Neate v Air Creations Design & Installation Pty Ltd - [2018] VSC 300

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.

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: [2018] VSC 300
Decision Date: 6 June 2018

CaseChat Overview and Summary

Neate brought an action against Air Creations Design & Installation Pty Ltd in the Supreme Court of Victoria. Neate claimed compensation for injuries sustained in a workplace accident. The dispute concerned the validity of a statutory counter offer made by Air Creations under section 134AB(12) of the Accident Compensation Act 1985. The central issue before the court was whether the statutory counter offer made by Air Creations was invalid due to ambiguity or uncertainty, and whether it was intended to settle Neate's claim or a different claim.

The court examined the context in which the counter offer was made and considered whether the statutory counter offer complied with the requirements of section 134AB(12)(c) of the Accident Compensation Act 1985. The court held that the counter offer was not invalid, nor was it ambiguous or uncertain. The statutory counter offer was made in the context of settling Neate's claim, and the terms of the offer clearly identified the claim it was intended to settle. The court found that the counter offer was made to settle Neate's claim and, if accepted, would have settled both claims.

The court concluded that the statutory counter offer complied with the requirements of section 134AB(12) of the Accident Compensation Act 1985. The counter offer was valid and intended to settle Neate's claim. The court dismissed Neate's appeal and affirmed the lower court's decision that the statutory counter offer was valid and enforceable.

Orders