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[2004] VSC 491
Supreme Court of Victoria
2004-12-01
KAYE J.
Original judgment source is linked above.
[2004] VSC 491
ADMINISTRATIVE LAW - Review of a decision of Medical Panel - Application for discovery of notes of Medical Panel - Accident Compensation Act 1985 s.48(2), 65(3).
1. What is the plaintiff's medical condition relevant to the injury alleged to be diffuse pulmonary fibrosis together with emphysema?
2. Was the plaintiff's employment in fact, or could it possible have been, a significant contributing factor to the injury?
"He (the worker) worked for a variety of companies over the next 20 years, performing metal polishing work, often in environments where he would find himself coated in dust from the abrasives that were used in the polishing process. His last position in the workforce was when he was employed by Precision Plating where he had worked from 1991 through to 2000. The worker specifically commented that the dust extraction system at his last position in the workforce was of a high standard, unlike the environment in previous positions in the workforce."
"The panel considers it is possible that there may be a contribution to the development of interstitial fibrosis as a consequence of exposure to dust and in particular cobalt dust and possibly asbestos, but that this exposure would have occurred prior to his employment with Precision Plating."
"(b) The tribunal erred in law by taking into account matters it was not entitled to take into account, namely the incorrect work history allegedly taken from the appellant (plaintiff) at medical examinations taken by them, see
(i) the appellant's s.65(6A) statement dated 5 February 2004;
(ii) paragraphs 19 to 22 of the appellant's affidavit."
(1) There was no occasion to seek discovery, as ground 3(b) does not amount to an allegation of error of law on the face of the record.
(2) There would be no utility in ordering discovery. Any document obtained on discovery could not be admitted in evidence in these proceedings because of the operation of s.65(3) of the Accident Compensation Act 1985.
(3) Any order for discovery would offend s.48(2) of the Accident Compensation Act, since to require an affidavit of documents would be to compel the panel to give evidence.
(4) As a matter of discretion the application by the fourth and fifth defendants was made late, and in disregard of an order of Byrne J of 15 June 2004. If the appeal were to succeed the hearing of the substantive proceeding would need to be adjourned.
(5) As a matter of policy the order should not be made. The intent and scheme of the Accident Compensation Act is to ensure confidentiality of information imparted to the medical panel. Further, the order sought would encourage the panel to enter into the fray, contrary to the strictures of the High Court in Hardiman's case (above).
"(3) Information given to a Panel cannot be used in any civil or criminal proceedings in any court or tribunal, other than proceedings -
(a) before the County Court, the Magistrates' Court or the Tribunal under this Act or the Workers Compensation Act 1958;
(b) for an offence against this Act or the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958;
(c) for an offence against the Crimes Act 1958 which arises in connection with a claim for compensation under this Act."
" ... it is objected that it is not clearly shown that the document would be evidence for the plaintiffs. But the fact whether a document would be evidence or not for the party claiming inspection is not a test of the right to it. Everything which will throw light on the case is prima facie subject to inspection."
"A member of a Medical Panel is competent to give evidence as to matters in a certificate or report given by the Medical Panel of which he or she was a member, but the member may not be compelled to give any such evidence."
(a) Section 48(2) refers to a certificate or report. The evidence of the members of the panel would be in respect of the information which the plaintiff told them and which is recorded in the panel's reasons. The reasons provided by the panel are separate and distinct to the certificate or report of the panel.
(b) Section 48(2) should be given a confined construction so as not to apply to proceedings for judicial review of the decisions of the Medical Panel.
[1] [1980] HCA 13; (1980) 144 CLR 13 at 35.
[2] [1995] HCA 58; (1994) 184 CLR 163, especially at 176 - 178.
[3] [1999] VSCA 37; (1999) 2 VR 203 at 210 - 215 (per Phillips JA).
[4] (1875) 1 QBD 138 at 141, per Blackburn J.
[6] [1999] HCA 67; (1999) 201 CLR 49, especially at 59 (per Gleeson CJ, Gaudron and Gummow JJ).
[7] [1908] HCA 63; (1908) 7 CLR 277 at 304.
[9] [1932] HCA 10; (1932) 47 CLR 121 at 134 (per Dixon J).
[10] See D.L. Bailey and E.K. Evans_, Discovery and Interrogatories Australia_ (Butterworths 1997) para 1005; Bray Law of Discovery and Digest (Reeves and Turner 1885) p.1.
Di Genova
Lefkovits [2004] VSC 491
(1980) 144 CLR 13
(1994) 184 CLR 163
(1999) 2 VR 203
(1991) 30 FCR 1
(1999) 201 CLR 49
(1908) 7 CLR 277
(1996) 1 VR 635
(1932) 47 CLR 121
(2001) 3 VR 136