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Dundar v Bas

Dundar v Bas

Case [2019] VSCA 315 20 December 2019

Judicial Review

Adequacy of Reasons

Statutory Interpretation

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0080

ATA DUNDAR	Applicant
v
YUCEL BAS (trading as BAS BROTHERS MARBLE AND GRANITE) and ORS (according to the attached Schedule)	Respondents

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JUDGES:	BEACH, McLEISH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2019
DATE OF JUDGMENT:	20 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 315
JUDGMENT APPEALED FROM:	[2019] VSC 469 (Moore J)

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ACCIDENT COMPENSATION – Medical Panel – Opinion on medical questions – Statement of reasons – Judicial review – Adequacy of reasons – Workplace Injury Rehabilitation and Compensation Act 2013, ss 302, 313 – Whether adequate reasons that position was ‘suitable work’ – Whether Panel obligated to expressly reconcile duties of position with applicant’s skills, employment history and English language capability – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, applied – Richter v Driscoll (2016) 51 VR 95, Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, considered – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M A Schilling with Mr L B R Allan	Zaparas Lawyers
For the First Respondent	Mr J P Gorton QC with Ms F C Spencer	Thomson Geer
For the Second, Third, Fourth and Fifth Respondents	No appearance

BEACH JA:
McLEISH JA:

ASHLEY JA:

In connection with admittedly compensable injury sustained by Mr Ata Dundar (‘the applicant’) on 16 June 2014 in his employment by Mr Yucel Bas (‘the first respondent’),[1] on 5 June 2017 a magistrate referred certain questions to a Medical Panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 for an opinion pursuant to s 302 of that Act.[2] The Panel provided its opinion on the referred questions in a Certificate of Opinion dated 11 December 2017. Accompanying the Certificate were the Panel’s written reasons. In substance, the Panel concluded that the applicant was still suffering from compensable injury — mild persistent symptoms involving his neck and lower back, mild persisting left arm dysfunction, and an adjustment disorder with depressed mood. But it was also of opinion that, from 10 December 2016 up to and including the date of its examination,[3] the applicant ‘had and still has, a current work capacity’. The Panel’s conclusion that the applicant had a current work capacity meant that weekly payments, which had commenced in June 2014, had lawfully been terminated on 10 December 2016.
[1]Trading as Bas Brothers Marble and Granite.
[2]The Panel members are the second, third, fourth and fifth respondents, who filed a notice of intention not to respond to, or contest, the application for leave to appeal to this Court.
[3]In fact, there were a number of examinations.

The applicant brought a proceeding by originating motion which sought to quash the Panel’s opinion, and to have the questions referred for consideration by a differently constituted panel. There were three grounds of review. For present purposes it is only necessary to set out the first two of them…

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 Dundar v Bas

Details

AGLC: Dundar v Bas [2019] VSCA 315
Case: [2019] VSCA 315
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of Dundar v Bas, the applicant sought judicial review of a decision made by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013. The Panel had assessed whether a particular position was suitable for the applicant, who had suffered a workplace injury. The applicant contested the adequacy of the reasons provided by the Panel for its decision, which was central to the proceedings before the Supreme Court of Victoria.

The legal issues before the court included whether the Panel was required to expressly reconcile the duties of the position with the applicant’s skills, employment history, and English language capability, and if the reasons provided were sufficient to justify the conclusion that the position was suitable. The applicant relied on Wingfoot Australia Partners Pty Ltd v Kocak and other authorities to argue that the Panel’s decision lacked adequate reasoning. The court examined the statutory framework, particularly sections 302 and 313, and assessed the sufficiency of the Panel's reasoning in light of the case law.

The court held that the Panel was not obligated to expressly reconcile the duties of the position with the applicant’s attributes in its reasons, provided the reasons were otherwise adequate. It found that the Panel's reasons, while not perfect, were sufficient to support the conclusion that the position was suitable. The court also noted that the Panel was not required to explicitly address every point raised by the applicant, as long as the reasons provided were rational and adequate. The court ultimately dismissed the application for judicial review.

No orders for costs were made in relation to the application for judicial review.

Orders