Baumgartner v Victorian WorkCover Authority [2022] VSCA 21

1 In the course of a serious injury application brought by Ms Baumgartner ('the applicant') in the County Court, the Victorian WorkCover Authority ('the VWA' or the 'respondent')[1] requested a judge of that court to refer a series of medical questions to a medical panel under s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act'). Judge Bowman ('the primary judge') agreed to refer some but not all of the proposed questions. He refused to refer some questions, including those relating to the nature and extent of the applicant's injury, on the basis that the medical evidence obtained by the respondent established those matters beyond argument and that since there was no conflict on the evidence, the proposed questions were unnecessary and irrelevant to any issue.

2 The respondent successfully sought judicial review of the primary judge's ruling in the Trial Division. A judge of the Court held that the primary judge had erred by correctly holding that a question could only be referred if it was relevant to an issue in dispute, but wrongly confining the parameters of the dispute to an established conflict in the medical evidence. The applicant seeks leave to appeal from the orders made in the Trial Division.

3 The parties agree that, despite the mandatory language of s 274 of the Act, a judge need not refer a question to a medical panel that is not relevant to an issue in the proceeding. They disagree on how the question of relevance is to be determined and on whether it is an abuse of process for a party to request the referral of a medical question in the absence of an established conflict in the evidence.

4 For the reasons that follow, there is no error in the decision of the judge and leave to appeal must be refused.

5 The applicant was, at the time of the proposed referral, a 45-year-old woman educated to Year 10 and who had completed a hairdressing apprenticeship and worked in this industry for some nine years thereafter. She commenced but did not complete a course in real estate, then worked in retail and hospitality for some years in various roles including sales assistant, assistant store manager and store manager. Dyslexia and learning difficulties were implicated in her decision to leave school and her inability to complete the real estate course.

6 The applicant commenced work in a full time sales position with the employer Australian Vacuum Cleaner Co Pty Ltd (trading as Godfreys) on 5 December 2014. Her duties included merchandising, sales, delivery, and stock count duties. She says that, on 19 February 2015, she sustained injury to her neck and shoulder at work when a package fell on her. On 3 March 2015, the applicant submitted a claim for compensation arising from the injury, which she described as 'right subacromial bursitis'. The claim was accepted by the respondent and the applicant received weekly payments of compensation and medical and like expenses.

7 VWA subsequently accepted that the workplace accident on 19 February 2015 had also resulted in an injury to the applicant's cervical spine. As a result of her neck injury, the applicant underwent a C6/7 anterior discectomy and fusion on 30 July 2015. Surgery for her right shoulder injury was recommended by her treating surgeon but, in November 2017, a medical panel determined that the surgery was not appropriate at that time.

8 Wishing to pursue a common law action in damages, on 22 October 2018 the applicant applied, pursuant to s 328(4) of the Act, for a determination that she had suffered a 'serious injury'. The application relied on the physical injuries to the applicant's neck and right shoulder, as well as her subsequent depression and anxiety. That application was rejected by the VWA, prompting the commencement of a proceeding in the County Court by way of originating motion, seeking a declaration that she had a 'serious injury' within the meaning of Division 2 of Part 7 of the Act.

9 The applicant sought leave to bring a claim for damages for pain and suffering and loss of earning capacity. She relied on subparagraph (a) of the definition of serious injury in s 325 of the Act in relation to the injury to her cervical spine, and in the alternative, on subparagraph (c) for a consequential mental or behavioural disorder. For the purposes of paragraph (a), she initially relied on injuries to both her neck and right shoulder, but later abandoned reliance on the right shoulder, thus confining the application to her neck injury.

10 By the time of the serious injury application in the County Court, the applicant had been examined by a raft of doctors, both on her own behalf and at the request of the VWA. As will appear, the VWA had obtained reports from an occupational physician, Associate Professor Boffa, in respect of the physical injury to the applicant's neck and from a psychiatrist, Dr Shan, in respect of her claimed psychiatric injury.

The reports of Associate Professor Boffa and Dr Shan

11 Associate Professor Boffa is a consultant occupational and environmental physician. He provided six reports at the request of the employer's insurer dated 19 January 2017, 2 March 2017, 23 June 2017, 6 March 2019, 30 May 2019 and 1 June 2019. The report of 23 June 2017 concerned the applicant's right shoulder and need not be further mentioned.

12 In his report of 6 March 2019, which was the focus of argument in this application, Associate Professor Boffa said that the applicant had post-surgical aggravated cervical spondylosis without radiculopathy which would not materially alter and that she would require oral analgesic medication for the foreseeable future. He said she had permanent aggravation of pre-existing cervical spondylosis.

13 Associate Professor Boffa said that the applicant was not fit for pre-injury duties and hours, but that she had the physical capacity for a graduated return to work part time 'perhaps totalling 20 hours per week performing sedentary duties'. She was physically unsuited to sales, stock or rental roles because of the manual handling involved and would have difficulty in a receptionist role because of the need to move around. He said she was physically fit for listed administrative and customer service roles, provided her dyslexia could be accommodated. He said the current physical impairment was permanent.

14 Dr Shan is a consultant psychiatrist. Dr Shan provided three reports dated 19 January 2017, 5 February 2019 and 19 February 2019. In his report of 5 February 2019, he recorded his diagnosis of chronic adjustment disorder with mixed depression and anxiety. He noted a deterioration in the applicant's functioning since his previous report, noting a stated ability to only drive short distances, that the applicant was unable to go to busy areas unless accompanied, and that she was highly uneasy and lacking in confidence in such settings. He noted that the applicant reported substantial issues with her memory and concentration, although he said these had not been objectively verified by testing.

