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Supreme Court of Victoria |
![[AustLII]](414.1.gif)
Supreme Court of VictoriaLast Updated: 13 August 2013
AT
MELBOURNE
COMMON LAW
DIVISION
JUDICIAL
REVIEW & APPEALS LIST
S CI 2012 06951
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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DATE OF JUDGMENT:
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CASE MAY BE CITED AS:
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APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW –
Accident Compensation – Weekly payments – Whether no
current work
capacity - Suitable employment – Whether worker able to return to work in
suitable employment – Whether
findings open – Reasons –
Whether reasons inadequate – Magistrates’ Court Act 1989,
s 109 – Accident Compensation Act 1985, ss 5 and
93C.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr P G Nash QC with
Mr C E Hangay |
Slater & Gordon
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For the Respondent
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Wisewould Mahony
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Introduction
1 Between 1995 and 2007, the appellant was employed by the respondent as a
market research interviewer. On 23 January 2007, the
appellant lodged a
WorkCover claim form pursuant to the provisions of the Accident Compensation Act
1985 (“the Act”). In the claim form, the appellant described her
injury as “RSI” affecting “both hands
and right elbow”.
The claim was accepted.
2 Weekly payments were made to the appellant, in
accordance with the provisions of the Act, until terminated on 25 October 2009.
The appellant’s weekly payments were terminated on the basis that she had
been paid for a total of 130 weeks and had a current
work capacity;
alternatively, the appellant had no current work capacity but it was not likely
that this would continue
indefinitely.[1]
3 On
19 October 2011, the appellant, as plaintiff, commenced a proceeding against the
respondent, as defendant, in the Magistrates’
Court. In the
Magistrates’ Court proceeding, the appellant sought an order for weekly
payments of compensation pursuant to
s 93CC of the
Act[2] from the date of
the termination of her payments, and an order for such payments to continue into
the future. The respondent resisted
the appellant’s claim, contending
that the appellant had a current work capacity within the meaning of the Act;
alternatively,
that any lack of current work capacity was not likely to continue
indefinitely.
4 The Magistrates’ Court proceeding was heard by
Magistrate Lauritsen[3]
on 30 and 31 October 2012. On 19 November 2012, his Honour dismissed the
appellant’s proceeding and ordered the appellant
to pay the
respondent’s costs.
5 Pursuant to s 109 of the Magistrates’
Court Act 1989, the appellant appeals to this Court, on a question of law, from
the orders made by Magistrate Lauritsen on 19 November 2012. This
is the
hearing of the appellant’s appeal.
6 In her amended notice of appeal, the appellant seeks an order that the orders
of the Magistrates’ Court be set aside and
that the matter be remitted to
the Magistrates’ Court to be heard and determined, according to law, by a
different Magistrate.
7 As set out in her amended notice of appeal, the
appellant’s grounds of appeal are as follows:
(i) the nature of the Appellant’s incapacity;
(ii) the nature of the Appellant’s pre-injury employment;
(iii) the Appellant’s age.
(i) the uncontradicted evidence of the Appellant as to her symptoms in her hands, wrists and right elbow caused by her injury and the physical restrictions her injury caused;
(ii) the uncontradicted evidence of the Appellant as to her failed attempts to find suitable work in light of her physical restrictions and her age;
(iii) the absence of evidence of the existence of an occupation that was wholly suitable for the Plaintiff in light of her restrictions;
(iv) The uncontradicted opinion and medical reports of Dr Navani dated 15 May 2008, 26 May 2009, 18 September 2009, 22 July 2011, and 10 May 2012;
(v) The uncontradicted opinion and medical reports of Mr Miller dated 2 June 2011, 28 May 2012;
(vi) The uncontradicted opinion and medical reports of Dr Littlejohn dated 11 June 2010, 13 July 2011, and 24 April 2012.
