Freisleben v Nisselle

6. Freisleben was employed by Holden Motor Overseas Corporation ("Holden") for the bulk of the period from March 1971 to 31 May 1998 as a foundry operator. He made claims for compensation under the Act for alleged injuries to his legs suffered over the course of his employment. Thus, the injuries are alleged to have been suffered both before and after 1992. A particular complaint is of a metal fragment penetrating his right leg on or about 2 March 1994.

9. By a series of decisions, the insurer in and between 22 September 1997 and 29 June 1998, terminated weekly payments of compensation (section 93B of the Act), rejected a lump sum claim and gave notice of its decision to cease liability for payment of medical and like expenses. Conciliation between the relevant parties took place unsuccessfully from the point of view of Freisleben. No medical questions were referred to a medical panel during the conciliation process.

12. On 3 September 1998 Freisleben issued proceedings in the Magistrates' Court seeking weekly payments of compensation from 27 October 1997, a lump sum pursuant to s. 98 and 98A for injuries to the legs and payment of reasonable medical and like expenses. On 4 November 1998 the defendant to the Magistrates' Court proceedings (Holden) filed its defence. On 25 November 1998 at a mention date in the Magistrates' Court, a date for the hearing of the proceedings was fixed for 18 February 1999. In late December 1998, the solicitors for Holden advised the plaintiff's solicitors of an intention to refer medical questions to a medical panel and ask for the hearing to be adjourned. Correspondence then ensued. The matter was not reached on 18 February 1999 and the case was re-fixed for hearing on 12 March 1999. It seems that an examination by a medical panel was scheduled for 22 February 1999 and that Freisleben did not attend. On about 22 February 1999, the convenor of the medical panel wrote to the plaintiff's solicitors advising that the medical panel may form an opinion without examination of the plaintiff if he did not attend the medical examination. Shortly afterwards, Freisleben commenced these proceedings seeking the above relief.

16. Mr Johns was employed by Bayside between 1973 and December 1997 as a gardener and cleaner. He made a claim for lump sum compensation pursuant to s. 98 and s. 98A of the Act for impairment of his back and loss of use of his legs. The claim was based on injury arising out of or in the course of and as a result of the nature of his employment and concerned, in addition, particular incidents that occurred in 1986 and 1994. On 31 October 1997 Bayside's then authorised insurer gave Johns notice of a decision to accept the lump sum claim in respect of his back but to reject the lump sum claim in respect of his legs. Conciliation occurred in respect of the latter decision. On 20 April 1998 a conciliation outcome certificate was issued regarding that decision. No medical questions were referred to a medical panel during the conciliation process. On 1 July 1998 Johns issued proceedings in the County Court for lump sum compensation for his back and legs. On 25 August 1998 Bayside lodged its defence. A directions hearing took place in the County Court before his Honour Judge Rendit on 16 November 1998 at which a date for hearing the proceeding was fixed on 22 March 1999 in the WorkCover List. On about 7 January 1999, Bayside solicitors wrote to the plaintiff's solicitors advising that it was referring the matter to the medical panel. A list of questions was attached. On about the same day, Johns' solicitors wrote to the convenor putting their argument that the purported referral was inappropriate with legal proceedings pending. On 21 January 1999 the convenor advised the parties that the purported referral did not "engage the jurisdiction" of the panel because of the content of the proposed questions. The view of the convenor was that the critical questions were not "medical questions" as defined by s. 5(1) of the Act. Further correspondence ensued. A panel was convened. Johns sought a deferral because of the legal proceedings. The convenor wrote to the plaintiff's solicitors on 23 February 1999 advising that the insurer objected to any deferral of the reference and that the panel would continue its consideration. The matter was listed for mention in the County Court WorkCover List on 18 May 1999.

20. The plaintiffs in these proceedings submitted that the action of Bayside and Holden constitute an abuse of process or a contempt of court. They argued that both matters are before courts and that the question of referral of medical panels in that situation is controlled by s. 45 of the Act. Section 45(1), in particular, provides as follows:

"45. Medical questions (1) Where the County Court exercises jurisdiction under this Part, 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 refer that medical question or those medical questions - to a Medical Panel for an opinion under this division. (2) If the County Court refers a medical question to the Panel, that court must give each party to the proceedings, copies of all documents in the possession of the court relating to the medical questions. ... (4) If the County Court refers a medical question to a Medical Panel, the court must give a copy of the Panel's opinion to the worker and to the employer, Authority, authorised insurer, or self insurer and may give a copy of a party to the proceedings."

24. Counsel also referred to s. 68(4) which provides that:

"(4) For the purpose of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

28. The plaintiffs submitted that by s. 39 of the Act, the County Court was given exclusive jurisdiction to enquire into and determine any question or matter arising under the Act after commencement of s. 10 of the WorkCover Act 1992. They submitted that s. 45 dealt with aspects of the powers of the County Court in the exercise of that jurisdiction. As for the Magistrates' Court it has a like jurisdiction conferred upon it by s. 43 of the Accident Compensation Act.

