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Kamener v Griffin

Kamener v Griffin

Case [2004] VSC 235 1 July 2004

Judicial Review

Natural Justice & Procedural Fairness

Reasons for Decision

Administrative Law

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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…

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 Kamener v Griffin

Details

AGLC: Kamener v Griffin [2004] VSC 235
Case: [2004] VSC 235
Decision Date: 1 July 2004

CaseChat Overview and Summary

In the matter of Kamener v Griffin, the appellant, Kamener, sought review of a decision made by the respondent, Griffin, regarding workers’ compensation. The dispute centred on the assessment of a claim for compensation following an accident that occurred during the course of employment. The court of appeal was tasked with determining whether the process afforded to Kamener was fair and whether the decision-maker took into account all relevant considerations.

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