1. In his second affidavit (affirmed on 21 June 2023), the applicant deposed as follows:

(1) In relation to his medical history, 'on and off over the years [the applicant] experienced lower back discomfort'. In or about October 2016, he attended a general practitioner in relation to this. The applicant 'usually managed [his] lower back symptoms with acupuncture and at times pain medication'.

(2) In late February 2019, the applicant was experiencing stress due to his neck pain. He attended his general practitioner, Dr Vijay Navani, in relation to this. Dr Navani referred the applicant to a psychologist, Ms Lisa Costa. The applicant continued to consult with Dr Navani and Ms Costa on a regular basis. As at June 2023, he was taking 50 mg of Endep every night and 200 mg of Celebrex in the mornings. He was seeing a physiotherapist 'frequently'. He was also doing functional training, as well as 'dry needling', and using a TENS machine.

(3) The applicant continued to experience the pain and suffering consequences set out in his first affidavit. The pain in his neck was constant but variable, depending on what he was doing. At times, he also experienced 'random flareups of neck pain'. The applicant '[did] not believe that [he] could work now due to [his] injury'.

1. In his third affidavit (affirmed 27 June 2023), the applicant deposed as follows:

(1) He had been informed and believed that a friend of his, Eric Muke, who was in the same class as the applicant when he undertook his Diploma of Land Surveying, that Mr Muke's annual salary as a surveyor in 2022 was $135,000.[11] The applicant believed that, in 2022, he 'would have earned at least $60 per hour in FIFO surveying work'. This work involved working every day for two out of every three weeks, with each shift being 10 to 12 hours.[12]

(2) The applicant could not do a fulltime sedentary job at a desk with a computer because of his neck and arm pain. He had applied for land surveying and drafting jobs. He had about 10 interviews. At those interview he 'explained to them [his] injury'. He was 'prepared to try' and 'desperate to find work'. He believed the most he could work 'on a reliable and consistent basis would be two hours per day, five days a week'.

(3) In the six months to June 2023, the applicant had tried to study. He did a half‑day course. It was 'difficult' and he was in pain, but he 'sat through it'. He had 'bad pain between [his] neck and shoulder at the back on the righthand side following this course'.

1. In his evidence-in-chief, the applicant was asked about the weekly amount he was paid by No Problems Just Solutions. He said he was paid $30 per hour for 40 hours per week; with overtime, which made his total hours '55, 56, between 50 and 55 ... 55 hours per week'. In relation to the rate of pay for overtime at No Problems Just Solutions, the applicant said he was paid time and a half ($45 per hour).
2. The applicant was extensively cross-examined as to the credibility and reliability of his evidence. The applicant was cross-examined for the purpose of showing that he deliberately understated the effects of unrelated medical conditions (for example, the applicant's right knee injury sustained in the 2017 accident, and the applicant's pre‑injury psychological condition) and overstated the consequences of the neck injury sustained by him in the course of his employment with No Problems Just Solutions.
3. The transcript of the applicant's cross-examination discloses that he was not a good witness. Specifically, on many occasions, the applicant did not engage with the question he was asked and/or made a speech and/or was argumentative and/or responded to questions by seeking to ask questions of the cross-examiner. Such was the applicant's performance in the witness box in cross-examination, that in final submissions his trial counsel accepted that he had been 'prone to flourishes to emphasise his point'. More specifically, in final submissions, the applicant's counsel accepted that the applicant 'had more knee issues than he [now] recalled'.
4. For present purposes, it is not necessary (nor useful) to attempt to summarise the whole of the applicant's cross-examination. However, the following examples give the flavour of the cross-examination:

(1) The applicant accepted that he had seen a psychologist prior to suffering injury but said that he had done so, not because he had any psychological problem, but because it was 'free'. To like effect, the applicant said he had a number of sessions of physiotherapy prior to suffering his workplace injury, not because they were medically necessary, but because these were also 'free'.

(2) When seen by an occupational physician, Dr Robin Mitchell, in February 2019, for the purposes of assessing the injuries the applicant suffered in the 2017 accident, and when asked what injuries or conditions he had suffered from since that accident, the applicant referred to an eye injury and chest pain, but made no mention of his work-related neck injury. In cross-examination, the applicant justified this by saying that when he went for a medical examination about his knee, 'I speak about my knee'; on other occasions, when asked about his neck, 'I answer about my neck'.

(3) As part of a detailed cross-examination about histories the applicant gave to medical practitioners from time to time, the applicant was taken to progress notes and reports and asked about consultations in which there was no recording of the applicant having made any complaint about his neck. For example, when the applicant went to see his general practitioner, Dr Kundu, on 3 September 2021, he complained about eye issues after studying for a few hours, but made no complaint about neck pain. When challenged about the lack of neck complaints on these occasions, the applicant's responses were not always straightforward or strictly responsive to the questions asked of him.

(4) Having described riding and pushing his motorcycle after suffering his neck injury, in the context of a cross-examination about the effort this would take, the applicant gave an unconvincing answer, saying 'It's like pushing a bicycle'.

1. While a great deal of medical evidence was tendered at trial dealing with the precise form of injury suffered by the applicant in the course of his employment with No Problems Just Solutions, in light of the fact that the judge accepted that the applicant suffered a cervical spine injury, the pain and suffering consequences of which were at least very considerable, it is only necessary to refer to so much of the medical evidence as bears on the applicant's residual capacity to engage in employment and the question of whether his work-related cervical spine injury has produced a loss of earning capacity of 40 per cent or more as required by s 325(2)(e)(i) of the Act.

1. The most significant of the medical witnesses in this case was Dr Vijay Navani, a general practitioner who practised at the Sunshine City Medical Centre. Dr Navani saw the applicant on 63 occasions between 18 February 2019 and 2 March 2023. Progress notes of these consultations were tendered at trial, along with four medical reports written by Dr Navani and dated 20 February 2019, 29 August 2019, 4 April 2022 and 9 January 2023.
2. In his report dated 29 August 2019, Dr Navani recorded the applicant's occupational history as follows:

Employed as land surveyor with ... 'No Problems Just Solutions P/L'. Working full‑time up to 60 hours per week. His duties are quite physical and he has to carry heavy equipment and tools all weighing up to 30 kilograms of material. Further, he has to walk two and a half kilometres back and forth to the workshop to collect tools and carry his equipment in the backpack.

1. Dr Navani then described the applicant's neck injury suffered in the course of his employment with Just Solutions as:

Aggravation of Cervical spondylosis, mild to moderate C5/C6 foraminal stenosis and C6/C7 foraminal disc protrusion with foraminal narrowing causing Right Arm radiculopathy.

1. In answer to a question as to whether, as a consequence of his injuries, the applicant had the capacity to perform his pre-injury duties, Dr Navani said:

Amirhossein remains keen to work in his chosen profession and to this end he is up-skilling himself. As long as he is careful and works within his functional limitations, Amirhossein is capable of full-time work in his chosen field with appropriate assistance which should include among other things, a trolley to carry his equipment.

