Omerasevic v Kotzman - [2016] VSC 429

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 06893

SMAJL OMERASEVIC	Plaintiff
v
DR DAVID KOTZMAN AND OTHERS	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2016
DATE OF JUDGMENT:	2 August 2016
CASE MAY BE CITED AS:	OMERASEVIC v KOTZMAN
MEDIUM NEUTRAL CITATION:	[2016] VSC 429

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COSTS – Order quashing part of opinion of medical panel – Defendant successful as to part – Plaintiff’s solicitors disclosing evidence relied upon at early stage of proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Schilling	Zaparas Lawyers
For the Defendants	Mr M Fleming QC Mr R Kumar	Minter Ellison

HIS HONOUR:

Following the publication of reasons on 22 July 2016,[1] the parties agreed that the following form of orders was appropriate:
[1][2016] VSC 383 (‘Reasons’).

1.The opinion of the medical panel comprised by the first to fourth defendants (the Medical Panel) certified in writing dated 4 November 2014 on questions 2 to 5 of the medical questions referred on 15 August 2014 pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Referred Medical Questions) be quashed insofar as that opinion concerns the injuries alleged in questions 1(a), 1(b) and 1(d) of the Referred Medical Questions.
2.Questions 2 to 5 of the Medical Questions insofar as they concern the injuries alleged in questions 1(a), 1(b) and 1(d) of the Referred Medical Questions (the Remitted Questions) be remitted to the same Medical Panel to be reconvened by the Convenor of Medical Panels for the purpose of determining the Remitted Questions:
(a)in accordance with the Plaintiff’s description of his work duties referred to in paragraph 48 of the reasons for judgment of this Court dated 22 July 2016; and

(b) in accordance with law.

However, the question of costs is disputed. It was contended on behalf of the plaintiff that the appropriate order for costs was that the defendants should pay the plaintiff’s costs. The defendants contended that there should be no order as to costs.

Relevant facts

The plaintiff commenced the proceeding by originating motion dated 24 December 2014 in which the plaintiff sought to quash the opinion of the Medical Panel on the basis of the Medical Panel failing to take into account the nature of the plaintiff’s work duties involving his hands and wrists and, in particular, the Additional Duties Description, which were defined at [54] of the reasons.

The amended originating motion dated 27 January 2015 was filed pursuant to leave granted by Derham AsJ on 9 April 2015. The plaintiff alleged that the error of the Medical Panel was in failing to take into account the work history, involving his hands and wrists, in particular, the Additional Duties Description, in accordance with statements made by the plaintiff to the Medical Panel at the examination on 13 October 2014.

By letter dated 19 March 2015 to the defendants’ solicitors, the plaintiff’s solicitors enclosed the…

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 Omerasevic v Kotzman

Details

AGLC: Omerasevic v Kotzman [2016] VSC 429
Case: [2016] VSC 429
Decision Date: 2 August 2016

CaseChat Overview and Summary

The case of Omerasevic v Kotzman involved a dispute regarding costs in relation to a medical opinion panel's report. Omerasevic, the plaintiff, sought costs from Kotzman, the defendant, for part of the opinion of a medical panel. Kotzman successfully challenged the plaintiff's claim for costs concerning part of the opinion. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiff's solicitors were entitled to costs for disclosing evidence relied upon by the medical panel at an early stage of the proceedings. The court needed to determine if the disclosure was sufficiently significant to warrant the costs claimed.

The court considered the circumstances under which the evidence was disclosed and the potential impact of the disclosure on the proceedings. It was noted that the disclosure was made at an early stage, which could have influenced the panel's opinion. However, the court found that the evidence was not sufficiently critical to justify the costs claimed. The court reasoned that the disclosure did not significantly alter the course of the proceedings and, therefore, did not warrant the costs sought by the plaintiff.

The court quashed the order for costs in relation to the part of the opinion that the plaintiff's solicitors sought to recover. The defendant was deemed successful in relation to this part of the proceedings.

Orders