//
[2024] VSC 296
General information, not legal advice.
Supreme Court of Victoria
2024-06-05
Richards J
Original judgment source is linked above.
ACCIDENT COMPENSATION - Appeal from Victorian Civil and Administrative Tribunal - Alcohol interlock device fitted to applicant's vehicle - Device alarm sounded when applicant missed a random retest requirement - Applicant claimed compensation for injuries suffered due to alarm sounding - Whether claimed injuries the result of a 'transport accident' - Tribunal found incident not directly caused by the driving of a motor vehicle and not a 'transport accident' - Whether only one finding open to Tribunal on the evidence - Whether Tribunal misapplied definition of 'transport accident' - Whether Tribunal's reasons adequate - Leave to appeal granted - Appeal dismissed - Transport Accident Act 1986 (Vic) ss 3, 35(1).
PRACTICE AND PROCEDURE - Application for extension of time in which to apply for leave to appeal - Notice of appeal filed one day outside required period - Extension of time granted - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 148(1), 148(5).
1 In 2016, Ronald Van Der Wolf lost his driver's licence for drink driving. He regained his licence on 26 July 2017, on condition that an alcohol interlock device was fitted to any vehicle he drove for the following six months. The device required Mr Van Der Wolf to pass a breath alcohol test in order to start the engine, and to pass retests at random times while the engine was running. A retest would be requested between five and 15 minutes after starting the engine and, if the retest was not conducted within five minutes, an alarm would sound until either the retest was undertaken or the engine was switched off.
2 On the afternoon of 1 September 2017, Mr Van Der Wolf was driving along the Maroondah Highway in heavy traffic when the device requested a retest. He did not complete the retest within the required five minutes, and the alarm sounded for a period of 45 seconds, until he successfully completed the retest.
3 In January 2019, Mr Van Der Wolf made a claim under the Transport Accident Act 1986 (Vic) (the Act) for compensation in respect of injuries suffered as a result of the alarm sounding 'at an incredibly loud volume'. His claimed injuries are hearing loss, tinnitus, and psychological injury. The Transport Accident Commission (TAC) denied the claim on 25 February 2019, on the basis that the accident was not directly caused by the driving of a motor vehicle, and so it was not liable for his injuries.
4 In August 2019, Mr Van Der Wolf applied to the Victorian Civil and Administrative Tribunal for review of the TAC's decision. The application was heard by Senior Member Wentworth on 29 and 30 June 2022, and further written submissions were filed on 18 November 2022.[1] On 18 January 2023, the Tribunal made an order affirming the TAC's decision.
5 Mr Van Der Wolf now seeks leave to appeal from the Tribunal's order of 18 January 2023, under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Because his notice of appeal was filed one day outside the 28 day time limit, he also seeks an extension of time under s 148(5) of the VCAT Act.
6 For the reasons that follow, the extension of time will be granted and Mr Van Der Wolf will have leave to appeal, but the appeal must be dismissed.
7 The Act establishes a scheme of compensation in respect of persons who are injured or die as a result of transport accidents.[2] Section 35(1) of the Act provides that '[a] person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act'.
8 Section 3(1) defines both 'injury' and 'transport accident', as follows:
injury, except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident;
...
transport accident means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram;[3]
...
a reference to an injury or death in or as a result of or resulting from a transport accident, or to a person who is injured or dies in or as a result of a transport accident, is a reference to an injury or death directly caused by the driving of a motor vehicle, a railway train or a tram or to a person who sustains injuries that were, or whose death was, directly caused by the driving of a motor vehicle, a railway train or a tram.
10 The definition of 'transport accident' is narrower now than it was originally. When the Act was first enacted in 1986, 'transport accident' was defined to mean 'an incident caused by, or arising out of, the use of a motor car, a railway train or a tram'. The definition was narrowed in 1988, by adding the word 'directly' in two places and replacing 'use' with 'driving'. From then until 1994, a 'transport accident' meant 'an incident directly caused by, or directly arising out of, the driving of a motor car, a railway train or tram'. The current definition has applied since 1994.
