Appellant v First Respondent

1 The appellant was born on 24 October 1992. In 2018, he was employed as a roof tiler by Kevin Donald Evans. The appellant and his employer resided in South Australia.

2 The appellant alleges that, on 8 May 2018, in the course of his employment -

(a) he attended a property at Mount Duneed in Victoria in order to install roof battens and tiling; and

(b) he fell from the roof of the property and suffered a range of injuries, including closed head injury and spinal injuries.

3 The first respondent is alleged to be a provider of roof tiling products and services and the second respondent is alleged to have been the principal contractor at the property.

4 On 8 March 2023, the appellant commenced common law proceedings in this Court. The respondents have filed and served defences.

(a) the appellant has received statutory compensation pursuant to the provisions of the Return to Work Act 2014 (SA) ('RTW Act');

(b) in the appellant's common law claim against the non-employer respondents, the applicable law is that of Victoria; and

(c) the appellant has not accessed the 'serious injury gateway' established by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act'), particularly ss 326 and 327.

6 On 3 December 2024, the respondents filed a summons seeking summary judgment.

7 In that application, the issue was the proper construction and application of s 326 of the WIRC Act.

A worker who is, or the dependants of a worker who are, or may be, entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except - ...[1]

9 In substance, the respondents contended that the word 'compensation' means, in effect, 'any compensation', and, as the appellant has received compensation under the RTW Act, he must access the 'serious injury gateway' in order to pursue his common law claim in Victoria.

10 In contrast, the appellant contended that s 326 speaks to an entitlement to compensation under the WIRC Act and, as he has no such entitlement, he is not required to access the 'serious injury gateway' in order to pursue his common law claim.

11 On 18 September 2025, an Associate Justice delivered judgment for the respondents.[2] Among other things, the Associate Justice outlined the principles of statutory construction and referred to -

(a) various legislative provisions, including s 134AB(1) of the Accident Compensation Act 1985 (Vic) ('ACA');

(b) a series of Victorian authorities[3] as well as the decision of the New South Wales Court of Appeal in Australian Rail Track Corporation Limited v Dollisson ('Dollisson');[4] and

(c) various alleged purposes, policy choices, elements of 'mischief', anomalies and expectations of employers.

(a) the appellant was 'asking the Court to interpret s 326 as if it contained the additional words "under the WIRC Act" or similar';[5]

(b) the Parliament had deliberately chosen to omit those words from s 326 of the WIRC Act as well as to omit the words 'under the ACA' from s 134AB(1) of the ACA; [6] and

(c) the Victorian authorities and Dollisson do not assist in the construction of s 326.[7]

13 In substance, the Associate Justice determined that the appellant could not pursue his claim without accessing the 'serious injury gateway' in the WIRC Act.

14 On 30 September 2025, the appellant filed a notice of appeal stating the following single ground of appeal -

The associate judge erred in the construction of s 326 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) by concluding that 'compensation' in that section of the Act was not confined to compensation under the Act but extended to compensation under any statutory workers' compensation regime in any jurisdiction.

15 The appeal came on for hearing on 19 February 2026.

16 The appeal re-presents the issue of construction addressed below.

17 The appellant must demonstrate error.[8]

18 The appellant and respondents have each filed extensive written submissions.[9]

19 In oral address, among other things, senior counsel for the appellant submitted that -

(a) the opening words of s 326 of the WIRC Act have a long history in Victorian accident compensation law;[10]

(b) in particular, those words appear in ss 135A(1), 134A(1), 134AA and 134AB(1) of the ACA, which remain in force;[11]

(c) the Parliament intended that s 326 of the WIRC Act should operate 'the same' as ss 134AA and 134AB(1) of the ACA;[12]

(d) the meaning of the word 'compensation' had been established in six earlier Victorian decisions, including four decisions of the Court of Appeal;[13]

(e) the doctrine of precedent applies to statutory construction;[14]

(f) there is no room for any different construction of s 326 of the WIRC Act as -

First, ... s 134AA and s 134AB(1) were re-enacted without material amendment in s 326. Secondly, as the explanatory memorandum for the WIRC bill makes clear, s 326 was intended to operate in the same way as ss 134AA and 134AB(1). Section 326 was also intended to operate alongside those provisions in a temporal sense, albeit in respect of compensable injuries sustained at a later period.

