Chang v Neill

Case [2019] VSCA 151


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0111

YING KWAN CHANG Applicant
v
DR DIANE NEILL First Respondent
and
DR STEVEN ADLARD Second Respondent
and
DOWARD INTERNATIONAL PTY LTD Third Respondent

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JUDGES: MAXWELL ACJ, BEACH and KYROU JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 10 April 2019
DATE OF JUDGMENT: 27 June 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 151
JUDGMENT APPEALED FROM:

[2018] VSC 403 (Daly AsJ)

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JUDICIAL REVIEW – Jurisdictional error – Error of fact – Medical panel – Workplace psychological injury – Whether panel erred in concluding that applicant had capacity for pre-injury employment – Whether panel erred in concluding that applicant had applied for full-time work shortly after redundancy – Whether any such error jurisdictional – Principles to be applied – Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 followed, Karabinis v Bendrups [2017] VSC 648 explained.

JUDICIAL REVIEW – Procedural fairness – Duty to inquire – Medical panel – Whether panel must make inquiries as to factual matters – Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 considered – Workplace Injury Rehabilitation and Compensation Act 2013 ss 302, 303, 306, 307, 310, 311, 312, 313.

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APPEARANCES:

Counsel

Solicitors

For the Applicant Ms M Schilling with
Ms C Moore
Victorian Bar Duty Barristers’ Scheme

For the First and Second Respondents

No appearance

For the Third Respondent Mr M F Fleming QC with Ms F C Spencer Wisewould Mahony

MAXWELL ACJ
BEACH JA
KYROU JA:

Introduction and summary

  1. The applicant, Ying Chang, seeks leave to appeal against an order of an associate judge in the Trial Division dismissing an application to set aside an opinion of a medical panel comprising the first and second respondents, Dr Diane Neill and Dr Steven Adlard (‘Panel’).[1]  Both Panel members are psychiatrists.

    [1]Chang v Neill [2018] VSC 403 (‘Associate judge’s reasons’).

  1. The Panel’s opinion dealt with two medical questions that were referred to it by a conciliation officer under s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Act’). The referral was made in the context of the applicant’s claim for weekly payments under the Act for a psychological injury arising from bullying by two co-workers in the course of her employment with the third respondent, Doward International Pty Ltd (‘Doward’). Doward was the only respondent that took part in the proceedings before the Trial Division and this Court.

  1. The medical questions and the answers of the Panel in its opinion dated 2 May 2017 were as follows:

Question 1 What is the nature of the [applicant’s] medical condition (including any sequelae) relevant to the claimed injury?

Answer:In the Panel’s opinion, the [applicant] is suffering from an adjustment disorder with depression and anxious mood, which is partially resolved.

Question 2Did or does the [applicant] have an incapacity for work?  If so, what is the extent to which the [applicant’s] incapacity from work:

(a)       resulted from or was materially contributed to by;

(b)results from or is materially contributed…

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Chang v Neill [2019] VSCA 151
Case
[2019] VSCA 151
Decision Date

CaseChat Overview and Summary

The case of Chang v Neill involved a challenge to a decision made by a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013. The applicant, Chang, sought to overturn a decision by the panel which had determined that he was fit to return to his pre-injury employment and had not made a genuine effort to find full-time work following his redundancy. The matter was heard in the Supreme Court of Victoria, with the primary focus on whether the panel had erred in its conclusions and whether procedural fairness was upheld.

The legal issues at the heart of the case centred on whether the medical panel had made jurisdictional errors in its determinations regarding the applicant's capacity for pre-injury employment and his efforts to find work post-redundancy. Additionally, the court had to consider whether any errors made by the panel were of a jurisdictional nature and whether the panel had a duty to inquire into certain factual matters. These issues were assessed against statutory provisions and relevant case law, including Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

The court meticulously examined the panel's reasoning and the evidence presented, applying the principles set out in the cited cases. It found that while the panel may have made errors in fact, these did not rise to the level of jurisdictional errors that would invalidate the panel's decision. The court held that the panel was not required to make inquiries into every factual matter and that procedural fairness was maintained. Consequently, the applicant's challenge to the panel's decision was dismissed.

The final orders of the court were that the application for judicial review was dismissed, with no orders as to costs. The decision underscored the importance of distinguishing between jurisdictional and non-jurisdictional errors in administrative law, as well as the scope of procedural fairness obligations for decision-makers.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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