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:

1. 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.

1. The plaintiff sought such an order in the proceeding.

1. 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.

1. 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.

1. 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.

1. 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.

1. The first defendant, the worker, consents to the granting of the relief in respect of the Medical Panel’s decision.

1. The Joint Memorandum refers to the definition of ‘incapacity’ in s 5 of the Act and the authorities that have considered that term. The Joint Memorandum contends that:

In the circumstances of this case, on the facts as found by the Panel, which included that the worker had no generic incapacity for her pre-injury work and that any incapacity for work that she did have was “workplace specific”, an application of the principles set out above necessitated a conclusion that the worker did not have an incapacity to work.

It was not open to the Panel to find that the worker had an incapacity for work for the purposes of s 93 of the Act and the Panel’s conclusion that the worker was incapacitated for work reflected a misunderstanding of the law.

1. The second, third, fourth and fifth defendants, who were the Medical Panel, neither consent to, nor oppose, the making of the orders that are sought.

1. I consider that the matters raised in the Joint Memorandum make it appropriate to grant an order in the nature of certiorari quashing the Medical Panel’s decision and to refer the questions for determination to a differently constituted panel.

1. I consider it appropriate to order that the first defendant pays the plaintiff’s costs and to grant the first defendant an indemnity certificate in respect of costs pursuant to s 4(1) of the Appeal Costs Act 1998 (Vic).[3]

   [3]Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248, [54].