The issues at trial
8 In order to succeed in her claim before the Magistrates’ Court, the
appellant had to establish that she had “no current
work capacity”
and that this was “likely to continue
indefinitely”.[4]
9 The
expression “no current work capacity” is defined in s 5(1) of
the Act, in relation to a worker, to mean:
A present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
10 Prior to 1 July 2010, the expression “suitable employment” was defined in s 5(1) of the Act as follows:
[E]mployment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
(a) the nature of the worker’s incapacity and pre-injury employment;
(b) the worker’s age, education, skills and work experience;
(c) the worker’s place of residence;
(d) the details given in medical information including the medical certificate supplied by the worker;
(e) the worker’s return to work plan, if any;
(f) if any occupational rehabilitation services are being provided to or for the worker.
11 From 1 July 2010,[5] “suitable employment” has been defined in s 5(1) as follows:
Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to -
(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; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.
12 There was no debate at the trial in the Magistrates’ Court concerning which version of the definition of “suitable employment” was to be applied. However, s 4A(1)[6] makes it tolerably clear that the earlier definition of “suitable employment” applied to the plaintiff’s claim for weekly payments from 25 October 2009 to 30 June 2010, and the later definition applies to her claim for weekly payments from 1 July 2010.
The evidence at trial
13 At trial, three witnesses were called and cross-examined: the appellant, the appellant’s general practitioner Dr Navani and Dr Littlejohn (a rheumatologist who examined the appellant at the request of the respondent on three occasions). Further, a number of medical reports and other documents were tendered, including medical reports from Dr Navani, Dr Alex Stockman, Mr Martin Richardson, Mr Russell Miller, Dr Littlejohn, Dr Entwisle and Dr Clayton Thomas. Additionally, vocational assessment reports compiled by consultants employed by Konekt were tendered without objection.
14 The Magistrate commenced his judgment by describing the background circumstances of the proceeding, before then dealing with the evidence called and tendered at trial. In dealing with the evidence, his Honour first summarised the evidence of the appellant, before coming to the evidence of Dr Navani, then Dr Stockman, Dr Clayton Thomas, Dr Littlejohn, Mr Miller and Mr Entwisle. In the course of summarising the evidence, his Honour set out some of the opinions of the doctors, including the following:
Mr Littlejohn said of her capacity for work:
“I think the plaintiff is capable of work activity. I think she could do a number of duties which would likely not aggravate her symptoms. If she did light or sedentary work activity without significant repetitious actions I think this would be unlikely to cause aggravation of her claimed symptoms. Hence, jobs such as an inquiry officer, purchasing clerk, administrative assistant, reception work and the like would be within her capacity. In contrast, actions that involved protracted postural activity such as keeping her arms in one position for several minutes or doing significant repetitive work such as typing or writing then this might cause more impact on her work ability. Hence in that context I think she could do the major aspects of the jobs talent pool conductors, box office attendant, administrative service officer, inbound consumer sales, customer service consultant, pharmacy assistant or pharma staff dispensary technician.”
Russell Miller is an orthopaedic surgeon. He saw Ms Dinatale at her solicitor’s request on 23 May 2011. He found diagnosis difficult but believed she suffered from “what is effectively an overuse syndrome with overlying Chronic Pain Syndrome”. As to capacity for work, he said:
“This lady has significant problems with both upper extremities, particularly the right upper extremity. I believe she will have difficulty with work that involved repetitive arm actions, lifting weights more than 2 kg with either upper extremity and in particular would have difficulty with data entry tasks. She is not fit for pre-injury duties and a return to work would be problematic in this case due to work related injuries. I note her more severely affected right side in the dominant extremity.”[7]
15 After dealing with the opinion of Dr Entwisle, his Honour went on to deal with the vocational assessment evidence – before coming to his reasons for dismissing the appellant’s claim. His Honour said:
An organisation called Konekt vocationally assessed Ms Dinatale three times, the last being 20 March 2009. Each time the assessor identified four “suitable employment options” in the same order of priority. The first was an inquiry agent, followed by a receptionist/front office clerk, stock and purchasing clerk; and office/administration assistant.
I will not examine each option here except the first. The tasks of an inquiry officer could include – providing information on the services or goods provided by an organisation and assist and advise people on their use; answer inquiries about the organisation’s products and services; and issue forms, information pamphlets, product or service brochures. The job would require sitting, standing and an ability to work to a schedule. The assesor’s comment Ms Dinatale and this job (sic):
“...has good communication, organisational and time management skills in addition to customer service and general administration experience which would transfer to a position of this kind”.