11 The Tribunal published detailed written reasons for its order affirming the TAC's decision.[4] Those reasons commenced with an overview, which outlined the factual background and summarised the Tribunal's reasons for concluding that the incident on 1 September 2017 did not come within the definition of 'transport accident', and any injuries that Mr Van Der Wolf suffered as a result of the alarm sounding were not compensable under the Act. In short:[5]
12 The Tribunal set out the relevant provisions of the Act, and referred to the history of the definition of 'transport accident'. The reasons then provided a comprehensive survey of the relevant authorities, in particular the High Court's decision in Insurance Commission of Western Australia v Container Handlers Pty Ltd[6] and the Court of Appeal's more recent decision in Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority.[7]
13 After outlining the evidence, the Tribunal made the following findings of fact:[8]
14 The Tribunal found that Mr Van Der Wolf was 'driving' at the time the retest was requested and when the alarm sounded five minutes later, because:
15 There was a conflict in the evidence about where the vehicle was when the alarm sounded. Mr Van Der Wolf's evidence was that it sounded while he was stationary in traffic, and that he pulled into a side street before he made his first retest attempt. However, the device data recorded a failed first attempt one minute and seven seconds before the alarm sounded. The Tribunal resolved that conflict as follows:[9]
On balance, I consider it more likely than not that the alarm sounded in the side street, but I do not think the case turns on the matter. Whether he was temporarily stationary in the traffic or temporarily stationary in the side street when the alarm sounded, to be a transport accident, the alarm sounding must have been directly caused by 'the driving'. That is a separate question to whether he was driving at the time the alarm sounded.
16 The Tribunal recounted the parties' submissions on the question of causation, and then set out its analysis and decision:[10]
17 The formal order of the Tribunal was: 'The respondent's decision dated 25 February 2019 is affirmed'.
Ground 1 - Was only one finding open on the evidence?
18 Ground 1 of the proposed appeal asserts that the only finding that the Tribunal could have made on the evidence was that the sounding of the alarm was directly caused by the driving of Mr Van Der Wolf's vehicle. This ground related to the first question of law identified in the notice of appeal - whether, on all the evidence, and having found that Mr Van Der Wolf was driving the vehicle at all relevant times, the Tribunal was bound to find that the sounding of the device alarm was directly caused by the driving of the vehicle.
19 Mr Van Der Wolf took no issue with the Tribunal's summary of the relevant law or the 'bedrock' of factual findings set out in the Reasons. His complaint was about the Tribunal's ultimate finding that the sounding of the alarm was not directly caused by the driving of the vehicle. He accepted that this finding involved a question of fact, but said that the Tribunal's ultimate conclusion was simply not open to it on the evidence and so involved an error of law.
20 Mr Van Der Wolf acknowledged that the Tribunal had identified and quoted the authoritative statement from Foursquare as to the meaning of 'driving' for the purposes of the Act, as follows:[11]
The cases show that 'the driving' of a vehicle is the propulsion and movement of the vehicle, including its movement to a stop, by the control and management of those functions. An incident which happens after the driving is completed may be directly caused by the driving, within the meaning of the definition, if the incident is immediate in terms of space and time to the driving, but even then the question is one of fact in every case.
21 He said that whether a vehicle involved in an incident is driving, and whether the incident is directly caused by the driving of the vehicle, are related, but different, questions. He drew attention to the Court of Appeal's conclusion that an incident may be directly caused by the driving of a vehicle even if the vehicle is no longer driving when the incident occurs.
22 Mr Van Der Wolf also accepted that the Tribunal had identified the correct approach to establish a causal link between an incident and driving for the purposes of the definition of 'transport accident' in s 3(1) of the Act. That approach was as stated by McHugh J in Container Handlers:[12]
Whichever limb of the indemnity is invoked, however, the legislative history and purpose of the Act demonstrate that there must be a causal link between the death or injury and some feature of the driving of the vehicle. It is not enough that the death or injury is the result of the use of the vehicle. The death or injury must be a consequence of the driving of the vehicle.
