Spanovic v Carter Holt Harvey Ltd
[2014] VSCA 240
•2 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0013
| LJUBISA SPANOVIC |
| v |
| CARTER HOLT HARVEY |
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| JUDGES: | ASHLEY JA and ALMOND AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 May 2014 |
| DATE OF JUDGMENT: | 2 May 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 240 |
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J Grabau | Simon Legal |
| For the Respondent | Ms K L Burgess | Wisewould Mahoney |
ASHLEY JA:
By application issued in October 2009, Ljubisa Spanovic (‘the applicant’) sought leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), to bring a proceeding to recover damages for injuries to his right and left arms and hands. He alleged that he sustained such injuries in compensable circumstances between 20 October 1999 and September 2001. 20 October 1999, it will be remembered, was the date upon which the temporary prohibition against bringing common law proceedings for work-place injury ended.
The application, brought against Mr Spanovic’s former employer, Carter Holt Harvey Ltd, was dismissed by a County Court judge on 18 September last year.
By summons filed 20 February this year the applicant sought leave to extend time within which to file and serve a Notice of Appeal. No supporting affidavit or draft Notice of Appeal was then filed. Only on 30 April did the applicant’s solicitor file documents of that kind; and only on 30 April, as I understand it, were any documents served upon the respondent. I will refer to those documents a little later in these reasons.
The question whether the Court should exercise its discretion to extend time for the filing and service of a Notice of Appeal involves consideration of the length and reasons for delay, prejudice to the respondent and whether the proposed appeal so lacks merit as to be futile.[1]
[1]Muto v Secretary to Department of Planning and Community Development [2013] VSCA 85, [13] (Neave JA); see also Slaveski v State of Victoria [2009] VSCA 6, [77] (Kellam JA), citing Jackamarra v Krakouer (1998) 195 CLR 516, 521 [7] (Brennan CJ and McHugh J).
In my opinion leave to extend time should be refused because there has been no explanation for the long delay and because the proposed appeal lacks any merit.
The judge’s reasons show that the applicant was employed by the respondent between 1998 and 2001. Initially he worked as a fitter and turner. He spent part of each day changing blades on a paper cutting machine. According to the applicant’s first affidavit, which was before the judge, this work was repetitive, awkward and heavy, and placed particular strain on his left arm. Otherwise, according to the applicant’s first affidavit, he engaged in other repetitive work which placed strain on his upper limbs.
It appears that the applicant did suffer some injury. He made a claim for compensation in early 2001. The judge’s reasons reveal that the applicant was put on to light duties for a period, but that he later resumed full duties. Then, in September 2001, he was retrenched. Thereafter, it appears, he was for a lengthy period in receipt of weekly payments.
The judge observed that the evidence as to the time at which the applicant had suffered compensable injury was confused. On the one hand, the applicant had agreed in cross-examination that he had first suffered wrist problems in 1998 - this being a history recorded by a psychiatrist who had examined the applicant on the respondent’s behalf. But that doctor had also recorded another and different history. It was to the effect that the applicant had sustained injury on 14 December 2000. Then there was a claim form signed by the applicant and dated 27 February 2001. In that document, in answer to a question whether he had previously suffered pain or disability in the affected area, the applicant had stated that he felt pain in his wrists about two years earlier but had made no WorkCover claim.
According to the applicant’s first affidavit, he attended a doctor in December 2000 for pain in his right wrist and was given a return to work plan for light duties. But that doctor was not called at the hearing. Nor were other doctors, a chiropractor and a physiotherapist who the applicant identified as having treated him early on.
The judge rightly stated that it was for the applicant to satisfy him that he had suffered compensable injury after 20 October 1999, which injury, by reason of its consequences, constituted serious injury.
His Honour was not satisfied that the applicant had suffered compensable injury after 20 October 1999. He was further not satisfied, if the applicant’s then-present disabilities could be attributed to any such injury (which he did not accept), that they were serious in their consequences.
As to the first of those conclusions, the judge correctly observed that the applicant did not demonstrate that he had sustained injury after 20 October 1999 simply by there being evidence that he had received treatment after that date. The date of treatment did not establish date of injury. As his Honour also noted, there was no contemporaneous medical evidence which assisted the applicant’s proofs.
The judge noted the applicant’s evidence that, subsequent to being retrenched by the respondent in 2001, he had been in receipt of worker’s compensation payments for a lengthy period before finding other work. But in light of the answer in the claim form which referred to earlier symptoms, the making of payments arguably showed only that the respondent accepted that the applicant had suffered compensable injury at some time. Ansett v Taylor[2] does not require a different conclusion.
[2][2006] VSCA 171.
The judge, though not satisfied that the applicant had sustained compensable injury after 20 October 1999, nonetheless considered, as I have said, whether the applicant had proved that the disabilities present at the time of the hearing still resulted from or were materially contributed to by compensable injury; and whether they constituted serious injury. His Honour had regard to the applicant’s evidence, his work history subsequent to September 2001, and the opinions of examining doctors.
So far as work is concerned, the applicant gave evidence, as noted by the judge, that he had been employed by three companies in the period 2004 to 2011, and that he had been able to do the work assigned to him - mainly forklift driving, but also other duties.
