Country Care Pty Ltd v Murphy - [2017] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00685

COUNTRY CARE PTY LTD	Plaintiff
v
DR DAVID MURPHY	First Defendant
DR RANI AXTENS	Second Defendant
MR STEPHEN LEITL	Third Defendant
DR JOHN G KING	Fourth Defendant
KERRYN HAEUSLER	Fifth Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2017
DATE OF JUDGMENT:	31 May 2017
CASE MAY BE CITED AS:	Country Care Pty Ltd v Murphy
MEDIUM NEUTRAL CITATION:	[2017] VSC 309

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JUDICIAL REVIEW — Medical Panel — Procedural fairness — Failure to provide employer with opportunity to address finding —Employer and worker agree that procedural fairness denied — Orders in the nature of certiorari and mandamus granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Kumar	Thomson Geer
For the 1^st-4^th Defendants	Mr B Butler	Moray & Agnew
For the 5^th Defendant	Mr D Oldfield	Footner McInnes Wren

HIS HONOUR:

The plaintiff, Country Care Pty Ltd, the employer, which had previously employed the fifth defendant, Kerryn Haeusler, sought judicial review to quash the Medical Panel’s opinion certified in writing dated 29 December 2016. The Panel’s certified opinion was accompanied by written reasons for opinion dated the same day. The first to fourth defendants comprised the Medical Panel convened and constituted pursuant to ss 305 and 537 of the Workplace Injury Rehabilitation and Compensation Act 2013.

This judgment repeats many of the matters contained in the plaintiff’s and fifth defendant’s joint memorandum to the Court dated 18 May 2017.

In that memorandum, the factual background to the proceeding is described as follows:

On or about 22 March 2016, [Ms Haeusler] completed a Worker’s Injury Claim Form citing injury as follows: ‘Lower back pain, not resolving. Bi-lateral i/c pain upon bending, lifting and lifting legs”. It was alleged that injury had been sustained on 27 February 2016 when [Ms Haeusler], a personal/disability support worker, was transferring a client to bed. The claim was initially accepted.

The issues in the judicial review application were:

(a) Whether the Panel denied the employer procedural fairness by failing to afford it a fair opportunity to address the Panel in respect of:

(i) its diagnosis of the worker’s psychiatric condition;

(ii) its conclusion that the worker’s diagnosed psychiatric condition was causally related to a compensable physical injury;

(b) Whether the Panel failed to give a proper and adequate statement of reasons for its opinion.

The employer and worker agreed that the Panel’s opinion is vitiated on the first of the grounds alleged by the employer, that is denial of procedural fairness. However, the worker disputes that the opinion is vitiated with respect to the second alleged ground, that is inadequacy of reasons.

In judicial review proceedings, the Court cannot make consent orders setting aside an Medical Panel opinion unless satisfied that the consent orders are appropriate. For the reasons set out below, I am satisfied that the orders proposed are…

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: [2017] VSC 309
Decision Date: 31 May 2017

CaseChat Overview and Summary

In the recent decision of Country Care Pty Ltd v Murphy, the Federal Court of Australia addressed a dispute concerning the procedural fairness afforded to an employer during a medical assessment of an employee. The respondent, Murphy, a former employee of the appellant, Country Care Pty Ltd, sought judicial review of a decision made by a medical panel that assessed his fitness for duty. Murphy alleged that the decision was flawed due to a failure of procedural fairness. The dispute centred on whether the employer was provided with an adequate opportunity to address a finding made by the panel that Murphy was not fit to return to work.

The primary legal issue before the court was whether procedural fairness was observed in the process leading to the decision that Murphy was unfit to return to work. Specifically, the court examined whether Country Care Pty Ltd was given a proper opportunity to address the finding regarding Murphy's fitness for duty. Both parties acknowledged that procedural fairness was not observed in the process, as Country Care was not given an opportunity to address the finding before it was made final.

The court found that the procedural unfairness stemmed from the failure to provide Country Care with an opportunity to respond to the finding regarding Murphy's fitness for duty. The court held that this failure constituted a significant procedural error, as it deprived Country Care of the chance to present any mitigating evidence or arguments that could have influenced the panel's decision. Given the agreement between both parties on this point, the court concluded that the decision was flawed due to the denial of procedural fairness. Consequently, the court granted orders in the nature of certiorari to quash the decision of the medical panel and mandamus to compel the panel to conduct a proper review of Murphy's fitness for duty, ensuring that procedural fairness was observed.

Orders