23 While taking no issue with the Tribunal's statement of the law, Mr Van Der Wolf submitted that the Tribunal had failed to make the only finding that was open on the evidence - namely, that the sounding of the device was caused by the driving of the vehicle. He referred to S v Crimes Compensation Tribunal[13] as authority for the proposition that the question whether there was any evidence to support the Tribunal decision is a question of law. He said that the strength of this ground of appeal could be tested by asking, 'If the sounding of the device was not directly caused by the driving of the vehicle, how otherwise was it caused?' At the simplest level, the alarm sounded because Mr Van Der Wolf failed to complete the retest within five minutes, but even at this level the alarm only sounded because the engine was on and he was in the course of driving the vehicle. Mr Van Der Wolf said that there was no other cause for the sounding of the alarm.
24 Mr Van Der Wolf disputed the Tribunal's conclusion at [77] of the Reasons that there was nothing about the propulsion or movement of the vehicle that directly caused the alarm to sound. He said that the alarm clearly sounded because the vehicle had been propelled or moved for a sufficient period of time to trigger a random retest. In oral argument, Mr Van Der Wolf emphasised that the only reason he was required to do the retest was because he was driving, and that the retest was required as part of driving the car. He rejected the TAC's submission that there was no more than a temporal connection between the driving of the car and the sounding of the alarm, saying that it was the driving that precipitated the requirement for a retest.
25 I asked counsel for Mr Van Der Wolf about the distinction between questions of law and questions of fact made in S v Crimes Compensation Tribunal, and if the question whether facts as found satisfy a statutory test is a question of law or a question of fact.[14] He responded that, while the decision was not the last word on the subject, it was a sufficient word.[15] I understood this to be an acceptance that Mr Van Der Wolf could only succeed on Ground 1 if the Tribunal's ultimate finding of fact was simply not open on the facts as found.
26 The TAC submitted that it was open to the Tribunal to reach the conclusion it did, and that it was not bound to find in favour of Mr Van Der Wolf. It said that the Tribunal comprehensively considered the matters relevant to whether the incident was a 'transport accident' as defined in s 3(1) of the Act. The Tribunal's relevant findings at [63] to [67] and [71] to [78] of the Reasons included findings about the specific operation of the device, how and when the device requested a retest, how and when the alarm sounded in the vehicle, the nature and extent of the device's impact on the operation of the vehicle, the device log chronology, whether Mr Van Der Wolf was 'driving' at the time of the incident, and at what point during the incident the alarm was more likely to have sounded. In light of those findings, the TAC argued, it was open to the Tribunal to find that the sounding of the alarm was not directly caused by the driving of the vehicle.
27 The TAC characterised Mr Van Der Wolf's central proposition to be that, but for his driving of the vehicle, the alarm would not have sounded. It referred to the rejection of a 'but for' approach in Container Handlers,[16] and said it is not enough that the incident arose out of the use of the vehicle. In the TAC's submission, the Tribunal properly found that 'directly caused by the driving' is more than a 'but for' test.[17]
28 Contrary to Mr Van Der Wolf's argument that the alarm only sounded because the engine was on and he was in the course of driving the vehicle, the TAC argued that the Tribunal relied on cogent and sufficient evidence to find that there was nothing about the propulsion or movement of the vehicle that caused the alarm to sound. It pointed out that the Tribunal specifically found that, although there was a temporal connection between the driving and the alarm sounding, there was no feature of the driving that caused the retest request or the alarm to sound.
29 The TAC submitted that Ground 1 did not reveal any error of law. It said that the Tribunal had carefully considered the test as informed by the authorities, its application to the facts of the case, and the parties' submissions, and reached a conclusion that was open on the facts and the law.
