Bidawid v Victorian WorkCover Authority

1. The referral application gave rise to the following issues:

(a) whether the Court should determine pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) that the defendant had until 25 December 2025 to notify the Court of its intention to refer medical questions to the Medical Panel;

(b) if yes to (b), whether it would be an abuse of process to make a referral.

1. Mr Bidawid filed an application on 16 April 2025 for leave pursuant to s335(2)(d) of the Act to issue common law proceedings for damages for injury. He claimed that on 25 November 2021 he injured his right hand and arm in his employment, with consequential psychological injury.[1]
2. Mr Bidawid provided detail about his claimed injuries by particulars of injury dated 16 September 2025. He claimed he has a serious injury within the meaning of that term in subparagraphs (a), (b) and (c) of s325 of the Act. In respect to his claim of serious injury under subparagraph (a), he said he has suffered injury to his right hand, partial amputation of the right middle finger, ongoing pain and restriction of his left hand and forearm, and second digit extensor stenosing tenosynovitis.
3. Mr Bidawid's affidavits refer to pain as a symptom from his physical injury. He described the pain in November 2024 as being in his middle finger and that if he used his right hand too much the pain shot up his right forearm and elbow.[2] In December 2025 he said that the pain remained the same.[3] In both affidavits there was a description of activities that could cause greater pain.
4. The particulars of injury dated 16 September 2025 did not refer to an injury in the form of a pain syndrome of the right limb. This is unsurprising as at the time of the particulars no doctor had diagnosed him with a pain syndrome of his right limb.

1. On 29 May 2025, Judge Purcell made timetabling orders in the proceeding. Order 1 fixed the proceeding for hearing on 27 January 2026 with an estimate of one-day. Order 5(b) required the parties to exchange medical reports that they intended to rely on at the hearing of the proceeding by 12 September 2025. The purpose of requiring the parties to exchange medical reports was provide fairness to both parties so that they knew the medical evidence that each would rely on at the hearing.

