O'Neill v Holmes - [2018] VSC 292

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS

S CI 2018 00345

CYPRIAN O’NEILL	Plaintiff
v
PROFESSOR ALEXANDER HOLMES and DR BRENDAN HAYMAN (MEDICAL PANEL)	First Defendants
RANDSTAD PTY LTD	Second Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2018
DATE OF JUDGMENT:	30 May 2018
DATE OF WRITTEN REASONS:	31 May 2018
CASE MAY BE CITED AS:	O’Neill v Holmes & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 292

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JUDICIAL REVIEW – Application for extension of time to seek judicial review of opinion of a medical panel – Lengthy delay – Only broad and general assertions to explain the delay – No arguable case for judicial review if the extension granted – Extension refused – Supreme Court (General Civil Procedure) Rules 2015 r 56.02.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
No appearance for the First Defendants
For the Second Defendant	Ms S Gold	Hall & Wilcox Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Legal principles.................................................................................................................................. 2

Extension of time........................................................................................................................... 2
Nature of judicial review............................................................................................................. 3

Consideration...................................................................................................................................... 5

Delay and explanation for delay................................................................................................ 5
Nature of the incident................................................................................................................... 5
Merits of the plaintiff’s case......................................................................................................... 6
Matters that could not ground judicial review even if proved.................................... 6
Matters that could ground judicial review if proved.................................................... 8

Other matters relevant to extension of time............................................................................ 11

Conclusion......................................................................................................................................... 11

HER HONOUR:

Introduction

These reasons concern an application to extend time for the commencement of a proceeding for judicial review. The decision sought to be reviewed is that of a medical panel, constituted by the first defendants (Panel). The first defendants have filed a Notice of Appearance but in accordance with usual custom do not appear at the hearing of the application and take a Hardiman approach to the Court’s determination. The application for extension of time is opposed by the second defendant, the plaintiff’s former employer.

The plaintiff was employed by the second defendant as a nurse. The referral to the Panel arose from his application for impairment benefits pursuant to s 98C of the Accident Compensation Act 1985 (the Act) for a psychological injury described as anxiety/depression/Post Traumatic Stress Disorder arising from an incident at the Austin Hospital in May 2008. The employer initially rejected liability, but subsequently accepted liability for this injury. The Panel determined that the plaintiff’s degree of permanent whole person impairment resulting from the accepted psychiatric injury (anxiety/depression/Post Traumatic Stress Disorder) was 25%. The minimum degree of impairment for the receipt of impairment benefits pursuant to s 98C of the Act for a psychological injury is 30%.

I refused leave for the extension of time on the day of the hearing of the application and gave oral reasons at that time. What follows are those reasons, essentially in the form I gave them orally, with limited corrections and some references added. In the course of the oral reasons there were exchanges with Mr O’Neill which I have noted in brackets,…

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 O'Neill v Holmes

Details

AGLC: O'Neill v Holmes [2018] VSC 292
Case: [2018] VSC 292
Decision Date: 30 May 2018

CaseChat Overview and Summary

The case of O'Neill v Holmes was heard in a superior court, where the applicant sought an extension of time to apply for judicial review of an opinion rendered by a medical panel. The applicant, O'Neill, had a substantial delay in initiating the judicial review process and provided only broad and general assertions to justify this delay. The court had to determine whether an arguable case existed for judicial review if the extension was granted and whether the extension itself should be approved.

The primary legal issue was whether the applicant had provided sufficient grounds for the court to grant an extension of time. The court examined the rules governing judicial review and the general principles of equity and fairness that apply when considering extensions of time. The court also assessed the merits of the application for judicial review, which would be contingent upon the granting of the extension.

In ruling on the matter, the court found that the applicant's assertions were too vague and general to justify an extension. The court emphasised that an arguable case for judicial review was essential and that the application did not meet this threshold. Consequently, the court refused the application for an extension of time, noting that the delay was not adequately explained and that the application for judicial review lacked sufficient merit. The court's decision was grounded in the principles of fairness and the need to uphold the integrity of the judicial review process.

The final orders of the court were that the application for an extension of time was dismissed, and the application for judicial review was not pursued further due to the failure to meet the necessary criteria. The court underscored the importance of timely applications and the requirement for clear and specific justifications for any delays.

Orders