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Hashimi v Yong

Hashimi v Yong

Case [2019] VSC 496 24 July 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01430

ALI HASHIMI	Plaintiff
v
DR DOMINIC YONG	First Defendant
MR KEITH ELSNER	Second Defendant
DR EDMOND VAN AMMERS	Third Defendant
and
OZDEMIR HOLDING PTY LTD	Fourth Defendant

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2019
DATE OF JUDGMENT:	24 July 2019
CASE MAY BE CITED AS:	Hashimi v Yong & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 496

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Order 56 – Certiorari to quash the determination of the Medical Panel – Procedural fairness – Causation – Whether conclusions of the Medical Panel were able to be reasonably anticipated – Whether the Plaintiff had a reasonable opportunity to be heard on a determinative issue – Error established – Accident Compensation Act 1985 ss 82(1), 98C – Workplace Injury Rehabilitation Act 2013 ss 5(1), 284.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC and Mr C E Hangay	Zaparas Lawyers
For the First to Third Defendants	No appearance	Victorian Government Solicitor’s Office
For the Fourth Defendant	Mr M F Fleming QC and Ms S Gold	Injury Disputes Practice Lawyers

HER HONOUR:

The Plaintiff, Mr Hashimi, commenced employment with the Fourth Defendant, Ozdemir Holdings Pty Ltd, as a slaughterman and process worker in March 2005.

Mr Hashimi had previously suffered injury to his head and lower back when working for a different employer as a labourer in 2003. He was compensated by weekly payments and a lump-sum permanent impairment benefit pursuant to s 98C of the Accident Compensation Act 1985 (‘the AC Act’) in relation to that back injury.

On 22 June 2012, he alleged he suffered a workplace injury to his lower back when he slipped on a piece of skin and/or fat that had fallen to the floor, causing him to fall. He says that he reached out with his left arm and grabbed a nearby bar, jarring his back. He had a short time off work the following week but as his back pain eased, he returned to work on 2 July 2012.

Mr Hashimi ultimately ceased work with the Fourth Defendant on 2 August 2012 due to the alleged back injury. He submitted a claim for weekly payments of compensation on 10 August 2012 for the injury said to have occurred on 22 June 2012. The claim was rejected but resolved at conciliation, with a denial of liability by the Fourth Defendant.

A claim for compensation for a permanent impairment benefit was lodged by Mr Hashimi on 18 June 2015. The Fourth Defendant’s authorised agent for the Victorian WorkCover Authority (‘VWA’) rejected this claim on the basis that Mr Hashimi had not sustained an injury within the meaning of the AC Act or arising out of the course of his employment with the employer.[1] The matter went to conciliation and a genuine dispute certificate was…

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 Hashimi v Yong

Details

AGLC: Hashimi v Yong [2019] VSC 496
Case: [2019] VSC 496
Decision Date: 24 July 2019

CaseChat Overview and Summary

In the case of Hashimi v Yong, the plaintiff sought judicial review of a decision made by a Medical Panel concerning their entitlement to workers' compensation benefits. The matter was heard in the Supreme Court of Victoria, where the plaintiff argued that the Panel's decision was flawed due to procedural unfairness and an inability to reasonably anticipate their conclusions. The primary focus of the dispute was on whether the Panel had provided the plaintiff with a reasonable opportunity to respond to a determinative issue, and whether the Panel's conclusions were reasonably foreseeable.

The court was required to consider whether the Medical Panel had adhered to the principles of procedural fairness in reaching its decision, particularly in light of the statutory provisions under the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation Act 2013. The plaintiff contended that they were not given a reasonable opportunity to respond to certain medical evidence and opinions that formed a critical part of the Panel's reasoning. Furthermore, the plaintiff argued that the Panel's conclusions were not reasonably foreseeable, as they were based on an interpretation of medical evidence that the plaintiff had not been afforded the chance to address.

The court examined the principles of procedural fairness and the duty of the Panel to ensure that the plaintiff was aware of the issues and had an opportunity to respond. The court found that the Panel had indeed breached the principles of procedural fairness by not clearly outlining the specific issues that would be considered and allowing the plaintiff to address them. Additionally, the court determined that the conclusions reached by the Panel were not reasonably foreseeable given the way the issues were presented and discussed. As a result, the court found that an error had been established, warranting the quashing of the Panel's determination through an order of certiorari.

In light of these findings, the court granted the plaintiff's application for judicial review and quashed the determination of the Medical Panel. The matter was remitted back to the Panel for reconsideration, ensuring that the plaintiff would be given a fair opportunity to respond to all relevant issues and that the Panel's conclusions would be reasonably foreseeable based on the evidence presented.

Orders