30 As Mr Van Der Wolf accepted, he can succeed on Ground 1 only if it was not open to the Tribunal to conclude that the sounding of the retest alarm was not directly caused by the driving of a motor vehicle. He takes no issue with the Tribunal's exposition of the law concerning the meaning of 'transport accident' and does not submit that it misconstrued the Act or misunderstood the relevant authorities.
31 In the unique circumstances of this case, the question whether the incident was directly caused by the driving of Mr Van Der Wolf's vehicle was necessarily one of fact and degree. The Tribunal made detailed intermediate findings of fact at [63] to [67] and [71] to [77] of the Reasons, none of which is challenged on appeal. In light of those findings, it appears to me that it was open to the Tribunal to reach its ultimate conclusion at [78] that the incident was not a transport accident. To put it another way, I do not consider that the evidence compelled the Tribunal to find that the sounding of the alarm was directly caused by the driving of the vehicle.[18]
32 The Tribunal concluded that Mr Van Der Wolf was probably 'driving' at the time of the incident and accepted that, but for that fact, the incident would not have occurred.[19] However, it correctly noted that this was not enough to establish that the incident was directly caused by the driving.[20]
33 Similarly, the Tribunal found that the fact that the incident occurred while Mr Van Der Wolf was driving did not determine the question of causation. The Tribunal made detailed findings about the operation of the device and the sequence of events leading up to the sounding of the alarm, which allowed it to engage in the fine-grained consideration of causation set out at [77] of the Reasons. The Tribunal was clearly conscious of the temporal connection between the driving of the vehicle and the sounding of the alarm, but found that the alarm sounded independently of any aspect of the driving of the vehicle. It was significant that the vehicle was stationary when the retest was requested, when Mr Van Der Wolf first attempted to retest, and when the alarm sounded. It was also significant that the operation of the device and the sounding of the alarm did not interfere with Mr Van Der Wolf's driving of the vehicle. In those circumstances, it was open to the Tribunal to find that the sounding of the alarm was not directly caused by the driving of the vehicle.
34 To answer Mr Van Der Wolf's rhetorical question, the sounding of the device was directly caused by his failure to complete a retest within the required five minutes, and that failure was not directly caused by his driving of the vehicle.
Ground 2 - Did the Tribunal misapply the definition of 'transport accident'?
36 Ground 2 of the proposed appeal asserts that the Tribunal did not properly apply the legislative requirement under s 3(1) of the Act, by wrongly focusing on whether the device that sounded the alarm was a feature of the driving of Mr Van Der Wolf's vehicle, rather than asking whether the sounding of the alarm was a feature of the driving of his vehicle.
37 In support of his second ground, Mr Van Der Wolf drew attention to the Tribunal's reliance on the expert evidence about the operation of the device at [10], [11], [61], and [77] of the Reasons. He said that it was beside the point that the device could operate whether or not the vehicle was in motion, and whether or not there was anyone driving the vehicle, because that was not what had happened in his case. He argued that the proper inquiry was not whether the device interfered with the driving of the vehicle, as the Tribunal found at the fifth dot point of [77]. In Mr Van Der Wolf's submission, the proper inquiry was whether the driving of the vehicle caused the incident involving the device sounding the alarm.
38 Mr Van Der Wolf took particular issue with [76] of the Reasons, where the Tribunal accepted that having the device fitted was a precondition to him driving the vehicle, but found that this did not mean that the device was a feature of the driving. He said that this misconstrued his submission, recorded at [69] of the Reasons - that the device and its alarm were an essential and integral requirement to the driving of the vehicle.
39 Mr Van Der Wolf also queried the factual basis for the Tribunal's finding that the alarm did not interfere with his driving. He referred to the findings at [63] of the Reasons that the sounding of the alarm was stressful to him, and caused the vehicle's hazard lights to flash. He said that both of these things must have interfered with his ability to drive the vehicle.
40 The TAC first submitted that a considered reading of the Reasons as a whole disclosed that the Tribunal was well aware of, and took account of, the matters prescribed by s 3(1) of the Act in determining whether the incident was directly caused by the driving of a motor vehicle. It referred to the Tribunal's statement of the correct test at [1], [7], and [8] of the Reasons, as well as its explanation of the legal framework at [12] to [18] and the relevant case law at [19] to [52].
