SLG v James - [2021] VSC 364

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01277

SLG (by her litigation guardian The Secretary to the Department of Health and Human Services)	Plaintiff
v
DR JUDE JAMES	First Defendant
COBRAM DISTRICT HEALTH	Second Defendant
AMBULANCE VICTORIA	Third Defendant
JULIAN FREIDIN	Fourth Defendant
JOSEPHINE FRANCES McKEOWN	Fifth Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2021
DATE OF JUDGMENT:	22 June 2021
CASE MAY BE CITED AS:	SLG v James & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 364

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JUDICIAL REVIEW – Review of a decision of a Medical Panel – Jurisdictional error –Whether the Medical Panel failed to take into account a mandatory consideration – Whether ‘lying and thieving behaviour’ a subset of dysfunctional behaviour - Whether Medical Panel demonstrated active engagement with the relevant information – Contemporaneity of behavioural information necessary – Procedural Fairness – Onus of the Medical Panel to make enquiries – Unreasonableness – Permanency of improvement – Appeal allowed – Decision remitted to a differently constituted Medical Panel – Admissibility of additional evidence in a judicial review – Wrongs Act 1958 (Vic), s 28LN - Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied – Chang v Niell [2009] VSCA 151 considered – Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 considered – Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors [2014] VSC 664 considered – Schmael v Leach [2020] VSC 562 considered – Ucar v Nylex Industrial Products Pty Ltd (1985) 159 CLR 550 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Roslyn Kaye	HWL Ebsworth
For the Defendants	Robert Harper	K&L Gates

HER HONOUR:

Background

In July 2011, when the plaintiff was just 21 months old, her mother died. The cause of the death of the plaintiff’s mother shortly after her admission to hospital is the subject of a separate cause of action in negligence against the health professionals involved in her care. That proceeding is brought on behalf of her children, including the plaintiff (negligence proceeding).[1]
[1]June Lynette Boswell & Ors v Dr Jude James & Ors (Supreme Court of Victoria, S CI 2014 03883, commenced 28 July 2014). The defendants in that proceeding are Dr Jude James, Cobram District Health and Ambulance Victoria.

As the plaintiff is a minor, she sues by her litigation guardian, the Secretary to the Department of Health and Human Services (now known as the Department of Families, Fairness and Housing).

In May 2019, child and adolescent psychiatrist, Dr Robert Adler, prepared a Certificate of Assessment of Degree of Impairment pursuant to s 28LN of the Wrongs Act 1958 (Vic) (Act). The certificate of assessment certifies that the degree of impairment met the threshold level under the Act.

Particulars described under s 28LT(2) of the Act were served on the defendants in the negligence proceeding on 6 May 2019 and the certificate…

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 SLG v James

Details

AGLC: SLG v James [2021] VSC 364
Case: [2021] VSC 364
Decision Date: 22 June 2021

CaseChat Overview and Summary

The case of SLG v James involved a judicial review of a decision made by a Medical Panel. The applicant, SLG, challenged the Panel's decision, asserting that it contained errors, both jurisdictional and procedural, in its evaluation of SLG's mental health and the admissibility of certain evidence. The matter was heard and determined in the Supreme Court of Victoria.

The primary legal issues that the court had to address were whether the Medical Panel made a jurisdictional error by failing to take into account a mandatory consideration, specifically whether 'lying and thieving behaviour' constituted a subset of dysfunctional behaviour. Additionally, the court had to consider whether the Panel adequately engaged with the relevant information, and if there was a requirement for the contemporaneousness of behavioural information. The court also examined whether the Panel demonstrated procedural fairness by making necessary enquiries and if its decision was unreasonable, particularly regarding the permanency of SLG's improvement.

The court found that the Medical Panel had indeed made a jurisdictional error by not considering 'lying and thieving behaviour' as a subset of dysfunctional behaviour, which was a mandatory consideration. It was also determined that the Panel did not demonstrate active engagement with the relevant information, and that there was no requirement for the contemporaneousness of behavioural information. Furthermore, the Panel failed to meet the onus of procedural fairness by not making adequate enquiries. Consequently, the court found the Panel's decision to be unreasonable in respect of the permanency of improvement. The appeal was allowed, and the decision was remitted to a differently constituted Medical Panel for reconsideration.

The court's final orders included allowing the appeal, remitting the matter to a differently constituted Medical Panel, and directing that additional evidence be considered, in accordance with the Wrongs Act 1958 (Vic), s 28LN. The court's decision was based on its application of several precedents, including Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Chang v Niell, Wei v Minister for Immigration and Border Protection, Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors, Schmael v Leach, and Ucar v Nylex Industrial Products Pty Ltd.

Orders