Sodexho Australia Pty Ltd v Rowe - [2009] VSC 298

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…

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: [2009] VSC 298
Decision Date: 24 July 2009

CaseChat Overview and Summary

Sodexho Australia Pty Ltd v Rowe was a case heard by the Federal Court of Australia, where the plaintiff, Sodexho Australia Pty Ltd, sought judicial review of a decision made by a Medical Panel regarding the employment status of the defendant, Ms. Rowe. The dispute centred around the interpretation of the term "suitable employment" and the procedural fairness afforded to Ms. Rowe in the decision-making process.

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