PRACTICE AND PROCEDURE - Plaintiff/Appellant claimed weekly compensation payments in County Court - Reference of medical questions to Medical Panel - Medical Panel's opinion adverse to appellant - Appellant brought two separate proceedings in Trial Division to set aside opinion - Appellant applied to County Court judge to amend statement of claim and refer further questions to Medical Panel - Applications refused - Judge's discretion miscarried - Not open to determine applications while review proceedings pending - Appeal dismissed.

1 I have had the advantage of reading the draft reasons for judgment of Hansen AJA. I agree with him, for the reason that he gives, that the application to amend the further amended statement of claim and the application for an order to refer a new question to a Medical Panel should not have been entertained by the judge below.

2 The question as to whether Mr Clarke had an appeal as of right, under s 52 of the Accident Compensation Act 1985 ('the Act') is a difficult one. It seems to me unlikely that Parliament intended that an appeal as of right should lie from an interlocutory decision under the Act. Section 52(3) is ill-adapted to interlocutory appeals, because it permits the appeal application to be lodged within 6 months after the making of the determination.

3 Nevertheless I agree with Hansen AJA that the wording of s 52, particularly when read in conjunction with s 5(3)(a) of the Act, brings about the surprising result that an appeal as of right lies from an interlocutory decision. This will contribute to the fragmentation of proceedings under the Act, a result which can only be rectified by legislative amendment.

4 I agree with the orders that his Honour proposes.

5 I have had the benefit of reading in draft the reasons for judgment of Hansen AJA and I agree with those reasons and with the orders that his Honour proposes.

6 The appellant[1] is the plaintiff in a proceeding in the County Court in which he

claims weekly payments of compensation from 1 November 2000 to 15 June 2001 and from 2 February 2002 and continuing, and medical and like expenses, pursuant to the Accident Compensation Act 1985 ('the Act'). In late 2008, in circumstances referred to below, the appellant sought to amend his further amended statement of claim. The application was heard by His Honour Judge Misso ('the judge') who on 17 December 2008 refused the application. He also ordered that any further application by the parties, or by the appellant to amend the further amended statement of claim, be made subsequent to the determination of 'the current proceedings' before the Supreme Court.

7 The appellant appeals against the order refusing the application to amend and in lieu thereof seeks orders granting leave to amend and remitting the proceeding for further directions.

8 The proceeding was commenced in May 2005. It came on for trial in February 2006. The trial was adjourned with leave to further amend the amended statement of claim. The further amended statement of claim was duly filed on 27 February 2006. The pleaded case may be summarised as follows.

9 The appellant was employed by the first respondent from 2 April 1986 to 3 November 1994, and the second and fourth respondents from then until April 1996. The second respondent was a subsidiary of the fourth respondent which held a policy of WorkCover Insurance with the third respondent. He was employed as an analyst/computer programmer. It was alleged that throughout his employment he was exposed to psycho-social stressors, the effect of which caused compensable injury. The stressors, which were particularised, were matters and events which occurred at work. The injuries alleged were:

(a) Chronic adjustment disorder with mixed disturbance of emotions and anxiety;

(b) Anxiety and Depression and/or in the alternative;

(c) Recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in

(i) Chronic Adjustment Disorder with mixed disturbance of emotions and conduct and/or

(ii) Anxiety and depression.

The pleading continued with allegations as to periods worked and not worked following cessation of the subject employment in 1996, and of the refusal of the appellant's claims for weekly payments and medical and like expenses. The appellant has not received any such compensation and claims to have had no work capacity since 2 February 2002.

10 On 2 May 2006 the proceeding came on for hearing before His Honour Judge Hicks who, pursuant to s 45(1)(b) of the Act, referred a number of medical questions to a Medical Panel for opinion.

11 On 19 June 2006 the appellant was examined by the Medical Panel. On 30 June 2006 the Medical Panel provided its certificate of opinion pursuant to s 68 of the Act, and, by separate document, reasons for the opinion. It is to be noted that 'the opinion of a Medical Panel on a medical question ... is to be adopted and applied ... and must be accepted as final and conclusive by any court ...', pursuant to s 68(4) of the Act. However, any separate reasons are not admissible, as the Court of Appeal decided was the effect of s 68(4) in Lianos v Inner and Eastern Health Care Network,[2] with the single exception that such reasons may be relevant for the purpose of resolving an ambiguity in the language of the opinion.[3]

12 On 20 September 2006 the Senior Master granted the appellant leave to bring proceedings pursuant to the Administrative Law Act 1978 to review the opinion of the Medical Panel. The review was heard by J Forrest J who on 18 September 2007 quashed the decision of the Medical Panel, and referred the medical questions back to the Convenor of Medical Panels for determination by a differently constituted Panel.

13 On 27 November 2007 a second Medical Panel examined the appellant. On 30 November 2007 the Panel provided its certificate of opinion, and reasons for the opinion.

