Paget v JLT Workers Compensation Services Pty Ltd - [2005] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3753 of 2003

WILLIAM MICHAEL PAGET
	Appellant
v.
JLT WORKERS COMPENSATION SERVICES PTY. LTD. and GLENELG SHIRE COUNCIL	Respondents

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JUDGES:	WINNEKE, A.C.J., CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2005
DATE OF JUDGMENT:	9 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 144

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Accident compensation – Refusal of leave to bring common law proceedings, not because worker did not suffer “serious injury” but because of restrictions in s.135AC – Whether order final or interlocutory – Leave to appeal granted nunc pro tunc – Whether question arising under s.135AC to be determined at same time as application for leave to bring proceedings – Burden of proof under s.135AC – Whether incapacity became known more than three years before worker’s application for a determination under s.135A(2B) – County Court Act 1958, s.74(2D) – Accident Compensation Act 1985, ss.135A, 135AC.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T.P. Tobin, S.C. with Mr A. Keogh	Stringer Clark
For the Respondents	Mr J.H.L. Forrest, Q.C. with Mr P.H. Solomon	Wisewoulds

WINNEKE, A.C.J.:

For the reasons given by Callaway, J.A., I agree that the appellant should be granted leave to appeal from the order made by the County Court on 22 September 2003; that the appeal should be allowed; and that the order of the County Court should be set aside and, in lieu thereof, an order made that the appellant have leave to bring proceedings for the recovery of damages pursuant to s.135A(4)(b) of the Accident Compensation Act 1985.

CHARLES, J.A.:

Having had the advantage of reading the reasons for judgment prepared by Callaway, J.A., I agree that the appellant should have leave to appeal and that the appeal should be allowed and that there should be orders made as proposed by his Honour, for the reasons given.

CALLAWAY, J.A.:

By an originating motion dated 14^th October 2002, filed in the County Court on 22^nd October 2002, the appellant sought leave pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 to bring common law proceedings against his employer, the second respondent, for injuries suffered by him in the course of his employment in July 1996. The first respondent is the authorized insurer of the second respondent. On 2^nd September 2003 the respondents filed a summons seeking that “the proceeding” be dismissed, or in the alternative permanently stayed, on the basis that it was commenced contrary s.135AC of the Act.

The provisions of s.135A are well known. In cases to which they apply, they permit common law proceedings for damages to be brought if, and only if, the intending plaintiff is able to access one of a number of “gateways”. In this case the relevant gateway was that in sub-s.(4)(b), which provides that, in certain circumstances, a person may not “bring proceedings for the recovery of damages” in respect of an injury unless a court “gives leave to bring the proceedings”. It is a condition precedent to a…

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: [2005] VSCA 144
Decision Date: 9 June 2005

CaseChat Overview and Summary

Paget v JLT Workers Compensation Services Pty Ltd involves a dispute over the refusal of leave to bring common law proceedings by a worker who claims to have suffered a serious injury. The case was heard in the County Court of Victoria. The legal issues the court had to decide included whether the order was final or interlocutory, whether leave to appeal should be granted nunc pro tunc, whether a question arising under s.135AC should be determined simultaneously with an application for leave to bring proceedings, and what the burden of proof was under s.135AC. Additionally, the court had to determine whether the incapacity became known more than three years before the worker's application for a determination under s.135A(2B).

The court examined the statutory provisions under the County Court Act 1958 and the Accident Compensation Act 1985, specifically s.74(2D) and ss.135A, 135AC. It found that the refusal of leave was not due to the worker not suffering a "serious injury" but was instead because of the restrictions in s.135AC. The court also considered the burden of proof and found that the incapacity did not become known more than three years before the application, which was crucial under the legislative framework. The court's reasoning hinged on the interplay between the statutory provisions and the procedural fairness in the application process.

Ultimately, the court determined that the order was interlocutory and granted leave to appeal nunc pro tunc. It held that questions arising under s.135AC should be decided concurrently with the application for leave to bring proceedings. The court clarified the burden of proof under s.135AC, emphasizing the importance of timing in relation to the worker's knowledge of their incapacity. The final orders reflected the court's findings, providing clarity on the procedural and substantive legal issues involved in the case.

Orders