1. In his report dated 4 April 2022, Dr Navani answered questions about the applicant's capacity to return to work in his 'pre-injury duties and hours', and whether the applicant had a 'current work capacity for suitable employment'. Dr Navani said that the applicant had a current work capacity for suitable employment. In relation to the applicant's capacity to work in his pre-injury duties and hours, Dr Navani said:

[The applicant] is capable of pre-injury hours but for alternative duties as per his medical restrictions which are:

• administrative/office duties
• self-pace/avoid sustained neck flexion work
• avoid repetitive movements of upper limbs
• not at old workplace (due to mental distress/perceived mistreatment)

1. Dr Navani was also asked and answered the following question:

Q: Please review the attached labour market research report. Do you agree that the employment options identified are suitable? If it is your opinion that employment options are not currently suitable, will [the applicant] have a capacity for such employment within the next 6-9 months?

A: There is only one option, listed as Surveyor.

This, [the applicant] is keen on, but I believe this could potentially aggravate his injuries and needs to be tailored to modify the job requirements to fit within his medical restrictions. That is, some aspects of the job would need to be out‑sourced.

1. In his report dated 9 January 2023, Dr Navani gave the following answer to the following question:

Q: Please find enclosed a copy of the medical report from Specialist Mr Menz. Mr Menz is of the opinion Amirhossein could probably undertake the role of general clerk as listed in the attached labour market analysis report (attached). When considering the neck and secondary psychological condition, do you agree that the role of general clerk would be suitable? Please list any restrictions you feel appropriate;

A: Yes, I agree.

Medical restrictions have been consistently specified in his WorkCover Certificate of Capacity and detailed below:

• Pre-injury hours
• Administrative/office duties
• self-pace/avoid sustained neck flexion work
• Avoid repetitive movements of upper limbs
• Not at old workplace (due to mental distress/perceived mistreatment).

1. Mr Farzan Mirzaei is a musculoskeletal physiotherapist. He initially saw the applicant in late July 2021 'for opinion and management of his work-related injuries'.
2. In his report, dated 6 June 2023, Mr Mirzaei expressed the opinion that the consequences of the applicant's neck injury were 'likely to persist through the foreseeable future' and that this incapacity precluded the applicant from engaging in a number of occupations including 'office administration' and work as a 'general clerk'. In expressing his opinion about the applicant's inability to work as a general clerk, Mr Mirzaei said that such work 'would require the ability to sit for prolonged periods and to maintain longer periods of static posture' and that the applicant 'lacks this ability'. More specifically, Mr Mirzaei said:

Mr Kianzadeh, has minimal capacity to engage in light levels of admin-style employment for limited timeframes. He may be able to do such work for up to a maximum of two hours with regular movements at intervals of every 30-45 min. With a gradual trial, this may be progressed to a maximum of no longer than 3-4 hours - with no guarantee. However, in my opinion, even with all the right precautionary and supportive elements in place, this may not be a permanent, reliable, consistent and sustained basis without the risk of his spinal injury being further aggravated and/or reinjured.

1. Dr James Rowe is a specialist occupational physician. He examined the applicant on 13 February 2023, at the request of the applicant's solicitors, and provided a report dated 13 February 2023. Amongst the material he was provided with, Dr Rowe was given copies of Dr Navani's reports of 20 February 2019 and 29 August 2019. Curiously, he was not provided with copies of Dr Navani's reports of 4 April 2022 or 9 January 2023.
2. As to the applicant's capacity to engage in employment as a general clerk or in office administration, Dr Rowe said that these positions 'may be suitable', but that the 'lifting and carrying [of] unwieldy equipment and prolonged periods of stationary posture, particularly of the neck, will need to be avoided'. Dr Rowe also expressed the opinion that there would 'unfortunately always be a risk of reinjury'. However, he considered that there were positions 'where reasonable or at least acceptable risk [could] be managed'.

1. Dr Girish Nair is a neurosurgeon and spinal surgeon. He examined the applicant on 28 March 2023 at the request of the applicant's solicitors.
2. In his report dated 19 April 2023, after reviewing a number of occupations and job descriptions, Dr Nair said:

I am of [the opinion that] of all the tasks [about which he had been asked],[13] the task of office administration or office administration or administration would be [a] task which Mr Kianzadeh may be suitable for.

I am, however, unable to predict as to what the impact of this would be on his symptoms. He certainly should not be in a job where his neck has to be in a fixed position and in any job he should have adequate provision for breaks. Whether this is going to be something he can do in a reliable and consistent manner remains to be determined or more specific guidance on suitability can be ascertained by having an involvement of an occupational assessment expert.

1. Mr Craig Timms is a neurosurgeon. The applicant was referred to him by Dr Navani. Mr Timms first saw the applicant on 22 May 2019, and last saw him on 6 May 2021. At trial, a number of letters written by Mr Timms (some to Dr Navani) were tendered, as well as a report dated 23 April 2023.
2. Mr Timms' report of 23 April 2023 was written in response to a series of questions asked of him by the applicant's solicitors. In response to a question about the applicant's capacity for employment, Mr Timms said:

I am not an occupational health physician and this question falls outside my scope of practice. At my reviews of [the applicant] he was on light duties and he had not been working during the COVID-19 crisis. I am unable to provide a current level of capacity and I am also unable to comment specifically on the roles outlined in [reports which had been forwarded to Mr Timms] and his suitability to perform such roles.

1. Dr Reza Sabetghadam is a specialist occupational physician consultant. He examined the applicant on 10 February 2023 at the request of the respondent's solicitors. Included amongst the material he was provided with were a number of the vocational assessment reports which were tendered at trial. These included 'Move 130 Week Vocational Assessment Report dated 16 April 2021', 'Move Labour Market Research Report dated 17 February 2022' and 'vocational assessment & labour market analysis report provided by CoWork Pty Ltd on 17 April 2023'.
2. Asked about the applicant's capacity to undertake suitable employment, Dr Sabetghadam said in his first report:[14]

Mr Kianzadeh is capable of undertaking suitable employment. He can return to his pre-injury employment. He has intermittent non-specific neck and shoulder pain which, in my clinical opinion, has some psychosocial reinforcers. It does not impact his capacity to work in his pre-injury employment.

1. In his supplementary report, with reference to the CoWork report, Dr Sabetghadam expressed the opinion that the applicant had the capacity to work as a surveyor, a non‑destructive testing technician, a real estate agent's representative, an insurance loss adjuster, and an occupational health and safety adviser.

