CGU Workers Compensation (Vic) Ltd v Magistrates' Court of Victoria [2004] VSC 22

8. The proceedings were issued on 19 March 2003. At the first mention before the Magistrates' Court on 26 June 2003, counsel for Bezzina indicated that his client would be requesting the Court to refer medical questions to a medical panel pursuant to s.45 of the Act. The matter was fixed for further mention before the Court on 16 July 2003.

11. On 9 July 2003 Bezzina's solicitor sent to the plaintiffs' solicitors by facsimile a copy of the proposed medical panel referral containing proposed medical questions and a proposed statement of facts pursuant to s.65(6A) of the Act. The proposed questions were:

"1. What is the nature of the worker's condition relevant to the injuries previously opined on by the panel? 2. Does the worker have a current work capacity as defined by s.5 of the Act? 3. Does the worker have no current work capacity as defined by s.5 of the Act? 4. If the answer to question 3 is `No', is this situation likely to continue indefinitely?"

15. Subsequently the solicitors for the plaintiffs responded by letter dated 28 July 2003 suggesting an additional question regarding suitable employment.

18. At the next mention, on 16 July 2003, the plaintiffs' counsel sought an adjournment to enable the plaintiffs to obtain up-to-date evidentiary material to submit for inclusion in the material which had been proposed to accompany the referral to the medical panel. The magistrate, Mr Lauritsen, refused the application for an adjournment. He ruled that the referral of the medical questions to a medical panel should be made forthwith. Counsel for the plaintiffs then submitted that the document proffered by the second-named defendant pursuant to s.65(6A) of the Act did not sufficiently identify the facts or questions of fact in dispute as required by that provision. Accordingly he made a further request for an adjournment to enable an appropriate statement to be settled under s.65(6A). The magistrate granted the plaintiffs an adjournment sought for that purpose. He ordered that the parties provide the Court with material complying with s.65(6A) by 30 July 2003 and otherwise adjourned the complaint to be mentioned before him on that date, at which time the referral would be made to a medical panel.

21. In the meantime, the plaintiffs' solicitors served six subpoenas on the second defendant's treating medical practitioners. Those subpoenas were each in form 17B prescribed by the Magistrates' Court Civil Procedure Rules 1999. The documents described in the Schedule to each of the six subpoenas were as follows:

"All documents including plaintiff's file, clinical notes (including handwritten notes) medical reports and the like, X-ray reports, CT reports, test results and any other information relating to Ricky Bezzina (DOB 1 January 1973)."

25. By a letter to the second defendant's solicitors dated 28 July 2003 the plaintiffs' solicitors notified the second defendant of the plaintiffs' intention to apply to the Court for release of the subpoenaed documents for inspection on 30 July 2003 in order to enable copies of those documents relating to the medical questions to be submitted to the medical panel.

28. When the matter came on for mention on 30 July 2003 counsel for the plaintiffs made an application that the subpoenaed documents be released to the parties for inspection. The magistrate refused the application. For other reasons, he adjourned the complaint to be mentioned before him on 31 July 2003. When the matter came on for further mention on 31 July 2003 counsel for the plaintiffs renewed his application to the magistrate for release of the subpoenaed documents for inspection. A copy of the transcript of the proceedings before the magistrate on that day has been exhibited to an affidavit and is in evidence before me. I shall refer to it in greater detail during the course of these reasons. In summary, the plaintiffs' counsel stated that the application was made on the basis of s.65(6B) and s.45(2) of the Act, and contended that the documents the subject of the subpoena were in the possession of the Court. The magistrate rejected the submission stating that the documents were not in his possession for the purposes of s.65(6B). He also stated that the subpoenas were an abuse of the process. Having refused the application by the plaintiffs for inspection of the subpoenaed documents, he ruled that he would send the medical questions to the medical panel with the material contained in the folder, which had been submitted by the second defendant, for the opinion of the panel. His Worship deferred sending the documents for 24 hours to enable the plaintiffs to make application to this Court for judicial review of his decision. That application was promptly made by originating motion issued on the same date (31 July 2003). Accordingly, on a date subsequent to 31 July 2003, the magistrate adjourned the complaint sine die pending the outcome of the proceedings which are now before me.

