Legal Research
Cases
Ko v Hall

Ko v Hall

Case [2020] VSCA 224 4 September 2020

Judicial Review

Legitimate Expectation

Statutory Construction

Administrative Law

Statutory Interpretation

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0038

LEE MEE KO (by her litigation guardian Leli Ko)	Applicant
v
DR CAROLINE HALL and ORS (according to the Schedule attached)	Respondents

---

JUDGES:	MAXWELL P, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2020
DATE OF JUDGMENT:	4 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 224

---

ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel gave decision outside time prescribed by s 28LZG(3) of Wrongs Act 1958 – Whether giving of decision outside time prescribed makes decision invalid – Whether parties can agree to extension of time after time has expired – Mikhman v Royal Victorian Aero Club [2012] VSC 42 considered – Wrongs Act 1958, s 28LZG(3).

STATUTORY INTERPRETATION – Legislative intention – Statutory purpose – Validity of act done in breach of statutory provision – Construction of statutory provision in its context – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied – Wrongs Act 1958, pt VBA.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Gorton QC with Mr P A Czarnota	Monaco Solicitors
For the First to Third Respondents	No appearance
For the Fourth Respondent	Mr S J Moloney	Moray & Agnew

MAXWELL P
BEACH JA:

In 2017, Lee Mee Ko commenced a proceeding in the Trial Division claiming damages for personal injuries from a surgeon, Dr Dean White. In that proceeding, Ms Ko alleges that she suffered injury (both physical and psychological) as a result of the negligence of Dr White.

In order to be able to obtain an award of damages for non-economic loss in her proceeding against Dr White, Ms Ko must satisfy the ‘significant injury’ threshold provisions contained in pt VBA of the Wrongs Act 1958 (the ‘Act’). In her proceeding against Dr White, Ms Ko alleges that her physical injury the subject of that proceeding satisfies the threshold level referred to in pt VBA (being a permanent whole person impairment of more than 5 per cent, as assessed in accordance with the provisions of the Act). Dr White, however, disputes this proposition.

Under the provisions of the Act, the dispute between the parties as to whether Ms Ko’s physical injury satisfies the threshold level in the Act fell to be determined by a medical panel to whom the question was referred in November 2018. The medical panel examined Ms Ko on 8 March 2019. On 20 May 2019, it issued a ‘Certificate of Determination’[1] in which it answered the question referred to it unfavourably to Ms Ko. In terms, the panel’s answer to the question referred to it was:

The panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.

[1]Together with ‘Reasons for Determination’.

On 18 July 2019, Ms Ko commenced a second proceeding in the Trial Division, seeking judicial review of the medical panel’s determination.…

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 Ko v Hall

Details

AGLC: Ko v Hall & Ors [2020] VSCA 224
Case: [2020] VSCA 224
Decision Date: 4 September 2020

CaseChat Overview and Summary

The case of Ko v Hall involved a dispute regarding the validity of a decision made by a medical panel, with the matter being brought before the Supreme Court of Victoria. The central issue was whether the decision, which was made outside the time prescribed by section 28LZG(3) of the Wrongs Act 1958, rendered the decision invalid. Additionally, the court considered whether the parties could agree to an extension of the time after it had expired. The decision of the court hinged on the interpretation of the statutory provision and the legislative intention behind it.

The court was required to determine whether the medical panel's decision was invalid due to the breach of the time limit prescribed by the statute. The key legal issue was the interpretation of section 28LZG(3) of the Wrongs Act 1958 and whether the parties' agreement to an extension after the time limit had passed could affect the decision's validity. The court examined the purpose of the statutory provision and the consequences of its breach in light of the statutory interpretation principles established in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

The court considered the construction of the statutory provision in its context and the legislative intention behind it. It found that the statutory purpose was to ensure timely decisions by the medical panel, and that the breach of the time limit could potentially render the decision invalid. However, the court also noted that the parties' agreement to an extension after the time limit had passed could be taken into account when determining the validity of the decision. The court concluded that the decision was valid, as the parties' agreement to the extension was in line with the statutory purpose and the legislative intention behind the provision.

The final orders of the court were that the decision of the medical panel was valid, and that the breach of the time limit did not render the decision invalid. The court held that the parties' agreement to an extension after the time limit had passed was permissible and did not affect the decision's validity. This decision highlights the importance of considering the statutory purpose and legislative intention when interpreting statutory provisions and determining the consequences of their breach.

Orders