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Legal Firm challenges workers compo claim Fiona BROWN v Maurice BLACKBURN

#21 User is offline   hukildaspida 

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Posted 03 March 2011 - 04:01 PM

12
The inter-relationship between subsections 134AB(2). (15). (19)© & (23){B)
33. The appellant's construction of ss.(2) at [28] represents a change of position to
the approach it adopted below and referred to at [17] of the Court of Appeal's
reasons. The change of pOSition is made, presumably, because the analysis of
the Court of Appeal particularly at [59] and [60] is unanswerable. But, with the
change of position, the work the appellant gives ss.(19)© at [28] is pointless.
34. The respondent adopts the reasons of the Court of Appeal in respect of the
proper construction of ss.(19)© at [75] to [79].
10 35. The appellant submits that an intention is evinced from the words of
20
30
s.134AB(23)(B) which intention is supported by the appellant's construction of
ss.(19)©32. The obstacle to the appellant's approach is that ss.(23)(B) makes
perfect sense without the evinced intention. With it, the Court of Appeal at
[104] rightly observed it is "odd" there should be a different regime depending
on whether there was a trial by jury or judge alone. If the appellant's
construction of ss.(19)© is rejected there then is no need to for the forced and
problematic interpretation of ss.(23)(B).
36. Whilst ss.(15) clearly has as a purpose the revival of the worker's common law
rights as explained by the appellant at [30] of its submissions, the Court of
Appeal was right to conclude at [170] that the mandated serious injury
consequences of the medical panel opinion were to be adopted and applied
by reason of s.68(4). Neither ss.(19)© as it was or any amendment
subsequent to its repeal has affected the position.
Application of s.68(4) to the facts
32
37. The answer to question 1 in the Medical Panel opinion dated 28 June 2006
set out in paragraph 1A(d) of the Amended Reply expressly acknowledges its
status as an opinion for the purpose of both s.98C (lump sum statutory
benefits) and s.134AB(3)&(15).
38. The opinion contained findings. The finding that the plaintiff had a 30%
psychiatric impairment meant that upon the plaintiff's application under
At [32] of the Appellant's submissions.
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#22 User is offline   hukildaspida 

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Posted 03 March 2011 - 04:02 PM

13
s.134AB(4) the injury was deemed by s.134AB(15) to be a "serious injury" as
defined. The finding that the impairment was permanent was a finding that the
psychiatric impairment had stabilised with or without medical treatment and
was not likely to remit despite medical treatment. Being in respect of
psychiatric impairment the statutory import of the deemed injury was that it
was a permanent severe mental or permanent severe behavioural disturbance
or disorder in accordance with paragraph © of the definition of serious injury
at s.134AB(37).
39. The doctrine of estoppel andlor the wider requirement under s.68(4) that the
opinion be adopted and appliecf3 by any court, person or body prevents the
assertion at the trial of the damages proceeding "of a matter of fact or of law
in a sense contrary to that in which that precise matter has already been
necessarily and directly decided by a competent tribunal in resolving rights or
obligations between the same parties in the same respective interests or
capacl·lte· s, . .. ,,34 .
40. In particular it is inconsistent with the opinion for the defendant to conduct its
case on the basis that the plaintiff did not have a psychiatric impairment as at
June 2006 or to assert through evidence or submission that the plaintiffs
psychiatric impairment was not as at that date permanent. Indeed unless there
be a basis for demonstrating (in a jury trial on a voir dire) that circumstances
have subsequently changed significantly, the adoption and application of the
opinion prevents the defendant from asserting that the psychiatric impairment
does not continue unabated.
41. Finally the appellant's submissions at [51] that damages are to be assessed at
the date of trial and that the existence, cause, nature and extent of the
respondent's injuries are not to be determined by the medical panel applying
the relevant criteria for permanent psychiatric impairment are beside the point.
33 In Ajinvan PIL v Fry (2001) 3 VR 644 Phillips JA, with whom Ormiston and Batt JJA
agreed, recognised that adoption and application of an opinion was required in respect of
future events unless "circumstances subsequently change significantly": at 650-1, (16)-(17].
This involves a wider restriction than would arise from an issue estoppel.
34 Per Barwick CJ in Ramsay v Pigrim 118 CLR 271 at 276 and quoted with approval by
the court in Ku/igowski v Metrobus (2004) 220 CLR 363 at 379.
----~-------~-.--...•
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#23 User is offline   hukildaspida 

