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Franklin v Ubaldi Foods Pty Ltd

Franklin v Ubaldi Foods Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3765 of 2005

DENNIS FRANKLIN
	Appellant
v.
UBALDI FOODS PTY LTD	Respondent

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JUDGES:	WARREN, C.J., NETTLE and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2005
DATE OF JUDGMENT:	21 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 317

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Accident compensation – Appeal from unsuccessful application made under s.134 AB(16)(b), Accident Compensation Act 1985 – Whether reasons of primary judge adequate to disclose path of reasoning – Whether judge in substance failed to consider appellant’s case – reasons not adequate – Appeal allowed – Application remitted for re-hearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.H. Kennan, S.C. and Mr A.D.B. Ingram	Clark & Toop
For the Respondent	Mr J.H.L. Forrest, Q.C. and Mr P.H. Solomon	Wisewoulds

WARREN, C.J.:

I agree with the reasons of Ashley, J.A. that I have had the advantage of considering in advance. I would allow the appeal and remit the matter for re-hearing.

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Ashley, J.A.

I agree with his Honour, for the reasons which he gives, that the appeal should be allowed and that the matter should be remitted to the County Court for a rehearing of the appellant’s application.

ASHLEY, J.A.:

Statement of the Case

This is an appeal by right from the order of a County Court judge dismissing the appellant’s application under s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring a proceeding in respect of serious injury allegedly arising out of the appellant’s employment with his employer on or after 20 October 1999.

The appellant, Dennis Franklin, was employed by Ubaldi Foods Pty Ltd, the respondent, between early 1998 and December 1999. His work involved preparation of Italian foods of different kinds. It was not in dispute at the hearing of the application that he was required to lift and otherwise handle crates, bags, and other containers of food stuffs which weighed between 10 and 25 kilos; and to do so regularly.

The evidence showed clearly that by December 1999 the appellant was

suffering from an L5/S1 intervertebral disc prolapse with nerve impingement. This was evidenced by lower back pain and symptoms affecting the left buttock and thigh.

The matters which the appellant had to establish under s.134AB (16)(b), as that section was explained by this Court in Barwon Spinners P/L v. Podolak[1], were these:

·First, that he had suffered compensable injury.
·Second, that such injury had been sustained in employment on or after 20 October 1999.
·Third, that such injury was serious injury – as to which see sub-ss. (37) and (38).

[1][2005] VSCA 33.

The matters may be so simply identified because, despite certain intimations in advance of the hearing, the appeal proceeded without any aspect of Barwon Spinners being challenged[2]; and without any question there left open[3] being addressed.
[2]Which would have necessitated, presumably, convening a court of five.
[3]For example, at [89].

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: [2005] VSCA 317
Decision Date: 21 December 2005

CaseChat Overview and Summary

In the case of Franklin v Ubaldi Foods Pty Ltd, the dispute arose from a claim for compensation under the Accident Compensation Act 1985. The applicant, Franklin, sought compensation following an incident that occurred during his employment with Ubaldi Foods Pty Ltd. The primary judge dismissed Franklin's application, prompting an appeal on the basis that the judge's reasons were inadequate and failed to consider the applicant's case.

The primary legal issue before the court was whether the reasons provided by the primary judge were adequate to disclose the path of reasoning, and whether the judge had in substance failed to consider the applicant's case. The court needed to determine if these failings warranted a re-hearing of the application. The applicant argued that the reasons did not adequately explain the basis for the dismissal and failed to address key aspects of his case.

The court found that the reasons given by the primary judge were indeed inadequate as they did not clearly articulate the path of reasoning or address the applicant's arguments sufficiently. The court held that the primary judge had failed in substance to consider the applicant's case. Consequently, the appeal was allowed, and the matter was remitted for re-hearing to ensure that the application would be properly considered and decided upon with adequate reasons provided.

Orders