if there were a difference and what occurred, there being no question of whether or not it was a question that could be remitted and might be remitted to the County Court, then embarked on determining the question under 74(3) as if that made a difference.

The substance of the judgment makes it clear that it was done by examining the reasoning of the trial judge and considering whether there was an error disclosed by the reasoning, as opposed to a genuine reconsideration of all of the evidence in accordance with the principles in Fox v Percy and Warren v Coombes, giving due deference to the conclusions on credibility of the trial judge, but in the light of objective facts and facts which were not disputed, which is ultimately what Justice Robson did in his dissenting judgement.

HAYNE J:   Where do we find, most conveniently, the commission of the error that you say is made by the majority?

MR COLLINS:   If your Honours go to application book page 60 in paragraph 80 your Honours will see her Honour formulates the question as:

After the appeal was heard the Court considered that a question arose as to whether an appeal against a decision that the plaintiff did not suffer a compensable injury on or after 20 October 1999, was governed by s 134AD. Counsel were invited to make written submissions on that issue.

It is one clearly indicating the point of difference.  If you then go to paragraphs ‑ ‑ ‑

HAYNE J:   But their Honours distinguish between appeal under 134AD and an appeal under the general provision, I understand.  But where in her Honour’s reasons do I find her – perhaps I am asking the impossible.  Is there a part in her Honour’s reasons where I will find what you say is the commission of the error of failure to consider for herself, in accordance with Fox v Percy?

MR COLLINS:   Ultimately, your Honour, you find it in her reasoning as to why the trial judge did not err and the way in which that question is formulated.  If I just go firstly to paragraph 86, on page 28 and you will see why her Honour formulated the question the way she did.  In the last sentence at paragraph 86 her Honour formulates the question:

The question of whether or not the injury was compensable could not be resolved without the Court also ‘deciding for itself’ whether the injury was a serious one –

Was the question and 87:

In order to decide whether the requirement that the Court of Appeal ‘decide for itself’ applies to the decision as to whether an injury occurred in compensable circumstances, as well as the decision as to whether the applicant suffered a serious injury, it is necessary to briefly consider the complex legislative history of the Act.

Now, your Honour, that identifies, as if it were a question, whether the Court of Appeal had to decide for itself that question. It did not matter whether it was to be decided under section 74(3) or section 134AD. The jurisdiction of the court required it to decide the question for itself and once it embarks upon that process, rather than remit it to the County Court, which practically it could not do, given the nature of the question, there was no difference. There ought to have been no difference.

The fact that her Honour treats it as a critical question makes it clear – if not expressly, at least by implication – that she proceeded on the basis that there was a difference in deciding it for itself, whether under section 74(3) of the County Court Act or section 134AD. Her Honour then, in paragraph 101, does state that in a previous decision it was:

held that the appeal was governed by s 74(3) of the County Court Act and the line of cases culminating in Fox v Percy and CSR Ltd v Della Maddalena, rather than by s 134AD -

which again indicates – at least implicitly – that there is a difference in the process of deciding for itself, depending on which section applies, whereas we submit that there is not and we accept, at least her Honour correctly stated the line of authority but then did not apply it in the process of determining the question.  She then proceeded as if the authorities she referred to entitled the court to limit its inquiry as to whether there had been demonstrated error on the part of the trial judge, rather than reconsidering the whole of the evidence, giving due weight to objective evidence while recognising the benefit of the trial judge in determining issues of credit.

CRENNAN J:   Can I ask you to look at paragraphs 31 and 32 in the Dwyer decision?  Just explain to me how the argument you are putting fits with what is said in those two paragraphs?

MR COLLINS:   We say it is entirely conformable with that, your Honour, although at the time of Dwyer they proceeded on the basis that the Court of Appeal had proceeded under section 134AD, as if in doing so the court could take account of the expertise of the County Court as a specialist jurisdiction and things of that nature; almost reading into 134AD the type of considerations given weight in Mobilio.  Is your Honour directing this inquiry to the third question of the appeal or the first two points?

CRENNAN J:   Well, insofar as you are arguing the third question of appeal you have raised this case and your argument seems to touch on the issues dealt with in those two paragraphs.  I just wanted to better understand how it fitted with those two paragraphs.

