JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2023
DATE OF JUDGMENT:	22 February 2023
CASE MAY BE CITED AS:	Barker v Eureka Lodge Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 63

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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel that plaintiff has ‘current work capacity’ for ‘suitable employment’ as a retail nursery hand – Whether opinion open, ‘illogical’, ‘irrational’ or whether panel made jurisdictional error or failed to take into account relevant considerations – Consideration of panel’s reasons – No error – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Chang v Neill (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, Swidryk Investments Pty Ltd & Anor v El-Najjar & Ors [2023] VSCA 11 – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	E Makowski	Arnold Thomas & Becker Lawyers
For the First Defendant	FC Spencer	Lander & Rogers
For the Second to Seventh Defendants	No appearance	Victorian Government Solicitor’s Office

HIS HONOUR:

A. Introduction

The plaintiff was born on 3 August 1984 and grew up in Euroa in central Victoria. He lives in a house 14-15 kilometres out of Euroa that he shares with his ex-partner.

The plaintiff attended Euroa Secondary College until the age of 14, at which time he left school after experiencing learning difficulties.

In 1999, the plaintiff commenced working as a farmhand/maintenance worker at a horse training centre in Euroa known as ‘Rockmount Farm’ (‘farm’). The farm was an approximately 200-acre equine stud and pre-training agistment facility which raised and cared for about 80 horses at any given time.

The plaintiff commenced employment with the first defendant in about February 2006, when ownership of the farm changed hands and was transferred to the first defendant. The plaintiff continued working as a farm/maintenance worker at the farm on a full-time basis. The plaintiff generally worked alone for about 40 hours per week.

The plaintiff’s role involved a variety of duties including maintaining the paddocks by spraying, mowing and whipper snipping the grass, maintaining the pool that was used by the horses, erecting and repairing fences, unloading feed deliveries, operating farm machinery and hand-held power tools, and cutting and collecting firewood.

On 28 July 2015, whilst performing his employment duties and attempting to cut a fallen tree trunk using a chainsaw, the plaintiff was injured when the chainsaw ‘kicked back’ and struck him in the face, in turn causing deep lacerations across his right cheek and nose and rapid hyperextension of the neck (‘incident’).

The plaintiff was immediately taken to Seymour Hospital and subsequently transferred to the Northern Hospital where he underwent plastic surgery. The plaintiff was discharged four days later.

Shortly after the incident, the…

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 Barker v Eureka Lodge Pty Ltd

Details

AGLC: Barker v Eureka Lodge Pty Ltd [2023] VSC 63
Case: [2023] VSC 63
Decision Date: 22 February 2023

CaseChat Overview and Summary

In Barker v Eureka Lodge Pty Ltd, the plaintiff sought judicial review of a decision by the defendant, which was a medical panel, that the plaintiff had 'current work capacity' for 'suitable employment' as a retail nursery hand. The plaintiff challenged the decision on the grounds that it was open, illogical, irrational, or that the panel made a jurisdictional error or failed to take into account relevant considerations. The case was heard and determined in the Supreme Court of Victoria.

The central legal issues were whether the panel's opinion was open to challenge and whether the panel had made a jurisdictional error or failed to consider relevant factors. The court considered the panel’s reasons and whether these reasons were rational and lawful, in accordance with the principles set out in Wingfoot Australia Partners Pty Ltd v Kocak, Chang v Neill, Sidiqi v Kotsios, and Swidryk Investments Pty Ltd & Anor v El-Najjar & Ors.

After examining the panel’s reasons and the evidence before it, the court found that the panel’s decision was rational and lawful. The court concluded that the panel had properly considered the evidence and provided sufficient reasons for its decision, and that the plaintiff's challenge did not succeed. The proceeding was dismissed.

No specific orders were made beyond dismissing the proceeding.

Orders