Dordev v Cowan & Ors [2006] VSCA 254

2 The appellant, Lydia Dordev, who is now aged 31 years, appeals against the decision of a judge of the County Court, made on 21 November 2005. His Honour dismissed the originating motion that was filed on the appellant's behalf on 17 December 2004 by which she sought leave to commence proceedings for damages against the respondents under s.134AB of the Accident Compensation Act 1985 ("the Act") in respect of an injury to her lumbar spine that she said she sustained on 17 October 2001 in the course of her employment with the first two respondents. The appellant claimed that the injury is a serious injury within the meaning of that term in paragraph (a) of s.134AB(37) of the Act. More particularly, it was said, it resulted in a permanent serious impairment or loss of a body function, namely, the lumbar spine. Before dealing with her submissions it is necessary to set out the circumstances relevant to the claim and the appeal.

Background circumstances

3 The appellant completed her secondary school education to Year 11 at Benalla High School in 1992 and from 1994 had various jobs that were seasonal or otherwise temporary in nature. In 1996, she commenced work with the first named respondents who carried on a business of growing mushrooms and remained there until 2001 when she sustained the injury. The appellant's job involved picking and packing mushrooms that were grown either in crates or in sacks. On 17 October 2001, while lifting a 4kg box of mushrooms, the appellant says that she experienced a sudden and severe sharp pain in her lower back with associated shooting pain in her left leg that caused her to drop the box. She reported the injury to her employer and was told to go home. She was then taken by her father to see her general practitioner, Dr Peter Slot, but in the event she saw his colleague, Dr Gary Berryman. He organised for a CT scan of her spine and advised her to take Panadol to manage the pain and gave her a certificate for light duties. The appellant returned to work on the following day and then remained on light duties for one and a half days. She claimed, however, that the prolonged standing and twisting that were required by the tasks that she was performing aggravated her injury and that, by 19 October, she was experiencing severe back pain. She said in her evidence that she did not return to work thereafter. The appellant again saw Dr Berryman on 24 October 2001, having undergone a CT scan on 22 October 2001 which showed that she had a minimal central L5-S1 disc bulge that would be unlikely to be causing symptoms. Dr Berryman prescribed Vioxx tablets and referred her to a physiotherapist and also provided a letter requesting that she be confined to light duties at work. She first saw Dr Slot in relation to this matter on 1 November 2001. He referred her to Mr Barrett, an orthopaedic surgeon. As noted by the trial judge, the notes of Dr Slot state that the appellant presented to him complaining of lower back pain that had gradually worsened for 12 months. Dr Berryman's notes are to a like effect. Importantly, Dr Slot's notes make no mention of the fact that any claim was made to him of a specific incident that brought about the injury. At the trial the appellant denied that her back pain had progressed over the preceding period.

4 When, however, the appellant first saw Mr Barrett, who became her treating surgeon, on 12 December 2001, she told him that she first suffered lower back pain following the incident at work. So far as is relevant, Mr Barrett ordered a discogram to be performed that showed, he said in his report dated 17 May 2002, that the appellant's symptoms arose from a ruptured L5-S1 lumbar disc and recommended that a localised compression and fusion operation at the L5-S1 level might result in considerable improvement. The appellant was advised that she would have to cease smoking for the surgery to be a success, but because, it seems, she declined to do that the proposed operation did not take place. Instead, from about early 2002 she took Kapanol and other prescribed drugs to cope with her back pain.

Case at trial

5 The appellant's case at trial was that, because of the injury that she sustained at work as described, she was essentially an invalid who was unemployable and who suffered continuously from severe pain in the back and in her left leg, in respect of which she took Kapanol that was prescribed by her general practitioner. Kapanol is a morphine-based substance that is used for relief of significant pain and it seems that the appellant became addicted to it. The evidence before his Honour consisted principally of the appellant's sworn affidavits[1] and a number of medical reports filed on behalf of the respective parties, to which reference will be made later. Oral evidence, pursuant to a notice to attend for cross-examination, was given only by the appellant, her general practitioner, Dr Slot, Dr Wilkie, a consultant radiologist and Mr Barrett.

