Ilievski v Olympic Aluminium - [2011] VSC 472

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),…

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 Ilievski v Olympic Aluminium

Details

AGLC: Ilievski v Olympic Aluminium [2011] VSC 472
Case: [2011] VSC 472
Decision Date: 22 September 2011

CaseChat Overview and Summary

The matter before the court involved a dispute between Ilievski and Olympic Aluminium. Ilievski sought judicial review of a decision made by a medical panel appointed by Olympic Aluminium. The panel had assessed Ilievski's medical condition and determined that he was not fit to perform his role. The Federal Court of Australia was tasked with determining whether the panel had erred in law and whether the relief sought by Ilievski, in the form of certiorari, should be granted.

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