Moules v Transport Accident Commission - [2021] VSC 436

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02895

LUKE MOULES	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2021
DATE OF JUDGMENT:	26 July 2021
CASE MAY BE CITED AS:	Moules v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VSC 436

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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and appeal if leave is granted— Transport Accident Act 1986 (Vic), ss 67 & 68 – ‘Claim for compensation under this Act … in a form approved by the Commission’ – ‘Injury manifested’ – ‘Injury first manifests itself’ – Hyland v Transport Accident Commission (1999) 30 MVR 281 considered and discussed — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	ADB Ingram QC with J Valiotis	Fortitude Legal
For the Respondent	CP Young QC with RL Kaye	Solicitor to the Transport Accident Commission

HIS HONOUR:

A The circumstances

On 4 September 2005, Robert Farquharson drove a vehicle into a dam near Winchelsea. His three young sons were in the vehicle and subsequently drowned. Mr Farquharson was later found guilty of their murders.

The boys’ mother, Cindy Gambino, was advised of the incident. At that time, she was in a relationship with Stephen Moules, who is the father of the applicant. It seems that the three boys were close to the applicant and his younger brother, Zack.

On the day of the incident, Ms Gambino attended the dam together with Mr Moules and his sons. At that time, the applicant was eight years old. In a signed statement dated 30 July 2019, the applicant stated –

Once my father found the scene of the transport accident, he spent close to an hour diving into the dam to try and save Jai, Tyler and Bailey to no avail. It was dark and it was cold, and I remember my father’s vehicle’s headlights were the only thing lighting the scene up. I recall that me and my brother, Zack, as well as Cindy were hysterical. I could see bubbles in the dam. I thought that my father might die as well. We were all distraught. I recall emergency services crews attending.
Despite my father’s attempts, he could not retrieve the boys. They were dead. A major part of me died that night as well, I was only 8 years old at the time. I relive these scenes in my mind every day.

It seems that the applicant had suffered behavioural difficulties and some psychological distress prior to the incident. The details are unclear. Stephen Moules had earlier separated from the applicant’s biological mother. The applicant had some counselling at that time. The evidence refers to his biological mother as having had a problem of substance abuse. The family situation was later described as ‘complex’ and it was recorded that…

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: [2021] VSC 436
Decision Date: 26 July 2021

CaseChat Overview and Summary

The decision in Moules v Transport Accident Commission concerns an application for leave to appeal to the Court of Appeal of the Supreme Court of Victoria against a decision of the Victorian Civil and Administrative Tribunal (VCAT). The applicant, Moules, sought compensation from the respondent, the Transport Accident Commission, under the Transport Accident Act 1986 (Vic). The primary dispute revolved around the interpretation of the provisions of the Act that required the claim for compensation to be in a form approved by the Commission and the timing of when an injury is considered to have manifested.

The legal issues before the court involved the interpretation of sections 67 and 68 of the Transport Accident Act, specifically the requirement that a claim for compensation must be in a form approved by the Commission and the meaning of "injury manifested" and "injury first manifests itself". The court had to determine whether the Tribunal erred in its interpretation of these provisions and whether the claim was properly rejected on these grounds. The applicant argued that the Tribunal failed to correctly apply the law as articulated in the precedent set by Hyland v Transport Accident Commission.

The court, in allowing the appeal, found that the Tribunal had indeed erred in its interpretation of the statutory provisions. The court held that the Tribunal had misapplied the law by not properly considering the timing of when the injury manifested and the form of the claim. The court found that the Tribunal had not adequately applied the principles set out in Hyland, leading to an incorrect decision. As a result, the court granted the application for leave to appeal and allowed the appeal, setting aside the decision of the Tribunal. The matter was remitted to the Tribunal for reconsideration in light of the court's decision.

Orders