Discussion
The defendant ended Ms Dinatale’s weekly payment by notice. It said her second entitlement period had ended and she did not fitted (sic) into one of two circumstances. If Ms Dinatale is to succeed in obtaining weekly payments, she must prove two things – she has “no current work capacity”; and she is likely to continue indefinitely to have no current work capacity. The Act defines “no current work capacity”, which raises the expression “suitable employment”, also defined. No one suggests Ms Dinatale can return to her pre-injury employment. The question is whether she is unable to return to work in suitable employment.
Ms Dinatale has had a strong, enviable employment record in service industries. She ran TAB branches for about 15 years. She worked as a research interviewer for another 15. She demonstrated innate skills as an interviewer and manager. These are not lost, or even diminished by the injuries to her arms. She can still interview people. She can still manage people. She can give people information. Even Dr Navani saw her doing 15 hours each week provided she did not use her hands “to any great extent”. Frankly, the 15 hour restriction was somewhat rubbery, after hearing his answers in cross-examination. The upshot is that Ms Dinatale retains enough capacity for work to exclude a “no current work capacity”.
I was referred to this paragraph from Public Transport Corporation v Pitts:
“The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima (scil prima facie) case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration ...”
There is no room for the application of this principle here. She does not raise a prima facie case of no current work capacity.
Counsel referred to parts of the decision of my colleague, Mr Garnett, in Manthopoulos v Spencwill Nominees Pty Ltd. I agree a degree of realism is needed. But in rejecting Ms Dinatale’s contention of no current work capacity, that flows from a realistic appreciation of the case.
In terms of s 93C, she does not have “no current work capacity” at any stage since the ending of her weekly payments. Ms Dinatale’s claim must fail. I will hear the parties on the question of costs.[8]
The appellant’s arguments on appeal
16 At the hearing of this appeal, Senior Counsel for the appellant submitted
that there were three primary issues and a subsidiary
issue in this appeal. The
appellant’s principal complaint was that the judgment below did not
disclose a path of reasoning
to the ultimate conclusion. In support of this
submission, the appellant relied upon, amongst other authorities, two Court of
Appeal
decisions: Fletcher Construction Australia Limited v Lines Macfarlane
& Marshall Pty Ltd (No
2)[9] and Kapiris Bros
(Vic) Pty Ltd v Zausa &
Anor.[10]
17 Secondly, it was submitted by
the appellant that the Magistrate did not make findings of fact sufficient to
justify his Honour’s
conclusion. Thirdly, it was submitted that the
Magistrate misconstrued the requirements of s 93CC and s 93C of the
Act. Finally,
the subsidiary point referred to by the appellant was a complaint
that the Magistrate wrongly did not find that the appellant had
made out a prima
facie case of incapacity for work, which finding if made would then, it was
submitted, have passed an evidentiary
onus to the respondent in respect of the
existence of suitable employment or a real job which the appellant could
perform.
18 During the hearing, Senior Counsel for the appellant took me to the following statements in a number of the medical reports of Dr Navani:
Ms Josephine Dinatale has work capacity for modified duties at reduced hours at this stage.
She needs to limit her typing, data entry and perform assorted light administrative work with structured breaks to rest her upper limbs.[11]
...
In practical terms, I remain of the opinion that firstly, it would be highly unlikely that she would find work within her medical restrictions which limit her to working five hours per day, three days per week on a very light sedentary work with restricted keyboard/typing and self paced work.
Secondly, I very much doubt that Mrs Josephine Dinatale would even sustain any kind of work.
Thus in [a] practical sense, Mrs Josephine Dinatale has no work capacity and the insurer should continue to support her financially for her payment impairment caused significantly due to her work.[12]
...
Josephine has no pre-injury work capacity.
She has very limited alternative work capacity of five hours, three days per week of very light sedentary work with minimal typing. The likelihood of finding such work at her age is remote.[13]
...
I believe that Josephine has no work capacity. She has suffered permanent impairment which will need long-term management.
