Stanislawa Bahonko v Moorfields Community - [2012] HCASL 4

STANISLAWA BAHONKO
v
MOORFIELDS COMMUNITY & ORS
[2012] HCASL 4
M134/2011

The applicant brought proceedings in the County Court of Victoria seeking to establish her entitlement to workers' compensation benefits under the Accident Compensation Act 1985 (Vic). The primary judge (Judge Misso) dismissed the proceedings.
On the applicant's appeal to the Court of Appeal of the Supreme Court of Victoria, the Court of Appeal (Buchanan, Redlich and Mandie JJA) allowed the appeal, set aside the orders of Judge Misso and ordered that the proceeding be retried by another judge. After those orders were made, the applicant applied to vary them. She contended that she should have had orders giving her the substantive relief she had sought in the County Court and that the order remitting the matter for retrial should be set aside. The Court of Appeal refused the application to vary its order.
The applicant now seeks special leave to appeal against so much of the orders of the Court of Appeal as directed the retrial of her application to the County Court and against the orders of the Court of Appeal dismissing her application for variation of those orders.
An appeal against the orders of the Court of Appeal which the applicant seeks to challenge would enjoy no prospect of success.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
9 February 2012 S.M. Crennan

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: [2012] HCASL 4
Decision Date

CaseChat Overview and Summary

Stanislawa Bahonko sought to establish her entitlement to workers' compensation benefits under the Accident Compensation Act 1985 (Vic) by bringing proceedings in the County Court of Victoria. The County Court dismissed her proceedings, but the Court of Appeal later allowed her appeal, ordering a retrial by a different judge. Following this, Bahonko applied to vary the orders of the Court of Appeal, arguing she should have received substantive relief and that the retrial order should be set aside. The Court of Appeal dismissed her application for variation, prompting Bahonko to seek special leave to appeal against the orders directing the retrial and the refusal of the variation application. The legal issues before the High Court were whether the appeal against the orders of the Court of Appeal had any prospect of success and if special leave should be granted. The High Court found that there was no prospect of success in such an appeal and dismissed the application. Consequently, the Registrar was directed to draw up, sign, and seal an order dismissing the application.

Orders