Vinton v Sim - [2014] VSC 568

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 03216

ROSS VINTON (an infant who sues by his litigation guardian Rosemary Vinton)	Plaintiff
v
MALCOLM SIM and others	Defendants

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2014
DATE OF JUDGMENT:	10 November 2014 (reasons published subsequently)
CASE MAY BE CITED AS:	Vinton v Sim
MEDIUM NEUTRAL CITATION:	[2014] VSC 568

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APPEAL - Judicial Review - Determination of Medical Panel under Wrongs Act for degree of impairment - Statutory time limit for making determination - Time limit a jurisdictional condition - Judicial Review of determination made outside time - Review and remittal conceded - Application for indemnity certificate for costs - Whether judicial review is “appeal” - Whether Medical Panel is “a tribunal or other body” - Certificate granted - Appeal Costs Act 1998 (Vic), s 4 (1)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Fourth Defendant (State of Victoria)	Mr R Knowles	Moray & Agnew

HIS HONOUR:

On 3 November 2014, the Court made an order by consent of all parties that a determination made on 2 May 2013 by a Medical Panel (as constituted by the first, second and third defendants) under s 28LZG of the Wrongs Act be set aside and remitted to a differently constituted panel for determination. It was a determination of a medical question referred by the fourth defendant, the State of Victoria.

In essence, (and here I shall borrow directly from the allegations in the originating motion) the plaintiff was born on 25 January 2000 and was diagnosed with moderate to severe autism spectrum disorder in March 2003. From October 2007 to April 2008 the plaintiff ingested lead-based paint while a primary school student at Seaford Primary School. He was picking at paint on a school building and eating the peelings. He was diagnosed with lead poisoning and successfully completed chelation therapy in 2008 to reduce his blood lead levels. After a statutory examination of the plaintiff on a referral by the State, the panel determined that the degree of whole person impairment resulting from the physical injury and psychiatric injury did not satisfy the threshold level.

As originally composed, the originating motion sought relief in the nature of certiorari to quash the decision of the Panel on the ground that the plaintiff was denied natural justice. The plaintiff contended that findings that were critical to the opinion were made without giving his parents, Rosemary and Darren Vinton, an opportunity to comment or provide information concerning his behavioural issues, sleep disorders and the development of a stutter.

The motion was subsequently amended by leave of the Court in September this year. The plaintiff added a primary contention that the Panel failed to comply with a 30 day time limit under s 28LZG (3) of the Wrongs Act. I shall avoid reference to that provision. It is enough to say 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 Vinton v Sim

Details

AGLC: Vinton v Sim [2014] VSC 568
Case: [2014] VSC 568
Decision Date: 10 November 2014 (reasons published subsequently)

CaseChat Overview and Summary

The case of Vinton v Sim involved a dispute concerning the determination of a medical panel under the Wrongs Act, focusing on the statutory time limit for making such a determination. The dispute was brought before the court, which was required to decide whether the time limit was a jurisdictional condition and if the judicial review of a determination made outside the time was permissible. Additionally, the case considered whether the judicial review was an "appeal" and if the Medical Panel constituted "a tribunal or other body" for the purposes of the Appeal Costs Act 1998 (Vic).

The court's primary legal issue was whether the statutory time limit for the Medical Panel's determination was a jurisdictional condition, meaning that the court lacked power to review the determination if made outside the prescribed period. The court also had to determine whether the judicial review of such a determination was an "appeal" and if the Medical Panel qualified as "a tribunal or other body" under the Appeal Costs Act 1998 (Vic). These questions were pivotal in deciding whether an indemnity certificate for costs could be granted.

The court ruled that the time limit was indeed a jurisdictional condition, thus barring the court from reviewing the determination made outside the specified period. However, the parties conceded to the review and remittal of the determination, allowing the court to address the matter on its merits. The court found that the judicial review was an "appeal" and that the Medical Panel constituted "a tribunal or other body" within the meaning of the Appeal Costs Act 1998 (Vic). Consequently, the court granted an indemnity certificate for costs, as the applicant met the criteria set out in section 4(1) of the Act.

The final order of the court was to grant the indemnity certificate for costs to the applicant, reflecting the court's decision that the judicial review qualified as an "appeal" and the Medical Panel as "a tribunal or other body" under the Appeal Costs Act 1998 (Vic). This ruling provided clarity on the jurisdictional limits of the court in reviewing Medical Panel determinations and the applicability of indemnity certificates for costs in such cases.

Orders