Isikli v Surville Pty Ltd - [2004] VSC 236

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4131 of 2004

NECATI ISIKLI	Plaintiff
v
SURVILLE PTY LTD & ANOR (Trading as "Annie's Kitchens")	Defendants

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JUDGE:	Osborn J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 JUNE 2004
DATE OF JUDGMENT:	1 JULY 2004
CASE MAY BE CITED AS:	ISIKLI v SURVILLE PTY LTD & ANOR
MEDIUM NEUTRAL CITATION:	[2004] VSC 236

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Judicial review – Accident Compensation (WorkCover) Act 1992 - Termination of accident compensation – Return to work plan – Alleged failure to make reasonable efforts – Dispute as to termination – Refusal by Magistrate to refer medical questions to a medical panel – Relevance – Abuse of process.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie	Sam Angelatos & Co
For the Defendant	Mr J L Parrish SC with Mr P Kozicki	Abbott, Stillman & Wilson

HIS HONOUR:

This is an application by way of originating motion pursuant to Order 56.01 of the Rules of the Supreme Court. The plaintiff seeks judicial review of orders of the Magistrates’ Court made in a proceeding disputing a decision made by an authorised agent of the Victorian WorkCover Authority to terminate the plaintiff’s weekly payments of accident compensation as and from 5 October 2002.

There is no dispute that the plaintiff’s weekly payments were terminated on the date referred to. The grounds stated for the decision to terminate were that the plaintiff:

(a)did not make every reasonable effort to participate in an occupational rehabilitation service or return to work plan as required by s 93CB(3)(b)(i) and s 93CB(4) of the Accident Compensation Act 1985 (“the Act”);
(b)did not make every reasonable effort to return to work in suitable employment pursuant to s 93CB(3)(b)(ii) and s 93CB(4).

Section 93 CB of the Act relevantly provides:
“…
(3)A worker is entitled to receive weekly payments under this section only if-
…
b)where sub-section (2)(b) applies, the worker-
(i)participates in an occupational rehabilitation service or a return to work plan; and
(ii)makes every reasonable effort to return to work in suitable employment at the worker's place of employment in co-operation with the employer and the Authority or with the self-insurer (as the case may be);
…
(4)Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or her case, the workers entitlement to further weekly payments in respect of the injury shall there upon cease and determine.”
By ss 39 and 43 of the Act, the Magistrates’ Court had jurisdiction to “inquire into, hear and determine any question or matter under this Act arising after the commencement of s 10 of the Accident Compensation (WorkCover) Act 1992, out of:

(a) any decision of the Authority, employer or a self-insurer . . .”

The plaintiff issued proceedings in a form which relevantly alleged:

“2.At all material times the Plaintiff was employed by the Defendant.
3.On or…

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 Isikli v Surville Pty Ltd

Details

AGLC: Isikli v Surville Pty Ltd [2004] VSC 236
Case: [2004] VSC 236
Decision Date: 1 July 2004

CaseChat Overview and Summary

Isikli was an employee of Surville Pty Ltd who sustained injuries in a workplace accident. He sought compensation under the Accident Compensation (WorkCover) Act 1992. Following the injury, Surville proposed a return to work plan, which Isikli did not accept. Surville later terminated Isikli's accident compensation on the ground that he had not made reasonable efforts to return to work. Isikli disputed this termination, leading to a judicial review of the decision. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether Surville had made reasonable efforts to assist Isikli in returning to work and if the termination was justified. Another issue was whether the Magistrate had abused the process by refusing to refer medical questions to a medical panel. The court also needed to determine if the refusal to refer medical questions to a medical panel was relevant and whether it constituted an abuse of process.

The court found that Surville had indeed made reasonable efforts to facilitate Isikli's return to work, as evidenced by the proposed return to work plan. The court also held that the termination of Isikli's accident compensation was justified based on his refusal to participate in the return to work plan. Regarding the refusal to refer medical questions to a medical panel, the court ruled that it was not relevant to the termination decision and did not constitute an abuse of process. Consequently, the court dismissed Isikli's application for judicial review.

The court upheld the termination of Isikli's accident compensation and found no abuse of process in the Magistrate's refusal to refer medical questions to a medical panel. No further orders were made.

Orders