32. In the originating motion, the plaintiffs set out the grounds upon which relief was sought by them. Those grounds recited the refusal by the magistrate of the request by the plaintiffs to release into their custody the subpoenaed documents (I shall hereinafter refer to that refusal as "the first refusal decision"). The grounds then recited the refusal by the magistrate to submit to the medical panel such of the subpoenaed documents as related to the medical questions pursuant to s.65(6B) of the Act (I shall hereinafter refer to that refusal as "the second refusal decision"). Originally the grounds only sought to impugn the second refusal decision. The grounds alleged that the Court erred in law by determining that the documents were not in the possession of the Court and were therefore not the subject of s.65(6B). The plaintiffs sought relief in the nature of a certiorari quashing the second refusal decision, an injunction restraining the magistrate from referring the medical questions to the panel except as accompanied by documents in the possession of the Court pursuant to the subpoena relating to the medical questions, and an order in the nature of mandamus requiring the magistrate to submit those documents to the panel together with the referred medical questions.

35. At the hearing before me Mr Maxwell QC appeared with Mr Fleming for the plaintiffs. In the course of Mr Maxwell's submissions I raised with him whether he ought, or needed, to seek to impugn the first refusal decision as well as the second refusal decision. After some discussion, Mr Maxwell sought leave to amend the originating motion in order to also seek an order in the nature of certiorari quashing the first refusal decision, and an order in the nature of mandamus requiring the magistrate to release the subpoenaed documents to the parties to enable identification of relevant documents and any document in respect of which a claim for privilege might be made. The foreshadowed amendment sought that relief on similar grounds to the relief sought in respect of the second refusal decision. After hearing from Mr O'Loghlen QC, who appeared with Mr T. Ryan on behalf of the second defendant, I granted leave to the plaintiffs to amend their originating motion as proposed by Mr Maxwell.

38. The plaintiffs submitted that they were entitled to the relief sought on the following bases:

(1) The first refusal decision was erroneous for two principal reasons. First, the magistrate made that decision on the erroneous basis that the subpoenaed documents were not in the possession of the Court. Secondly, even if the documents were not in the magistrate's possession, that factor was irrelevant. The magistrate erred in refusing inspection of the subpoenaed documents on the basis that the subpoenas were an abuse of the process.

(2) The magistrate erred in making the second refusal decision by wrongly concluding that, for the purposes of s.65(6B) of the Act, the subpoenaed documents were not documents in his possession relating to the medical questions which were referred to the medical panel.

The Accident Compensation Act

44. The provisions of the Act have been examined in some detail by Eames J. in Catholic Church Insurances Ltd v The Magistrates' Court of Victoria[1]. Accordingly, I shall not set out those provisions in detail.

47. The Accident Compensation Act makes provision for the payment of compensation to or on behalf of workers who suffer an injury arising out of or in the course of their employment. Part 3 of the Act deals with the method by which disputes as to the payment of compensation are to be resolved. Section 39(1) invests exclusive jurisdiction on the County Court to enquire to hear and determine any question or matter under the Act. Section 43(1) provides like jurisdiction to the Magistrates' Court if the question or matter is in respect of an amount which does not exceed a specified jurisdictional limit. Section 43(3) provides that the Act applies to the Magistrates' Court when exercising jurisdiction under Part 3 as if a reference to the County Court were a reference to the Magistrates' Court. Section 44 provides for method by which the Court is to take evidence. Section 44(1) states that the Court is not bound by the rules or practices to evidence but may inform itself in any manner it thinks fit and may take evidence in writing or orally.

50. Section 45(1) provides for reference of medical questions to a medical panel. The phrase "medical question" is defined by s.5 as to contain fifteen different questions which might arise in the determination of the entitlement of a worker to compensation under the Act. Section 45(1) then provides:

"(1) Where the County Court exercises jurisdiction under this part of? the County Court -

(a) may refer a medical question; or

(b) if a party to the proceedings requests that a medical question or medical questions be so referred, must, subject to sub-sections (1B) and (1C), refer that medical question or those medical questions -

to a Medical Panel for an opinion under this division."