14 The questions and answers constituting the certificate of opinion dated 30 November 2007 state:

Question 1: What is the nature of the Plaintiff's medical condition, relevant to the Plaintiff's mental state being:

Recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in

1. Chronic adjustment disorder with mixed disturbances of emotions and conduct and/or;
2. Anxiety and depression.

Answer: The Panel is of the opinion that the Plaintiff is not suffering from any recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

Question 2: Was the Plaintiff's employment:

1. With the First Defendant up until 3 November 1994 ('the first period of employment') in fact, a significant contributing factor to a:

i) recurrence and/or

ii) aggravation and/or

iii) acceleration and/or

iv) exacerbation and/or

v) deterioration -

of a pre-existing psychological ailment resulting in:

1. chronic adjustment disorder with mixed disturbance of emotions and conduct and/or

y) anxiety and depression

z) or a similar injury.

Answer: No.

1. with the Second and/or Fourth Defendant between 4 November 1994 and April 1996 ('the second period of employment') in fact, a significant contributing factor to a:

i) recurrence and/or

ii) aggravation and/or

vi) acceleration and/or

vii) exacerbation and/or

viii) deterioration -

of a pre-existing psychological ailment resulting in:

1. chronic adjustment disorder with mixed of emotions and conduct and/or

y) anxiety and depression

z) or a similar injury.

Answer: No.

Question 3: a) Does the Plaintiff have a current work capacity?

Answer: The Panel is of the opinion that the Plaintiff has no present inability to return to pre-injury employment arising from an injury.

1. If no to part (a) hereof, is the Plaintiff likely to continue indefinitely to have no current work capacity?

Answer: Not applicable.

Question 4: If the answer the question 3(a) is 'no':

1. does the Plaintiff's incapacity for work result from, or is it materially contributed to by, the injuries, and if so which of the injuries, identified in the answers to:

i) question 2a) and/or

ii) question 2b)?

Answer: Not applicable.

15 Notwithstanding that the Medical Panel's reasons are not admissible, they were placed before the judge and this Court. Doubtless that was because a statement in them was the genesis of, and explained, the proposed amendment. Somewhat paradoxically, before us counsel referred to the relevant parts of the reasons but each, for the purpose of their submissions, submitted, based on Lianos, that such reference was inadmissible. In the circumstances it is appropriate to set out the concluding passages in the Panel's reasons to which reference was made. The Panel stated:

The Panel concluded that the Plaintiff suffers from a Personality Disorder Not Otherwise Specified, (DSM IV) with features of a paranoid personality disorder, antisocial personality disorder, and narcissistic personality disorder.

The Panel also considered the possibility that the worker could have a psychotic disorder. While no frank bizarre delusions or hallucinations were identified the Panel noted the worker's continuing rumination in relation to potential work situations and his stated intentions to kill employees of his former workplace. The Panel also noted his seeming indifference to those he has attacked previously and his general restriction of affect in the interview situation. The Panel concluded that elements of a borderline psychotic state were probably present, but a formal diagnosis of a paranoid psychotic disorder could not be substantiated.

The Panel considered the worker does not currently have an Adjustment Disorder based on its consideration of the nature of the Plaintiff's current symptoms and its findings on his presentation at psychiatric examination.

The Panel accepted that the Plaintiff did have an Adjustment Disorder with depressed mood which developed in 1995, as diagnosed by Dr Cooper, in response to workplace stressors at that time. The Panel considers this condition developed independently of his Personality Disorder and it could not be determined to be a recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment as suggested by the questions from the Court.

The Panel considers the Plaintiff's Adjustment Disorder resolved shortly after the time the Plaintiff ceased his employment (as this was the stressor causing his Adjustment Disorder) with Suncorp Metway in April 1996 and at about the time he thought of acting on his violent and revengeful fantasies, which were symptoms of his Personality Disorder and not his Adjustment Disorder.

Based on the nature of the Plaintiff's symptoms and the Panel's findings on examination, the Panel considers the Plaintiff's employment had no effect on his Personality Disorder as the continued sense of injustice for the events at work were merely a focus of his Personality Disorder and not a cause or an aggravating factor.

The Panel therefore concluded that the Plaintiff is not suffering from any recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

As the Panel considers the Plaintiff developed an Adjustment Disorder directly as a result of the circumstances of his employment and that his employment had no effect on his Personality Disorder, the Panel concluded that the Plaintiff's employment with National Mutual, Nexus and Suncorp Metway was not in fact, a significant contributing factor to any alleged recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in a chronic adjustment disorder with mixed disturbances of emotions and conduct and/or anxiety and depression.

The Panel does consider the nature and extent of the Plaintiff's Personality Disorder is such that he is not capable of performing any work, but as the Panel has determined that the Plaintiff's initial Adjustment Disorder has resolved and that his Personality Disorder is not related to his employment, it concluded that the Plaintiff has no present inability to return to pre-injury employment arising from an injury.

Of particular importance in the present context is the reference to 'the continued sense of injustice' in the sixth paragraph.

16 On 8 February 2008 the appellant commenced two proceedings in the Supreme Court to review the opinion of the second Medical Panel. The proceedings were commenced pursuant to the Administrative Law Act (proceeding no 4554/2008) and Order 56 for judicial review (proceeding no 4569/2008) respectively. In each case the appellant specified the same grounds on which he sought the review and quashing of the opinion.

17 On 11 August 2008 the Listing Master fixed each proceeding for trial on 30 September 2008. Then, at the request of the appellant the Listing Master vacated the fixture. The basis of the request was that counsel had advised that before the Supreme Court proceedings were heard the matter should be further considered by the County Court in relation to pleadings and perhaps further medical questions. In the result the Supreme Court proceedings remain pending.

