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George v Nisselle

George v Nisselle

Case [2005] VSC 177 27 May 2005

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9617 of 2004

DANNY GEORGE	Applicant
v
DR PAUL NISSELLE, DR VICTOR WILK, MR KEITH ELSNER, SBA FOODS PTY LTD AND CGU WORKERS COMPENSATION (VIC) LIMITED	Respondents

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JUDGE:	GILLARD, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 May 2005
DATE OF JUDGMENT:	27 May 2005
CASE MAY BE CITED AS:	George v Nisselle and ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 177

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Worker’s compensation claim under ss.98C and 98E of Accident Compensation Act 1985 – Opinion of Medical Panel – Order for review under Administrative Law Act 1985 – Alleged grounds of jurisdictional error and inadequate reasons – Read opinion and reasons together and in light of issues – No error demonstrated – Order nisi discharged.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I. Fehring	Watson Lawyers
For the First, Second and Third Respondents	No appearance	Monahan + Rowell
For the Fourth and Fifth Respondents	Mr J. Noonan, S.C. with Mr D. Masel	Lander & Rogers

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Background to and the claim........................................................................................................... 3

Determination of claim...................................................................................................................... 5

Order to review – Jurisdiction under the ALA.............................................................................. 8

Grounds............................................................................................................................................. 10

HIS HONOUR:

This is the return of an order for review of a decision made by a Medical Panel constituted under the Accident Compensation Act 1985 (“the Act”). The applicant is a worker who sought compensation under the Act and who seeks to review a decision by a Medical Panel which denied his claim for total loss of use of his right hand.

Parties

The applicant, Danny George (“the applicant”) who was born on 2 December 1974 was employed by SBA Foods Pty Ltd at Altona North as a labourer in the roller room at its abattoirs during a period of approximately two years to 24 January 2000. He asserted that he suffered an injury to his right arm in May 1999 when lifting lamb carcasses up on to hooks at his employment. He developed pain in the right elbow, wrist and hand resulting in disability in the right hand.

The first respondent, Dr Paul Nisselle, is the Convenor under the Act who was appointed by the Minister from a list of members who are medical practitioners and who were appointed by the Governor‑in‑Council.[1] He has a number of functions to perform under the Act, one of which is that he selects the medical persons to constitute a Medical Panel[2] to carry out a particular function conferred on the Panel by the Act.[3] I doubt whether he was a necessary party to this proceeding. All he did was appoint the Panel. There is no suggestion in this proceeding that he did anything contrary to the law. In those circumstances I doubt he is “interested in maintaining the decision” as specified in s.3 of the Administrative Law Act 1978 (“ALA”). I raised these doubts with counsel for the parties but in the absence of any submissions from or on behalf…

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 George v Nisselle

Details

AGLC: George v Nisselle [2005] VSC 177
Case: [2005] VSC 177
Decision Date: 27 May 2005

CaseChat Overview and Summary

In the matter of George v Nisselle, the plaintiff sought to challenge a decision related to their worker’s compensation claim under sections 98C and 98E of the Accident Compensation Act 1985. The defendant, Nisselle, was involved in the administration of the compensation claim and had formed an opinion regarding it, which was subsequently reviewed by a Medical Panel. The plaintiff sought a review of the panel’s decision under the Administrative Law Act 1985, alleging that the panel had made a jurisdictional error and provided inadequate reasons for its opinion. The case was heard in the relevant court, which was tasked with determining whether the alleged errors had indeed occurred.

The primary legal issues before the court were whether the opinion of the Medical Panel contained any jurisdictional errors and if the reasons provided were inadequate. The plaintiff argued that the panel had failed to properly consider certain evidence and that the reasons provided were insufficient to support the conclusion reached. The court was required to thoroughly examine the opinion and reasons given by the panel, considering them in the context of the issues raised by the plaintiff. It was necessary to determine if the panel had correctly applied the law and whether the reasons provided were adequate to justify the outcome.

Upon review, the court found that the opinion of the Medical Panel and the reasons provided were to be read together and in light of the issues raised. The court concluded that no jurisdictional error had been demonstrated and that the reasons were adequate. The panel had appropriately considered the evidence and applied the law correctly. The court found that the plaintiff had not established any ground for the review of the panel’s decision, and therefore, the order nisi was discharged. The court’s decision upheld the opinion and reasons of the Medical Panel, confirming the legitimacy of the panel’s process and conclusions.

Orders