The judge further recorded that the applicant had given evidence that he had looked for work since 2011 but had been unsuccessful. The applicant had said that he would be able to do a good job as a forklift driver, but was less confident of his ability to do good work as a truck driver. In the former of those occupations, he said, as the judge noted, that he would be able to do shift work and overtime. But then he had said that he was no longer looking for work as a forklift driver because of his right shoulder pain. The time of onset of this pain was uncertain on the evidence. But probably it was in about 2008 or 2009 - that is, long after the applicant had ceased work with the respondent.
In all, the evidence was strongly opposed to a conclusion that, even if compensable injury sustained after 20 October 1999 contributed to the applicant’s then-disabilities, his injuries met the statutory requirements for a conclusion that they were serious in their loss of earning capacity consequences.[3]
[3]See s 134AB(38)(e) and (f).
As to the pain and suffering consequences of any compensable injury, the judge referred to a number of affidavits sworn by the applicant. He referred also to the medical reports which had been placed before him.
It was on the basis of all the evidence that his Honour reached the conclusion - which has been said to be a matter of fact, degree and value judgment – that, if the applicant’s disabilities were any longer referable to compensable injury, they did not constitute serious injury in their pain and suffering consequences.
The supporting affidavit, sworn by the applicant’s solicitor on 30 April 2014, in substance says this:
2.… The appellant’s application was refused by the court below due to a number of bases including that he had not suffered injury or after October 1999 and that the pain and suffering consequences were not serious to the appellant. …
3.The plaintiff has instructed me that he has not returned to work. He instructs me that he continues to see Dr Z. Barr, general practitioner and psychologist Dr W. Mooney for regular treatment of his injuries. He has not returned to any employment since ceasing employment with the respondent. He has not been retrained or rehabilitated so that he can work in suitable alternative employment.
4.I am informed by the appellant and verily believe that the pain and suffering consequences to the appellant were within the range that should have been accepted as meeting the narrative threshold for which leave to commence proceedings is granted. I verily believe the appellant’s inability to work and the financial consequences thereof were not considered by the Honourable court below.
It can be seen that that paragraph 2 is purely introductory, that paragraph 3 provides no basis for impugning the judge’s reasons, and that paragraph 4 is no more than the applicant’s assertion as to the extent of his disability. In all, then, the affidavit is as good as useless in disclosing any basis for an attack upon the judge’s reasons. There is no reason why the affidavit should not have usefully addressed any matters of substance sought to be agitated on appeal.
Moreover, and importantly, the affidavit says not one word to explain the delay of nearly five months in taking any step towards prosecuting an appeal. Today, counsel told the Court that his instructions were that the delay was by reason of his client’s impecuniosity. He could give no detail. At one point, he diffidently sought an adjournment. He did not attempt an explanation why, another two months having elapsed since the extension of time application was filed, his client’s solicitor was unable address the supposed reason for the delay in his recent affidavit.
In the circumstances described, the Court could not permit the matter to be dragged out still further.
The proposed Notice of Appeal specifies the following grounds:
1.That the learned judge erred in law in finding that the appellant was injured in or about October 1999.
2.That the learned judge erred in not granting the application of the appellant and did not take into [account] relevant evidence including the loss of earnings and loss of earning capacity of the appellant.
3.That the learned judge erred in law by not waiting to deliver judgment until after the High Court of Australia’s judgment in the matter of Wingfoot Australia Partners Pty Ltd v Kocak (2013) HCA 43.
4.That the learned judge did not provide a path of reasoning or sufficient reasons.
5.That the learned judge did not take into account the respondent’s acceptance of the appellant’s injuries and a date of injury after 20 October 1999.
6.That the learned judge should not have dismissed the application when the appellant’s credit was not in issue.
Applicant’s counsel informed the Court this morning that Ground 3 was not pursued.
The remaining grounds, in my opinion, do not advance the applicant’s position.
Ground 1 asserts that the judge erred by making a finding which, on my reading of his Honour’s reasons, he did not make.
Ground 2 is in part bald assertion. It is otherwise not particularised. It sits ill with the judge’s apparently careful examination of the evidence touching the applicant’s disabilities and work performance. No transcript, I add, has been provided to the Court as might illuminate the asserted error.
Ground 4 is bald assertion. A reading of the judge’s reasons, to my mind, discloses a clear path of reasoning.
Ground 5 implies that the judge had before him evidence that compensation was paid in 2001 and subsequently for injury alleged to have occurred subsequent to 20 October 1999. Assuming that there was such evidence, it was relevant to the question whether some compensable injury had in fact been sustained after that date.[4] But that would not touch the question - which the judge did address - whether any such injury was serious in either its pain and suffering or loss of earning capacity consequences.
[4]Ansett v Taylor [2006] VSCA 171.
In summary, no attempt has been made to explain the applicant’s long delay in taking any step to prosecute an appeal, and the grounds of appeal are unhelpful and unsupported by material. The proposed appeal would be bound to fail.
The application for extension of time within which to file a Notice of Appeal, in my opinion, should be dismissed.
ALMOND AJA:
I agree, for the reasons given by Ashley JA.
ASHLEY JA:
The order of the Court is that the application is dismissed. (Discussion regarding costs.)
The application is dismissed. There will be no order as to costs.
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