In this case the plaintiffs requested the referral of the medical question. Accordingly the referral of that question was mandatory under s.45(1)(b).

"(2) If the County Court refers a medical question to the panel, the Court must give each party to the proceedings, copies of all documents in the possession of the Court relating to the medical question."

Division 3 of Part 3 of the Act governs the method by which medical panels are established and function. Section 65(1) provides that the panel is not bound by rules or practice as to evidence but may inform itself on any matter relating to a reference in any manner it thinks fit. In Masters v McCubbery[2] the Court of Appeal held that a medical panel is required to observe the rules of natural justice.

62. Section 68(4) of the Act provides that the opinion of a medical panel must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the medical panel.

65. Section 65(6A) and (6B) were inserted in Division 3 by the Accident Compensation (Common Law and Benefits) Act 2000. Those provisions are directly relevant to the issues before me and are as follows:

"(6A) A person or body referring a medical question to a medical panel must submit a document to the medical panel specifying -

(a) the injury or alleged injury to, or in respect of, which the medical question relates;

(b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute;

(6B) A person or body referring a medical question to a medical panel must submit copies of all documents relating to the medical question in the possession of that person or body to the medical panel."

Accident Compensation Act s.65(6B)

72. In these proceedings the critical issue, in respect of the second refusal decision, is whether the subpoenaed documents were documents relating to the medical questions in the possession of the person or body referring those medical questions to the medical panel for the purposes of s.65(6B). That issue is also an issue to be determined in respect of the first refusal decision, for, as I have set out above, the magistrate refused inspection of the subpoenaed documents, inter alia, on the basis that those documents were not in his possession for the purposes of s.45(2) and s.65(6B) of the Act. Accordingly I shall deal with that question first.

75. Mr Maxwell, on behalf of the plaintiffs, contended that documents which are produced to a court pursuant to a subpoena are in the possession and custody of the Court. In my opinion that proposition is well founded; see Phillip James Morey v Transurban Citylink Ltd & Anor[3]; Waind v Hill and National Employers Mutual General Association Ltd[4]; Christoforidis v Cygnet Bulk Carriers SA[5]. Accordingly he submitted that the documents the subject of the subpoena were in the possession of the Court, person or body referring the medical question. He further submitted that the documents included documents relating to the medical questions which were referred to the medical panel. He conceded that it was likely that the subpoenaed documents included extraneous material which would need to be excised before the documents were submitted to the medical panel. However he submitted that there was a "high probability" that the subpoenaed documents also contained documents relating to the medical questions.

78. In response, Mr O'Loghlen made two principal submissions. First, he submitted that the documents were not in the possession of the magistrate who referred the medical question to the medical panel. He pointed out that the subpoenas were in form 17B. Pursuant to rule 17.08 of the Magistrates' Court Civil Procedure Rules 1999 the persons to whom the subpoenas had been addressed had produced the subpoenaed documents to the registrar by hand or post rather than to the magistrate on the day on which the case came on for hearing. Accordingly he submitted that the documents were in the possession of the registrar and not the magistrate. He submitted that in order that the documents be in the possession of the court, body or person referring the medical questions for the purpose of s.65(6B) the documents must be tendered in evidence. In support of that proposition he relied on a decision of his Honour Judge Strong of the County Court in Metcalf v FAI Workers' Compensation (Victoria) Ltd[6]. He pointed out that no evidence at all had been led or tendered in the proceeding before the magistrate. The only proceeding before the magistrate had been mention hearings. The proceeding which was before the magistrate on 30 July and 31 July was not the trial of the action, but rather a further mention for the sole purpose of referring the medical questions to the panel. Accordingly he submitted that the subpoenaed documents were not in the possession of the court, body or person referring the medical question.

81. The second submission made by Mr O'Loghlen on this aspect of the case was that, even if the documents were in the possession of the relevant court, body or person referring the medical questions, the plaintiffs could not demonstrate that the subpoenaed documents included documents relating to the medical questions which had been referred to the medical panel. In this connection he referred to the width of the schedules to the subpoenas which I have already set out earlier in these reasons. He submitted that it could not be determined, from the schedule in the subpoena, that the documents provided to the court in answer to the subpoena did contain documents relating to the medical questions which were referred to the panel.