15 He said the applicant 'has no capacity for pre-injury employment' nor the capacity to work in a jewellery retail store or any retail stores in shopping centres. He was asked about the applicant's capacity to work in the role of call centre operator, receptionist, secretary, medical receptionist, administrative assistant, retail store manager, customer service, and personal assistant. He concluded that:

Based on the patient's description of her current level of mental functioning, only administrative assistant or similar backroom positions would be suitable, from a psychiatric viewpoint. She would have to commence with not more than 20 hours a week. It would have to be work that is within the patient's additional limitation of 'dyslexia', that she today advised was first diagnosed in primary school, and that she attended a special school.

16 Dr Shan said that given the lack of substantial improvement as described by the applicant, he accepted that the current level of impairment would continue into the foreseeable future. He added that his opinions had been based largely on information provided by the applicant which he assumed to be reliable.

17 On 3 May 2019, after the commencement of the serious injury proceeding, the VWA sought to refer a series of 'medical questions' to a medical panel pursuant to s 274 of the Act. The questions covered a range of matters and dealt with the injury to both the neck and the right shoulder. Relevantly, for present purposes the shoulder injury can be put to one side. Because the primary judge allowed some but not all of the questions to be referred, it is convenient to set them out in full, omitting those that related solely to the right shoulder.

1. What is the nature of the medical condition of the Plaintiff's:

(a) cervical spine;

...

(c) ...; and

(d) mind?

...

(c) Does any medical condition of the cervical spine identified by the Medical Panel in answer to Question 1(a) continue to result from or be materially contributed to by injury suffered in employment with the employer?

...

3. Is any medical condition of the Plaintiff's:

(a) cervical spine;

...

(c) ....; or

(d) mind

as identified by the Medical Panel "permanent" meaning likely to last for, during or through the foreseeable future?

4. Does the Plaintiff's cervical spine condition, ... (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to her having:

(a) a "current work capacity" within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act"); or

(b) "no current work capacity" within the meaning of the Act?

5. If "yes" to question 4(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?

6. If "yes" to question 4(a), would employment as a:

(a) Retail Sales Assistant (Optical Dispenser);

(b) Showroom Sales Assistant;

(c) Customer Service/Ordering Clerk;

(d) Rental/Customer Service Officer; or

(e) Community Centre Receptionist -

constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?

7. If "yes" to question 4(b ), is this "permanent" meaning "likely to last for, during or through the foreseeable future"?

...

12. Does the Plaintiff's psychiatric condition result in or materially contribute to her having:

(a) a "current work capacity" within the meaning of the Act; or

(b) "no current work capacity" within the meaning of the Act?

13. If "yes" to question 12(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?

14. If "yes" to question 12(a), would employment as a:

(a) Retail Sales Assistant (Optical Dispenser);

(b) Showroom Sales Assistant;

(c) Customer Service/Ordering Clerk;

(d) Rental/Customer Service Officer; or

(e) Community Centre Receptionist -

constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?

15. If "yes" to question 12(b), is this "permanent" meaning "likely to last for, during or through the foreseeable future"?

The primary judge's ruling in the County Court

18 The primary judge concluded that seeking to refer medical questions on a topic that was not the subject of any dispute in the medical evidence held by the parties was an abuse of process and that they ought not be referred. He declined to refer a number of the proposed questions on that basis. He reasoned to that conclusion in the following way.

19 By way of an overarching proposition, the primary judge held that the provisions permitting a referral to a medical panel are predicated on there being a dispute between the parties that is to be addressed and resolved by means of a binding determination by a panel of a medical question referred to it. In that context, he noted that s 274 appears in pt 6 of the Act which is headed 'Dispute resolution'.

20 He referred to a passage in the second reading speech accompanying the Bill to introduce the medical panel regime, in which the Minster referred to the existing system that involved parties to a 'dispute' coming to court to enable a 'debate' between competing experts.

21 The primary judge adopted the approach taken by Judge Rendit in Stewart v G.U.D. Manufacturing Co Pty Ltd.[2] In that case, Judge Rendit identified that the purpose of the referral provisions was to assist the Court 'on a medical dispute' and that where there was no conflict in the medical opinions the Court does not need assistance.

22 The primary judge quoted the following passage from Stewart:

Where there is no medical issue on the evidence before the Court, then a request for a referral is to be considered a last desperate throw of the dice by a party in the hope that an opinion of a medical panel will turn out to be favourable for that party's cause. In my opinion, the true characterization of such a situation is that there is no medical dispute on the evidence and therefore the proposed medical question is not a relevant question and so is not required to be referred to a medical panel.

...

If the medical opinions are not conflicting then a court does not need such assistance.[3]

23 Applying that approach, the primary judge said the question was 'whether a dispute exists'. He dealt with each of the questions in the following way:

(a) Question 1 (what was the applicant's medical condition): the primary judge said this question was 'unnecessary' because on the basis of the available material, there was no dispute in relation to the medical condition of either the applicant's cervical spine or her mind and the evidence of Associate Professor Boffa and Dr Shan was 'unchallenged'.

(b) Question 2(c) (whether the injury was contributed to by the applicant's employment): the primary judge said he saw no point in the referral because Associate Professor Boffa had stated that employment remains a significant contributing factor to the applicant's condition, there was 'simply no suggestion to the contrary' and 'no relevant dispute'.

(c) Question 3 (whether the injury was permanent): the primary judge said this was not a 'proper question to be referred' because both Associate Professor Boffa and Dr Shan said the relevant injuries (physical and mental) were permanent.

(d) Question 4 (whether cervical spine symptoms result in or materially contribute to the applicant having a current work capacity or no current work capacity): the primary judge agreed to refer this question. In doing so, he said there was 'some scope of disagreement' and that the question was 'of sufficient breadth to encompass what appears to me to be the very limited area of dispute'.