1. On 9 December 2025, Mr Bidawid served on the defendant a medical report of Dr Meena Mittal, pain medicine specialist and anaesthetist.[4]
2. Dr Mittal examined Mr Bidawid on 24 October 2025. Her report dated 24 October 2025 set out the basis for her medical opinion, including a review of material, her examination of Mr Bidawid, and consideration of the reports of other experts. She diagnosed Mr Bidawid as suffering a complex regional pain syndrome of the right upper limb, as based on her observations she considered that he fulfilled the Budapest criteria for the syndrome. She attributed the syndrome to the workplace injury he claims to have suffered at work on 25 November 2021. She said that his condition has had a significant impact on the use of his right hand and described the impact on his social, domestic, recreational and employment activities as "severe". She said that the syndrome is an incurable condition with a poor prognostic outcome, though she recommends referral to a pain specialist and a hand therapist for, inter alia, treatment of the syndrome, presumably because this may lead to improvements in it.
3. Although other experts had examined Mr Bidawid and provided reports, Dr Mittal was the first - and, seemingly so far, the only - medical practitioner to diagnose Mr Bidawid with complex regional pain syndrome of his right upper limb.
4. The question of whether Mr Bidawid has complex regional pain syndrome of his right limb is likely to be significant to the outcome of the serious injury application given Dr Mittal's opinion that the syndrome is likely to be incurable and the severe impact she says it has on him. Complex regional pain syndrome of the right limb went beyond the then scope of the particulars of injury.
5. Mr Bidawid served Dr Mittal's report late. As stated, Judge Purcell on 29 May 2025 fixed 12 September 2025 as the date by which the parties had to serve the material that they sought to rely on at the hearing of the proceeding. Dr Mittal's report was served on 9 December 2025, about three-months out of time.
6. Mr Bidawid and his legal practitioners did not put on any affidavit for the hearing of the referral application. There was no explanation about relevant matters: when Dr Mittal had been requested to provide an opinion; why her examination took place on 24 October 2025, just over a month after the date for exchanging medical reports; when Mr Bidawid's legal representatives received the report noting that it was dated 24 October 2025 but was not served until about six weeks later; or, if there was delay between receiving the report and serving it, the reason for the delay. Nor had there been any application made by Mr Bidawid for leave to extend the time for service so that he could rely on the report at the hearing of the proceeding. When asked about this, his counsel said that an application would be made for leave at the hearing on 27 January 2026, if that hearing went ahead.
7. The purpose of Judge Purcell's order was to provide a time by which the parties exchanged medical material to prevent the kind of issue that has now arisen, namely that the late service of a medical report that has given rise to a significant new issue and potential for delay in the determination of the serious injury application. While the application calls for a focus on Mr Bidawid's conduct in serving a medical report late, I appreciate that the defendant, too, has served medical reports outside the time limit fixed by the Court. The Court does not fix time limits and make orders for the sake of it. Where the Court makes an order that something be done by a particular day, it is incumbent upon parties to either comply with the order or, if they cannot, to regularise the matter, for example, by making application to the Court for an extension of the time by which they can comply with that order. A party should not assume that it can breach an order and it will automatically be granted an extension of time to comply with the order at the hearing, particularly if the non-compliance gives rise to prejudice to another party or affects the timely administration of justice.
8. Having been served with Dr Mittal's report on 9 December 2025, the defendant's solicitors sought instructions to refer medical questions to the Medical Panel. Just after 6:00am on Christmas day the defendant notified Mr Bidawid's solicitors and the Court that it intended to request the Court to refer medical questions to the Medical Panel. Its email noted that notice was being given outside the time limit in the Practice Note (discussed below).
9. The defendant had previously obtained expert opinions relevant to the proceeding, including from Mr Thomas Robbins, hand surgeon. After receiving Dr Mittal's report, it arranged for Mr Robbins to re-examine Mr Bidawid on 15 January 2026. He provided a report dated 16 January 2026. In his examination, he tested whether the criteria for complex regional pain syndrome were met and he found they were not. He disagreed with Dr Mittal's diagnosis of complex regional pain syndrome. Instead, he diagnosed Mr Bidawid with Dupuytren's fibrosis in the palm and said that this is an inherited condition that has no relation to the claimed work-related incident. His earlier report dated 17 July 2025 had referred to Dupuytren's nodules in the right hand, which he said were unrelated to the work incident.
10. There is a medical dispute between the parties as to whether Mr Bidawid has a complex regional pain syndrome of his right hand and arm.
11. On 6 January 2026, Mr Bidawid filed amended particulars of injury. The amendment was to add to the claimed serious injury under subparagraph (a) of s325 a claim of ongoing pain and restriction of the right hand and forearm. This was an addition, rather than the previous claim of ongoing pain and restriction of the left hand and forearm being amended to refer to the right hand and forearm. I raise this as it was submitted on behalf of Mr Bidawid at the hearing of the application that in the particulars of injury the reference to the left hand and forearm was a mistake and it should have referred to the right hand and forearm. There was no evidence before the Court to support this submission, and it runs contrary to the nature of the amendment made. Regardless, the amended particulars of injury widened the scope of the injury to include the recently diagnosed chronic regional pain syndrome of the right hand and forearm.

1. The defendant seeks to refer medical questions to the Medical Panel that it says relate to the dispute about whether Mr Bidawid has a complex regional pain syndrome of his right hand and forearm.
2. The defendant's request is made in an application for leave under s335(2)(d) so it must be dealt with under s274(1)(b) of the Act.[5]
3. Relevantly, s274(1)(b) states the following about a request:

(i) a party to the proceedings requests that a medical question be referred to a Medical Panel; and

(ii) the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred -

the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3."