31. They submitted that the jurisdictions of the County Court or the Magistrates' Court once proceedings had been issued, defended and set down for hearing were not subject to interference by a party in the absence of a clear statement of intention expressed in the legislation relied upon to authorise such actions. They submitted that the Act intended that when proceedings had been issued the question of the reference of medical questions to the medical panels was something to be determined pursuant to s. 45 of the Act. They cited Dixon, J. in Magrath v Goldsborough Mort Co Ltd [1932] HCA 10; (1932) 47 CLR 121 at 134 where his Honour said:

"The appellant contends that a writ of prohibition will not lie to the Deputy Commissioner. This contention is founded upon the view that the proceedings and awards of the Deputy Commissioner must have the same immunity from prohibition as those of the Commission . . . The general rule is that statutes are not to be interpreted as depriving superior courts of power to prevent an unauthorised assumption of jurisdiction unless an intention to do so appears clearly and unmistakably."

35. Also cited was Pearce and Geddes, Statutory Interpretation in Australia, 4th Ed., at p.146. It was put that the action of referring medical questions to the medical panel while court proceedings were on foot concerning the same questions constituted an abuse and a contempt of court, such action being unauthorised by the legislation.

38. In response the defendants submitted that ultimately the question is one of power. If there was power to make the referrals, there could be no abuse of process or contempt of court. If there was no power, then the references to the panel were not lawful and they could not proceed in any event.

41. As to the source of the authority, the defendants relied upon s. 67 of the Act. It provides:

"67. Examination by a Medical Panel (1) The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment before, on or after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992 referred by a Conciliation Officer or the County Court or the Authority, authorised insurer or a self-insurer. (1A) A Medical Panel must give its opinion on a medical question in accordance with this Division. (1B) This Division as amended by section 21 of the Accident Compensation (Miscellaneous Amendment) Act 1997 applies to and in respect of the opinion of a Medical Panel on or after the commencement of that section. (2) A Conciliation Officer, the County Court, the Authority, authorised insurer or a self-insurer may, at any time or from time to time, require any worker - (a) who claims compensation under this Act; or (b) who is in receipt of weekly payments of compensation under this Act - to submit himself or herself for examination by a Medical Panel on a date and at a place arranged by the Convenor of Medical Panels."

45. It was put that the medical panel provisions, in their "modern" form were included in the 1992 amendments. The amendments included provisions which conferred power to refer medical questions to the medical panel. Reference has already been made to s. 45, empowering the court to refer such questions. A conciliation officer was empowered by s. 56(5) and the AAT by s. 99AB. There was then, however, no express provision that provided for the WorkCover Authority or a self insurer to make such a reference. Subsequently, provisions appeared covering the Authority in s. 104 in Act 50 of 1994, and in s. 104B(9) and s. 93CD(4)(b) in Act No. 107 of 1997. It was conceded that in none of those amendments was any express provision made empowering a self insurer or, subsequently, the authorised insurer to refer medical questions to medical panels. The defendants argued that, therefore, s. 67 must be seen to be the section that grants the power to the insurers to refer medical questions to a medical panel. Since 1992 that is the only place where such a power is acknowledged.

48. Counsel submitted further that the parliamentary debates (Legislative Assembly 12 November 1997) referred to the objectives of the 1997 Bill (Act 107/1997) as replacing the then system. The debates referred to the fact that medical opinions for medical panels at that time were binding only when a court had referred them and to the desire to have a new system where the opinions would be final and conclusive "irrespective of who referred the medical question" (at p. 1080). Counsel submitted that this change was effected by the above mentioned s. 68(4) which obliged a court to adopt and apply an opinion "irrespective of who referred the medical question... or when the medical question was referred". This Act also amended s. 45 to require the court to refer to a medical panel the question a party requested it to refer.

51. Counsel summarised the argument by stating that s. 67 of the Act conferred power upon the Authority and self insurers to refer medical questions independently of other powers conferred by the Act on other persons and bodies to refer such questions. Since Act No 50 of 1993, authorised insurers have also had that power. Counsel argued that the power does not require court proceedings to have been issued and the Act does not require supervision or control by the courts. They argued that there is nothing in the Act which would support an argument that the power given by s. 67 in some way disappears if the court proceedings are in fact commenced. They submitted that there is nothing in the Act, no common law principle and no rule of procedure that would disentitle the authorised insurer from exercising the power conferred by s. 67 to refer a medical question simply because the court proceedings had commenced. They argued that s. 68 (4) shows that the court must accept the opinions of medical panels on medical questions regardless of who referred those questions to the panel.

55. In Austin v Amcor Ltd (unreported, 3 April 1998) Byrne, J. considered the operation of s. 45 of the Act. Section 45(1)(b) was in a different form, it provided:

"(b) If a party to the proceeding so request, the court must refer a medical question to a Medical Panel for an opinion."

His Honour, after considering the unreported judgments of Judge Williams in Green v VWA (16 November 1995) and Judge Just in Mihalec v ACC (5 February 1993) referred to Judge Williams' comment that the court might refuse a request for a reference where that request that it would be an abuse of process - for example, where the issue before the court raised no medical question. Byrne J went on to say:

"Such qualifications as may exist upon the obligation of the court to accede to a request for referral, all stem from the power and the duty of the court to control its own procedures so as to ensure that justice is done to the parties. It would be very surprising if parliament, without the clearest statement of this intention, intended to remove from the court the power to use and mould the procedures available to it to achieve this objective and to leave these matters to the requesting parties. No such statement appears in s.45."

