Miletic v ANZ Banking Group Limited - [2022] VSC 240

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03588

DANICA MILETIC	Plaintiff
v
ANZ BANKING GROUP LIMITED	First Defendant
and
DR DOMINIC YOUNG	Second Defendant
and
DR MARIE FELETAR	Third Defendant
and
MR KEITH ELSER	Fourth Defendant
and
DR DIANNE NEIL	Fifth Defendant
and
DR JULIAN FREIDLIN	Sixth Defendant

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2021. Last written submission filed 14 May 2021.
DATE OF JUDGMENT:	17 May 2022
CASE MAY BE CITED AS:	Miletic v ANZ Banking Group Limited & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 240

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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel on medical questions referred by County Court hearing serious injury application – Whether in answering medical questions the Panel dealt lawfully with plaintiff’s complaints of pain – No error of law or jurisdictional error – Emmelmann v Thomson Geer Services Pty Ltd [2020] VSC 801, distinguished – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3, 274, 325, 328.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A G Uren QC with E Makowski	Ryan Carlisle Thomas
For the Defendant	P Solomon QC with M Hooper	Sparke Helmore

HIS HONOUR:

Overview

The plaintiff, Ms Danica Miletic, brings a challenge, by way of judicial review, to a certified opinion given by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) on 17 July 2020. The Panel had five members – an occupational and environmental physician, a rheumatologist, an orthopaedic surgeon and two psychiatrists.[1] They comprise the second to sixth defendants.
[1]Medical Panel’s certificate of opinion: Court Book (‘CB’) 65.

In 2002 Ms Miletic commenced employment with the first defendant, ANZ Banking Group Limited (‘ANZ’), as a customer service consultant.[2] In 2015 she claimed statutory compensation under Part 5 of the Act from ANZ for alleged injuries to her ‘right wrist/elbow/arm’ due to alleged ‘overuse’ of a computer mouse at work.[3] ANZ accepted liability and made payments in respect of right lateral epicondylitis; and, subsequently, in respect of bilateral epicondylitis and secondary psychological injuries.[4] Various components making up Ms Miletic’s payments ceased in July and September 2017 pursuant to decisions made under Part 5. Ms Miletic’s remaining payments ceased pursuant to a decision made in December 2018.[5] The several decisions to cease Ms Miletic’s payments are not presently under challenge.
[2]Medical Panel’s reasons for opinion: CB 69.
[3]Ibid: CB 70.
[4]Ibid.
[5]Ibid.

In June 2019 the plaintiff commenced a ‘serious injury application’ against ANZ in the County Court of Victoria under Part 7 (more particularly s 328) of the Act.[6] By that application she sought leave to bring a proceeding for common law damages for pain and suffering and economic loss in respect of alleged injuries that largely corresponded with the alleged injuries in respect of which she had for a time received statutory compensation.[7] To obtain leave she needed to demonstrate that she had…

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: [2022] VSC 240
Decision Date: 17 May 2022

CaseChat Overview and Summary

The plaintiff, Miletic, sought judicial review of a decision made by a Medical Panel under the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Panel had been asked to provide opinions on medical questions arising from a County Court hearing concerning a serious injury application. Miletic contested the Panel's handling of his complaints of pain, arguing that there was an error of law or a jurisdictional error in their response. ANZ Banking Group Limited, as the defendant, defended the Panel's actions, asserting that no such errors occurred.

The central legal issue before the court was whether the Medical Panel had lawfully addressed the plaintiff's complaints of pain when responding to the medical questions posed. The court had to examine if there was any error of law or jurisdictional error in the Panel's process or conclusions. This involved determining whether the Panel's approach was consistent with the statutory framework and whether their findings were supported by the evidence presented.

The court found that the Panel had dealt with the plaintiff’s complaints of pain appropriately, without committing any error of law or jurisdictional error. The court distinguished the case from Emmelmann v Thomson Geer Services Pty Ltd, where a different outcome was reached due to the specific circumstances of that case. Consequently, the court dismissed the plaintiff's application for judicial review, upholding the Panel's decision. The reasoning hinged on the Panel's adherence to the statutory requirements and the adequacy of their evidence-based findings.

The court's final order was to dismiss the proceeding, affirming that the Panel's actions were lawful and that no further review was warranted. This decision was grounded in the statutory provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), particularly sections 3, 274, 325, and 328.

Orders