Vukovic v Transport Accident Commission - [2009] VSC 497

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4340 of 2009

NAMIR VUKOVIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 June 2009. Last written submission filed 15 June 2009
DATE OF JUDGMENT:	9 November 2009
CASE MAY BE CITED AS:	Vukovic v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2009] VSC 497

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ACCIDENT COMPENSATION – Transport accident – Judicial review – Mandamus – Conditions for an effective and timely application by an injured person to the Transport Accident Commission for an impairment determination – Commission alleging that plaintiff out of time – Held that plaintiff made an effective application within time – No sufficient discretionary basis to refuse relief – Order in the nature of mandamus granted – Transport Accident Act 1986 ss 46A(1), (1AB), (1A), (1B), (2A).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Kennan SC and Mr A S Pillay	Maurice Blackburn & Co
For the Defendant	Mr Jason Pizer	The Solicitor to the Transport Accident Commission

HIS HONOUR:

Overview

The main question in this case is whether the plaintiff (through his solicitors) has made an effective application, within time, to the defendant, the Transport Accident Commission (“the TAC”), pursuant to s 46A(1A) of the Transport Accident Act 1986 (“the Act”)[1] for a determination of the degree of the plaintiff’s impairment resulting from a transport accident. If he has done so, the TAC admits that it would be obliged to determine the degree of his impairment. Otherwise, the TAC may not be so obliged. Without an impairment determination by the TAC, a person injured in a transport accident cannot be paid impairment benefits and cannot bring common law proceedings.
[1]As that provision stood at the relevant time, namely between 29 November 2000 and 28 February 2005.

I would answer the question in the affirmative. It is therefore unnecessary to rule on the plaintiff’s alternative contention that the TAC is under an obligation[2] to at least consider whether to make a determination of the degree of his impairment.
[2]Pursuant to the original version of s 46A, as enacted in 1988, which corresponds to s 46A(1) as presently in force.

I do not accept the submission by the TAC that, as a matter of discretion, the Court should refuse the plaintiff prerogative relief on the basis that he could have made an application for review to the Victorian Civil and Administrative Tribunal (VCAT) instead of applying to this Court for judicial review.

It follows that the plaintiff’s application for an order in the nature of mandamus requiring the TAC to make a determination of his degree of impairment succeeds.

The background facts

The plaintiff was born on 22 September 1982. He was involved in a transport accident on 11 March 1989 when he was six years of age. He was sitting between his parents in the back seat of a vehicle being driven by his cousin on a country road. The…

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: [2009] VSC 497
Decision Date: 9 November 2009

CaseChat Overview and Summary

Vukovic v Transport Accident Commission involved the plaintiff, a claimant for transport accident compensation, in dispute with the Transport Accident Commission over the timeliness of his application for an impairment determination. The matter was brought before the Court of Appeal in Victoria, which had to decide on the validity of the Commission's refusal to consider the plaintiff's claim due to an alleged late submission. The plaintiff argued that his application was both effective and timely, while the Commission contended that it had not been received within the statutory period.

The legal issues before the court centred on the interpretation of the relevant sections of the Transport Accident Act 1986, particularly in relation to the requirements for an effective application and the timeliness of such applications. The court had to determine whether the plaintiff's application met the statutory criteria and whether the Commission had a discretionary basis to refuse to consider the application. The court also needed to assess the appropriate remedy if it found in favour of the plaintiff.

The court held that the plaintiff's application was effective and timely under the Act. It found that the Commission's interpretation of the statutory provisions was too narrow and that the plaintiff had indeed made a valid application within the prescribed timeframe. The court further concluded that there was no sufficient discretionary basis to refuse the plaintiff relief. Consequently, the court granted an order in the nature of mandamus, directing the Commission to consider the plaintiff's application for an impairment determination. This decision underscored the importance of the statutory requirements for effective and timely applications and the limited discretion available to the Commission in such matters.

Orders