Poon v Vicinity Custodian Pty Ltd - [2018] VSC 631

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…

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 Poon v Vicinity Custodian Pty Ltd

Details

AGLC: Poon v Vicinity Custodian Pty Ltd [2018] VSC 631
Case: [2018] VSC 631
Decision Date: 25 October 2018

CaseChat Overview and Summary

In the matter of Poon v Vicinity Custodian Pty Ltd, the plaintiff sought judicial review of a determination by a medical panel, which had found that she had not sustained a physical injury that met the threshold under section 28LB of the Wrongs Act 1958. The plaintiff alleged that she suffered a fall and injured her right arm while at the first defendant's shopping centre, and claimed to have experienced a tremor in her right arm since the incident. The panel's decision was that there was no physical cause for the tremor. The central legal issues revolved around whether the panel made a critical finding of fact without evidence or with no probative evidence, and if it engaged in a process that was illogical, irrational, or legally unreasonable.

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