Pero Delov v Caldipp Pty Limited t/as Slaven Motors

[2002] ACTSC 10

Pero Delov v Caldipp Pty Limited t/as Slaven Motors
[2002] ACTSC 10 (22 February 2002)

PERO DELOV  -v-  CALDIPP PTY LIMITED T/AS SLAVEN MOTORS

No. SCA 43 of  2001

Judge:          RYAN J
SUPREME COURT OF THE ACT
Date:           22 FEBRUARY 2002

IN THE SUPREME COURT OF THE     )
  )          No. SCA 43 of 2001
AUSTRALIAN CAPITAL TERRITORY )

On appeal from the Magistrates Court (WC No 148 of 2000) of the Australian Capital Territory

BETWEEN: PERO DELOV

Appellant

AND:CALDIPP PTY LIMITED T/AS SLAVEN MOTORS

Defendant

ORDER

Judge:  RYAN J
Date:  22 FEBRUARY 2002
Place:  CANBERRA

THE COURT ORDERS THAT:

1. THAT the Order of the Magistrate of 14 May 2001 be set aside.

2. THAT the application for arbitration under the Workers Compensation Act 1951 be remitted to Magistrate Burns.

3. THAT the respondent pay the appellant’s costs of the appeal, such costs to be taxed in default of agreement.

4. THAT a grant of a Costs Certificate under Section 6(1) of the Federal Proceedings (Costs) Act 1981 be made.

SUPPLEMENTARY REASONS FOR JUDGMENT

1. In this matter, in a passage from the reasons for judgment which I published on 20 February this year, to which Mr Lunney of Counsel for the appellant referred, I said I considered that the evidence in the present case permits a finding that the episodes of increased or exacerbated pain, which the appellant claimed to have experienced in the course of his work, could have amounted to an aggravation of the disease of fibromyalgia within the definition of disease in s 6(1) of the Workers’ Compensation Act 1951 (ACT) (“the Act”).

2. That passage indicates that there were factual issues which, I consider, were left open as a result of the view of the law taken by the learned Magistrate.  Accordingly, despite the cogent submission of Mr Lunney of Counsel for the appellant that an order should be made which would have the effect of bringing this litigation to an end as quickly and as inexpensively as possible, I consider that to be outweighed by the benefit that the Magistrate had of having heard the applicant and the other witnesses.  It is also my view that he remains in a better position than the Court to resolve the outstanding questions of fact to which I adverted in the paragraph just quoted.

3. It will also be remembered that, in the concluding paragraph of the same earlier reasons, I noted the observation of Evatt and Sheppard JJ in Commonwealth v Beattie (1981) 35 ALR 369, that each case of this kind must depend on its own facts. That observation applies with no less force to the present case, and it is my view that the facts on which this case must turn should be found, for the reasons that I have indicated, by the learned Magistrate.

4. Accordingly, the order of the Court will be that the order of the Magistrate of 14 May 2001 be set aside. Secondly, I order that the application for arbitration be remitted to Magistrate Burns to be determined in accordance with law. The respondent should pay the appellant’s costs of the appeal, such costs to be taxed in default of agreement, and, fourthly, I shall grant a Cost Certificate under s 6(1) of the Federal Proceedings (Costs) Act1981.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Date:    22 February 2002.

Counsel for the Appellant:  Mr G Lunney

Solicitor for the Appellant:  Higgins Solicitors

Counsel for the Respondent:  Mr G Stretton

Solicitor for the Respondent:  Hunt & Hunt

Date of Further Hearing:  22 February 2002

Date of Orders:  22 February 2002.