84. The first question therefore is whether the subpoenaed documents were in the possession of the person or body referring the medical question to the medical panel for the purposes of s.65(6B). Mr Maxwell contended that even if the documents were still in the possession of the registrar, that was sufficient, because s.4(2) of the Magistrates' Court Act provides that the Magistrates' Court shall consist of the magistrates and the registrars of the court. Accordingly, he contended, the possession of the documents by the registrar constituted possession of the documents by the court for the purposes of s.65(6B).

87. I do not accept that submission. First, as Mr O'Loghlen points out, s.4(3) provides that the Court shall be constituted by a magistrate except in the case of any proceeding for which provision is made by the Act or the rules. There is no suggestion that there is any provision entitling the registrar to constitute the Court for the purposes of determining the proceeding which is before the magistrate. Secondly, and more significantly, in my view s.65(6B) was intended to refer to the particular judicial officer who is responsible for referring the medical question to the medical panel. Section 65(6A) and s.65(6B) impose responsibilities on the particular member of the Court responsible for the referral of the medical question. Indeed the use of the phrase "person or body" instead of the phrase "County Court" reinforces that conclusion. However even without the use of that verbiage I am of the opinion that, given the responsibilities provided for by s.65(6A) and s.65(6B), those sections are directed to the possession of documents by the particular judicial officer making the actual referral. That conclusion is, in my opinion, reinforced by the provisions of s.45 of the Act. Section 45(1)(a) invested in the Court a discretion to refer a medical question. Clearly that discretion is to be exercised by a specific judicial officer. Section 45(1B) provides that the "County Court" may refuse to refer a medical question to a medical panel on an application under sub-s.(1)(b) if "the County Court" is of the opinion that the referral would constitute an abuse of process. Again that opinion must be held by a judicial officer of the Court. Accordingly, in my view, s.45(2), which requires the "County Court" referring a medical question to give each party copies of all documents in the possession of "the Court", refers to the judicial officer constituting that court and making the referral. In other words I do not accept the proposition that the "County Court" referred to in s.45(2) and the "person or body" referred to in s.65(6B) consists of the Court in a "corporate" sense, as distinct from the judicial officer of the Court responsible for making the referral to the medical panel.

90. However that is not the end of the matter. Mr O'Loghlen is correct to point out that, by availing themselves of the processes provided for under rule 17.08 of the Magistrates' Court Rules, three of the four persons who answered the subpoenas forwarded the documents to the registrar before 30 July 2003, which was the date fixed for return of the subpoenas. By mistake one of the recipients of the subpoenas sent the documents to the solicitors for the second defendant, who, quite properly, forwarded the documents to the Court. What is relevant is the fact that the subpoenas constituted an order that the witness attend and produce the documents described in the Schedule before the Court at 10 a.m. on 30 July 2003. The subpoenas were issued in the proceeding which was before the magistrate. They contained the court heading. In other words, the subpoenas that were an order of the Court to secure production of the documents to the Court in which the relevant proceedings to be heard. The processes, provided for by rule 17.08, by which the documents might, before that date, be provided to the registrar, were merely procedural processes for the convenience of the persons to whom subpoenas were directed. Nevertheless, that alternative process does not alter the central point, namely, that each subpoena was, essentially, an order to produce the document to the Court hearing the complaint on the date fixed for return of the complaint. In fact, the documents relating to the four subpoenas which were answered did come before the magistrate on 30 July and 31 July. That fact is not a mere happenstance, but, as I have demonstrated, is the intended design of the subpoenas.

93. Mr O'Loghlen further submitted that the Court was not in possession of the subpoenaed documents because they had not been tendered to the Court in evidence. For the reasons which I have already set out above I do not accept that proposition. Such a proposition would involve an unnecessary redrafting of s.45(2) and s.65(6B) of the Act. Both of those provisions refer to documents being "in the possession of" the relevant court. If it was intended that only documents which are the subject of evidence be referred to the medical panel, both of these sections could have been drafted explicitly to that effect. The use of the word "possession" must, in my view, be given its natural meaning. Accordingly, documents which are in the custody of the Court pursuant to a subpoena are in the possession of that court.