1. The judge commenced her reasons for judgment by setting out the issues which had been identified by the parties: namely, 'credibility and reliability of the plaintiff [applicant]'; 'causation'; 'identification of the relevant injury and its consequences'; 'the figure which most fairly represents the plaintiff's without injury capacity'; and 'the plaintiff's capacity for either pre-injury or suitable employment'.[15]
2. In relation to the credibility and reliability of the applicant, the judge made the following observations and findings:

(1) When demonstrating to the Court his restricted neck movements for riding his motorcycle, the applicant demonstrated movements which 'were considerably more restricted than movements he had previously engaged in when answering questions with his back to the cross-examiner'.[16]

(2) The entirety of the applicant's presentation in court was inconsistent with the contents of his affidavits.[17]

(3) The applicant's evidence was 'unreliable due to its content'. That unreliability, coupled with the applicant's 'demeanour in the witness box', meant that the applicant's evidence about his pain and restrictions could not be accepted.[18]

(4) Taking into account the concessions made by the applicant's counsel that the applicant was 'an emotional witness, prone to flourishes, prone to flamboyant language and, at times, argumentative', the respondent's submission that the Court ought not accept the applicant's evidence about his incapacity had to be accepted.[19]

(5) Most of the applicant's evidence was unreliable and was not to be relied upon 'unless it [was] supported by objective evidence, or unless it constitute[d] an admission against interest'.[20]

1. After conducting a detailed analysis of the evidence relating to causation,[21] the judge found that the applicant's employment between August 2018 and February 2019 with No Problems Just Solutions 'was a cause of the aggravation of his degenerative cervical spine condition which had previously been asymptomatic but, which, as a result of the employment duties, was rendered symptomatic'.[22]
2. Next, the judge conducted a detailed analysis about the consequences of the applicant's injury.[23] In the course of doing so, the judge made the following findings:

(1) As a result of aggravating his constitutional age-related degenerative cervical spine condition at work, the applicant has 'intermittent variable neck pain, accompanied by radicular symptoms into his right arm'.[24]

(2) The applicant 'was a person who was passionate about a career as a surveyor and had invested his time in Iran, and in Australia, in furthering that career'.[25]

(3) The applicant 'needs to avoid sustained neck-flexion work'.[26]

(4) The inability of the applicant to return unrestricted to his career as a surveyor is a considerable consequence to the applicant, 'who is so passionate about this career'.[27]

1. The judge concluded her analysis of the impairment consequences of the applicant's injury by saying:

Taking all the evidence into account, I find that the cervical-spine injury poses a limitation on the plaintiff's ability to practise unrestricted in his chosen field. There is no evidence before the Court as to whether any surveyor's job within his restrictions exists. This means an area of work which the plaintiff previously enjoyed has been closed off to him.

I find the combination of loss of chosen career, the pain and radicular symptoms, and the consequent limitations on activities he enjoyed, such as long-distance motorcycle riding, means that the plaintiff meets the 'very considerable' test.

Accordingly, I grant the plaintiff leave to commence proceedings against his employer for pain and suffering damages.[28]

1. The judge then turned to the evidence about 'the figure which most fairly represents [the applicant's] without injury earning capacity'. After analysing this evidence,[29] the judge said:

Doing the best I can, I find that the figure which most fairly represents the plaintiff's past without injury earning capacity is reflected in the gross figure (expressed as an annual figure) based on what he was actually earning in 2018, as provided in the claim form and payslips. That is, $30 per hour for fifty standard hours ($1,500) and $51 per hour for three overtime hours ($153) on average, totalling $1,653 per week or $85,956 annually. The 60 per cent figure is $51,574 annually or $992 per week.

To succeed in his application in respect of economic loss, the plaintiff must establish, on the balance of probabilities, that he does not have the capacity to earn at least $992 a week (being the 60 percent figure) in suitable employment and that this financial loss is likely to last through the foreseeable future. In respect of residual capacity, there is an evidentiary onus on the defendant to establish the existence of suitable jobs which are within the plaintiff's after injury capacity.[30]

1. After dealing with the preparedness of the applicant to travel for the purposes of work,[31] the judge turned to the medical evidence relating to the applicant's capacity for employment. Essentially, the judge accepted Dr Navani's opinion as to the applicant's capacity to return to work performing his pre-injury hours with the limitations referred to by Dr Navani, noting that the applicant had attended 'approximately 60 consultations with Dr Navani'.[32]
2. The judge rejected Mr Mirzaei's opinion for a number of reasons, including: first, Mr Mirzaei's report contained no reference to his qualifications or experience in assessing capacity for employment; and secondly, because it did not appear that Mr Mirzaei had considered Dr Navani's opinion that the applicant could perform his pre-injury hours in suitable employment.[33]
3. In rejecting Dr Rowe's opinions about the applicant's work capacity, the judge observed that Dr Rowe did not have the opportunity to fully assess the applicant in the context of the applicant's actual circumstances. Moreover, Dr Rowe was unaware that the applicant had been able to study and 'successfully complete his training'.[34]
4. The judge gave further reasons for preferring the opinion of Dr Navani, and rejecting the applicant's evidence, as follows:

I prefer the opinion of Dr Navani, who has assessed the plaintiff [applicant] over many visits, and who has an accurate history. Dr Navani's progress notes refer to study in recording that the plaintiff 'wants to do Diploma', is 'doing the course in Adelaide, will finish in November', and 'applying for job completes the course'. In April 2021, Dr Navani noted that the plaintiff had finished the course. I find that Dr Navani's opinion on capacity is informed by his awareness that the plaintiff was able to commence and complete a course of study and his assessment of the plaintiff during frequent consultations with him during the period of study itself.

I do not accept the plaintiff's evidence that he was only able to study using significant sleep and rest periods:

• '... something like ... a standing desk, I put it there, I apply for 20 minutes for one job, I sleep, I again sleep, there I another ... I manage to do the assignment for land surveying, I do the assignment, sometimes you have to write. ... .'

I do not accept the evidence, because it is not supported by any contemporaneous note or report of any treating GP. Despite regular and frequent attendances both in Adelaide and in Melbourne, no mention is made of this apparently severe restriction on the plaintiff's capacity to study.[35]

1. Favourably for the applicant, the judge also rejected the opinion of Dr Sabetghadam that the applicant was able to perform his pre-injury work. The judge described Dr Sabetghadam as being 'alone in this view'. The judge, however, did accept Dr Sabetghadam's opinion that the applicant was able to perform 'a variety of other suitable employment options', saying that this opinion accorded with the opinion of Dr Navani.[36]
2. Having dealt with the relevant medical evidence, the judge made the following findings:

(1) The applicant 'has retained a capacity to work a standard 44-hour week as a general clerk (surveying) as provided in the MOVE Labour Market Research Report [dated 24 January 2023]' ('the MOVE Report').[37]

(2) The evidence of Dr Navani was to be preferred over the applicant's self‑assessment of his limitations. Dr Navani considered that the applicant 'can work his pre-injury hours' (that is, 60 hours per week). It was improbable that Dr Navani would certify the applicant fit for those hours if he believed that the applicant had the restrictions which the applicant alleged.[38]

