Portland Smelter Services Pty Ltd v Carter

[2003] VSC 96

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 7938 of 2003

PORTLAND SMELTER SERVICES PTY LTD	Plaintiff
v
WILTON CARTER AND ANOTHER	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 MARCH 2003
DATE OF JUDGMENT:	25 MARCH 2003
CASE MAY BE CITED AS:	PORTLAND SMELTER SERVICES PTY LTD v CARTER, WILTON & ANOR
MEDIUM NEUTRAL CITATION:	[2003] VSC 96

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Personal injury – Whether a determination had been made under s. 104B(5) of the Accident Compensation Act 1985 – Whether total impairment of the spine.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff No appearance for the Defendants	Mr G. Moloney	Hunt & Hunt

HIS HONOUR:

1. This application is brought by originating motion issued on 29 October 2002 and by summons under that originating motion issued on the same day. By the summons, the plaintiff, Portland Smelter Services Pty Ltd, seeks a declaration that a determination made by the defendant (a medical practitioner appointed as an independent examiner pursuant to s.104B of the Accident Compensation Act 1985) in respect of a worker (Mr Kenneth Flintoft) is invalid. The summons also seeks relief in the nature of certiorari to quash the determination, and other allied relief.

1. Having heard Mr Moloney for the plaintiff, and having read the several affidavits of Graeme John Armstead filed in support of the summons, and having read the relevant exhibits to those affidavits, I am of the opinion that, by report dated 29 August 2002, the first defendant, Wilton Carter, made a determination pursuant to s.104B(5) of the Act. While the determination is not entirely clear, it includes, in my opinion, a determination that the worker, Mr Flintoft, did not suffer, as a result of the relevant accident, "total impairment of the spine" as that phrase is used in the table to s.s.(1) of s.98E of the Act. Although Mr Carter uses the phrase "total loss" in his report, and indeed also uses the expression "total impairment of the spine", the context in which each of those expressions is used clearly indicates, in my opinion, that the independent examiner had not reached the conclusion that Mr Flintoft suffered from total impairment of the spine or any relevant "total loss". To the contrary, the independent examiner, in his determination, determined that there was in Mr Flintoft's case no total impairment of the spine.

1. That being my reading of the relevant document, it seems to me that the plaintiff is entitled to a declaration to the effect that Mr Wilton Carter has conducted an independent examination on Mr Flintoft pursuant to s.s.(5) of s.104B of the Act, and that the independent examiner did not determine, pursuant to paragraph (b) of s.s.(5) of that section, that the worker has an injury which falls within either the meaning of the expression "total loss", or the meaning of the expression "total impairment of his spine" as those expressions are used in s.98E.

1. That declaration having been made, the plaintiff seeks no further orders, and I will accordingly order that the summons of 29 October 2002 be otherwise dismissed.

1. Mr Moloney having informed me that, as I had in any event supposed, the relief sought under the summons of 29 October was coincident with the relief sought pursuant to the originating motion of the same day, the originating motion, and therefore the proceeding, will also be dismissed.

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