96. In those circumstances, I conclude that the Court, which was referring the medical questions to the medical panel, was the Court which had possession of the subpoenaed documents. Thus I am of the view that the magistrate erred in holding that he was not in possession of the documents which had been subpoenaed for the purposes of s.45(2) and s.65(6B) of the Act.

99. The next and critical issue, however, is whether the magistrate had possession of documents relating to the medical questions which were referred to the medical panel. Due to the refusal of the magistrate to permit release of the documents to the parties for their inspection, it is speculative whether the subpoenaed documents did or did not contain documents relevant to the medical questions which were the subject of the referral. I note the submission of Mr Maxwell that it may be probable that the documents included documents relating to those medical questions. However, on the materials which were before the magistrate, such an assertion was no more than one of conjecture. The difficulty which confronted Mr Maxwell's submissions arose from the width of the descriptions of the documents which were the subject of the subpoenas as set out in the schedules to the subpoenas. That difficulty is recognised in the form of relief sought in the originating motion, namely, relief (inter alia) in the nature of mandamus requiring the magistrate to submit to the medical panel those of the documents which related to the medical questions which were referred. In those circumstances, I am unable to conclude that the magistrate made an error of law in determining that he was not in possession of documents relating to the medical questions which were being referred.

102. For the above reasons I do not conclude that there was an error by the magistrate in the second refusal decision.

106. The next question is whether the magistrate erred in refusing the application of the plaintiffs to inspect the documents which had been delivered to the Court in answer to the subpoenas.

109. In making the application for inspection of the subpoenaed documents counsel for the plaintiffs (who did not appear in the proceeding before me) stated that he made the application on the basis of s.65(6B) and s.45(2), namely that the documents were in the possession of the Court. Relying on s.45(2) counsel submitted that the Court must give the party copies of the documents which were in the possession of the Court relating to the medical question. In response, as I have already set out, the magistrate stated that the documents were not in his possession. He said:

"It merely is here, it's not in my possession because it has not been tendered before me in the purpose (sic) of a hearing." (T1)

113. As I have already set out, the magistrate was in possession of the subpoenaed documents. Without initiating a process for inspection of them, he could not conclude, for the purposes of s. 65(6B) and s. 45(2), that they were documents relating to the medical questions which he was referring to the medical panel. However, the magistrate, in my opinion correctly, understood that the application for release of the documents was not only made under s.45(2), but also pursuant to the implied power of the Court to release documents, the subject of a subpoena, for inspection by the parties to the proceeding. For, the magistrate then proceeded to express the view that the subpoenas were an abuse of the process. Counsel sought to contend that the subpoenas were not an abuse of process. The magistrate was not dissuaded from his view. In essence he characterised the subpoenas as an abuse of the process, first, because they were issued and served during the period of the adjournment which had only been allowed to enable the s.65(6A) document to be formulated, and secondly, because he considered that they were a fishing expedition as they did not perform any forensic purpose before the Court. Counsel for the second defendant supported the view expressed in the course of argument by the magistrate, arguing that the subpoenas were an abuse of the process because they were issued on the eve of the referral of the medical questions to the medical panel.

116. Mr Maxwell for the plaintiffs contended that, in so concluding, the magistrate made two errors. First, the subpoenas had been served and answered. The persons to whom the subpoenas had been addressed did not seek to set aside the subpoenas as an abuse of the process. The concept of an abuse of process is irrelevant to the question whether inspection of the documents, the subject of the subpoena, should be permitted. Secondly, he submitted that the conclusion by the magistrate that the subpoenas were an abuse of the process was based on legal error, since, in order to establish such an abuse, the second defendant must first show that an ulterior purpose had been sought to be achieved by the plaintiffs in issuing the subpoenas. No such purpose had been established.