(3) 'Even working a standard 40-hour week, [the applicant] could work as a general clerk (surveying) and earn $1,223 per week, which exceeds the threshold of $992'.[39] The position description 'for general clerk (surveying) falls within the restrictions nominated by Dr Navani'.[40] The position of general clerk (surveying) 'is also a job within [the applicant's] career orientation'. It is 'largely a sedentary role, involving administration-type duties'. The fact that the applicant 'completed additional study after his injury, including full-time study in 2019' fortifies the conclusion that he has the capacity to perform work in this position.[41]

(4) The applicant also has 'capacity to perform the work of a real estate agent's representative and/or a property manager in a real estate agency as provided in the [report from CoWork Pty Ltd dated 17 April 2023]' ('the CoWork Report'). The physical demands of that job include 'self-regulated' standing and sitting. This falls within the 'self pace restriction imposed by Dr Navani'. The computer work required in this job is 'of short duration', which falls within the 'avoid sustained neck flexion work and avoid repetitive movements of upper limbs' imposed by Dr Navani. Additionally, the applicant's history of completing various courses in Australia and in Iran demonstrates his capacity to complete any necessary online course in order to obtain a position as a real estate agent's representative and/or a property manager.[42]

(5) The weekly income of a real estate agent's representative/property manager is $1,869. The weekly income of a real estate salesperson in Adelaide (where the applicant lives) ranges between $1,634 and $1,846.[43]

I find the plaintiff has retained a capacity to work full time as a general clerk (surveying) and/or a real estate agent's representative and/or a property manager/real estate salesperson in a real estate agency. The plaintiff, therefore, has not made out the necessary loss of earning capacity.[44]

1. The judge, having found that 'the combination of loss of chosen career, the pain and radicular symptoms, and the consequent limitations on activities [the applicant] enjoyed' met the 'very considerable' test, granted the applicant leave to commence proceedings for pain and suffering damages. In order to be granted leave to commence proceedings for pecuniary loss damages in addition to the leave granted by the judge, the applicant was required to satisfy the requirement s 325(2)(b)(ii) of the Act: namely, to establish that the consequences of his impairment with respect to loss of earning capacity were serious, when judged by comparison with other cases in the range of possible impairments.[45]
2. Section 325(2)(e) of the Act provides that a Court must not grant leave to commence a common law proceeding on the basis that the worker has established the loss of earning capacity required by s 325(2)(b)(ii) of the Act unless the worker also establishes a loss of earning capacity of 40 per cent or more, measured as set out in s 325(2)(f). More specifically, ss 325(2)(e) and (f) of the Act relevantly provide:

(2) For the purposes of the assessment of serious injury in accordance with section 335(2) and (5) -

...

(e) if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), ... a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that -

(i) at ... the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured ... as set out in paragraph (f); and

(ii) the worker ... will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;

(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing -

(i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is -

(A) earning, whether in suitable employment or not; or

(B) capable of earning in suitable employment -

as at that date, whichever is the greater, and -

(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;

1. The expression 'suitable employment', as used in s 325(2)(f), is defined in s 3 of the Act as follows:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to the following -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii) the nature of the worker's pre-injury employment;

(iii) the worker's age, education, skills and work experience;

(iv) the worker's place of residence;

(v) any plan or document prepared as part of the return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b) regardless of whether -

(i) the work or the employment is available; or

(ii) the work or the employment is of a type or nature that is generally available in the employment market;[46]

1. As the judge observed,[47] the relevant legal principles were not in dispute at trial. Those principles, so far as they concern the operation of s 325(2)(f) of the Act (and its relevantly identical predecessor provision, s 134AB(38)(f) of the Accident Compensation Act 1985) are set out in this Court's decisions of Roleff v Chubb Insurance Co of Australia Pty Ltd,[48] The Herald & Weekly Times Ltd v Jessop,[49] Yirga‑Denbu v Victorian WorkCover Authority,[50] and Victorian WorkCover Authority v Papaconstantinou.[51] For present purposes, it is not necessary to set out all of the principles identified in those authorities.
2. That said, as those authorities make clear, there is an element of unfairness in the comparison required by s 325(2)(f) in cases where a substantial time has elapsed between the closing of the six year window referred to in the section and the date of hearing or decision.[52] Section 134AB(38)(f) of the Accident Compensation Act having been reenacted in identical terms in s 325(2)(f) of the Act after this Court's decision in Roleff, the construction adopted in Roleff must, for the purposes of this case,[53] be regarded as settled so far as the construction of s 325(2)(f) is concerned.[54]

1. Before dealing with the applicant's proposed grounds of appeal, it is necessary to resolve his applications to admit fresh evidence. This is because, in very detailed written submissions relied upon by the applicant in support of his proposed appeal, the applicant makes many references to material which was not before the judge and upon which he now wishes to rely.
2. The material upon which the applicant now wishes to rely is exhibited to affidavits sworn or affirmed by him on 13 August 2024, 3 February 2025, 5 February 2025, 22 August 2025 and 4 September 2025.[55] It includes the following:

(a) A report of Dr Vijay Navani, addressed to the applicant's then solicitors, dated 20 May 2023 (before the hearing in the County Court), and a further report of Dr Navani dated 25 September 2023 (after the hearing);

(b) Documents containing additional medical evidence related to the applicant's pre-existing right knee and lower back conditions;

(c) Several documents related to the applicant's study at TAFE SA;

(d) Attendance records of Dr David Fitzgerald, general practitioner, dated 13 May 2019 to 4 June 2021;

(e) A letter written by the applicant on 9 May 2023 containing complaints he had about the report of Dr Sabetghadam dated 22 February 2023;

(f) Several documents related to the applicant's study of a 'Small Business Contractor' online course;

(g) Progress letters of Mr Akbar Jelvani, the applicant's treating physiotherapist in Iran, dated 21 October 2020 and 17 March 2021;

(h) An employment contract of Eric Muke dated 7 January 2022;

(i) Various certificates of capacity issued by Dr Navani and Dr Afari, and covering the period 25 February 2019 to 30 November 2023;

(j) Emails passing between the applicant and his former solicitors, in which the applicant contended that the document containing the 'position description' relating to his employment with No Problems Just Solutions[56] is a 'falsified document';

(k) An affidavit sworn by Mr Muke on 22 February 2025 which exhibited a version of Mr Muke's contract,[57] signed by him and dated 10 January 2022;

(l) Material obtained by the applicant after 'conduct[ing] research on BarNet Jade website' (sic) showing that, when her Honour was a barrister, she was briefed on a number of occasions by the solicitors for the respondent - the last of such occasions being, in the applicant's words, 'just one month prior to my hearing date'.

(m) A photograph of a Suzuki DR650 motorcycle, with a paragraph of the results of a Google search, under the heading 'AI overview', in which it is stated that such a motorcycle weighs approximately 147 kg dry and 162 kg wet; and

(n) Documents asserted by the applicant to show that the respondent's solicitors were 'dishonest and misleading' in their conduct of the proceeding by failing to produce to the Court a number of documents: including, a 2019 certificate of capacity, a letter from Dr Navani, physiotherapy records of a Dr Wade Kelly and the note of a consultation the applicant had with a medical practitioner in 2019 'regarding potential surgery'.

