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Ramith v Homes Victoria

Ramith v Homes Victoria

Case [2025] VSC 2 16 January 2025

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 06209

DAVID RAMITH	Plaintiff
-and-
HOMES VICTORIA & ORS (according to the attached schedule)	Defendants

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2024
DATE OF JUDGMENT:	16 January 2025
CASE MAY BE CITED AS:	Ramith v Homes Victoria & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 2

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Assessment of Impairment –– Procedural fairness – Outcome of grip strength testing during examination of plaintiff by Panel – Responses to testing regarded by Panel as unreliable – Assessment in accordance with AMA Guides – Panel did not provide opportunity to respond to conclusions from testing - Whether Panel failed to afford procedural fairness.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Santamaria	LHD Lawyers
For the First Defendant	Ms E Golshtein	HWL Ebsworth
For the Second and Third Defendants	No appearance

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The Application for judicial review............................................................................................... 3

Issues for determination................................................................................................................... 4

The material before the Panel.......................................................................................................... 4

The Panel’s Determination and Reasons...................................................................................... 6

Statutory framework......................................................................................................................... 8

Wrongs Act 1958............................................................................................................................. 8
AMA Guides.................................................................................................................................... 9

Submissions of the parties............................................................................................................. 10

Mr Ramith’s submissions........................................................................................................... 10
Homes Victoria’s submissions.................................................................................................. 12

Legal Principles................................................................................................................................ 13

General Principles and Role of Panel....................................................................................... 13
Procedural Fairness.................................................................................................................... 14
Materiality.................................................................................................................................... 17

Consideration.................................................................................................................................... 18

Was the Panel making a credit finding in its conclusions on Jamar dynamometer testing? 19
Obligations if conclusions are characterised not as credit finding but as conclusion that full effort was not applied.................................................................................................................. 22
Materiality.................................................................................................................................... 24
Was the Panel otherwise required to give Mr Ramith an opportunity to establish that he had reduced grip strength following the Panel’s conclusions on Jamar dynamometer testing?.............................................................................................................................................. 27

Conclusion......................................................................................................................................... 30

HER HONOUR:

Introduction

The plaintiff, David Ramith, was a tenant of premises located in Broadmeadows, (Premises) owned by the first defendant, Homes Victoria.[1] Mr Ramith commenced proceedings in the County Court of Victoria seeking damages for injuries said to have been sustained at the Premises when he slipped on wet carpet and lost his grip on the wet handrail and fell down the stairwell. The Statement of Claim alleged negligent conduct on the part of Homes Victoria in maintaining the Premises.[2]
[1]First Affidavit of J Catoggio affirmed on 21 December 2023 (First Catoggio Affidavit), Exhibit JC-2 (Form 4 in Schedule 1 to the Wrongs (Part VBA Claims) Regulations 2015 dated 5 September 2023).
[2]Exhibit JC-2 (Writ and Statement of Claim in County Court proceeding no. CI-23-02358 dated 16 May 2023). These proceedings were originally initiated against the ‘State of Victoria (Dept of Families, Fairness and Housing)’. After being advised on 15 September 2023 by the first defendant’s solicitor that the proper defendant was Homes Victoria, Mr Ramith filed an Amended Statement of Claim in the County Court proceeding on 18 October 2023, naming the correct defendant: Exhibit JC-2 (Amended Statement of Claim in County Court proceeding…

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 Ramith v Homes Victoria

Details

AGLC: Ramith v Homes Victoria [2025] VSC 2
Case: [2025] VSC 2
Decision Date: 16 January 2025

CaseChat Overview and Summary

Ramith v Homes Victoria is an administrative law matter heard by the Federal Court of Australia, involving a dispute between the plaintiff, Ramith, and Homes Victoria, regarding the assessment of impairment carried out by a medical panel appointed by the latter. The crux of the issue pertains to the procedural fairness afforded to the plaintiff during the medical assessment process. Specifically, Ramith contests the reliability of the grip strength test results conducted during the examination, which the Panel deemed unreliable. Ramith argues that the Panel's failure to provide an opportunity to respond to the conclusions drawn from the grip strength testing amounted to a denial of procedural fairness.

The primary legal issue before the court was whether the medical panel's assessment process complied with the principles of procedural fairness. The court had to determine whether the panel's decision to deem the grip strength test results unreliable, without providing Ramith an opportunity to respond, constituted a breach of procedural fairness. This involved scrutinising whether Ramith had a legitimate expectation of procedural fairness, and if so, whether this expectation was met by the panel's actions.

The court held that the medical panel did indeed fail to afford procedural fairness to Ramith. The panel's assessment of the grip strength test results as unreliable and their subsequent reliance on these results to conclude the overall impairment rating without providing Ramith an opportunity to respond to these conclusions, breached the principles of procedural fairness. The court emphasised that the plaintiff should have been given a chance to address the reliability of the test results and to present any mitigating evidence or alternative explanations before a final assessment was made. The court found that the panel's failure to do so rendered the assessment process unfair. Consequently, the court quashed the decision of the panel on the ground of procedural unfairness.

Orders