Gievski v Victorian WorkCover Authority - [2017] VSC 598

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 02186

GOCE GIEVSKI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2017
DATE OF JUDGMENT:	4 October 2017
CASE MAY BE CITED AS:	Gievski v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2017] VSC 598

---

ACCIDENT COMPENSATION – Application by a worker under s 134AB(4) of Accident Compensation Act 1985 to bring proceedings for damages for an injury – Obligation on the Victorian WorkCover Authority (the Authority) to advise the worker under s 134AB(7) – Power of the Authority under s 134AB(16)(a) – Where the Authority is of the view, mistakenly, that the worker’s entitlement to damages was governed by the Transport Accident Act 1986 – Worker did not make application within time provided in s 134AB(16)(b) – Whether error as to jurisdictional fact or jurisdictional error by the Authority in exercise of the power under sub-s 16(a) – Whether declaratory relief available – Discretion not to grant relief where lack of utility.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Masel SC with Mr N Wood	Arnold Thomas & Becker
For the Defendant	Mr M Wheelahan QC with Mr R Kumar	Wisewould Mahony

HIS HONOUR:

Introduction

Goce Gievski injured his left foot in a workplace accident in April 2011. In February 2013, Mr Gievski’s then solicitors made application to the Victorian WorkCover Authority (the Authority) pursuant to s 134AB(4) of the Accident Compensation Act 1985 (the ACA)[1] to recover damages in respect of the injury. The Authority responded to Mr Gievski’s application in accordance with s 134AB(7) by advising that it would not issue a certificate under sub-s (16)(a) consenting to him bringing proceedings. At the same time the Authority communicated its view that Mr Gievski was injured as a result of a transport accident and that the provisions of the Transport Accident Act 1986 (the TAA) applied so that his serious injury application should be pursued under s 93 of that Act. After receiving the advice, Mr Gievski’s solicitors did not make application to a court for leave to bring proceedings within the 30-day period as required by s 134AB(16)(b) of the ACA. An application by Mr Gievski for the consent of the Authority to extend the time to commence sub-s (16)(b) proceedings was refused. The parties now agree that Mr Gievski’s injury was not a result of a transport accident, and that the TAA does not apply to Mr Gievski’s prospective claim for recovery of damages in respect of the injury. As a consequence there was no avenue available to Mr Gievski under s 134AB to bring proceedings to recover damages in respect of the injury.
[1]All references are to the Accident Compensation Act 1985 Authorised Version No 190 incorporating amendments as at 11 February 2013 (unless otherwise indicated).

In this proceeding Mr Gievski seeks declarations that the Authority has not lawfully considered his s…

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.

Keep reading for free

Create a free CaseChat account to read Gievski v Victorian WorkCover Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 598
Decision Date: 4 October 2017

CaseChat Overview and Summary

Gievski brought an application against the Victorian WorkCover Authority, seeking to have proceedings brought for damages for an injury sustained in an accident. The dispute arose from the Authority's mistaken belief that the worker's entitlement to damages was governed by the Transport Accident Act 1986, rather than the Accident Compensation Act 1985. The Authority had failed to advise the worker of its mistaken belief under section 134AB(7) of the 1985 Act, and Gievski did not make the application within the time provided by section 134AB(16)(b). The court had to determine whether the Authority's error amounted to a jurisdictional fact or a jurisdictional error in exercising its power under section 134AB(16)(a) of the 1985 Act, and whether declaratory relief was available. The court also had to consider the discretion not to grant relief where it would be of little utility.

The court examined whether the Authority's error in believing that the Transport Accident Act 1986 applied to the worker's claim was a jurisdictional fact or a jurisdictional error. The court concluded that the Authority's error was not a jurisdictional fact, but rather a jurisdictional error. The court found that the Authority had the power to exercise its discretion under section 134AB(16)(a) of the 1985 Act, but that the exercise of that power was flawed due to the Authority's jurisdictional error. The court further held that declaratory relief was available, but that the discretion not to grant relief applied in this case. The court found that granting relief would be of little utility because the worker had not made the application within the time provided by section 134AB(16)(b) of the 1985 Act.

The court dismissed the application for declaratory relief and costs. The court found that the Authority's jurisdictional error did not entitle the worker to the relief sought. The court held that the discretion not to grant relief applied, as granting relief would be of little utility. The court further found that the worker had not made the application within the time provided by section 134AB(16)(b) of the 1985 Act, which further supported the decision not to grant relief. The court dismissed the application and ordered the worker to pay the Authority's costs.

Orders