Maimonis v Bourke - [2019] VSC 456

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01474

THEO MAIMONIS	Plaintiff
v
MR JOHN BOURKE
DR DAVID EATON
MR GEOFFREY KLUG
DR ANTHONY SHEEHAN	First to Fourth Defendants
and
METROLINK VICTORIA PTY LTD
KDR VICTORIA PTY LTD	Fifth and Sixth Defendants

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2019
DATE OF JUDGMENT:	12 July 2019
CASE MAY BE CITED AS:	Maimonis v Bourke & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 456

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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Order 56 – Certiorari to quash the determination of the Medical Panel – Whether jurisdictional error – Taking into account irrelevant considerations – Failure to take into account relevant considerations – Whether Panel’s statement of reasons adequate – Procedural fairness – No error established – Definition of ‘injury’ considered – Accident Compensation Act 1985 ss 82, 5(1B) – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 40(3), sch 1 pt 3 cl 25.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Horner	Ellis Palmos Lawyers
For the First to Fourth Defendants	No appearance	DLA Piper Australia
For the Fifth and Sixth Defendants	Mr J P Gorton QC with Ms F C Spencer	Lander & Rogers and Wisewould Mahony

HER HONOUR:

Introduction

The Plaintiff, Theo Maimonis, began work as a tram conductor in November 1987 with what was then the Public Transport Corporation. In 1991 he retrained as a tram driver after conductors were abolished on Melbourne’s trams.

In August 1999, he started working for Metrolink Victoria (the fifth defendant) when that entity took over operation of Melbourne’s trams. Subsequently, he was employed as a tram driver by KDR Victoria (the sixth defendant) from 30 November 2009 to 28 October 2015.

In his employment as a tram driver with both Metrolink Victoria (‘Metrolink’) and KDR Victoria (‘KDR’) he drove C-class trams from around 2001. He also drove W-class and Z-class trams during his employment, but it is the C-class trams which is the focus of the causal connection between the injury claimed and work, the subject of this proceeding.

Mr Maimonis has a long history of neck and shoulder pain first reported in the late 1980’s or early 1990’s. His symptoms became worse and on 28 October 2015 Mr Maimonis ceased working. He had performed his full duties until then but has not worked since that time.

Just over a month after his employment with KDR ceased, he lodged a Workcover claim against KDR for a neck injury. This claim was rejected on 4 January 2016. Later that year Mr Maimonis also made a Workcover claim against Metrolink for a neck injury. On 5 October 2016 this claim was also rejected.

There was no dispute between the parties that Mr Maimonis’s neck condition, cervical spondylosis, is quite significant. The condition has led him to undergo two operations and other treatments between. The issue is whether he…

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 Maimonis v Bourke

Details

AGLC: Maimonis v Bourke [2019] VSC 456
Case: [2019] VSC 456
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the matter of Maimonis v Bourke, the applicant, Mr Maimonis, sought judicial review of a decision made by a Medical Panel under the Accident Compensation Act 1985. The decision in question pertained to the definition of 'injury' as it applied to a claim for compensation. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the Medical Panel had made a jurisdictional error by taking into account irrelevant considerations or failing to take into account relevant considerations. The applicant argued that the Panel had not adequately considered the definition of 'injury' as set out in the Act, and that the Panel's statement of reasons was insufficient to demonstrate that all relevant considerations had been taken into account. The applicant also contended that the Panel had failed to observe procedural fairness by not providing an opportunity to be heard.

The court found that no jurisdictional error had been established. It held that the Panel's statement of reasons was sufficient to demonstrate that all relevant considerations had been taken into account. The court also held that the applicant had not been denied procedural fairness, as he had been provided with an opportunity to be heard and to make submissions on the definition of 'injury'. The court noted that the Panel had considered the relevant statutory provisions and had provided reasons for its decision. The court found that the applicant had not established that the Panel had made a jurisdictional error or had failed to observe procedural fairness.

The final orders of the court were that the application for judicial review be dismissed, that the decision of the Medical Panel be affirmed, and that the applicant pay the respondent's costs of the application.

Orders