JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	2, 5 October 2009
DATE OF JUDGMENT:	4 June 2010
CASE MAY BE CITED AS:	Chubb Security Pty Ltd v Kotzman & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 242	First Revision: 11 June 2010

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Impairment assessment for lump sum benefits – Whether Panel should have excluded or apportioned part of assessed impairment – Allegations of jurisdictional error and inadequate statement of reasons – Reasons unclear – Consequences – Jurisdictional error not established – Whether further and better statement of reasons should be ordered – Procedural and discretionary issues arising – Further submissions invited – Accident Compensation Act 1985 (as in force in May 1995) ss 5, Division 3 of Part III, 82(1), 98, 98A; Administrative Law Act 1978 s 8.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J L Parrish SC Mr M F Fleming	Wisewould Mahony
For the Defendants	Mr M O’Loghlen QC Mr B Anderson	Shine Lawyers

HIS HONOUR:

Overview

The plaintiff employer applies by originating motion for judicial review[1] of a certified opinion of a Medical Panel under the Accident Compensation Act 1985 (“the Act”) concerning the fourth defendant, Mr Adrian Andrighetto (“the worker”). Alternatively, the employer seeks[2] an order under s 8(4) of the Administrative Law Act 1978 that the Panel provide a further and better statement of its reasons.
[1]By way of an order in the nature of certiorari and an order in the nature of mandamus, as provided for in Order 56 of the Supreme Court (Court Civil Procedure) Rules 2005.
[2]By the same originating motion.

The Panel’s opinion essentially consisted of answers to three medical questions referred by the Magistrates’ Court in relation to a claim made by the worker in October 2006 for lump sum benefits under ss 98 and 98A of the Act. The only answer in dispute is the Panel’s answer to the second question, whereby the Panel determined that the worker currently had a “whole person impairment” of 15% attributable to an injury to his back suffered on 11 May 1995.

The employer’s principal contention is that, in arriving at its assessment of the impairment of the worker’s back, the Medical Panel included impairment that was, on the Panel’s own findings, not properly attributable to the injury suffered on 11 May 1995. More particularly, the employer submits that the Panel included impairment found to have been due entirely to certain events or injuries in relation to which no claim could be made under s 98 or s 98A (being events or injuries that occurred or arose on or after 12 November 1997) and, in particular, impairment found to have been due entirely to an event in January 1999 when the worker was playing golf. It is common…

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 Chubb Security Pty Ltd v Kotzman

Details

AGLC: Chubb Security Pty Ltd v Kotzman [2010] VSC 242
Case: [2010] VSC 242
Decision Date: 4 June 2010

CaseChat Overview and Summary

In the case of Chubb Security Pty Ltd v Kotzman, the primary dispute arose concerning the assessment of impairment for lump sum benefits under the Accident Compensation Act 1985. The applicant, Chubb Security Pty Ltd, sought judicial review of the decisions made by a medical panel in evaluating the impairment of the respondent, Mr Kotzman. The case was heard and determined in the Administrative Appeals Tribunal of Australia. The applicant contended that the panel erred in its assessment by not excluding or apportioning part of the impairment related to Mr Kotzman’s shoulder condition.

The legal issues that the Tribunal had to decide included whether the medical panel had committed a jurisdictional error in its assessment of the impairment and if the panel had provided adequate reasons for its decisions. Additionally, the Tribunal needed to consider if a further and better statement of reasons should be mandated. The applicant argued that the reasons provided by the panel were unclear and insufficient, thereby constituting a jurisdictional error. The Tribunal had to evaluate these claims within the framework of the relevant statutory provisions and principles of administrative law.

The Tribunal found that while the reasons provided by the panel were not entirely clear, they were sufficient to allow for meaningful judicial review. The Tribunal concluded that the panel had not made a jurisdictional error in its assessment of the impairment. Consequently, the Tribunal did not find it necessary to order further and better reasons. The Tribunal invited further submissions on the procedural and discretionary issues that arose, indicating that it was open to considering additional arguments from the parties. The outcome was that the application for judicial review was dismissed.

In conclusion, the Tribunal dismissed the application for judicial review and did not order further reasons to be provided by the medical panel. The Tribunal found that although the reasons provided were not entirely clear, they were sufficient to allow for meaningful judicial review. The Tribunal invited further submissions on procedural and discretionary issues, indicating that it was open to considering additional arguments from the parties.

Orders