Treacy v Newlands

[2008] VSC 395

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5301 of 2007

MAREE TREACY	Plaintiff
v
DR CAROL NEWLANDS & ORS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2008
DATE OF JUDGMENT:	2 October 2008
CASE MAY BE CITED AS:	Treacy v Newlands & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 395

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ADMINISTRATIVE LAW – Review of Medical Panel – Jurisdictional error – No failure to take into account relevant considerations – Adequacy of reasons – Section 8 Administrative Law Act 1978.

ACCIDENT COMPENSATION – Review of Medical Panel – No failure to take into account relevant considerations – Adequacy of reasons – Section 45 and Division 3 of Part III of the Accident Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. O’Loughlin QC with Mr N. Horner	Workforce Legal
For the First to Fourth Defendants	No appearance	Monahan & Rowell
For the Fifth Defendant	Mr P.H. Solomon	Herbert Geer & Rundle

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

History of this proceeding................................................................................................................ 4

The relevant principles..................................................................................................................... 4

Failure to take account of relevant considerations...................................................................... 9

Inadequacy of reasons..................................................................................................................... 15

Disposition of the proceeding....................................................................................................... 18

Conclusion......................................................................................................................................... 19

HIS HONOUR:

Introduction

1. On 9 May 1999, Mrs Maree Treacy, the plaintiff, suffered injury in the course of her employment with Wilson Parking Australia 1992 Pty Ltd, the fifth defendant, when she fell whilst stepping out of a caravan kitchen at Melbourne Airport.  Subsequently, Mrs Treacy made a claim for compensation pursuant to the Accident Compensation Act 1985 (“the Act”). That claim was accepted. On 3 July 2005, the plaintiff’s entitlement to weekly payments of compensation under the Act was terminated[1] on the basis that she had received such payments for more than 104 weeks and had a current work capacity.[2] Eventually, proceedings were issued by Mrs Treacy in the Magistrates’ Court of Victoria against Wilson Parking seeking an order for weekly payments pursuant to s 93 of the Act “from 3 July 2005 and ongoing in accordance with law”. During the course of those proceedings, Wilson Parking requested certain medical questions[3] to be referred by the Magistrates’ Court to a medical panel pursuant to s 45(1)(b) of the Act.

   [1]Pursuant to s 114(2)(b), and in reliance upon s 93CC(1), of the Act

   [2]The expression “current work capacity” is defined in s 5 of the Act

   [3]The expression “medical question” is defined in s 5 of the Act

1. A medical panel comprising the first to fourth defendants was convened to answer the referred medical questions.  On 4 December 2006, the Medical Panel answered the referred medical questions as follows:

Question 1.What is the nature of the Plaintiff’s medical condition relevant to the following alleged injuries:

(a)injury to the left knee resulting in a left total knee replacement;

(b)production, aggravation and acceleration of osteoarthritis of the left knee;

(c)injury to the left ankle;

(d)injury to the back including broad based disc bulge with annular disruption at L4/5;

(e)resultant referred pain to…