(e) Question 5 (assuming an affirmative answer to question 4, what type of employment would or would not constitute suitable employment within the meaning of the Act): the primary judge agreed to refer this question on the basis there was 'some foundation for a dispute'.

(f) Question 6 (assuming an affirmative answer to question 4(a), which of five listed occupations would constitute suitable employment): the primary judge said there was no contrary view to that given by Associate Professor Boffa and therefore there was no dispute in relation to the unsuitability of proposed employments (a), (c), (d) and (e). In relation to (b) (showroom sales assistant), the primary judge said this was a valid question and can be referred to the panel.

(g) Question 7 (if the applicant had no current work capacity, whether such situation is permanent). The primary judge said there was no contrary view to that stated by Associate Professor Boffa and therefore no dispute and the question was not referred.

(h) Questions 12 to 15 asked the same questions as questions 4 to 7 but in respect of the applicant's psychiatric injury. The primary judge said that questions 12 and 13 were 'valid' on the basis that Dr Shan had placed some qualification on his answer as to whether or not the applicant had a current work capacity or no current work capacity, and what might constitute suitable employment.

(i) Question 14 (whether any of six specified possible employments were suitable): the primary judge said that as Dr Shan had said none were suitable and there was no psychiatric opinion to the contrary, there was no medical dispute concerning the opinion that had been obtained by the respondent and therefore no proper question for referral.

(j) Question 15 (whether the applicant's psychiatric condition in relation to her work capacity was permanent): the primary judge concluded that as Dr Shan had answered that the applicant's current level of impairment would continue for the foreseeable future, there was no dispute on this question. [4]

24 In the result, the primary judge referred questions 4, 5, 6(b), 12 and 13 but declined to refer the balance of the questions. In his ruling, the primary judge described the questions that he declined to refer as not being 'proper' or 'valid'. The organising principle applied by the primary judge was whether there was a dispute in the evidence before him as to the subject matter of those questions.

25 On a fair reading of his reasons, we take the primary judge to say that to refer a question on a topic on which there is no factual dispute would be an abuse of process and it ought not be referred, relying on s 274(3) of the Act. In Stewart, Judge Rendit had also characterised the issue as one of relevance. Judge Rendit had said that a court may decline to refer a question 'if the request is an abuse of process, or if it is an irrelevant question to the issues in the case or if it is not a question which falls within the definition of a medical question in s 5.'[5] That formulation suggests that relevance provides an alternative touchstone for the validity of a proposed referral that does not require the referral to be an abuse of process. In the result, little turns on the distinction in this case.

26 As already noted, the VWA sought judicial review of the primary judge's ruling on the basis that the primary judge erred in concluding that the referral constituted an abuse of process and that the questions were not proper questions for referral. A judge in the Trial Division upheld the challenge and set aside the primary judge's ruling.

27 We note parenthetically that the respondent proceeded by way of judicial review in the Trial Division, rather than by an interlocutory appeal directly to this Court, out of a concern that the primary judge had not made an order or judgment that was amenable to appeal.[6] We shall return to this issue at the conclusion of our reasons.

28 Returning then to the judge's reasons, the judge noted that the parties did not take issue with the proposition that referral of an irrelevant question might amount to an abuse of process.[7] Her Honour then addressed how the question of relevance was to be assessed.

29 After referring to a number of authorities,[8] the judge concluded that relevance was to be determined by reference to the issues in dispute between the parties that fall for determination. In a paragraph said by the applicant to evidence error, the judge said:

Properly understood, these cases identify relevance by reference to the issues in dispute between the parties which fall for determination by a court. They do not in my view conclude that within those issues there must also be an evidentiary dispute or contest, although obviously this may often be the "something" that demonstrates relevance. In a statutory benefits context, pleadings will frame the issues in dispute. In serious injury applications, the Court is required to be affirmatively satisfied of all elements necessary to grant leave. In all cases the issues may be further narrowed by concession or agreement between the parties. Otherwise issues remaining fall for determination by a Court.[9]

30 Applying that approach, the judge started by noting that in the applicant's serious injury application she had to establish the requirements for leave to recover pecuniary loss set out in s 335 of the Act. She also had to establish a compensable injury and its consequences, and satisfy the Court that it met the statutory threshold. The judge noted that this engaged the concepts of suitable employment; the calculation of 'without injury earnings' and 'after injury earnings'; and the concepts of rehabilitation and retraining. Her Honour concluded that each of these were relevant issues for determination and that some of them could be the subject of a 'medical question'.

31 The judge noted that on the serious injury application, the Court had to identify the nature of the compensable injury as a necessary step in determining and evaluating the relevant consequences. In answering the medical question a panel was not bound to accept unchallenged medical evidence before it, but would be required to form its own opinion.[10]

32 In addition to concluding that the issues were to be framed by reference to the statute, the judge also noted that there were, in fact, differences in the medical evidence obtained by the parties:

The medical reports in fact canvassed a variety of diagnoses and opinions as to the physical and psychiatric injuries and their consequences. For example, Dr Boffa diagnosed "a permanent aggravation of pre-existing cervical spondylosis". An earlier Medical Panel, looking at a request for shoulder surgery, had described the neck injury as "cervical spine dysfunction with radicular symptoms into the right upper limb". Dr Yuen, the treating neurosurgeon, gives a more fulsome description of a C6/7 posterior lateral disc protrusion causing C7 nerve impingement requiring a C6/7 discectomy and fusion. While there may be no great controversy about the surgery itself, clearly a "live issue" for the purpose of identifying consequences was whether the right arm pain was attributable to the neck and/or to the shoulder injury. At the very least, the Panel's answer to the question about the medical condition was a necessary step along the way to determining capacity questions.[11]

33 The judge recorded that the particulars of injury prepared by the applicant in respect of the cervical spine injury document contained 13 descriptions from 'neck injury', to 'discal injury and nerve impingement' at particular levels, to referred right arm symptoms and weakness, to laryngeal complications following the surgery.[12] Thus, the cervical injury had been described in different ways in the material and some had mentioned different symptoms.