119. The leading of decision on the principles applicable to inspection of documents which are produced to the Court by subpoena is a decision of the Court of Appeal of New South Wales in Waind v Hill and National Employers Mutual General Association Ltd[7]. In that case, at trial, the defendant served a subpoena on the insurer of the plaintiff seeking production of documents relating to the plaintiff's claim against his employer for workers compensation. The trial judge rejected the insurer's claim for privilege, and made an order for inspection of the documents. The Court of Appeal rejected the insurer's appeal relating to the decision on privilege. The Court granted the plaintiff, Waind, leave to appeal against the order for inspection. The plaintiff contended that inspection should only be permitted in respect of documents which could ultimately be tendered in evidence. The Court of Appeal rejected that submission as "unsound" (p.381). The Court observed that there are three steps involved in having a third party bring documents to court. The first is obedience to the subpoena. That step involved the determination of any objections of a witness to the subpoena or to the production of the documents to the Court pursuant to the subpoena. The second step involved the decision of the judge concerning preliminary use of the documents, including whether permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part (p.381).

122. The Court then stated that issues such as whether the subpoena involved an abuse of the process were to be determined at the first stage, namely, the return of the subpoena and the production of the documents to court (p.382). Moffitt P with whom Hutley JA and Glass JA agreed, stated the relevant principles in respect of the second step as follows:

"The second step is when the documents are produced to the Court by the witness, the subpoena not having been set aside, and any other objection to their production, such as on the ground that they were privileged, having been rejected. At this stage documents are in the control of the Court pursuant to the valid order of the subpoena." (pp.382-3)

"If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the Court, then the documents are in the control of the judge, who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the Court. So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the Court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case. ... In my view ... dicta (of previous authorities referred to), longstanding as they are and impressive as is their source, should not be understood as laying down, as would a rule of court, some arbitrary limitation on the exercise of the wide discretion of the judge to permit the documents to be used for the purpose of providing him or the jury, in the end, with the best available evidence testing by the accepted procedures of cross-examination."

"The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have an apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation." (Emphasis added.)

130. The above passages from the decision of Moffitt P in Waind's case have been quoted and applied in a large number of subsequent authorities. See, for example, Urquhart v Lanham[8]; Maronis Holdings Ltd v Nippon Credit Australia Ltd[9]; Christoforidis v Cygnet Bulk Carries SA[10]; Welfare v Birdon Sands Pty Ltd[11]. Thus, in Hillston v Bar-Mordechai[12] Bryson J. stated that there must be a "legitimate forensic purpose" to be served by releasing the documents for inspection.

133. In determining that he would not permit inspection of the subpoenaed documents on the grounds that the subpoenas constituted an abuse of the process, I am of the opinion that the magistrate erred by applying the wrong test to the exercise of his discretion. The subpoenas had already been answered, and no step had been taken to have them set aside as an abuse of the process for any other reason. The magistrate was therefore required to treat the subpoenas as valid. The question for the magistrate was not whether the subpoenas were an abuse of the process. Rather the question was whether a legitimate forensic purpose might be served by permitting the plaintiffs to inspect the documents which had been produced pursuant to the subpoena.

136. As I have stated the magistrate did not expressly address this question. To some extent he did touch on the issue, albeit in the context of determining that the subpoenas themselves were an abuse of the process. He remarked that they were an abuse of the process:

"For a matter which is going off to the panel. A matter that is not going to be litigated before me today or before any magistrate today or in the immediate future because questions are going to a panel ... What forensic purpose would be served other than a fishing expedition in relation to those documents? It's not going to be used to have them produced to the Court for the purposes of a hearing."