18 The next step is that the appellant provided to the respondents proposed amendments to the further amended statement of claim and a further set of questions for reference to a Medical Panel. The amendments added the following paragraphs 9A and 9B, the latter including reformulated particulars of injury:

9A. Further and in the alternative resulting from his employment with the First and/or Second and/or Fourth Defendants there was a stressor or stressors which was or were caused by incidents or events to which the Plaintiff was exposed in his workplace which gave rise to a perception of injustice which was a cause of injury to the Plaintiff.

9B. By reason of the events occurring in the course of his employment with the First and/or Second and/or Fourth Defendants earlier set out, the Plaintiff suffered injury.

PARTICULARS OF INJURY

(a) Chronic adjustment disorder;

(b) Anxiety and depression;

(c) Personality disorder not otherwise specified.

(d) Psychiatric injury.

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

2. Was the Plaintiff's employment:

(a) with the First Defendant up until 3 November 1994 ('the first period of employment');

(b) with the Second and/or Fourth Defendant between 4 November 1994 and April 1996 ('the second period of employment')

a significant contributing factor to the -

(i) contraction of any injury?

(ii) recurrence, aggravation, acceleration, exacerbation or deterioration of any injury?

3. (a) Does the Plaintiff have a current work capacity?

(b) If no to part (a) hereof, is the Plaintiff likely to continue indefinitely to have no current work capacity?

1. If the answer to question 3(a) is 'no' does the Plaintiff's incapacity for work result from or is it materially contributed to by any and which of the injuries identified in answer to question 2(a) or (b)?

19 The appellant's application to amend and to refer further questions came before the judge on 23 and 24 October and 10 December 2008. The application was made orally on the basis of the written amendments and questions. The application was opposed. There was no summons or affidavit in support.

20 After hearing argument on 23 October the judge intimated that he would give leave to amend, and adjourned consideration of the terms of the further questions to the next day. However, on 24 October counsel for the respondents requested an adjournment for the purpose of further consideration of the applications generally, and that in the meantime the order for amendment not be made. The judge stated that the order had neither been formally pronounced nor authenticated, and adjourned the further hearing of the application to 10 December 2008. In the course of the discussion there was reference to the Supreme Court proceedings. The judge asked if he could assume that the 'other litigation ... will fall into place' and that he could 'still proceed with what you want me to do?' Counsel for the appellant said that he thought the answer to that question was yes. No other counsel responded.

21 It was in those circumstances that the judge heard the appellant's application on 10 December. Counsel provided written and oral submissions which may be summarised as follows.

22 Counsel for the appellant referred to the existing pleading of injury, the medical questions, the quashing of the first opinion, and the opinion and reasons of the second Medical Panel including in particular the reference to the appellant's 'continued sense of injustice for the events at work' being 'a focus of his Personality Disorder and not a cause of an aggravating factor'. Putting aside whether that diagnosis constituted a compensable injury, the appellant believed that the reasoning of the second Panel was flawed and had commenced two proceedings in the Supreme Court seeking the review and quashing of the decision of the second Medical Panel. It was anticipated, counsel said, that the decision of the second Medical Panel 'will be quashed again, because it is erroneous in a manner similar to the first Medical Panel's decision'. He wanted to avoid the same questions being sent to a third Medical Panel. Counsel submitted that the questions answered by the second Medical Panel were 'so inadequately drafted in terms of covering compensable injuries that there is likely to be recurring difficulty'. That was because no question about the totality of the appellant's psychiatric conditions had been asked or answered. In these circumstances the appellant sought the amendment to the statement of claim and reference of the further medical questions. This, counsel said, was the 'better way out of the present stalemate'. The proposed para 9A picked up the finding of the second Medical Panel to assert in the alternative that the workplace incidents or events gave rise to a perception of injustice which was a cause of a compensable injury. Paragraph 9B expanded the injuries to include all relevant compensable injuries. And the further medical questions 'will overcome the deficiencies in the medical questions thus far submitted'. Finally, the amendments were necessary to enable the real questions in controversy to be determined.

23 Counsel for the respondents submitted that the amendment should not be allowed because it would have no utility and was likely to cause waste, delay and embarrassment. That was for the following reasons.

24 First, the amendment raised an issue, namely injury caused by a sense of injustice, that was not fairly arguable. The extant opinion of the second Medical Panel, which s 68(4) of the Act made binding on the court,[4] had disposed of all of the medical questions sought to be asked by the proposed further referral. It had also disposed of the fresh allegations of an injury of 'Personality Disorder not otherwise specified'. Thus the further referral would be otiose (to the extent the answers were the same as those already given) or embarrassing to the court (if different answers were received, both of which were binding on the same issue).

25 Secondly, and for reasons which counsel developed, there were difficulties with the questions, including of a drafting nature. In particular, it was submitted, the answer to question 3(a) determined that the appellant had no compensable injury. And, while the Panel's reasons were not admissible under s 68(4) they showed the inevitable answer a Panel would give to the proposed question 1. Likewise, on analysis the balance of the further questions had already been answered. Hence, there was no utility in asking the further questions.