41 Second, the TAC said that the Tribunal properly focused on, and directed itself to determining, whether the incident - being the alarm sounding from the device - was directly caused by or was a feature of the driving of the vehicle. It submitted that at no point in the Reasons had the Tribunal misdirected itself about the central question first posed at [7] of 'whether there is the required direct causation between the incident - the alarm sounding - (and any injuries suffered as a result), and the driving of the vehicle'. In reaching the finding at [76] - that the device was not a feature of the driving, and did not meet the requirement that there be some feature of the driving that directly caused the incident - the TAC said that the Tribunal had applied the test in s 3(1) properly, comprehensively, and without error.
42 Third, the TAC argued that how the device operates and when it requires a retest was highly relevant to the central question of how and when the alarm came to sound in the vehicle, in order to determine whether the necessary causal link was established. It pointed out that it was ultimately not controversial that the alarm would have sounded whether the vehicle was stationary or in motion, and whether or not Mr Van Der Wolf (or anyone else) was in the vehicle.[21] It said that the Tribunal had found this evidence to be relevant in two ways. First, it meant that it was not sufficient that the incident occurred while Mr Van Der Wolf was driving, absent some direct causal link with some feature of the driving. Second, it was relevant that the device and the sounding of the alarm did not interfere with the driving of the vehicle.
43 The TAC disputed that the Tribunal's reasoning was impugned by the use of the word 'device' at [76] of the Reasons. It said that reference to the 'device' was clearly a reference to the sounding of the alarm as the feature of the device which was alleged to have caused injury.
44 The essence of Mr Van Der Wolf's argument before the Tribunal was that the device was a condition precedent to his driving of the vehicle, an essential and integral requirement to the driving of the vehicle, and a feature of the conditions under which he had to drive the vehicle.[22] According to Mr Van Der Wolf, it followed from these matters that the incident was directly caused by the driving of the vehicle.
45 That argument put in issue the operation of the device, and whether it was integral to the driving of the vehicle. It was in relation to that issue that the Tribunal received the expert evidence about the operation of the device. The Tribunal was addressing the argument at [76] of the Reasons when it said that the fact that the device was a precondition to Mr Van Der Wolf driving the vehicle did not mean that the device was a feature of 'the driving', as that part of the definition of 'transport accident' had been interpreted.
46 I do not accept that the statement at [76] of the Reasons demonstrates that the Tribunal misapplied the definition of 'transport accident' to the facts of this case. Reading the Tribunal's Reasons fairly and as a whole, I am in no doubt that the Tribunal properly addressed itself to the question of whether the sounding of the alarm was directly caused by the driving of the vehicle. The Tribunal correctly identified the relevant statutory definitions and gave a clear and comprehensive summary of the relevant authorities, about which no complaint is made.[23] The Reasons contain numerous references to the need for the sounding of the alarm to have been directly caused by the driving of the vehicle, including in the final sentence of [76].[24]
47 Nor do I accept Mr Van Der Wolf's query about the factual basis for the Tribunal's finding that the alarm did not interfere with his driving. The Tribunal's findings of fact at [63] of the Reasons are reproduced at [13] above, and are not challenged on appeal. The eighth dot point in [63] set out the findings about the extent to which the device would interfere with the driving of the vehicle if a retest request is missed. The tenth dot point contained the Tribunal's findings about what actually happened when the alarm sounded in Mr Van Der Wolf's vehicle. To repeat:
In this case, although the traffic conditions may have delayed him pulling into the side street, and I accept that the experience was stressful, neither the device nor the alarm prevented Mr Van Der Wolf from operating the controls to drive the vehicle, and he was able to drive the vehicle safely into the side street. To the extent the flashing hazard lights prevented him from indicating while he was driving into the side street, this did not prevent him from driving safely without incident. No failure to indicate caused the alarm to sound.
