H&G MacDonald Carriers Pty Ltd v Carson - [2014] VSC 586

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 06225

H & G MACDONALD CARRIERS PTY LTD	Plaintiff
v
DR JAMES CARSON & ORS	Defendants

---

JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 NOVEMBER 2014
DATE OF JUDGMENT:	19 NOVEMBER 2014
CASE MAY BE CITED AS:	H & G MacDonald Carriers Pty Ltd v Carson
MEDIUM NEUTRAL CITATION:	[2014] VSC 586

---

ADMINISTRATIVE LAW – judicial review – reference of questions to medical panel by Magistrates’ Court of Victoria – assessment of worker’s current capacity for work – questions answered by reference to grounds not put in worker’s application – whether breach of rules of natural justice – Accident Compensation Act 1985 (Vic), s 45.

---

APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr M Fleming QC with Mr R Kumar	Thomson Geer Lawyers
For the first to fifth defendants	No appearance
For the sixth defendant	Mr R Gorton QC with Mr B Anderson	Slater & Gordon Lawyers

HIS HONOUR:

H & G MacDonald Carriers Pty Ltd makes application for judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in respect of the answers given by a medical panel (constituted by the first five defendants) in relation to the medical condition of Ian Cockburn (the sixth defendant) upon a reference of questions by the Magistrates’ Court of Victoria pursuant to s 45(1) of the Accident Compensation Act 1985 (Vic).

The reference by the magistrate was made in an application issued by Mr Cockburn. The relevant circumstances were that, on or about 3 September 2008, he was injured in the course of his employment with H & G MacDonald Carriers for which he received weekly payments of compensation under the Accident Compensation Act. By a notice dated 11 August 2011 under s 93C, he was informed by the statutory agent that his payments were to be terminated upon the ground that he had a current work capacity. Mr Cockburn exercised his right under the Act to challenge that assessment in the Magistrates’ Court of Victoria.

The questions referred to the panel by the magistrate were as follows:

1.What is the nature of the plaintiff’s medical condition with respect to the ‘Particulars of Injury’ alleged in paragraph 6 of the plaintiff’s Statement of Claim, namely:
(i)        Injury to lumbar spine;
(ii)       Injury to cervical spine;
(iii)      Injury to the hip;
(iv)Aggravation, exacerbation and/or deterioration of degenerative changes in the spine;

(v)      Referred pain radiating to the right and/or left leg;
(vi)     Psychiatric injury;
(vii)     Chronic pain.
(hereinafter referred to as ‘the said injuries’).
2.Does the plaintiff have a current work capacity having regard to the definition of ‘current work capacity’ in section 5 of the Accident Compensation Act?
3.If ‘no’ to 2, is the plaintiff likely to continue indefinitely to have no current work capacity having regard to the definition of ‘no current work capacity’ in section 5 of the…

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.

Keep reading for free

Create a free CaseChat account to read H&G MacDonald Carriers Pty Ltd v Carson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSC 586
Decision Date: 19 NOVEMBER 2014

CaseChat Overview and Summary

H&G MacDonald Carriers Pty Ltd sought judicial review of a decision by the Magistrates’ Court of Victoria to refer questions to a medical panel for the assessment of the plaintiff’s capacity for work. The defendant, Carson, had sustained an injury at work and was claiming compensation. The plaintiff argued that the court had breached the rules of natural justice by answering questions that were not put in the plaintiff’s application. The plaintiff sought a declaration that the decision was invalid and an order for the case to be remitted for reconsideration.

The court was required to determine whether the Magistrates’ Court had breached the rules of natural justice by answering questions that were not put in the plaintiff’s application. The court had to consider whether the reference to the medical panel was lawful and whether the questions answered by the panel were relevant to the issues before the court. The court also had to consider whether the breach of natural justice was sufficient to invalidate the decision.

The court held that the Magistrates’ Court had indeed breached the rules of natural justice by answering questions that were not put in the plaintiff’s application. The court found that the reference to the medical panel was not unlawful, but the questions answered by the panel were not relevant to the issues before the court. The court held that the breach of natural justice was sufficient to invalidate the decision and ordered the case to be remitted for reconsideration.

The court made a declaration that the decision of the Magistrates’ Court was invalid and ordered the case to be remitted for reconsideration. The court held that the plaintiff was entitled to costs of the application. The court did not make any order as to costs of the proceeding in the Magistrates’ Court.

Orders