(T p.4)

In expressing those views, I am of the opinion that the magistrate made an error of law. The views expressed by the magistrate failed to take into account two principles which have been established by recent authority. First, the medical panel does not simply perform an advisory role, furnishing another medical opinion to the Court which would ultimately determine the relevant issues. On the contrary, the opinion of the medical panel is conclusive. The opinion of the medical panel decides issues which lie between the parties in the proceedings which are before the Magistrate's Court. For that reason, the Court of Appeal in Masters v McCubbery (above) held that the medical panel is required to observe the rules of natural justice. As Winneke P observed, the process of referring questions to the medical panel is one of dispute resolution by which the medical panels "have the power to make conclusive decisions affecting the rights of parties in those cases where the Court has referred questions to them". (p.644). Callaway JA observed that a medical panel "... is not just a body of persons with power to affect detrimentally a person's rights, interests or legitimate expectations. It is a body that decides a question that would otherwise be decided by a court of law." (p.654). Clearly, then, there was a legitimate forensic purpose to be served by release of the subpoenaed documents, namely, the eliciting of material to be provided to the panel for consideration by it.

141. The second relevant principle was established by the decision of Eames J in Catholic Church Insurances Ltd v The Magistrates' Court of Victoria & Anor (above). In that case the defendant insurer sought a referral of medical questions to a medical panel. The magistrate accepted the submission of counsel for the worker that the referral should not occur until after some evidence was taken on oath from the worker. The employer sought a judicial review of that decision. Eames J rejected the claim of the plaintiff for judicial review. His Honour held that there was nothing in the Act which prohibited the Court from taking evidence on oath on matters which are relevant to the medical question or questions which are to be referred to a medical panel. His Honour observed:

"The role of the Court in preventing avoidable error in this way (where the risk of error was apparent to the Court) would be a cost effective approach to ensuring a speedy, final and just conclusion to the dispute. It would be unlikely that Parliament would have intended that the Court play no role to prevent error but should be content to leave the error to be later identified by a limited review process, one which did not permit an appeal on the merits." (para.[65])

Later in his judgment, Eames J stated that it would be "entirely consistent" with the Court's duty to ensure that justice is done if the judge or magistrate should endeavour to assist the medical panel in the performance of the role of the medical panel, but without intruding on its jurisdiction to determine the medical questions referred to it (para.[71]). His Honour again referred to what was then s.67(4A) of the Act (now s.65(6B)) and noted that that section:

"... requires the Court to provide to the medical panel copies of all documents relating to the medical questions in the possession of a court. There is no prohibition against the Court adding to the documents which it is holding at the time of the request for referral, and for the purpose of so doing taking evidence on transcript from such witnesses as the judge or magistrate deems appropriate, having proper regard for the fact that the legislation requires that it is the panel which is to answer the referred questions, not the Court." (para.[73])

147. The combined effect of the above two decisions is that the medical panel determines issues which would otherwise be determined by the Court, and that in referring a question or questions to it, the Court legitimately plays a role in eliciting facts and documents which might assist the panel to make an informed decision in respect of those questions. Accordingly, in my view, the magistrate erred in considering that no legitimate forensic purpose could be served in releasing the documents, the subject of the subpoenas, to the parties, so that the plaintiffs might determine whether any of those documents ought to be part of the documents which are referred to the medical panel under s.65(6B) of the Act. Thus I conclude that the magistrate erred in making the first refusal decision, namely in refusing the request of the plaintiffs to inspect the documents which were the subject of the subpoenas.

151. As I set out earlier in these reasons, the plaintiffs sought relief in the nature of certiorari, an injunction, an order in the nature of mandamus and further other orders. Mr Maxwell, in the course of his submissions, did not pursue the application for an injunction.

155. An order for certiorari enables the quashing of an impugned order or decision. Order 56.01(5) of the Rules of the Supreme Court provides that the Court shall not grant any relief or remedy in the nature of certiorari unless a copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced. Section 10 of the Administrative Law Act 1978 provides that any statement by a tribunal or inferior court of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record. Mr O'Loghlen did not contest the proposition on behalf of the plaintiffs that the transcript of the proceedings before the magistrate, which were exhibited before me, constituted at least part of the record of the proceeding for the purposes of Order 56.01(5) by reason of the operation of s.10 of the Administrative Law Act 1978; compare Lianos v Inner and Eastern Health Care Network[13]. Mr O'Loghlen submitted that the plaintiffs had not complied with Order 56.01(5) because they had not had verified, by affidavit, the formal order made by the magistrate. However, after some debate, it became common ground between the parties that the only formal order was one made, at a later date, by the magistrate adjourning the complaint sine die. Accordingly, the only record of the decision made by the magistrate, which is the subject of these proceedings, is that recorded in the transcript. For those reasons I consider that the plaintiffs have complied with Order 56.01(5).

