Spanovic v Carter Holt Harvey Ltd - [2014] VSCA 240

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0013

LJUBISA SPANOVIC

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…

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.

Continue reading Spanovic v Carter Holt Harvey Ltd

Details

AGLC: Spanovic v Carter Holt Harvey Ltd [2014] VSCA 240
Case: [2014] VSCA 240
Decision Date: 2 May 2014

CaseChat Overview and Summary

In Spanovic v Carter Holt Harvey Ltd, the applicant, Ljubisa Spanovic, sought leave to appeal a County Court decision that dismissed his application for damages under the Accident Compensation Act 1985. Spanovic alleged that he sustained compensable injuries to his arms and hands while employed by Carter Holt Harvey Ltd between October 20, 1999, and September 2001. The primary legal issues in this case were whether the applicant had suffered compensable injuries after October 20, 1999, and if these injuries constituted a "serious injury" as defined by the Act.

The Supreme Court of Victoria Court of Appeal held that the applicant had not demonstrated that he had sustained compensable injuries after October 20, 1999, or that any such injuries resulted in a "serious injury." The Court of Appeal dismissed the applicant's appeal, finding that the applicant had not provided a satisfactory explanation for the significant delay in filing the appeal and that the grounds of appeal were insufficient. The Court found that the applicant's affidavit and the proposed grounds of appeal did not address the reasons for the delay or provide a basis for overturning the original decision.

The Court concluded that the proposed appeal was likely to be futile and refused the application for an extension of time to file a Notice of Appeal. The Court also noted that there was no order as to costs. The decision highlights the importance of timely and well-supported appeals and the need for applicants to provide clear and cogent explanations for any delays in filing their appeals.

Orders