Raeburn v Tenix Defence Systems Pty Ltd

27 June 2007

The Hon Timothy Holding
Minister for Finance
Level 5, 1 Macarthur Street
MELBOURNE VIC 3002
Email: timothy.holding@parliament.vic.gov.au

Dear Minister

The Law Institute of Victoria (LIV) writes to you in support of a proposal from
the Common Law Bar Association (CLBA) made by letter dated 31 May 2007 to
amend section 134AB of theAccident Compensation Act 1985 (the Act).

This follows the recent Court of Appeal decision of Raeburn v Tenix Defence
Systems Pty Ltd [2007] VSCA 90 (Raeburn’s case). The LIV has also
received a copy of the letter dated 14 May 2007 sent to you from Ms Patsy
Toop, solicitor for MrRaeburn, calling for similar legislative amendment.

For the reasons expressed in the above correspondence, the LIV believes that
the amendment to section 134AB proposed by the CLBA should be adopted.

The LIV believes that the proposedamendment ought to be legislated for the
following reasons:

· While there are other unfair provisions in the Act, the LIV considers that,
from a reading of section 134AB as a whole, subsection 134AB (28) has "slipped
through". Other provisions sometimes criticised as unfair may have been included
by design in order to contain the costsof the scheme whereas the outcome of this
provision appears to be accidental. In the LIV’sview, the result of Raeburn’s case
seems to have no logical foundation.

· Failure to legislate the amendment as proposed will put further pressure on an
already burdened court system as plaintiffs’ potentially prejudiced by the outcome
of Raeburn’s case make applications for expedited trials. In turn, this has implications
for court resources and funding.

· It is also appropriate for the proposed legislative amendment to section 134AB
to be retrospective in effect to apply to Mr Raeburn as the current situation is
manifestly unfair to him. The LIV’s understanding is that there are very few cases
similar to Mr Raeburn’s, meaning that the proposed amendment will not create
any significant costs implications for the Victorian WorkCover Authority but,
at the same time, will level the playing field, to some extent, for all cases not yet
heard.

The LIV urges that you address the current situation under the Act, which had
led to the outcome of Raeburn’s case and amend section 134AB (28) to be
consistent with the legislative proposal suggested by the CLBA.

Yours sincerely
Geoffrey Provis
President
Law Institute of Victoria


Elissa Campbell
ecampbell@liv.asn.au
(03) 9607 9386