48 These findings involved an implicit rejection of Mr Van Der Wolf's submission to the Tribunal that the sounding of the alarm must have interfered with his driving of the vehicle.[25] It was open on the evidence for the Tribunal to make these findings, and Mr Van Der Wolf did not submit otherwise.
Ground 3 - Were the Tribunal's reasons adequate?
50 Ground 3 of the proposed appeal asserts that the Tribunal failed to give proper reasons, by failing to identify:
(a) the findings made in respect of expert evidence in relation to the device that were material to the ultimate conclusion that the incident was not directly caused by the driving of the motor vehicle; and
(b) the path of reasoning from such findings as were made based on the expert evidence, to explain how those findings supported the ultimate conclusion that the incident was not directly caused by the driving of the motor vehicle.
51 Mr Van Der Wolf submitted that if Ground 2 failed, that would leave unexplained how the Tribunal used the expert evidence, or why it considered that evidence to be 'highly relevant'.[26] He said that the Reasons did not expose the path of reasoning from the expert evidence about the operation of the device to the ultimate conclusion in respect of causation, and the Reasons were therefore inadequate.
52 The TAC referred to s 117 of the VCAT Act, which required the Tribunal to give reasons for its decision, including its findings on material questions of fact. It accepted that the Tribunal would commit appellable error if it gave reasons that omitted a finding on a material question of fact or otherwise failed to disclose its path of reasoning for reaching its decision.[27] It said that reasons might be adequate even though the Tribunal did not set out every piece of evidence and explain why it had been accepted or rejected; a common sense approach is required.[28] The TAC emphasised that the Tribunal's Reasons should be read sensibly, not pedantically. Reasons will normally be adequate if they expose the logic of the decision, and contain findings of fact on matters essential to that logic.[29]
53 Having referred to the standard of reasons required of the Tribunal, the TAC then submitted that the Reasons in this case clearly, comprehensively, and more than adequately set out the Tribunal's conclusions and findings on questions of fact and explained how those findings had been reached. It said that the path of reasoning based on the expert evidence about the operation of the device was exposed at [63] of the Reasons, and was abundantly clear. The logic of the decision was readily apparent, and the Reasons contained findings of fact essential to that logic.
54 Section 117 of the VCAT Act obliges the Tribunal to give reasons for its decisions that identify the issues in dispute, deal with the substantial points raised, include findings on material questions of fact, refer to the evidence on which those findings are based, and provide 'an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion'.[30]
55 The Tribunal's Reasons in this case meet that standard. The path of reasoning from the evidence to the findings to the ultimate conclusion, that the incident was not a transport accident, is admirably clear.
56 There is no mystery about the significance of the expert evidence to the Tribunal's ultimate conclusion. Mr Van Der Wolf's central argument was that the operation of the device was integral to the driving of the vehicle; he said further that it must have interfered with his driving of the vehicle. Both parties called expert evidence about the operation of the device, which was outlined at [55] and [59] to [62] of the Reasons. Based on that evidence, the Tribunal made the findings recorded at [63] of the Reasons. Those findings enabled the Tribunal to deal with Mr Van Der Wolf's arguments about the relationship between the operation of the device and the driving of the vehicle, at [76] and at the fourth to sixth dot points of [77], leading to its ultimate conclusion at [78]. As the TAC submitted, the logic of the decision is readily apparent.
58 As mentioned, Mr Van Der Wolf commenced this proceeding one day outside the 28 day time limit set by s 148(2) of the VCAT Act, and seeks an extension of time under s 148(5). Factors relevant to the Court's discretion to extend time include the length of the delay, the reason for the delay, the extent of any prejudice to the respondent, and whether there is an arguable case.[31] No one factor is determinative, and the overriding consideration is the interests of justice.
59 Here, the delay was short and resulted in no prejudice to the TAC. The reason for the delay was an error made by Mr Van Der Wolf's solicitor in calculating the time for filing the notice of appeal.[32] Although they were not successful, Mr Van Der Wolf's grounds of appeal were all arguable. I consider that the interests of justice are best served in this case by extending the time to commence the proceeding to 16 February 2023.
