R v Verdins - [2007] VSC 147

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION

No. 7307 of 2006

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 27(1) OF THE

OMBUDSMAN ACT 1973 (Vic)

DR PAUL NISSELLE	Plaintiff
(In his capacity as Convenor of Medical Panels appointed under section 63(2) of the Accident Compensation Act 1985 (Vic))
v
GEORGE BROUWER	Defendant
(In his capacity as the Ombudsman appointed under section 3 of the Ombudsman Act 1973 (Vic))

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2007
DATE OF JUDGMENT:	15 May 2007
CASE MAY BE CITED AS:	Dr Paul Nisselle v George Brouwer
MEDIUM NEUTRAL CITATION:	[2007] VSC 147

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Application pursuant to S.27 of the Ombudsman Act 1973 – Issue of Ombudsman’s jurisdiction pursuant to S.13(1) of the Ombudsman Act 1973 to enquire into the appointment of a Medical Panel by the Convenor pursuant to S.63(4) of the Accident Compensation Act 1985 – Whether the conduct is administrative action – Convenor’s conduct administrative action – Ombudsman’s jurisdiction precluded by S.16(3)(a) of the Ombudsman Act 1973 because by reason of S.65(10) of the Accident Compensation Act 1985 the Convenor has the same protection and immunity as a Supreme Court Judge.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Uren QC with	Monahan + Rowell
Mr B.F. Quinn
For the Defendant	Mr M.A. Robins	Victorian Government Solicitor

TABLE OF CONTENTS

Parties ...................................................................................................................................................1
The Dispute and Issues.....................................................................................................................1
Functions and Jurisdiction of the Ombudsman...........................................................................7
Appointment of a Medical Panel – is it an Administrative Act? .............................................9
Ombudsman’s Lack of Authority under s.13(3)(a) ....................................................................28
Conclusion.........................................................................................................................................32
HIS HONOUR:

A proceeding instituted by originating motion, in which the plaintiff seeks a declaration that the defendant, the Ombudsman of this State, does not have jurisdiction to enquire into or to investigate certain complaints made to him by members of the public, or is precluded by reason of statute from enquiring into or investigating the complaints. The proceeding is brought pursuant to s.27 of the Ombudsman Act 1973 (“the Act”).
Parties
The plaintiff, Dr Paul Nisselle (“Dr Nisselle”), is and was at all relevant times a medical practitioner and the Convenor of Medical Panels appointed by a Minister of the Crown pursuant to s.63 of the Accident Compensation Act 1985 (“the AC Act”). Dr Nisselle was also appointed by the Governor in Council as a Member of the Medical Panels.
The defendant, George Brouwer (“the Ombudsman”), is the Ombudsman in this State and was appointed by the Governor in Council pursuant to the Act.
The Dispute and Issues
The AC Act was enacted in 1985. One of the objects of the Act was to provide an adequate and just compensation scheme for workers who suffered injury at work. Another object was to ensure that the costs associated with the compensation scheme were contained, in order to minimise the burden on Victorian businesses.[1] Part 3 of the Act deals with dispute resolution. Section 39 gives exclusive jurisdiction to the County Court to enquire into,…

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 R v Verdins

Details

AGLC: R v Verdins [2007] VSC 147
Case: [2007] VSC 147
Decision Date: 15 May 2007

CaseChat Overview and Summary

The case of R v Verdins involved an application made under Section 27 of the Ombudsman Act 1973. The applicant sought an inquiry into the appointment of a Medical Panel by the Convenor under Section 63(4) of the Accident Compensation Act 1985. The central dispute was whether the conduct of the Convenor in appointing the Medical Panel constituted administrative action for which the Ombudsman had jurisdiction to investigate. This matter was considered in the relevant court, which was tasked with determining the scope of the Ombudsman's powers in this context.

The court was required to decide if the Convenor's actions in appointing the Medical Panel were administrative in nature, thereby falling within the Ombudsman's jurisdiction. Additionally, the court needed to examine whether the Convenor's immunity, as outlined in Section 65(10) of the Accident Compensation Act 1985, precluded the Ombudsman's jurisdiction under Section 16(3)(a) of the Ombudsman Act 1973. The court needed to balance the Ombudsman's oversight powers against the protections afforded to the Convenor.

The court found that the Convenor's conduct in appointing the Medical Panel did indeed constitute administrative action. However, the court also determined that the Convenor's immunity, which mirrored that of a Supreme Court Judge under Section 65(10) of the Accident Compensation Act 1985, precluded the Ombudsman's jurisdiction to investigate the matter. Consequently, the court held that the Ombudsman was not empowered to enquire into the Convenor's conduct in this instance.

No further orders were made by the court beyond the determination of the jurisdictional issue. The court's decision clarified the boundaries of the Ombudsman's powers and the protections afforded to the Convenor, providing a clear outcome to the application.

Orders