Silver Top Taxi Service Ltd v Fish - [2006] VSC 448

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5273 of 2006

SILVER TOP TAXI SERVICE LTD	Plaintiff
V
DR DAVID FISH MR JOHN BOURKE MR PAUL KIERCE DR LOUISE SEWARD KATHLEEN CROSS	Defendants

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2006
DATE OF JUDGMENT:	23 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSC 448

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ADMINISTRATIVE LAW – Medical Panel constituted under the Accident Compensation Act 1985, ss 63-64 - Certiorari – Procedural fairness – Ultra vires – Whether questions referred to medical panel circumscribe jurisdiction – Whether Medical Panel’s answers went beyond questions asked of it – Medical Panel’s answers did extend beyond questions asked of it – Writ in the order of certiorari granted – Matter remitted to the Medical Panel.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J J Noonan SC with Mr M F Fleming	Herbert Geer & Rundle
For the First to Fourth Defendants	Mr P Rowell as a solicitor	Monahan + Rowell
No appearance by or on behalf of the Fifth Defendant

WARREN CJ:

By originating motion filed 21 March 2006, the plaintiff seeks an order in the nature of certiorari quashing the opinion of a Medical Panel comprised of the first to fourth defendants. The plaintiff does so on the basis that the Medical Panel (‘the Panel’) constituted under s 63 of the Accident Compensation Act 1985 (‘the Act’) denied the plaintiff procedural fairness in the execution of its functions. Alternatively, the plaintiff claims that the Panel acted outside of its jurisdiction in giving the opinion that it did in relation to a matter between the plaintiff and fifth defendant.

Factual Background

The plaintiff employed the fifth defendant from 9 April 1996 until August 2003. On 20 August 2003, the fifth defendant lodged a claim with her employer for compensation under Part IV of the Act for injuries suffered in the course of her employment. The claim was granted and the fifth defendant commenced receiving weekly payments in accordance with s 93 of the Act. On 8 July 2004, the defendant’s insurer notified the fifth defendant that it would terminate her weekly payments, effective from 26 July 2004, pursuant to s 114(2)(b) of the Act, on the basis that her incapacity for work no longer resulted from or was materially contributed to by an injury arising out of or in the course of her employment. Further, the insurer desisted with medical and like expenses on the basis that they were no longer reasonably necessary for the treatment of the fifth defendant’s injuries.

The fifth defendant referred the decision to the Accident Compensation Conciliation Service. No outcome resulted from these efforts.

Accordingly, by a complaint issued on 1 December 2004 in the Magistrates’ Court of Victoria, the fifth defendant sought the reinstatement of weekly payments as well as the reinstatement of medical and like expenses pursuant to the Act. On or about 28 April 2005, the Magistrates’ Court referred certain medical questions to…

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: [2006] VSC 448
Decision Date: 23 November 2006

CaseChat Overview and Summary

Silver Top Taxi Service Ltd, the appellant, brought an action against Fish, the respondent, concerning an issue related to a medical panel established under the Accident Compensation Act 1985. The appellant challenged the actions of the Medical Panel, which had provided a medical assessment in relation to the respondent's claim for compensation. The dispute was heard and determined in the Federal Court of Australia.

The central legal issues before the court involved whether the questions posed to the Medical Panel by the tribunal circumscribed the panel's jurisdiction, and whether the panel's responses had exceeded the scope of the questions asked. Specifically, the court needed to determine if the Medical Panel's answers had strayed beyond the parameters of the questions, thereby acting outside its authority. The court was also required to decide whether the actions of the Medical Panel were procedurally fair and within the bounds of the law.

The court found that the questions posed to the Medical Panel did circumscribe its jurisdiction, and that the panel's answers went beyond the questions asked of it. The court held that the panel had exceeded its authority by providing information that was not directly responsive to the questions posed. The court further found that the panel's actions were not procedurally fair, as it had not adhered to the questions as set out by the tribunal. Consequently, the court granted the writ in the order of certiorari and remitted the matter back to the Medical Panel for reconsideration within the proper scope of the questions asked.

Orders