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Posted 03 March 2011 - 04:02 PM

14
The Court of Appeal's reasons at [103] and the authorities35 there referred to
and discussed at [88]-[94] are apposite.
Part VII - Respondent's argument on notice of contention
42.ln order for an estoppel to arise in this case, the respondent needs to satisfy
the strict requirements articulated in Ramsay v Pigram36 namely that there
was a final decision between the same parties in relation to the same question
that arises in the present litigation.
43. The finality of the Medical Panel's opinion does not appear controversial:
s.104B(12).
44. Next, although described as an opinion, the product of the Medical Panel upon
a reference under s.1 04B(9) is clearly a decision in that:-
(a) it contains findings of fact;
(B) it is completely effective and not of an interlocutory character37
;
© the Medical Panel is a "Tribunal" which must observe the rules of
natural justice3B

45.Given the emphatic language of s.68(4) and the effect of s.134AB(15) it is
artificial in the extreme to suggest that the opinion does not affect rights.
46. As to the parties being the same, there seems little room for argument that the
VWA was the privy of the appellant. The absence of formal appearance or the
like before the Medical Panel does not prevent the conclusion that there are
parties. The procedure identified by Ashley J at [184-186] are adopted and
relied upon by the respondent.
47. Finally the question determined by the opinion is one of the precise questions
which arise in this litigation, namely the degree to which the plaintiff is
35 The decisions are Blair v Curran (1939) 62 CLR 464; Somodqj v Australian Iron &
Steel Ltd. (109) CLR 205; Tringali v Stweardson Stubbs & Collett Ltd (1965) 66 SR (NSW)
335; Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 335; Egri & anor v DRG
Australia Ltd (1988) 19 NSWLR 600 and Metrobus (supra).
36 At 276.
37
"
See Kulighowski v Metrobus (2004) 220 CLR 363 at 375.
MastersvMcCubbery [1996]IVR635.
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#24 User is offline   hukildaspida 

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Posted 03 March 2011 - 04:04 PM

10
Dated
15
impaired arising from the injuries which are alleged in her Statement of Claim,
It is not to the point that the Medical Panel is obliged to, in answering that
question, have regard to a guide in relation to impairment which is not one to
which a Judge or jury in a common law trial would have regard, The ultimate
question is the degree of impairment - and that is one of the questions which
squarely arises in the trial. Of course the scope of the question in the common
law trial is much broader in that it has a much greater temporal span, however
necessarily one of the dates which the Court must directs its attention is the
very same date upon which the Medical Panel expressed its opinion,
15 February 2011
Stephen McCredie
(On behalf of and as junior counsel
for Peter Tree)
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#25 User is offline   hukildaspida 

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Posted 03 March 2011 - 10:25 PM

Wow this is going to be an interesting battle between top lawyers in Australia.

