Rafiee v VWA

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0047

REZA RAFIEE	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2022
DATE OF JUDGMENT:	16 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 251
JUDGMENT APPEALED FROM:	[2022] VCC 670 (Judge Fraatz)

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PRACTICE AND PROCEDURE – Accident Compensation – Serious injury claim – Originating motions (‘OM’) issued out of time – Non-compliance with strict time limit of 30 days following rejection of serious injury application under s 330 of the Workplace Injury, Rehabilitation and Compensation Act 2013 – Two originating motions issued, the first OM relating to psychological injury and the second OM relating to back injury – Whether applicant can proceed with the two OMs – Whether judge correct in dismissing the second OM and ordering the first OM be amended to include the alleged back injury – Judge’s orders entirely appropriate – Leave to appeal refused.

Workplace Injury, Rehabilitation and Compensation Act 2013, ss 328(2), 330(1), 335(1)–(2), 337, 338 – County Court Civil Procedure Rules 2018, rr 22.2, 47.04 – Civil Procedure Act 2010, s 63.

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Counsel
Applicant:		Mr R Rafiee in person
Respondent:		Mr R Kumar
Solicitors
Applicant:
Respondent:	Hall & Wilcox

BEACH JA
J FORREST AJA:

The applicant, Reza Rafiee, was employed by Toyota Boshoku Australia Pty Ltd (‘Toyota’) from February 2012 to September 2015. During that period he alleges that he suffered two discrete injuries in the course of his employment: one to his back, as a result of lifting, and the other a psychiatric injury, as a result of bullying.
Mr Rafiee made two separate applications to the Victorian WorkCover Authority (‘VWA’) pursuant to s 328(2) of the Workplace Injury, Rehabilitation and Compensation Act 2013 (‘the Act’). Each alleged that he had sustained a ‘serious injury’ within the meaning of the Act. Such a finding is a necessary precursor to the institution of a common law proceeding.
VWA rejected the applications and subsequently, out of time, Mr Rafiee filed two originating motions (one in September 2019 relating to the psychiatric injury and the second in October 2019 relating to the back injury) in the County Court. VWA, as the legislation permitted, exercised its discretion, and consented to Mr Rafiee pursuing the first originating motion and seeking ‘serious injury’ orders in respect of both the back injury and the psychiatric injury in that proceeding. It did not consent to him pursuing the second originating motion.
Subsequently a County Court judge, on the application of VWA, dismissed the second originating motion.
Mr Rafiee now seeks leave to appeal that decision so that he can proceed with the second originating motion, as well as the first.
Mr Rafiee’s application and proposed grounds of appeal are without merit, and any appeal will necessarily fail for the reasons set out by the trial judge and expanded on below.

