Venture Campbellfield v Kemal Isitman - [2016] VSC 665

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 00879

VENTURE CAMPBELLFIELD	Plaintiff
v
KEMAL ISITMAN	First defendant
ANDREW GIBSON	Second defendant
DAVID FISH	Third defendant
STEVEN LIETL	Fourth defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2016
DATE OF JUDGMENT:	8 November 2016
CASE MAY BE CITED AS:	Venture Campbellfield v Kemal Isitman & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 665

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ADMINISTRATIVE LAW – Judicial review – O 56 Supreme Court (General Civil Procedure) Rules 2015 – Accident Compensation Act 1985 – Workplace Injury Rehabilitation and Compensation Act 2013 – Review of Medical Panel opinion – Panel considered information beyond statement of agreed facts in the joint statement – Procedural fairness.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Fleming QC Ms S. Gold	Hall & Wilcox
For the First Defendant	Mr A. Clements QC Mr N. Dunston	Zaparas Lawyers Pty Ltd

HIS HONOUR:

The plaintiff was the employer of Kamal Isitman, the first defendant. The second to fourth defendants constituted a medical panel (‘the Panel’),[1] who provided an opinion (‘the Opinion’) favourable to the first defendant and correspondingly unfavourable to the plaintiff in the context of compensation proceedings brought under s 98 of the Accident Compensation Act 1985 (‘ACA’). The plaintiff seeks judicial review to quash the medical panel’s opinion. These review proceedings are brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.
[1]Pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’).

The medical panel defendants have advised the Court that they will submit to such orders as might be made in this proceeding. They have not appeared nor made submissions.[2]
[2]See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35.

The Panel formed its Opinion on two medical questions that were referred to it from the Magistrates’ Court on the application of the employer. The questions and responding answers were:

Question 1: What is the nature of the plaintiff’s medical condition relevant to the alleged injuries to the:
(a) Right shoulder;
(b) Left shoulder.
Answer: The Panel is of the opinion that the worker is suffering from:-
(a)rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the right shoulder;
(b)rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the left shoulder;
Relevant to the alleged injuries.

Question 2: Was the plaintiff’s employment with the defendant a significant contributing factor to any medical condition identified in your answer above in relation to the:
(a) Right shoulder;
(b) Left shoulder;
Answer: The Panel is of the opinion that the plaintiff’s employment with the defendant was a significant contributing factor to the:
(a)rotator cuff dysfunction and an aggravation of acromioclavicular arthropathy of the right shoulder; and the
(b)rotator cuff dysfunction and an aggravation of the acromioclavicular arthropathy of the left shoulder.

The plaintiff impugns these answers, which constitute the Opinion, and contends:

Ground 1:

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: [2016] VSC 665
Decision Date: 8 November 2016

CaseChat Overview and Summary

Venture Campbellfield sought judicial review of a decision made by a Medical Panel under the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013. The dispute arose from a decision regarding the claimant's entitlement to workers' compensation benefits. Kemal Isitman, the claimant, had applied for workers' compensation benefits following an injury sustained during employment. The Medical Panel, which was tasked with assessing the merits of Isitman's claim, reached a conclusion that was challenged by Venture Campbellfield on the basis that the Panel had considered extraneous information not contained in the joint statement of agreed facts. This led to a contention that the decision-making process lacked procedural fairness.

The central legal issue before the court was whether the Panel's consideration of information beyond the agreed facts amounted to a breach of the principle of procedural fairness. The court had to determine if the Panel's decision-making process complied with the statutory requirements and common law principles of natural justice. Specifically, the court needed to examine whether the claimant had been afforded a fair opportunity to respond to all material evidence considered by the Panel. The court also needed to consider whether the Panel's actions in reviewing information outside the agreed facts constituted a jurisdictional error.

The court held that the Panel's consideration of information beyond the agreed facts did indeed breach the principle of procedural fairness. The court found that Isitman was not given an adequate opportunity to respond to this additional information, thereby depriving him of a fair hearing. The court emphasised that any material facts upon which a decision is based must be disclosed to the parties involved to ensure a fair process. Given the breach of procedural fairness, the court concluded that the Panel's decision was flawed and could not stand. Consequently, the court quashed the Panel's decision and remitted the matter back to the Panel for reconsideration in accordance with proper procedural fairness.

The final order of the court was to quash the decision of the Medical Panel and to remit the matter back to the Panel for reassessment, ensuring that all procedural fairness requirements were strictly adhered to.

Orders