34 Before the judge, the respondent had identified the issues in dispute as being the nature of the applicant's current medical condition; whether it continues to result from or be materially contributed to by employment; whether it is permanent; and the extent of the applicant's incapacity. Further, the respondent said that there were gaps in the medical material with live issues concerning the prospect of improvement in the cervical spine condition post-operatively as anticipated by the dated report of the treating neurosurgeon. It said the lack of treatment and the suggestion of an undertreated condition in relation to the psychiatric injury also raised questions of permanency.

35 The judge accepted that the issues in dispute that arise from the statute may, in a given case, be further refined or narrowed by the parties. In that respect, the judge acknowledged that the obligations imposed on parties by the Civil Procedure Act 2010 may require the parties to identify agreed facts if the medical evidence 'left no room for debate'. Subject to that possible constraint, the judge concluded that a party who wishes to contest an issue is entitled to do so, either before the Court or on referral to a medical panel, as that party so chooses.[13]

36 Having concluded that, by reference to the issues that the applicant needed to establish, the proposed medical questions were relevant to issues in the proceeding, the judge went on to consider whether they nevertheless constituted an abuse of process. She held that they did not, finding that such a conclusion cannot be assumed but must be established on the material. The judge continued:

Whether or not a "medical dispute" is raised by the available opinions is by itself neither determinative of relevance nor demonstrative of an abuse of process. The entitlement to access an alternative mechanism of dispute resolution cannot be removed by demonstrating that a court, in considering those very issues on the potential evidence to date, might be compelled to a particular conclusion.[14]

37 The judge concluded that the primary judge had erred in framing the 'dispute' as a dispute between experts rather than the disputed issues between the parties. She said that where a litigant is able to obtain further partisan evidence in an attempt to strengthen its case before a court, it could not be said that a referral to obtain a medical panel opinion instead would constitute an abuse of process. The orders made at first instance were set aside and the matter remitted to the County Court.

38 Before addressing the grounds, it is useful to refer to the statutory setting and some matters of general principle.

The statutory provisions and applicable principles

39 Part 7 of the Act deals with actions and proceedings for damages. Section 326 of the Act relevantly provides that a worker may not recover any damages for pecuniary or non-pecuniary loss unless permitted to do so by the Act. The Act permits a worker to recover damages for an employment related injury if the injury is a serious injury. By s 335(2)(d), a worker may bring proceedings if a court gives leave to bring the proceeding. A court must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury.

(a) permanent serious impairment or loss of a body function; or

(b) ... ; or

(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or...[15]

41 In her proceeding, the applicant sought to establish an entitlement to claim pecuniary loss damages on the basis that her injuries, in addition to satisfying the narrative test in respect of loss of earning capacity consequences,[16] have resulted in her suffering a loss of earning capacity of 40 percent (measured as set out in s 325(2)(f) of the Act), which loss will continue permanently.

42 Section 274 of the Act provides that in exercising jurisdiction under pt 6, a court may, on its own motion, or at the request of a party, refer a medical question to a medical panel. A medical question is defined by reference to a long series of questions that include questions as to the nature of a medical condition relevant to an injury, the existence, extent or permanency of any incapacity, and whether a worker has a current work capacity.[17]

43 Where a party requests that a medical question be referred for an opinion, s 274(1)(b) provides that the court must refer the question to a medical panel, subject to subsections (3), (4) and (5). Subsections 274(3) to (5) provide:

(3) If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

(4) A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.

(5) A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.

44 The role of a medical panel was considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.[18] In that case, the High Court held that the panel's function was not to arbitrate between competing opinions of medical practitioners obtained by the parties but to arrive at its own conclusions on the basis of its own assessment.

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[19]

45 Next, it is useful to note some matters concerning the intersection between relevance and abuse of process.

46 In PNJ v The Queen,[20] the High Court said:

It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court's processes for an illegitimate or collateral purpose;

(b) the use of the court's procedures would be unjustifiably oppressive to a party; or

(c) the use of the court's procedures would bring the administration of justice into disrepute.[21]

47 More recently, the High Court has explained the relationship between abuse of process (and the Court's power to prevent an abuse) and injustice. In Victorian International Container Terminal Ltd v Lunt,[22] they said:

The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.[23]

48 Of course, the matter before a court is not at large and its scope is determined by the parties. In Aon Risk Services Australia Ltd v Australian National University[24] - the majority said that 'a party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate.'[25] To similar effect, in Attorney-General (Cth) v Alinta Limited,[26] Gleeson CJ said that '[t]he parties to litigation, acting within the limits set by the law, define the issues to be resolved and the courses open to be followed by way of judicial order.'[27]

49 In Greeves, Hedigan J explained how the referral of an irrelevant question might result in an abuse of process:

I would not disagree that a question that is addressed to a wholly irrelevant matter or issue, one which was so peripherally connected with the medical legal issues that it could not be reasonably thought that the answer to it could aid in any way the orderly and just disposition of the claim, might be regarded as an abuse of process.[28]