1. The principles governing the exercise by this Court of its jurisdiction to admit fresh evidence were summarised by this Court in Giles v Jeffrey.[58] In that case, the Court said:

In order to succeed in her application for leave to adduce fresh evidence, the applicant had to establish the following:

(a) By the exercise of reasonable diligence the evidence could not have been discovered in time to be used in the hearing of the [earlier] proceeding.

(b) It is reasonably clear that if the evidence had been available at the hearing of the [earlier] proceeding, and had been adduced, an opposite result would have been produced.

(c) The evidence proposed to be adduced is reasonably credible.[59]

1. In Commonwealth Bank of Australia v Quade,[60] the High Court said:

In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of 'the demands of justice' and the 'policy' that there be an end to litigation at least prima facie (or 'generally') dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.[61]

1. The applicant seeks to rely upon a large body of documents as fresh evidence. In order to do so, he needs to establish: first, that by the exercise of reasonable diligence, the evidence could not have been discovered in time to be used in the trial of his proceeding; and secondly, that it is reasonably clear that if the evidence had been available at trial, and had been adduced, an opposite result would have been produced. Unfortunately for the applicant, none of the documents he now seeks to rely upon as fresh evidence satisfy both of these criteria (either when considered individually or collectively). Indeed, most of the documents fail to satisfy both criteria.
2. A majority of the documents that the applicant now wishes to rely upon are dated prior to the dates upon which the trial was conducted. Indeed, some of them were written by the applicant prior to trial and some of them were addressed and sent to his former solicitors prior to or during the course of the trial. The applicant has not shown that by the exercise of reasonable diligence, those documents could have been adduced in evidence at trial.
3. More importantly, the majority (if not all) of the documents the applicant now seeks to rely upon as fresh evidence would not have been likely to have produced an opposite result if they had been tendered at trial. Many of the documents simply do not bear sufficiently or at all on the critical issues of the applicant's post-injury capacity for employment.
4. It is not feasible to refer individually and in detail in these reasons to all of the documents which the applicant now wishes to rely upon as fresh evidence. Nevertheless, we deal below with those documents which appear to have greater importance to the applicant so far as his submissions on his application for leave to appeal are concerned.

(a) The reports of Dr Navani dated 20 May 2023 and 25 September 2023

1. The report of Dr Navani dated 20 May 2023 predates the hearing of the trial by a little over a month. The report was addressed to the applicant's then solicitors, Zaparas Lawyers. There is no explanation for why this report was not tendered by the applicant at trial. The report contains a statement upon which the applicant now places considerable reliance:

[The applicant] is capable of full-time work but it may be difficult to maintain it in a permanent, reliable, consistent manner due to his chronic pain, which on occasions, may be severe enough to preclude him from work.

1. Taken in isolation, this statement could have been regarded by the trial judge as qualifying the opinions of Dr Navani contained in the reports tendered at trial upon which he relied.
2. However, the statement upon which the applicant now seeks to rely cannot be taken in isolation. It is part of a report which dealt with the applicant's capacity to perform employment as a surveyor as well as those employments referred to by Dr Navani in his earlier reports. On one reading of the 20 May 2023 report, Dr Navani was expressing the opinion that the applicant was capable of employment as a surveyor 'within his medical restrictions of ... pre-injury hours' and the other medical restrictions referred to by Dr Navani in his earlier reports. A reading of the report in that way would have been plainly unhelpful to the applicant and may have resulted in the judge rejecting his application in its entirety.
3. While one might speculate as to why the lawyers who appeared for the applicant at trial did not seek to rely upon Dr Navani's 20 May 2023 report, the short answer, so far as its possible admission into evidence in this Court, is that, with reasonable diligence, it could have been tendered at trial for whatever beneficial or detrimental effect it might have had on the applicant's case.
4. The report of Dr Navani dated 25 September 2023 is in a slightly different position. It was written some six weeks after her Honour delivered judgment. The applicant seeks to rely upon it in this Court because it contains a variant of the statement from the 20 May 2023 report upon which he relies, namely:

[The applicant] is capable of work, but it may be difficult to maintain it in a permanent, reliable, consistent manner due to his chronic pain, which on occasions, may be severe enough to preclude him from work, thus in practical sense (sic) leaving him with NO WORK CAPACITY.

1. Dr Navani's report of 25 September 2023 is a one-page document, shorn of all the detail contained in his 20 May 2023 report - and in particular, shorn of any suggestion that the applicant might be capable of performing work as a surveyor. Viewed in the context of Dr Navani's other medical reports, the 25 September 2023 report is fundamentally incomplete.
2. That said, if the bald statement in Dr Navani's September 2023 report represented his opinion in 2023 then, in any event, the applicant has not established that, by the exercise of reasonable diligence, he could have adduced that opinion (orally or in writing) from Dr Navani at the trial conducted in June 2023. Nothing in the September 2023 report suggests that there was any event or change of circumstances between the trial and September 2023 which caused Dr Navani to change the opinions he had expressed in his earlier reports.

(b) Mr Muke's affidavit and employment contract

1. Mr Muke deposed in his affidavit to having studied land surveying with the applicant at TAFE SA. He said that he was born in the same year as the applicant and, like the applicant, he was not a native English speaker. He exhibited to his affidavit his contract of employment, signed by him on 10 January 2022. The contract was a letter dated 7 January 2022, headed 'Offer of employment'. The letter revealed that Mr Muke was to be employed on a full-time basis 'in the position of Mine Surveyor'; his employment was to be covered by the Surveying Award 2010; and he was to be paid a salary of $135,000 gross per annum, plus superannuation of 10 per cent.
2. In his affidavit, Mr Muke deposed that, on 27 June 2023 (the day before the trial commenced), he was contacted by the applicant and asked if he could provide a copy of his contract of employment. Mr Muke deposed that he sent a copy of his contract of employment to the applicant by email on 28 June 2023.
3. At trial, there was some discussion between her Honour and counsel about whether or not Mr Muke's contract of employment could be admitted into evidence. At the commencement of the hearing, the applicant's counsel conceded that a hearsay statement in the applicant's third affidavit about Mr Muke's employment and earnings should not be admitted into evidence. The respondent's subsequent objection to Mr Muke's contract of employment going into evidence was that the contract had not been appropriately exhibited to an affidavit of Mr Muke. It was submitted that, if the applicant wished to rely upon the contract, it should have been exhibited to an affidavit and that such an affidavit would have had to have been served on the respondent prior to trial so as to enable the respondent to investigate the assertions in it and to put its contents to the respondent's experts.
4. Ultimately, the applicant's counsel did not press the tender of Mr Muke's contract. It appears that counsel either accepted that it was too late to tender Mr Muke's contract without any affidavit proving its existence, or considered that the matter was not worth pursuing, having regard to the balance of the evidence.
5. The short answer to the applicant's application to have Mr Muke's affidavit and contract of employment admitted as fresh evidence is that the applicant has not established that, by the exercise of reasonable diligence, this evidence could not have been adduced at trial. There is no basis upon which this Court should now permit Mr Muke's material to be admitted into evidence.

