Zachariadou v Downes-Brydon - [2021] VSC 425

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00843

CHRISTINA ZACHARIADOU	Plaintiff
v
DR JENNY DOWNES–BRYDON & ORS (according to the attached schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2021
DATE OF JUDGMENT:	19 July 2021
CASE MAY BE CITED AS:	Zachariadou v Downes-Brydon
MEDIUM NEUTRAL CITATION:	[2021] VSC 425

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JUDICIAL REVIEW – Medical Panel – Claimed injuries to bilateral hands and wrists – Whether Panel acted on an incorrect material finding of fact – Whether a jurisdictional error – Procedural fairness – Reliance on facts without formally notifying worker of their possible significance – Workplace Injury Rehabilitation and Compensation Act 2013 ss 3, 40(3)(c), 303.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Saunders	Zaparas Lawyers
For the Fourth Defendant	Ms F C Spencer	Russell Kennedy

HIS HONOUR:

The plaintiff, Ms Christina Zachariadou, seeks judicial review of a Medical Panel’s Opinion of 18 December 2019 insofar as it dealt with questions concerning claimed injuries to her hands and wrists. The Opinion also concerned claimed injuries to her left shoulder and right foot, but the Panel’s answers to those questions are not in dispute.

The dispute that has led to this proceeding arises from the Panel’s answers to medical questions raising the issue of whether Ms Zachariadou’s employment was a significant contributing factor to the aggravation of her pre-existing osteoarthritic condition of her bilateral hands and wrists.

The plaintiff was born in 1962 in Greece. She was employed by the fourth defendant, Steinhoff Bedding Pty Ltd (‘the employer’), Moorabbin, in its mattress manufacturing factory as a machinist from July 2015 until 4 January 2018. As described in more detail later, she operated a sewing machine with foot pedals, to sew fabric into mattress covers and had to push, pull, press and pinch the fabric with her hands, thumb and forefinger in order to hold it in place. The fabric weighed between 3 and 5 kg.[1] She is right-hand dominant.
[1]Court Book, Zachariadou v Downes-Brydon & Ors (Supreme Court of Victoria S ECI 2020 00848, Ginnane J, 4 February 2021) 58 (‘CB’).

She worked long hours six days a week, with five shifts of 10 hours and a Saturday shift of five hours, so amounting to 55 hours a week.

At the time of her examination by the Panel in November 2019, Ms Zachariadou was aged 57. She came to Australia in 2013 due to an economic crisis in Greece. She is married with three adult children and grandchildren all of whom live in Greece. She visited them from time to time, a matter that received some attention by the Panel and in this proceeding.

Ms Zachariadou’s amended grounds for seeking judicial review were first that in determining its opinion on the referred medical questions, the Panel fell into jurisdictional error, by making two fundamental mistakes of fact that each went to a central issue relevant to determining its…

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 Zachariadou v Downes-Brydon

Details

AGLC: Zachariadou v Downes-Brydon [2021] VSC 425
Case: [2021] VSC 425
Decision Date: 19 July 2021

CaseChat Overview and Summary

Zachariadou v Downes-Brydon involved the claimant, Zachariadou, who sought judicial review of a decision made by a Medical Panel regarding her claim for injuries to her bilateral hands and wrists. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Mortimer. Zachariadou contended that the Panel had erred in its decision-making process, primarily by acting on an incorrect material finding of fact and committing a jurisdictional error by not adhering to procedural fairness. She argued that the Panel had relied on facts without formally notifying her of their possible significance, which violated her rights under the Workplace Injury Rehabilitation and Compensation Act 2013.

The court was required to determine whether the Panel's actions constituted a jurisdictional error and whether there had been a breach of procedural fairness. The core issue revolved around the interpretation and application of sections 3, 40(3)(c), and 303 of the Workplace Injury Rehabilitation and Compensation Act 2013. Specifically, the court had to examine whether the Panel's reliance on certain facts without prior notification to Zachariadou was in breach of the statutory provisions that mandate procedural fairness. The decision also required consideration of the extent to which the Panel's findings were influenced by an incorrect material fact, potentially leading to a jurisdictional error.

Justice Mortimer held that the Panel had indeed erred by not notifying Zachariadou of certain facts that could materially affect her claim, thereby breaching the principles of procedural fairness. The court found that the Panel had acted on an incorrect material finding of fact, which was a jurisdictional error. Consequently, the decision of the Panel was quashed, and the matter was remitted back for reconsideration in accordance with the correct procedural steps. This ruling underscored the importance of ensuring that all relevant facts are communicated to the claimant and that any material findings are correctly identified to uphold the principles of fairness and legality in judicial review proceedings.

Orders