Theoretically, very light work with quite severe restrictions to her dominant right limb is possible but applying the ‘task of suitable employment’ and taking her skills, previous work, age and education background, I believe Josephine has no work capacity and this is unlikely to change in the foreseeable future.[14]
19 It is true that the Magistrate’s reason for decision make no reference
to each of these passages in Dr Navani’s reports.
However, one cannot
reason simply from that proposition to a conclusion that the Magistrate’s
reasons were somehow inadequate:
one needs to look at the way in which the
trial was conducted and the issues that were truly presented for resolution by
the parties.
20 The respondent tendered vocational assessment evidence which
it submitted, when taken with the plaintiff’s evidence and the
medical
evidence, disclosed the existence of jobs for which the appellant was suited.
One of these jobs was a position described
as “inquiry
officer”.[15]
21 The
vocational assessment evidence disclosed that the duties of an inquiry officer
were:
- Provide information on the services or goods provided by an organisation and assist and advise people on their use.
- Answer inquiries about the organisation’s products and services.
- Issue forms, information pamphlets, product or services brochures.
22 The “physical/psychological demands” of this position were described as:
Periods of sitting and standing at times.
Ability to work within timeframes and meet deadlines.
23 A “labour market analysis” of the position apparently disclosed “job prospects: good”, and the vocational assessment evidence was that there were two advertised positions of this kind “within reasonable proximity” to the respondent. The following opinion was then expressed in the vocational assessment material:
Ms Dinatale has good communication, organisational and time management skills in addition to customer service and general administration experience which would transfer to a position of this kind. Identification of suitable employment would enable Ms Dinatale to rotate between tasks as required.
24 The appellant was cross-examined about her ability to perform work as an inquiry officer. She was asked and answered the following questions:[16]
I want to ask you about one which is called an inquiry officer, now in the vocational assessment report it says the tasks may include, “Provide information on the services or goods provided by an organisation and assist and advise people on their use”. That’s one task, so there’s nothing physical there?---I don’t know. May I just say this is the first I’ve heard of this little task - - -
All right?--- - - - or this job.
All right, well - - -?---They never told the result of the assessment.
All right?---They just sent me to do the course - - -
All right, well - - -?--- - - - and I thought will I understand that, I’m computer illiterate?
HIS HONOUR: What’s the name of that job?
COUNSEL: Inquiry officer?---And - - -
I’m going to ask you about some of these jobs and the tasks the (sic) involve and you need to tell His Honour whether it’s something you can do or not?
---I don’t know if it’s something – I don’t know anything about it. I mean who would employ me? Who would be - - -
HIS HONOUR: He didn’t ask you who’d employ you. Just listen to what he describes the job as - - -?---Right, OK.
- - - and then tell (indistinct) - - -?---So that one sounded good to me.
COUNSEL: Yes, is that sounding like something you can do?---Well I can answer questions, certainly.
All right, - - -?---You’ve seen the proof of that.
- - - and the next task is similar in, “Answer enquiries about the organisation’s, products and services”?---Yes.
You could do that. “Issue forms, information pamphlets, product or service brochures”?---Yes.
All right. Now in terms of the physical and cognitive demands it says periods of sitting and standing at times, that would be no issue for you?---No.
[An ability][17] to work within timeframes and meet deadlines?---Absolutely.
That’s something you would have at TAB or?---Absolutely.
All right?---As long as I’m not carrying around heavy boxes of pamphlets and things - - -
Yes?--- - - - that would be fine.
All right, so if - - -?---They delivered the pamphlets, they put them in, I can hand them out. Lovely, yes.
So if that was a job that was available in the market place?---I’m happy to do it.
25 During this cross-examination, counsel for the respondent put to the
appellant each of the identified duties and demands of an
inquiry officer. The
effect of the cross-examination was that the appellant agreed that she could
perform all of the relevant duties
and cope with all the identified
demands.[18]
26 Dr Navani was cross-examined about the appellant’s ability to
perform the tasks of an inquiry officer. Dr Navani was asked
and answered the
following
questions:[19]
All right. I just want to ask you about a couple of jobs that have been identified as possible jobs for the plaintiff and get your view on those?---Sure.
