Farrar v Western Metropolitan College of TAFE [1998] VSCA 25

[1998] VSCA 25

16. The order made by the learned judge answering the question is interlocutory: O'Toole v. Charles David Pty Ltd (1990) 171 CLR 232 at 279-280, since the answer does not "finally dispose of the rights of the parties"; see also Maybury v. Atlantic Union Oil Co. [1953] HCA 89; (1953) 89 CLR 507 at 515; Dunstan v. Simmie & Co. [1978] VicRp 62; [1978] VR 669 at 670. Accordingly an appeal does not lie to this Court without leave (County Court Act 1958, s.74(2D)). Leave to appeal will not ordinarily be granted by the Court unless the decision of the judge at first instance was wrong, or attended with sufficient doubt to warrant its being considered on appeal, and a substantial injustice would be done by allowing the decision to stand: Niemann v. Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431). But the general rule is always capable of being departed from in exceptional circumstances. In the present case the Court is being asked to decide whether a decision of the Full Court should be reconsidered, and the Court's answer to this question may be important both to the present and other potential appellants. In the circumstances the Court, at the outset of the argument, agreed to hear the application for leave at the same time as the appeal itself, if leave be granted.

"It is not a question which can be answered with any confidence, but my impression is that para. (b) was introduced into s.135(1) because the view was taken that it was unreasonable to make the prohibition on the award of damages for pecuniary loss operate in proceedings to which the employer was not a party where the injury was compensable only by reason of the deeming effect of s.83(2), since to do so would have disentitled the worker to damages for pecuniary loss in the case of injuries which were only notionally as opposed to actually arising out of or in the course of the employment, as Herring, C.J. put it in Dykes v. Dunn [1958] VicRp 82; [1958] VR 504 at p.507."

57. Mr Hore-Lacy, QC, who appeared in this Court with Mr Ingram for the appellant, did not, as I understand him, submit that the plaintiff's injury was compensable only by reason of the deeming effect of s.83(2). The plaintiff's injuries, at common law, clearly arose out of and in the course of his employment; Watson v. C.C. Engineering Industries Pty Ltd (1946) 46 SR(NSW) 261, per Jordan, C.J. at 264. Mr Hore-Lacy put two propositions to the Court. The first was that Kidman v. Sefa should be distinguished from the present case because there the employer was sued, the original injuries occurred by reason of the employer's negligence and the original injuries occurred at a fixed place of employment. He submitted that the present case falls squarely within para. (b) of s.135(1), the purpose of which, he submitted, was to permit a plaintiff who would otherwise be precluded from making a claim for damages for pecuniary loss to make such a claim where the defendant, against whom negligence was alleged, was not the employer, where the injury fell within the deeming provisions of s.83(2), the place of employment was fixed, and injury was sustained outside that fixed place of employment. The purpose of s.83, so Mr Hore-Lacy put it, was to deem certain activities to have arisen out of or in the course of employment and, once this deeming provision was satisfied, the need to have recourse to any common law test applicable to the determination of the same issue was obviated. The argument continued that disputes and inconsistencies in interpretation as to what activities could be said to arise "out of or in the course of employment" had led to the introduction of s.83(2), the sub-section being intended to remove cases of doubt and clarify those activities in respect of which employees were to be entitled to compensation for injuries suffered; as to which see Buchanan & Brock Pty Ltd v. Harris [1957] HCA 71; (1957) 98 CLR 22 at 27-28.

66. In Nguyen v. Nguyen [1990] HCA 9; (1990) 169 CLR 245, at 268-270, Dawson, Toohey and McHugh, JJ. considered the extent which the Full Court of the Supreme Court of a State should feel bound to follow its own previous decisions, (saying that this "must be a matter of practice for the court to determine for itself") and the circumstances in which a court of appeal might depart from an earlier decision. Their Honours said, at 269, that -

"Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: See Queensland v. The Commonwealth [(1977) [1977] HCA 60; 139 CLR 585 at 620 et seq.], per Aickin, J.",

86. I agree. Although Mr Hore-Lacy, in his helpful submissions, contended on behalf of his client that leave to appeal was not required, I am not in doubt that it is. Section 74(2D) of the County Court Act 1958 provides that an appeal does not lie to this court from a judgment or order of the County Court in an interlocutory application. These words have been interpreted as meaning "interlocutory judgment or order". See Border Auto Wreckers (Wodonga) Pty Ltd v. Strathdee [1996] VSC 55; [1997] 2 VR 49.

89. The learned judge's order upon the preliminary issue, left to him pursuant to Order 47.04, was that the applicant was not entitled to claim, as part of the damages sought against the respondent, damages for pecuniary loss. Such an order is interlocutory in nature because it does not finally dispose of the rights of the parties in the proceedings pending between them; see Dunstan v. Simmie & Co. [1978] VicRp 62; [1978] VR 669. Finally, the case of White v. Brunton (1984) 1 QB 570 is not in point because the preliminary question there determined disposed of the only issue in contention between the parties.

(1990) 171 CLR 232

(1953) 89 CLR 507

(1957) 98 CLR 22

(1990) 169 CLR 245