James v Coles Group Limited & Ors - [2023] VSC 252

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01974

MANDIE SHARON JAMES	Plaintiff
v
COLES GROUP LIMITED (and others according to the schedule of parties)	Defendants

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2023
DATE OF JUDGMENT:	16 May 2023
CASE MAY BE CITED AS:	James v Coles Group Limited & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 252

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ADMINISTRATIVE LAW – Judicial Review – Appeal from orders of Associate Judge – Medical Panel opinion as to termination of entitlements – Panel not provided with relevant medical records due to clerical error – Parties accepted that Panel opinion should be quashed – Whether medical questions should be remitted to same or differently constituted panel – Whether error in discretion to remit to same Panel - Whether appearance of unfairness in remitting questions to same Panel.

COSTS – Appeal from orders of Associate Judge – Whether costs discretion miscarried in making no order as to costs between plaintiff and first defendant – Where plaintiff succeeded in obtaining relief – No error of principle.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota	Maurice Blackburn Lawyers
For the First Defendant	Mr R Kumar	Wisewould Mahony

HER HONOUR:

This is an appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) from orders of Associate Justice Daly dated 13 December 2022.

Background

The plaintiff commenced a proceeding on 27 May 2022 seeking judicial review of a medical panel opinion (the opinion). The opinion was obtained in a dispute about the termination of her WorkCover entitlements. The plaintiff was employed as a meat department manager for the first defendant at the Coles supermarket in Sunbury. She alleges various injuries arising out of two falls that occurred on 21 March 2019 and further injuries over the course of her employment. The first defendant accepted the two claims.

By notices dated 8 January 2020 and 1 June 2021, the first defendant terminated the plaintiff’s entitlement to weekly payments and medical and like expenses on the claims. The plaintiff disputed the termination notices and at conciliation medical questions were referred to a medical panel (the Panel) constituted under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Panel members are the second, third and fourth defendants.

On 8 February 2022, after the referral to the Panel and shortly before the scheduled examination, the plaintiff’s solicitors sent two emails to the Convenor of Medical Panels (the fifth defendant), enclosing five sets of medical records (totalling over 600 pages).

The plaintiff attended a medical examination by the Panel on 22 February 2023.

On 31 March 2022, the Panel issued a certificate of opinion and reasons for their opinion (the opinion and reasons). The opinion was that the claimed injuries had resolved and the plaintiff was no longer suffering any injury or condition relevant to the claimed injuries.

When the…

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 James v Coles Group Limited & Ors

Details

AGLC: James v Coles Group Limited [2023] VSC 252
Case: [2023] VSC 252
Decision Date: 16 May 2023

CaseChat Overview and Summary

The case of James v Coles Group Limited & Ors was before the court, with the plaintiff, James, challenging a decision related to his entitlements under a medical scheme. The defendants included Coles Group Limited and others. The crux of the dispute centred on the procedural fairness and the appropriateness of the medical panel's review process. A critical issue was whether the medical panel's opinion should be quashed due to a clerical error that resulted in the panel not receiving relevant medical records. Both parties agreed that the panel's opinion should be set aside.

The legal issues the court had to resolve included whether the medical questions should be remitted to the same or a differently constituted panel, and if the decision to remit the questions to the same panel was flawed or appeared unfair. The court also needed to determine whether the discretion exercised in not awarding costs between the plaintiff and the first defendant was correct, considering the plaintiff's success in obtaining relief.

The court found that there was no error in principle in the Associate Judge's decision not to remit the matter to a differently constituted panel, as the appearance of unfairness was not substantiated. The court also determined that there was no error in the Associate Judge's costs discretion, given that the plaintiff had succeeded in obtaining the desired relief. Consequently, the court upheld the Associate Judge's decision on both the medical review process and the costs order.

Orders