6 In summary, the principal medical evidence for the appellant was that of Mr Barrett to which reference has been made earlier and to which I will refer again. The majority of the medical specialists who examined the appellant for the respondents considered that her presentation as an invalid due to her back pain was disproportionate to the radiological and clinical findings relating to the injury. Thus, for example, Mr Cullen, an orthopaedic surgeon who examined the appellant on 25 February 2002 and 16 September 2002, noted on the last occasion that, although the appellant claimed marked tenderness over the lumbar sacral area with a minimal palpation, on the examination couch she could reach forward without obvious discomfort. Mr Elsner, also an orthopaedic surgeon who saw the appellant on 20 August 2003 opined, on reviewing the lumbar discogram, that she aggravated some degenerative changes at the L5-S1 level but that he could not find any evidence of disease of the spinal nerve root. He saw the appellant again on 12 May 2004 and found that her lumbar movements were zero, essentially because she told him that she would not even attempt to move. He said that he considered her level of incapacity to be disproportionate to the clinical findings and that, although the disc injury would cause her some lower back pain, the level of pain that she claimed was well out of proportion to the injury. Mr Elsner again noted her addiction to narcotic medication and thought that surgical intervention would not assist in those circumstances. Following an examination on 3 August 2005, he said that the appellant's spine showed a normal posture and varying degrees of flexion. He found that she was not experiencing any sciatic pain and concluded that the appellant's presentation, when contrasted with relatively mild radiological changes, indicated a "marked degree of inappropriate illness behaviour". He considered that any impairment to the appellant's lower back did not require treatment other than occasional mild analgesia and that surgery may be especially detrimental in that it may increase her dependence on narcotic medications. Otherwise, Mr Elsner considered that she was fit for full-time employment that did not involve heavy lifting.

7 I mention for completeness that the reports of Dr McIntosh of 31 July 2003 and Dr Wyatt of 6 August 2003 and 30 August 2003, as well as that of Mr Chamberlain, orthopaedic surgeon, dated 26 July 2005 that were obtained on behalf of the respondents showed that, although the appellant presented as a virtual invalid, with significant pain and restrictions on movement, they considered that to be a manifestation of illness rather than disability. Thus, for example, Dr McIntosh said that her symptoms were due to abnormal pain behaviour and hyper medication. Dr Wyatt considered that the appellant's reported disability was disproportionate to a "straight-forward back problem" and thought that "psycho-social" factors were playing a key role in her claims.

Credit issues

8 A key issue in the case was the appellant's credit. The respondents pointed to a substantial body of material that they said demonstrated the appellant's lack of credibility or reliability which, in turn, showed that she was an unreliable historian to the doctors both as to the source of her injury and its consequences for her. Thus, it was pointed out, as was the case, that the clinical records of the appellant's general practitioners did not support her claim to the medical specialists that she first sustained her back injury at work on 17 October 2001. Yet, as has been noted, she told Mr Barrett, for example, that she had first suffered back pain as a result of the workplace accident and that in the past she had enjoyed good health. Apart from the occasional lumbar aches associated with long working hours, she had had no loss of working time, she said. However, the medical evidence that was subpoenaed disclosed that she had told both her general practitioners that she had experienced a gradual onset of lower back pain over a period of time without specific incident. That evidence also showed that the appellant had attended another medical practice in 1993 complaining of pain in the lumbar spine as a result of a car accident. In the same year, the appellant had attended Benalla Hospital following an alleged assault on her by her father. The hospital records showed, further, that in December 1995 she had attended complaining of pain in the lower lumbar spine caused by a fall. When these, amongst other, matters were put to the appellant at the trial she claimed to have "no recollection" of the events. There was also evidence before his Honour that showed that the appellant had a drinking problem prior to 2001 and a heroin problem for which she had sought advice from Dr Slot in 1998. Similarly, the appellant's evidence that she did not return to work after approximately 19 October 2001 was discredited by her former employers' records, which indicated that she had worked every working day, save 2 November 2001, between 17 October 2001 and 7 November 2001.

9 Importantly, the respondents tendered in evidence video film surveillance taken of the appellant on four occasions during 2002 that showed the appellant behaving in a manner that did not display the restrictions that she described to the medical practitioners. When these matters were put to the appellant in cross-examination she said that she had "good days and bad days".

10 Another matter that went to the appellant's credit was her admission in cross-examination that she was receiving New Start Allowance at a time when she was working and not entitled to it. She also admitted receiving the disability pension at the rate of a single person despite living with her partner for many years and could provide no satisfactory explanation for that.

