Tam v Worksafe Victoria - [2023] NSWSC 173

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tam v Worksafe Victoria [2023] NSWSC 173
Hearing dates: 10 February 2023
Date of orders: 2 March 2023
Decision date: 02 March 2023
Jurisdiction: Common Law
Before: Fagan J
Decision:
1 The summons is dismissed.
2 The plaintiff is to pay the second defendant’s costs.

Catchwords:
ADMINISTRATIVE LAW – judicial review – decision made by Victorian WorkCover Authority – jurisdiction to undertake judicial review matter of Victorian official – Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) – decision under s 337(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – decision not to consent to commencement of proceedings for damages out of time – whether administrative law error in Authority not finding absence of fault or omission of worker or legal representative – summons dismissed

Legislation Cited:
Administrative Law Act 1978 (Vic)
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)
Corporations Act 2001 (Cth)
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
Work Health and Safety Act 2011 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Category: Principal judgment
Parties: Ching Tam (plaintiff)
Worksafe Victoria (first defendant)
Victorian Workcover Authority (second defendant)
Representation:
Counsel:
RS Sheldon SC (plaintiff)
PJ Hayes KC with G Jegatheesan (defendant)
Solicitors:
Shanahan Tudhope Lawyers (plaintfiff)
Lander & Rogers (defendants)

File Number(s): 2022/14892
Publication restriction: No

JUDGMENT

HIS HONOUR: By summons filed on 21 October 2022 the plaintiff seeks judicial review of a decision made by the Victorian WorkCover Authority (“the Authority”). The decision was made on 11 October 2022 under s 337(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). Under that provision the Authority decided to refuse consent for the plaintiff to commence proceedings outside a time limit prescribed by the Act.
On 13 July 2017 the plaintiff was injured when he fell from a ladder in the course of his employment as a fruit picker in an orchard at Hillston, a locality approximately 110 km north of Griffith in the New South Wales Riverina. The injury sustained was catastrophic, involving spinal damage at the C4-C5 level that has rendered the plaintiff quadriplegic. He alleges that his fall resulted from, inter-alia, negligence of both the operator of the orchard, Super Seasons Pty Ltd, and the plaintiff’s direct employer, a labour hire company named Mr Handy Professor Pty Ltd (“MHP”). Under a contract between the two companies, MHP had supplied the plaintiff’s labour to Super Seasons Pty Ltd.
The plaintiff wishes to prosecute in this Court a claim against the Authority, as insurer of MHP, for common law damages for his workplace injury. In circumstances described below, the plaintiff has already joined the Authority as a defendant to a common law action that he commenced in this Court but the Authority contends that that proceeding is a nullity as against it by reason…

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 Tam v Worksafe Victoria

Details

AGLC: Tam v Worksafe Victoria [2023] NSWSC 173
Case: [2023] NSWSC 173
Decision Date: 02 March 2023

CaseChat Overview and Summary

The proceedings in the Supreme Court of Victoria involved a judicial review application brought by Tam against Worksafe Victoria. The dispute centred on a decision by the Victorian WorkCover Authority not to consent to the commencement of proceedings for damages out of time. The applicant sought a review of the decision under section 337(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The legal issues before the court included whether the Authority had erred in not finding the absence of fault or omission of the worker or the worker’s legal representative. Additionally, the court had to determine the jurisdictional aspects, specifically whether the court had the necessary jurisdiction to review the decision made by the Victorian WorkCover Authority under the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth).

The court examined the legislative framework and determined that it had jurisdiction to review the decision. The court then turned to the substantive issue of whether the Authority had committed an administrative law error. The court found that the Authority had not erred in not finding the absence of fault or omission. It was held that the Authority had correctly applied the statutory criteria and had provided adequate reasons for its decision. The applicant's argument that the decision was flawed due to a lack of consideration of certain factors was rejected. The court found that the Authority had adequately addressed the relevant issues and had not failed to consider any material aspect of the case.

In light of the above findings, the court dismissed the summons. The court concluded that the Authority's decision was lawful and that there was no administrative law error that warranted the grant of judicial review. The applicant's application for judicial review was therefore dismissed, and no further orders were made. The decision underscored the importance of the statutory framework governing such proceedings and the need for the reviewing court to carefully assess the application of the statutory criteria by the decision-maker.

Orders