Wonder if Mr Peter TREE has relations in New Zealand ;)

Peter W Tree SC
LLB (Hons)(UQ)

Chambers: Room 19: Building Dawson
Admitted : 1989
Signed Bar Roll : 2006
Appointed SC : 25th Jun 2004
Admitted to Practice in : Victoria, Queensland, Tasmania, Federal Jurisdictions.
Phone : 03 9225 6992 Facsimile : 03 9225 6993
E-Mail : peter.tree@vicbar.com.au
# Areas of Practice : Administrative Law
# Bankruptcy/Insolvency
# Building and Construction Law (Incl Engineering)
# Civil Liberties/Discrimination
# Commercial Law
# Common Law
# Contract
# Corporations (Company) Law
# Defamation
# Disciplinary & Related Tribunals
# Employment Law
# Environmental Law
# Equity & Trusts
# Family Law (Including Defacto)
# Insurance Law
# Media/Entertainment Law
# Medical Negligence
# Personal Injuries
# Probate/Wills/Family Provision
# Professional Negligence
# Trade Practices



OFFICES HELD:

President, Tasmanian Bar (2007 - current)

Director, Law Council of Australia (2007 - current)

Chairman, Tasmanian Sentencing Advisory Council (2010 - current)

CURRENT PRACTICE:

Peter's practice is probably best described as general litigation, in the sense that there are few areas of work in which he is not from time to time instructed. The range of clients for whom he acts is also diverse extending from the impecunious, to the State and large corporations.

Frequent ares of instruction include:-

# Commercial disputes , particularly contract and TPA claims;

# Professional negligence litigation, both for plaintiffs and defendants;

# Disciplinary proceedings relating to legal and medical practitioners;

# Judicial review of administative decisions;

# Testators provision claims;

# Matrimonial property cases.


PREVIOUS CASES:

Peter has maintained a broad practice in most areas of civil litigation, together with family law and crime. He has regularly undertaken interlocutory, trial and appellate work, as well as numerous mediations and arbitrations.

Significant litigious matters in which Peter has been counsel include:-

# A landmark High Court case which established the tortious liability of house builders to subsequent purchasers (1995);

# A Commission of Inquiry into the Police shooting of a civilian, in which he appeared for one of the two snipers (2002);

# An application for relief against forfeiture, where the subject matter of the litigation was a Bass Strait gas field worth in excess of $200 million (2002);

# An Industrial Commission hearing in which a police Sergeant successfully obtained re-instatement after dismissal for performing sex acts in a public bar (2002);

# A Federal Court case in which Senator Bob Brown sought an injunction restraining logging in old growth forest at Wielangta in Tasmania (2006);

# An application for the grant of letters of administration in respect of the estates of 17 unidentified deceased aboriginals, whose remains, dating back to at least the early 1800's, were held by the British Museum (2007);

# A discrimination claim by a homosexual man arising out of the refusal of the Red Cross to permit him to donate blood (2008);

# A coronial inquest into the destruction by fire of the Hobart Myer store, in which he appeared for Myer and its insurer (2009);

# The criminal defence of the Tasmanian Police Commissioner who was charged with disclosing official secrets to the then Premier (2009);

# A case stated to the Victorian Court of Appeal (now on appeal to the High Court) which held that workers compensation insurers could not conduct common law master/servant cases contrary to medical panel impairment assessments (2010).


Details of the various reported cases in which Peter has appeared as counsel can be found at
Victorian Bar

http://www.gordonand...om.au/index.htm


Peter TREE

Profile

Peter has practiced extensively in a wider range of litigation at interlocutory, trial and appellate levels. He has appeared as counsel in the following reported cases:-


High Court

Bryan v Maloney (1995) 182 CLR 609
[torts - negligence - duty of care owed by builders to subsequent purchasers]

ABC v O'Neill (2006) 227 CLR 57
[torts - defamation - injunctions - freedom of speech]


Federal Court

Krambousanous v Jedda (1996) 64 FCR 348; (1996) 72 FCR 138
[torts – negligence, equity/trade practices - unconscionable conduct]

Gregg v Tasmanian Trustees (1997) 73 FCR 91
[equity/trade practices - unconscionable conduct]

Mulcahy v HEC (1998) 85 FCR 170; (1998) 85 FCR 248
[contract - implied terms;
torts - negligence;
trade practices - misleading and deceptive conduct]

Secretary DFCS v Geeves (2004) 136 FCR 134
[social welfare - "assets" - "property"]