26 Thirdly, it was submitted that the binding effect given to the extant opinion of the second Medical Panel meant that the matters in dispute had been determined and the respondents thus had an accrued right to the maintenance of that determination which should not be disturbed by amendment, as such disturbance could not be remedied by an order for costs.[5] It was said that the application to amend was akin to amending after judgment.

27 It is important to note that in her oral submissions to the judge, counsel for the respondents referred to the proceedings in the Supreme Court 'to set aside these binding determinations', and as to those proceedings said:

That really is not a matter that can possibly be permitted to colour your Honour's assessment of the proper exercise of the amendment discretion. At the moment the opinion is in place, and it binds this Court. The only proper basis on which to proceed, in our submission, is that basis. When this case gets to trial this Court will be obliged unless something happens elsewhere, to apply this existing opinion, and that has to be where your Honour commences to examine why this amendment should, or shouldn't, be allowed.

28 In reply, counsel for the appellant submitted, among other things, that the issues sought to be raised by amendment were fairly arguable, there being two Medical Panel opinions which effectively had reached a different diagnosis.

29 Further, as to the respondents' submission that the Medical Panel's opinion had determined the issues, the appellant's counsel submitted that the situation was 'fluid because the issue of the legal validity of the second Medical Panel opinion is very much in issue still. Whilst that remains in issue it's, we say, open to the court to refer for consideration by a third Medical Panel the appropriate questions'. The answers of the second Medical Panel would not determine the outcome of the third Medical Panel. Counsel continued:

The other course that this will most likely take is that the second medical panel will be set aside, we believe, and we'd have to - at that stage - ask to come back to the County Court.

HIS HONOUR: Well I can't deal with it on that basis though can I?

MR INGRAM: No, no - - -

HIS HONOUR: I have to deal with it as if that proceeding doesn't exist, don't I?

MR INGRAM: That's right. All I'm saying is, to say that there's been finality achieved with respect to these issues is incorrect. There hasn't been finality achieved. There's effectively an appeal on foot against the second opinion, and we've come back here to frame the questions appropriately whilst the proceeding is still on foot.

Then, in concluding his reply, counsel stated that the situation was 'fluid' because the opinion of the second Medical Panel, being subject to an application to quash, had 'no binding effect' and no judge of the County Court could act on the basis of the opinion. Hence it was an opportune and appropriate time to amend.

30 Finally, counsel said that the amendments only had utility if there was a referral of further medical questions. Otherwise the review proceedings 'would have to continue to the end ... before we came back and dealt with this issue'.

31 After referring to background matters the judge stated:

1. It occurred to me that if I refused the plaintiff's application to refer the new questions to the Medical Panel, that the application to amend the Statement of Claim serves no purpose. The plaintiff will be thrown back to his original pleading, and unless the Supreme Court quashes the opinion of the Medical Panel, it will stand and will be binding.
2. Mr Ingram [counsel for the plaintiff] agreed with that assessment. So I should proceed to determine whether the proposed amendments achieve the end submitted by Mr Ingram first.

1. Essentially, the submissions made by Ms Hanscombe [counsel for the respondents] were that the new questions proposed by Mr Ingram have already been asked of the Medical Panel and are therefore otiose, and that to have another opinion of a second Medical Panel will lead to fragmentation of the proceeding and a very real risk of a contradictory opinion, and if that were to occur it defeats the policy considerations behind having a medical panel.

32 The judge then referred to the statements of Winneke P in Masters v McCubbery[6] as to the binding nature of a Medical Panel's opinion, referred to and analysed the questions now sought to be referred and compared them to the questions previously referred, and noted there was merit in the respondents' submission that the former were the same or very similar to the latter. He referred to the passage in the Medical Panel's reasons containing the reference to a 'sense of injustice' and to advice of the appellant's senior and junior counsel that the amendment be sought, and referred to the existing pleading. He then proceeded to determine the applications as follows:

1. It is clear to me that the Medical Panel isolated the plaintiff's sense of injustice and must have asked the question whether that sense of injustice was a cause or an aggravating factor of the plaintiff's personality disorder because it concluded that the plaintiff's continued sense of injustice was merely a focus for his personality disorder 'and not a cause or an aggravating factor' of it.
2. Furthermore, it is not as if the questions limited the Medical Panel. Given the Medical Panel's observation about the plaintiff's sense of injustice and the conclusion that it reached about whether his personality disorder had been caused or aggravated by it, it seems to me that Question 1 was broad enough for the Medical Panel to determine whether the plaintiff's sense of injustice caused one of the two (or both) clinical disorders enquired about.
3. I do not consider that broadening the Particulars of Injury by adding 'Personality disorder not otherwise specified' and 'Psychiatric injury' add anything.
4. In any event, Question 2 is also a broad question. Both paragraphs (a) and (b) have sub-part (z) which called upon the Medical Panel to ask whether there was any similar injury not specifically referred to in that question. It seems to me that the Medical Panel did just that when it referred to the plaintiff's sense of injustice and whether it was a cause or an aggravating factor of the plaintiff's personality disorder.