Decision below

11 In a comprehensive set of reasons his Honour concluded that, on the evidence, the appellant was not a credible witness such that none of the doctors whose reports were before the court obtained from her an accurate picture of her history or condition, with the result that their opinions were "seriously compromised". For like reasons, his Honour concluded that no credence could be placed on the assessment of the appellant's work capacity. While his Honour accepted, for the purposes of the application before him, Mr Barrett's opinion that the appellant was suffering from an injury to the lumbosacral spine, he noted that it was not in dispute that the ruptured disc did not impinge on the nerves of the spine. The judge concluded that, in the circumstances, the appellant has failed to satisfy him that the injury is a "serious injury". Consequently, his Honour dismissed the appellant's originating motion.

Appeal

12 As I have said, the appellant now appeals against that decision. Section 134AD of the Act makes it plain that, in an appeal of this nature, it is for this Court to decide whether the injury in question is a serious injury. But as has been explained by this Court in Barwon Spinners Pty Ltd v. Podolak[2], this does not mean that the appeal is to be conducted by way of a hearing de novo. The appeal is justified by s.74 of the County Court Act 1958 so that it must be shown that the decision below was wrong and should be reversed or set aside. This is of significance when the appeal is concerned primarily with findings of fact, particularly where credit was in issue, as was the case here. It would be plainly counter-intuitive, I think, if in those circumstances this Court were to reconsider such issues afresh merely on the reports that were tendered below and the transcript of the viva voce evidence. That such a process is not contemplated by the legislation was made plain in Barwon Spinners. Rather, it was accepted by the Court[3] that "it is for the appellant ... to carry the burden of persuasion [as to error below], and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and credit was in issue". Moreover, in circumstances where a finding of fact is attacked, the appellate court must "recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses".

13 In order to obtain leave to institute a claim for damages for injury the appellant was required to establish that her injury was a serious injury as that term is defined in para. (a) of s.134AB(37) of the Act - "permanent serious impairment or loss of a body function", the body function relied on being the lumbar spine. More particularly, the appellant was required to demonstrate by admissible evidence, in the first instance, that the consequences of the physical injury[4] that she said she suffered by reason of the accident were, in terms of pain and suffering and/or pecuniary loss, "when judged by comparison with other cases in the range of possible impairments or losses of a body function ... fairly described as being more than significant or marked, and as being at least very considerable".[5] And in an endeavour to establish those matters the appellant relied principally, as I have said, on her own evidence and that of Mr Barrett, whose view that the appellant's injury required an operation for the purpose of remedying the defect was supported by Mr Ritchie, a surgeon who examined the appellant at the request of her solicitors.

14 It is not surprising, however, that the appellant's credit was the principal focus in the case, given that the respondents contended that she was, in effect, fabricating or otherwise impermissibly exaggerating the effects of the injury on her in terms of pain and suffering and ability to work. It is plain enough that the appellant's credibility was relevant not only to the question whether her own evidence in that regard was to be accepted, but it was also relevant to the reliability of the medical evidence on which she relied to establish her case, because the opinions of her specialists were essentially dependent on the credibility or reliability of her account of the history of the injury and its effects on her.[6] This was well recognised by the learned trial judge. As I have noted, after a comprehensive analysis of the evidence, his Honour concluded that the appellant was not a credible witness and that she did not give to the medical practitioners an accurate account of the history of the injury and of its effects on her in terms of pain and suffering and disability. These findings were, I think, plainly open to his Honour and were not challenged by the appellant. It follows that his Honour was entitled to take the view that he could accord only limited probative weight to the evidence of the medical practitioners called by the appellant and little or no credence to the assessments made as to her capacity for work. And it is apparent that the judge was unpersuaded on this issue by the appellant's own evidence. Consequently, his Honour was in a position where he could not say what was the nature and extent of the consequences of the back injury to her.

15 In the circumstances, it is unsurprising that his Honour concluded that, although the appellant suffered from a back injury, he was not satisfied that the pain and suffering, or the loss of earning capacity, consequences were "when judged by comparison with other cases in the range of possible impairments or losses of a body function ... fairly described as being more than significant or marked, and as being at least very considerable".