...in substance the learned magistrate formed the view that the answers to the questions proposed were irrelevant to the ultimate determination of issues before him. If it was open to him to conclude they were irrelevant to the dispute before him then the referral to the medical panel might in my view properly be regarded as an abuse of power within the meaning of s 45(1B). Conversely, if the questions were, as a matter of law, relevant to the litigation before the Magistrates' Court then the Court was obliged to refer them to a medical panel.[29]

51 In Isuzu Phillips JA, with whom Brooking and Chernov JJA agreed, accepted that an irrelevant question might be an abuse but that it was not necessary to go that far because such a question would not fall within the ambit of the power. He said:

So far as concerns the criteria adopted by Hedigan J in Greeves, it is unnecessary, I think, to consider the residual possibility of abuse. Perhaps the possibility is real but it may be left until it arises (if ever it does), for the other criteria are of more immediate interest. I agree with his Honour that a question must be referred to a medical panel under s 45(1)(b) (that is upon application by a party) if it is a 'medical question' as defined in s 5 of the Act and if it is relevant to the litigation then before the court. In this context relevance means only that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the court in resolving the dispute before it. It must be accepted that in this regard the Act is designed to have medical people answer medical questions, in place of the courts, but nevertheless it is the court which, in the end, must adopt and apply the opinion in the determination of the litigation before it.[30]

52 Moreover, it is common ground on the present application that if one or more of the questions were correctly characterised as irrelevant there would be no error for the primary judge to refuse to refer it.

53 The applicant seeks leave to appeal on two proposed grounds alleging that the trial judge erred:

(a) in finding that there was a distinction between 'the issues in the dispute between the parties' and 'evidentiary disputes'; and

(b) in the construction and application of section 274(3) of the Act on the evidence adduced.

54 The two grounds were not addressed separately in argument and to a large extent overlap. It is convenient to deal with them compendiously.

55 The applicant contended that the judge made two errors in relation to the construction and application of s 274 of the Act. First, she contended that the judge concluded that a relevant question must be referred to a medical panel in every case. Second, she submitted that the judge was wrong to conclude that a referral on a question where the existing medical opinion is all one way was not an abuse of process.

56 As to the first aspect, the applicant accepted that relevance was a necessary condition for a valid referral but said that it was not a sufficient basis, in the sense that a relevant question could still amount to an abuse of process. The applicant submitted that the judge found to the contrary and held that a relevant question must always be referred.

57 This argument is without merit. It seeks to ascribe a process of reasoning to the judge that her Honour did not adopt. The judge found that the issues that were the subject of the proposed medical questions were relevant to the proceeding having regard to what the applicant was required to establish in order to succeed in her application. The judge then went on to consider whether the referral constituted an abuse of process. The judge said that an abuse of process cannot be assumed but must be established on the facts.

58 Plainly, the judge proceeded on the basis that the referral of an irrelevant question might amount to an abuse of process. She did not reason that a relevant question could never amount to an abuse of process.

59 It was on the second aspect of the ground that the applicant focussed. The applicant submitted that if, as she said was the case here, the medical evidence was 'all one way' and the evidential material did not give rise to a dispute between the parties on a particular issue, it was an abuse of process to refer a question in relation to that issue.

60 The applicant accepted that a medical opinion might be in issue, and therefore legitimately the subject of a referral, if the parties had expert opinions that differed or were in conflict. She also accepted that, even if the medical opinions were 'all one way', there may be a dispute if the opposing party had some proper factual basis that could undermine the opinion. So, for example, the applicant accepted that if the only medical evidence held by the parties was a supporting opinion obtained by a plaintiff that was based on the plaintiff's account and the defendant had a factual basis to undermine that account, such as a surveillance video, then a referral to a medical panel would be permissible. However, she submitted that without an evidentiary basis that puts a point in issue, it is an abuse to refer a question to the panel as 'a last desperate throw of the dice'.

61 At various times, including before the judge and in her written case in this Court, the applicant put her argument on the basis of relevance and argued that in the absence of an evidential dispute, the particular matter or issue was irrelevant and could not be the subject of a valid referral. Ultimately, she submitted that whether or not characterised as irrelevant, the referral of a question on a topic that was not the subject of an evidential dispute was an abuse of process.

62 Essentially, that was because the purpose of pt 6 of the Act, headed 'Dispute resolution', and the referral power in s 274, was to resolve a dispute and where there was no real, or actual dispute on the facts, a referral would not advance that purpose. Rather, such a referral would be for an improper purpose, namely the propagation of a dispute where one does not already exist. The applicant submitted that the use of a statutory power for an alien purpose was plainly an abuse of process.

63 The medical questions that the respondent sought to be referred to a panel covered five broad issues:

(a) the nature of the applicant's medical conditions of the neck and mind;

(b) whether any medical condition of the neck identified by the panel continued to result from or be materially contributed to by an injury suffered in the applicant's employment with the respondent;

(c) whether any medical condition identified by the panel is 'permanent';

(d) whether the applicant has a 'current work capacity' and, if so, what employment would/would not constitute suitable employment; and

(e) whether any incapacity is 'permanent'.

64 The applicant accepted that, on her serious injury application, all of the matters that were the subject of the proposed questions were relevant, in the sense that before making an order in her favour, the Court would have to be satisfied as to the existence of an injury that resulted in a permanent incapacity and that that met the statutory threshold. However, she submitted that an abuse arises because there is no existing dispute on the facts as to the nature and extent of the injury and therefore no legitimate purpose could be served by a referral covering those topics.

65 For that reason, she said that the primary judge was correct to limit the questions to the applicant's work capacity arising from her cervical and psychiatric injury, and to the employment that would constitute suitable employment, and specifically, in respect of the cervical spine injury, whether employment as a showroom sales assistant was suitable employment.

