Murugesu v Ruban Pty Ltd - [2018] VSC 276

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 04496

VISAWANATHAN MURUGESU	Plaintiff
v
RUBAN PTY LTD	First Defendant
and
ASSOCIATE PROFESSOR DAVID ERNEST	Second Defendant
and
MEDICAL PANEL CONSTITUTED BY A/PROF HOLMES, DR NEILL, DR THEVATHASAN, DR HOMOLKA and MR HARDIDGE	Third Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	29 May 2018
CASE MAY BE CITED AS:	Murugesu v Ruban Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 276

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ADMINISTRATIVE LAW – Opinion of Medical Panel – Judicial review – Jurisdictional error – Failure to take into account a relevant consideration – Prior low back condition – Consent orders sought by worker and employer quashing opinion – Court satisfied consent order should be made – Opinion quashed – Questions referred to new Panel – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 – Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 – Ward v Corrimal-Balgownie Collieries (1938) 61 CLR 120 – Walsh v Department of Human Services [2014] VSCA 244 (3 October 2014).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Arnold Thomas & Becker
For the First Defendant	Thomson Geer

HIS HONOUR:

The plaintiff brought proceedings in the Magistrates’ Court claiming a continuing entitlement to compensation under the Accident Compensation Act 1985 (Vic) (ACA) for injuries he sustained in the course of his employment with the first defendant. A magistrate referred medical questions relevant to the plaintiff’s proceeding (the questions) to a medical panel pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRCA). The medical panel, constituted by the third defendant, provided a certified opinion on 1 September 2016 answering the medical questions. The plaintiff commenced this proceeding seeking an order in the nature of certiorari quashing the opinion of the medical panel.

The plaintiff and first defendant agree the opinion of the medical panel should be quashed. They have provided the Court with a joint memorandum submitting the Court should set aside the medical opinion and that the matter be remitted to a differently constituted medical panel.

In judicial review proceedings it is necessary for the Court to be satisfied that it is appropriate to make consent orders which the parties propose.[1] For the following reasons, I am satisfied that the Court should make the orders sought by the parties.
[1]Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, 323-327; Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574 [12]-[16].

Background

The plaintiff has two accepted claims for compensation under the ACA, the first in respect of a low back injury allegedly sustained on 3 August 2010, and the second in respect of a right shoulder injury and psychological injury from July 2011.

The plaintiff was notified in April and July 2015 that his weekly…

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 Murugesu v Ruban Pty Ltd

Details

AGLC: Murugesu v Ruban Pty Ltd [2018] VSC 276
Case: [2018] VSC 276
Decision Date: 29 May 2018

CaseChat Overview and Summary

The applicant in this case sought judicial review of the decision of a medical panel that had determined his entitlement to a particular payment under the Workplace Injury Rehabilitation and Compensation Act 2013. The applicant and the respondent, Ruban Pty Ltd, had entered into consent orders seeking the quashing of the panel's opinion and the referral of questions to a new panel for determination. The matter was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the medical panel had erred in its decision-making process by failing to consider the applicant's prior low back condition, a relevant consideration under the Act. The applicant argued that this omission constituted a jurisdictional error.

The court examined the relevant statutory provisions and relevant case law, including Kovalev v Minister for Immigration and Multicultural Affairs, Irwin v Military Rehabilitation and Compensation Commission, Ward v Corrimal-Balgownie Collieries, and Walsh v Department of Human Services. It concluded that the medical panel had indeed failed to take into account the applicant's prior low back condition, which was a relevant consideration. This failure constituted a jurisdictional error, as the panel had not properly exercised its discretion in making the decision. The court was satisfied that the consent orders sought by the parties were appropriate and in the best interests of the applicant. The court quashed the opinion of the medical panel and referred the relevant questions to a new panel for determination.

The final orders of the court were that the opinion of the medical panel be quashed, and the relevant questions be referred to a new panel for determination, in accordance with the consent orders entered into by the applicant and the respondent. The court's decision highlights the importance of properly considering all relevant factors in decision-making processes and the consequences of failing to do so.

Orders