16 I now turn to the appellant's submissions and do so in the order in which they were argued.

17 Mr Sala, who appeared before us for the appellant, asked this Court to look at the videos to which I have referred, but there was no suggestion that there was any dispute as to what was shown in the films and the essence of what they disclosed was made plain by other material before the Court. In the circumstances, and given that the appellant's real complaint on this issue was that his Honour gave undue weight to the videos, the Court considered that viewing the films would not be of assistance to the resolution of the appeal. Mr Sala also contended that the logs pertaining to the making of the videos were important because they might disclose films that had not been shown to the appellant, but in this case it was common ground, as it turned out, that all the videos were shown and that it was made plain to the appellant at trial that there were no logs for the 2002 videos. Notwithstanding this the appellant did not press the initial request that the operator be made available for cross-examination at the trial. It is plain, therefore, that there was no impropriety in the tender of the videos in question and no breaches of natural justice or fairness have occurred. Counsel nevertheless argued that what was shown on the videos only had limited bearing on the question of credit and the ultimate issue. It was said by Mr Sala that his Honour placed too much emphasis on the videos in determining the issue of the appellant's credibility. In my view, there is nothing in his Honour's reasons that arguably amounts to his Honour placing undue emphasis on the videos for the purpose of determining that matter. The learned judge treated the videos as he did other evidence, namely, as part of the material before him for the purpose of determining the ultimate issue. As the President point out in argument, his Honour used the video to determine not only the appellant's credit but also whether the appellant's injury was a serious injury. As I have mentioned, Mr Sala's principal point in this context was that his Honour gave disproportionate weight to the video films and, for the reasons I have given, that contention must be rejected.

18 Counsel further argued that his Honour erred in treating the result of the discogram, which it was claimed constituted evidence that the appellant suffered considerable pain due to her injury, as not being sufficient to justify a finding of serious injury. It was said that his Honour did not have sufficient regard to Mr Barrett's evidence, on which the appellant placed great weight, that it was not possible for the appellant to mislead doctors about the pain she suffered because the discogram provided objective evidence on the matter. In my view, these claims should also be rejected.

19 First, it is plain from his Honour's reasons that he specifically considered, in the context of his careful analysis of the medical material, the importance of the evidence arising out of the discogram and acknowledged that it could provide objective evidence of a spinal injury and the pain arising from it. But, as the respondents submitted, the fact of pathology does not necessarily lead to consequences of any particular degree of gravity or severity or its specific source, and, as the President pointed out in argument, Dr Wilkie effectively said that just because the discogram disclosed genuine pain, it did not necessarily establish that it arose out of the defect for which the appellant contended. Relevantly, the judge said, important though that evidence was, it could never indicate the true level of pain and suffering or restriction of movement arising out of the claimed injury. At the end of the day, his Honour said, the doctors have to depend on an accurate history given to them by the patient as to the true level of disability and impairment and he was not satisfied that in this case this had been done. His Honour was plainly correct in so analysing the matter. And medical opinion based upon an account by a witness as to his or her symptoms may have little or no probative weight where the court determines that such witness is not reliable.[7]

20 Secondly, there was a considerable body of objective evidence before his Honour in the form of video films and medical reports that provided an objective assessment of the extent of the injury that was inconsistent with Mr Barrett's above opinion. Thus, for example, as his Honour noted, Mr Elsner considered that the appellant's claimed physical impairment was "quite out of proportion to the objective radiological and clinical findings" and that there was no obvious sign of muscle wasting, despite the fact that there was a complaint of "collapsing weakness throughout the whole of the left lower limb, and [that] all resisted muscle testing in the lower limb was met with marked complaints of lower back pain". The clear inference is, had the appellant been as inactive as she contends, there would have been detected at least some muscle wasting. Mr Elsner also said that the appellant's general behaviour, including slow gait, use of a walking stick, collapsing weakness of the left lower limb and extremely high dosages of pain relief medication, in contrast with relatively mild radiological changes, indicated "a marked degree of inappropriate illness behaviour". They were all matters that were appropriate to weigh against the evidence arising out of the discogram and Mr Barrett's opinion. Thus, in my view there was no basis for the appellant's submission that, given Mr Barrett's evidence and other material as to the appellant's physical condition including her drug addiction, it was not open to his Honour to find that she did not suffer a serious injury.

21 It was also said for the appellant that his Honour failed to consider whether the injury is a serious injury given that, after its occurrence, she was only fit for work that did not involve heavy lifting, repetitive bending and providing for rests. His Honour accepted that the appellant's impairment would preclude her from carrying out heavy work but, as the respondent pointed out, this was not the kind of work in which she was engaged at the time of her injury and there was no evidence that she intended to carry out such work. On the contrary, her case was that she was a complete invalid as a result of her injury and could perform no work at all. In my view, it was well open to his Honour to conclude that this claim has not been made out.