66 The answer to the submission turns on three considerations. First, as a matter of statutory construction, is the power in s 274 of the Act only available where there is evidence of an existing medical dispute between the parties? Second, what were the issues in dispute and had they been confined by the reports obtained by the VWA? Third, did the referral constitute an abuse of process by creating a dispute that did not already exist?

67 There is no doubt that the medical panel regime marks a significant departure from some conventional aspects of the trial process. It enables a party to choose how a medical question, broadly defined, will be determined and involves a process of adjudication or determination by a panel of experts outside of the court, with the outcome binding in the judicial determination of the action.

68 The ability of a party to deploy the medical panel regime is subject to some express limitations. The court has control over the form of the question[31] and must not refer a question if the formation of an opinion by a panel would depend substantially on facts that are more appropriately determined by a court.[32]

69 In addition, based on the text of s 274 and the analysis of the authorities to which we have referred, there are two other important limitations on the power of referral and to an extent they are related. The first is that the proposed questions must be relevant. In Isuzu, Phillips JA said that this meant that the question must be such that the opinion which is sought of a medical panel will be, or might be, capable of assisting the Court in resolving the dispute before it.[33]

70 As the trial judge held,[34] the starting point for the ascertainment of relevance is the statute: what does the applicant need to establish and/or what are the statutory bases on which the respondent could resist the order? However, relevance is not only to be determined by reference to the statute without regard to the particular circumstances of the case and what the parties choose to put in issue. Although the Act prescribes the matters, or elements, that a court must be satisfied of in order to give leave to proceed, including whether or not a serious injury exists, the proceeding remains adversarial litigation in which the parties are able to choose the issues on which they wish to litigate.

71 That freedom is not absolute, and will be regulated prosaically by matters of practice and procedure and more fundamentally by issues of abuse of process and the obligations in the Civil Procedure Act 2010.

72 This approach accords with the following observations of Ashley J in Kamener v Griffin:[35]

A court would be obliged to refer such a question to a panel if there was something before it which suggested the potential relevance of para (b) or (c) of the definition of 'injury' to an injury alleged by a worker. The 'something' might perhaps consist of a pleaded allegation of injury, or medical evidence adduced or a medical report put in evidence before referral was sought. That does not exhaust the possible sources of 'something'.[36]

73 The second pertinent limitation on the power in s 274 is the power to refuse to refer a question where the referral would constitute an abuse of process. The reference to authority earlier in these reasons shows some of the ways in which an abuse may arise. They include using the powers of the court for an extraneous purpose. The question of relevance and abuse will not always be distinct. Whether it is necessary to characterise a referral of an irrelevant question as an abuse of process before a court may decline to refer it is perhaps academic. Certainly, Phillips JA approached relevance as an anterior and independent question, which if determined adversely to the proponent would mean that the court would not be obliged to refer it. However, it is difficult to see how the referral of a medical question that does not arise in the proceeding would be other than an abuse of process given that it would involve the court's processes for a purpose other than the resolution of the issues in dispute. On the other hand, a referral of a medical question on a relevant matter may nevertheless be an abuse of process. A referral at the door of the court for the purpose of delay or during a trial when the evidence was not falling as expected may well constitute an abuse of process.

74 In assessing relevance, it is noteworthy that s 274 of the Act is not conditioned on the grant of leave and does not require a party seeking a referral to establish a legitimate forensic purpose based on the evidence in its possession. A court does not have to be satisfied that a referral is necessary, but obviously would not make a referral if there was no real or apparent connection to the issues that are in dispute. Nor can a court refuse to refer a medical question on the basis that, although a proposed question is relevant, there is already sufficient evidence before the court to obtain a clear or decisive answer to the question, or because the answer might be obvious. An important part of the statutory scheme is not only to obtain an answer to a medical question but also to make it binding. A party may well consider that a particular answer to a proposed question is inevitable but nevertheless seeks a referral to obtain a binding determination of that question so as to narrow the scope of the trial. That is not an illegitimate aim. A question does not cease to be relevant because the answer can be anticipated having regard to the information in the possession of the parties.

75 The fact that, in a given case, the defendant has medical evidence that supports the plaintiff's case, or is unable to point to any medical evidence that refutes it, does not mean that the issues in dispute are necessarily confined. It is not necessary that there exist, at the time of the request, a conflict on the existing evidence on that question. Indeed, a request may be made early in the litigation before the requesting party has obtained material of its own. The text of s 274 of the Act is not couched in terms of resolving a dispute and, as was made plain in Wingfoot, the purpose of the referral is not to have the panel arbitrate or adjudicate on competing opinions. In our view, as a matter of construction, s 274 is not confined to those cases where the referring party can affirmatively point to evidence that is in conflict with the other party's case.

76 Further, to impose a requirement that there be some conflict in the evidence introduces an indeterminate criterion for the exercise of the referral power. It involves the judge making some assessment as to the cogency of the evidence before the hearing of the proceeding. In this case, the primary judge regarded a referral of a question touching the nature and extent of the injury as 'unnecessary'. On the other hand, the primary judge concluded that there was some qualification in the opinion of Dr Shan as to work capacity and that 'it cannot be said that he has provided an answer that rules out any dispute.'[37]

77 It follows that there is nothing in the text of s 274 that limits the referral power to those circumstances in which a factual dispute between the parties on the medical question has been established.

78 As a starting point at least, the judge was correct to say that the relevant issues included the identification of the compensable injury and its consequences, including whether the applicant met the narrative test in relation to pecuniary loss and whether she met the calculated 40 percent loss.[38] There were no pleadings in the serious injury application. The respondent has not formally admitted any of the elements that the applicant will need to prove on the balance of probabilities. It will be necessary for the applicant to satisfy the court of each of these elements in order to obtain the relief that she seeks.

