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Khan v Romas

Khan v Romas

Case [2017] VSC 731 13 December 2017

Judicial Review

Adequacy of Reasons

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00686

BISMILLAH KHAN	Plaintiff
v
ASSOCIATE PROFESSOR EVANGE ROMAS & ORS (as per the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2017
DATE OF JUDGMENT:	13 December 2017
CASE MAY BE CITED AS:	Khan v Romas & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 731

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JUDICIAL REVIEW – Medical Panel – Whether panel failed to take into account relevant considerations – Failure of the medical panel to refer to chronic pain syndrome in its reasons – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 applied, Omerasevic v Kotzman [2016] VSC 383 and Tan v Kotzman [2016] VSC 482 referred to – Adequacy of reasons – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M A Schilling	Zaparas Lawyers
For the First to Fifth Defendants	No appearance
For the Sixth Defendant	Mr M Fleming QC with Ms R Kaye	Minter Ellison

HER HONOUR:

On 13 December 2016, the first to fifth defendants (‘Panel’) issued a Certificate of Opinion in response to a referral of certain questions by a judge of the County Court concerning the medical condition of the plaintiff (‘Mr Khan’). The sixth defendant, Visy Paper Pty Ltd (‘Visy’), is Mr Khan’s former employer, and the active contradictor in this proceeding.[1] In summary, the Panel held that Mr Khan had no medical condition arising out of injuries suffered by him in the course of his employment with Visy (‘agreed injuries’), that Mr Khan has no present inability arising from an injury such that he is not able to return to his pre‑injury employment, and any claimed incapacity for work does not result from and was not materially contributed to by the agreed injuries.
[1]On 8 September 2017 the solicitors for the first to fifth defendants inclusive, being the members of the Panel, wrote to the Court stating that the Panel would abide by the decision of the Court.

Mr Khan seeks judicial review of the Panel’s opinion. Prior to turning to the grounds of review and the submissions of the parties in some detail, it is helpful to set out the background facts, the procedural history of the dispute between Mr Khan and Visy, and to summarise the material before the Panel, the contentions of the parties before the Panel, and the reasons of the Panel.

Khan is 40 years old, and a native of Afghanistan. He arrived in Australia in 2001, and spent three to four years in an immigration detention centre. He has limited education, and limited English language skills.[2]
[2]This background material is largely derived from Mr Khan’s submissions, both in this proceeding and before the Panel. I do not understand there to be any dispute about these factual matters.

Mr Khan was employed by Visy from about 2007 to 13 September…

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 Khan v Romas

Details

AGLC: Khan v Romas [2017] VSC 731
Case: [2017] VSC 731
Decision Date: 13 December 2017

CaseChat Overview and Summary

In the matter of Khan v Romas, the plaintiff sought judicial review of a decision made by a medical panel that had evaluated his claim for permanent impairment. The plaintiff argued that the panel had failed to consider certain relevant factors, specifically the chronic pain syndrome, in making its decision. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the medical panel had failed to take into account relevant considerations and, if so, whether this constituted a sufficient ground for judicial review.

The court examined whether the failure to refer to the chronic pain syndrome in its reasons amounted to a jurisdictional error. The court applied the decision in Ryan v The Grange at Wodonga Pty Ltd, where it was held that a failure to consider a relevant factor could be a jurisdictional error if it was such that no reasonable decision-maker could have reached the decision without taking it into account. The court also referred to Omerasevic v Kotzman and Tan v Kotzman, which emphasised the importance of providing adequate reasons for decisions. The court found that the medical panel's failure to refer to the chronic pain syndrome in its reasons was significant and could have influenced the outcome of the decision.

The court concluded that the failure to consider the chronic pain syndrome was a jurisdictional error and that the decision of the medical panel was therefore invalid. The court also noted that the adequacy of reasons provided by the panel was insufficient, as it did not address the plaintiff's specific concerns. The court found that the decision-making process was flawed, and the decision was quashed. The matter was remitted back to the medical panel for reconsideration, with directions to ensure that all relevant considerations were properly addressed in the reasons provided.

Orders