Sorrell v Transport Accident Commission - [2009] VSC 505

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4341 of 2009

SARAH JANE SORRELL	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 June 2009. Last written submission filed 15 June 2009
DATE OF JUDGMENT:	9 November 2009
CASE MAY BE CITED AS:	Sorrell v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2009] VSC 505

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ACCIDENT COMPENSATION – Transport accident – Judicial review – Mandamus – Conditions for an effective and timely application by an injured person to the Transport Accident Commission for an impairment determination – Commission alleging that plaintiff out of time – Held that plaintiff made an effective application within time – No sufficient discretionary basis to refuse relief – Order in the nature of mandamus granted – Transport Accident Act 1986 ss 46A(1), (1AB), (1A), (1B), (2A).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Kennan SC and Mr A S Pillay	Maurice Blackburn & Co
For the Defendant	Mr Jason Pizer	The Solicitor to the Transport Accident Commission

HIS HONOUR:

Overview

This proceeding was by agreement heard together with another similar proceeding against the defendant (“the TAC”) in which judgment has been given today: Namir Vukovic v Transport Accident Commission[1]. These reasons should be read after, and in conjunction with, the reasons for decision in Vukovic.
[1][2009] VSC 497.

As in Vukovic, the main question in this case is whether the plaintiff (through her solicitors) has made an effective application, within time, to the TAC pursuant to s 46A(1A) of the Transport Accident Act 1986 (“the Act”)[2] for a determination of the degree of her impairment resulting from a transport accident. The statutory consequences of an answer either way are the same as in Vukovic.
[2]As that provision stood at the relevant time, namely between 29 November 2000 and 28 February 2005.

Again, as in Vukovic, I would answer the question in the affirmative.

Accordingly, it is unnecessary to determine the plaintiff’s alternative claim (corresponding to Vukovic’s) based on s 46A(1) of the Act.

For the same reasons as in Vukovic, I would not uphold the TAC’s submission that relief should be refused on discretionary grounds.

Therefore, the plaintiff’s application for an order in the nature of mandamus requiring the TAC to make a determination of her degree of impairment succeeds.

The parties treated Vukovic as the principal vehicle for analysing the common questions of law and principle. The TAC did not submit with any vigor that it could succeed in the present case if it failed in Vukovic[3]. These reasons are attenuated accordingly.
[3]See transcript 134, 144.

The background facts

The plaintiff was born on 15 January 1980. She was involved as a passenger in a transport accident on 9 August 2002, when she was 22 years of age. She was 5 months pregnant at the time.

She suffered a fractured pelvis on one side in the accident and…

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: [2009] VSC 505
Decision Date: 9 November 2009

CaseChat Overview and Summary

The case of Sorrell v Transport Accident Commission involved a dispute between the plaintiff, Sorrell, and the Transport Accident Commission. Sorrell, an injured person, sought an impairment determination from the Commission following a transport accident. The Commission alleged that Sorrell had not made an effective and timely application for the determination, leading to a refusal of his claim. The matter was brought before the court for judicial review, with Sorrell seeking an order in the nature of mandamus to compel the Commission to reconsider his application.

The central legal issue in this case was whether Sorrell's application to the Commission was effective and timely, and if the Commission had a sufficient discretionary basis to refuse relief. The court needed to interpret and apply the provisions of the Transport Accident Act 1986 to determine the validity of the Commission's decision. Specifically, the court examined sections 46A(1), (1AB), (1A), (1B), and (2A) of the Act to ascertain the conditions for an effective and timely application and the criteria for granting relief.

In its reasoning, the court found that Sorrell had indeed made an effective application within the prescribed time. The court held that the Commission's decision to refuse relief was not supported by a sufficient discretionary basis. Consequently, the court granted an order in the nature of mandamus, directing the Commission to reconsider Sorrell's application for an impairment determination. The court emphasised that the statutory provisions required the Commission to make a determination if an application was effective and timely, and there was no evidence to suggest that Sorrell's application did not meet these criteria.

The final orders of the court mandated that the Transport Accident Commission was to review Sorrell's application for an impairment determination, recognising that it was both effective and timely made. The court's decision underscored the importance of adhering to statutory requirements when assessing applications under the Transport Accident Act 1986.

Orders