JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2021
DATE OF JUDGMENT:	26 March 2021
CASE MAY BE CITED AS:	Nguyen v Disler
MEDIUM NEUTRAL CITATION:	[2021] VSC 140

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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Panel’s opinion that there was no current physical or psychiatric condition related to the injury – Where plaintiff had complained of ongoing headaches – Whether plaintiff awarded procedural fairness – Whether Panel’s opinion legally unreasonable – Whether Panel’s reasons sufficient – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Ms M Tsikaris	Patrick Robinson & Co
For the Sixth Defendant	Mr M Fleming QC with Ms F Spencer	Minter Ellison

TABLE OF CONTENTS

A. Background................................................................................................................................... 1

B. Procedural Fairness...................................................................................................................... 1

C. Legal Unreasonableness............................................................................................................. 3

C.1.Legal unreasonableness, if established, would amount to jurisdictional error.......... 3
C.2.Did the Panel act unreasonably?........................................................................................ 5
C.2.1.Was it open to the Panel to reach the conclusion it did?................................... 8
C.2.2.Was the Panel’s reasoning process legally unreasonable in light of the complaint of ongoing symptoms?.............................................................................................. 10

D. Were the Panel’s reasons sufficient?...................................................................................... 12

D.1.The disagreement with Professor Crowe’s diagnosis.................................................. 13
D.2.The observations made by Dr Takyar and Associate Professor Doherty.................. 13
D.3.The headaches.................................................................................................................... 14

E. Capacity........................................................................................................................................ 14

F. Conclusion................................................................................................................................... 15

HIS HONOUR:

A. Background

Mr Nguyen suffered injury on 10 September 1990 when a steel bar fell onto his head in the course of his employment with Iveco Trucks Australia Ltd. He made a claim for compensation under the Accident Compensation Act 1985 (‘the Act’). The claim was accepted and Mr Nguyen commenced to receive benefits under the Act, including weekly payments of compensation. On 24 October 2012, some 22 years later, the Victorian WorkCover Authority advised Mr Nguyen that his entitlement to weekly payments under the Act would cease from 26 January 2013. On 24 September 2018, almost a further six years later, Mr Nguyen commenced proceedings in the Magistrates’ Court of Victoria against Iveco Trucks, in which he sought orders that his weekly payments be reinstated as from 26 January 2013.

The Magistrates’ Court referred questions to a Medical Panel established under the Workplace Injury Rehabilitation and Compensation Act 2013. The Panel (consisting of two psychiatrists, an otolaryngologist, a rehabilitation physician and a neurologist) assessed Mr Nguyen in December 2019. The Panel formed the view that, although Mr Nguyen had sustained ‘a minor traumatic brain injury’ in 1990, he had no current physical or psychiatric condition that was related to that initial injury.

Mr Nguyen seeks to have the Panel’s opinion quashed on the grounds that the Panel denied him procedural fairness, that its decision was legally unreasonable, and that it failed to give adequate reasons for its decision.

The members of the Panel are the first…

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 Nguyen v Disler

Details

AGLC: Nguyen v Disler [2021] VSC 140
Case: [2021] VSC 140
Decision Date: 26 March 2021

CaseChat Overview and Summary

In the matter of Nguyen v Disler, the plaintiff sought judicial review of a decision made by a Medical Panel under the Workers Compensation scheme. The plaintiff, Nguyen, argued that the Panel's opinion, which found no current physical or psychiatric condition related to the injury he had sustained, was legally unreasonable and that he had not been afforded procedural fairness during the process. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the plaintiff had been denied procedural fairness and whether the Panel's opinion was legally unreasonable. The court also needed to determine whether the Panel's reasons for its decision were sufficient. In examining the procedural fairness issue, the court considered whether Nguyen had been given a proper opportunity to present his case and respond to the evidence and arguments against him. Regarding the legality of the Panel's opinion, the court assessed whether the Panel's conclusion was based on a proper application of the relevant legal principles and whether it was open to the Panel to reach such a conclusion based on the evidence before it.

The court found that the plaintiff had indeed been afforded procedural fairness. It held that Nguyen had been given a fair opportunity to present his case and respond to the evidence and arguments. The court also concluded that the Panel's opinion was not legally unreasonable and that it was open to the Panel to reach the conclusion that there was no current physical or psychiatric condition related to the injury. The Panel's reasons were deemed sufficient, as they adequately explained the basis for its decision. Consequently, the application for judicial review was dismissed.

Orders