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Dundar v Bas Brothers

Dundar v Bas Brothers

Case [2019] VSC 469 18 July 2019

Judicial Review

Statutory Interpretation

Administrative Law

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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		1^st 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…

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 Brothers

Details

AGLC: Dundar v Bas Brothers [2019] VSC 469
Case: [2019] VSC 469
Decision Date: 18 July 2019

CaseChat Overview and Summary

The applicant, Mr Dundar, sought judicial review of a decision made by the Medical Panel Review, which was tasked with providing an opinion on a medical question. The respondents were Bas Brothers, as the relevant government body, and the Medical Panel Review. The dispute centred on whether the Panel's reasons for its decision were adequate, whether it failed to consider relevant factors, and whether the decision was irrational and/or illogical.

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