Hassan v Nisselle - [2000] VSC 271

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

IN THE MATTER of the Administrative Law Act 1978
and in the Accident Compensation Act 1985

IN THE MATTER of an Application for Review

No. 6693 of 1999

ALI HASSAN	Plaintiff
v.
PAUL NISSELLE AND OTHERS	Defendants

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 AND 9 FEBRUARY 2000
DATE OF JUDGMENT:	27 JUNE 2000
CASE MAY BE CITED AS:	HASSAN v. NISSELLE & ORS.
MEDIUM NEUTRAL CITATION:	[2000] VSC 271

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CATCHWORDS: Administrative law – Worker's compensation – Personal injury – Referral of questions to a medical panel – Role of the trial judge in formulating the questions – Application for review of the medical panel's Certificate of Opinion – Whether the Convenor of Medical Panels is a "tribunal" – Whether inconsistency between Certificate of Opinion and the panel's reasons for opinion – Accident Compensation Act 1985, ss.39, 45(1), 65, 68(2) and (4) – Administrative Law Act 1978, ss.2, 3, 8.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. S. Spittle	Williams Winter & Higgs
For the First to Sixth Named Defendants	Mr. D. Brookes	Ebsworth & Ebsworth
For the Seventh Named Defendant	Mr. M. Fleming	Gadens Lawyers

HIS HONOUR:

Ali Hassan ("the plaintiff") was born on 12 April 1945. He is now 55 years old. He claims that, by what his counsel described as "gradual process" he was injured at work. The "process" culminated in a fall on or about 19 September 1996, when he slipped on a mixture of oil and water while carrying a sheet of steel.

The plaintiff also claims that those medical practitioners who assessed his injuries failed to do so properly. First, there was no proper foundation in law for the assessment. This should have been conducted in accordance with the Accident Compensation Act 1985 ("the Act"). Mr. Hassan asserts that it was not. Secondly, he alleges that, as a matter of medical practice, his injuries were not assessed with due care and skill. He therefore submits that a Certificate of Opinion dated 23 July 1999, which was prepared by a medical panel convened by the first defendant as Convenor of Medical Panels, should be reviewed.

In 1987, the plaintiff joined the staff of Tagertie Pty. Ltd. ("the company"). He worked as a metal driller. Throughout and as a result of his employment he was, according to him, subjected to a succession of injuries to his neck. When he fell in September 1996, he also injured his left knee and back. All this led to referred pain in his shoulders, arms and legs. It also resulted in anxiety and depression and, on 14 February 1997, to the cessation of his employment. He sought workers' compensation. Initially, he was told that he would receive a weekly sum "calculated at 65% of [his] pre-injury weekly earnings from 21 March 1997". This resulted "in [his] weekly payments being reduced from $468 to $296": letter dated 7 March 1997 from the company's workers' compensation…

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 Hassan v Nisselle

Details

AGLC: Hassan v Nisselle [2000] VSC 271
Case: [2000] VSC 271
Decision Date: 27 June 2000

CaseChat Overview and Summary

The case of Hassan v Nisselle involved a dispute concerning a worker's compensation claim in the context of personal injury. The applicant, Hassan, sought to challenge a Certificate of Opinion issued by a medical panel convened under the Accident Compensation Act 1985. The primary respondent, Nisselle, was the Convenor of Medical Panels, responsible for overseeing the panel's operations. The case was heard by the Supreme Court of New South Wales, where the applicant applied for judicial review of the medical panel's Certificate of Opinion.

The central legal issues before the court were the scope of judicial review of a medical panel's Certificate of Opinion, the role of the trial judge in formulating questions for the medical panel, and the definition of a "tribunal" under the Administrative Law Act 1978. The court had to determine whether the Convenor of Medical Panels qualified as a "tribunal" for the purposes of review and whether there was an inconsistency between the Certificate of Opinion and the reasons provided by the panel. The applicant argued that the panel had exceeded its authority by issuing a Certificate of Opinion that did not align with its reasons.

The court held that the Convenor of Medical Panels was not a "tribunal" for the purposes of the Administrative Law Act 1978, and thus the application for judicial review was invalid. The court further clarified that the role of the trial judge was limited to formulating questions for the medical panel, and not to directing the outcome of the panel's opinion. The court found that the Certificate of Opinion did not show any inconsistency with the reasons provided by the panel. Consequently, the application for judicial review was dismissed, and the applicant's appeal was ultimately unsuccessful.

The court's final orders were that the application for judicial review be dismissed, with each party to bear their own costs of the proceedings.

Orders