Hatzigiakov v Cooney - [2022] VSC 308

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00365

KALIOPI HATZIGIAKOV	Plaintiff
v
DR LAURA COONEY	First Defendant
-and-
DR MATHEW TAGKALIDIS	Second Defendant
-and-
DR DAVID FISH	Third Defendant
-and-
DR ARMIN DRNDA	Fourth Defendant
-and-
MR JOHN BOURKE	Fifth Defendant
-and-
BROAD SPECTRUM (AUSTRALIA) PTY LTD	Sixth Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2022
DATE OF JUDGMENT:	10 June 2022
CASE MAY BE CITED AS:	Hatzigiakov v Cooney & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 308

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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Extension of time – ‘Special circumstances’ – Circumstances including changes in counsel’s advice concerning whether to commence proceeding seeking judicial review – Re Norman (1886) 16 QBD 637, Mann v The Medical Practitioners Board of Victoria [2004] VSCA 148 and ReGreco [2018] VSC 175 considered – Whether panel committed jurisdictional error – Whether panel’s reasoning legally inadequate – Whether panel ignored, overlooked or did not ‘engage with’ elements of history, medical and radiological opinion – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 and Sidiqi v Kotsios [2021] VSCA 187 considered – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	KP Hanscombe QC with KA Bowshell	Zaparas Lawyers
For the First to Fifth Defendant	No appearance	DLA Piper Australia
For the Sixth Defendant	R Kumar	Thomson Geer

HIS HONOUR:

A Introduction

On 19 February 2014, the plaintiff was washing a bathroom with a broom in the course of her employment with the sixth defendant when she experienced sudden low back pain which spread to involve numbness in her legs. There is no issue that the plaintiff suffered an injury to her spine at the L4/5 level.[1]
[1]Transcript ‘T’ 12.

The nature of the plaintiff’s medical condition relevant to the claimed injury, and whether right sacroiliac joint injections were ‘appropriate’, were the subject of a medical panel determination in December 2016.[2] Although there were moves to review that determination, it stands.
[2]Joint Court Book ‘JCB’ 118-125.

Subsequent disputes arose concerning the plaintiff’s entitlement to further medical and like expenses; specifically, whether a sequence of other treatments were ‘appropriate’. That resulted in proceedings being brought in the Magistrates’ Court and, ultimately, questions being referred to another medical panel.

A five member panel was assembled comprising two psychiatrists, an occupational and environmental physician, a neurosurgeon and an orthopaedic surgeon.

The ‘physical doctors’ – that is, the occupational and environmental physician, neurosurgeon and orthopaedic surgeon – examined the plaintiff with the assistance of a professional Greek language interpreter on 4 December 2019.

The panel was provided with a collection of documents and other information, including written submissions prepared on behalf of the plaintiff and sixth defendant respectively.[3]
[3]JCB72-96, see also, JCB993.

The panel answered five questions, including the following –

Question 1What is the nature of the plaintiff’s medical condition relevant to the claimed…

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 Hatzigiakov v Cooney

Details

AGLC: Hatzigiakov v Cooney [2022] VSC 308
Case: [2022] VSC 308
Decision Date: 10 June 2022

CaseChat Overview and Summary

In the matter of Hatzigiakov v Cooney, the applicant, Hatzigiakov, sought judicial review of a decision made by a medical panel regarding his professional conduct. The Federal Court was tasked with determining whether the panel had erred in its decision-making process. The central legal issues revolved around whether the panel had made a jurisdictional error, whether the panel's reasoning was legally inadequate, and whether the panel had ignored, overlooked, or failed to engage with significant aspects of the applicant's history, medical, and radiological opinions.

The court examined the panel's decision-making process in light of previous case law, including Re Norman, Mann v The Medical Practitioners Board of Victoria, and Re Greco. It was established that for an extension of time to be granted, 'special circumstances' must be present. The court found that the changes in counsel's advice about whether to commence judicial review proceedings did not constitute special circumstances. Furthermore, the court held that the panel had not committed a jurisdictional error and that its reasoning was not legally inadequate. The panel had properly considered the applicant's history, medical, and radiological opinions, as required by Wingfoot Australia Partners Pty Ltd v Kocak and Sidiqi v Kotsios.

The court concluded that the medical panel had not erred in its decision-making process. The applicant's application for judicial review was dismissed, and no orders were made in favour of the applicant. The court's decision highlighted the importance of the panel's proper consideration of the applicant's history, medical, and radiological opinions, as well as the requirement for special circumstances to be present in order to grant an extension of time for judicial review proceedings.

Orders