Brown v Forestry Tasmania (2007) 157 FCR 1; (2007) 167 FCR 34
[environment law – forestry operations – endangered species]

ASIC v Piggot Wood & Baker (2008) 172 FCR 257
[constitutional law – inconsistency of laws – corporations]


Family Court

Re LC and TC (1998) FLC 92-803
[family law - children - residence]


Supreme Court

National Westminster Finance v Powe (1992) 1 Tas R 161
[evidence - admissibility]

Shaw v Harris (1993) 3 Tas R 167
[equity - specific performance]

Oxford Clothing v TGIO (1994) 4 Tas R 1
[civil procedure - arbitration orders]

Grimsey v Southern Health (1997) 7 Tas R 67; (1998) 8 Tas R 166
[torts - negligence - causation and assessment of damages]


Pace Tasmania v FAI (2001-2) 10 Tas R 276
[corporations - discovery of documents]


Gairsay v Berkley Farm (2003) 11 Tas R 267
[conveyancing - vendor and purchaser]

Anti-Discrimination Cmr v Acting Ombudsman (2003) 11 Tas R 343
[administrative law - jurisdiction of Ombudsman]


Bock v West Tamar (2003) 12 Tas R 187; (2003) 129 LGERA 378
[real property - acquisition of land - compensation]

Secretary DHHS v Beveridge (2003) 12 Tas R 355
[administrative law - jurisdiction of State Service Commissioner]

Fernando v Medical Complaints Tribunal (2004) 12 Tas R 366
[practice - appeals - power to receive fresh evidence]


Langridge v R (2004) 12 Tas R 470; (2004) 148 A Crim R 126
[criminal law - sentencing - factors to be taken into account]

Patmore v Upton (2004) 13 Tas R 95
[real property - caveats - caveatable interest]

Butler v RP Wilson Pty Ltd (2004) 13 Tas R 255
[practice - summary judgment in third party proceedings]

Allan v Hocking (2005-6) 15 Tas R 234
[practice - discontinuance]

Tasmania v Lee (2005-6) 15 Tas R 213; (2006-7) 16 Tas R 67; (2006) 162 A Crim R 438
[criminal law - complicity - common intention]

In re Tasmanian Aboriginal Centre Inc. (2006-7) 16 Tas R 139
[succession – administration – estate only comprising deceased’s remains]

Fernando v Medical Complaints Tribunal (2006-7) 16 Tas R 237
[administrative law – appeals from administrative authorities]

Jadwan Pty Ltd v Middletons (a firm) (2008-9) 17 Tas R 9
[procedure – rules of court – validity of procedure not complying with rules]

Renkon v Ross Ambrose Group (2008-9) 17 Tas R 23
[corporations – security for costs]

Kaye v Hoffman (No.2) (2008-9) 17 Tas R 176
[limitation of actions – date of discoverability – constructive knowledge]

King v Forest Practices Tribunal (2008-9) 17 Tas R 242
[environmental planning – forestry legislation]


Further details in relation to Peter's current practice can be found at this link.

The information referred to above has been supplied by the barrister concerned. Neither Victorian Bar Inc nor the barrister's clerk have independently verified the accuracy or completeness of the information and neither accepts any responsibility in that regard.
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#26 User is offline   hukildaspida 

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Posted 03 March 2011 - 11:27 PM

Michael WHEELAN

Telephone: +61 3 9225 8475
Secretary: +61 3 9225 7969
Email: mfwheelahan@vicbar.com.au
Mobile: 0412 555 646
Chambers:
Room 2914
Aickin Chambers
200 Queen Street
Melbourne Vic 3000
Admitted to the Legal Profession:
30 Mar 1987
Signed Victorian Bar Roll:
29 Nov 1990
Appointed QC or SC:
30 Nov 2004
Qualifications:
LL.B
Also entitled to practise in:

* Australian Capital Territory
* Federal Court of Australia
* Federal Courts
* High Court of Australia
* New South Wales
* Northern Territory
* Queensland
* South Australia
* Tasmania
* Western Australia

Profile


Michael has extensive experience in all civil litigation in the Supreme and Federal Courts, and appellate work in intermediate Courts of Appeal and in the High Court of Australia.