1. I am satisfied that the Medical Panel has dealt with the factual matrix upon which the plaintiff's claim is based, and that it obtained a history from him of his sense of injustice which it specifically dealt with in its Reasons for Opinion and in answering the questions posed for its consideration in its Certificate of Opinion.
2. For these reasons, the plaintiff's application to amend the Statement of Claim is refused and it follows that the application to refer the proposed questions to the Medical Panel is refused.

33 The judge then made the orders referred to at [1] above.

34 On 24 December 2008 the appellant filed a summons seeking leave to appeal from the order refusing leave to amend. The summons was supported by an affidavit which exhibited a draft notice of appeal. Leave to appeal was sought on the basis that the appellant's right of appeal lay under s 74 of the County Court Act 1958, and that the order being interlocutory leave to appeal was required under s 74(2D).

35 When the application for leave came on for hearing on 20 March 2009 the Court asked counsel whether the appeal was not as of right pursuant to s 52 of the Act. Both counsel stated that they had not considered the point. In the discussion that followed there was reference to s 52 and s 74.

36 Section 52 provides:

52 Appeals

(1) Any person who was a party to proceedings before the County Court at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

(2) If a person intends to appeal to the Supreme Court under subsection (1), the person, within 21 days after the giving of the judgement or making of the decision, must serve notice of intention to appeal on the County Court and on each other party to the proceedings.

(3) If a person has served a notice under subsection (2), that person must lodge the appeal application within 6 months after the making of the determination or by leave of the Supreme Court (obtained before or after that period) after that period.

(4) The Supreme Court must not consider an appeal if -

(a) notice of intention to appeal has not been served under subsection (2); or

(b) the appeal application is not lodged as required by subsection (3).

(5) For the purposes of Division 6 of Part IV, the service of a notice of intention to appeal and the lodging of an appeal under that Division do not operate as a stay of a determination of the County Court.

(6) If the determination appealed against included a determination that compensation in the form of weekly payments be paid, the weekly payments must continue despite service of notice of intention to appeal or lodging the appeal application until the County Court reviews the determination in accordance with subsection (8).

(7) If the determination appealed against included a determination that compensation in a form other than weekly payments be paid, the compensation in dispute -

(a) must not be paid until the period specified in subsection (2) has elapsed; and

(b) if a notice of intention to appeal has been served under subsection (2), must not be paid until the period of six months has elapsed; and

(c) if an application has been lodged under subsection (3), must not be paid until the Supreme Court has considered the appeal and the County Court has made a determination under subsection (8) or the appeal has been withdrawn.

(8) On the making of a determination by the Supreme Court on an appeal under this section, the County Court must review its determination and make a new determination not inconsistent with the Supreme Court's determination.

(9) Section 74 of the County Court Act 1958 does not apply to a judgement or order of the County Court in proceedings under this Act or the Workers Compensation Act 1958.

37 In relation to the expression 'judgement or decision' in s 52(1) and (2), the word 'decision' is defined in s 5(3)(a) of the Act to include a reference to 'making ... or refusing or failing to make an order, award, decision or determination'.

38 Section 74(1) of the County Court Act confers a right of appeal from any judgment or order of the County Court to the Court of Appeal, any such appeal to be brought on notice served within fourteen days. But, pursuant to s 74(2D), an appeal from a judgment or order in an interlocutory application may only be brought with the leave of the Court of Appeal.

39 While these provisions were referred to in the ensuing discussion with the Court, counsel were not in a position to argue the question as to the nature of the appeal, that is whether it lay under s 52 or by leave under s 74(2D). After some discussion the Court ordered that:

(a) The application by summons for leave to appeal filed on 24 December 2008, together with the draft notice of appeal ..., should be treated as if it were a notice of intention to appeal and notice of appeal as required by s 52 of the Accident Compensation Act 1985.

(b) The application for leave to appeal is adjourned to the Court hearing the appeal.

These orders were not opposed. Indeed the first order was made on the helpful suggestion of counsel for the respondents as probably 'the right way for this dilemma to be resolved and the rights to be reserved'.

40 On 8 April 2009 the appellant filed a notice of appeal. The notice was endorsed as 'filed pursuant to Order of Court of Appeal made 20 March 2009'. In fact no such order had been made; rather, in the course of the hearing counsel for the appellant had adverted to filing a notice. The grounds of appeal stated in the notice contend, in summary, that the learned judge:

(b) Erred in ruling that the second medical panel had determined that any psychiatric injury suffered by the appellant was not a compensable injury. In particular, he wrongly found that the Medical Panel had -

(i) dealt with the factual matrix upon which the appellant's claim, as stated in the proposed amended claim, is based.

(ii) done so in its answers to the questions; or in its reasons for the answers to the questions.

(c) Alternatively, erred in taking into account an irrelevant consideration, namely whether a Medical Panel had already determined that any psychiatric injury suffered by the appellant was not a compensable injury, and in proceeding on the basis that the Medical Panel's answers dealt with the issue of whether the appellant had an Adjustment Disorder resulting from his continuing sense of injustice as a stressor.

(d) Erred in having regard to the reasons of the Medical Panel rather than the questions and answers thereto.

(e) Erred in proceeding on the basis that the reasons of the Medical Panel dealt with the issue of whether the appellant had an Adjustment Disorder resulting from his continuing sense of injustice as a stressor.

(f) Erred in confusing the pre-existing Personality Disorder referred to by the Medical Panel with the Adjustment Disorder sought to be alleged by the appellant.