79 In our view, the reports of Associate Professor Boffa and Dr Shan do not relieve the applicant of the need to establish each of the matters that the Act prescribes for the grant of leave to bring a proceeding for damages. The fact that the respondent had reports that supported the applicant on some issues, including the existence and extent of the injuries, did not mean that those issues were irrelevant or that the respondent was precluded from putting them in issue. The opinions of Associate Professor Boffa and Dr Shan were not binding on the parties. They did not frame the area of legitimate contest. They did not compel the respondent to admit any of the statutory elements. To adopt the language of the judge, the reports did not prevent the respondent from obtaining 'further partisan evidence in an attempt to strengthen its case'.[39]

80 Even assuming that the medical evidence was all one way, putting the applicant to her proof of the elements would not make them irrelevant nor prevent the fair trial of the action in a way that would constitute an abuse of process.

81 In any event, the factual premise that all of the medical evidence was to identical effect and unequivocal is not made out. The reports of both Associate Professor Boffa and Dr Shan were, to some extent, dependent on the history given by the applicant. Indeed, Dr Shan expressly qualified his opinions by stating that they depended on an assumption that the history was reliable. The respondent was not obliged to accept that history as accurate in all its respects.

82 Further, the judge was correct to observe that the medical evidence was not precisely to the same effect. Her Honour noted that the injury had been described by different practitioners in different ways and the applicant had relied on 13 different particulars of injury. It is not hard to appreciate that questions as to incapacity, permanence, and what might constitute suitable employment may be influenced by even subtle differences in the articulation and understanding of the injury.

83 It follows that, in this case, the issues in dispute were not relevantly confined by the terms of the medical reports obtained by the VWA.

84 The central focus of the alleged abuse of process in this case was a contention that requesting a referral in the absence of an identified conflict in the evidence manufactures, rather than resolves, disputes and is therefore inconsistent with the purpose of the provisions. It is, so the argument went, to invoke the procedures of the court for an illegitimate, improper or alien purpose.[40] The problem with that argument is that it assumes that disputes are to be defined at the evidential level. It assumes that once a party receives a report or evidence that is unequivocally supportive of the other side's case on a particular issue, that issue ceases to be in dispute. For the reasons already given, that is a false premise. Presumably, it would also mean that a party is precluded from obtaining a second opinion because once it has received the first opinion the relevant question ceases to be in issue and is, in effect, off the table. That proposition cannot be accepted.

85 In our opinion, the request for a referral in this case did not create a dispute that did not already exist. The parties were joined on the question of whether the applicant has a serious injury. The respondent did not consent to the applicant bringing an action for damages and does not accept that the applicant meets the statutory criteria.

86 We accept that a bloody minded refusal to accept a factual or legal conclusion that cannot be the subject of any legitimate dispute might provide a foundation from which an abuse of process may be inferred. Delay and stone walling on issues that are legally relevant but indisputable may be oppressive or reveal the use of court processes for some illegitimate or collateral purpose. There is no allegation of such conduct in this case and no finding by the primary judge that even hints at some improper or illegitimate stratagem lying behind the request for a referral to a panel. Indeed, the making of a referral on some questions tells strongly against the suggestion that the request was motivated by an illegitimate purpose.

87 The approach taken by the primary judge, which focused on a search for a conflict on the evidence on given topics, also produced an anomalous result that strongly suggests the decision miscarried. As noted above, the primary judge had referred some but not all of the proposed questions. For example, the primary judge declined to refer a question that asked the panel to identify the nature and extent of the injury to the cervical spine, but allowed a question which asked the panel to determine whether the cervical spine condition resulted in her or materially contributed to the applicant having a current work capacity or no work capacity. It is difficult to see how a panel could answer that question without first assessing the nature and extent of the injury for itself.

88 The applicant submitted that it is not unusual for medical questions to be asked on the basis of agreed facts that allow a narrowing of the questions to be referred. It is possible to conceive of a case where there is agreement on the nature and extent of a medical condition but not on the level of incapacity that it produces. However, that is not this case. There are no agreed facts on the nature and extent of the cervical injury and the mere fact that the respondent has received the reports of Associate Professor Boffa does not compel it to agree to facts. It must be accepted that a court can decline to refer a question if it would constitute an abuse of process, but there is no mechanism by which a court can force a party to agree to facts for the purpose of asking a different question.

89 For these reasons, leave to appeal should be refused.

90 During the course of argument, we asked counsel for the VWA why her client did not seek leave to appeal the primary judge's decision to this Court, choosing instead to seek relief under O 56 of the Supreme Court (General Civil Procedure) Rules 2015. Counsel responded that the VWA had a 'concern' following the decision in this Court in Moorabbin Transit Pty Ltd v Bekhit.[41] Counsel described that case as an application for leave to appeal from a ruling in the County Court, which application was refused 'for lack of jurisdiction because the ruling that was in dispute was found not to be a judgment or order for the purposes of s 74 of the County Court Act 1958'.

91 The applicant in Moorabbin Transit sought leave to appeal from a 'ruling', said to have been contained in 10 pages of transcript which recorded an exchange between the judge and the applicant's senior counsel about the scope of the evidence that the applicant would be permitted to lead in contesting the respondent's serious injury application.