Michael was called to the Bar in 1990 and took silk in 2004. Michael has enjoyed an extensive superior court and appellate practice, and appears regularly in the Court of Appeal.


Michael is experienced in complex litigation. He is proficient in all relevant electronic aids to litigation, including Ringtail Casebook, Microsoft Excel spreadsheets and Microsoft Access databases.

Michael has appeared in the Supreme Courts of Victoria, New South Wales, South Australia, the Northern Territory and Tasmania, the Federal Court of Australia and the High Court of Australia.

Victorian Bar Committee memberships

* Health and Wellbeing Committee
* Law Aid (Bar/LIV)
* Common Law Bar Association Committee

From 01 Jul 2008, liability limited by a scheme approved under Professional Standards legislation.

The information referred to above has been supplied by the barrister concerned. Neither Victorian Bar Inc nor the barrister's clerk have independently verified the accuracy or completeness of the information and neither accepts any responsibility in that regard.

Areas of Practice

* Administrative Law (Judicial Review)
* Commercial Law
* Defamation, Media & Entertainment
* Industrial Relations
* Insurance
* Professional Negligence
* Property Law
* Residential/Retail Tenancies
* Taxation
* Telecommunications/IT/Computers
* Torts
* Trade Practices
* Transport Accident Commission
* WorkCover/Comcare
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#27 User is offline   hukildaspida 

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Posted 23 June 2011 - 11:41 PM

http://www.hcourt.go...-2011-06-22.pdf

22 June 2011

MAURICE BLACKBURN CASHMAN v FIONA HELEN BROWN

[2011] HCA 22

Ms Brown was a salaried partner employed by Maurice Blackburn Cashman ("MBC") in its legal practice in Melbourne. Ms Brown alleged that between January and November 2003 she had been "systematically undermined, harassed and humiliated" by a fellow employee, despite complaints and requests for intervention made to MBC's managing partner, and that, as a result, she had suffered injury, including psychiatric injury.

In December 2005, Ms Brown made a claim against MBC under the Accident Compensation Act 1985 (Vic) ("the Act") for compensation for non-economic loss. The Act provided for payment of compensation "in respect of an injury resulting in permanent impairment as assessed in accordance with section 91". Section 91 of the Act prescribed how the assessment of the degree of impairment of a worker was to be made. No compensation was payable if the degree of impairment was less than 30 per cent.

The Victorian WorkCover Authority ("the Authority") was required under the Act to "receive and assess and accept or reject claims for compensation" and to pay "compensation to persons entitled to compensation under" the Act. In February 2006 the Authority accepted that Ms Brown had a psychological injury arising out of her employment with MBC.

Ms Brown disputed the determination of her impairment made by the Authority. The Authority was therefore required by the Act to refer to a Medical Panel, established under the Act, questions relating to the degree of impairment resulting from the injury claimed by Ms Brown and whether she had an injury which was a "total loss". In June 2006 a Medical Panel provided its opinion that there was a 30% psychiatric impairment resulting from the accepted psychological injury and that the impairment was permanent. Under the Act this was deemed to be a "serious injury" which entitled Ms Brown to bring proceedings against her employer at common law.

In 2007 Ms Brown commenced proceedings in the County Court of Victoria against MBC claiming damages for personal injuries she alleged she had suffered as a result of MBC's negligence. MBC denied that she had suffered injury, loss and damage. Ms Brown asserted, among other things, that MBC was precluded from "making any assertion whether by pleading, submission or otherwise" and from "leading, eliciting or tendering evidence, whether in chief or in cross-examination or re-examination" that was inconsistent with the Medical Panel's opinion that she had, as at the date of that opinion, a "serious injury" as defined in s 134AB(37)© of the Act, a permanent severe mental disturbance or disorder or a psychological injury arising out of her employment.

