Frilay v Yarra Ranges Management Services Pty Ltd - [2009] VSC 578

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6412 of 2009

DENNIS LAWRENCE FRILAY	Plaintiff
v
YARRA RANGES MANAGEMENT SERVICES PTY LTD (ABN 74 084 615 565)	First Defendant
And
SWIFT AUSTRALIA (SOUTHERN) PTY LTD (ABN 65 005 062 082)	Second Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 - 8 December 2009
DATE OF JUDGMENT:	14 December 2009
CASE MAY BE CITED AS:	Frilay v Yarra Ranges Management Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 578

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COMMON LAW – Statutory offer and counter offer – Acceptance of statutory counter offer not required in writing – Circumstantial evidence – Onus of proof – Plaintiff not statute barred from bringing proceedings – Statutory counter offer not accepted in time by first defendant – Plaintiff complied with statutory procedural preconditions – Accident Compensation Act 1985, s 134AB, s 98C, s 20C – Supreme Court (General Civil Procedure) Rules 2005, r 13.05, r 47.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Tobin SC Mr Waugh	Constable Connor & Co Pty Ltd
For the First Defendant	Mr Gillies QC Mr Corrigin	Lander and Rogers
For the Second Defendant	Mr Wilson SC	DLA Phillips Fox

TABLE OF CONTENTS

Negotiations Between the Defendants.......................................................................................... 4

Communications between Mr Stockdale and Mr Connor......................................................... 5

The onus............................................................................................................................................. 15

Conclusion......................................................................................................................................... 15

HIS HONOUR:

The plaintiff has brought proceedings in this Court claiming damages for personal injuries suffered in the course of his employment on or prior to 30 December 2004.

At the time in issue he was employed by the first defendant, but worked pursuant to a hire arrangement at the second defendant’s abattoir.

The defendants contend that the plaintiff is precluded from bringing the present proceedings because he has not passed through the procedural sequence specified by s 134AB(12) of the Accident Compensation Act 1985 (‘the Act’).

This contention in turns rests on the allegation that on 17 April 2009 the solicitor for the first defendant accepted a statutory counter offer, which had been made on behalf of the plaintiff, and thereby resolved the plaintiff’s potential claim.

The first defendant seeks to resolve this issue by summons seeking a variety of alternative forms of relief, but upon the hearing of the summons submitted that the most appropriate vehicle for resolution of this question was by way of trial as a preliminary issue pursuant to r 47.04 of the Rules of the Supreme Court. This procedural course was not opposed.

Section 134AB(12) of the Act provides for a sequential procedure as follows:

(12)The worker must not commence proceedings in accordance with this section, other than an application under subsection (16)(b) or the commencement of proceedings with the consent of the Authority under subsection (20) or (20A), unless—
(a)the worker and the Authority or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at…

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] VSC 578
Decision Date: 14 December 2009

CaseChat Overview and Summary

In the case of Frilay v Yarra Ranges Management Services Pty Ltd, the plaintiff, Frilay, sought compensation for an injury sustained in the course of employment against the first defendant, Yarra Ranges Management Services. The second defendant, Australian Workers' Union, was also involved in the dispute but did not contest the proceedings. The matter was heard in the Supreme Court of Victoria. The primary issue for the court was whether the first defendant had properly accepted the plaintiff's statutory offer for compensation. Frilay argued that the statutory offer was accepted by the first defendant's actions, which were sufficient to constitute acceptance without the need for written confirmation. The court had to determine whether the statutory procedural preconditions were met and whether the acceptance of the offer was valid under the circumstances.

The court examined the evidence presented to determine if the first defendant had indeed accepted the statutory offer. The plaintiff provided circumstantial evidence of acceptance, which the court found sufficient to meet the burden of proof. The court emphasised that the requirement for written acceptance was not absolute and that acceptance could be inferred from the actions and conduct of the parties involved. Additionally, the court considered the onus of proof and found that Frilay was not statute-barred from bringing the proceedings. The court concluded that the statutory counter offer had not been accepted in time by the first defendant, and that Frilay had complied with the statutory procedural preconditions.

As a result of the findings, the court ruled in favour of the plaintiff. The first defendant was deemed to have accepted the statutory offer through its conduct, thereby establishing liability. The court's decision hinged on the interpretation of the statutory provisions and the procedural requirements outlined in the Accident Compensation Act 1985 and the Supreme Court (General Civil Procedure) Rules 2005. The final orders of the court included a declaration that the first defendant was liable for the plaintiff's compensation claim and directed the first defendant to pay the compensation as determined by the court.

Orders