Poulpack Pty Ltd v Noumouski - [2019] VSC 395

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01116

POULPACK PTY LTD	Plaintiff
v
NADA NAUMOVSKI & ORS (according to the attached schedule)	Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2019
DATE OF JUDGMENT:	19 June 2019
CASE MAY BE CITED AS:	Poulpack Pty Ltd v Noumouski
MEDIUM NEUTRAL CITATION:	[2019] VSC 395

---

ADMINISTRATIVE LAW – Application by an employer seeking to quash the determination of a medical panel in relation to a worker’s injury under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Where parties agreed that the medical panel’s opinion was affected by error on the face of the record, such that the relief of certiorari should be granted on the basis of inconsistencies between the opinion and the reasons – Whether the decision of the medical panel should be quashed in its entirety or only partially – Severance of answers to medical questions available – Calleja Nominees Pty Ltd & Anor v Dr Chris Grant & Ors [2008] VSC 597, referred to answers to questions concerning capacity bound up with inconsistent answers regarding injuries – Nothing in the medical panel’s findings indicate that the re-determination of medical questions should be remitted to a differently constituted panel – Vegco Pty Ltd v Gibbons [2008] VSC 363 applied – Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, referred to.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fleming QC with Ms F Spencer	Russell Kennedy
For the First Defendant	Ms M Schilling with Mr G Pierorazio	LN Christie & Co Lawyers
For the Second to Fifth Defendants	No appearance

HER HONOUR:

On 4 September 2018 the plaintiff (‘employer’) brought this proceeding seeking to quash the determination of a medical panel constituted following the referral of certain questions by a magistrate pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘medical panel’). The questions concerned the nature and consequences of an injury said to have been suffered by the first defendant (‘worker’) on or about 25 July 2016. The medical panel delivered its opinion on 6 July 2018. The questions and answers were as follows:

Question 1: What is the nature of Ms Naumovski’s medical condition relevant to the claimed injuries, namely:
·left shoulder;
·right shoulder;
·left knee;
·right knee;
·back
·consequential psychological injury?

Answer: Ms Naumovski’s medical conditions relevant to the claimed injuries are:
oLeft shoulder –
oAggravation of previously asymptomatic rotator cuff tendinopathy and acromioclavicular arthropathy with residual pain and reduced ranges of motion

oRight shoulder –
oAggravation of previously asymptomatic rotator cuff tendinopathy and acromioclavicular arthropathy with residual pain and reduced ranges of motion

oLeft knee –
oNo medical condition

oRight knee –
oLateral compartment articular cartilage injury with residual pain, mild limp and mild fixed flexion deformity

oBack –
oNo medical condition

oConsequential psychological injury –
oA mild adjustment…

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.

Keep reading for free

Create a free CaseChat account to read Poulpack Pty Ltd v Noumouski and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] VSC 395
Decision Date: 19 June 2019

CaseChat Overview and Summary

Poulpack Pty Ltd, an employer, sought to challenge a determination made by a medical panel concerning a worker's injury under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The dispute centred on the medical panel's opinion, which both parties agreed contained errors that rendered it unreliable. The employer argued that the relief of certiorari should be granted due to the inconsistencies between the panel's opinion and its reasons. The core legal issue was whether the entire determination of the medical panel should be quashed or if a partial quashing would suffice. The case also examined whether the answers to specific medical questions could be severed from the rest of the panel's determination.

The Court considered the possibility of severing the answers to the medical questions from the rest of the determination, referencing Calleja Nominees Pty Ltd & Anor v Dr Chris Grant & Ors [2008] VSC 597, which suggested that answers to questions concerning capacity could be bound up with inconsistent answers regarding injuries. The Court noted that the medical panel's findings did not indicate that re-determination of the medical questions should be remitted to a differently constituted panel. It applied principles from Vegco Pty Ltd v Gibbons [2008] VSC 363 and Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477 to conclude that the errors were of a nature that required the entire determination to be quashed.

The Court determined that the determination of the medical panel should be quashed in its entirety. This decision was based on the fundamental errors identified in the panel's opinion, which rendered it unreliable. The Court held that remitting the matter to a differently constituted panel would not resolve the issues identified by the parties. Consequently, the Court quashed the entire determination of the medical panel, leaving it to the parties to seek a fresh determination from a new panel.

The final order of the Court was that the determination of the medical panel in relation to the worker’s injury be quashed in its entirety. This decision provided clarity for the parties involved and ensured that the worker's injury assessment would be conducted by a new panel, free from the errors that had affected the previous determination.

Orders