Factual background

From February 2012 to September 2015, Mr Rafiee worked as a quality assurance engineer for Toyota at its factory at Laverton North.
On 11 November 2019, Mr Rafiee filed with VWA an application under s 328(2) of the Act. The claimed injuries in this application were:
Permanent psychiatric impairment and permanent impairment for back injury.
In his application, Mr Rafiee said that he was relying upon sub-paragraphs (a), (b) and (c) of the definition of serious injury.
The application is 75 pages long. Mr Rafiee sets out the alleged negligent acts of Toyota in relation to the back injury and the severe anxiety and depression; the back injury was alleged to arise as a result of heavy lifting carried out by Mr Rafiee working on power seats. The severe anxiety and depression was alleged to have been caused by a manager and amounted to ‘Disability discrimination, workplace bullying, harassment, intimidating, threatening to demotion’ [sic].
In the affidavit accompanying the application, Mr Rafiee describes his injuries as follows:
(1)Severe back injury: the back injury started from December 2013 and occurred over the course of employment until 14 September 2015 and still the plaintiff is suffering from a severe back injury.
(2)Severe anxiety and depression: the psychiatric illness started in June 2015 as anxiety and depression and became worse to severe anxiety and depression from June 2015 to September 2019 because of employer negligence and became worsen [sic] for insurance company negligent [sic] and unfair decision.
On 19 October 2020, VWA received a second application, dated 6 October 2020, from Mr Rafiee under s 328(2) of the Act. The alleged injuries in this application were:
Permanent impairment for back injury.
This application was accompanied by the same affidavit which had been filed with the first application.
On 10 March 2020 and 10 February 2021, Mr Rafiee was advised by VWA that pursuant to s 330(1) of the Act that he was not deemed to have a serious injury and VWA would not issue a certificate under s 335(2)(c) of the Act.[1]
[1]VWA has the power to issue a Serious Injury Certificate if it is satisfied that the claimed injury is a serious injury.
On 20 September 2021, Mr Rafiee issued an originating motion in the County Court (the ‘first OM’).[2]
[2]Proceeding No CI-21-04539.
On 19 October 2021, Mr Rafiee issued a second originating motion (the ‘second OM’).[3]
[3]Proceeding No CI-21-04540.
The originating motions were drawn by Mr Rafiee. The particulars of injury in the first OM are described as follows:
Psychological injury including severe anxiety and depression disorder and schizophrenia disorder. Restriction; disabled to do job duties.
In the second OM, the particulars of injury are described as follows:
Back injury. Restriction; Disabled to do job duties.
Both these proceedings were issued out of time.[4] However, the Act permits VWA to consent to the bringing of a proceeding notwithstanding it being issued out of time.[5] On 8 February 2022, VWA wrote to Mr Rafiee in the following terms:
…[T]he Authority determines that the Originating Motion No. CI-21-04539, sealed by the Court on 20 September 2021 can continue as if commenced on or before 9 April 2020.
The Originating Motion allows you to continue with your first section 328(2) application which is for the psychiatric injury and also the back injury.
The Authority has decided not to make a determination on the second section 328(2) application.
There is no utility in doing so as all of your issues are contained in the first application and can proceed under the Originating Motion that has been given leave to continue as determined above.
…
This outcome only allows you [to] dispute the rejection of your application made in November 2019 and rejected on 10 March 2020.
[4]The Act, s 335(2)(d)(i).
[5]The Act, ss 335(2)(d)(ii) and s 337(1).
On 15 March 2022, a preliminary question was stated by the judicial registrar for determination pursuant to r 47.04 of the County CourtCivil Procedure Rules 2018:
Whether the plaintiff can proceed with two Originating Motions, or whether the second Originating Motion should be dismissed, and the plaintiff should proceed with the first Originating Motion.
On 23 March 2002, VWA sought summary dismissal of the second OM pursuant to s 63 of the Civil Procedure Act 2010 and/or r 22.22 of the County Court Civil ProcedureRules.
Each party filed written submissions and accompanying affidavits.
On 3 June 2022, the county court judge dismissed the second OM and ordered that the first OM be amended to include the alleged back injury.

The relevant parts of the Act

Division 2 of Part 7 of the Act governs actions for damages for workplace injuries.
The following provisions of the Act are relevant to this application:
335    Proceedings for damages for serious injury
(1)If the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985, made before an application under section 328(2) of this Act is made, of the degree of impairment of the worker as a result of the injury is 30 per cent or more, the injury is deemed to be a serious injury.
(2)If—
(a)the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b)the worker makes an application under section 328(2)(b)—
the worker may not bring proceedings for the recovery of damages in respect of the injury unless—
(c)the Authority or self-insurer—
(i)is satisfied that the injury is a serious injury; and
(ii)issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(d)a court, other than the Magistrates' Court, gives leave to bring the proceedings on the application of the worker made—
(i)within 30 days after the worker received advice under section 330(1); or
(ii)after that period, with the consent of the Authority under section 337(1).
…
337    Authority may consent to bringing of proceedings
(1)If, on the application of a worker, the Authority is satisfied that—
(a)the worker is unable to commence proceedings in accordance with this Division because of the operation of section 335(2)(d); and
(b)the failure to comply with section 335(2)(d) was not due to any fault or omission of the worker or the worker's legal representative—
(2)the Authority may consent to the bringing of an application under section 335(2)(d).
…
338    No further application allowed
If a worker makes an application under section 328(2) in respect of an injury, the worker must not make a further application under that subsection in respect of that injury.