MR COLLINS:   It is consistent, your Honour, because if you look at 32 and the way in which the court says:

134AD cuts in upon what otherwise are the generally expressed powers conferred by s 74(3) of the County Court Act for the disposition of appeals by the Court of Appeal. One possibility provided by s 74(3) is a direction that the civil proceeding be reheard before the County Court. However, s 134AD enjoins the Court of Appeal, with the assistance of what should be the detailed reasons of the County Court, to decide “for itself” whether the injury is a “serious injury” and to do so on the evidence and material before the primary judge together with such other evidence as the Court of Appeal itself has received.

So that is exactly the same as deciding the questions of law and fact for itself under section 74(3). The distinction that the court draws attention to is the power under section 74(3) to remit the matter to the County Court, rather than determine it itself. But once it is accepted that you are embarking on the process of determining the question raised in the appeal, that is whether or not there was an aggravation, there is nothing in paragraphs 31 or 32 indicating the test under section 134AD and section 74(3) is significant.

CRENNAN J:   The question you are embarking on is really whether there was compensable injury on or after the – I think it was 20 October 1999?

MR COLLINS:   Well, that is a question of fact ‑ ‑ ‑

CRENNAN J:   In the sense that that is antecedent to a serious injury question.

MR COLLINS:  Well, the question of whether the injury – if there is an injury – was a serious injury, but this argument proceeds on the basis that it is an antecedent question and, therefore, to be determined under section 74(3). The argument is, but even if you get to that point, which means we have failed on the first two points of appeal, it makes no difference as to the burden the court has. The reason for section 134AD, which the decision in Dwyer makes clear, is the state of authority as at the time the 2000 Act was introduced, which suggested that it was not a genuine rehearing of the facts, because a decision as to whether there was a serious injury could be treated as quasi discretionary and, therefore, subject to the principles in Crown v House. 

We submit that that is wrong and clearly wrong now and, therefore, her Honour though does not appear to have proceeded – we say it is clear by implication, was proceeding on the basis that there was a distinction as to the task of the court, the jurisdiction it was required to exercise in determining whether or not there was the aggravation.  That is on the view the court took and contrary to our first two points that if you are embarking on the question whether there was an aggravation that is a finding of fact that the court has to make for itself and there is no difference, whereas the court has proceeded as if there was.

If it was truly applying the proper test, which is the test as stated by this Court in Dwyer, then the Court would not have formulated the question the way it did and identified the question as it did in paragraphs 101 and 86 and 87.  In paragraph 109 of the reasons, again her Honour states that the:

appeal under s 74(3) of the County Court Act 1958, which is governed by the principles set out in cases such as Fox v Percy and CSR Ltd v Della Maddalena –

Her Honour does not anywhere identify what she believes or concluded was the distinction between those principles and the principles to be applied under section 134AD, what the difference in nature of the appeal process was, but it is clear implicitly that she did. Then her Honour states, in the next sentence in paragraph 109 –

Thus the Court’s task is to decide the facts, as well as the law, for itself –

which seems to be recognising that there is not any difference, although that is the very task that the court has been embarked on –

whilst having regard to the advantages of the judge who decided the application –

which must be the case under section 134AD as well –

including any credibility findings which he or she made.

After stating that test as if you would think there was no difference her Honour then examines the submissions, deals with the adequacy of reasons, which we need not trouble about and then identifies the question in the heading in italics, immediately above 122 and does not formulate as a question that the court is then determining for itself, as would be the correct formulation, which is did the plaintiff suffer a compensable injury?  It is formulated as should his Honour have found that the plaintiff suffered a compensable injury?  That is not the right question.

Then she examines submissions of the parties as if it was a question of submissions as to whether his Honour had erred and then sets out conclusions and relevantly, your Honour, the conclusions are set out in paragraphs 135 to 147 and that is the whole of the reasoning in relation to that question, not dealing with the competing contentions and all the evidence.

Now, when you look at the factual background there are objective facts.  The objective facts are there was no dispute about the diagnosis of an L5‑S1 disc prolapse.  There was no dispute that Mrs Filipovski returned to work within a few days, within a couple of weeks of the injury, by early October.  There was no dispute that having suffered the incident at work and having an injury she continued to perform her work as a steward in the Qantas lounge for eight months, which involved lifting of heavy trays, standing for long periods, the sort of work which all the doctors said was inappropriate for someone with a disc prolapse.  Why is it inappropriate?  Necessarily because it is the very type of thing prone to aggravate and accelerate a disc injury.  There was no dispute ‑ ‑ ‑

CRENNAN J:   I think Dr Barrett had something to say about that, did he not?

