Russo v TAC - [2018] VSC 203

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03992

FRANK RUSSO	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2018
DATE OF JUDGMENT:	27 April 2018
CASE MAY BE CITED AS:	Russo v TAC
MEDIUM NEUTRAL CITATION:	[2018] VSC 203

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ADMINISTRATIVE LAW — Transport accident claims — Claimant seeking VCAT review of Transport Accident Commission’s decision not to allow medical claims — Procedural orders of VCAT to facilitate review — Compulsory conference — Consent orders ending VCAT proceeding — Appeal by claimant — Associate Justice refused leave — Appeal to Court — No error established — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr J Valiotis	Solicitor for the Transport Accident Commission

HIS HONOUR:

Mr Russo appeals from orders of an Associate Justice of 12 February 2018 refusing him leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘Tribunal’), dismissing his originating motion and ordering him to pay the Transport Accident Commission’s costs of the proceeding.[1] Mr Russo seeks an order reinstating his originating motion seeking leave to appeal the VCAT orders, and the remittal of the proceedings to VCAT for rehearing.
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.

The proceeding before the Associate Justice was an application by Mr Russo for leave to appeal on questions of law from orders of VCAT of 5 and 7 September 2017. The order of 5 September 2017 was procedural and fixed a directions hearing on 7 September particularly to ensure that Mr Russo had arranged for medical practitioners to attend for cross-examination by TAC at the substantive hearing which was fixed for 12 September 2017.

The orders of 7 September 2017 were described as by consent of the parties and included:

1.Today commenced as a directions hearing at 2:00pm and was converted to a compulsory conference at approximately 2:50 pm.
2.By consent, the decision of the respondent made on 18 September 2014, (the decision under review in this proceeding), is varied in that the respondent has to pay the applicant the sum of $1,600 by close of business on 21 September 2017.

3. No order as to costs.
4.The hearing in this proceeding, which was scheduled to commence on 12 September 2017, is vacated.

The order of the Associate Justice recites that after hearing Mr Russo’s submissions about the VCAT order of 5 September 2017, his Honour decided ex tempore that there was no error of law in that decision, and no injustice, substantive or procedural and that he refused leave to appeal.

Background

Mr Russo sustained injuries following a transport accident in 1999, his no fault claim to TAC was accepted and his common law damages claim was settled in December 2005 by the execution of a Deed of Release. He sought further treatment funding from TAC for an umbilical hernia…

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.

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Details

Case: [2018] VSC 203
Decision Date: 27 April 2018

CaseChat Overview and Summary

Russo brought a claim against the Transport Accident Commission (TAC) seeking a review of their decision to not allow certain medical claims. The dispute was brought before the Victorian Civil and Administrative Tribunal (VCAT), which subsequently issued procedural orders to facilitate the review. These orders included a compulsory conference, which led to the parties entering into consent orders that concluded the VCAT proceeding. Dissatisfied with the outcome, Russo appealed to the Court, arguing that the VCAT had erred in its decision-making process. However, the Associate Justice dismissed the appeal for leave to appeal, finding no error in VCAT’s handling of the case. Subsequently, Russo appealed to the higher Court. The appeal was dismissed, with the Court finding that no error was established in the VCAT decision.

The primary legal issue before the Court was whether the VCAT had erred in its handling of the review process and decision-making. The Court examined the procedural orders issued by VCAT, the nature of the compulsory conference, and the subsequent consent orders that concluded the proceeding. The Court considered whether these processes and decisions were within the jurisdiction and authority of VCAT, and whether they adhered to the principles of natural justice and procedural fairness. The Court also assessed the merits of the VCAT decision itself, to determine if there was any substantive error.

The Court found that VCAT had acted within its jurisdiction and had followed appropriate procedures in issuing its orders and conducting the review. The compulsory conference and the consent orders were seen as legitimate steps in the review process, which were consistent with VCAT’s statutory powers. The Court determined that the VCAT decision itself was not flawed and was based on a proper consideration of the evidence and applicable law. The Court held that the appeal to the higher Court did not demonstrate any error on the part of VCAT, and therefore dismissed the appeal. The findings of the VCAT and the orders concluding the proceeding were upheld.

As a result of the Court’s decision, the appeal was dismissed, and the VCAT decision remained in place. No further orders were made by the Court beyond the dismissal of the appeal. The original decision of VCAT not to allow the medical claims was upheld, and the consent orders that concluded the proceeding remained effective.

Orders