1. Section 274(3) permits a court to refuse a request if a referral would be an abuse of process. Subsection (4) provides a court with discretion about the form of any referred medical question. Subsection (5) prohibits a court referring a medical question if the opinion of a Medical Panel would depend substantially on the resolution of factual issues which are more appropriately determined by a court than a Medical Panel.
2. Relevant to the time limit in s274(1)(b) for notifying a court of an intention to request a referral, subparagraph 25.13 and 25.14 of the Practice Note state the following:

23.13 "Pursuant to s274(1)(b)(ii) of the WIRC Act, the Court has determined that the time by which a party must notify the Court of the party's intention to request that a medical question be so referred ("the referral application"), is to be no more than 30 days after the date of the Order in which the proceeding is first set down for hearing. > > 23.14 The purpose of fixing the date above is to ensure, so far as it is practicable: > > (1) the overarching obligations of the CP Act are met, in particular, the need: > > (i) to avoid delay and expense; > > (ii) for the efficient conduct and disposal of serious injury applications; and > > (iii) to ensure costs incurred are proportionate to the complexity and importance of the issues in dispute. > > (2) that the trial date fixed by administrative orders is not disturbed by the process of the referral and the answering of the questions by a Medical Panel."

3. As stated above, Judge Purcell fixed this matter for hearing by orders made on 29 May 2025. The defendant's notice of its intent to refer medical questions to the Medical Panel was made more than thirty days after the date of the order in which the proceeding was first set down for hearing. It was made less than five weeks before the scheduled hearing date. It is outside the time limit imposed by the Practice Note. It is worth noting that even if Mr Bidawid had exchanged Dr Mittal's report by 12 September 2025 the defendant would still have been outside the time limit in the Practice Note and had to make an application to the Court for a referral to happen.
4. The parties agreed that the Court had a residual discretion to determine a date other than the date in the Practice Note, depending on the circumstances of the case.
5. His Honour Judge Bowman considered this issue in Ferguson v V P Employment Pty Ltd & Anor[6] and held the following:

"I accept the argument that the time constraints set out in the Practice Notes represent "another time determined by the Court". However, I am not of the view that the time limits set out in the Practice Notes, which, I might say, seem to me to be sensible and constraints which should be applied in most cases, represent the be-all and end-all of the situation. It seems to me that some discretion still resides in the Court to determine "another time". There will be situations which occur where the strict application of the time limits set out in a Practice Note is not appropriate."[7]

6. I agree with Judge Bowman's analysis that there remains a residual discretion to be exercised in the context of the facts of the case. In stating this, it is important that practitioners appreciate that the Court expects parties to comply with the time limit expressed in paragraph 25.13 of the Practice Note.
7. I found that the Court should determine that the time limit in this case for the purposes of s274(1)(b)(ii) should be extended to 25 December 2025 for the following reasons.
8. Mr Bidawid served Dr Mittal's report about three months after the last date for service of medical records. He and his legal practitioners have provided no explanation or justification for why the report was served so late and instead seem to assume that he will be able to rely on the report at the hearing of the proceeding.
9. Dr Mittal's report significantly changes the nature of Mr Bidawid's serious injury application. If accepted, it would lead to a finding of a complex regional pain syndrome causing significant impairment, which would or could have a significant impact on the outcome of the hearing.
10. Although Mr Bidawid criticised the time the defendant took to notify Mr Bidawid and the Court about its intention to refer medical questions to the Medical Panel after receipt of Dr Mittal's report, in my view the three weeks or so that it took was reasonable, particularly given it was in December, a notoriously busy time for legal practice. Moreover, the criticism could be seen as misguided and misplaced given the unexplained six weeks or so between the date of Dr Mittal's report and the service of it on the defendant. The defendant organised a medico-legal examination with Mr Robbins to take place within about six weeks of being served with the report which, in the context of the Christmas period, was not unreasonable.
11. The competing opinions of Dr Mittal and Mr Robbins mean there is a medical dispute between the parties about whether Mr Bidawid has a complex regional pain syndrome of his right limb. Resolution of this medical dispute will be material to the determination of the serious injury application.
12. The nature and the extent of the medical dispute only became apparent late in the proceeding and close to the scheduled hearing date of the serious injury application. This is because Mr Bidawid did not comply with an order for the timely exchange of medical reports and has indicated that he will seek to rely on a medical report obtained and served well after the date for service and close to the hearing date.
13. Allowing the referral will necessitate the scheduled hearing of the proceeding being vacated. This will cause delay and expense. It wastes public resources of an allocated court date. The delay, expense and waste are undesirable and important considerations that would normally lead to taking steps to avoid them. They could be avoided by either Mr Bidawid not relying on the late served report of Dr Mittal or by not allowing a referral. Notably Mr Bidawid wanted both the hearing of the serious injury application to be maintained and to rely on Dr Mittal's opinion at that hearing. It was only the referral he opposed. He did not propose to not rely on Dr Mittal's opinion at the hearing, even though this would have avoided the need for a referral and maintained the hearing date. There was an unfairness in his approach.
14. In my view, the prejudice to the defendant should be ameliorated by determining that the time for notifying the Court of the intent to refer medical questions is 25 December 2025. This means the defendant has given notice within time for the purpose of s274(1)(b)(ii).

