| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2011 01773
BETWEEN
| STEVEN ILIEVSKI | Plaintiff |
| and | |
| OLYMPIC ALUMINIUM PTY LTD | Firstnamed Defendant |
| and | |
| DR PETER LOWTHIAN (As convenor of Medical Panels pursuant to the provisions of the Accident Compensation Act 1985) | Secondnamed Defendant |
| and | |
| MEDICAL PANEL (CONSTITUTED BY DR MATTHEW TAGKALIDIS AND DR BARRIE KENNY) | Thirdnamed Defendants |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2011 | |
DATE OF JUDGMENT: | 22 September 2011 | |
CASE MAY BE CITED AS: | Ilievski v Olympic Aluminium & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 472 | |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Error of law on face of record – Whether material – Whether relief in nature of certiorari should be granted – Whether such relief futile.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A G Uren QC and Mr A Ingram | Clark Toop & Taylor |
| For the First Defendant | Ms F McKenzie | Minter Ellison |
| For the Second and Third Defendants | No appearance |
HIS HONOUR:
The plaintiff seeks an order, in the nature of certiorari, quashing the opinion of a medical panel (“the Panel”) dated 8 March 2011, pursuant to Order 56 of Chapter 1 of the Rules of the Supreme Court.
The opinion of the Panel related to a claim by the plaintiff for compensation for non-economic loss, under s 98C of the Accident Compensation Act 1985 (“the Act”), in respect of psychiatric injury which he sustained in the course of his employment with the first defendant. In response to that claim, the Panel certified that the plaintiff had a 0% psychiatric impairment resulting from a mild adjustment disorder, from which he suffered.
Statutory provisions
It is convenient, first, to set out the provisions of the Act which are relevant to this case. Section 98C of the Act provides for the entitlement of a worker to compensation for non-economic loss in respect of an injury which is sustained arising out of or in the course of the worker’s employment. Section 98C(3)(a) provides that the amount of non-economic loss, in respect of permanent psychiatric impairment, shall be calculated as “zero”, if the worker’s degree of impairment is less than 30 percent.
The Panel based its decision on s 91(2) and s 91(7)(c) of the Act, which provide:
“(2)In assessing a degree of impairment …, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, physical injury.
…
(7) For the purposes of s 98C –
…
(c)impairments from unrelated injuries or causes are to be disregarded in making an assessment.”
Section 104B of the Act prescribes the process, which must be undertaken in assessing a claim by an injured worker for non-economic loss under s 98C. Subsection (2) provides that the Authority (or self insurer) must, within 120 days of receiving a claim, accept or reject it, and notify the worker of its decision. Under sub-section (7B),…
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- AGLC
- Ilievski v Olympic Aluminium [2011] VSC 472
- Case
- [2011] VSC 472
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the medical panel had made an error of law that was apparent on the face of the record, and if such an error was material. Additionally, the court had to consider whether the relief sought by Ilievski, in the form of certiorari, was appropriate and not futile. The court needed to balance the principle that certiorari should not be granted as a matter of course against the importance of ensuring that administrative decisions are made within the legal bounds.
In delivering the judgment, the court found that the medical panel had indeed erred in law. The error was apparent on the face of the record and was material to the decision made. The court emphasised that errors of law on the face of the record are significant and can render an administrative decision invalid. Furthermore, the court determined that the relief in the form of certiorari was not futile and was appropriate in the circumstances. The court recognised the importance of ensuring that administrative decisions are made within legal parameters and that the aggrieved party has effective remedies available to challenge such decisions. Consequently, the court granted the relief sought by Ilievski and quashed the decision of the medical panel.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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