MR COLLINS:   Well, Dr Barrett supported the applicant and described the process and the distinction between something like a broken leg, which occurs as a result of incident and that is it.

CRENNAN J:   And disc deterioration.

MR COLLINS:   And disc deterioration which, necessarily, by the ongoing process of lifting and bending, standing for long periods of time, handling heavy trays, even when you have asked for light work and it has been refused, none of which was in dispute, but that was not challenged and no evidence was called by the respondent to dispute that, so they are all objective facts.  There was a dispute to be determined as to whether or not Mrs Filipovski had suffered more severe pain than she had noticed on the evening of 5 June 2000 and we accept his Honour’s finding on that issue of fact cannot be disturbed and the Court of Appeal had no basis to disturb that finding, but that is just a fact as to whether or not she had that pain that evening.  Then there was no issue that on the morning of the 6th she woke with very severe pain and was then unable to continue to stand and perform her work. 

So they were the objective facts and you go to the medical evidence and none of the doctors expressly said, contradicting Mr Barrett, that he was wrong about the process of the development of prolapse injury and the

pathology of it.  That is not a question of credibility and the trial judge – and nor does Justice Neave – express the view that his expert opinions as to the nature of the progression of disc injury was wrong or that it was a basis to reject it, when there was no medical evidence disputing it. 

So we submit that although her Honour does not expressly say there is a distinction and does not expressly say the court does not undertake the burden of commencing for itself, as if from the beginning, to determine the factual question of whether there was an aggravation it is apparent that the court has not, as it is required to, in accordance with the decision in Dwyer carefully examine the evidence and exercised its jurisdiction in the way that Justice Robson did, proceeding as we say is correct, in a sense, because it did not – when properly analysed – really matter whether it was dealt with under section 74(3) or section 134AD. Now, that being the point ‑ ‑ ‑

HAYNE J:   Well, I see that your time has expired, Mr Collins.  Is there anything you particularly need to add?

MR COLLINS:  Only this, your Honour. As to the significance given the repeal of section 134AD that, in fact, makes it more important, particularly in relation to the third question because otherwise the Court of Appeal can proceed as if there was a distinction between 134AD and section 74(3) and, therefore, it is not required to determine questions of whether there has been an injury, within the meaning of the Act, as if to decide it for itself in accordance with the decision of the Court in Dwyer, because of it not being any longer under section 134AD and that would be wrong. As the Court pleases.

HAYNE J:   Thank you, Mr Collins.  Mr O’Meara, would you direct your submissions, at least in the first instance, to those issues which were addressed by Mr Collins orally?

MR O’MEARA:   Yes, your Honour. Your Honour, the consequence of section 134AD and the judgment of this Court in Dwyer and the reasons of this Court in Dwyer is and has been since 2008 and before that that error need not be shown if the Court of Appeal comes to the point of determining the issue of serious injury.  That is the principal distinction between 134AD and Fox v Percy because Fox v Percy makes it clear in paragraph 27 of the majority’s decision that it is upon the demonstration of error that the Court of Appeal will intervene and it is at that point that the court becomes obliged to, as the majority said:

discharge their appellate duties in accordance with the statute.

In the present case, your Honours, the majority decision or it is effectively the decision of the majority, at page 73 of the application book, commences with posing a question in a heading:

Should his Honour have found that the plaintiff suffered a compensable injury?

That is no more than to say was the trial judge or was the primary judge in error in finding that there was no compensable injury in the period between 26 September 1999 and 6 June 2000?  Of course, the primary judge found that there was no such injury in that time, which finding was open, and I will come to that if I need to.  But it was correct, in my submission, for the Court of Appeal then to approach the reasons of the trial judge and the finding below, looking for the commission of error.   The court did so by then addressing, in paragraphs 122 until paragraph 128, the submissions as they were put by the appellant below and then the respondent’s submissions between 129 and 134.

At page 76 of the application book, from paragraph 135 there is reference there to section 74 and then over the page there is reference to – effectively it is said there are three different ways in which the injury could have occurred, but there are two relevant ways in the context of this particular dispute.  One is at 137, page 77 of the application book and that is, in effect, was it a non‑compensable aggravation which happened on 26 June when the plaintiff got out of bed and the primary judge below had found that that was the case.  If so, no compensable injury.  At paragraph 138 did the plaintiff aggravate her back “in compensable circumstances” after 20 October 1999; that was the appellant’s case.