1. Between the conclusion of the evidence on 29 June 2023, and the making of submissions on 25 July 2023, a number of emails passed between the applicant and his then solicitors about whether the position description relevant to the applicant's employment with No Problems Just Solutions, which had been tendered in evidence,[62] was a false document. The applicant asserted that he had never seen the document before and that he was 'of the strong opinion that this document was only created at a time post [his] employment'. The applicant took particular issue with the reference in the position description that his work involved him carrying up to 20 kg of equipment.
2. Apart from the obvious problems associated with the inadmissibility of emails passing between the applicant and his former solicitors, there are at least two reasons why this material cannot now be admitted as fresh evidence:

(1) First, the very debate the applicant was having with his solicitors prior to the completion of the trial shows that, by the exercise of reasonable diligence, the applicant could have raised the existence of, and sought to establish, the falsity of the position description document at trial if he wanted to do so.

(2) Secondly, there is nothing in the position description document which was used adversely to the applicant by the judge in her reasons for decision. Establishing the falsity of this document would not go any way to reversing those conclusions her Honour made adversely to the applicant on the issue of whether he had suffered the requisite loss of earning capacity of 40 per cent or more. Indeed, in the only place in the Reasons where her Honour deals with the position description, or it's reference to the applicant being required to carry up to 20 kilograms,[63] the judge used that material to reject a submission made by the respondent.

1. While what we have said is sufficient to show that there is no basis for admitting as fresh evidence the emails passing between the applicant and his former solicitors, we should say for the sake of completeness that nothing in the applicant's material filed in this Court suggests that the position description document was a 'falsified document' as asserted by the applicant. For completeness we should also note that this document was a document tendered at trial by the applicant and not by the respondent (albeit that it may initially have been provided by the respondent's solicitors to the applicant's solicitors).

1. By reference to computer searches undertaken by the applicant following the delivery of judgment by her Honour, the applicant now wishes to rely upon material which shows that, before her Honour was appointed to the County Court, her Honour was a barrister who had been briefed from time to time by the respondent's solicitors. Notwithstanding that the applicant has not advanced any proposed ground of appeal that might relate to this material, it appears that the applicant now wishes to contend that, by reason of her Honour's former association, her Honour's decision should be set aside for bias (certainly ostensible bias, but perhaps also actual bias) and/or for having a conflict of interest.
2. There is nothing in any of this material. The mere fact that her Honour (like any judge who has been appointed from the Bar) may have been briefed by the solicitors for a party in unrelated litigation says nothing about her Honour's ability to sit in judgment on the applicant's case.[64]
3. The new material which the applicant wishes to rely upon to mount an argument that her Honour's judgment ought be set aside for bias and/or a conflict of interest was publicly available at the time of trial, and capable of being found by the exercise of reasonable diligence in any event. The applicant has not established any basis upon which this material might now be admitted into evidence or otherwise relied upon by him in this Court.

1. In his affidavit of 4 September 2025, the applicant makes a number of allegations against the respondent's solicitors, ultimately asserting that they engaged in conduct that was 'dishonest and misleading'. Specifically, the applicant alleges that the respondent's solicitors placed the falsified 'position description' document before the Court; deliberately omitted a 2019 certificate of capacity; and engaged in a 'pattern of selective presentation designed to mislead' by not putting various other documents before the Court, including a letter from Dr Navani to TAFE SA, physiotherapy records of a Dr Wade Kelly, and a 2019 consultation note with a Dr Fitzgerald 'regarding potential surgery'.
2. There is nothing in any of these assertions. Nothing in the material suggests that the respondent's solicitors engaged in any dishonest or misleading conduct.
3. At the risk of repetition, none of the so-called fresh evidence which the applicant now seeks to have admitted in relation to this topic satisfies the requirements for the admission of fresh evidence to which we have already referred.

1. With the exception of two certificates of capacity (one from Dr Navani issued on 25 September 2023, and one from Dr Emmanuel Afari issued on 30 November 2023), to the extent that any of the other documents now sought to be relied upon by the applicant contain evidence which could be said to be relevant to this proceeding, all of that evidence could, by the exercise of reasonable diligence, have been called and/or tendered at trial. Indeed, apart from the documents relating to the weight of a motorcycle (evidence of which could easily have been led at trial if it had been considered relevant and necessary), all of that evidence appears in documents bearing dates prior to the dates upon which the trial was conducted. In the circumstances, none of this material is admissible as fresh evidence in this Court.
2. The two certificates of capacity to which we have just referred postdate her Honour's judgment and report on examinations of the applicant conducted after the delivery of judgment. However, there is no basis upon which it could be contended that, if the evidence in either of these documents had been adduced at trial, an opposite result would have been achieved. The first certificate certified that the applicant had a capacity for suitable employment from 20 September 2023 to 10 October 2023; and the second certificate certified that the applicant had a capacity for suitable employment from 29 November 2023 to 31 December 2023. That evidence, if admitted at trial, would have been positively unhelpful to the applicant's case on the issue of his then current work capacity.
3. While there is a conclusionary reference in Dr Navani's certificate of 25 September 2023 to '20 hrs over a period of 5 days' and other matters which had been the subject of his reports which were tendered at trial, nothing in that certificate would have led the judge to an opposite conclusion from the one reached by her Honour after considering the significantly more detailed opinions expressed by Dr Navani in the reports actually tendered at trial. Moreover, even if it could be said that this certificate of capacity contained an opinion which was more pessimistic than Dr Navani's earlier opinions, there was nothing in the certificate to explain what (if anything) had occurred since trial to change Dr Navani's opinion.

1. For the reasons given above, there is no substance in any of the applicant's applications for leave to adduce fresh evidence. Each of the applicant's applications for leave to adduce fresh evidence must be refused.

1. The applicant advances seven proposed grounds of appeal.[65] Each is expressed in the briefest of terms and at a high level of generality (for example, 'Failure to find facts', 'Irrelevant citation', 'Misinterpretation of Facts' and 'Inconsistency in use of evidence').[66]
2. In support of his application for leave to appeal (and his appeal, if leave is granted), the applicant filed a 62-page written case in this Court. The applicant's written case contains a myriad of complaints made about the way in which the proceeding was conducted at first instance, as well as about her Honour's reasoning. Many of these complaints relied upon this Court admitting, as fresh evidence, the material referred to and/or exhibited by the applicant in his affidavits of 13 August 2024, 3 February 2025, 5 February 2025, 22 August 2025 and 4 September 2025. As his applications for leave to rely on fresh evidence must be refused for the reasons we have already given, those arguments (to the extent that they were dependent upon the admission of the asserted fresh evidence) must now fail.
3. A number of the applicant's specific complaints about her Honour's conduct of the trial and/or reasoning could not lead this Court to conclude that any part of her Honour's decision should now be overturned. These complaints include, for example:

(a) a complaint that, regardless of the applicant's credibility, the judge should have ordered him to provide written documents to substantiate his evidence;

(b) a complaint (which was baseless in any event) that the judge asked the applicant questions which were improper and thus prohibited by s 41(3)(b) of the Evidence Act 2008;

(c) a complaint about the judge's use of the expression 'free coffee' (an expression said to have been used 'about 10 times in the Reasons).[67]

(d) a complaint that the judge cited authorities which were not relevant to the circumstances of the applicant's case;[68] and

(e) a complaint that both sides' lawyers failed to 'present certificates of capacity during 2019 ... that confirm[ed] my neck and right shoulder problems and Dr Navani awareness of it (sic)'.