The decision of the County Court judge

It is not necessary here to set out the material considered by the judge. It suffices to say that Mr Rafiee filed voluminous material including six affidavits accompanied by various other documents, letters and emails directed to VWA.
VWA filed three affidavits, each sworn by Ms Shyla Sivanas, its solicitor.
Both VWA and Mr Rafiee filed written submissions.
On 25 March 2022, the judge heard oral submissions from Mr Rafiee and the solicitor for VWA.
The judge proceeded on the basis that Mr Rafiee:
alleges he has suffered two separate injuries arising out of, or in the course of, his employment with the same employer [Toyota] –
(a)a back injury sustained over the course of his employment from December 2013 to September 2015; and
(b)a psychiatric injury sustained over the course of his employment from June or July 2015 to September 2015.[6]
[6]Rafiee v Victorian WorkCover Authority (Ruling) [2022] VCC 670, [6] (‘Reasons’).
Mr Rafiee argued that the two originating motions should be allowed to proceed separately and that the second OM should not be dismissed.
The judge noted that, putting aside s 338 of the Act, there was no bar on Mr Rafiee issuing individual applications in respect of separate injuries (or impairments). Having expressed his concern as to the question of any potential prejudice to Mr Rafiee, the judge then said:
Appropriately, the VWA made a number of concessions, confirmed in its written submissions, relevant to the disposition of the application in argument before me. Firstly, it conceded that Mr Rafiee had separate causes of action in relation to each injury; and, secondly, that should the relief sought in the Summons be granted, in order to regularise the position, it consented to the amendment of the first Originating Motion to incorporate Particulars of Injury in relation to the plaintiffs back injury; and, finally, that the first Originating Motion should proceed thereafter in relation to both injuries. I was specifically informed by counsel for the VWA, that the dismissal of the second Originating Motion would not result in any prejudice to Mr Rafiee, as it was on the premise that he would be able to pursue his claims in respect of both injuries by the vehicle of the first Originating Motion.[7]
[7]Reasons, [31].
Then in relation to the substance of the application and Mr Rafiee’s prosecution of the second OM, his Honour concluded:[8]
Mr Rafiee relies upon certain evidence in his affidavits sworn 8 and 16 April 2022 to support his submission that the VWA ought apply the same reasoning in considering his applications for consent under s337 in relation to both Originating Motions. However, pursuant to s264(3) of the Act, the VWA's decision under s337 not to consent to the bringing of proceedings is not able to be reviewed, overturned, or set aside by a court.
As the VWA has not exercised its discretion to consent to the bringing of an application under s335(2)(d) by way of the second Originating Motion, proceeding Cl-21-04540 filed on 17 October 2021 must be dismissed. This is so, because the pre-conditions in s335(2)(d) of the Act, necessary for an application to the Court to grant leave to bring proceedings for the recovery of damages in respect of the injury, have not been met. Mr Rafiee did not make application to a court within thirty days of the determination of the second serious injury application. Mr Rafiee's case in the second Originating Motion has no real prospect of success.
[8]Reasons, [36]–[37].
His Honour then dismissed the second OM and permitted an amendment of the first OM to include further particulars of injury in the following terms:[9]
[9]Reasons, [41].
The Amended Originating Motion number Cl-21-04539 filed 20 September 2021 be amended nunc pro tunc to include further Particulars of Injuries as follows:
“Back injury, including (secondary) psychiatric issues, sleep disturbances, and consequential injuries (to kidneys, coronary artery disease and dyslipidaemia) as a result of medication consumption;
Restriction;
Disabled to do job duties."

The proposed grounds of appeal

34Mr Rafiee’s proposed grounds of appeal in his application for leave to appeal were:
(1)The Judge erred in failing to consider and examine whole of the evidence to determine whether applicant suffered back injuries and psychiatric issues related to back injuries which are completely separate and discrete with his psychiatric illnesses due to two separate cause of actions and time frames which was similarly mistaken by VWA.
(2)Whether the Judge gave sufficient or adequate reasons for his decision that pain and suffering consequences produced by the back injuries claimed impairments did not meet the statutory test of ‘more than significant or marked’, and as being ‘at least very considerable’ and whether the Judge consider whole of the evidence when assessing applicant disabilities effects from his claimed injuries.
(3)The Judge erred in failing to examine and consider whole of the evidence to determine whether or not the applicant had permanent loss of earning capacity of 40 per cent or more as required by s 134AB(38)(e) of the Accident Compensation Act 1985 just for back injuries.
(4)The Judge erred in failing to examine and consider whole of the evidence to determine whether or not the Respondent made of allegations of perjury as well as allegations of falsified documents about the Applicant back injuries.

