| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2010 of 1727
| CLARCHET PTY LTD (ACN 006 312 036) | First Plaintiff |
| WORKSAFE VICTORIA | Second Plaintiff |
| V | |
| DR NICHOLAS DEMEDIUK | First Defendant |
| DR STEPHEN HALL | Second Defendant |
| GARRY GROSSBARD | Third Defendant |
| DR ANDREW JAKOBVITS | Fourth Defendant |
| MICHAEL COLLARD | Fifth Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2010 and 1 October 2010 | |
DATE OF JUDGMENT: | 8 February 2011 | |
CASE MAY BE CITED AS: | Clarchet Pty Ltd & Anor v Demediuk & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 22 | |
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ADMINISTRATIVE LAW — Judicial review — Medical panel — Judicial review of the panel’s opinion assessing impairment –Accident Compensation Act 1985 (Vic) Division 3 Part III, ss 68(4), 91(7), 104B - Jurisdictional error – Taking into account considerations panel was bound in law to ignore - Panel asking itself the wrong question - Failing to answer the referred question - Failing to take into account considerations it was bound to have regard to - Adequacy of reasons.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M Fleming | Hall & Wilcox |
| For the Fifth Named Defendant | Mr M O’Loughlen QC with Mr G Wicks | Maurice Blackburn |
HIS HONOUR:
Introduction
The first plaintiff (“Clarchet”) employed the fifth defendant (“Collard”) as a car dealer. On 27 June 2000[1] Collard fell backwards on a driveway at work and suffered injury to his back and neck.
[1]In some documents the incident is said to have occurred on 4 July 2000 rather than 27 June. The parties are in agreement that either date is a reference to the same incident and the same set of injuries.
On 23 February 2010 a medical panel constituted under Division 3, Part III of the Accident Compensation Act 1985 (Vic) (”the Act”) assessed Colllard’s level of impairment as a result of those injuries in connection with his claim for lump sum compensation under the Act. The second plaintiff, Worksafe Victoria (“Worksafe”), is the Authority liable to make any payments of compensation under the Act on behalf of Clarchet. In this proceeding Clarchet and Worksafe seek judicial review of the panel’s opinion assessing that impairment.
The first to fourth defendants are the various medical practitioners who constituted the panel. In accordance with The Queen v The Australian Broadcasting Tribunal & Ors[2] the first to fourth defendants notified the Court, through their solicitors, that they would not appear or be represented at the trial of the proceeding but would submit to such orders as the Court might make.
For reasons given below, the opinion of the medical panel should be quashed.
Background
As a result of his fall at work on 27 June 2000 Collard lodged a claim for weekly payments of compensation under the Act. In connection with that claim[3], on 18 November 2005 a medical panel constituted under Division 3 Part III of the Act was required to…
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- AGLC
- Clarchet Pty Ltd v Demediuk [2011] VSC 22
- Case
- [2011] VSC 22
- Decision Date
CaseChat Overview and Summary
The court examined whether the panel had taken into account irrelevant considerations, asked itself the wrong question, failed to answer the referred question, and neglected to consider factors it was legally bound to take into account. Additionally, the adequacy of the reasons provided by the panel was scrutinized. The court found that the panel had indeed erred in law by taking into account irrelevant considerations and by failing to address the specific question posed to it. The panel’s reasoning was deemed inadequate, as it did not provide sufficient justification for its conclusion.
The Supreme Court concluded that the panel's failure to adhere to the legal framework and provide adequate reasoning amounted to jurisdictional error. Consequently, the decision of the medical panel was quashed, and the matter was remitted for reconsideration in accordance with the law. The court emphasized the necessity for medical panels to strictly follow legislative directives and provide clear, reasoned decisions to avoid similar errors in future assessments.
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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