| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9710 of 2004
| MARTIN KAMENER, STEPHANIE KAMENER, VICTORIAN WORKCOVER AUTHORITY | Plaintiffs |
| v | |
| PHILIP GRIFFIN, Dr RICHARD TRAVERS, Dr DANIEL TRAUM , Dr TIMOTHY ENTWISLE, MARK McCOLL | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 6 June 2005 | |
DATE OF JUDGMENT: | 21 June 2005 | |
CASE MAY BE CITED AS: | Kamener and ors v Griffin and ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 202 | First Revision: 24 June 2005 |
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Administrative law – accident compensation – questions referred to Medical Panel
under s. 45, Accident Compensation Act 1985 – opinion – reasons – judicial review –
whether reasons adequate – whether failure to exercise jurisdiction.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J.H.L Forrest SC with Mr M.F. Fleming | Abbott, Stillman & Wilson |
| For the First, Second, Third and Fourth Defendants | Mr D. Masel | Monahan + Rowell |
| For the Fifth Defendant | Mr M. O’Loghlen QC with Mr P.M.E. Wischusen | Holding Redlich |
HIS HONOUR:
Statement of the Case
The main question for determination in this proceeding is whether the reasons given by a Medical Panel (“the Panel”) constituted under the provision of the Accident Compensation Act 1985 (“the Act”) to answer four questions referred to it by a judge of the County Court under s. 45 of the Act were sufficient. By originating motion filed 20 December 2004 Martin and Stephanie Kamener, who were the employers of the fifth defendant, Mark McColl, for a period of several months in 1999, complain that the reasons were insufficient. They, together with the Victorian WorkCover Authority are the plaintiffs in this proceeding. The defendants are respectively the four members of the Panel and Mark McColl. The plaintiffs seek that the Panel’s certified opinion in writing dated 12 November 2004 be quashed, and that the questions be referred for reconsideration by a medical panel differently constituted.
The originating motion does not confine the attack on the Panel’s opinion to the reasons. It alleges also a failure to exercise jurisdiction[1] and want of procedural fairness.[2] The second of those complaints was not pursued at trial, and in that event counsel for the Panel, who had appeared to meet the complaint, made no submissions and indicated that his clients would abide the Court’s decision. The attack for jurisdictional error, on the other hand, was pursued at trial.
[1]By grounds 7-9
[2]Grounds 10-12
How the Questions came to be Referred
The subject matter of the proceeding must be set in context.
The fifth defendant (conveniently “the worker”) was employed by the first and second plaintiffs (“the employer”) between late May and mid July 1999. On 4 July 2001 he lodged a claim for compensation. He alleged the following “injury/condition”:
“Lumber (sic) spine and right shoulder (serious pain).”
They affected:
“Right arm and spine.”
He had first noticed the injury/condition in June 1999.
He claimed that the injury/condition had arisen gradually over a period of time. He related the same to:
“Lift[ing]…
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- AGLC
- Kamener v Griffin [2005] VSC 202
- Case
- [2005] VSC 202
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the reasons provided by the defendant were sufficient to justify the referral of questions to the Medical Panel. Additionally, the court needed to determine if the failure to provide adequate reasons constituted a failure to exercise jurisdiction properly. The adequacy of the reasons was pivotal to assessing whether the decision-making process complied with the statutory requirements under the Accident Compensation Act 1985.
The court examined the reasons provided by the defendant in detail and concluded that they were inadequate. The reasoning outlined that the statutory framework mandates that reasons be sufficiently detailed to allow for meaningful judicial review. The court found that the reasons given by the defendant did not meet this standard, thereby constituting a failure to exercise jurisdiction. Consequently, the court found in favour of the plaintiff, Kamener, on the grounds that the reasons provided were insufficient, and the decision-making process was flawed due to this inadequacy.
The final orders of the court included a declaration that the reasons provided by the defendant were inadequate, and a ruling that the defendant had failed to properly exercise their jurisdiction. This decision underscored the importance of providing comprehensive reasons in administrative decision-making processes, particularly in contexts involving statutory requirements and potential judicial review.
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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