The court then went on to determine the fact that there was a conflict in the evidence and in the manner in which the evidence and argument had developed at trial, because initially when the plaintiff gave her histories to doctors she talked about a specific – effectively what we would call a frank incident – on 26 September 1999 and then getting out of bed, without much reference to what occurred in between times, which history then seemed to change.  It was on that basis that Mr Barrett, when he first looked at the matter, concluded in his opinion that the plaintiff had suffered a – or as he put it – sustained her injury on 26 September 1999.

Mr Barrett then, when he came to be cross‑examined about why he changed his view and retreated from that position, admitted that there was no change in the history, but he talked about what he said was the natural history of this kind of injury.  Now, that stood against a significant body of medical evidence and, indeed, stood against the evidence of the plaintiff, which was that there was no incident between September 1999 and June 2000 at work.  There was no medication in that time, there were no

attendances upon doctors or radiology or anything of the like.  At best it got to there was a bit of periodic pain and, of course that ‑ ‑ ‑

HAYNE J:   Well, this is to descend into the facts ‑ ‑ ‑

MR O’MEARA:   Yes it is, your Honour.

HAYNE J:   ‑ ‑ ‑ at a considerable level.  Is there anything further you would wish to say in answer to the proposition advanced against you, which either is, or at least includes, the proposition that if this was to be seen as a Fox v Percy appeal the Court of Appeal did not undertake a Fox v Percy task?

MR O’MEARA:   Yes, your Honour.  Between paragraphs 139 and 146 of her Honour’s judgment that conflict in the evidence which I am talking about – I have been addressing – is discussed.  Then in paragraph 147 her Honour concluded that:

the judge correctly found that the appellant has not established, on the balance of probabilities, that she suffered a compensable injury after 20 October 1999. 

That, in my submission, is the end of the Fox v Percy debate.  At that point the court – with Justice Buchanan agreeing – concluded that there was, on the evidence, no compensable injury.  It had been correct for the primary judge to find that there was no compensable injury in that time.  That is the end of the argument, whether it is Fox v Percy or probably for all practical purposes if it was to be decided under Dwyer as well.

HAYNE J:   Yes.

MR O’MEARA:   Your Honour, there was one further matter which was raised by my learned friend and that concerned the repeal of the section.  It said that there is no difference, but obviously there is a difference between the two.  The repeal of the section obviously means that this particular vehicle has some limited relevance in the future, but I cannot put it any higher than that.  Unless I can further assist your Honour.

HAYNE J:   Yes, thank you.  Yes, Mr Collins.

MR COLLINS:   Your Honour, in relation to my learned friend’s reference to paragraph 27 of the decision in Fox v Percy that really highlights the error in their argument and we would say in the approach to the court because the type of error there referred to is error in the ultimate conclusion of fact, not error in the sense of some error in the process of reasoning of the trial judge.  In relation to the sections of the reasons my learned friend

has referred to, it is true that there is the conclusion stated and if all that had to appear to demonstrate the Fox v Percy process in approach to appeal was to state the conclusion, it would be there.

But given that there is a distinction in the approach stated in the judgment, although what the distinction is, is not stated; the process of reasoning clearly does not involve a canvassing for evidence below as if it were to be determined properly, in accordance with Fox v Percy.  As the Court pleases.

HAYNE J:   Thank you. To the extent to which the applicant seeks to raise questions of principle about the intersection of what was section 134AD of the Accident Compensation Act 1985 (Vic) and section 74(3) of the County Court Act 1958 (Vic) we are not persuaded that the applicant enjoys prospects of succeeding in demonstrating that the Court of Appeal erred in reaching the conclusions it did which are sufficient to warrant the grant of special leave to appeal. Nor are we persuaded that the applicant enjoys sufficient prospects of demonstrating that the Court of Appeal did not perform the tasks required of it by section 74(3) of the County Court Act.  Accordingly, special leave to appeal is refused. 

Mr O’Meara.

MR O’MEARA:   We apply for costs, your Honour.

HAYNE J:   Yes.  Do you say anything?

MR COLLINS:   No, your Honour.

HAYNE J:   Will be refused with costs.

AT 12.10 PM THE MATTER WAS CONCLUDED