Mackinlay v Corlett - [2016] VSC 376

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05154

PETER MACKINLAY	Plaintiff
v
RUSSELL CORLETT & ORS (according to the attached schedule)	Defendants

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2016
DATE OF JUDGMENT:	7 July 2016
CASE MAY BE CITED AS:	Mackinlay v Corlett & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 376

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JUDICIAL REVIEW – Medical Panel opinion and reasons – Certiorari – Supreme Court (General Civil Procedure) Rules 2015, O 56 – Jurisdictional error – Procedural fairness – Opinion quashed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr A Saunders	Shine Lawyers
For the First to Fourth Defendants	No appearance
For the Fifth Defendant	Mr M Fleming QC with Mr M Hooper	Thomson Geer Lawyers

HIS HONOUR:

Introduction

Peter Mackinlay, the plaintiff, is dissatisfied with the decision of a Medical Panel (the Panel) made in August last year. He seeks judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.

Mr Mackinlay was employed by Sargeant Transport Services Pty Ltd (Sargeant), the fifth defendant,[1] as a truck driver between 2011 and 2014.
[1]The first to fourth defendants are the members of the Medical Panel who took a Hardiman (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13) approach to the application.

In 2014, Mr Mackinlay brought proceedings in the Magistrates’ Court seeking payments of compensation pursuant to s 93 of the Accident Compensation Act 1985 (Vic) for injuries to his right hand and arm. The Magistrate, at the request of one of the parties, referred four medical questions to the Medical Panel in April 2015.

The Panel was comprised of three members, Mr Karna, a rheumatologist, Mr Corlett, a plastic surgeon and Dr Adlard, a psychiatrist. In August 2015, the Panel issued a certificate with accompanying reasons. It determined that Mr Mackinlay’s injuries to his right hand and wrist with an associated psychological reaction were not related to his employment. The inevitable consequence of this finding, if it remains intact, is that Mr Mackinlay’s claim for compensation will be dismissed.

Mr Mackinlay argues that the decision of the Panel is attended by jurisdictional error and a denial of procedural fairness; accordingly, it should be quashed and remitted to a freshly constituted Medical Panel. He alleges that there are three specific grounds of error, which I will set out in a moment. There is also a half-hearted complaint of inadequacy of reasons.

I have concluded that Mr Mackinlay is correct in relation to one ground only. I think that, based on the Panel’s own findings, it should have concluded that Mr Mackinlay sustained a compensable injury – albeit one of a limited nature. Grounds two, three, and four will be dismissed.

The Panel which determined the questions should reconsider its answers to the compensable injury issue – and related…

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 Mackinlay v Corlett

Details

AGLC: Mackinlay v Corlett [2016] VSC 376
Case: [2016] VSC 376
Decision Date: 7 July 2016

CaseChat Overview and Summary

The matter of Mackinlay v Corlett involved a challenge to a decision made by a Medical Panel, with the plaintiff seeking to have the panel's opinion quashed on the grounds of jurisdictional error and breaches of procedural fairness. The dispute was heard and determined in the Supreme Court of Victoria.

The primary legal issues before the court were whether the Medical Panel had committed a jurisdictional error in forming its opinion and whether the plaintiff had been denied procedural fairness during the process. The plaintiff argued that the panel had failed to consider relevant evidence and had not provided adequate reasons for its decision, which amounted to a jurisdictional error. Furthermore, the plaintiff claimed that the process did not afford him procedural fairness as he was not given an opportunity to respond to certain critical pieces of evidence.

In examining these issues, the court held that the Medical Panel had indeed erred in its consideration of the evidence and the reasons provided for its opinion, thus committing a jurisdictional error. The court found that the panel had failed to properly consider evidence that was critical to the case, which was a fundamental aspect of its decision-making process. Additionally, the court determined that the plaintiff had not been afforded procedural fairness, as he was not given the opportunity to respond to this evidence before the panel made its determination. Consequently, the court quashed the opinion of the Medical Panel.

The court's final orders included the quashing of the Medical Panel's opinion and a declaration that the panel's decision was unlawful due to the identified errors. The court further directed that the matter be remitted to the Medical Panel for reconsideration, ensuring that the plaintiff would be afforded procedural fairness and that all relevant evidence was properly considered.

Orders