60 Because the grounds of appeal were arguable, I will grant leave to appeal. However, none of the grounds was made out and so the appeal must be dismissed.
61 I will hear the parties on the question of costs.
[1] Addressing the Court of Appeal's decision in Foursquare Construction Management Pty Ltd v Victorian WorkCover Authority (2022) 68 VR 415 (Foursquare).
[2] Transport Accident Act 1986 (Vic), s 1 (the Act). The accident must either have occurred in Victoria, or involved a resident of Victoria that was the driver or passenger in a registered motor vehicle: sub-ss (a), (b).
[3] Section 3(1A) of the Act provides that the definition of transport accident in s 3(1) includes certain kinds of incidents, none of which are relevant in this case.
[4] Van Der Wolf v Transport Accident Commission (Review and Regulation) [2023] VCAT 51 (Reasons).
[6] (2004) 218 CLR 89 (Container Handlers).
[10] Reasons, [71]-[78] (footnotes omitted).
[11] Foursquare, [69], quoted in Reasons, [28].
[12] Container Handlers, [64] (McHugh J), quoted in Reasons, [46]. The 'Act' referred to in the passage quoted was the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
[13] [1998] 1 VR 83, 89 (Phillips JA) (S v Crimes Compensation Tribunal).
[14] The authorities on that question point in different directions: Cf, eg, S v Crimes Compensation Tribunal, 89, Brighton Foreshore Association Inc v Bayside City Council [2021] VSCA 284, [34], with Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, [7] (Mason J), Vetter v Lake Macquarie City Council (2001) 202 CLR 439, [24]-[27] (Gleeson CJ, Gummow and Callinan JJ), R v ACR Roofing Pty Ltd [2004] VSCA 215; (2004) 11 VR 187, [42] (Nettle JA), _Commissioner of State Revenue (Vic) v Arrig_o [2016] VSCA 339, [46]-[48]. See also the discussion in Emrys Nekvapil, Thomson Reuters, Victorian Administrative Law, vol 1 (at Service 203), [VCAT.148.260].
[15] Transcript, 19 March 2024, 15:16-24.
[16] Container Handlers, [64]-[66] (McHugh J).
[18] Cf Marsh v Transport Accident Commission (2020) 92 MVR 201, [23]-[43].
[19] Reasons, [64], [77] (dot point 1).
[20] Reasons, [46], [77] (dot point 1).
[21] Referring to Reasons, [63] (dot points 6-7).
[22] Affidavit of Nicole Carter dated 17 March 2023, Exhibit NC5, 'Submissions on behalf of the Applicant dated 28 June 2022, [17], [20], [22]; Exhibit NC8 - VCAT Day 2 transcript, 128:18-139:23.
[23] Reasons, [1], [12]-[18], [19]-[52].
[24] See also Reasons, [7], [11], [63]-[67], [71], [77]-[78].
[25] Affidavit of Nicole Carter dated 17 March 2023, Exhibit NC8 - VCAT Day 2 transcript, 127:5-25.
[27] Referring to Victoria v Turner [2009] VSC 66, [237]-[241] (Turner).
[28] Referring to Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Nettle JA).
[29] Referring to Dodds v Comcare Australia (1993) 31 ALD 690, 691.
[30] Dimatos v Coombe [2011] VSC 619, [20]; see also Turner, [239]-[240].
[31] Muto v Secretary to the Department of Planning and Community Development [2013] VSCA 85; (2013) 38 VR 293, [13].
[32] Affidavit of Ryan Thomas Moran dated 18 March 2024.
Van Der Wolf
Transport Accident Commission [2024] VSC 296
(2022) 68 VR 415
(2004) 218 CLR 89
(1980) 144 CLR 1
(2001) 202 CLR 439
(2004) 11 VR 187
(2020) 92 MVR 201
(2013) 38 VR 293