Moggill Cove Pty Ltd v Burton - [2018] VSC 24

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

---

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

---

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.

---

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

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.

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…

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.

Keep reading for free

Create a free CaseChat account to read Moggill Cove Pty Ltd v Burton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 24
Decision Date: 7 February 2018

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