(g) Erred in proceeding on the basis that if the Medical Panel's reasons had dealt with the issue of whether the appellant had an Adjustment Disorder resulting from his continuing sense of injustice as a stressor, and had formed a conclusion adverse to the appellant in that regard, that this was a sufficient reason to refuse the application to amend.

(h) Erred in that while the questions answered by the second Medical Panel and the proposed questions might be similar in form, they refer to different injuries or a different cause of the injuries and were thus not relevantly similar.

(i) Erred in failing to separately consider the application for leave to amend and the application to refer further questions to a Medical Panel.

41 Subsequently, in August 2009, the respondents filed an affidavit which deposed that a search of the County Court file in the proceeding disclosed that the summons seeking leave to appeal was not on the file. The issue to which this evidence related was whether the appellant had satisfied the requirement of service in s 52(2) of the Act; see below. The appellant responded with an answering affidavit that deposed that the summons and affidavit in support had been served on the County Court Registry on 24 December 2009, which service had been acknowledged by a stamped and dated receipt of the Registrar of the County Court.

42 In their written outline counsel for the appellant submitted that the consequence of the Court's orders on 20 March 2009 was that the appellant had brought an appeal as of right. This was because the first of those orders is a decision or declaration that:

(a) the appeal which the appellant sought leave to bring was an appeal to which s 52 applied,

(b) the summons for leave and draft notice of appeal satisfied the requirements of s 52(2) and (3),

(c) the matters referred to in the summons and draft notice of appeal raised questions of law within the meaning of s 52.

It was submitted that, there having been no appeal from the 20 March 2009 order, the order is res judicata; alternatively that the above matters were necessarily decided and there was an issue estoppel as to them. A number of authorities were referred to but it is not necessary to set them out.

43 The effect of this submission was that the appellant's right of appeal lay solely under s 52, and that the appeal was competent. In the alternative, however, counsel submitted that s 52(9) did not preclude the application of s 74 to a judgement, order or decision of the present type. That was because:

(a) The expression 'proceedings under this Act' in s 52(9) refers to proceedings for primary relief and not relief of a procedural nature under the Rules of the County Court.

(b) The expression 'judgment or order' in s 52(9) has the same meaning as 'judgment or decision' in s 52(1), and the former merely extracts from the operation of s 74 those matters in respect of which a right of appeal has (by s 52(1)) been restricted to a question of law raised in the proceeding below. Thus, if s 52(1) does not apply neither does s 52(9).

(c) If the refusal to give leave to amend is not a 'judgment or order' it is nonetheless a 'decision'.

(d) Section 52 should not be interpreted as denying a right of appeal from an interlocutory decision, in the absence of words that clearly state that intention.

44 On the other hand, in their outline, counsel for the respondents disputed that the 20 March 2009 orders had determined that this was an appeal pursuant to s 52. They contended that the nature of the appeal remained a live issue. To support this they submitted as follows.

45 First, pursuant to the orders, the summons and draft notice of appeal are to be treated as a draft notice of intention to appeal as required by s 52(2). However, on the material then available the Court could not have concluded that the requirements of s 52 had been met. In particular, there was no basis on which the Court could have concluded that there had been service on the County Court as required by s 52(2). In the absence of such service the appeal must be dismissed: Keon-Cohen v Victorian WorkCover Authority.[7]

46 In view of the evidence as to service on the County Court, which the respondents did not dispute, this submission has no substance. No point apart from service on the County Court was sought to be relied upon in support of this first submission.

47 Secondly, the respondents submitted that, while the relevant authority is not entirely clear, an appeal as of right under s 52 may lie only if the County Court has exclusive jurisdiction to hear the matter: Victorian WorkCover Authority v CE Heath Underwriting and Insurance (Australia) Pty Ltd.[8] It was then said that there was 'some authority' that the jurisdiction exercised by the County Court in this case is not exclusive, as to which counsel referred to s 43 of the Act and Logan v MMI Switzerland Workers Compensation (Vic) Ltd.[9]

48 There is no substance in this submission. Indeed, during the hearing counsel conceded, correctly, that the appellant's claim lay in the exclusive jurisdiction of the County Court: see s 43(2) of the Act.

49 Thirdly, it was said that it may be seriously doubted that the legislature intended that an appeal as of right should lie from an interlocutory ruling in a proceeding under the Act: Logan v MMI Switzerland Workers Compensation (Vic) Ltd;[10] see also Bahonko v Moorfields Community[11] although contra see Anglo-Italian Holdings Pty Ltd v Varallo.[12] An interlocutory ruling is not a judgment, nor is it a decision within the meaning of s 52, since it does not finally determine the rights between the parties.

50 Before dealing with this submission I refer to the respondents' submissions concerning the applicability of s 74. They were:

(a) No appeal lay pursuant to s 74 since s 52(9) provides that s 74 does not apply to a 'judgment or order' of the County Court in proceedings under the Act. The contrast in wording between s 52(1) and (9), referring to 'decision' and 'order' respectively indicates a legislative intention not to permit interlocutory appeals.