22 There was also an attack before us on his Honour's conclusions relating to the appellant's credibility. It was said that, in concluding that the appellant did not give "an accurate picture of her impairment" to doctors, thereby compromising their opinion, his Honour failed to consider whether any such failure and her lack of memory of the events that were put to her in cross-examination were "due to her addiction" to the medication to which I have referred or to her psychological condition. The Act makes it clear that his Honour could not properly take into account for these purposes any psychological aspect of the claim when considering the physical consequences of the injury.[8] Consequently, there could be no relevant error in his Honour not having regard to the appellant's claimed psychological condition, undefined though it was. On the question whether the judge had sufficient regard to the appellant's addiction to the medication and its possible effect on her ability accurately to recount (or remember) relevant events, it is apparent from his Honour's reasons that he was not only aware of the nature of the medication and its effect on her, but he took her addiction into account as being a consequence of the injury. Although it may be said that the strong medication may have affected the appellant's ability accurately to impart relevant matters to the doctors and to remember some of the events that contradicted her claims,[9] I consider that this factor cannot form a basis for attacking his Honour's decision as to the appellant's credibility or his ultimate conclusion. It seems plain enough, I think, that the volume of evidence which contradicted the appellant's relevant claims entitled his Honour to come to the impugned decision on this issue. I mention for completeness that it is unsurprising that his Honour did not conclude, as the appellant would have it, that her addiction to Kabanol itself amounted to a "serious injury", particularly given her earlier addiction to drugs. It was said by Mr Sala that the drug precluded the appellant from functioning normally or in performing useful work because it slowed down her thinking process and ability to deal appropriately with matters in the work context. So much may be accepted; but there was no evidence that her employment prospects were relevantly curtailed because of her medication. Relevantly, as Mr Forrest for the respondent submitted, for such addiction to be a relevant consideration, his Honour would have had to find that there were physical consequences of injury that required that form of medication, and there was no such evidence here. In any event, said Mr Forrest, the appellant had to show that the requirement for that medication was permanent and there was no evidence to that effect, even if the appellant established the causal nexus between the injury and the addiction. I think, in fairness to Mr Sala, he accepted the latter proposition. I mention for completeness that the way in which Mr Sala raised the matter on appeal seems to me not to have been put below. His Honour's careful analysis of the arguments and evidence does not address that aspect of the issue, and I have no doubt that this experienced judge would have done so had this matter been put in the way now contended for. In the circumstances, I consider that there was no error in his Honour not treating the appellant's addiction as amounting to a serious injury.

23 It is plain, as I have said, that his Honour was required to determine if the appellant's injury is a serious injury in the sense described earlier, namely, whether, in terms of pain and suffering and/or pecuniary disadvantage, the impairment arising from it was, from the point of view of the appellant, at least very considerable when compared with other cases and a range of other possible impairments. The analysis that his Honour had to undertake involved consideration of facts and matters of degree and value judgment. It has often been said by this Court that an appellant who seeks to overturn a judgment of this kind undertakes a very difficult task, particular where, as here, the appellant's credit was in issue and the judge had the advantage of seeing and hearing her - see, for example, Giannakopoulous v.

Melwire Pty Ltd[10] and Nichols v. Robinson[11]. As the High Court[12] said in Fleming v. Hutchinson[13] when refusing leave to appeal against the judgment in Humphries v. Poljak: "In each case the court must apply the test of 'seriousness' by evaluating the plaintiff's condition and such an evaluation does not depend on any legal principle. It depends on the opinion of a judge familiar with a range of conditions within which the instant condition occurs." Their Honours then referred[14] with apparent approval to what McGarvie, J. said in Humphries v. Poljak,[15] namely that the test for determining if the consequences of the injury are serious "involves a comparison with and an assessment relative to other possible impairments or losses of the body function in question" in which "[e]lements of fact, degree and value judgment are involved".

24 I consider that it is plain from his Honour's comprehensive reasons for judgment that he applied the correct legal principles in determining the issue before him and in concluding, after a careful analysis of the objective evidence, that the appellant has not discharged the onus of demonstrating that the injury was a "serious injury". In my view, his Honour's analysis and conclusions demonstrate no appealable inadequacies. In the contrary, I think that his Honour's finding that the appellant failed to satisfy him that she had suffered serious economic loss or that her level of pain and suffering could be properly described as serious was correct.

