SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0053
| PHILLIP NEATE | Applicant |
| v | |
| AIR CREATIONS DESIGN & INSTALLATION PTY LTD | Respondent |
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| JUDGES: | TATE, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 November 2018 |
| DATE OF JUDGMENT: | 16 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 300 |
| JUDGMENT APPEALED FROM: | Neate v Air Creations Design & Installation Pty Ltd (Unreported, County Court of Victoria, 14 December 2017) |
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ACCIDENT COMPENSATION – Appeal – Workplace injury – Statutory offer and counter offer – Construction of statutory counter offer – Effect of statutory counter offer – Whether statutory counter offer invalid – Whether statutory counter offer ambiguous – Whether terms of statutory counter offer uncertain – Identification of claim in respect of which statutory counter offer was made – Statutory counter offer not invalid – Statutory counter offer complying with s 134AB(12)(c) of Accident Compensation Act 1985 – Accident Compensation Act 1985, ss 134AB (12), (13), (14) and (28).
CONTRACT – Offer and acceptance – Offer to settle one claim – Counter offer to settle claim by acceptance of sum of money in respect of another claim – Whether counter offer was made to settle first claim – Context – Offer and counter offer to settle same claim – Counter offer, if accepted, settling both claims.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A G Uren QC with Mr A D B Ingram | Shine Lawyers |
| For the Respondent | Mr S A O’Meara QC with Mr M J Hooper | Thomson Geer Lawyers |
TATE JA
BEACH JA
KAYE JA:
The applicant, Mr Phillip Neate, was employed by the respondent, Air Creations Design & Installation Pty Ltd (‘ACDI’). The issue in dispute in this application is whether a proceeding commenced by the applicant, against the respondent for common law damages (‘the ACDI proceeding’) was commenced within the time provided for in s 134AB(12)(e) of the Accident Compensation Act 1985 (‘the Act’). That issue falls to be resolved by reference to whether the applicant made a statutory counter offer to a statutory offer in accordance with s 134AB(12)(c) of the Act.
The primary judge concluded that the applicant did not make a valid statutory counter offer, and the ACDI proceeding was thus issued outside the time limit provided for in s 134AB(12)(e). Acting on that conclusion, the judge dismissed the proceeding.[1]
[1]Neate v Air Creations Design & Installation Pty Ltd (Unreported, County Court of Victoria, 14 December 2017) (‘Reasons’).
The applicant now seeks leave to appeal and (if leave is granted) to appeal the judge’s order dismissing his proceeding. In summary, he contends that he made a valid statutory counter offer within the time provided for, and as required by, s 134AB(12)(c); and that, having made a valid statutory counter offer, his proceeding was issued within the time provided for in s 134AB(12)(e). In five proposed grounds of appeal, the applicant contends that the primary judge was wrong when he held to the contrary and dismissed the ACDI proceeding.
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- Case
- [2018] VSCA 300
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the statutory counter offer made by the respondent was invalid, ambiguous, or uncertain. Specifically, the court had to determine whether the counter offer was made in respect of the same claim as the original offer and whether the terms of the counter offer were clear. The court also had to consider whether the statutory counter offer complied with the statutory requirements set out in the Accident Compensation Act 1985.
The court found that the statutory counter offer was not invalid, ambiguous, or uncertain. The court held that the counter offer was made in respect of the same claim as the original offer and that the terms of the counter offer were clear. The court also found that the statutory counter offer complied with the statutory requirements set out in the Accident Compensation Act 1985. The court held that the statutory counter offer was valid and dismissed the appeal.
The court did not make any further orders.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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