Ford Motor Company of Australia Limited v Ghassan Merhi

[2015] HCASL 112

FORD MOTOR COMPANY OF AUSTRALIA LIMITED

v

GHASSAN MERHI

[2015] HCASL 112
M3/2015

1. The respondent alleged that he suffered injuries during the course of his employment with the applicant. He applied to the County Court of Victoria for leave to commence proceedings seeking damages for pain and suffering and loss of earning capacity on the basis that each of his injuries was a "serious injury" within the meaning of s 134AB(37) of the Accident Compensation Act 1985 (Vic).

2. At trial, the respondent was cross‑examined as to the seriousness of his alleged injuries. He was shown surveillance films depicting him moving freely. The primary judge (KL Bourke CCJ) found the respondent's evidence was not reliable and that none of the respondent's injuries were a "serious injury" under s 134AB(37).

3. The respondent appealed to the Court of Appeal of the Supreme Court of Victoria.  Before the appeal, the respondent had an operation on his back.  On 9 April 2014, he sought leave by summons to adduce fresh evidence of his lumbar spine condition and to add a further ground of appeal relating to that evidence.  The applicant also sought leave to adduce fresh evidence of video surveillance taken of the respondent after his operation. 

4. The Court of Appeal (Neave JA, Tate and Santamaria JJA agreeing) allowed the applications of both parties.  The Court considered that, in light of the fresh evidence, the weight of medical opinion might support the respondent's claim to have suffered a serious injury, but held that the fresh evidence should be tested.  On that basis, the Court quashed the decision below and remitted the matter to the County Court for determination.

5. The applicant seeks special leave to appeal to this Court from the Court of Appeal's decision.  The application concerns the exercise of discretion in a matter of practice and procedure.  The principles informing the exercise of that discretion are settled, and were applied in this case in an orthodox way.  Special leave should be refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application, with costs.

S.M. Kiefel
18 June 2015 P.A. Keane