Consideration

Three of the proposed grounds of appeal (grounds two to four) have no relevance to the decision made by the trial judge.
We will proceed on the basis that ground one challenges his Honour’s decision to dismiss the second OM.
The judge was clearly correct in doing so for the reasons his Honour set out. It is also abundantly clear that the judge understood that there were two distinct claims which Mr Rafiee wished to pursue.
There were three potential avenues open to Mr Rafiee to establish the existence of a ‘serious injury’ and thus the capacity to bring common a law claim against Toyota. The first was an impairment assessment of 30 per cent or more.[10] The second was by VWA issuing a ‘serious injury certificate’.[11] Neither occurred in respect of the two alleged injuries.
[10]The Act, s 335(1).
[11]The Act, s 335(2)(c).
The remaining avenue was to obtain an order from the Court on the basis that one or more of the injuries (or in the language of the Act, the ‘impairments’) constituted a ‘serious injury’ as defined by the Act.[12]
[12]The Act, s 335(2)(d).
This course required Mr Rafiee to issue his proceeding(s) in the County Court (which would have taken the form of an originating motion) within 30 days of the advice being given by VWA under s 330(1) of the Act.[13] He did not do so.[14] Once he was out of time, as he was by many months, then the only way he could obtain the leave of the Court to commence a common law claim was for VWA to consent, pursuant to s 337(1) of the Act, to the continuation of his proceeding.
[13]The Act, s 335(2)(d)(i).
[14]See [13]–[15], above.
Absent the consent of VWA his ability to obtain the leave of the Court (his only remaining option) to institute a common law claim was stymied.
VWA exercised its discretion under s 337(1). The terms of the consent are set out at paragraph [18] above: VWA consented to Mr Rafiee continuing with the first OM and consented to both the psychiatric and back injury claims being determined as part of that proceeding.
VWA did not consent to the bringing or continuation of the second OM. Therefore, as his Honour correctly concluded, s 335(2)(d)(ii) was not engaged and that proceeding was rendered futile. Whether the second OM related solely to a back injury (which it purported to do) or any other injury is immaterial. Absent consent of VWA that proceeding cannot be maintained.
It is important to note that there was nothing unfair, in any way, in the decision of VWA. It enabled Mr Rafiee to pursue both claims in one proceeding, each of which will be assessed independently by the County Court to determine whether the serious injury threshold has been achieved. This was explained to Mr Rafiee by VWA, by the solicitors for Toyota and by the judge. His Honour has ensured that the alleged back injury is particularised in the first OM so both the independent psychiatric and back injuries are now within that proceeding. This is consistent with the claims made in the first application.
It may have been open (pursuant to s 335(2)(d)(i)) to Mr Rafiee to issue separate proceedings if the originating motions had been issued within the 30-day period after the s 330(1) advice — one in respect of the back injury and the other in respect of the psychiatric injury. But in such a situation it would be close to inevitable that an application would have been made by VWA for both claims to be heard together. Notwithstanding that the two impairments alleged by Mr Rafiee and their causes are discreet, the prospects of success of such an application would be close to certain. To permit the claims to be run separately (as was possibly Mr Rafiee’s intention) before different judicial officers and allowing a large body of evidence relevant to the assessment of both alleged impairments to be adduced twice would be absurd and contrary to the provisions of the Civil Procedure Act. In other words, it is highly likely that had there been compliance with the s 335(2)(d)(i) time limit, an order would have been made that both originating motions be heard together and therefore Mr Rafiee’s position would be no different to that which currently obtains.
In summary, once Mr Rafiee required the consent of VWA, as he did under s 335(2)(d)(ii), then that consent determined whether he could pursue one or both originating motions. VWA consented to the first originating motion as it was entitled to. As it was entitled to, it did not consent to the second and that is the end of the matter.

For completeness, we should add that the second serious injury application was impermissible. It was prohibited by s 338 of the Act. The alleged ‘permanent impairment for back injury’ was a replica of that contained in the first application. So, Mr Rafiee was making a further application in respect of the same injury — which is not allowed.
The orders made by the judge were entirely appropriate. Leave to appeal must be refused.
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Rafiee v VWA [2022] VSCA 251

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[2022] VSCA 251

16 November 2022