The parties asked the trial judge to reserve questions, relating to whether MBC was confined in its defence by the Medical Panel's opinion, for the opinion of the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal answered those questions adversely to MBC. MBC appealed, by special leave, to the High Court of Australia.

In the High Court the central issue was whether, as the Court of Appeal held, MBC was precluded either by the Act or by estoppel from contesting in evidence or argument in the County Court the existence and extent of Ms Brown's injury. The High Court held that MBC was not precluded, either under the Act or as a matter of estoppel, from advancing the relevant contentions. Accordingly, the High Court allowed MBC's appeal.

• This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.
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#28 User is offline   hukildaspida 

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Posted 27 January 2012 - 11:11 PM

This whole article can be viewed through Google online because we found it there.

http://www.theaustra...6-1226202193068

Workers at war

by: Richard Guilliatt
From: The Australian
November 26, 2011 12:00AM



IN a federal government office where she worked as a receptionist, 18 floors above Adelaide's city centre, Charmaine Pickett was barely on speaking terms with her colleagues. Over seven years she had made bullying and harassment claims against seven fellow public servants, complaining their behaviour had left her stressed, humiliated and depressed.

Her supervisors, in turn, labelled her argumentative, defiant and unhelpful. Angry meetings were held, investigators called in, emails exchanged, all to no avail. The office became so toxic that Pickett, then 37, would spend hours at her desk scribbling detailed notes of her hostile encounters with co-workers.
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#29 User is offline   hukildaspida 

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Posted 23 October 2012 - 07:27 PM

http://www.theage.co...0518-1yujd.html

Ex partner loses $2.8m bullying claim against big law firm

Date
May 18, 2012

Steve Butcher

Read more: http://www.theage.co...l#ixzz2A6WwrMr0

A former partner of a major Melbourne law firm has lost a $300,000 damages claim for bullying against her one-time employer.

Solicitor Fiona Brown took maternity leave from Maurice Blackburn Cashman at the end of 2002 and claimed that a "torrent" of bullying from a co-worker started in 2003. She made an additional claim for pecuniary damages of $2.5 million.

Ms Brown
, who was head of the Family Law Department, also claimed that her boss, Michael Brett-Young, did nothing to stop it and that she had suffered psychiatric injuries from workplace stress as a result.

Her lawyer had submitted that her pain and suffering damages would be about $300,000 and the total pecuniary loss of $2,502,499.50.


But Judge John Carmody said in the County Court this morning that he had considered all of the evidence and had decided to dismiss Ms Brown's claim.

In his judgment, he rejected Ms Brown's "proposition and evidence" that Lee Formica — her replacement — and Mr Brett-Young conspired to get her to leave the firm.

Judge Carmody
said that he did not "accept (Ms Brown's) allegations that Ms Formica humiliated, harassed, intimidated, undermined or bullied her".

He also found that Mr Brett-Young acted as a "reasonably prudent employer would act in the circumstance".

"I do not accept in those circumstances that the defendant breached its duty of care to the plaintiff in the course of her employment," he added.

Judge Carmody also ordered her to pay the costs of the action, which are likely to run into six figures.


Read more: http://www.theage.co...l#ixzz2A6X2Zna5


http://cjep.justice....date=&end_date=

Report Selection Criteria

Case ID: CI-07-02722
Filing Start Date:
Filing Ending Date:


Case Description

Case ID: CI-07-02722 - BROWN - V - MAURICE BLACKBURN CASHMAN -JURY-

Filing Date: Thursday , July 19th, 2007
Type: DG - Damages/Comp-General Division
Location: ME - Melbourne
Status: 2NAF - Ntc Appl filed CC Judge Order
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