Moggill Cove Pty Ltd v Burton

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01418

MOGGILL COVE PTY LTD Plaintiff
v  
STEVEN RICHARD BURTON and OTHERS (according to the attached Schedule) Defendants

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JUDGE:

Daly AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

23 November 2017

DATE OF JUDGMENT:

7 February 2018

CASE MAY BE CITED AS:

Moggill Cove Pty Ltd v Burton & Ors

MEDIUM NEUTRAL CITATION:

[2018] VSC 24

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JUDICIAL REVIEW AND APPEALS – Application by employer for judicial review of a medical panel (‘Panel’)’s opinion in respect of worker’s work capacity – Panel finding that worker had no current work capacity resulted in worker’s ongoing entitlement to compensation– Worker disclosed new information concerning his engaging in light manual labour during psychiatric assessment conducted separately to assessment by physical doctors – Whether failure of Panel to inform employer of new information amounted to failure to afford procedural fairness – Whether Panel’s failure to inform employer of new information was or may have been material to its determination – Application of the ‘hearing rule’ in the context of proceedings involving judicial review of medical panel opinions – Failure to afford procedural fairness – Failure to take into account a relevant consideration – Panel’s opinion to be quashed – Barrett Burston Malting Co v Kotzman [2013] VSC 248, applied – Sargent v Disler & Ors [2016] VSC 292, applied – YG-1 Australia Pty Ltd v Dr Brann & ors [2016] VSC 713, applied – Bahonko v Moorfields Community [2008] VSCA 6, applied – Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17 applied - Failure to provide adequate reasons on basis of failure to reconcile factual inconsistencies - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, applied.

EVIDENCE – Discrepancy between worker’s evidence as to what was said during psychiatric assessment and records of the presiding decision maker – Records of decision‑maker generally prevail in event of conflict between party and decision-maker as to accuracy of what occurred - Karabinis v Bendrops & Ors [2017] VSC 648, applied.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr M Fleming QC with Mr D Churilov Thomson Geer
For the First Defendant Mr T Tobin SC with Ms C Moore Arnold Thomas + Becker
No appearance for the Second to Fifth Defendants

HER HONOUR:

Introduction

  1. This is an application by the plaintiff, Moggill Cove Pty Ltd (‘employer’), for judicial review of a medical panel’s (‘Panel’s) opinion, whereby the Panel found that the first defendant, Mr Steven Burton (‘worker’), had ‘no current work capacity’, and that his ‘no current work capacity was likely to continue indefinitely’.  The consequence of the Panel’s determination is that the worker has, and has had since November 2015, an ongoing entitlement to weekly payments of compensation. 

  1. The employer in its originating motion filed 20 April 2017 identified a number of grounds of review.  However, in essence, each of these grounds represents a…

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Details
Case
[2018] VSC 24
Decision Date

CaseChat Overview and Summary

Moggill Cove Pty Ltd sought judicial review of a decision by a medical panel which found that an injured worker, Burton, had no current work capacity. This finding had resulted in Burton’s entitlement to ongoing compensation. Burton had engaged in light manual labour during a psychiatric assessment conducted separately from the assessment by the physical doctors. Burton had not disclosed this information to the medical panel. The issue before the court was whether the medical panel’s failure to inform the employer of this new information amounted to a failure to afford procedural fairness and whether this failure was or may have been material to the panel’s determination.

The court found that the medical panel had failed to afford procedural fairness to the employer by not informing it of the new information. The court applied the ‘hearing rule’ and held that the failure to inform the employer of the new information was or may have been material to the panel’s determination. The court quashed the opinion of the medical panel. The court also found that the medical panel had failed to provide adequate reasons for its decision on the basis of failure to reconcile factual inconsistencies. The court found that the records of the decision-maker generally prevail in the event of a conflict between the party and the decision-maker as to the accuracy of what occurred.

The court quashed the opinion of the medical panel and remitted the matter to the panel for reconsideration in accordance with the decision. The court ordered that the employer pay the worker’s costs of the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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