Thirdly, ... the respondents have [not] pointed to any new or amended provision in the WIRC Act that could possibly lead to s 326 being construed differently from ss 134AA and 134AB(1).[15]

(g) it follows that the appellant's construction of s 326 should have been accepted.[16]

20 Senior counsel thereafter addressed the principles of statutory construction and articulated nine further points in support of the appellant's construction of s 326.[17]

21 In response, among other things, senior counsel for the respondents submitted that -

(a) the authorities in question 'never actually construed the word compensation in s 326' and, indeed, were said to have 'dealt with quite different issues';[18]

(b) there was a 'change in the landscape in 2003' (when certain choice of law and other provisions were introduced into the ACA);[19]

(c) the WIRC Act is a 'marvellous statute' and a 'Booker [prize] winning piece of legislation';[20]

(d) 'Parliament deliberately chose not to limit [the word] compensation in the way ... suggested';[21]

(e) 'judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction';[22] and

(f) applicable principles support the construction favoured by the respondents.[23]

22 Senior counsel for the appellant identified five points in reply.[24]

23 In general terms, the submissions of the appellant must be accepted.

24 Since the enactment of the ACA in 1985, Victorian courts have regularly lamented its 'troublesome' provisions and 'dark and thorny thickets'.[25]

25 When first enacted, the ACA contained Part IV entitled 'Payment of Compensation'.

26 Division 1 of Part IV contained a series of provisions directed to identifying and defining the conditions of entitlement to statutory compensation, including s 82 which then stated, relevantly -

(1) If there is caused to a worker an injury arising out of or in the course of any employment the worker shall be entitled to compensation in accordance with this Act.

(6) Where a worker suffers an injury which occurs by way of a gradual process over time and which is due to the nature of employment in which the worker was employed at any time before notice of the injury was given, the worker or worker's dependants shall be entitled to compensation under this Act as if the injury were an injury arising out of or in the course of employment.[26]

(a) section 83 operated, in certain circumstances, to deem an injury to arise out of or in the course of any employment;

(b) section 86 addressed diseases due to the nature of employment; and

(c) section 87 concerned the proclamation of diseases in relation to places, processes or occupations in order that they should be taken to be due to the nature of the employment.

(a) the expressions 'injury arising out of or in the course of any employment' and/or 'injury ... due to the nature of employment' described conditions central to any claimed entitlement to statutory compensation; and

(b) the content and precise limits of those described conditions were addressed in a series of related provisions.

29 At the point it was enacted, of course, the ACA did not contain any 'serious injury gateways'.

30 The content and precise limits of the described conditions of compensability came to be altered by amendment over time. In particular, provisions came to be enacted that, in certain circumstances, stood to displace entitlements arising under other provisions. That said, the central descriptors remained essentially unaltered.

31 During the same period, an early iteration of the 'serious injury gateways' was introduced and, a few years later, 'common law rights' were removed almost entirely creating what, in the argot of the area, was commonly referred to as the 'black hole'.

32 Ultimately, in 2000, in respect of injuries suffered on or after 20 October 1999, the Parliament re-introduced a limited right of workers to seek common law damages.[27] In that connection, s 134AB established 'serious injury gateways' that were in various respects different to what had come before.

(a) section 82 remained the principal entitlement provision in respect of statutory compensation;

(b) section 82(1) continued to be premised in 'an injury arising out of or in the course of any employment'; and

(c) section 82(6) continued to be premised in 'an injury ... which is due to the nature of employment'.

34 In that context, the chapeaux to s 134AB(1) reads -

A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 - ...[28]

35 In the circumstances to which I have referred, the underlined words, which also appear in other provisions of the ACA, stand as a link to the central conditions of any entitlement to statutory compensation articulated earlier in the ACA. The link may, of course, continue to stand even if the precise content of the conditions of entitlement continue to be altered by amendment over time.

36 In 2005, in Barwon Spinners Pty Ltd v Podolak ('Barwon Spinners'),[29] the Court of Appeal heard four appeals from 'serious injury' determinations made under s 134AB of the ACA.

37 During the hearing of the appeal in Barwon Spinners, which extended over several days, there was much argument concerning the proper construction and operation of various subsections of s 134AB, particularly sub-ss (1) and (2).

38 In the course of ultimately elucidating the proper construction and operation of those subsections, Ormiston, Chernov and Phillips JJA stated -

Subsection (1) speaks first and foremost of the plaintiff's having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.[30]

39 The 'preceding provisions', to which their Honours referred, were plainly the provisions directed to any entitlement to statutory compensation under the ACA, particularly s 82.