92 On the hearing of the application for leave to appeal in Moorabbin Transit, the Court held that the 'ruling' was not a judgment or order within the meaning of s 74 of the County Court Act. In so holding, the Court said that it was the 'lack of finality in the observations made by the judge that preclude them [the observations] from acquiring the status of a judgment or order'.[42] As the Court put it, the 'ruling' the judge gave did not bind him with respect to the approach he might ultimately have adopted on the scope of the evidence to be led by the applicant; it was no more than an incidental 'ruling' in the course of the proceeding, which could be corrected by the judge in the light of his further understanding of all of the circumstances of the case.[43]

93 There is no equivalence between the 'ruling' in Moorabbin Transit and the decision of the primary judge in the present case. In this case, the hearing of the application for leave to commence proceedings for the recovery of damages was listed for hearing on 14 October 2019. On 3 May 2019, the respondent advised the 'directions group' at the County Court, and the applicant, that it intended to apply pursuant to s 274(1)(b)(i) of the Act for an order referring certain medical questions to the panel. That application was listed for separate hearing and was heard by the primary judge on 25 June 2019. His Honour gave some oral reasons on 19 July 2019, and then some written reasons on 6 September 2019. Those reasons demonstrate that his Honour had decided that he would not refer some of the questions because he formed the view that the application was an abuse of process in so far as it sought to have those questions referred. His Honour's reasons concluded with the statement: 'I shall hear the parties as to any ancillary orders that are required.'

94 Also on 6 September 2019, the primary judge made orders vacating the hearing of the originating motion, which was listed to be heard the following month, and otherwise adjourned 'the matter' to a date to be fixed. As far as we are aware, no order was made either referring the questions that his Honour had decided had to be referred, or dismissing the application in so far as it related to questions that his Honour had decided ought not be referred.

95 Seen in this context, the primary judge's decision not to refer some of the medical questions which the respondent sought to have referred to a medical panel did not, in any relevant sense, lack finality. It was the final disposition of a formal application made pursuant to a statutory right. His Honour's decision may well have been a 'judgment' within the meaning of s 74 of the County Court Act. But if there were doubt about this, the respondent should have sought from the primary judge a formal order reflecting the decision that he had made and then sought leave to appeal to this Court against that order, and not judicial review. For completeness, we should say that the considerations which led the respondent to be concerned about its entitlement to seek leave to appeal should equally have given rise to doubt about any entitlement to judicial review under O 56.

96 All of that said, in order to obtain this Court's views on the issues in dispute between the parties, the applicant has been required to litigate the issues before the Trial Division and then in this Court - rather than just in this Court.

97 Having been unsuccessful in the Trial Division, the applicant was granted an indemnity certificate under the Appeal Costs Act 1998. If the respondent had sought leave to appeal from the primary judge to this Court, the applicant (being unsuccessful on the ultimate issues) would have been entitled to an indemnity certificate under that Act. Because the respondent sought relief under O 56 however, the applicant (having failed in the Trial Division) is now at risk on costs in this Court - and without the possibility of being granted any indemnity certificate under the Appeal Costs Act.

98 In all the circumstances, and subject to hearing any further submissions that the parties may wish to make, our tentative view is that there should be no order for costs in this Court.

[1] The VWA is the first respondent. As the proceeding at first instance was one for judicial review, the County Court is the second respondent. In accordance with the usual practice, the second respondent played no part in the proceeding. For that reason it is convenient to refer to the VWA as the respondent.

[2] Stewart v G.U.D. Manufacturing Co Pty Ltd; M.M.I Workers Compensation (Vic) Ltd (Unreported, County Court of Victoria, Judge Rendit, 4 May 1999) ('Stewart').

[4] Baumgartner v VWA [2019] VCC 1435, [68]-[78].

[5] Unreported, County Court of Victoria, Judge Rendit, 4 May 1999, 5.

[6] Moorabbin Transit Pty Ltd v Bekhit (2016) 50 VR 563; [2016] VSCA 70.

[7] Victorian WorkCover Authority v Baumgartner [2021] VSC 300, [29] (Forbes J) ('Reasons').

[8] Masters v McCubbery [1995] VICSC 209; [1996] VR 635, 642, 644 and 645 (Winneke P); HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97, [20] (Hedigan J) ('Greeves'); Isuzu General Motors Australia Ltd v Jordon (2000) 2 VR 212; [2000] VSCA 63 ('Isuzu'); Isikli v Surville Pty Ltd [2004] VSC 236, [18] and [24] (Osborn J) ('Isikli').

[18] (2013) 252 CLR 480; [2013] HCA 43 ('Wingfoot').

[19] Ibid 498 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (citation omitted).

[20] [2009] HCA 6.

[21] Ibid [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (citations omitted). See also Walton v ACN 004 410 833 Ltd [2022] HCA 3, [130] (Edelman and Steward JJ).

[22] [2021] HCA 11.

[23] Ibid [18] (Kiefel CJ, Gageler, Keane And Gordon JJ) (citations omitted).

[24] (2009) 239 CLR 175; [2009] HCA 27.

[25] Ibid 217 [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) (emphasis in original).

[26] (2008) 233 CLR 542; [2008] HCA 2.

[28] [1998] VSC 97, [20].

[29] [2004] VSC 236, [18].

[30] [2000] VSCA 63; (2000) 2 VR 212, 218 [13]; [2000] VSCA 63 (citation omitted).

[33] [2000] VSCA 63; (2000) 2 VR 212, 218 [13]; [2000] VSCA 63.

[35] (2005) 12 VR 192; [2005] VSC 202.

[37] Baumgartner v VWA [2019] VCC 1435, [76].

[40] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286 (McHugh J); [1994] HCA 42; Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23, 47 (Brennan J); [1989] HCA 46; Walton v Gardiner (1993) 177 CLR 378, 410-1 (Brennan J); [1993] HCA 77.

[41] [2016] VSCA 70 ('Moorabbin Transit').

[42] Ibid [50] (Tate, Ferguson and McLeish JJA).