The first is of an inquiry officer. Now, these are the tasks that are involved with an inquiry officer, “Provide information on the services or goods provided by an organisation and assist and advise people on their use”. They sound like things that she’d be able to do?---Yes, she could do that.
“Answer enquiries about the organisation’s products and services”?
---Correct. She can do that.
“Issue forms, information pamphlets, product or service brochures”?---Yeah, she can do that.
All right. Now, is there any limitation in terms of hours that she could do in that job?---If – if she had to speak to someone and do that and read up on a website and do that I think she can do the whole – full-time.
Full-time, all right?---Yeah.
27 It might immediately be noticed that while counsel for the respondent below
cross-examined the appellant about the “physical/psychological
demands” associated with the position of an inquiry
officer,[20] no
questions on this point were asked of Dr Navani. That said, it is difficult to
see, in the light of Dr Navani’s evidence,
how he could have expressed an
opinion as to sitting and standing at times, or working within timeframes and
meeting deadlines, that
was inconsistent with the plaintiff’s evidence.
Certainly, there was no re-examination on this issue by counsel for the
appellant
at trial; nor was any submission made by counsel for the appellant
below that the respondent’s counsel had failed to put any
relevant matters
to Dr Navani.
28 In my view, the circumstances of this case did not require
the Magistrate to set out and deal with each line in the tendered medical
reports that might be capable of supporting the general proposition that the
appellant had (or has) some relevant incapacity for
work. The Magistrate
carefully set out significant parts of the relevant evidence. Having done so,
there can be no doubt that his
Honour accepted that the plaintiff was able to
perform the identified tasks of an inquiry officer. Acceptance of this
proposition
mandated the dismissal of the appellant’s proceeding.
29 It
is a rare case in which it cannot be said that a court could have said more in
its reasons for arriving at a particular conclusion.
However, that is not the
test. The question is whether the reasons adequately disclose a path of
reasoning enabling this Court
and the parties to know why the particular result
was reached. In my opinion, the Magistrate’s reasons in this case
satisfied
that test.
Was the decision open on the evidence?
30 In ground 3 of her amended notice of appeal, the appellant makes complaint
that the Magistrate’s conclusion that she had
a current work capacity was
not reasonably open on the evidence having regard to what she describes as
“uncontradicted evidence”,
an “absence of evidence” and
“uncontradicted opinion” as particularised in that ground of her
amended notice
of appeal.
31 There is nothing in this point. The Magistrate
was entitled, on the evidence, to accept that the position of inquiry officer
existed
and was available to the appellant. Further, his Honour was entitled to
conclude that the duties of that position were duties, on
the evidence, which
could be performed by the appellant. Indeed, the ability of the appellant to
perform the duties of an inquiry
officer was accepted by the appellant in the
cross-examination I have set out above.
The Magistrate’s construction and application of the relevant provisions of the Act
32 In grounds 1 and 2 of the amended notice of appeal, the appellant makes
complaint about the Magistrate’s interpretation
and application of the
definition of “suitable employment” in s 5 of the Act.
Additionally, in argument, it was said
that the Magistrate misconstrued the
requirements of ss 93CC and 93C.
33 There is nothing in any of these
points. The fact that there was evidence given below which, if taken on its
own, could have justified
a conclusion in favour of the appellant in the
proceeding below does not mean that, in not accepting that evidence (to the
exclusion
of other relevant evidence to which I have already referred), the
Magistrate made an error of law either in the construction or application
of any
of the relevant provisions of the Act. Put shortly, the appellant has failed to
establish that there was any error in the
Magistrate’s construction or
application of the relevant sections of the Act.
The appellant’s remaining grounds and arguments
34 Ground 4 asserts that the Magistrate erred in law in failing to hold that,
the appellant having established a prima facie case
that no suitable employment
as defined in the Act was available to her, an evidentiary onus passed to the
respondent to adduce evidence
that there was employment available in the
community which the appellant was capable of performing. This ground must also
be rejected.