40 The Court of Appeal returned to the issue the following year, in Grech v Orica Australia Pty Ltd ('Grech').[31]

41 In that regard, Ashley JA, with whom Buchanan and Chernov JJA agreed, explained that -

1. ... an injury was only compensable if it met one of the conditions of compensability set up by the Act. Most often the circumstances of a case would attract the application of s 82(1); but sometimes ss 82(6) or 86, or perhaps some deeming provision. Section 82(1) used, then as now, the formula:

[I]njury arising out of or in the course of any employment.

Sections 82(6) and 86 spoke of injury in the one case, disease in the other, which was "due to the nature of employment".

1. Putting to one side the inclusion in s 82(1) of the words "and if the worker's employment was a significant contributing factor", the scheme of the Act was thus that injury was compensable if it answered some part of the statutory definition, and if it met one of the conditions of compensability which I have mentioned.
2. Next focus on s 134AB. It is concerned with injuries "arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999". That is made clear by subs (1), which was described in Barwon Spinners as "truly a preface to all that follows" in the section. So, as the Act stood when the plaintiff allegedly suffered injury, and when he was last employed by the defendant, s 134AB(1) addressed injuries which conformed with the then definition, and which met one of the conditions of compensability, provided that such injury was sustained, and that the condition of compensability was satisfied, on or after 20 October 1999.[32]

42 In short, his Honour readily made the link between s 134AB(1) and the 'conditions of compensability set up by the Act'.

43 Later, Martin v Bailey ('Martin')[33] concerned assaults suffered by the respondent when performing his duties as a farm manager. The appellant said that any injuries suffered by the respondent must have arisen 'out of or in the course of his employment'.

44 In that context, Maxwell P, with whom Redlich JA agreed, addressed the 'serious injury gateway' and stated -

The prohibition on proceedings at common law applies to "a worker who is ... entitled to compensation in respect of an injury arising out of or in the course of ... employment". The manifest policy of s 134AB (and its predecessor provisions) is that a person who is entitled under the Act to compensation in respect of a work-related injury may not bring proceedings at common law in respect of that injury. Subject to the exceptions in s 134AB, the bar on proceedings at common law is co-extensive with the entitlement to compensation under the Act. Section 82(1) of the Act provides:

If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.[34]

45 Shortly thereafter, in Rogers v State of Victoria ('Rogers'),[35] the plaintiff suffered injury while performing jury service and claimed and received compensation under the provisions of the Juries Act 2000 (Vic) ('Juries Act').

46 In a subsequent common law claim, the defendant pleaded that the plaintiff was required to comply with the 'serious injury requirements' in s 134AB, but had failed to do so. The issue was determined by Beach J as a preliminary question.

47 The determination of the preliminary question turned partly on the proper meaning of a provision in the Juries Act. That said, his Honour was also required to consider the proper operation of s 134AB. In that connection, his Honour stated -

The short answer to the defendant's defence that the plaintiff has not satisfied the serious injury requirements contained in s 134AB of the Accident Compensation Act, is that those requirements do not apply to the plaintiff. First, by the terms of s 134AB(1) and (2), the serious injury requirements are only engaged in cases where a worker is or may be entitled to compensation under the Accident Compensation Act in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999. That description does not apply to the plaintiff in this case.[36]

48 It may be noted that, at least conceptually, there are significant parallels between the issue in the present case and the question presented and determined by Beach J in Rogers.

49 In 2012, Georgopoulos v Silaforts Painting Pty Ltd ('Georgopoulos')[37] again concerned the proper construction of s 134AB(1) and (2). After stating the question to be determined, Osborn JA and J Forrest and Beach AJJA stated -

1. In our view, the effect of s 134AB(1) and (2) of the Act is that a worker may recover damages in respect of all the components of an injury which is compensable pursuant to s 82(1) of the Act if the compensable injury results in consequential impairment of the kind defined as serious injury by the Act.
2. We reach this conclusion for three fundamental reasons. First, s 134AB couples the notion of compensable injury, which arises out of s 82(1) of the Act, with the notion of consequential impairment, defined as serious injury by s 134AB(37) of the Act. A worker may recover damages in respect of "an injury" which constitutes a compensable injury, but the compensable injury must be a serious injury in that it must result in impairment sufficient to constitute serious injury as that concept is defined.[38]

50 Again, the Court of Appeal readily made the connection between s 134AB and 'the notion of compensable injury' arising principally out of s 82(1).

