JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023, 7 February 2024
DATE OF JUDGMENT:	20 May 2024
CASE MAY BE CITED AS:	McPhee v Steelsmith Engineering Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 254

---

JUDICIAL REVIEW — Worker’s compensation — Appeal pursuant to s 109 of the Magistrates' Court Act 1989 (Vic) against a magistrate’s decision to reject a claim for interest on arrears of weekly compensation payments pursuant to s 114E(1)(b) of the Accident Compensation Act 1985 (Vic) (‘Act’) — Proper construction of s 114E(1)(b) of the Act and ambit of the term ‘claim’ — O’Brien Transport Services Pty Ltd v Williams [2022] VSCA 62 and Hall v Hallam Manufacturing Pty Ltd [2014] VMC 29 referred to — Whether it was open to the magistrate to characterise what had occurred pursuant to a consent order as a reinstatement of weekly payments, and that s 114E(1)(b) therefore did not enliven an entitlement to interest — Whether a consent order adopting and applying a medical panel opinion had the effect of setting aside a claims agent’s notice of a rejection of a claim — Katter v Melhem (2015) 90 NSWLR 205 referred to — Consideration of function and effect of medical panel opinions — Masters v McCubbery [1996] 1 VR 635 referred to — Whether the magistrate erred in failing to consider whether interest should have been awarded to the plaintiff pursuant to ss 114E(1)(d) and (e) of the Act — Sections 114E(1)(d) and (e) of the Act not applicable to appellant’s claim — Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Jurica with Ms S Bailey of counsel	Saines Lucas Solicitors
For the Respondent	Mr M Hooper of counsel	Injury Disputes Practice Lawyers

HER HONOUR:

Introduction and background

These reasons concern an appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’) from a decision of the Magistrates’ Court at Ballarat. A magistrate dismissed the appellant’s claim for interest upon arrears of weekly payments of compensation (‘weekly payments’) paid to him following the conclusion of a proceeding where he sought, among other things, weekly payments of compensation pursuant to the Accident Compensation Act 1985 (Vic) (‘Act’) in respect of a number of physical injuries suffered by him since 2004.

In around May 2003, the appellant, Mr Peter McPhee, commenced working as a welder for the respondent, Steelsmith Engineering Pty Ltd (‘Steelsmith’). Mr McPhee sustained an injury to his left knee during the course of his employment with Steelsmith as a result of a fall on 11 November 2004 (‘November 2004 incident’). Mr McPhee submitted a claim with respect to his left knee injury on 8 May 2008 (‘2008 claim’). Liability for the 2008 claim was accepted by Steelsmith’s claims agent (‘CGU’) and…

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 McPhee v Steelsmith Engineering Pty Ltd

Details

AGLC: McPhee v Steelsmith Engineering Pty Ltd [2024] VSC 254
Case: [2024] VSC 254
Decision Date: 20 May 2024

CaseChat Overview and Summary

The case of McPhee v Steelsmith Engineering Pty Ltd concerned an appeal against a magistrate's decision to reject a claim for interest on arrears of weekly compensation payments. The appellant, McPhee, had argued that the magistrate should have awarded interest on the arrears of weekly compensation payments pursuant to section 114E(1)(b) of the Accident Compensation Act 1985 (Vic). Steelsmith Engineering Pty Ltd, the respondent, had contended that the magistrate's decision was correct. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue in this case was the proper construction of section 114E(1)(b) of the Act and the extent of the term ‘claim’ in the context of compensation payments. The court considered whether the magistrate was correct in characterising what had occurred pursuant to a consent order as a reinstatement of weekly payments, and whether this meant that section 114E(1)(b) did not give rise to an entitlement to interest. The court also examined whether a consent order adopting and applying a medical panel opinion had the effect of setting aside a claims agent’s notice of a rejection of a claim. The court referred to several precedent cases to assist in its determination, including O’Brien Transport Services Pty Ltd v Williams [2022] VSCA 62, Hall v Hallam Manufacturing Pty Ltd [2014] VMC 29, Katter v Melhem (2015) 90 NSWLR 205, and Masters v McCubbery [1996] 1 VR 635.

The Court of Appeal found that the magistrate had erred in his interpretation of the law and the facts. The court held that it was open to the magistrate to characterise what had occurred pursuant to a consent order as a reinstatement of weekly payments, and that section 114E(1)(b) therefore did not give rise to an entitlement to interest. However, the court found that the magistrate had failed to consider whether interest should have been awarded to the appellant pursuant to sections 114E(1)(d) and (e) of the Act. The court noted that these sections were not applicable to the appellant’s claim. The appeal was allowed, and the matter was remitted to the Magistrates' Court for redetermination.

The final orders of the court were that the appeal was allowed, and the matter was remitted to the Magistrates' Court for redetermination. The court found that the magistrate had erred in his interpretation of the law and the facts, and that the matter should be reconsidered in light of the court's determination. The court did not make any specific orders regarding the payment of interest on the arrears of weekly compensation payments, as this was a matter for the Magistrates' Court to determine on rehearing.

Orders