Wagstaff Cranbourne Pty Ltd v Hashimi - [2020] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0084

WAGSTAFF CRANBOURNE PTY LTD	Applicant
v
ALI HASHIMI	First Respondent
and
DR DOMINIC YONG	Second Respondent
and
KEITH ELSNER	Third Respondent
and
DR EDMOND VAN AMMERS	Fourth Respondent

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JUDGES:	BEACH, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2020
DATE OF JUDGMENT:	27 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 33
JUDGMENT APPEALED FROM:	[2019] VSC 496 (Quigley J)

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JUDICIAL REVIEW – Procedural fairness – Medical panel – Workplace injury to first respondent’s lumbar spine – Adjustment disorder – Medical panel concluded adjustment disorder caused by first respondent’s traumatic experiences as refugee – Such conclusion not advocated in parties’ submissions to medical panel or expressed in any medical report – Whether medical panel’s conclusion could be reasonably anticipated by first respondent – Whether medical panel denied first respondent procedural fairness – Judge’s decision correct – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M F Fleming QC with Ms S Gold	IDP Lawyers
For the First Respondent	Mr A G Uren QC with Mr C Hangay	Zaparas Lawyers
For the Second to Fourth Respondents	No appearance	Victorian Government Solicitor

BEACH JA
KYROU JA
KAYE JA:

Introduction and summary

Between 29 March 2005 and 2 August 2012, the first respondent, Ali Hashimi, was employed by the applicant, Wagstaff Cranbourne Pty Ltd (‘Wagstaff’), as a full time slaughterman and process worker.

On 18 June 2015, Mr Hashimi made a claim for a lump sum permanent impairment benefit pursuant to s 98C of the Accident Compensation Act 1985 (‘AC Act’) in respect of an injury to his lumbar spine which was said to have been caused by a fall at work on 22 June 2012. On 5 July 2016, he made a claim for compensation under that Act in the form of weekly payments in relation to an injury to his back which was said to have occurred throughout the course of his employment with Wagstaff between 29 March 2005 and 22 June 2012.

The Victorian WorkCover Authority (‘VWA’) rejected both claims. Mr Hashimi commenced a proceeding in the Magistrates’ Court against Wagstaff in respect of VWA’s rejection of the claims. He alleged injury to his lumbar spine, aggravation of pre-existing injury to the lumbar spine and psychological injury secondary to the physical injuries.

At the request of Wagstaff, the magistrate referred certain questions to a medical panel pursuant to s 274(l)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRC Act’). A medical panel comprising the second to fourth respondents was convened (‘Panel’). The questions and the answers that the Panel gave to those questions in its opinion dated 25 July 2018, insofar as they are presently relevant, are set out at [26] below.

On 20 September 2018, Mr Hashimi commenced a proceeding in the Trial Division seeking to quash the Panel’s opinion on the basis that the Panel had committed jurisdictional error. He alleged that, in concluding that he…

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: [2020] VSCA 33
Decision Date: 27 February 2020

CaseChat Overview and Summary

Wagstaff Cranbourne Pty Ltd brought an action against Hashimi, seeking judicial review of a decision made by a medical panel regarding a workplace injury to the first respondent's lumbar spine and an adjustment disorder. The dispute centred on whether the medical panel's conclusion that the adjustment disorder was caused by the first respondent's traumatic experiences as a refugee could be reasonably anticipated and whether this conclusion denied the first respondent procedural fairness. The matter was heard in the Federal Court of Australia.

The court was required to decide whether the conclusion reached by the medical panel was reasonably anticipated by the first respondent, and if not, whether this amounted to a denial of procedural fairness. The parties' submissions and medical reports did not advocate for the conclusion reached by the panel. The court also needed to consider whether the judge's decision was correct and if leave to appeal should be granted.

The court found that the medical panel's conclusion was not reasonably anticipated by the first respondent, as neither the parties' submissions nor any medical report supported this conclusion. However, the court held that this did not amount to a denial of procedural fairness because the first respondent had an opportunity to present evidence and arguments on the issue of causation. The judge's decision was affirmed, and leave to appeal was refused. The court held that the decision of the medical panel was not flawed to the extent that it warranted judicial intervention.

Orders