| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8282 of 2008
| SODEXHO AUSTRALIA PTY LTD | Plaintiff |
| V | |
| KAREN ROWE & ORS | Defendants |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2009 | |
DATE OF JUDGMENT: | 24 July 2009 | |
CASE MAY BE CITED AS: | Sodexho v Rowe & Ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 298 | |
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Administrative law – judicial review – Medical Panel – error of law; construction of “suitable employment” – irrelevant considerations – denial of natural justice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Parrish SC and Ms A Ryan | Wisewoulds |
| For the First Defendants | Mr M O’Loghlen QC and Mr J O’Brien | Ryan Carlisle Thomas |
TABLE OF CONTENTS
The proceedings................................................................................................................................. 2
Background to the proceeding......................................................................................................... 2
The review grounds........................................................................................................................... 4
The relevant legislation.................................................................................................................... 5
Relevant passages from the reasons........................................................................................... 6
Grounds 1 to 4..................................................................................................................................... 7
Denial of Natural Justice................................................................................................................ 12
HIS HONOUR:
The proceedings
By Originating Motion filed 8 September 2008, the plaintiff Sodexho Australia Pty Ltd (“Sodexho”) seeks the following orders
“3.An order in the nature of certiorari quashing the decision made 4 July 2008 (“the decision”) by the Medical Panel (“the Medical Panel”) convened by the second Defendant and constituted by the third, fourth and fifth Defendants on a reference made 8 May 2008 by the Plaintiff of medical questions (“the medical questions”) pursuant to s 45(1)(b) of the Acts and Compensation Act 1985 (“the Act”).
4.An order in the nature of mandamus that the medical questions be referred to a differently constituted Medical Panel and heard and determined according to law.”
Background to the proceeding
In early 2000, while employed by Sodexho Australia Pty Ltd, Ms Rowe developed a skin condition of both her hands which rendered her unfit for her normal work duties from 31 July 2001. Her claim was initially accepted and she received weekly payments of compensation and medical and like expenses in accordance with the Accident Compensation Act 1985.
By letter dated 17 March 2004 QBE Mercantile Mutual (QBE) wrote to Ms Rowe and advised her that her entitlement to weekly payments of compensation would be terminated from 19 April 2004, weekly payments having been payable to her for a period of more than 104 weeks and QBE having determined that she had a “current work capacity” pursuant to s 114(2)(b).
On 20 July 2005 Ms Rowe issued proceedings out of the Magistrates’ Court of Victoria at Geelong seeking to overturn the decision of QBE. It appears that the critical issue raised in those proceedings was whether Ms Rowe had a current work capacity. The matter was subsequently uplifted to the County Court on or about 18 August 2006. Prior to the matter being heard in the County Court, Sodexho, on 27 March 2008, sought referral of several medical questions to the Medical Panel pursuant to s 45(1)(b). Those questions were
“1. What is the nature of the Plaintiff’s medical condition relevant to:
(a) the admitted skin condition of…
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- Case
- [2009] VSC 298
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to determine were whether the Medical Panel had correctly interpreted the term "suitable employment" and whether the panel had considered relevant and irrelevant matters in making its decision. Additionally, the court had to assess whether the panel's decision complied with the principles of natural justice, particularly in terms of procedural fairness.
The court found that the Medical Panel had erred in its interpretation of "suitable employment" by considering factors that were not relevant to the definition. Furthermore, the court concluded that the panel had failed to adhere to the principles of natural justice by not providing Ms. Rowe with an opportunity to respond to certain information that was considered in reaching its decision. Consequently, the court granted the plaintiff's application for judicial review, quashed the decision of the Medical Panel, and remitted the matter for reconsideration.
In light of the above, the court ordered that the decision of the Medical Panel be quashed and that the matter be remitted back to the panel for reconsideration in accordance with the court's findings. The court did not make any orders regarding costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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