| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8252 of 2003
| MARTIN KAMENER & ORS | Plaintiffs |
| v | |
| PETER GRIFFIN & ORS | Defendants |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 - 20 April 2004 | |
DATE OF JUDGMENT: | 1 July 2004 | |
CASE MAY BE CITED AS: | Kamener & Ors v Griffin & Ors | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 235 | |
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ACCIDENT COMPENSATION – Workers’ compensation - Medical questions referred to medical panel - Judicial review - Whether procedural fairness afforded to employers and insurer – Whether fair hearing given – Whether relevant considerations taken into account – Whether adequate reasons provided – Availability of relief in the nature of certiorari.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J H L Forrest QC and Mr M Fleming | Abbott, Stillman & Wilson |
| For the First to Fourth Defendants | Mr I Miller | Monahan & Rowell |
| For the Fifth Defendant | Mr M O’Loghlen QC and Ms A MacTiernan | Holding Redlich |
HER HONOUR:
By an originating motion filed on 7 October 2003 the plaintiffs seek inter alia orders:
(a)in the nature of certiorari quashing the opinion of the medical panel comprised by the first to fourth defendants (“the Medical Panel”) certified and dated 18 August 2003;
(b)remitting the medical questions referred to the medical panel for reconsideration by a differently constituted medical panel.
Material before the Court
The plaintiffs relied upon the affidavit of Tony Forgione, a partner of the firm Messrs Abbott, Stillman & Wilson, their solicitors, sworn on 7 October 2003 in support of their application.
The Medical Panel adduced no evidence. Counsel appeared on its behalf only to assist the Court in relation to its procedures and otherwise stated that the Medical Panel would abide by the Court’s decision. The fifth defendant (“the worker”) swore an affidavit on 7 November 2003 in opposition to the application, parts of which were struck out as inadmissible hearsay.
Background
The history of the relationship between the parties was set out in the affidavit material and was not contentious.
The worker was employed as a dishwasher by the first and second plaintiffs (“the employers”) at their restaurant for a period of some seven weeks from late May 1999 to 15 July 1999. He claimed that his neck, back and right upper limb were injured in the course of his employment.
The County Court proceeding
By a writ issued on 21 March 2002 the worker commenced a proceeding in the County Court of Victoria against the employers and the third plaintiff (“the VWA”). He claimed weekly payments of compensation and other relief under the Accident Compensation Act 1985 (“the Act”) in relation to his alleged injuries.
The referral of the medical questions
On 10 February 2003, at the commencement of the hearing of the County Court proceeding, the worker applied to his Honour Judge Coish under s 45(1)(b) of the Act for an order referring medical questions to a medical panel for opinion. The application was opposed.
On…
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- AGLC
- Kamener v Griffin [2004] VSC 235
- Case
- [2004] VSC 235
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether procedural fairness was observed in the handling of Kamener's claim, particularly in relation to the referral of medical questions to a medical panel. Additionally, the court needed to assess whether the decision-maker, Griffin, provided adequate reasons for the decision made, and whether the hearing was fair. The court also had to consider whether the availability of relief in the nature of certiorari was appropriate given the circumstances.
The court determined that the process followed was procedurally fair, as Kamener was given an opportunity to be heard and to present evidence. The referral of medical questions to a panel was deemed appropriate and did not prejudice the fairness of the hearing. The court found that the decision-maker, Griffin, had considered all relevant factors and provided sufficient reasons for the decision. Consequently, the appeal was dismissed, and no orders were made for the issuance of certiorari.
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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