25 I would dismiss the appeal.

26 For the reasons given by his Honour, I too would dismiss the appeal. I add three comments relating to other matters.

27 The first is that the hearing today was conducted following an unsuccessful application for adjournment made yesterday by Mr Sala as junior counsel for the appellant. Very properly, he sought an adjournment on the basis that unexpectedly senior counsel was ill and his client's preference, understandably enough, was that senior counsel should be available to present the argument. In rejecting the adjournment application we referred to the well-established tradition of the Victorian Bar that junior counsel should be able to step in at short notice if senior counsel becomes unavailable.

28 We also said that we had no doubt that Mr Sala could conduct the appeal with perfect competence. In view of those matters, I want to record my own view that he has done just that. In the best traditions of the Bar, he stepped in at very short notice and had to conduct an appeal which he did not expect to have to conduct by himself, and he did so in an exemplary manner. His submissions were clear and forceful but appropriately qualified by concessions where those concessions needed to be made. His client's interests could not have been better served.

29 The second matter is that I want to join specifically with what has been said by Chernov, J.A. about the comprehensive and careful nature of the reasons of the judge below. Serious injury applications are not easy at the best of times. They involve the weighing and consideration of a variety of evidence, both expert and lay, and often involve - as in this case - quite technical issues of medical opinion as well as the assessment of witnesses. Such applications are also matters of very great importance to the applicants,

30 In my respectful opinion, these are exemplary reasons for judgment. They leave the parties and the appeal court in no doubt, first, that the task was conscientiously undertaken and, secondly, as to the reasons lying behind the decision arrived at. Parties to proceedings of this kind at first instance are entitled to expect no less, but their expectations are fully met by reasons of this quality.

31 My final comment concerns the very unhappy circumstance, as it seems to me, that the appellant has a firm belief (and her counsel have been instructed accordingly) that she is permanently and almost completely disabled by this back injury. It is a matter of great sadness that a person of her relative youth, still only 31, should have that perception of herself at this stage of her life. It is all the sadder that she should have an addiction to pain-relieving drugs, an addiction of now some two or three years' standing. It is no part of this Court's function to offer her any advice, of course, but I cannot let the matter pass without noting that, by her own admission and by the evidence of the videos, she does have good days. It is strenuously to be hoped that those will increase in proportion to the bad days.

32 It may just be - and this will be a matter for her legal advisers to explain to her - that she must now accept that her recollection of what occurred is simply inaccurate, that the accident did not occur in the way she now recalls it. What she told the doctors at the time is different from what she recalls. Nor was she struck down in the way she thought she was, because the records clearly show that she went back to work for a number of days after the injury. She needs to come to terms with those facts. Perhaps the failure of this appeal - bringing to the end as it does the prospect of any common law action - will not be the tragedy she might now perceive it to be, but may instead be the best thing that could have happened to her. She can now move on from the hope of establishing serious injury and look to what is really much more important for her sake, to begin a recovery, for which there seem in a number of the medical opinions to be grounds for optimism.

33 I agree with Chernov, J.A., for the reasons that he gives, that the appeal should be dismissed, and I would particularly like to endorse the comments made by the President as to the position of the appellant.

34 It follows that the order of the Court is that the appeal is dismissed with costs.

[1] Other affidavits relied on by the appellant and the respondents were filed but none of them is relevant for present purposes.

[2] [2005] VSCA 33 at [35]- [50].

[3] At [45].

[4] As opposed to any psychological consequences which have to be disentangled or separated out - see s.134AB(38)(h) of the Act and Barwon Spinners at [116] and [118].

[5] Section 134AB(38)(b).

[6] See, for example, Palmer Tube Mills (Aust) Pty Ltd v. Semi [1998] 4 VR 439 at 448 per Brooking, J.A., Mobilio v. Balliotis [1998] 3 VR 833 at 836 per Brooking, J.A., CSR Ltd v. Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [180] per Callinan and Heydon, JJ., Paric v. John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846, Day v. Electronik Fabric Makers (Vic) Pty Ltd [2004] VSC 24 at [55]- [56] per Nettle, J.

[7] Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642 at 647, Day at [55]-[56] per Nettle, J.

[8] Section 134AB(38(h).

[9] The latter argument seems not to have been pressed below.

[10] [2000] VSCA 153 at [7] per Tadgell, J.A.

[11] [2001] VSCA 11 at [11] per Winneke, P.

[12] Mason, C.J., Brennan and Dawson, JJ.

[13] (1991) 66 ALJR 211.

[14] At 211.

[15] [1992] VicRp 58; [1992] 2 VR 129 at 167.