| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00500
| ATA DUNDAR | Plaintiff |
| v | |
| YUCEL BAS (trading as BAS BROTHERS MARBLE AND GRANITE) | First Defendant |
| and | |
| DR MATTHEW TAGKALIDIS | Second Defendant |
| and | |
| DR DAVID KOTZMAN | Third Defendant |
| and | |
| DR MARIE FELETAR | Fourth Defendant |
| and | |
| MR JOHN BOURKE | Fifth Defendant |
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JUDGE: | MOORE J | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 8 October 2018 | ||
DATE OF JUDGMENT: | 18 July 2019 | ||
CASE MAY BE CITED AS: | Dundar v Bas Brothers | ||
MEDIUM NEUTRAL CITATION: | [2019] VSC 469 | 1st Revision: 22 July 2019, amending paragraph 4 | |
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JUDICIAL REVIEW — Accident compensation — Medical Panel Review — Opinion on medical questions — Whether Panel’s reasons were adequate — Whether Panel failed to take into account relevant considerations — Whether Panel’s decision was irrational and/or illogical — Richter v Driscoll (2016) 51 VR 95 — Accident Compensation Act 1985 s 93C(1)(a) — Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 274, 302, and 313(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P H Solomon QC with Mr L Allen | Zaparas Lawyers |
| For the First Defendant | Mr J P Gorton QC with Ms F C Spencer | Thomson Geer |
HIS HONOUR:
Introduction
The plaintiff, Mr Ata Dundar, commenced employment with the first defendant, Yucel Bas (trading as Bas Brothers Marble and Granite), in March 2009. The first defendant produced and installed marble and granite benchtops. The plaintiff worked for the first defendant as an installer, labourer and driver.
On 16 June 2014, in the course of his employment with the first defendant, the plaintiff fell off a truck and suffered an injury described as ‘broken arm, left arm’. He lodged a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA) in relation to the injury, which claim was accepted.
On 14 July 2016, the first defendant’s WorkSafe agent notified the plaintiff that it had determined that, from 10 December 2016, he was no longer entitled to weekly payments on the grounds that, at that time, he would have received 130 weeks of weekly payments and had a current work capacity, or if he had no current work capacity, then it was not likely to continue indefinitely.
The plaintiff disputed this decision and on 1 June 2017 the Magistrates’ Court of Victoria referred four questions pursuant to s 274 of the WIRCA to a Medical Panel for an opinion pursuant to s 302 of the WIRCA. The Medical Panel (the Panel) was constituted by a psychiatrist, a rheumatologist, an orthopaedic surgeon and an occupational physician – being the second, third, fourth and fifth defendants to this proceeding.
On 11 December 2017, the Panel provided its opinion on the questions referred to it. Relevantly, the Panel concluded that, from 10 December 2016, the plaintiff had a current work capacity.
The plaintiff seeks judicial review of this opinion of the Panel. He seeks orders quashing the Panel’s opinion…
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- AGLC
- Dundar v Bas Brothers [2019] VSC 469
- Case
- [2019] VSC 469
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Panel's reasons for its decision were sufficient under the applicable legislative provisions and whether the Panel had failed to take into account relevant considerations. Additionally, the court examined whether the decision was irrational or illogical, in light of the relevant statutory framework.
The court examined the Panel's reasons and found that they were sufficient in that they provided a clear rationale for the decision. The court also found that the Panel had not failed to consider relevant factors, as it had taken into account all the necessary evidence and information. Finally, the court concluded that the decision was neither irrational nor illogical, as it was based on a reasonable interpretation of the evidence. The court referred to Richter v Driscoll to support its decision and considered the relevant provisions of the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013.
Ultimately, the court dismissed the application for judicial review, finding that the Panel's decision was not flawed in any way. The applicant's application for leave to appeal was also dismissed.
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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