Legal Research
Cases
Vitaz v Westform (NSW) Pty Ltd

Vitaz v Westform (NSW) Pty Ltd

Link copied

Case Copied 29 August 2011 31 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Hearing dates: 4 April 2011
Decision date: 29 August 2011
Before: McColl JA at 1,
Basten JA at 2,
Handley AJA at 59
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial review - challenge to decisions at two levels - existence of statutory appeal - following an appeal availability of judicial review proceedings in respect of the original decision - application of statutory scheme for appeals
ADMINISTRATIVE LAW - judicial review - whether Appeal Panel addressed issues raised - obligation to give reasons - adequacy of reasons - challenge to reasons of specialist - purpose of requiring reasons of specialist
Legislation Cited: Justices Act 1902 (NSW), ss 112, 122
Migration Act 1958 (Cth), ss 414, 415
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 321, 323, 325, 326, 327, 328
Cases Cited: Blacker v Parnell [1978] 1 NSWLR 616
Calvin v Carr [1980] AC 574
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Cole v Wenaline Pty Ltd [2010] NSWSC 78
D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep)
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240
Hill v Green [1999] NSWCA 477; 48 NSWLR 161
Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; 166 IR 192
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
NAJT v Minister for Immigration and Multicultural Affairs [2005] FCAFC 134; 147 FCR 51
NAMG v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 181
The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; 147 CLR 471
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
Sherlock v Lloyd [2010] VSCA 122
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252
Wishart v Fraser [1941] HCA 8; 64 CLR 470
Category: Principal judgment
Parties: Djordje Vitaz - Appellant
Westform (NSW) Pty Ltd - First Respondent
Dr Peter Giblin - Second Respondent
Carole McCaskie, Dr Richard Crane and Dr Kenneth Hume - Third Respondent
The Workers Compensation Commission - Fourth Respondent
Representation:
Counsel:

Mr R Lancaster SC/Ms B Nolan - Appellant
Mr I Todd - First Respondent
Submitting appearances - Second to Fourth Respondents
Solicitors:
NSW Compensation…

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.

Keep reading for free

Create a free CaseChat account to read Vitaz v Westform (NSW) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWCA 254
Decision Date: 29 August 2011

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by Vitaz against decisions made by Westform (NSW) Pty Ltd. The dispute concerned the availability of judicial review following a statutory appeal process.

The primary legal issues before the Court of Appeal were whether judicial review was available in respect of the original decision, given that a statutory appeal had already been pursued, and whether the Appeal Panel had adequately addressed the issues raised before it, including its obligation to provide reasons.

The Court of Appeal reasoned that the statutory scheme for appeals, which had been utilised by the appellant, precluded further judicial review of the original decision. It was held that the appeal process was intended to be exhaustive, and once that process had run its course, the original decision was no longer amenable to judicial review. Furthermore, the Court found that the Appeal Panel had provided sufficient reasons for its decision, addressing the matters that were properly before it.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Hearing dates:	4 April 2011
Decision date:	29 August 2011
Before:	McColl JA at 1, Basten JA at 2, Handley AJA at 59
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - challenge to decisions at two levels - existence of statutory appeal - following an appeal availability of judicial review proceedings in respect of the original decision - application of statutory scheme for appeals ADMINISTRATIVE LAW - judicial review - whether Appeal Panel addressed issues raised - obligation to give reasons - adequacy of reasons - challenge to reasons of specialist - purpose of requiring reasons of specialist
Legislation Cited:	Justices Act 1902 (NSW), ss 112, 122 Migration Act 1958 (Cth), ss 414, 415 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 321, 323, 325, 326, 327, 328
Cases Cited:	Blacker v Parnell [1978] 1 NSWLR 616 Calvin v Carr [1980] AC 574 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Cole v Wenaline Pty Ltd [2010] NSWSC 78 D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 Hill v Green [1999] NSWCA 477; 48 NSWLR 161 Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; 166 IR 192 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 NAJT v Minister for Immigration and Multicultural Affairs [2005] FCAFC 134; 147 FCR 51 NAMG v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 181 The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 Sherlock v Lloyd [2010] VSCA 122 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 Wishart v Fraser [1941] HCA 8; 64 CLR 470
Category:	Principal judgment
Parties:	Djordje Vitaz - Appellant Westform (NSW) Pty Ltd - First Respondent Dr Peter Giblin - Second Respondent Carole McCaskie, Dr Richard Crane and Dr Kenneth Hume - Third Respondent The Workers Compensation Commission - Fourth Respondent
Representation:	Counsel: Mr R Lancaster SC/Ms B Nolan - Appellant Mr I Todd - First Respondent Submitting appearances - Second to Fourth Respondents Solicitors: NSW Compensation…