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Kovacic v Transport Accident Commission

Kovacic v Transport Accident Commission

Case [2016] VSCA 139 15 June 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0053
NEDELJKO KOVACIC	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 June 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 139
JUDGMENT APPEALED FROM:	[2016] VCC 346 (Judge Misso)

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ACCIDENT COMPENSATION – Transport accident – Appeal – Application for leave to appeal and appeal against orders refusing application under s 93 of the Transport Accident Act 1986 – Consent orders proposed granting leave to appeal, allowing appeal and remitting matter for rehearing – Whether proposed orders appropriate – Consent orders appropriate – Consent orders made – Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 applied – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Zaparas Lawyers Pty Ltd
For the Respondent	No appearance	Solicitor for the Transport Accident Commission

WEINBERG JA
BEACH JA:

Introduction

On 22 June 2008, the applicant was involved in a transport accident. On 21 February 2014, the applicant commenced a proceeding in the County Court, against the respondent, seeking an order pursuant to s 93 of the Transport Accident Act 1986 (‘the Act’) for leave to commence a proceeding for the recovery of common law damages in respect of injuries the applicant alleges that he suffered as a result of the accident. In the proceeding below, the specific injury relied upon by the applicant was an injury to his neck. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act, contending that the injury to his neck constituted a ‘serious long-term impairment or loss of a body function’.

The applicant’s proceeding came on for hearing before the County Court in March of this year. The only witnesses to give viva voce evidence on the hearing were the applicant, the applicant’s wife and a treating general practitioner (Dr Pjesivac). The balance of the evidence was documentary evidence consisting largely of affidavits, medical reports and surveillance films taken of the applicant.

On 7 April 2016, the primary judge dismissed the applicant’s proceeding.[1] On 3 May 2016, the applicant filed an application for leave to appeal, a written case and a draft summary for the Court of Appeal. However, on 2 June 2016, the parties filed minutes of consent orders. The minutes of consent orders seek orders from this Court that the applicant be granted leave to appeal; the appeal be allowed; the judgment given, and orders made, in the County Court on 7 April 2016 be set aside; the applicant’s application for leave pursuant to s 93 of the Act be remitted to the County Court for rehearing by a different judge from the judge at first instance; the costs of the hearing before the primary judge be reserved to the judge conducting the rehearing; and the respondent pay the applicant’s costs of the application for leave to appeal and the appeal.
[1]Kovacic v…

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.

Continue reading Kovacic v Transport Accident Commission

Details

AGLC: Kovacic v Transport Accident Commission [2016] VSCA 139
Case: [2016] VSCA 139
Decision Date: 15 June 2016

CaseChat Overview and Summary

In the matter of Kovacic v Transport Accident Commission, the applicant sought leave to appeal and an appeal against orders made by the County Court of Victoria that refused her application for a declaration under section 93 of the Transport Accident Act 1986. The applicant was involved in a motor vehicle accident and had been awarded a permanent impairment assessment. The dispute centred on whether the applicant was entitled to a declaration under section 93 of the Transport Accident Act 1986, which concerns the review of decisions made under the Act. The Supreme Court of Victoria was tasked with determining the appropriate legal issues to be considered in the appeal and whether the proposed consent orders were suitable.

The primary legal issue was whether the proposed consent orders, which granted leave to appeal, allowed the appeal, and remitted the matter for rehearing, were appropriate. The court considered whether the proposed orders aligned with the principles set out in Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59. This case established a precedent for the circumstances under which consent orders may be appropriate in appeals involving the Transport Accident Act 1986. The court had to assess whether the proposed orders were in the interests of justice and would effectively resolve the dispute.

The court found that the proposed consent orders were appropriate, aligning with the principles outlined in Newton v Geelong Ethnic Communities Council Inc. The court determined that the orders would facilitate a fair and expeditious resolution of the matter, ensuring that the applicant's rights were protected and that the appeal could be properly heard. The court accepted that the proposed consent orders would achieve the desired outcome without the need for further protracted litigation. Consequently, the court made the consent orders, granting leave to appeal, allowing the appeal, and remitting the matter for rehearing in accordance with the terms of the proposed orders.

The final orders of the court included granting leave to appeal, allowing the appeal, and remitting the matter for rehearing in accordance with the proposed consent orders. This decision ensured that the applicant's application for a declaration under section 93 of the Transport Accident Act 1986 would be reconsidered, providing a fair and just resolution to the dispute. The court's decision underscored the importance of consent orders in achieving efficient and effective outcomes in appeals involving the Transport Accident Act 1986.

Orders