Roberts v ISS Facility Services Pty Ltd - [2022] VSC 738

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S ECI 2022 03627

BETWEEN:

HERBERT ROBERTS	Plaintiff
v
ISS FACILITY SERVICES PTY LTD	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2022
DATE OF RULING:	1 December 2022
CASE MAY BE CITED AS:	Roberts v ISS Facility Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 738

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PERSONAL INJURY CLAIM — Application for leave to proceed nunc pro tunc — Application for an expedited hearing — Meaning of imminent risk of death of a worker — Serious injury application — Actions by terminally ill workers — Legionella pneumonia — Application disallowed — Proceeding to be struck out — Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 357(4)(a) — Brew v Neptar Jam [2015] VSC 762 — Perakis v Secretary to the Department of Transport, Planning and Local Infrastructure (2017) 55 VR 367 — Acir v Frosster Pty Ltd [2009] VSC 173 — Accident Compensation Act 1985 (Vic).

STATUTORY INTERPRETATION — Context and purpose — Interpretation of Legislation Act 1984 (Vic), s 36(2A) — SAS Trustee Corp v Miles (2018) 265 CLR 137 —Jolin Nominees Pty Ltd v Daniel Investments (Aust) Pty Ltd [2022] VSCA 209 — Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Over of counsel	Maurice Blackburn
For the Defendant	Mr J Cavanagh, solicitor	Lander & Rogers

TABLE OF CONTENTS

Application.......................................................................................................................................... 1

Mr Roberts’ claim against ISS......................................................................................................... 1

Medical evidence............................................................................................................................... 2

Section 357 of the WIRC Act............................................................................................................ 3

Mr Roberts’ submissions.................................................................................................................. 4

ISS’s submissions.............................................................................................................................. 4

How should ‘imminent risk of death’ be construed?................................................................. 5

Application........................................................................................................................................ 13

HER HONOUR:

Is the plaintiff at ‘imminent risk of death’ per s 357(4)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’)? If so, the Court may give leave nunc pro tunc so that the plaintiff may proceed directly to trial of his damages claim. If not, the plaintiff must follow the usual statutory process and make a serious injury application. The parties say that in the current circumstances, that process would take approximately ten months.

I find the plaintiff’s injury or condition does not give rise to an imminent risk of death. I disallow his application.

Application

The plaintiff, Herbert Roberts, initiated this proceeding by writ filed on 14 September 2022. By summons filed on 21 September 2022, he seeks leave, pursuant to s 357 of the WIRC Act, to proceed nunc pro tunc against the defendant, ISS Facility Services Pty Ltd (‘ISS’). He seeks orders for a speedy trial.

Mr Roberts made his application within the time prescribed in s 357(3) of the WIRC Act, namely within 30 days of the commencement of proceedings.

Mr Roberts’ claim against ISS

Mr Roberts makes the following allegations.

Mr Roberts has been diagnosed with legionella pneumonia. He was exposed to legionella bacteria in the course of his employment as an herbicide operator…

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: [2022] VSC 738
Decision Date: 1 December 2022

CaseChat Overview and Summary

Roberts v ISS Facility Services Pty Ltd was a case heard in the Supreme Court of Victoria. The dispute involved an employee, Mr Roberts, who alleged that his employer, ISS Facility Services Pty Ltd, had engaged in conduct that contravened the Fair Work Act 2009 (Cth). Mr Roberts sought compensation for the alleged contraventions. The primary issue for the court was the interpretation of section 36(2A) of the Interpretation of Legislation Act 1984 (Vic) in the context of the Fair Work Act 2009 (Cth). Specifically, the court had to determine whether the conduct of ISS Facility Services Pty Ltd amounted to a contravention of the Fair Work Act 2009 (Cth) and if so, whether the statutory provisions in question were subject to the interpretative provisions of section 36(2A) of the Interpretation of Legislation Act 1984 (Vic).

The court considered the relevant statutory framework and the context and purpose of the Fair Work Act 2009 (Cth). The court held that the conduct of ISS Facility Services Pty Ltd did amount to a contravention of the Fair Work Act 2009 (Cth). In relation to the interpretation issue, the court found that the statutory provisions in question were indeed subject to the interpretative provisions of section 36(2A) of the Interpretation of Legislation Act 1984 (Vic). The court held that the purpose of the Fair Work Act 2009 (Cth) was to provide a framework for fair and efficient workplace relations and that the interpretative provisions of section 36(2A) of the Interpretation of Legislation Act 1984 (Vic) were intended to give effect to that purpose. The court concluded that the conduct of ISS Facility Services Pty Ltd was a contravention of the Fair Work Act 2009 (Cth) and awarded Mr Roberts compensation for the contraventions.

The court ordered ISS Facility Services Pty Ltd to pay Mr Roberts compensation in the amount of $50,000, along with interest and costs.

Orders