Dwyer v Calco Timbers Pty Ltd [2008] HCA 13

HIGH COURT OF AUSTRALIA

GLEESON CJ

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

BRETT DWYER APPELLANT

AND

CALCO TIMBERS PTY LTD RESPONDENT

Dwyer v Calco Timbers Pty Ltd

[2008] HCA 13

16 April 2008

M88/2007

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Court of Appeal of the Supreme Court of Victoria made on 8 September 2006.

3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for rehearing in accordance with the reasons of this Court.

4. The respondent pay the appellant's costs of the proceedings in the Court of Appeal of the Supreme Court of Victoria up to the listing for rehearing of the appeal to that Court.

5. The costs of the rehearing (and any consequential costs order respecting the application to the County Court of Victoria) abide the outcome of the rehearing of the appeal to the Court of Appeal of the Supreme Court of Victoria.

On appeal from the Supreme Court of Victoria

Representation

J H Kennan SC with P T Vout for the appellant (instructed by Slater & Gordon)

D F Jackson QC with J P Gorton for the respondent (instructed by Wisewoulds Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Dwyer v Calco Timbers Pty Ltd

Courts – Jurisdiction and powers of Court of Appeal – Accident compensation – Appellant injured in course of employment – Appellant prevented by s 134AB of Accident Compensation Act 1985 (Vic) ("Compensation Act") from bringing proceedings for damages without leave of County Court – County Court obliged not to give leave unless satisfied on balance of probabilities that appellant's injury "serious injury" – County Court judge held appellant's injury not serious injury within meaning of s 134AB of Compensation Act – Appellant appealed to Court of Appeal – Section 134AD of Compensation Act required Court of Appeal to "decide for itself" whether injury serious injury – Court of Appeal dismissed appeal because not persuaded County Court was wrong – Meaning, effect, history and purpose of legislation – Significance of Court of Appeal's role as highest appellate court of State – Whether inconsistent with propounded appellate function – Whether Court of Appeal failed to exercise jurisdiction.