51 Finally, in Dollisson,[39] the first respondent, who was a resident of New South Wales, was injured in Victoria. He was entitled to and claimed compensation under the relevant New South Wales legislation and sought to bring common law proceedings in that State. He required an extension of time, which was granted. The appellant appealed.

... whether or not the limitations on or prerequisites for the recovery of damages imposed by s 134AB(1) of the ACA apply to a worker who has received or is entitled to compensation under any statutory regime in respect of an employment related injury, or whether they apply only to an injured worker who has received or may be entitled to compensation under the ACA.[40]

53 Among other things, the appellant submitted that, in s 134AB(1), the Parliament deliberately failed to qualify the word 'compensation' with the expression '"under" or "in accordance with" the ACA'.[41] In that and other respects, the submissions advanced by the appellant in Dollisson bear a passing resemblance to the argument advanced by the respondents in the present appeal.

54 In any event, the Acting Chief Justice undertook an analysis of the legislative history and provisions that is more complete than that appearing earlier in these reasons. Among other things, his Honour -

(a) noted the 'tortured legislative history of the ACA';[42]

(b) did not consider the choice of law provisions in the ACA to favour the appellant's construction;[43] and

(c) in the circumstances, considered that the appellant's reliance upon expressio unius to be 'fraught with hazard'.[44]

55 The Acting Chief Justice also referred to relevant Victorian authorities, including Grech, Martin, Rogers and Georgopoulos.[45] It may be noted that his Honour did not dismiss any of those authorities as per incuriam or otherwise irrelevant.

56 In the circumstances described, the Acting Chief Justice, with whom Macfarlan JA agreed, concluded that the respondent was not required to pass through the 'gateways' in s 134AB. In that regard, the majority respectfully differed from the dissenting reasons and conclusion of Emmett AJA.[46]

57 For completeness, Emmett AJA referred to several considerations that led his Honour to conclude that the appellant's construction ought to be accepted, particularly -

(a) features of s 134AB and the ACA that recognise the existence of other schemes for the payment of compensation;[47] and

(b) the statutory amendments effected in 2003, particularly s 80 and Part IV, Div 6AB.[48]

58 In so doing, his Honour said that it was significant that 'no issue of s 80' had arisen in Barwon Spinners, Georgopoulos and the 'other cases'.[49]

... it is unlikely that the Victorian legislature intended the introduction of s 80 and Div 6AB [in 2003] to dismantle the comprehensive restrictions upon all common law claims arising out of employment related injuries suffered in Victoria without clearly indicating such an intention.[50]

... it would be highly anomalous if the protection from common law damages for a workplace injury suffered in Victoria depended upon whether or not the employer of an injured worker was located in Victoria and not on where the injury occurred.[51]

61 I should, perhaps, also note that his Honour's analysis -

(a) identified the question as being 'certainly not without doubt and difficulty';[52]

(b) focussed particularly on the word 'compensation' in s 134AB(1);

(c) attributed an intention to the Victorian legislature that is not reflected in any extrinsic material or amendment effected to s 134AB(1) in 2003;[53] and

(d) is, of course, in dissent.

62 In my view, the legislative history, text and structure of the ACA together suggest that the expression 'entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment' in s 134AB(1) is intended to link to the descriptors of compensability stated and thereafter articulated earlier in the ACA, particularly in ss 82, 83, 86 and 87.

63 That position has been and has remained so sufficiently clear that, when required to consider the proper operation of s 134AB(1) and (2) of the ACA, the Victorian authorities have repeatedly confirmed, in substance, that the expression to which I have referred 'couples with' the conditions of compensability identified earlier in the ACA.

