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Victorian WorkCover Authority v Baumgartner

Victorian WorkCover Authority v Baumgartner

Case [2021] VSC 300 26 May 2021

Judicial Review

Abuse of Process

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04225

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
DEANNE BAUMGARTNER	First Defendant
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2020
DATE OF JUDGMENT:	26 May 2021
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Baumgartner & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 300

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Referral of question to medical panel – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), Part 6 – Abuse of process – Relevance of medical question to issues in dispute between the parties – Function of a Medical Panel – Error by trial Judge in refusing to refer certain questions – Certiorari – Rogers v The Queen (1994) 181 CLR 251 – Masters v McCubbery and Ors [1996] VR 365 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Greeves v HIH Winterthur Workers’ Compensation (Vic) Ltd [2000] 1 VR 344 – Isuzu General Motors Australia Ltd v Jordon (2000) 2 VR 212 – Kamener & Ors v Griffin & Ors [2005] VSC 202 – Stewart v GUD Manufacturing Co Pty Ltd (unreported, County Court of Victoria, Rendit J, 4 May 1999).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Fleming QC with Ms F. Spencer	IDP Lawyers
For the First Defendant	Mr A. Ingram QC with Mr S. Weir	Slater & Gordon

HER HONOUR:

Ms Baumgartner, by Originating Motion in the County Court, is seeking leave to pursue a claim for damages in accordance with s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Prior to the hearing of her serious injury application, the Victorian WorkCover Authority (VWA) requested referral of medical questions by the Court to a Medical Panel for Opinion under s274(1)(b) of the WIRC Act. Judge Bowman refused to refer to certain of the proposed questions as, in accordance with s 274(3) of the WIRC Act, he formed the view that the referral of those questions would in all the circumstances constitute an abuse of process.

The issue raised by this Originating Motion is the construction and application of s 274(3) of the WIRC Act. His Honour concluded that the referral of a medical question takes place in the context of there being a dispute before the Court. He determined that where the available medical opinion does not give rise to any dispute or controversy that requires resolution, then referral of a medical question on that issue is an abuse of process. He formed the view that on some questions sought to be referred there was simply no dispute on the relevant medical material before him. In those circumstances he declined to refer those questions.

I have concluded that the learned Trial Judge was in error in the way he identified the dispute and so concluded that 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 Victorian WorkCover Authority v Baumgartner

Details

AGLC: Victorian WorkCover Authority v Baumgartner [2021] VSC 300
Case: [2021] VSC 300
Decision Date: 26 May 2021

CaseChat Overview and Summary

In the matter of Victorian WorkCover Authority v Baumgartner, the court was presented with a dispute concerning the referral of a question to a medical panel. The Victorian WorkCover Authority, as the appellant, sought judicial review of a decision made by the respondent, Baumgartner. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the trial judge erred in refusing to refer certain questions to a medical panel and whether the referral was necessary to resolve the disputes between the parties. The court was required to determine if the function of a medical panel was relevant to the issues in dispute and if the trial judge's decision constituted an abuse of process.

In delivering its judgment, the court found that the trial judge had indeed erred in refusing to refer certain questions to a medical panel. The court held that the function of a medical panel was relevant to the issues in dispute and that the referral was necessary to resolve the disputes between the parties. The court considered the authorities of Rogers v The Queen, Masters v McCubbery and Ors, Wingfoot Australia Partners Pty Ltd v Kocak, Greeves v HIH Winterthur Workers’ Compensation (Vic) Ltd, Isuzu General Motors Australia Ltd v Jordon, Kamener & Ors v Griffin & Ors, and Stewart v GUD Manufacturing Co Pty Ltd in reaching its decision. The court concluded that the trial judge's decision constituted an abuse of process.

The court granted the application for judicial review and quashed the decision of the trial judge. It ordered that the matter be remitted to the County Court for the referral of certain questions to a medical panel.

Orders