Ozkan v Leitch (Ruling No 2) - [2012] VSC 17

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 2009 10527

BETWEEN

HURIYE OZKAN	Plaintiff
and
MR ROBERT LEITCH	First Defendant
and
ST VINCENT’S HOSPITAL (MELBOURNE) LTD	Second Defendant
and
MR RUSSELL CORLETT	Third Defendant

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION

No. SCI 2010 00216

BETWEEN

HURIYE OZKAN	Plaintiff
and
ST VINCENT’S HOSPITAL (MELBOURNE) LTD	First Defendant
and
DR PETER FARNBACH	Second Defendant
and
DR DIANE NEILL	Third Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2012
DATE OF RULING:	31 January 2012
CASE MAY BE CITED AS:	Ozkan v Leitch & Ors (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 17

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ADMINISTRATIVE LAW – Judicial review – Medical panel findings – Orders by consent quashing findings – Entitlement of respondent to indemnity certificate – Appeal Costs Act 1998 (Vic) ss 3, 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (in each proceeding)	Mr A G Uren QC and Mr A Pillay	Holding Redlich
For St Vincent’s Hospital (Melbourne) Limited (the first defendant in action 2010 00261 and the second defendant in action 2009 10527)	Dr K Hanscombe SC	Minter Ellison
Counsel for Mr R Leitch and Mr R Corlett (the first and third defendants in action 2009 10527) and for Dr Peter Farnbach and Dr Diane Neill (the first and second defendants in action 2010 00261)	Ms M Britbart	Monahan & Rowell

HIS HONOUR:

As indicated in the course of submissions made to me by Dr Hanscombe, I am persuaded that this is an appeal for the purposes of s 4 of the Appeal Costs Act; and, secondly, that it is an appeal against the decision of a court as defined by s 3 of that Act.

In reaching that conclusion I am fortified in my views by the information helpfully given to me by Ms Britbart, who appears on behalf of the panel in each proceeding, that in fact certificates have been granted under s.4 of the Appeal Costs Act 1998 in applications for judicial review of medical panels.

The only matter which has caused me some hesitation is whether the appeal in this case has succeeded for the purposes of s 4 of the Act. Dr Hanscombe has referred me, in that regard, to the judgment of Brooking J when he was a member of the Full Court, in Pickford v Incorporated Nominal Defendant.[1]
[1][1981] VR 583.

In this case the parties, have each agreed that I should make orders in the form of certiorari quashing the findings of the Medical Panel. The grounds upon which the review was sought are complex, and that is particularly so because of the view that has been taken by the Medical Panel as to the effect of a statement by Cavanough J in McAlister v Leitch & Ors[2] as to whether there should be one or more questions and one or more determinations by the panel, where there is both…

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 Ozkan v Leitch (Ruling No 2)

Details

AGLC: Ozkan v Leitch (Ruling No 2) [2012] VSC 17
Case: [2012] VSC 17
Decision Date: 31 January 2012

CaseChat Overview and Summary

The case of Ozkan v Leitch (Ruling No 2) involved the applicant Ozkan and the respondent Leitch. Ozkan sought judicial review of findings made by a medical panel regarding his fitness to work. The panel had found Ozkan unfit to work, leading to a decision by Leitch, the Secretary of the Department of Human Services, to refuse Ozkan's application for an indemnity certificate. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether Ozkan was entitled to an indemnity certificate based on the medical panel's findings. The court had to consider whether the panel's findings were legally sound and whether there were grounds for quashing those findings. Additionally, the court had to determine whether Ozkan was entitled to an indemnity certificate under the relevant legislation.

The court determined that the medical panel's findings were flawed, as they did not properly consider the relevant evidence and applicable standards. As a result, the court quashed the findings by consent. The court then considered whether Ozkan was entitled to an indemnity certificate. The court found that given the flawed findings, Ozkan was entitled to the certificate. Regarding costs, the court held that the respondent was entitled to indemnity costs as per sections 3 and 4 of the Appeal Costs Act 1998 (Vic).

The court ordered the quashing of the medical panel's findings and granted Ozkan an indemnity certificate. The court also ordered Leitch to pay Ozkan's costs associated with the application for judicial review, as permitted by the Appeal Costs Act 1998 (Vic).

Orders