Judicial Review – Order 56 – medical panels – a specific error of law – inadequate reasons; principles to be applied – application of s 8 Administrative Law Act1978 in proceedings under Order 56 Supreme Court Rules.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr A Ingram and Mr R Kowalski
Melbourne Injuries Lawyers
For the First Defendant
Mr J Brett
HWL Ebsworth
For the Second and Third Defendants
Mr D Masel
Monahan & Rowell
HIS HONOUR:
The proceedings
The plaintiff, Jose Santos, has brought proceedings by Originating Motion seeking an order quashing the opinion of the Medical Panel (the third named defendants) and certified in writing dated 7 July 2008 and an order referring the matter back to a new Medical Panel for hearing and determination according to law.
Background to the proceedings
By letter dated 31 March 2008, Jose Santos lodged a claim with Pacific Shopping Centres Pty Ltd. He alleged that, on 1 February 2006, he slipped in a pool of water on the floor of Werribee Plaza and fell hitting the floor damaging his left knee and right ankle. The claim was received by the public liability insurer Chubb Insurance Company of Australia Limited.
By letter dated 8 May 2008 it forwarded to the Convenor of Medical Panels a claimant’s notice under s 28LT of the Wrongs Act 1958 (the Act) together with a Certificate of Assessment dated 29 February 2008 prepared by and signed by Mr Owen Deacon, an orthopaedic surgeon. The letter from the insurer, in accordance with s 28 LWE of the Act, referred a medical question in relation to the Certificate of Assessment to the Medical Panel for determination as follows:
“Does the degree of impairment resulting from the injury to the claimant as alleged in the claimant’s prescribed information form satisfy the threshold level under Part VBA of the Wrongs Act?
In providing its determination, we request that the Medical Panel provides written reasons for its determination.”
The determination was needed to establish whether the plaintiff had suffered significant injuries so as to entitle him to claim non-economic loss damages. I note that the request for reasons was received by the Convenor prior to any referral to a Panel.
The Certificate of Assessment by Mr Deacon stated that he was satisfied that “the degree of impairment resulting from the injury is more than 5 percent”. He also provided a description of the injury assessed in the following terms
“This was a left knee injury, when he fell with his whole body weight on it, flexed 90 degrees on a concrete floor, at Werribee Plaza when he slipped…
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
AGLC
Santos v Wadren Pty Ltd [2009] VSC 303
Case
[2009] VSC 303
Decision Date
CaseChat Overview and Summary
In the matter of Santos v Wadren Pty Ltd, the dispute arose from the decision of the respondent to dismiss the appellant's claim for damages in a workers' compensation case. The appellant, Santos, sought judicial review of the decision under Order 56 of the Supreme Court Rules, contending that the respondent had erred in law and provided inadequate reasons for its decision. The case was heard in the Supreme Court of Queensland.
The primary legal issue before the court was whether the respondent's decision to dismiss the claim was subject to judicial review and, if so, whether it was vitiated by a specific error of law or inadequate reasons. Santos argued that the decision was flawed because the respondent had failed to properly apply the principles of the Workers' Compensation and Rehabilitation Act 2003 and had not provided adequate reasons for its conclusion. The court had to determine whether the respondent's decision was reviewable under Order 56, and if so, whether it was made in accordance with the applicable legal standards.
The court held that the respondent's decision was indeed subject to judicial review under Order 56. It found that the principles of administrative law, including the application of section 8 of the Administrative Law Act 1978, were relevant to proceedings under Order 56. The court concluded that the respondent had erred in law by not properly applying the relevant legislative provisions, and that the reasons provided for the decision were inadequate. The court found that the decision was vitiated by these errors and quashed the respondent's decision, ordering that the matter be remitted for reconsideration in accordance with the court's findings.
The court ordered that the respondent's decision to dismiss the appellant's claim be quashed and that the matter be remitted for reconsideration in accordance with the court's findings. The court did not make any orders as to costs.