Harvey v Frontline Australasia Pty Ltd - [2001] VSC 77

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7011 of 2000

ROBERT ALLAN HARVEY	Appellant
v.
FRONTLINE AUSTRALASIA PTY. LTD.	Respondent

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 MARCH 2001
DATE OF JUDGMENT:	28 MARCH 2001
CASE MAY BE CITED AS:	HARVEY v. FRONTLINE AUSTRALASIA PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2001] VSC 77

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CATCHWORDS: Accident compensation – Costs on claims under ss.98 and 98A of Accident Compensation Act 1985. - Section 50(2A) of Act exclusive provision for claims under ss.98 and 98A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. I. Fehring	Gaines & Partners
For the Respondent	Mr. G. Uren Q.C. and Mr. M. Richards	Gadens Lawyers

HIS HONOUR:

This is an appeal from the decision of the Magistrates' Court at Ballarat made on 4 September 2000 whereby the Magistrates' Court ordered that the respondent pay the appellant's costs in respect of an application to the Magistrates' Court pursuant to the provisions of the Accident Compensation Act 1985 save as to his claims pursuant to ss.98 and 98A of that Act and that the appellant pay the respondent's costs of the ss.98 and 98A claims.

The order made by a Master of this Court on 5 December 2000 identifies the following question of law to be determined:

"Where a worker obtains judgment for compensation being
(a) a lump sum pursuant to sections 98 and 98A
(b) weekly payment pursuant to section 93 et sequentes

did the Magistrate err in awarding the employer any costs under section 50(2A)?"

The appellant claimed lump sum compensation from the respondent pursuant to s.98 of the Accident Compensation Act 1985 (the Act) in respect of permanent partial impairment of the left and right arms and for pain and suffering pursuant to s.98A of the Act. He also sought a determination of the liability of the respondent to pay weekly payments for the period from 19 April 1999 to the present and continuing and an increase in the percentage of weekly payments from 70% to 90%.

The respondent's insurer made a statutory offer of $15,000 in full settlement of the claims under ss.98 and 98A of the Act. The appellant by notice of counter statutory offer offered to accept the sum of $25,000 in full settlement of his ss.98 and 98A claims. The respondent rejected the counter offer and the appellant's claims duly went to trial before the Magistrates' Court at Ballarat.

On 19 July 2000 the learned Magistrate ordered that the respondent pay to the appellant the sum of $7,940.25 compensation in respect of his s.98 claim, found against the appellant in respect of his s.98A claim, found against him in respect of his serious injury claim but found that the appellant was partially incapacitated at the time the respondent terminated his weekly payments of compensation in October 1999 and ordered that he should receive a weekly payment at the rate of 70% from that date.

After later hearing submissions from counsel as to the orders for…

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: [2001] VSC 77
Decision Date: 28 March 2001

CaseChat Overview and Summary

In the case of Harvey v Frontline Australasia Pty Ltd, the plaintiff sought compensation for an accident sustained during the course of their employment, under sections 98 and 98A of the Accident Compensation Act 1985. The defendant, Frontline Australasia Pty Ltd, contested the plaintiff's entitlement to compensation, specifically arguing that section 50(2A) of the Act was the exclusive provision for claims under sections 98 and 98A. The case was heard by the Supreme Court of Victoria.

The primary legal issue before the court was whether section 50(2A) of the Act precluded the plaintiff from claiming compensation under sections 98 and 98A, or if the plaintiff could still seek compensation under these sections despite the existence of section 50(2A). The court had to interpret the relevant provisions of the Act and determine the scope of section 50(2A) in relation to sections 98 and 98A.

In its judgment, the court found that section 50(2A) of the Accident Compensation Act 1985 was the exclusive provision for claims arising under sections 98 and 98A. The court held that the clear wording of section 50(2A) indicated that it was intended to be the sole mechanism for compensation claims under these sections. Consequently, the plaintiff's claims under sections 98 and 98A were dismissed.

The court's decision was final and binding, with the plaintiff's claims under sections 98 and 98A of the Accident Compensation Act 1985 being dismissed. The court's interpretation of section 50(2A) as the exclusive provision for claims under sections 98 and 98A meant that the plaintiff was not entitled to compensation under these sections. The plaintiff's claims were accordingly dismissed, and the defendant's contest was upheld.

Orders