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Victorian Workcover Authority v Jamali

Victorian Workcover Authority v Jamali

Case [2023] VSCA 240 12 October 2023

Judicial Review

Natural Justice & Procedural Fairness

Statutory Interpretation

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0016

VICTORIAN WORKCOVER AUTHORITY	Applicant
v
FAHIM JAMALI & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	BEACH JA, J FORREST and TSALAMANDRIS AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2023
DATE OF JUDGMENT:	12 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 240
JUDGMENT APPEALED FROM:	[2022] VSC 634 (Daly AsJ)

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ADMINISTRATIVE LAW – Judicial review – Workplace injury – Serious injury application – Referral of medical questions to Medical Panel – Application for judicial review of Medical Panel decision – Whether psychiatric origin of injury constituted relevant consideration – Whether Medical Panel failed to consider relevant consideration – Opinion of Medical Panel quashed – Leave to appeal granted – Appeal dismissed.

Workplace Injury Rehabilitation and Compensation Act 2013, ss 1, 3, 5, 10, 274, 303, 304, 305, 307, 313, 325, 327, 330, 335, 537.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 409 ALR 234, Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, Victorian WorkCover Authority v Putrus [2023] VSCA 28, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

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Counsel
Applicant:	Mr MF Fleming KC with Ms F Spencer
First Respondent:	Mr J Ruskin KC with Mr M Hooper
Second to Seventh Respondents:	No appearance
Solicitors
Applicant:	Russell Kennedy Lawyers
First Respondent:	Zaparas Lawyers
Second to Seventh Respondents:	Victorian Government Solicitor

BEACH JA

J FORREST AJA

TSALAMANDRIS AJA:

Introduction

This application for leave to appeal raises the issue, again, of whether a Medical Panel (the ‘Medical Panel’) in answering questions posed by a County Court judge was required to consider a worker’s specific medical condition: in this case, an alleged psychiatrically based chronic pain syndrome, resulting from a workplace injury. And, if so, whether it gave proper consideration to that condition and its effect on his ability to work.
The questions were referred to the Medical Panel by the judge as the result of an application by the first respondent, Mr Fahim Jamali, for leave to bring a common law proceeding under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘WIRCAct’). He was required to demonstrate that he had sustained a serious injury as defined by that Act.[1]
[1]A ‘serious injury’ means permanent serious impairment or loss of a body function, permanent serious disfigurement, permanent severe mental or permanent severe behavioural disturbance or disorder, or loss of a foetus: Workplace Injury Rehabilitation and Compensation Act 2013 s 325(1) (the ‘WIRC Act’).
The Medical Panel answered that Mr Jamali had a ‘resolved soft tissue injury of the lower back and a non-specific lower back pain’ and ‘an adjustment disorder with anxiety and associated conduct disturbance’. The County Court is bound to apply those answers in determining whether Mr Jamali has satisfied the serious injury gateway.
Subsequently, on the return of…

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 Jamali

Details

AGLC: VWA v Jamali [2023] VSCA 240
Case: [2023] VSCA 240
Decision Date: 12 October 2023

CaseChat Overview and Summary

In the case of Victorian Workcover Authority v Jamali, the appellant, Victorian Workcover Authority, sought judicial review of a decision made by the respondent, the Medical Panel, regarding a serious injury application made by the respondent. The decision of the Medical Panel was that the psychiatric origin of the injury did not constitute a relevant consideration. The appellant challenged the decision on the basis that the Medical Panel failed to consider relevant considerations in making its decision. The case was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue in the case was whether the Medical Panel failed to consider relevant considerations in making its decision. The appellant argued that the Medical Panel failed to consider the psychiatric origin of the injury, which was a relevant consideration under the Workplace Injury Rehabilitation and Compensation Act 2013. The respondent argued that the Medical Panel had considered all relevant considerations and that the psychiatric origin of the injury was not a relevant consideration. The court had to determine whether the Medical Panel had failed to consider a relevant consideration in making its decision.

The court found that the Medical Panel had failed to consider a relevant consideration in making its decision. The court held that the psychiatric origin of the injury was a relevant consideration under the Act and that the Medical Panel had failed to consider this relevant consideration in making its decision. The court quashed the decision of the Medical Panel and remitted the matter back to the Medical Panel for reconsideration. The court also granted leave to appeal to the appellant and dismissed the appeal on the basis that the appellant had not demonstrated that the decision of the Medical Panel was wrong.

The court ordered that the decision of the Medical Panel be quashed and that the matter be remitted back to the Medical Panel for reconsideration in accordance with the court's reasons. The court also granted leave to appeal to the appellant and dismissed the appeal on the basis that the appellant had not demonstrated that the decision of the Medical Panel was wrong. The court did not order any costs.

Orders