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Sherlock v Lloyd

Sherlock v Lloyd

Case [2008] VSC 450 29 October 2008

Judicial Review

Natural Justice & Procedural Fairness

Inadequacy of Reasons

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5178 of 2008

KAREN SHERLOCK	Plaintiff
v
DR JOHN LLOYD, DR DAVID FISH, MERCANTILE MUTUAL WORKSURE LIMITED and LE-ROSE NOMINEES PTY LTD	Defendants

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2008
DATE OF JUDGMENT:	29 October 2008
CASE MAY BE CITED AS:	Sherlock v Lloyd
MEDIUM NEUTRAL CITATION:	[2008] VSC 450

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Judicial review – Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Accident Compensation Act 1985 (Vic) – medical panel – alleged failure to comply with rules of natural justice – medical panel relying on own knowledge – inadequacy of reasons – principles to be applied where inadequacy of reasons is relied upon as a ground of review – whether inadequacy of reasons constitutes error of law on the face of the record – remedies available where reasons inadequate – Administrative Law Act 1978 (Vic), s 8.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M O’Loghlen QC and Mr G Wicks	Slater & Gordon
No appearance for the First and Second Defendants
For the Third and Fourth Defendants	Mr M Fleming	Dibbs Abbott Stillman Lawyers

HIS HONOUR:

Introduction and summary

This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“Rules”) in relation to an opinion of a medical panel dated 19 January 2008 answering seven medical questions including question 5 which asked whether the plaintiff, Karen Sherlock, has a current work capacity. Question 5 was answered “Yes”.

The plaintiff seeks an order quashing the answers to questions 5, 6 and 7 on the grounds that the panel breached the rules of natural justice and that its reasons are inadequate. The first and second defendants constituted the panel and did not take part in this proceeding. The third defendant, Mercantile Mutual Worksure Limited (“MMWL”), is the agent of the Victorian WorkCover Authority and the fourth defendant, Le-Rose Nominees Pty Ltd (“Le-Rose”), is the plaintiff’s former employer.

For the reasons set out in this judgment, I have decided that the rules of natural justice were not breached and that although the panel’s reasons are inadequate, no relief can be provided in the absence of an application for an order under s 8(4) of the Administrative Law Act 1978 (Vic) (“ALA”) for a further statement of reasons.

Facts and procedural background

The plaintiff suffered depression and was treated by a psychiatrist in 1997 and 1998. She commenced employment with Le-Rose as a payroll officer on 23 October 2001 and resigned on 22 or 23 September 2004. On 24 September 2004, she lodged a claim for weekly payments of compensation and medical and like expenses in respect of stress and depression she allegedly developed in January 2003 in the course of her employment. MMWL rejected the claim on 3 November 2004. On 5 October 2006, the plaintiff filed a Magistrates’ Court complaint in respect of her claim.…

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 Sherlock v Lloyd

Details

AGLC: Sherlock v Lloyd [2008] VSC 450
Case: [2008] VSC 450
Decision Date: 29 October 2008

CaseChat Overview and Summary

In the case of Sherlock v Lloyd, the applicant, Sherlock, sought judicial review of a decision made by a medical panel under the Accident Compensation Act 1985 (Vic). The panel had determined that certain medical expenses incurred by Sherlock were not payable, and Sherlock argued that the panel had failed to comply with the rules of natural justice. Specifically, Sherlock contended that the panel had improperly relied on its own knowledge rather than the evidence presented, and that the reasons provided for the decision were inadequate. The matter was heard in the Supreme Court of Victoria, where the court was required to determine whether the panel's failure to comply with the rules of natural justice and the inadequacy of its reasons amounted to a reviewable error.

The central legal issues before the court were whether the alleged failure to comply with the rules of natural justice and the inadequacy of the reasons provided by the panel constituted errors of law on the face of the record, and what remedies were available under the Administrative Law Act 1978 (Vic), section 8, if such errors were found. The court had to consider the principles established in previous cases regarding the inadequacy of reasons as a ground for review, and whether such inadequacy was sufficient to warrant the grant of remedies.

The court found that the panel's failure to rely solely on the evidence presented and instead using its own knowledge did indeed constitute a failure to comply with the rules of natural justice. However, the court held that the inadequacy of reasons alone did not necessarily amount to an error of law on the face of the record. The court emphasised that the principles established in earlier cases required a higher threshold to be met before such inadequacy could be considered a reviewable error. The court further determined that the remedies available under section 8 of the Administrative Law Act 1978 (Vic) could only be granted if the inadequacy of reasons was so significant that it rendered the decision-making process unlawful.

The court ultimately concluded that while the panel's reliance on its own knowledge was a procedural irregularity, the inadequacy of reasons did not reach the level of an error of law on the face of the record. As such, the court did not find it necessary to grant any remedies under section 8 of the Administrative Law Act 1978 (Vic). The application for judicial review was therefore dismissed.

Orders