Frusher v The Medical Panel & Ors - [2007] VSC 78

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6631 of 2006

JOANNE FRUSHER	Applicant
V
THE MEDICAL PANEL AND ORS	Respondents

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JUDGE:	King J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2006
DATE OF JUDGMENT:	27 March 2007
CASE MAY BE CITED AS:	Frusher v The Medical Panel
MEDIUM NEUTRAL CITATION:	[2007] VSC 78

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Administrative Law Act 1978 – Accident Compensation Act 1958 s. 98E (1) – Interpretation of Legislation Act 1984 s. 37 (c) and (d) – Medical Panel – total loss of female sexual organs

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M O’Loghlen QC with Ms F Ellis	Petersons Lawyers
For the Respondents	Dr K Hanscombe SC with Mr P Solomon	Wisewoulds Lawyers

HER HONOUR:
Introduction

This proceeding concerns the judicial review of a decision of a Medical Panel convened pursuant to s 104B(9) of the Accident Compensation Act 1985 delivered on 16 May 2006. The decision concerned Ms Joanne Frusher, the applicant, who claimed a disability arising out of her employment.

The proceeding was commenced by the obtaining of an order for review from Master Evans on 6 and 8 June 2006 pursuant to the Administrative Law Act 1978. That order contained four grounds upon which it was ordered that the respondents to the application show cause why the decision of the Medical Panel should not be reviewed.

Those grounds were:

a) whether the Medical Panel having found that the Applicant’s procreative capacity has been lost following hysterectomy, whether the Medical Panel was required in law to find that the worker had suffered a “total loss of female sexual organs” within the meaning of section 98E(1) of the Act;

b) whether in concluding “that the worker is not suffering a total loss of use of the female sexual organs when assessed pursuant to section 98E(1) of the Act”, the Medical Panel took into account irrelevant considerations, namely, the matters referred to in the penultimate paragraph of its written reasons of opinion dated 5 May 2006 (exhibit PJM-13) and fell into error;

c) whether the Medical Panel applied an incorrect test as to what loss the Applicant had to suffer to her female sexual organs to establish that she suffered a “total loss of female sexual organs” when assessed pursuant to section 98E(1) of the Act;

d) whether in the circumstances the Medical Panel erred in law in failing to find that the Applicant had a total loss injury mentioned in the Table in section 98E(1) of the Act being a “total loss of female sexual organs”.

The Medical Panel comprising its duly constituted members, together with Greyhound Racing Victoria and Victorian WorkCover Authority were all respondents to the action. The Medical Panel in accordance with the usual practice took no part in the hearing. The second and third respondents were represented by Senior and Junior Counsel.

The Facts

The Applicant, Joanne Frusher, who was born on 8 September 1960 and is now aged 46, commenced…

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.

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Details

Case: [2007] VSC 78
Decision Date: 27 March 2007

CaseChat Overview and Summary

In the matter of Frusher v The Medical Panel and others, the respondent sought judicial review of a decision made by the Medical Panel under the Accident Compensation Act 1958. The panel had determined that Frusher had not suffered a total loss of her female sexual organs. The Court of Appeal was tasked with interpreting the relevant statutory provisions and assessing the panel’s decision.

The primary legal issues revolved around the interpretation of the term “total loss” as used in section 98E (1) of the Accident Compensation Act 1958, and the application of section 37 (c) and (d) of the Interpretation of Legislation Act 1984. The court had to determine whether the panel's interpretation of “total loss” was consistent with the legislative intent and whether it had considered all relevant factors in making its decision.

The Court of Appeal held that the panel's decision was flawed because it had not correctly interpreted the term “total loss.” The court found that the panel had failed to consider the broader context of the statutory provisions and had not applied the principles of statutory interpretation as outlined in the Interpretation of Legislation Act 1984. Consequently, the court quashed the panel's decision and remitted the matter for reconsideration. The court emphasised the need for the panel to consider all relevant factors and to interpret the legislation in a manner consistent with its plain meaning and purpose.

The final orders of the court included quashing the decision of the Medical Panel and remitting the matter back to the panel for reconsideration in light of the court's findings. The court also noted that the panel should ensure its future decisions comply with the principles of statutory interpretation and the legislative intent.

Orders