| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00116
| LJILJANA NESTOROVIC | Plaintiff |
| v | |
| PROFESSOR LEANNE ROWE | Frist Defendant |
| DR CAROLINE BRAND | Second Defendant |
| MR JOHN BOURKE | Third Defendant |
| DR JOHN MALIOS | Fourth Defendant |
| MULTICULTURAL AGED CARE SERVICES PTY LTD | Fifth Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2017 |
DATE OF JUDGMENT: | 20 December 2017 |
CASE MAY BE CITED AS: | Nestorovic v Rowe & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 787 |
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ADMINISTRATIVE LAW – Judicial Review and Appeals – Supreme Court (General Civil Procedure) Rules 2015, order 56 – Medical panel – Jurisdictional error – Procedural fairness –Whether the Panel took account of irrelevant matters or failed to consider relevant matters – Whether Panel reached conclusions that were not open to it – Whether plaintiff’s injuries are consistent with an injury of a psychogenic nature.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A G Uren QC with Mr A Ingram | Arnold Thomas & Becker |
| For the Fifth Defendant | Mr M F Fleming QC with Mr R Kumar | Wisewould Mahoney |
HIS HONOUR:
Ms Nestorovic was employed by the fifth defendant, Multicultural Aged Care Services Pty Ltd (Multicultural Aged Care), as a part-time food services assistant. She described her work as involving a lot of heavy lifting, preparing meals, pushing a heavy trolley, washing dishes and loading food onto shelves and into a freezer. While loading plates into a bain-marie, Ms Nestorovic experienced sudden severe pain in her low back and numbness in the left leg. A claim for compensation made by Ms Nestorovic was accepted by the authorised insurer of Multicultural Aged Care and compensation was paid pursuant to the Accident Compensation Act 1985 (the ACA). A short time after Ms Nestorovic returned to normal duties, her employment was terminated. Ms Nestorovic’s application to reinstate weekly payments of compensation was rejected by the authorised insurer on the basis that any incapacity was no longer the result of the work injury. Ms Nestorovic claims to have an ongoing entitlement to weekly payments of compensation because she says she is incapacitated for work by the condition of her low back which resulted from or was materially contributed to by the work injury.
A proceeding was issued by Ms Nestorovic in the Magistrates’ Court claiming ongoing entitlement to weekly payments of compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). The Magistrates’ Court referred questions to a medical panel for its opinion. Answering those questions, the Panel determined that Ms Nestorovic currently suffers pre-existing constitutional lumbar spondylosis, which does not result from and is not materially contributed to by the work injury. The effect of the Opinion of the Panel was that Ms Nestorovic has no ongoing entitlement to weekly payments of compensation under the Act. Ms Nestorovic has no right to appeal the decision of the Panel on its merits, but does seek judicial review of the Panel…
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- AGLC
- Nestorovic v Rowe [2017] VSC 787
- Case
- [2017] VSC 787
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the medical panel had made a jurisdictional error, whether the panel had failed to observe principles of procedural fairness, and if the panel had taken into account irrelevant matters or failed to consider relevant matters. The plaintiff further argued that the panel had reached conclusions that were not open to it, particularly in relation to the nature of the plaintiff's injuries.
The court considered whether the medical panel had properly exercised its jurisdiction and adhered to procedural fairness. It examined the evidence and the panel's findings to determine if any jurisdictional errors had occurred. The court found that the panel had indeed failed to observe procedural fairness by not providing the plaintiff with an opportunity to respond to certain critical evidence. Additionally, the court held that the panel had taken into account irrelevant matters and failed to consider relevant ones, leading to conclusions that were not open to it. The court concluded that the panel's determination that the plaintiff's injuries were psychogenic was not supported by the evidence.
The court quashed the decision of the medical panel and remitted the matter back to the panel for reconsideration, ensuring that all procedural fairness requirements were met and that the panel properly considered all relevant evidence. The court also directed that the panel reconsider the nature of the plaintiff's injuries in light of the proper evidence and without any procedural deficiencies.
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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