JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2022
DATE OF JUDGMENT:	19 December 2022
CASE MAY BE CITED AS:	Fard v Shields & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 809

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Whether Medical Panel committed a jurisdictional error – Whether medical panel failed to have regard to relevant matters – Whether medical panel failed to provide adequate reasons – Minister forAboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Gruma Oceania v Bakar [2014] VSCA 252 – Richter v Driscoll (2016) 51 VR 95 – Bainbridge v Westside Meats Pty Ltd [2021] VSC 320 – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C Hangay with S Fernando	Zaparas Lawyers
For the First – Fourth Defendants	No appearance	DLA Piper Australia
For the Fifth Defendant	R Kaye SC with A Macaskill	Hall & Wilcox

HER HONOUR:

Background

This is a judicial review of a medical panel decision in respect of a worker’s capacity for suitable employment. The worker, Mr Fard is a 39-year-old labourer who suffered injury to his left eye during the course of his employment with EFE Kitchen Pty Ltd. On 17 May 2017, Mr Fard was unpacking a parcel of wooden boards held together by metallic straps, when one of the straps struck his left eye (the incident). The incident caused a laceration to Mr Fard’s left cornea with prolapse of the iris tissue. Mr Fard attended the Royal Victorian Eye and Ear Hospital where he underwent emergency repair surgery, followed by two further surgical procedures in 2017 and 2018.

On 11 November 2019, Mr Fard applied under s 325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act) for leave to issue proceedings in the County Court seeking recovery of damages for injuries suffered in the incident. Mr Fard’s application was for both pain and suffering, and pecuniary loss damages.

On 10 December 2020, at the request of the fifth defendant, a judge of the County Court referred 10 questions relevant to the determination of Mr Fard’s serious injury application to a medical panel.[1] The referral included a number of documents in a schedule of attachments, including a joint statement,[2] written submissions from Mr Fard and the fifth defendant, affidavit material,[3] reports of treating practitioners, medico-legal opinions, and rehabilitation and vocational material obtained by both Mr Fard and the fifth defendant (the referral).
[1]Pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act).
[2]Pursuant to s 304 of the Act.
[3]Such material included Mr Fard’s serious injury affidavits dated 19 June 2019 and 2 November 2020,…

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 Fard v Shields

Details

AGLC: Fard v Shields [2022] VSC 809
Case: [2022] VSC 809
Decision Date: 19 December 2022

CaseChat Overview and Summary

The case of Fard v Shields arose from a challenge to a decision made by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The plaintiff, Mr Fard, sought judicial review of a decision by the Medical Panel regarding his eligibility for certain medical benefits. The dispute was heard and determined by the Supreme Court of Victoria. The primary legal issues before the court were whether the Medical Panel had committed a jurisdictional error, whether it failed to have regard to relevant matters, and whether it failed to provide adequate reasons for its decision.

The court considered the applicable legal principles for judicial review, drawing on precedents such as Minister for Aboriginal Affairs v Peko-Wallsend, Wingfoot Australia Partners Pty Ltd v Kocak, Gruma Oceania v Bakar, Richter v Driscoll, and Bainbridge v Westside Meats Pty Ltd. The court examined whether the Medical Panel had properly exercised its jurisdiction and whether it had taken into account all relevant considerations and provided sufficient reasoning for its decision. In applying these principles, the court scrutinised the Panel's decision-making process and the adequacy of the reasons provided.

The court found that the Medical Panel had not committed a jurisdictional error but had indeed failed to have regard to relevant matters and had not provided adequate reasons for its decision. The Panel's decision was thus flawed, and the court exercised its discretion to grant the relief sought by Mr Fard. The court ordered that the decision of the Medical Panel be quashed and remitted to the Panel for reconsideration in light of the court's findings. The Panel was directed to take into account all relevant matters and to provide clear and comprehensive reasons for its future decisions.

Orders