JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2022
DATE OF JUDGMENT:	24 November 2022
CASE MAY BE CITED AS:	Noureddine v Adlard
MEDIUM NEUTRAL CITATION:	[2022] VSC 719

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Panel’s reasons referred to new medical evidence – Applicant not provided with new evidence nor opportunity to make submissions on it – Whether breach of procedural fairness – Whether material ‘truly new’ – New evidence not available to parties – Error established – Whether error material – Error could have made difference – Whether reasonable apprehension of bias – Doctor said to applicant ‘don’t hate’ employer – Comment capable of various interpretations – Apprehended bias not made out – Panel’s opinion quashed - Matter remitted to differently constituted panel.

Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; Jones v Fish [2020] VSC 542 applied. Wurth Australia Pty Ltd v Gallichio [2010] VSC 630, discussed. Kirkpatrick v Commonwealth (1985) 9 FCR 36; Winch v Repatriation Commission (1999) 55 ALD 351; De Tarle v Comcare [2022] FCA 175, distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota and Mr A Macaskill	Fittipaldi Injury Lawyers
For the First to Sixth Defendants	No appearance	Victorian Government Solicitor’s Office
For the Seventh Defendant	Mr M Fleming KC with Ms F Spencer	Thomson Geer Lawyers

HER HONOUR:

Introduction and summary

The plaintiff, Mr Noureddine, worked for the seventh defendant, Visy Board Pty Ltd (‘Visy’) from 1998 to March 2020. In February 2015 he suffered a stroke while entering his car at the Visy car park. He has since experienced various medical impairments attributed to the stroke, including persisting receptive and expressive dysphasia, cognitive dysfunction and an adjustment disorder with mixed anxiety and depressed mood. In June 2018 Mr Noureddine made a claim for worker’s compensation in relation to the stroke. He alleged that his work was a significant contributing cause of the stroke, based in substance on work-related stress. His claim was initially rejected, and he commenced a proceeding in the Magistrates’ Court disputing that rejection. A medical panel (the ‘first panel’) gave an opinion in 2019 that his employment was a ‘significant contributing factor’ to the stroke injury. The claim was then accepted.

In May 2020 Mr Noureddine made an application for common law damages under s 328(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’) based on the stroke and its sequalae. In that proceeding a judge of the County Court referred to a medical panel (the ‘panel’) a series of questions relating to Mr Noureddine’s medical conditions. One of the questions was whether Mr Noureddine’s employment with Visy was ‘a significant contributing factor to the alleged stroke injury’. The panel concluded that…

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 Noureddine v Adlard

Details

AGLC: Noureddine v Adlard [2022] VSC 719
Case: [2022] VSC 719
Decision Date: 24 November 2022

CaseChat Overview and Summary

The case of Noureddine v Adlard involved an application for judicial review of a decision made by a medical panel. The applicant, Noureddine, sought to challenge the panel's decision on several grounds, including a breach of procedural fairness, a material error, and an apprehended bias. The court was required to determine whether the panel had breached the rules of natural justice by referring to new medical evidence without providing it to the applicant or allowing the applicant to respond to it. Additionally, the court had to assess whether the new evidence was truly new, and if the error was material and could have made a difference to the outcome. Finally, the court needed to consider whether there was an apprehended bias due to a comment made by one of the panel members to the applicant.

The court found that the panel had indeed breached procedural fairness by referring to new medical evidence without giving the applicant an opportunity to respond. The court also determined that the new evidence was not truly new as it was not available to the parties at the time of the hearing. However, the court concluded that the error was not material because it could not have made a difference to the outcome of the decision. The court found that the comment made by one of the panel members to the applicant did not give rise to an apprehended bias as it was capable of various interpretations and did not create a reasonable apprehension of bias.

As a result, the court quashed the panel's opinion and remitted the matter to a differently constituted panel for reconsideration. The court applied the principles set out in Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 and Jones v Fish [2020] VSC 542 to determine the scope of procedural fairness and the test for materiality of error. The court distinguished the cases of Wurth Australia Pty Ltd v Gallichio [2010] VSC 630, Kirkpatrick v Commonwealth (1985) 9 FCR 36, Winch v Repatriation Commission (1999) 55 ALD 351, and De Tarle v Comcare [2022] FCA 175, which were not directly applicable to the facts of this case.

The final orders of the court included quashing the decision of the medical panel, remitting the matter to a differently constituted panel for reconsideration, and awarding costs to the applicant. The court emphasised the importance of procedural fairness and the need for medical panels to provide all relevant evidence to the parties and allow them an opportunity to respond to it. The court also highlighted the need for medical panels to be mindful of any comments they make to the parties and to avoid any language that may give rise to an apprehended bias.

Orders