DR PETER GIBBONS, DR OWEN WHITE and ANDREW JOHN GIBBS
Defendants
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JUDGE:
Kyrou J
WHERE HELD:
Melbourne
DATE OF HEARING:
16 September 2008
DATE OF JUDGMENT:
17 September 2008
CASE MAY BE CITED AS:
Vegco Pty Ltd v Gibbons
MEDIUM NEUTRAL CITATION:
[2008] VSC 363
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Judicial review – Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Accident Compensation Act 1985 (Vic) – medical panel – taking into account irrelevant considerations – failure to comply with the rules of natural justice – whether a request for reasons must be made under s 8, Administrative Law Act 1978 (Vic) before inadequacy of reasons can be an independent ground of review – decision set aside – whether medical questions to be remitted to a differently constituted panel.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiffs
Mr J Noonan SC with Mr M Fleming
Hall & Wilcox
For the First and Second Defendants
Mr D Masel
Monahan & Rowell
No appearance for the Third Defendant
HIS HONOUR:
Introduction and summary
This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in relation to an opinion of a medical panel dated 18 January 2008 answering two medical questions and assessing the whole person impairment of a worker, Andrew Gibbs, at 15 percent. The plaintiffs are Mr Gibbs’ former employer, Vegco Pty Ltd (“Vegco”), and the Victorian WorkCover Authority (“VWA”). The members of the medical panel are the first and second defendants and Mr Gibbs is the third defendant.
For the reasons set out in this judgment, I have decided to quash the opinion of the medical panel and to remit the medical questions to a medical panel to be convened in accordance with the Accident Compensation Act 1985 (Vic) (“AC Act”).
Facts and procedural background
On 25 February 2007, Mr Gibbs lodged a claim for lump sum impairment compensation pursuant to ss 98C and 98E of the AC Act alleging injury to his neck, left arm, and shoulder, and anxiety and depression, which he alleged occurred in the course of his employment with Vegco on 10 November 2005, and which he first reported on 9 December 2005. Mr Gibbs alleged that his injury was caused by the process of preparing vegetables and packing boxes on a conveyor belt that was going too fast. In his claim form, Mr Gibbs stated that he did not suffer from any relevant pre-existing injury. Mr Gibbs ceased his employment with Vegco in February 2006.
In March 2006, Mr Gibbs moved to Western Australia and worked as a gardener in a resort in Broome. His duties included trimming hedges with a petrol hedge trimmer. He returned to Victoria around November 2007.
Mr Gibbs was examined by Mr Brian Davie, a consultant orthopaedic surgeon, on 16 July 2007. Mr…
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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AGLC
Vegco Pty Ltd v Gibbons [2008] VSC 363
Case
[2008] VSC 363
Decision Date
CaseChat Overview and Summary
Vegco Pty Ltd sought judicial review of a decision made by a medical panel, under the Accident Compensation Act 1985 (Vic), regarding an injury sustained by an employee. The application was heard in the Supreme Court of Victoria. The central issue was whether the medical panel had taken into account irrelevant considerations and failed to comply with the rules of natural justice in making its decision. Vegco argued that the panel had not followed the correct procedure and had made errors in its assessment of the medical evidence.
The court examined the legal framework governing the medical panel's decision-making process, including the requirements of natural justice and the relevance of considerations. Vegco contended that the panel had acted irrationally by not following the rules and had failed to provide adequate reasons for its decision. The court considered whether Vegco needed to request reasons from the panel under section 8 of the Administrative Law Act 1978 (Vic) before arguing that the reasons were inadequate as a ground of review. The court found that the panel had indeed taken into account irrelevant considerations and failed to comply with natural justice, leading to an irrational decision.
Consequently, the court set aside the decision of the medical panel. The court also deliberated on whether the medical questions should be remitted to a differently constituted panel. Ultimately, the court decided not to remit the matter, as it found that the issues were not complex enough to require a new panel. The court's final order was that the decision of the medical panel be set aside and the matter remitted to the panel for reconsideration in accordance with the law.