JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2021
DATE OF JUDGMENT:	24 February 2022
CASE MAY BE CITED AS:	Akbari v Victorian WorkCover Authority & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 84

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Workplace Injury – Application to County Court for leave to commence a damages claim – Workplace Injury Rehabilitation and Compensation Act 2013, s 335 – Referral to Medical Panel – Procedural Fairness – An opportunity to be heard – Construction and application of current work capacity and suitable employment – Adequacy of reasons - Richter v Driscoll (2016) 51 VR 95 – Siddiqui v Kotsios [2021] VSCA 187 –Vegco Pty Ltd v Gibbons [2008] VSC 363 – Barret Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Uren QC with Ms L. Burke	Zaparas Lawyers
For the First Defendants	Ms M. Norton	Russell Kennedy
For the Second to Sixth Defendants	No appearances	DLA Piper Australia

HER HONOUR:

Mr Akbari (the worker) suffered a lower back injury working as a machine operator on 4 March 2015. His Workcover claim for weekly payments and medical expenses was accepted. He made an application to the first defendant[1] for a serious injury certificate in order to commence a claim for damages against his employer. That application was refused and Mr Akbari is seeking leave from the County Court pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). In that proceeding, Judge Bowman referred questions to a medical panel under section 274 of the Act at the request of the defendant. The medical panel (the Panel) provided its Certificate of Opinion (the Opinion) and accompanying reasons on 10 August 2020 (the Reasons).[2] In this proceeding, Mr Akbari seeks an order quashing the Opinion and a further order that the medical questions be answered by a differently constituted medical panel.
[1]I will refer to the Victorian Workcover Authority as the defendant, it being the only defendant that actively participated in the proceeding. The other defendants have indicated to the Court that they would abide the outcome in accordance with R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
[2]The Panel’s Certificate of Opinion and a Reasons pursuant the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is dated 10 August 2020 (‘Panel’s Reasons’) and was included in the court book at pages 75-94 (‘CB’).

The Panel concluded that Mr Akbari had sustained a soft tissue injury to the lower back which had resolved, that persistent lower back pain was ‘secondary to deconditioning, consequent to inactivity’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akbari v Victorian WorkCover Authority

Details

AGLC: Akbari v Victorian WorkCover Authority [2022] VSC 84
Case: [2022] VSC 84
Decision Date: 24 February 2022

CaseChat Overview and Summary

The applicant, Akbari, sought judicial review of a decision by the respondent, Victorian WorkCover Authority, regarding the referral of his case to a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013. The applicant argued that the decision was flawed due to procedural unfairness, specifically, he was not given an opportunity to be heard. The matter was heard in the County Court of Victoria.

The central legal issues were whether the decision to refer the applicant’s case to a medical panel was procedurally fair, particularly whether Akbari was afforded a reasonable opportunity to be heard, and whether the reasons provided by the Authority were adequate. The Court considered whether the Authority’s decision was open to review on the basis of procedural unfairness and the adequacy of the reasons provided.

The Court examined the statutory framework and previous case law, including Richter v Driscoll, Siddiqui v Kotsios, Vegco Pty Ltd v Gibbons, and Barret Burston Malting Co Pty Ltd v Kotzman & Ors, to determine the appropriate standard of procedural fairness. It found that the statutory provisions did not mandate a hearing but that procedural fairness required a reasonable opportunity to be heard. The Court concluded that the applicant had not been denied a fair opportunity to respond to the issues raised by the referral to the medical panel. Furthermore, the reasons provided by the Authority were considered sufficient and complied with the requirements of procedural fairness. Consequently, the application for judicial review was dismissed.

The Court made orders dismissing Akbari's application for judicial review and costs were awarded to the Authority.

Orders