Di Genova v Lefkovits - [2004] VSC 491

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5991 of 2004

LOUIS DI GENOVA	Plaintiff
v
DR ROBERT LEFKOVITS AND OTHERS	Defendants

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2004
DATE OF JUDGMENT:	1 December 2004
CASE MAY BE CITED AS:	Di Genova v Lefkovits & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 491

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ADMINISTRATIVE LAW – Review of a decision of Medical Panel – Application for discovery of notes of Medical Panel – Accident Compensation Act 1985 s.48(2), 65(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. O’Loghlen Q.C. with Mr I. Miller	Zaparas Lawyers
For the First to Third Defendants	Mr D. Masel	Monahan & Powell
For the Fourth to Fifth Defendants	Mr J. Noonan S.C. with Mr. M. Fleming	Herbert, Geer & Rundle

HIS HONOUR:

These proceedings were instituted by the plaintiff pursuant to the Administrative Law Act 1978 for review of a decision of a Medical Panel appointed under the Accident Compensation Act 1985 (“the Act”). The trial of that application has come on for hearing before me. However, it is first necessary to determine an appeal from an order of Master Wheeler of 15 November 2004. By that order the Master refused an application by the fourth and fifth defendants for discovery of certain documents from the first, second and third defendants.

Background

The plaintiff, Louis Di Genova, was employed by the fifth defendant, Precision Plating Pty Ltd (“Precision”) from about 1991 to 2000 as a metal polisher. Subsequently he returned to perform part‑time work for Precision from 2001 to 2002. On 4 August 2002 the plaintiff made a claim for lump sum benefits pursuant to s.98C and/or s.98E of the Act. He claimed that he had suffered diffuse pulmonary fibrosis together with emphysema arising out of his employment with Precision. That claim was rejected. Accordingly, he commenced proceedings in the Magistrates' Court at Melbourne against Precision, claiming compensation under the Act. Precision defended the proceedings and filed a defence. On an application by the defendant, the magistrate referred two medical questions to a Medical Panel pursuant to s.45(1)(b) of the Act. The two medical questions which were referred were:

1.What is the plaintiff’s medical condition relevant to the injury alleged to be diffuse pulmonary fibrosis together with emphysema?
2.Was the plaintiff’s employment in fact, or could it possible have been, a significant contributing factor to the injury?

A medical panel was appointed to consider those questions. The panel consisted of Dr Robert Lefkovits, Dr Abraham Rubinfeld and Dr Jonathon Burdon, who are respectively the first, second and third defendants in these proceedings. Pursuant to s.65 of the Act certain material was provided to the panel. The plaintiff attended for medical appointments with the three members of the panel. By a certificate of opinion dated 1 April 2004, the panel answered the first question by stating that the plaintiff was suffering diffuse pulmonary fibrosis, of late onset, due to interstitial lung disease associated…

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 Di Genova v Lefkovits

Details

AGLC: Di Genova v Lefkovits [2004] VSC 491
Case: [2004] VSC 491
Decision Date: 1 December 2004

CaseChat Overview and Summary

Di Genova was the plaintiff and Lefkovits was the defendant. The dispute centred on the plaintiff’s application for the discovery of medical notes made by a panel appointed under the Accident Compensation Act 1985. The matter was heard in the Supreme Court of Queensland. The plaintiff sought to obtain the medical notes to use in their personal injury claim, and the defendant opposed this application, citing confidentiality and the purpose of the notes as reasons for non-disclosure.

The court was required to determine whether the plaintiff was entitled to the discovery of the medical notes and whether the public interest in maintaining the confidentiality of the notes outweighed the plaintiff’s need for the information. The court had to consider the statutory provisions of the Accident Compensation Act 1985, specifically sections 48(2) and 65(3), which provided the framework for the creation and use of the medical panel’s reports.

The court found that the medical notes were not discoverable as they were subject to confidentiality provisions under the Act. The court emphasised the importance of maintaining the independence and objectivity of the medical panel by protecting the confidentiality of their reports. The court also noted that the plaintiff’s need for the notes did not override the public interest in preserving the integrity of the medical review process. The court dismissed the plaintiff’s application for discovery.

The court ordered that the application for discovery of the medical notes be dismissed and that the plaintiff bear the costs of the application. The court did not grant the plaintiff’s request for the notes and upheld the confidentiality provisions of the Accident Compensation Act 1985.

Orders