(b) If, however, s 74 is applicable, leave to appeal should be refused. The judge's decision was a discretionary interlocutory decision on a matter of practice or procedure. An appellate court should exercise a high level of caution in reviewing such a decision: Livingspring Pty Ltd v Kliger Partners,[13] and in the overall context of the principles governing leave stated in Niemann v Electronic Industries Ltd[14] and House v R.[15]

51 I now deal with the respondents' third submission concerning s 52. The conclusion that I reach also deals with the submissions concerning s 74.

52 The respondents' submission concentrated on the language and structure of s 52 as providing ground for considering that the section, including sub-s (9), is concerned with that which finally determines the parties' rights in a proceeding. This is found in the reference in sub-ss (1) and (2) to 'judgment or decision', and to 'determination' in sub-ss (3) and (5)-(8). In particular sub-ss (6) and (7) most clearly refer to a final determination and sub-s (8) may be understood accordingly.

53 In addition, the allowance in sub-s (3) of a period of six months in which to appeal is a very long time to allow for an interlocutory appeal. It would seem more appropriate that an appeal from an interlocutory order be brought within a limited period such as fourteen or twenty one days, and then by leave as would be the case under s 74(2D). A period of six months with no requirement for leave, and especially in the context of a worker's compensation case, may lead to unnecessary delay and expense in litigation such as is hardly to have been within the intention of Parliament.

54 It was doubtless considerations such as these that led Ashley J (in whose judgment Southwell and Nathan JJ agreed) in Logan to doubt, obiter, that s 52 applied to interlocutory orders. As against this, the word 'order' in its ordinary and natural meaning, and especially when used in distinction to 'judgment', includes an interlocutory order, unless in context it is to be read as being confined to an order on and by way of final determination of the parties' rights in the proceeding. This is reflected in Anglo-Italian Holdings in which the Court of Appeal considered a decision of a County Court judge on a review of a taxation of costs under an order made in a worker's compensation claim. It was submitted that as the decision was interlocutory leave to appeal was required under s 74(2D). In rejecting the submission Hollingworth AJA (Buchanan and Nettle JJA agreeing) stated that the proceeding, being concerned entirely with the respondent's claim for compensation under the Act, was within the County Court's exclusive jurisdiction and, accordingly, 'giving the words in s 52(9) their ordinary and natural meaning, leave is not required in this case'.[16] That is, the appeal lay under s 52, not s 74. A few years later, in Bahonko Nettle JA (Buchanan and Redlich JJA agreeing) noted that in Anglo-Italian Holdings Hollingworth AJA was careful to remark that the proceeding in Anglo-Italian Holdings was limited to a claim for compensation under the Act. In obiter Nettle JA left open the question whether s 52 amounted to an exclusive code for appeals raising questions of law arising in a proceeding in which relief is sought under the Act. In so stating Nettle JA did not express a view that departed from the statement in Anglo-Italian Holdings but rather left open for the future the question whether in different circumstances the same conclusion will apply.

55 In my view there is no relevant distinction between this case and Anglo-Italian Holdings. The distinction between a judgment that finally determines rights in the proceeding and an order dealing with a point raised in the course of the proceeding such as on a matter of practice or procedure, is so fundamental that the expression 'judgment or order' is to be understood, in its ordinary and natural meaning, as referring to judgments and orders in those senses. This understanding is consistent with, indeed supported by, the fact that the word 'decision' in s 52(1) and (2) includes making or refusing to make 'an order'. I agree, with respect, with the interpretation of s 52 accepted by the Court in Anglo-Italian Holdings. This is not to say that s 52 is free of any difficulty in interpretation, as has been acknowledged from time to time, but the ordinary and natural meaning of the words, as they would apply in the circumstances of this case, is clear. I reject the submission that the expression 'judgment or order' in s 52(9) is to be read as referring only to judgments or decisions that finally determine the rights of parties in a proceeding under the Act. I find no necessary intendment in s 52 to that effect, or to an interpretation that would preclude an interlocutory appeal altogether or allow such an appeal by leave under s 74. In short the appellant had a right of appeal under s 52 which in the circumstances has been exercised.

56 The decision whether to grant the appellant leave to amend was a discretionary decision on a matter of practice and procedure. That being so, the appeal is to be determined on the approach stated in House v R[17] and, because it concerns only a matter of practice and procedure, with caution[18]. In short, the appellant is required to establish that the exercise of discretion has miscarried. It is not enough that the appellate court would have decided differently if in the position of the primary judge. It must be shown that the judge acted upon a wrong principle, took irrelevant matters into account, made a mistake as to the facts, failed to take a material consideration into account, or that the decision is otherwise so unreasonable or unjust that it may be inferred that in some way there has been a failure properly to exercise the discretion. In any such situation the appellate court may exercise its own discretion in substitution for that of the primary judge.

57 In my view the judge erred in his exercise of discretion. In particular, he should not have heard and determined the applications to amend and refer further questions while the proceedings in the Supreme Court were pending. The appropriate time at which to have considered the matters of amendment and the reference of further questions was following, and in the light of, the decisions in the Supreme Court proceedings. Application to amend could then be made, as the appellant might be advised. Notwithstanding that the discretion miscarried the appeal should be dismissed. I now explain my reasons for this conclusion.