1. Pursuant to s274(1)(b)(ii) the Court must refer a medical question to the Medical Panel subject to the matters in sub-s(3), (4) and (5).
2. Mr Bidawid submitted that to make a referral at this stage would be an abuse of process because of how late the request is being made and that allowing it will cause delay in determining the serious injury application. He did not argue a ground based on sub-s(5).
3. An abuse of process normally involves use of a court's process for an illegitimate or collateral purpose, in a way that is unjustifiably oppressive to a party, or which would bring the administration of justice into disrepute.[8]
4. Proposed referrals of medical questions have been held to be an abuse of process where:

(a) the proposed medical questions were characterised as an attempt to cross examine the Medical Panel about its previous answers to medical questions;[9]

(b) notice had been given within time of an application to refer medical questions, but the application was not heard until the day before the scheduled hearing of the serious injury application where the applicant was a vulnerable person with a psychiatric condition who was likely to be affected if a referral occurred and the hearing date was adjourned;[10] and

(c) the serious injury application had been fixed for hearing but not been reached because no judge was available to hear it. It was relisted for hearing a second time. In the lead up to the second hearing date the defendant sought referral of medical questions, but the Court found that as the parties had committed to a judicial determination of the dispute it would be oppressive, unjust and erode public confidence to allow a referral.[11]

1. In this case, it would not be an abuse of process to allow the referral. The reasons given for determining the time for notification of the intent to refer medical questions apply to this issue. Put simply, a referral will cause delay, expense and waste of public resources but the responsibility for that lies with Mr Bidawid rather than the defendant because of the late service of Dr Mittal's report. Once that is appreciated - and that he could avoid the delay, expenses and waste by not seeking to rely on Dr Mittal's report at hearing, which he does not wish to do so - it is not apt to characterise a referral as an abuse of process. If Mr Bidawid had served Dr Mittal's report on time this would not have avoided a need for the defendant to apply to the Court to refer medical questions but if it had happened it is likely that a referral could have been made with little or no disruption to the date fixed for the hearing of the serious injury application and an avoidance or at least a reduction in the delay and expense that will now occur.
2. I have made orders vacating the hearing date of 27 January 2026.
3. At the time of hearing of the referral application, the defendant did not have a form of proposed medical questions but stated it would within seven days. I made an order requiring it to provide proposed medical questions quickly. The Court pursuant to s274(4) of the Act has a discretion about the form of medical questions referred to the Medical Panel and so must review the form of any orders before a referral can take place.
4. It is desirable that the serious injury application be determined in 2026. The parties should take all steps to make sure this happens.

[1] Affidavit of Mr Bidawid made 8 November 2024, [2] and [10].

[3] Affidavit of Mr Bidawid made 19 December 2025, [9].

[4] Mr Bidawid also served on 9 December 2025 a report of Dr Eman Awad, consultant occupational physician, dated 1 October 2025. His opinion was largely in keeping with the opinions of other doctors in previous reports. He did not diagnose a complex regional pain syndrome.

[6] [2017] VCC 1481.

[8] Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507, [25]; Bastistatos v Road and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256, [1] and [9]; PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384, [3].

[9] Besnek v City of Boroondara [2017] VCC 1482.

[10] Briggs v VWA [2016] VCC 204.

[11] Cardona v Bacchus Marsh Mega Fresh Pty Ltd (Ruling) [2011] VCC 1483.