Bakar v Gruma Oceania Pty Ltd - [2014] VSC 206

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST

No. 4388 of 2013

SEHRIBAN BAKAR	Plaintiff
v
GRUMA OCEANIA PTY LTD & ORS	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2014
DATE OF JUDGMENT:	9 May 2014
CASE MAY BE CITED AS:	Bakar v Gruma Oceania Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 206

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ADMINISTRATIVE LAW - Judicial review – Medical Panel determination of medical questions under s 56(6) Accident Compensation Act 1985 - Application for orders in nature of certiorari and mandamus - Whether factual finding open on evidence - Whether Panel gave adequate reasons.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K Hanscombe SC with Ms K Bowshell	Shine Lawyers
For the First Defendant	Mr M Fleming SC with Ms F Spencer	Minter Ellison

HER HONOUR:

The application

The second to fifth defendants were members of a Medical Panel (‘the Panel’). They examined the plaintiff on 13 May 2013 for the purpose of providing answers to medical questions referred to them as the Panel under s 56(6) of the Accident Compensation Act 1985 (‘the Act’).

The Panel gave its opinion in answer to the two questions (‘the decision’) by a certificate dated 24 June 2013. It also gave written reasons for the decision, dated the same date (‘the reasons’).

The plaintiff says that the decision should be quashed. She argues that the Panel made an error of law on the face of the record or a jurisdictional error by making a factual finding that was not open to it on the evidence. She also maintains that it made another error of law by failing to give adequate reasons. She seeks not only an order in the nature of certiorari quashing the decision but also one in the nature of mandamus, referring the medical questions to a differently constituted panel for reconsideration in accordance with law.

The first defendant, which was the plaintiff’s employer, appears to dispute her claims.

The second defendant, the Presiding Member of the Panel, Dr Susanne Homolka, is an occupational physician, the third defendant, Dr Jennifer Harmer, is a rheumatologist, the fourth defendant, Mr Paul Kierce, is an orthopaedic surgeon and Associate Professor Peter Doherty, the fifth defendant, is a psychiatrist. The defendant members of the Panel have adopted the customary course of not participating in the hearing and agreeing to abide by the outcome.[1]

[1]This approach was sanctioned by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

Material before the Panel

The Panel stated that it formed its opinion by reference to the documents and information referred to in the enclosures to the reasons, the history given by the plaintiff and its examination findings on 13 May 2013. The Panel noted that the plaintiff was examined by the members with the assistance of a Turkish language interpreter.

The material which the Panel stated that it had considered included:

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.

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Details

Case: [2014] VSC 206
Decision Date: 9 May 2014

CaseChat Overview and Summary

In the case of Bakar v Gruma Oceania Pty Ltd, the plaintiff sought judicial review of a decision made by a Medical Panel under section 56(6) of the Accident Compensation Act 1985. The plaintiff contested the Panel's determination on medical issues, specifically whether the Panel's factual finding was open on the evidence provided and whether the Panel had given adequate reasons for its decision. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the Panel's determination was lawful and whether it had provided sufficient reasons for its decision. The plaintiff argued that the Panel had erred in its factual findings, which were not supported by the evidence, and that the reasons provided were insufficient. The defendant contended that the Panel's decision was well within its authority and that the reasons given were adequate.

The court considered the scope of judicial review in relation to Medical Panel determinations and the standard of review applicable to factual findings. It was established that the court could intervene if the Panel had made an error of law, but the court would generally defer to the Panel's expertise on factual matters. The court found that the Panel's determination was open on the evidence and that the reasons provided were adequate. The court emphasised the importance of providing reasons for decisions but held that the Panel's determination was not so deficient as to warrant judicial intervention.

The court dismissed the plaintiff's application for orders in the nature of certiorari and mandamus. The Panel's determination was upheld, and the plaintiff's application was denied. The court found that the Panel had acted within its authority and provided sufficient reasons for its decision, thus the application for judicial review was unsuccessful.

Orders