(a) all of the relevant Victorian authorities post-date 2003;

(b) each of those authorities comprises a serious examination of the function and operation of s 134AB(1);

(c) in each instance, the court seems to have taken account of the entirety of the chapeaux to s 134AB(1), viewed in its statutory context, and not just the word 'compensation' in isolation;

(d) accordingly, the Victorian courts have construed the proper meaning of the expression 'entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment' and, of course, never suggested that such a construction might involve reading words into s 134AB(1);

(e) in none of the Victorian authorities does it appear to have been suggested that the maxim expressio unius, the amendments introduced in 2003 or any other supposed elements of 'policy' or 'anomaly' should be taken to suggest that s 134AB(1) should operate other than as first indicated in Barwon Spinners and thereafter essentially confirmed over a considerable period of time;

(f) having regard to the legislative history of the ACA - best described, in my view, as a rather unruly legislative hothouse - it would have been a strong thing to embrace such a change when, in 2003, the immediate context in which the word 'compensation' appears in s 134AB(1) remained unaltered and there was no other indicator that would directly suggest that the legislature ever contemplated such a change; and

(g) indeed -

(i) as time passes, a suggestion that such a striking change was indirectly intended to be implemented can look rather more apparent than real; and

(ii) I tend to think that if such a submission had been advanced in any of the cases to which I have referred it would have been rejected as contrary to the reality of the legislative history of the ACA as well as the clear meaning and operation of the statutory language that had been left untouched.

65 More recently, of course, the approach to which I have referred has been confirmed by the majority of the New South Wales Court of Appeal in Dollisson. In particular, the majority in Dollisson considered and essentially rejected submissions that -

(a) the amendments introduced in 2003 should be taken to dictate to the contrary;

(b) such an approach involves impermissibly reading words into s 134AB(1); and

(c) there is any present significance in the varying usage in the ACA of the word 'compensation' and whether it is or is not qualified by expressions such as 'in accordance with this Act'.

66 More broadly, the circumstances in both Rogers and Dollisson were much like those in the present case and, in each, it was determined that the plaintiff could pursue common law rights without having to negotiate the 'serious injury gateways'.

67 Finally, all of the above constitutes a long and well established approach to the construction of s 134AB(1) that stands firmly against the contentions advanced by the respondents in respect of s 326 of the WIRC Act.

68 That brings me to s 326 of the WIRC Act, which came into operation on 1 July 2014.

69 As noted in argument, the explanatory memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) refers to the 'drafting improvements' sought to be implemented, including 'a more logical structure', 'modernisation of the style and language of some outdated provisions' and the introduction of 'flow chart diagrams'.[54]

70 That said, in respect of cl 326, the explanatory memorandum relevantly states -

This clause operates the same as sections 134AA and 134AB(1) of the Accident Compensation Act 1985, which will continue to apply in relation to injuries which occur before 1 July 2014.[55]

71 Generally consistent with that statement of intention -

(a) the chapeaux to s 326 includes the formulation 'entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment', which is, of course, materially identical to the formulation appearing in s 134AB(1) of the ACA;

(b) the major difference between s 134AB of the ACA and s 326 of the WIRC Act and the sections that thereafter relevantly follow is one of structure - whilst s 134AB contains a complicated cascade of subsections, in the WIRC Act those subsections are re-born as a series of related provisions commencing with s 326;

(c) in each Act there are earlier provisions that identify and define the conditions of compensability;

(d) in particular, ss 39(1), 39(3), 46, 50 and 51 of the WIRC Act are the functional equivalents of ss 82(1), 82(6), 83, 86 and 87 of the ACA; and

(e) accordingly, in each Act, the central descriptors of compensability as well as the chapeaux in the provisions stating the qualified prohibition upon the commencement of common law proceedings are relevantly identical.

72 As I have earlier intimated, the respondents submitted that the WIRC Act is marvellously written and not a legislative 'patchwork' of the kind referred to by the majority in Dollisson.

73 Whatever might be said about other parts of the WIRC Act, the provisions to which I have referred are plainly transplanted without material alteration from the long lamented ACA.

74 It follows, in my view, that the well-established construction of the relevant provisions of the ACA should stand, to say the very least, as strongly persuasive of the proper construction and operation of the materially identical and presently relevant provisions of the WIRC Act.

75 That said, the respondents' argument appeared to submit that the earlier decisions should be set aside almost entirely, leaving the Court to interpret s 326 afresh.

76 In that connection, the respondents emphasised the following statement extracted from the advice of Lord Upjohn in Ogden Industries Pty Ltd v Lucas[56] -

It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.[57]

77 Immediately thereafter, Lord Upjohn stated further that -

No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment.[58]

78 It seems to me that the further passage is at least a partial answer to any kind of extreme embrace of the proposition presently sought to be advanced by the respondents.