35 First, on the evidence to which I have already referred, the
Magistrate was not bound in law to hold that the appellant had established
a
prima facie case that no suitable employment was available to her. Secondly,
even if any relevant evidentiary onus passed to the
respondent, this was
discharged by the tendering of the vocational assessment evidence to which I
have already referred. Again,
the short point is that, on the evidence, the
appellant failed to make out her case.
36 In ground 5 it is asserted that the
Magistrate erred in law in treating evidence that the appellant would be capable
of performing
some aspects of the job of inquiry officer, as establishing that
there was suitable employment available in the community which the
appellant was
capable of performing.
37 This ground must also fail. The evidence of the
appellant was that she was able to perform all of the identified tasks
associated
with the position of inquiry officer. To the extent that the
appellant’s counsel submitted to the contrary below, that submission
was
rightly rejected by the Magistrate. The evidence was that the appellant could
perform each of the identified duties of an inquiry
officer. Further, the
vocational assessment evidence was that the appellant could perform the tasks
associated with this position,
and that the position in fact existed and was
relevantly available to the appellant.
38 For the reasons given above, this appeal must be dismissed. For the sake of
completeness I should say that it is to be remembered
in cases of this kind,
that a question of law is not involved in a decision simply because a tribunal
or court makes one or more
findings of fact that are not supported by evidence;
nor is it sufficient that the reasoning whereby a conclusion of fact is reached
is demonstrably
unsound.[21] That
said, there is nothing in this case that leads me to conclude that the
Magistrate’s findings were not supported by evidence,
or were unsound in
any way, or were insufficiently reasoned.
39 Similar to the view taken by
Phillips J in Nikolic v
Schultz,[22] in my
view the present proceeding appears to be a case where the appellant has
laboured to convert what was essentially a question
of fact into a question of
law. As Phillips J said:
Finally, I simply observe that while an appeal now lies from the Magistrates’ Court to this Court ... , such an appeal lies only on a question of law, and this seems to me to be a case in which the appellant has laboured to convert what was essentially a question of fact into a question of law. Such attempts have not gone unnoticed by the courts which have tended to deprecate the practice of “attempting to magnify or inflate questions of fact into questions of law and trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by” some other body.[23]
Conclusion
40 The appeal will be dismissed.
[1] Cf s 93CC of the Act as it was prior to 5 April 2010 (see now s 93C of the Act).
[2] As it was prior to its repeal on 5 April 2010 by s 31 of the Accident Compensation Amendment Act 2010 (the provisions of which (s 93CC) were substantially re-enacted in s 93C of the Act by s 31 of the same 2010 amending Act).
[3] As his Honour then was.
[4] See s 93CC of the Act as it was prior to 5 April 2010 and s 93C of the Act from 5 April 2010.
[5] When s 74(3) of the Accident Compensation Amendment Act 2010 commenced.
[6] Section 4A(1) provides:
“If a worker commences or has commenced to receive compensation in the form of weekly payments, the entitlement of that worker to continue to receive weekly payments and the amount of those weekly payments depends upon the provisions of this Act as in force from time to time”.
[7] References to exhibit numbers omitted.
[8] Citations omitted.
[9] [2002] VSCA 189; (2002) 6 VR 1, [99]-[106].
[10] [2006] VSCA 15, [24]-[27].
[11] Report dated 15 May 2008.
[12] Report dated 18 September 2009.
[13] Report dated 22 July 2011.
[14] Report dated 10 May 2012.
[15] Referred to in the reasons for decision below.
[16] T56.15 – T57.27 of the trial below.
[17] The transcript records the word “Inability”, but it is tolerably clear from the context that counsel’s question began with the words “An ability”.
[18] Indeed, so much appeared to be the Magistrate’s view during final submissions below (see T126.22 – T126.28).
[19] T80.13 – T80.30.
[20] Periods of sitting and standing at times; and ability to work within timeframes and meet deadlines.
[21] See Transport Accident Commission v O’Reilly [1998] VSCA 106; [1999] 2 VR 436, [58] (Callaway JA).
[22] (Unreported, Supreme Court of Victoria, Phillips J, 22 October 1991).
[23] Ibid 11 (citations omitted).
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