| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03345
| ROBYN POON | Plaintiff |
| v | |
| VICINITY CUSTODIAN PTY LTD AND OTHERS (according to the Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 May 2018 |
DATE OF JUDGMENT: | 25 October 2018 |
CASE MAY BE CITED AS: | Poon v Vicinity Custodian Pty Ltd & ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 631 |
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JUDICIAL REVIEW AND APPEALS – Application by plaintiff for judicial review of a medical panel (‘Panel’)’s opinion in respect to finding that she had not suffered a physical injury which me the threshold under s 28LB of the Wrongs Act 1958 – Plaintiff alleged that she fell and injured her right arm while visiting the first defendant’s shopping centre – Plaintiff alleged that she has had a tremor in her right arm since the injury – Panel made finding that there was no physical cause of the tremor – Whether Panel made a critical finding of fact for which there was no evidence or no probative evidence – Whether Panel engaged in a fact finding process which was illogical, irrational and legally unreasonable – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, referred to – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, referred to – Whether Panel misconstrued or failed to correctly undertake the analysis required by s 28LL(3) of the Act – Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36, referred to – Chua v Lowthian [2011] VSC 468, referred to – No jurisdictional error or error of law – No impairment for the Panel to assess given Panel’s finding that there was no organic cause of the plaintiff’s tremor – Panel not obliged to identify an alternative explanation for the plaintiff’s tremor – Panel not bound to reach a conclusion as to the cause of any impairment outside the bounds of the medical question referred to it – Chua v Newman-Morris [2009] VSC 582, referred to – Whether any denial of procedural fairness – No finding that Panel failed to afford procedural fairness – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Schilling | Henry Carus + Associates |
| For the First Defendant | Mr M Fleming QC with Ms F Spencer | Wotton + Kearney |
| For the Second and Third Defendants | Russell Kennedy |
HER HONOUR:
Introduction and Background
The plaintiff, Ms Robyn Poon, a retired school teacher, has brought this proceeding to quash a decision of a medical panel (‘Panel’) which found that she had not suffered a physical injury which met the threshold under s 28LB of the Wrongs Act 1958 (‘Act’), such as to enable her to bring a claim for damages for non-pecuniary loss. The alleged injury was said to have arisen out of an incident on or around 16 February 2012, when Ms Poon visited the Oakleigh Shopping Centre, which is owned by the…
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- AGLC
- Poon v Vicinity Custodian Pty Ltd [2018] VSC 631
- Case
- [2018] VSC 631
- Decision Date
CaseChat Overview and Summary
The court examined the panel's decision-making process and found no jurisdictional error or error of law. It held that the panel was not required to identify an alternative explanation for the plaintiff's tremor, nor was it bound to conclude on the cause of any impairment beyond the scope of the medical question referred to it. The panel's findings were supported by the evidence, and it was not necessary for them to reach a conclusion about the cause of the plaintiff's tremor if they determined there was no organic cause. The court referred to previous cases such as Minister for Immigration and Citizenship v Li and Chua v Newman-Morris to support its reasoning.
The court also found no procedural unfairness in the panel's process, as the plaintiff was given a fair opportunity to present her case. Consequently, the application for judicial review was dismissed. The court did not identify any denial of procedural fairness and concluded that the panel's findings were legally sound and based on the evidence presented.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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