SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0152
| SUZAN HENNES | |
| Appellant | |
| v | |
| HOBSONS BAY CITY COUNCIL | Respondent |
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JUDGES: | HARPER JA, BEACH and DAVIES AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | By joint memorandum filed 29 August 2012 | |
DATE OF JUDGMENT: | 7 September 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 215 | |
JUDGMENT APPEALED FROM: | Hennes v Hobsons Bay CC (Unreported, County Court of Victoria, Judge Jenkins, 14 September 2011) | |
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ACCIDENT COMPENSATION – Appeal – Consent orders proposed allowing appeal and remitting matter for re-hearing – Whether proposed orders appropriate – Consent orders made – Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | No appearance | Melbourne Injury Lawyers |
| For the Respondent | No appearance | Thomsons Lawyers |
HARPER JA
BEACH AJA
DAVIES AJA:
On 26 February 2008, a fire drill was conducted at the Altona Meadows Child Care Centre. The appellant was employed there as a child care worker. Five babies had been placed in an emergency cot for the trial evacuation. The appellant was assisting the centre co-ordinator in moving the cot through a doorway. She was pulling backwards when the cot struck a door frame. It stopped so suddenly that she injured her back.
She claims that her injury falls within the definition of ‘serious injury’ in s 134AB(37) of the Accident Compensation Act 1985 (‘the Act’). She has suffered, she maintains, a permanent serious impairment or loss of a body function resulting from damage to her lumbar spine (paragraph (a) of the definition). She also relies upon paragraph (c), which includes in the definition of ‘serious injury’ ‘permanent severe mental or permanent severe behavioural disturbance or disorder’. This arises, she claims, from what she contends has been a psychological reaction to the chronic pain which she has suffered as a result of the injury to her spine.
By originating motion filed on 8 February 2010, the appellant sought an order pursuant to s 134AB of the Act for leave to commence proceedings for the recovery of damages for both pain and suffering and loss of earning capacity. The proceedings came on for trial before the County Court in June last year. The appellant was the only witness to give oral evidence. The remainder of the evidence consisted of exhibits drawn from the court books, all of which were tendered without objection.
Judgment was delivered on 14 September 2011. The trial judge held that the appellant had failed to discharge the onus upon her, which was to make out her case on the balance of probabilities. Her Honour accordingly refused the appellant’s application for leave to commence proceedings. The judge further ordered that she pay the respondent’s costs of the application for leave.
The appellant is dissatisfied with this result. Her notice of appeal is dated 28 September 2011. Ten grounds of appeal are put forward. Their substance is ‘to the effect that her Honour erred and engaged in an erroneous reasoning process in practically every aspect below…
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- Case
- [2012] VSCA 215
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the proposed consent orders, which allowed the appeal and remitted the matter for re-hearing, were appropriate. The court considered the relevant legal principles and authorities, including the decision in Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59, which emphasised the importance of achieving a just resolution of the dispute and the need to avoid unnecessary costs and delays. The court also considered the circumstances of the case, including the fact that the respondent had not opposed the appeal and that there was a reasonable prospect of success for the appellant.
The court found that the proposed consent orders were appropriate, as they achieved a just resolution of the dispute and avoided unnecessary costs and delays. The court made the consent orders, allowing the appeal and remitting the matter for re-hearing. The court noted that the decision in Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 was applicable to the case, as it emphasised the importance of achieving a just resolution of the dispute and avoiding unnecessary costs and delays.
The court did not make any final orders in the case, as the matter was remitted for re-hearing. However, the court’s decision to make the consent orders was significant, as it allowed the appellant to pursue her claim for accident compensation and avoided unnecessary costs and delays. The decision also highlighted the importance of achieving a just resolution of disputes, particularly in cases involving accident compensation claims.
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