Maribyrnong City Council v Malios - [2014] VSC 452

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 03461

MARIBYRNONG CITY COUNCIL & ANOR	Plaintiffs
v
MALIOS & OTHERS	Defendants

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2014
DATE OF JUDGMENT:	16 September 2014
CASE MAY BE CITED AS:	Maribyrnong City Council & Anor v Malios & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 452

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ADMINISTRATIVE LAW ‑ judicial review ‑ Accident Compensation Act 1985 (Vic) Pt III Div 3 ‑ opinion of medical panel ‑ whether worker’s employment a significant contributory factor to injury ‑ whether jurisdictional error ‑ whether panel failed to take into account considerations it was bound to take into account ‑ whether panel relied on considerations it was bound to ignore ‑ whether panel failed to accord procedural fairness ‑ whether panel failed to give proper and adequate reasons for decision ‑ standard of reasons required ‑ Wingfoot Australia v Kocak (2013) 303 ALR 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fleming QC with Mr D Churilov	Injury Disputes Practice Lawyers
For the Eighth Defendant	Mr A Clements QC with Mr N Dunstan	Patrick Robinson & Co

HIS HONOUR:

Introduction

On 13 May 2013 a medical panel comprising the first to seventh defendants (the panel) convened under Part III Division 3 of the Accident Compensation Act 1985 (Vic) (the Act) gave a certificate of opinion pursuant to s 68(2) of the Act in response to a number of medical questions referred to it by a magistrate. In substance, the panel was of the view that a particular worker’s employment with the Maribyrnong City Council (the Council) was a significant contributing factor to that worker developing a carpal tunnel injury to her right wrist and a secondary depressive illness.

In this proceeding the Council seeks a remedy in the nature of certiorari to quash the certified opinion and an order remitting the medical questions to a differently constituted panel to be reconsidered in accordance with law. There are four grounds for the review:

(1)the panel fell into jurisdictional error by failing to take into account considerations it was bound to have regard to;
(2)the panel fell into jurisdictional error by relying on considerations it was bound to ignore;
(3)the panel failed to accord the Council procedural fairness; and
(4)the panel erred in law in failing to give proper and adequate reasons for its opinion on the referred medical questions.

All of the grounds express in different ways the Council’s fundamental complaint that the panel did not properly evaluate or take into account information and submissions concerning:

·manifestations of the worker’s physical and mental medical conditions occurring prior to her commencing employment with the Council; and
·causal factors for her physical and mental conditions other than her employment.

The Council is the plaintiff in this proceeding. The worker, Ms Reyna Bonilla, is the eighth defendant. Ms Bonilla took the active role in opposing the Council’s…

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.

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Details

Case: [2014] VSC 452
Decision Date: 16 September 2014

CaseChat Overview and Summary

The case of Maribyrnong City Council v Malios was heard by the Court of Appeal, which was reviewing a decision made by a medical panel under the Accident Compensation Act 1985 (Vic). The dispute centred around whether the worker's employment was a significant contributory factor to his injury. The appellant, Malios, was seeking judicial review of the panel's decision, which found that his employment was not a significant contributory factor in his injury. The respondents, the City Council and others, argued against the review, asserting that the panel's decision was correct.

The court needed to determine whether the panel made a jurisdictional error by either failing to take into account considerations it was bound to consider or by relying on considerations it was bound to ignore. Additionally, the court examined whether the panel failed to accord procedural fairness to Malios and whether it failed to provide proper and adequate reasons for its decision. The standard of reasons required was assessed against the principles established in Wingfoot Australia v Kocak.

The Court of Appeal found that the panel did not make a jurisdictional error in its consideration of the evidence and the weight to be given to it. The panel was not required to accord procedural fairness to Malios, and the reasons provided were adequate. The court held that the panel's decision was not flawed, and therefore, the appeal was dismissed. The respondents were awarded costs of the appeal.

The Court of Appeal dismissed the appeal and ordered Malios to pay the respondents' costs of the appeal.

Orders