Tarczon v Brimbank City Council - [2022] VSC 418

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01320

JASON TARCZON	Plaintiff
v
BRIMBANK CITY COUNCIL (and others according to the attached Schedule of Parties)	First Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2022
DATE OF JUDGMENT:	27 July 2022
CASE MAY BE CITED AS:	Tarczon v Brimbank City Council & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 418

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ADMINISTRATIVE LAW - Judicial Review – Medical Panel – Review of Opinion of the Panel – Workplace compensable injury to right knee – Consequential left knee injury – Panel concluded that present condition did not result from claimed injuries – Whether Panel erred finding an exacerbation injury and that the exacerbation had resolved – Factual error going to jurisdiction – Decision not open on the evidence – Legal unreasonableness.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L B R Allen	Maurice Blackburn Lawyers
For the First Defendant	Mr R Kumar	Russell Kennedy
For the Second, Third and Fourth Defendants	No appearance	Victorian Government Solicitors Office

HER HONOUR:

Mr Tarczon sustained a right knee injury at work in compensable circumstances.

He sustained a consequential twisting injury to his left knee as a result of his right knee giving way at home (the twisting incident). A medical panel (the Panel) was convened to answer three medical questions referred by a conciliation officer in the context of a dispute about liability for surgery for the left knee injury. The Panel determined that the present left knee condition did ‘not now result from and nor is it materially contributed to by the claimed left knee or right knee injury’.0F[1]
[1]The Panel’s Certificate of Opinion and their Reasons for Opinion pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) is dated 25 February 2021 (‘Panels Reasons’).

The plaintiff seeks judicial review of the Panel’s opinion under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. The opinion and accompanying reasons are dated 25 February 2021 (the Opinion). As a result of the answers to the first two questions, the Panel said it was not applicable to answer the question as to whether the surgery was appropriate. The plaintiff submits that the Panel made jurisdictional errors in answering the first and second referred questions and as a result should have answered the third question.

The second, third and fourth defendants are the Convenor and members of the Panel. They have advised they will abide the decision of the Court.1F[2]
[2]By letter dated 12 May 2021 from the Victorian Government Solicitor’s Office in accordance with the principles from R v Australian Broadcasting Tribunal, Ex Parte Hardiman & Others (1980) 144 CLR 13.

The plaintiff worked as a garbage truck driver from 2002 with Brimbank Council, the first defendant who appeared as contradictor. The right knee injury occurred as a result of an incident on 27 November 2015 when lifting a…

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: [2022] VSC 418
Decision Date: 27 July 2022

CaseChat Overview and Summary

The case of Tarczon v Brimbank City Council was heard in the Supreme Court of Victoria. The applicant, a former employee of the respondent council, sought judicial review of a decision by a medical panel that concluded his left knee condition did not result from his workplace injuries. The applicant argued that the panel's findings were erroneous and that the left knee injury was consequential to his right knee injury, which was compensable. The court was required to determine whether the panel's decision was legally sound and based on proper factual findings.

The central legal issues in this case were whether the medical panel's decision contained a factual error that went to the jurisdiction of the panel, and if so, whether the decision was not open on the evidence or legally unreasonable. The applicant contended that the panel had erred in concluding that the exacerbation of the left knee condition had resolved and that the panel failed to properly consider the evidence of consequential injuries. The council, on the other hand, argued that the panel's decision was well-reasoned and based on the evidence presented.

The court found that the panel's decision contained a factual error that went to its jurisdiction, as the panel had failed to properly consider the evidence of consequential injuries. The court held that the panel's conclusion that the exacerbation of the left knee condition had resolved was not open on the evidence. Additionally, the court found that the decision was legally unreasonable as the panel had not adequately addressed the evidence of consequential injuries. The court therefore quashed the panel's decision and remitted the matter for reconsideration.

The final orders of the court were that the decision of the medical panel be quashed and the matter be remitted to the panel for reconsideration in light of the court's findings. The court did not make any orders as to costs.

Orders