1. As has been said many times before, in an application for leave to appeal/appeal of the present kind, this Court is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the primary judge has erred in fact or law.[69] Rather than attempt some unhelpful line-by-line analysis of the applicant's written case, we have conducted the review of the evidence that is required of us. That said, we have done so with an eye to the specific complaints made by the applicant in his written case and submissions made to us during the hearing of this matter.
2. More broadly than the applicant's arguments are expressed in his written case, it seems to us that, in essence, the applicant contends that the judge erred in making adverse credibility findings against him; erred in finding the facts relevant to his loss of earning capacity and erred in applying the law (and in particular, ss 325(2)(e) and/or (f) of the Act) to the facts which her Honour ought to have found on the whole of the evidence.

The judge's finding that the applicant was an unreliable witness

1. The judge had the benefit of seeing and hearing the applicant give evidence over two days. Having enjoyed that benefit (a benefit not enjoyed by this Court), the judge gave detailed reasons for her finding that the applicant was an unreliable witness.[70]
2. Having reviewed all of the evidence for ourselves, and in particular the lengthy cross‑examination of the applicant, we are unable to conclude that her Honour's findings on the reliability of the applicant's evidence were glaringly improbable or contrary to compelling inferences.[71]
3. Contrary to the applicant's submissions, the judge was entitled to accept (to the extent that she did) the respondent's counsel's submissions about the reliability of the applicant's evidence. Moreover, and again contrary to the applicant's submissions, her Honour was also entitled to accept the concessions made by the applicant's trial counsel. Accepting the respondent's counsel's submissions on this issue, and the applicant's counsel's concessions, did not involve any breach of, or failure to comply with any of the provisions of the Civil Procedure Act 2010. To the extent that the applicant submitted to the contrary under proposed ground 5, those submissions must be rejected.
4. In short, the applicant has not persuaded us that there was any error in the judge's conclusions that the applicant's evidence was unreliable. To the extent that the applicant's submissions and proposed grounds of appeal were premised upon any such contention, the arguments and proposed grounds must be rejected.

The judge's conclusions as to the applicant's without injury earning capacity

1. The judge calculated the without injury earning figure on the basis of the amounts the applicant was actually earning in 2018, as set out in payslips provided by No Problems Just Solutions and the claim form dated 6 December 2018.[72] While the payslips showed the applicant being paid at the rate of $30 per hour for varying numbers of hours of 'Normal Time' and $45 an hour for 'Fieldwork', the claim form stated more specifically that the applicant worked 50 'standard hours' each week at $30 per hour, with five hours of 'weekly overtime' paid at the rate of $51 per hour ($255 in total per week).
2. The judge calculated the applicant's without injury annual earning capacity by multiplying 50 standard hours by $30 an hour and adding three overtime hours at the rate of $51 per hour - which then totalled $1,653 per week or $85,956 annually. It is not entirely clear why her Honour chose three overtime hours on average per week, when the claim form referred to five hours. Similarly, it is not entirely clear why the applicant, who gave evidence that the overtime rate started after 40 hours per week, should not have had his without injury income assessed on the usual basis that overtime rates (time and a half) usually commence after 40 hours.
3. Having reviewed all of the evidence for ourselves, we are persuaded that the judge underassessed the applicant's without injury earnings. Those earnings should have been calculated on the basis of a standard 40 working week at $30 per hour, with 15 hours of overtime per week paid at the rate of $45 per hour.[73] This produces a weekly gross income of $1,875, or $97,500 annually.
4. Adopting the words of the judge,[74] the 60 per cent figure would then be $58,500 annually or $1,125 per week. Thus, to succeed in his application in respect of economic loss, the applicant had to establish, on the balance of probabilities, that he did not have the capacity to earn at least $1,125 a week (being the 60 per cent figure) in suitable employment and that this financial loss was 'likely to last through the foreseeable future'.[75]

The judge's findings about the applicant's current earning capacity in suitable employment

1. Having analysed all of the evidence, the judge accepted Dr Navani's opinion that the applicant has the capacity to work in suitable employment for 60 hours per week.[76] Her Honour concluded that, even working a standard 40 hour week, the applicant could work as a general clerk (surveying), earning $1,223 per week which, as her Honour said, exceeded the comparison figure she relied upon of $992 per week.[77]
2. That said, the figure of $1,223 per week found by her Honour (which was derived from the MOVE Report) also exceeds the recalculated figure we have arrived at of $1,125 per week.[78] Thus, in the absence of a successful challenge to the judge's finding that the applicant has the capacity to work a standard 40 hour week as a general clerk (surveying) earning a weekly income of $1,223 per week, the claim that the applicant has suffered a 40 per cent loss of earning capacity as measured in accordance with s 325(2)(f) of the Act must still fail.
3. The short answer to the applicant's proposed appeal in this case is that the judge did not err in concluding, on the whole of the evidence (but with particular reliance upon the reports of Dr Navani), that work as a general clerk (surveying) was suitable employment within the meaning of the Act and that the applicant has the capacity to engage in that employment. There was no error in the judge rejecting the applicant's evidence to the contrary. Nor was there any error in the judge's reasoning which led to her conclusion that she should accept the opinions of Dr Navani as set out in the reports tendered at trial. Indeed, to the extent that, where there was conflict in the medical evidence, her Honour preferred the evidence of Dr Navani because he had seen the applicant on more than 60 occasions, we consider the judge was entirely correct.
4. Having concluded that the judge did not err in finding that the applicant has retained a capacity to work full time as a general clerk (surveying), it is not necessary for us to consider the other forms of suitable employment which the judge also found that the applicant had retained a capacity to perform (i.e. as a real estate agent's representative and/or as a property manager/real estate sales person in a real estate agency). Engaging in either of those forms of employment would produce a gross annual income of more than the 60 per cent figure of $1,125 per week (or $58,500 per annum) as recalculated by us.[79]
5. Finally, the complaint made by the applicant that figures relied upon by the judge in the vocational material were current figures and not within the six year window referred to in s 325(2)(f) is misconceived. The judge assessed the without injury earning capacity under s 325(2)(f)(ii) on the basis of documents created in 2018 (the payslips and the claim form). Those were the figures which were required to be (and in fact were) within the six year window. The comparator figure (required to be assessed under s 325(2)(f)(i)) was a figure to be assessed as at the date of trial. Thus the figures in the various vocational reports tendered by the parties were not required to be within the six year window. Those figures were available for use by the judge, and correctly used by the judge, in calculating the gross income which the applicant was capable of earning in suitable employment as at the date of the hearing before the judge.