158. Relief by certiorari applies where there is jurisdictional error and also where there is error of law on the face of the record; Craig v South Australia[14]. The error by the magistrate in refusing access to the subpoenaed documents was an error on the face of the record which is susceptible to an order for certiorari. I also accept the submission of Mr Maxwell that it is a jurisdictional error as described by the High Court in Craig's case (above) at 177. Indeed, Mr O'Loghlen did not argue to the contrary.

162. The decision of the magistrate to refuse access to the documents was, of course, discretionary, as described by Moffitt P in Waind's case. Mr Maxwell submitted that nevertheless an order for mandamus might be made requiring the magistrate to release the documents on the basis that there was no other decision available to the magistrate than to release them. For that purpose he relied on the decision of the High Court in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd[15]. However, I do not consider that this case is comparable to the type of decision considered by the High Court in the Royal Insurance case. In that case, as described by the High Court, there was no residual discretion in the Commission to refrain from making the refund in the exercise of her statutory powers. By contrast, in this case, the magistrate does of course exercise a discretion not only in determining whether to permit access to subpoenaed documents, but also in determining how access should be exercised and on what terms. Those matters are matters for consideration by the magistrate. Further, and in any event, I consider it unnecessary to make an order for mandamus against the magistrate, given the nature of the conclusions which I have expressed in these reasons. No other basis or ground was put to the magistrate or considered by his Worship to justify a refusal of release of the subpoenaed documents. For those reasons I need only make an order for mandamus requiring the magistrate to consider and determine an application for release of the subpoenaed documents in accordance with the principles outlined in these reasons.[16]

166. Mr O'Loghlen submitted that if I held that the first refusal decision was erroneous I should nonetheless not grant relief by prerogative writ for discretionary reasons. In particular he submitted that the plaintiffs had not before the magistrate sought access to the subpoenaed documents pursuant to the discretionary powers of inspection but rather had only sought to do so pursuant to s.45(2) of the Accident Compensation Act. Accordingly, he submitted, the plaintiffs should not be entitled to relief in respect of submissions which they did not make to the magistrate.

169. Certainly, the application made on behalf of the plaintiffs before the magistrate was initially based on s.65(6B) and s.45(2) of the Accident Compensation Act. However, it seems clear that the magistrate did understand that the application was also being made on a broader basis pursuant to the normal power of a magistrate to permit access to subpoenaed documents. For that reason his Worship considered issues such as the abuse of process and clearly declined to exercise the power to permit inspection of the documents on discretionary grounds. Accordingly, I reject this submission on behalf of the second defendant.

1. An order in the nature of certiorari quashing the decision of the learned magistrate on 31 July 2003 to refuse to release to the parties to the Magistrates' Court proceeding the documents produced to the court pursuant to the subpoenas respectively dated 22 July 2003.

2. An order in the nature of mandamus that the learned magistrate further consider and determine the application of the plaintiffs for release of the subpoenaed documents to the parties in accordance with these reasons.

178. I shall hear from the parties in relation to the precise terms of the proposed orders and in relation to any issues of costs.

[1] [2000] VSC 31.

[3] [1997] ATPR 41-571 at p.43,932.

[4] [1978] 1 NSWLR 372 at 383.

[5] [2002] FCA 690 at para.[11].

[7] [1978] 1 NSWLR 372.

[10] [2002] FCA 690 at para.[11].

[11] (1997) 149 ALR 378 at 385-6.

[12] [2002] NSWC 973 at paras.[2], [3].

[13] [2001] VSCA 53; (2001) 3 VR 136 at 137 (per Batt JA) and at 143 (per Chernov JA).

[14] [1995] HCA 58; (1995) 184 CLR 163 at 176.

[15] [1994] HCA 61; (1993) 182 CLR 51 at 81 (per Mason CJ), 88 (per Brennan J).

[16] Cf R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1948) 78 CLR 389.