Bluescope Steel Limited v Willmot - [2020] VSC 297

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04138

BLUESCOPE STEEL LIMITED	Plaintiff
v
ROBIN ANTHONY WILLMOT & ORS (according to the schedule)	Defendants

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JUDGE:	Kennedy J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF JUDGMENT:	29 May 2020
CASE MAY BE CITED AS:	Bluescope Steel Limited v Willmot
MEDIUM NEUTRAL CITATION:	[2020] VSC 297

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ADMINISTRATIVE LAW – Judicial Review – Certificate of Medical Panel – Diagnosis of conversion disorder – Whether failure to take into account evidence concerning worker’s credit – Whether reasons inadequate - No error established - Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 302, 304, 313.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gorton QC with Mr R Kumar	Hall and Wilcox
For the First Defendant	Mr M Fleming QC with Mr L Allan	Zaparas Law

HER HONOUR:

In this proceeding, the plaintiff, Bluescope Steel Limited (the employer), applies for review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 of an opinion of a Medical Panel (the Panel) dated 12 July 2019 that Mr Willmot (the first defendant) had a ‘conversion disorder.’

The employer applies for an order in the nature of certiorari quashing the opinion of the Panel (comprising the second to fifth defendants), and an order in the nature of mandamus remitting the referred medical questions to a differently constituted panel.

The employer alleges that the Panel has failed to take into account relevant considerations (ground 1) and/or failed to provide adequate reasons for its opinion (ground 3).[1]
[1]Ground 2 - which alleged that there was jurisdictional error by making findings which were grossly illogical or irrational, and/or unreasonable - was abandoned at the hearing: Transcript of proceeding, 19 May 2020, 64 [1]-[6].

The Panel did not appear at the trial and will abide by the outcome of this proceeding.[2]
[2]See letter to the Court from Pater Rashleigh of DLA Piper, dated 4 March 2020.

Background

Mr Willmot was born on 30 July 1973 (and is currently 46 years of age). He was employed by the employer as a process technician, commencing in February 2014.

On 10 November 2015, Mr Willmot completed a worker’s injury claim form citing injury by way of back trauma involving ‘waist down, legs, feet’, arising from an incident on 5 November 2015 when he slipped and fell to the floor.

Following the incident, he was taken to Frankston Hospital where he remained for four to five days, subsequently being transferred to the Golf Links Hospital where he remained until late November 2015. Scans and examination did not demonstrate an organic cause of symptoms. An impression was noted of functional neurological deficit likely to improve over time. He did not return to work.

The employer accepts that Mr Willmot was involved in a fall on 5 November 2015 (and the claim was initially accepted).

Following discharge from hospital, Mr Willmot was…

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: [2020] VSC 297
Decision Date: 29 May 2020

CaseChat Overview and Summary

Bluescope Steel Limited brought a judicial review application against Willmot, the Registrar of the Industrial Commission of New South Wales, seeking to overturn a certificate issued by a medical panel. The certificate stated that Willmot had accepted a medical diagnosis of conversion disorder, which led to the rejection of Bluescope Steel’s application to have the diagnosis disregarded. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues revolved around whether the medical panel had erred by not considering certain evidence relating to the worker's credibility and whether the reasons provided by Willmot for issuing the certificate were adequate. The court needed to determine if there had been a failure to take into account relevant evidence and whether the reasons given were sufficient and justifiable under the applicable statutory framework.

The court found that the medical panel had indeed considered the evidence regarding the worker's credibility, albeit not in the manner Bluescope Steel had anticipated. The reasons provided by Willmot were deemed adequate as they were consistent with the statutory requirements under the Workplace Injury Rehabilitation and Compensation Act 2013. The court concluded that there was no established error in the issuance of the certificate. Therefore, Bluescope Steel's application for judicial review was dismissed.

The court ordered that Bluescope Steel pay the costs of the proceeding, as determined by the court. This outcome affirmed the validity of the certificate and the process undertaken by the medical panel and Willmot.

Orders