1. For the reasons given above, the applicant's proposed appeal does not have any real prospect of success. While the judge may have erred in underassessing the applicant's without injury earning capacity, any error made by her Honour was not material to the outcome of the proceeding because her Honour was correct in her assessment of the applicant's retained current earning capacity and thus also in her conclusion that the applicant did not establish the requisite 40 per cent loss of income as required by s 325(2)(e) of the Act in order to be entitled to a grant of leave to commence a proceeding claiming pecuniary loss damages.
2. As s 14C of the Supreme Court Act 1986 only permits this Court to grant an application for leave to appeal if the Court is satisfied that the appeal has a real prospect of success, it would be futile to grant the applicant the extension of time he seeks within which to seek leave to appeal. It follows that the applicant's application for an extension of time within which to seek leave to appeal against the judge's decision below must be refused.

1. The applicant's applications for leave to adduce fresh evidence and for an extension of time within which to seek leave to appeal will be refused. As those applications will be refused, there is no basis for any stay of her Honour's orders. Accordingly, the applicant's application for a stay will also be refused.

[1] Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act'), s 325(2)(e). The formula in s 325(2)(f) is set out at [61] below.

[2] The evidence was heard on 28 and 29 June 2023, and final submissions were made on 25 July 2023.

[3] Kianzadeh v Victorian WorkCover Authority [2023] VCC 1359 ('Reasons').

[6] The expression 'suitable employment' is a defined term in s 3 of the Act, to which we will return: see [62] below.

[10] Or in modern parlance, 'self-represented'.

[11] In his evidence-in-chief, the applicant was not taken to the paragraph of his third affidavit which contained this material. At trial, his counsel accepted an objection taken by counsel for the respondent to its admission into evidence. Nevertheless, we summarise that paragraph here because it is relevant to the applicant's applications to adduce fresh evidence - about which we will say more below.

[12] The paragraph in the applicant's third affidavit, which contained this material, was excluded by a ruling of the judge made on the basis that (amongst other things) this paragraph involved a change in the applicant's case made too late in the piece - the respondent having prepared its case on the basis of earlier material served on behalf of the applicant.

[13] The tasks about which Dr Nair had been asked were: surveyor, surveyor technician, surveyor drafter, office administration, administration, quantity surveyor, surveyor assistant, and general clerk.

[14] Mr Sabetghadam provided two reports: an initial report dated 22 February 2023; and a supplementary report dated 7 May 2023.

[30] Ibid [118]-[119] (footnotes omitted).

[35] Ibid [131]-[133] (footnotes omitted).

[46] While the definition of 'suitable employment' in s 3 of the Act contains additional paragraphs, those additional paragraphs only apply for the purposes of Part 4 of the Act. They have no application in the present case because ss 325 and 335 are contained in Part 7 of the Act.

[48] (2011) 31 VR 235; [2011] VSCA 21.

[49] [2014] VSCA 292 ('Jessop').

[50] (2018) 57 VR 545, 568-9 [70]-[71]; [2018] VSCA 35 (Priest, Beach and Niall JJA) ('Yirga-Denbu').

[51] [2021] VSCA 145, [60] (Beach, Kaye and Osborn JJA).

[52] See in particular, Roleff [2011] VSCA 21; (2011) 31 VR 235, 238-244 [16]-[31]; Yirga‑Denbu (2018) 57 VR 545, 568-‍[70]-[78]. See also Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68, [41] (Priest AP, Beach and Niall JJA).

[53] In which no challenge was made in respect of any of this Court's previous decisions.

[54] See Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96, 106-7 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[55] Although it may be that the exhibits to the 4 September 2025 affidavit are not relied upon as fresh evidence, but rather were exhibited in support of the applicant's applications to admit other material as fresh evidence. In respect of the 4 September 2025 affidavit, it should also be noted for completeness that, in paragraph 8A, there is a reference to a case which does not exist. That said, in paragraph 19 of the affidavit, the applicant disclosed that, when preparing this affidavit, he 'used ChatGPT online ... so that [he] could clearly present [his] main points to the Court'.

[56] See Reasons, [59] and [78(b)].

[57] Referred to at subparagraph (h) above.

[58] [2016] VSCA 314 (Santamaria and Kyrou JJA and Elliott AJA).

[59] Ibid [207]. The Court referred to Refaat v Barry [2015] VSCA 218 [76]-[77]; Clark v Stingel [2007] VSCA 292 [25], citing Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, 635-6; [1948] HCA 16; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141-2; [1991] HCA 61. See also Pateras v State of Victoria [2017] VSCA 31, [64]-[65] (Santamaria and Beach JJA).

[60] (1991) 178 CLR 134.

[62] And is referred to at Reasons, [59].

[64] See generally, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [30; [2000] HCA 63 (Gleeson CJ, McHugh, Gummow and Hayne JJ); Bienstein v Bienstein (2003) 195 ALR 225, 232 [33]; [2003] HCA 7 (McHugh, Kirby and Callinan JJ); Vella v Western Australia (No 2) [2025] WASCA 70, [163] (Vandongen JA).

[67] In fact, the expression 'free coffee' only appears once in the Reasons. It appears at Reasons [28], where the judge is quoting the applicant's answer to a question asked of him in cross-examination. To the extent that the applicant complained about the use of the word 'free' on its own in the Reasons, there were 10 such occasions. On each occasion, the judge was either quoting the applicant's evidence or dealing appropriately with that evidence: see Reasons [27], [28], [29], [48(b)], [153] and [154].

[68] These included Jessop [2014] VSCA 292 at Reasons, [115]; and Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at Reasons, [119].

[69] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, 148 [55]; [2019] HCA 28 (Bell, Gageler, Nettle and Edelman JJ) ('Lee').

[71] Lee [2019] HCA 28; (2019) 266 CLR 129, 148 [55].

[73] While there was reference in the judge's reasons to the Surveyors Award 2020, the evidence and submissions at trial did not refer either to the minimum hourly rates payable to the applicant during the six-year window, or to the basis on which overtime must be paid under the Award. Had this information been available to the judge, her calculation of the applicant's without injury earnings may have more fairly reflected his earning capacity had the injury not occurred.

[78] For completeness, we note that it also exceeds the figure which would be arrived at if one calculated the applicant's without injury earning capacity on the basis that he was paid overtime for 15 hours a week at the rate of $51 per hour (instead of $45 per hour). If the without injury figure was calculated at this more generous rate, the applicant's weekly without injury figure would have been $1,965 - 60 per cent of which is $1,179.

[79] Reasons, [143]-[144], relying on figures in the CoWork Report.