Clarchet Pty Ltd v Demediuk - [2011] VSC 22

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.
[2](1980) 144 CLR 13.

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…

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 Clarchet Pty Ltd v Demediuk

Details

AGLC: Clarchet Pty Ltd v Demediuk [2011] VSC 22
Case: [2011] VSC 22
Decision Date: 8 February 2011

CaseChat Overview and Summary

Clarchet Pty Ltd sought judicial review of a decision made by a medical panel assessing the degree of impairment for the purposes of workers’ compensation. The matter was heard in the Supreme Court of Victoria. The principal legal issue was whether the medical panel had erred in law in its assessment of the degree of impairment, and if so, whether this warranted the quashing of the panel’s decision.

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