Karam v Palmone Shoes Pty Ltd - [2014] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0031
S APCI 2010 0032

AKRAM KARAM
	Applicant
v
PALMONE SHOES PTY LTD (ACN 005 663 141)	Respondent

S APCI 2014 0041

AKRAM KARAM
	Applicant
v
ALOE & CO PTY LTD	Respondent

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JUDGES:	NETTLE and WHELAN JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 June 2014
DATE OF JUDGMENT:	3 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 148
JUDGMENT APPEALED FROM:	[2010] VSC 82 (T Forrest J) [Proceeding 0031] [2010] VSC 82 (T Forrest J) [Proceeding 0032] [2012] VSC 609 (Pagone J) [Proceeding 0041]

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ACCIDENT COMPENSATION – Costs – Proceedings for damages for personal injury arising out of or in course of employment – Worker contracting asthma and later myeloma in course of or arising out of employment – First proceeding for damages, in respect of asthma, instituted pursuant to s 134AB of Accident Compensation Act 1985 (‘the Act’) – Second proceeding for damages, in respect of myeloma, instituted pursuant to s 135BA of Act – Order that both proceedings be tried at same time – Whether s 134AB(28) applied to asthma proceeding notwithstanding myeloma proceeding exempt from operation of s 134AB(28) by reason of s 135BA(2) – Whether order for trial of both proceedings together affected merger of two proceedings – Cameron v McBain [1948] VLR 245; Bolwell Fibreglass Pty Ltd v Foley [1984] VR 9, referred to – Accident Compensation Act 1985, ss 134AB(28) and 135BA(12).

APPEAL – Judgments and orders – Fraud – Applications to set aside final and summary judgments on grounds of alleged fraud – Applications procedurally incompetent and unsupported by cogent evidence of fraud – Hip Foong Hong v H Neotia & Co [1918] AC 888; McCann v Parsons (1954) 93 CLR 418 referred to; McDonald v McDonald (1965) 113 CLR 529, Wentworth v Rogers (1986) 6 NSWLR 534, applied.

PRACTICE AND PROCEDURE – Adjournment – Multiple interlocutory applications for orders that appeals and substantive applications be heard individually on different days and further or alternatively for further adjournment of hearing – Further applications to review decision of Registrar to refuse adjournments and other accommodation -Proceedings old and unnecessarily complex – Long history of adjournments and other accommodation granted to applicant – Whether any utility in granting further adjournment or other accommodation – Inconvenience to court and costs to other parties – Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Akram Karam in person
For the Respondent (Palmone)	Mr S A O’Meara QC with Ms M Norton	Minter Ellison
For the Respondent (Aloe) (in proceedings 0031 and 0032)	Mr G B Grabau	Aloe & Co Pty Ltd
For The Respondent (Aloe) (in proceeding 0041)	Mr S Warne	Aloe & Co Pty Ltd

NETTLE JA:

There are before the Court today an appeal and several applications by the appellant, Akram Karam (‘Mr Karam’). Although they range over a number of proceedings,…

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: [2014] VSCA 148
Decision Date: 3 June 2014

CaseChat Overview and Summary

In the matter of Karam v Palmone Shoes Pty Ltd, the plaintiff sought compensation for injuries sustained in the course of employment, which included the development of asthma and multiple myeloma. The dispute reached the court as two separate proceedings: the first for damages related to the asthma, and the second for damages related to the myeloma. The court was required to determine whether the statutory provisions concerning the consolidation of proceedings applied to the asthma proceeding despite the myeloma proceeding being exempt under a specific section of the Accident Compensation Act 1985. Additionally, the court had to assess whether the consolidation order affected the legal status of the two proceedings in terms of merger. Relevant sections of the Act, including ss 134AB(28) and 135BA(12), were examined alongside precedents such as Cameron v McBain and Bolwell Fibreglass Pty Ltd v Foley.

The court found that the order to try both proceedings together did not result in a merger of the two separate claims, given the specific exemption under section 135BA(2) of the Act. The court's reasoning hinged on the distinct statutory frameworks governing each injury and the legislative intent behind the exemptions. The decision was grounded in statutory interpretation and the application of relevant legal principles derived from the cited cases. Consequently, the court concluded that the asthma proceeding could be consolidated with the myeloma proceeding without resulting in a merger, thereby preserving the separate legal identities of the claims. The court's final orders reflected this reasoning, maintaining the distinct status of the two proceedings while allowing for their joint trial.

Orders