Stojcevski v Nisselle - [2003] VSC 466

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8245 of 2002

BOGOJA STOJCEVSKI	Plaintiff
V
PAUL NISSELLE AND ORS	Defendants

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2003
DATE OF JUDGMENT:	26 November 2003
CASE MAY BE CITED AS:	Stojcevski v Nisselle & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 466

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WorkCover – Industrial deafness – Suffered in part, outside Victoria – Whether relevant to assessment of degree of impairment under s 91(3) Accident Compensation Act 1985.
Judicial Review – Medical panel under Accident Compensation Act 1985 – Irrelevant matters considered – Denial of natural justice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K. Hanscome and Mr A. P. Dickenson	Maurice Blackburn Cashman
For the 1^st, 2^nd and 3^rd Defendants	Mr I. A. Miller	Ebsworth & Ebsworth
For the 4^th Defendant	Mr R. Gorton QC and Mr J. Gorton	Lander & Rogers

HIS HONOUR:

The proceedings

By originating motion filed 21 November 2002 the plaintiff, Bogoja Stojcevski, seeks orders pursuant to Rule 56.01;

(a)in the nature of certiorari, quashing the decision made 24 September 2002 by the Medical Panel, convened by the first defendant and constituted by the second and third defendants, on the reference made 19 August 2002 by the fourth defendant, Victorian WorkCover Authority, of medical questions pursuant to s 104B(9) of the Accident Compensation Act 1985 (the Act),
(b)in the nature of prohibition, preventing or restraining the fourth defendant from giving effect to the decision,
(c)in the nature of mandamus, that the medical questions be referred to a differently constituted medical panel and heard and determined according to law.

The originating motion, as amended, also set out a number of Grounds relied upon by the plaintiff;

“1.The medical panel did not answer the first medical question in accordance with law,
2.The medical panel erred in law in its construction of s 91(3) of the Act,
3.The medical panel erred in law in its application of s 91(3) of the Act,
4.The medical panel took into account irrelevant considerations in making the decision, namely –
(a)that the plaintiff had undergone tests (WA tests) for loss of hearing in Western Australia where he worked for BHP until 1993,

(b) the results of the WA tests,
(c)that the WorkCover Authority, the fourth defendant was of the view that loss of hearing sustained outside Victoria would fall within the definition of industrial deafness which had occurred in circumstance which did not create liability to pay compensation under the Act,
(d)The Medical Panel failed to take into account only the relevant considerations in making the decision, namely, the assessment of the Plaintiff's hearing in accordance with s 91C (4) of the Act, and proper application of s 91C (3) of the Act and the Plaintiff's history of exposure to noise,,

5.The Medical Panel, by the Third Defendant, denied the Plaintiff natural justice or procedural fairness in refusing to accept and consider relevant material concerning the…

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 Stojcevski v Nisselle

Details

AGLC: Stojcevski v Nisselle [2003] VSC 466
Case: [2003] VSC 466
Decision Date: 26 November 2003

CaseChat Overview and Summary

The parties involved in the case are Stojcevski and Nisselle. Stojcevski, the applicant, was seeking compensation for industrial deafness sustained in part outside Victoria. Nisselle, the respondent, was involved in the assessment of the degree of impairment under the Accident Compensation Act 1985. The dispute centred on whether events occurring outside Victoria should be taken into account when assessing the degree of impairment. The matter was heard by the Supreme Court of Victoria.

The central legal issues that the court had to address were whether the events that occurred outside Victoria should be considered in the assessment of the degree of impairment and if the consideration of such events constituted a denial of natural justice. The court was required to determine the scope of the assessment of impairment under the Act and whether the inclusion of events outside Victoria was permissible. Additionally, the court had to evaluate if the medical panel's consideration of irrelevant matters breached the principles of natural justice.

In reaching its decision, the court examined the legislative framework and the principles of natural justice. The court found that the assessment of the degree of impairment should include all relevant factors, even those occurring outside Victoria, as per the provisions of the Accident Compensation Act 1985. However, the court also determined that the medical panel had considered irrelevant matters in their assessment, which did breach the principles of natural justice. Consequently, the court quashed the decision of the medical panel and remitted the matter for reconsideration, ensuring that only relevant matters were taken into account.

The final orders of the court were to quash the decision of the medical panel and to remit the matter for reconsideration in accordance with the principles of natural justice, ensuring that only relevant factors were considered in the assessment of the degree of impairment.

Orders