58 The primary application before the judge was the application to amend. The application for an order that further questions be referred to a Medical Panel was dependent on the amendment. Accordingly, in the first instance the focus was, and should have been, on the application to amend. It is important to bear in mind that an application to amend is no more than that. It is not the trial of the proceeding or of a preliminary issue raised in the proceeding. It is an application the purpose of which is to ensure that the real questions in controversy between the parties are raised for determination in the proceeding, as provided in Order 36.01 of the Rules of the County Court. That being the purpose it is axiomatic as Dawson J stated in The Commonwealth of Australia v Verwayen[19] that:

In granting leave to amend, a court is concerned with the raising of issues and not with their merit. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial.

59 Experience indicates the overwhelming commonsense in thus dealing with applications to amend. But here the judge took a different course. He considered the second application, to refer questions, and on the basis of a merits consideration, which he determined adversely to the appellant, refused the primary application to amend.

60 Regrettably, each counsel pressed the judge to hear and determine the application notwithstanding that the Medical Panel's opinion might be set aside in whole or in part in the pending Supreme Court proceedings. That approach was compounded by the parties arguing, and inducing the judge to deal with, the merits as to whether the impugned opinion of the second Medical Panel had considered and in effect opined as to the proposed added injury. That is, the judge permitted debate as to whether the amendment was futile, in the sense of being untenable, and ruled upon the submission as providing the basis upon which to determine whether to grant leave to amend. The vice in proceeding as the judge did was not merely in hearing and ruling on the merits of the respondents' argument, but in determining the application at all. It was wholly erroneous as a matter of discretion to do so when that which lay at the centre of the argument on the application was subject to review in the proceedings pending in the Supreme Court. It was not a matter of whether pending review the opinion was or was not binding, as to which it might be noted that the appellant's counsel made the erroneous submission that in effect the judge could disregard the opinion by reason of the pending proceedings. The fact is that the opinion stood until it was set aside. At the very least it was uncertain as to whether the opinion would wholly or in part be set aside. Moreover, in the review proceedings the Supreme Court would have to consider the meaning and interpretation of the opinion. In that situation it was, with respect, somewhat extraordinary for the judge to hear and determine the matter and conclude on the interpretation and operation of the opinion. While the argument before the judge was not the same argument that would be made upon the hearing of the Supreme Court proceedings, it yet covered similar grounds and there was overlap. Wisdom dictated that consideration of the opinion, including its proper understanding and effect, should first take place in the pending Supreme Court proceedings.

61 In my view the judge erred at several levels. His first consideration ought to have been whether to stand over consideration of the application to amend until determination of the Supreme Court proceedings. For those proceedings would have resolved whether the opinion of the second Medical Panel stood or not. If it did not stand, as to which the appellant's counsel expressed confidence, any further application to amend would be in the context of the orders made by the Supreme Court and the situation as it obtained if and when the matter returned to the County Court. It must have been considered a possibility, in the event of either review proceeding succeeding, that the Supreme Court might not remit the questions to a further Medical Panel on the basis that it was appropriate in the circumstances for the case to be brought on again in the County Court for consideration of questions as to amendment and the formulation of further questions. However, in his reasons the judge failed to consider whether it was appropriate in the circumstances, as a matter of discretion, to determine the applications ahead of the determination of the Supreme Court proceedings.

62 Furthermore, he misapprehended the proper approach to be taken to an application to amend. He compounded that error by entering upon a consideration of the ultimate merits of the respondents' submission which constituted their 'defence' to the proposed amendment. Moreover, the ultimate merits were arguable in my opinion, and were not such as were appropriate to be dismissed as untenable on a mere application to amend.

63 What I have said is sufficient to indicate that all relevant considerations indicated that the application to amend and the further application to refer further questions should not have been entertained and determined as they were. Unfortunately, however, the judge failed to take account of relevant considerations with the consequence that his exercise of discretion miscarried.

64 The question remains as to what should now be done. The order refusing leave to amend could be set aside. But, consistently with these reasons, there is no point in remitting the matter to the County Court for rehearing. The matter could not be heard until the determination of the Supreme Court proceedings which only now can be fixed for hearing, and it will be some time before they are heard and determined. Then, when those proceedings are determined the appellant can make further application in the future as he may be advised in the light of the then existing circumstances.

65 In my view, in the circumstances the appeal should be dismissed with no further order save as to costs on which I would hear counsel.

[1] Mr Clarke is described as the appellant because he was not required to obtain leave to appeal: see [54]-[55] below.

[2] [2001] VSCA 53; (2001) 3 VR 136.

[4] See Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 643.

[5] See State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 154.

[6] [1995] VICSC 209; [1996] 1 VR 635, 643.

[7] (2002) 4 VR 367, 371.

[8] [1998] 2 VR 427.

[9] (Unreported, Supreme Court of Victoria, Full Court, 7 October 1994).

[11] [2008] VSCA 6, [16].

[12] [2005] VSCA 257; (2005) 12 VR 257, 259-60.

[13] [2008] VSCA 93, [6]-[8].

[14] [1978] VicRp 44; [1978] VR 431.

[15] [1936] HCA 40; (1936) 55 CLR 499.

[16] [2005] VSCA 257; (2005) 12 VR 257, 260.

[17] [1936] HCA 40; (1936) 55 CLR 499, 505.

[18] See Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93, [7].