Santo v Gibbons - [2020] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04524

CESARIO SANTO	Plaintiff
v
PETER GIBBONS (in his capacity as Convenor of Medical Panels)	First Defendant
and
CHRISTINE LE (in her capacity as a member of a Medical Panel)	Second Defendant
and
PAUL MCCRORY (in his capacity as a member of a Medical Panel)	Third Defendant
and
MICHAEL LEUNG (in his capacity as a member of a Medical Panel)	Fourth Defendant
and
MELBOURNE HEALTH	Fifth Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2020
DATE OF JUDGMENT:	11 August 2020
CASE MAY BE CITED AS:	Santo v Gibbons
MEDIUM NEUTRAL CITATION:	[2020] VSC 488

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Determination made outside of statutory timeframe – Jurisdictional error – Determination quashed – Whether medical questions to be remitted to a differently constituted panel – Where panel failed to afford plaintiff procedural fairness – Where panel expressed its view on central issue in strong terms – Medical questions remitted to a differently constituted panel – Vegco Pty Ltd v Gibbons [2008] VSC 363, applied – Toyota Motor Corporation Australia Limited v Bendrups [2016] VSC 718, distinguished – Pearce v Lloyd [2016] VSC 806, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Harper	Slater & Gordon
For the Fifth Defendant	R Kaye	K&L Gates

HIS HONOUR:

On 4 August 2020, I made orders in this proceeding quashing a determination by a medical panel comprised of the second to fourth defendants (the Panel)[1] in relation to a medical question which had been referred to it. I remitted the matter to a differently constituted panel, with reasons to be delivered at a later date. These are my reasons for judgment.
[1]The second to fourth defendants informed the Court that they did not intend to appear, but would submit to any orders that were made.

The plaintiff underwent surgery on 20 December 2010 to remove a lump on the right side of his neck. He has commenced proceedings in the County Court of Victoria against the fifth defendant, claiming that he suffered loss and damage as a result of his surgeon’s negligence in carrying out this procedure.

The question referred by the fifth defendant to the Panel on 14 March 2019 pursuant to s 28LWE of the Wrongs Act 1958 (the Act) was as follows:

Does the degree of impairment resulting from the alleged physical injury to the claimant alleged in the claim satisfy the threshold level?

The Panel interviewed and examined the plaintiff on 7 June 2019.

The Panel was statutorily required to make its determination by 6 July 2019.[2] The Panel sought extensions of time on 2 and 22 July 2019. Neither request was consented to by the plaintiff.
[2]Wrongs Act 1958 s 28LZG(3)(a)(i).

The Panel made its determination on 3 August 2019, finding that the plaintiff’s whole person impairment resulting from the alleged…

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 Santo v Gibbons

Details

AGLC: Santo v Gibbons [2020] VSC 488
Case: [2020] VSC 488
Decision Date: 11 August 2020

CaseChat Overview and Summary

Santo v Gibbons involved a judicial review of a decision made by a medical panel concerning the plaintiff's eligibility for a particular benefit. The case was heard in the Supreme Court of Victoria. The plaintiff, Santo, challenged the panel's determination on the grounds that it was made outside the statutory timeframe, alleging a jurisdictional error. Furthermore, Santo contended that the panel failed to afford procedural fairness and expressed its view on the central issue in strong terms prior to reaching its decision.

The court was required to determine whether the determination of the medical panel was a jurisdictional error due to being made outside the statutory timeframe. Additionally, the court needed to assess if procedural fairness was afforded to the plaintiff and whether the panel's expression of its view on the central issue constituted a breach of procedural fairness. The court also had to decide if the medical questions should be remitted to a differently constituted panel due to the procedural errors.

The court found that the panel's determination was indeed a jurisdictional error because it was made outside the statutory timeframe. The court further held that procedural fairness was not afforded to the plaintiff, as the panel expressed its view on the central issue before reaching its decision. Consequently, the determination was quashed. The court considered that remitting the medical questions to a differently constituted panel was appropriate, given the procedural errors. The reasoning drew on Vegco Pty Ltd v Gibbons, where similar procedural errors led to the quashing of a decision and the subsequent remitting of questions to a new panel. The court distinguished Toyota Motor Corporation Australia Limited v Bendrups, where the errors did not warrant remitting the matter, and considered Pearce v Lloyd, where procedural fairness was found to be lacking.

The final orders of the court were to quash the determination of the medical panel and to remit the medical questions to a differently constituted panel to be decided afresh. This decision ensured that the plaintiff would have an opportunity to be heard by a panel that had not previously expressed its views on the central issue, thus upholding procedural fairness.

Orders