| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01647
| VILMA DEL BEN-ATHANASAIDIS | Plaintiff |
| v | |
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY AND ORS (according to the Schedule attached) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2019 |
DATE OF JUDGMENT: | 18 December 2019 |
CASE MAY BE CITED AS: | Del Ben-Athanasaidis v RMIT & ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 674 |
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JUDICIAL REVIEW AND APPEALS – Application by a worker to quash the opinion of a medical panel concerning the medical condition of the worker – Adequacy of reasons – Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, referred to – Whether the medical panel’s reasons showed the path of reasoning to its conclusion that the worker’s symptoms were solely related to her previously asymptomatic constitutional condition – Whether the medical panel’s conclusion open to it on the evidence – Wilson v Liquorland Australia Pty Ltd [2014] VSC 545, referred to – Whether factual error amounts to jurisdictional error – Chang v Neill [2019] VSCA 151, referred to – Reasons inadequate to enable the Court to determine whether the medical panel had fulfilled its statutory function – Remedy of certiorari granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Harper | Arnold Thomas & Becker |
| For the Defendants | Mr M Fleming QC | Minter Ellison |
HER HONOUR:
Introduction
This is an application for judicial review of an opinion of a medical panel (‘Panel’) concerning the medical condition and work capacity of the plaintiff, Ms Vilma Del Ben‑Athanasaidis (‘worker’). The finding of the Panel that the worker was not suffering from a work related injury which affected her capacity for work means that the worker is not entitled to weekly payments of compensation and the reimbursement of medical and like expenses pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’).
The worker was born on 23 September 1962. From 1981 until she was made redundant in October 2016, she worked as a finance officer with the first defendant (‘employer’).[1] Her duties as a finance officer involved general office administrative work, including invoicing, receipting, photocopying and filing, using a computer with a mouse, and handling heavy paper files and archive folders. Prior to 2011, she worked full time, dropping to two days a week after her return from maternity leave in 2011.[2] On 25 May 2016 the worker completed a Worker’s Injury claim form, referring to ‘tennis elbow – inflammation of the tendons of the elbow (epicondylitis)’, having first noticed symptoms in February 2016. She attributed her symptoms of right elbow pain to her ‘constant use of mouse at work’. Her claim for compensation was accepted by the employer. The worker was due to return to full time work in July 2016, but only returned for three days per week. At the time she was made redundant in October 2016, she was working two days per week.
[1]The remaining defendants…
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- AGLC
- Del Ben-Athanasaidis v RMIT [2019] VSC 674
- Case
- [2019] VSC 674
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the reasons provided by the medical panel were sufficient to demonstrate the path of reasoning to their conclusion, whether the conclusion reached by the panel was open to them on the evidence presented, and whether any factual errors amounted to a jurisdictional error. The court referred to several precedent cases, including Morrison v Melbourne Pathology Pty Ltd, Wilson v Liquorland Australia Pty Ltd, and Chang v Neill, to aid in its analysis of these issues.
The court found that the reasons provided by the medical panel were inadequate to enable the court to determine whether the panel had fulfilled its statutory function. The reasons did not clearly show the path of reasoning to their conclusion, and there were factual errors that amounted to a jurisdictional error. Consequently, the court granted the remedy of certiorari, quashing the decision of the medical panel. This allowed the matter to be reconsidered by a different panel, ensuring a fair and accurate assessment of the applicant's medical condition.
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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