Khayyerzadeh v Gibbons - [2023] VSC 647

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03865
S ECI 2022 03873

MEHDI KHAYYERZADEH	Plaintiff
v
PETER GIBBONS (in his capacity as Convenor of Medical Panels) & ORS (according to the attached Schedule of Parties)	Defendants

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September 2023
DATE OF JUDGMENT:	9 November 2023
CASE MAY BE CITED AS:	Khayyerzadeh v Gibbons & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 647

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ADMINISTRATIVE LAW – Judicial Review – Opinion of Medical Panel – Whether Medical Panel committed a jurisdictional error – Whether Medical Panel failed to have regard to a mandatory relevant consideration – Whether Medical Panel failed to provide adequate reasons – Ayana v Qantas Airways Ltd [2021] VSC 500 – Vangelovski v Calco Timbers Pty Ltd [2022] VSC 508 – Victorian Workcover Authority Putrus [2023] VSCA 28 – Victorian Workcover Authority v Jamali [2023] VSCA 240 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Bailey	Arnold Thomas & Becker
For the First to Sixth Defendants	No appearance	DLA Piper Australia
For the Seventh Defendant	Ms R Kaye KC with Ms S Gold	Hall & Wilcox

HER HONOUR:

Introduction

The plaintiff, Mr Mehdi Khayyerzadeh, is a 55-year-old man who suffered injury to his lower back on 12 October 2016 whilst working as an IT installation engineer in the employ of the seventh defendant, NCR Australia Pty Ltd (NCR). Mr Khayyerzadeh had returned to Melbourne from an interstate work trip, when the handle of a heavy suitcase he was carrying broke, causing him to jerk his back (the incident).

Mr Khayyerzadeh subsequently made a WorkCover claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). This claim was accepted and Mr Khayyerzadeh received weekly payments of compensation and medical and like expenses. In July 2019, Mr Khayyerzadeh was advised that his weekly payments would be terminated on 16 November 2019, on the basis that weekly payments had been paid or were payable for a period of 130 weeks,[1] and that he had a current work capacity, or alternatively, that he had no current work capacity but it was not likely to continue indefinitely. Mr Khayyerzadeh issued proceedings challenging that decision in the County Court.
[1]Based on calculations of the first and second entitlements pursuant to s 152 of the Act.

In addition, Mr Khayyerzadeh has an originating motion on foot in the County Court, in which he seeks leave to bring a common law proceeding for the recovery of pain and suffering and pecuniary loss damages for the injuries he suffered in the incident.[2] In order to do so, Mr Khayyerzadeh must demonstrate that he suffers a ‘serious injury’ as defined by the Act.[3]
[2]The Act, s 335(2)(d).
[3]The Act, s 325(1).

At the request…

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 Khayyerzadeh v Gibbons

Details

AGLC: Khayyerzadeh v Gibbons [2023] VSC 647
Case: [2023] VSC 647
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the matter of Khayyerzadeh v Gibbons, the applicant, Mr Khayyerzadeh, sought judicial review of a decision made by the respondent, a Medical Panel, regarding his eligibility for a compensation scheme under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The applicant contended that the Medical Panel had made errors in their assessment which warranted review by the court. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the Medical Panel had committed a jurisdictional error, failed to consider a mandatory relevant consideration, and whether they had provided adequate reasons for their decision. The applicant argued that the Medical Panel had not properly applied the relevant statutory criteria, overlooked essential evidence, and failed to provide sufficient justification for their conclusion. The respondent, on the other hand, maintained that their decision was within their statutory powers and adequately reasoned.

The court examined the statutory framework and relevant case law, including Ayana v Qantas Airways Ltd, Vangelovski v Calco Timbers Pty Ltd, Victorian Workcover Authority Putrus, Victorian Workcover Authority v Jamali, and Wingfoot Australia Partners Pty Ltd v Kocak. The court concluded that while the Medical Panel had made some errors, these did not amount to a jurisdictional error. The panel had considered relevant factors but had failed to give appropriate weight to some evidence and provide adequate reasons. The court found that the errors were not so significant as to invalidate the decision but required the matter to be remitted to the panel for reconsideration.

The court ordered the case to be remitted to the Medical Panel for reconsideration in light of the court's findings, ensuring that all relevant considerations were properly weighed and adequately reasoned.

Orders