79 More broadly, albeit that it may be accepted that the Court should not simply overlook the perpetuation of error, it seems to me that it would be equally wrong to completely ignore earlier and plainly relevant decisions and for the Court to arrive at its own decision 'as though the pages of the law reports were blank'.[59]

80 In short, in the present circumstances, the coherent development of the law is not an entirely immaterial consideration and a sequence of appellate and other decisions together constitute a seriously considered, sustained and practically uniform construction of a materially identical compact of legislative provisions. In such circumstances, as I have earlier intimated rather more intuitively, the earlier decisions should be treated as at least strongly persuasive of the proper construction of s 326 of the WIRC Act.[60]

(a) the present exercise should not be approached as if it merely involves construing the word 'compensation' in isolation;

(b) as in Dollisson, there is, in my view, nothing in the respondents' present arguments directed to the choice of law provisions or the resort to expressio unius;

(c) in that regard, whatever might be said about other parts of the WIRC Act, the presently relevant text and structure is essentially no different to that appearing in the much derided ACA;

(d) accordingly, it is not likely that the Parliament made a deliberate decision not to include the words 'under this Act' or similar from the chapeaux to s 326; and

(e) the respondents' various other arguments directed to alleged purposes, policy, anomalies, mischief, unjust outcomes and the assumptions of defendants are all no answer to the statutory purpose plainly evident in the immediate text, context and history of the provisions to which I have referred.

82 For reasons which I have endeavoured to outline in some detail, it follows that -

(a) in the present instance, the relevant provisions of the ACA and WIRC Act are materially identical;

(b) the statutory purpose of those provisions is the same, and is plainly evident from their history, text and context;

(c) at least in respect of the provisions in the ACA, that purpose has been consistently discerned in multiple appellate settings over a period of more than 20 years and may be regarded as established;

(d) the established construction would also appear to be correct; and

(e) independent consideration of the text, content and purpose of the present provisions does not cause me to conclude that I should form any view different to that formed by multiple appellate courts in respect of a materially identical and precursor provision over a very long period of time and for good reason.

83 It follows that the appellant's ground of appeal must be accepted.

84 The judgment below was in error and, consequently, the appeal must be allowed.

85 I will hear from the parties concerning the form of appropriate orders and any other issues that might arise.

[2] Stretton v CSR Building Products Limited & Anor [2025] VSC 589 ('Stretton').

[3] Grech v Orica Australia Pty Ltd [2006] VSCA 172; (2006) 14 VR 602 ('Grech'); Martin v Bailey [2009] VSCA 263; (2009) 26 VR 270 ('Martin'); Rogers v State of Victoria [2011] VSC 298 ('Rogers'); Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; (2012) 37 VR 232 ('Georgopoulos').

[4] [2020] NSWCA 58 ('Dollisson').

[5] Stretton (n 2) [28] (emphasis in original).

[8] Cf Supreme Court Act 1986 (Vic) s 17(3); Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 77.06.

[9] Appellant's outline of submissions dated 5 December 2025; Respondents' outline of submissions dated 30 January 2026.

[13] T6-8. Porter v Bonojero Pty Ltd [2000] VSC 265; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622 ('Barwon Spinners'); Grech (n 3); Martin (n 3); Rogers (n 3); Georgopoulos (n 3).

[19] T24. Cf Accident Compensation Act 1985 (Vic) Part IV, divs 1 s 80, 6AB.

[22] T32. Cf Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32, 39 ('Ogden').

[25] See Georgopoulos (n 3) 234 [1] quoting Neville Smith Timber Industries Pty Ltd v Alen [1991] VicRp 41; [1991] 2 VR 1, 6 (Brooking J). See also Dollisson (n 4) [31], [48].

[26] Accident Compensation Act 1985 (Vic) s 82, as enacted (emphasis added).

[27] Accident Compensation (Common Law and Benefits) Act 2000 (Vic) s 18.

[28] Accident Compensation Act 1985 (Vic) s 134AB(1), as at 31 May 2000 (emphasis added).

[30] Barwon Spinners (n 13) 630 [10].

[32] Grech (n 3) 615 (citations omitted)(emphasis in original).

[40] Dollisson (n 4) [7] (emphasis in original).

[45] Ibid [34]-[35], [53]-[59].

[54] Explanatory Memorandum, Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) 1.

[59] McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646, 661 [42] quoting Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585, 599 (Gibbs J).

[60] Cf DC Pearce, Statutory Interpretation in Australia (LexisNexis, 10th ed, 2024) [1.16]-[1.18].