Walsh v Boys - [2016] VSC 74

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 02585

DR CHRISTOPHER WALSH	Plaintiff
v
JENYCE BOYS and others (according to the attached schedule)	Defendants

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	7 March 2016
CASE MAY BE CITED AS:	Walsh v Boys
MEDIUM NEUTRAL CITATION:	[2016] VSC 74

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JUDICIAL REVIEW – Opinion of Medical Panel – Meaning of ‘incapacity’ – Consent orders sought by worker and employer quashing opinion on basis that it contained a jurisdictional error – Court satisfied that order should be made – Opinion quashed – Questions referred to new Panel – Indemnity certificate for costs granted – Accident Compensation Act 1985 (Vic) ss 5 and 93.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Wisewould Mahony
For the First Defendant	Adviceline Injury Lawyers

SCHEDULE OF PARTIES

No. S CI 2015 02585
BETWEEN:
DR CHRISTOPHER WALSH	Plaintiff
- and -
JENYCE BOYS	First Defendant
ASSOC PROF EVANGE ROMAS	Second Defendant
DR DIANE NEILL	Third Defendant
DR JOHN KING	Fourth Defendant
DR PATRICK DANIELS	Fifth Defendant

HIS HONOUR:

The plaintiff and the first defendant in this judicial review proceeding[1] have submitted proposed consent orders which would grant an order in the nature of certiorari quashing the certified opinion dated 8 April 2015 of the Medical Panel constituted by the second, third, fourth and fifth defendants and remitting them to a differently constituted Medical Panel to be reconsidered according to law.
[1]Brought under O 56 of the Supreme Court (General Civil Procedure) Rules 2015.

The plaintiff sought such an order in the proceeding.

The opinion of the Medical Panel was expressed in its certificate of opinion as follows:

Question 1. What is the nature of the workers medical condition including any sequelae relevant to the claimed injury?
Answer: The Panel is of the opinion that the worker is suffering from a substantially resolved soft tissue injury to neck and recurrence of an Adjustment Disorder with anxiety (only partially resolved), relevant to the claimed physical injury of 22 April 2012.
Question 2. Is the worker incapacitated for work?
Answer: Yes.

In judicial review proceedings, the Court must be satisfied that it is appropriate to make the consent orders that the parties propose.[2]
[2]Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, 324.

The parties have submitted a Joint Memorandum in compliance with the Judicial Review and Appeals List Practice Note (No 9 of 2015) justifying the orders that they seek. The solicitor for the plaintiff has sworn and filed an affidavit in support of the application.

In essence, the plaintiff employer contends that the opinion of the Medical Panel was vitiated by jurisdictional error in that in forming its opinion, the Panel misconstrued or misapplied s 93 of the Accident Compensation Act 1985 (Vic) (‘the Act’) and the definition of ‘incapacity’ contained in s 5.

The first defendant, the worker, consents to…

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 74
Decision Date: 7 March 2016

CaseChat Overview and Summary

The case of Walsh v Boys involved the applicant, Walsh, and the respondents, Boys and Accident Compensation Board. The applicant sought judicial review of an opinion rendered by a Medical Panel under the Accident Compensation Act 1985 (Vic). The central issue was whether the Panel's opinion, which concluded that the applicant was 'incapable' of working, contained a jurisdictional error warranting its quashing. The applicant and respondents had also sought consent orders to quash the opinion, refer new questions to a new Panel, and grant an indemnity certificate for costs.

The court examined whether the term 'incapacity' in the Act meant the same as 'incapable' in the Panel's opinion. It found that the Panel had indeed made an error by using the term 'incapable' instead of 'incapacity'. The court was satisfied that the error was jurisdictional and that the consent orders should be made. As such, the opinion was quashed, new questions were referred to a new Panel, and an indemnity certificate for costs was granted. The decision underscored the importance of precise language in statutory interpretation and the court's willingness to intervene when jurisdictional errors occur.

Orders