| 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…
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- AGLC
- James v Coles Group Limited [2023] VSC 252
- Case
- [2023] VSC 252
- Decision Date
CaseChat Overview and Summary
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
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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