61. After referring to the provisions of s. 45 his Honour went on to say:

"As a matter of construction there are two steps involved here. First, is the request of a party for the court to exercise its jurisdiction under s. 45(1); the second is a reference by the court of a medical question to a medical panel. Subject possibly to the case of abuse of process, the obligation of the court is to refer a medical question. It is not to refer the very medical question which the party requests. Neither is it to refer to the medical panel every question before the court which falls within the statutory definition. It is consistent with this provision that it remains with the court to determine not only the appropriate time for the reference, but also what medical questions should be referred and its terms."

65. There appears to me to be much force in that analysis. Once proceedings have been issued in the County Court or the Magistrates' Court, it would be expected except where clearly stated to the contrary, that the court would exercise control over the management of the dispute from that moment onwards. The purpose of the legislation in providing for the referral out of a medical question is to facilitate a cost effective resolution of the dispute by having panels of experts apply their minds to particular questions. The purpose of the legislation would be defeated if the question on which the opinion is sought is not, for example, a question in dispute in the proceedings or not in any way relevant to the proceedings. Experience shows that it is difficult to ensure that questions are appropriately formulated. It may be also that the referral of the medical question would be assisted by the receipt of evidence by the court.

68. Section 45 was amended in 1997. I was not referred to any passage in Hansard explaining the changes to s. 45. The Second Reading Speech in the Legislative Assembly (Hansard, 12 November 1997, 1072 at 1080) stated:

"The government considers that doctors not lawyers are the best qualified people to offer medical opinion. Currently the opinion of a medical panel on a medical question is binding only when a court has referred a medical question to the panel. This gives rise to `duelling experts' which becomes an obstacle to the resolution of disputes, leads to the escalation and drives up costs unnecessarily. Therefore, and in line with the practice in other jurisdictions, the Act will require that the opinion of a medical panel on a medical question be final and conclusive irrespective of who referred the medical question and the opinion must be adopted by the courts as the answer to that question."

72. Thus, the reason for s. 68(4) is given but no light shed on the purpose behind the new s. 45(1)(b).

75. In HIH Winterthur Workers Compensation (Vic) Ltd v Greves (unreported, 2 October 1998 applied by Judge Rendit in Stewart v G.U.D. Manufacturing Co. Pty Ltd, (unreported 4 May 1989) ), Hedigan, J. had to consider the present s.45 (1)(b) and, in particular, argument that the amendment to s. 45 effected by Act 107 of 1997 further limited the power of the court with the result that the court was obliged to refer "that medical question or those medical questions" to a medical panel for opinion. Counsel in that case contended that the question concerned was a relevant question and the Magistrate had been obliged to refer it to a medical panel. The complaint was that instead the Magistrate had determined the question for himself.

78. Hedigan, J. referred to the limits under which he was operating because the matter had become before him as an appeal from the Magistrates' Court. He indicated that he did not think that the vehicle was an appropriate one for the expression of wide opinions although he commented that there was

"little with which I would disagree of the views expressed by Byrne, J. [in Austin v Amcor Ltd] although the issue of whether or not the court has to refer the precise medical question which a party requests would now have to be determined having regard to the amendments effected by the 1997 Act. Broadly speaking, so long as the substance of the issue being referred was articulated by the question, minor amendments would be permissible."

His Honour commented that the Second Reading Speech made no specific reference to tightening up the s. 45 procedures. He said that the argument advanced before him was that the use of the language in the amendment

"meant that the medical question put up must be referred so long as it did not constitute an abuse of process."

He went on to say that there was nothing in the Act that would indicate an intention to strip the court "of all control and input". He also said:

"It would not be in the interests of any party or the court, including appellate courts, that any question devised by a party must be automatically be sent off to a medical panel. Reference must come from the court. It is not referred from the party direct. It is the court's duty to manage the exercise of its jurisdiction. Jurisdiction has not been diluted. I would not disagree that a question that is addressed to a wholly irrelevant matter or issue, one which was so peripherally connected with the medical, legal issues that it could not be reasonably thought that the answer to it could aid in any way the orderly and just disposition of the claim, might be regarded as an abuse of process. Counsel for the insurer's submission appeared to accept this. It must still be a question connected with the exercise of jurisdiction, that is, connected with an application within the jurisdiction in a particular case... In order to be a medical question within the meaning of the Act under s. 45, it must be a question connected with the exercise by the court of the jurisdiction under that part of the Act. If the court concluded that the answer to the question requested was irrelevant to the exercise of its jurisdiction in the disposition of the case, there must be a powerful argument to the effect that the question is not a medical question within the meaning of the Act."

86. I endorse these remarks. It cannot be that Parliament intended that a court should be obliged to refer a question to a medical panel where that question can have no bearing on the outcome of the proceeding before the court. That would defeat the underlying purpose of the cost effective disposal of claims. I would also have thought that, however the question is described by the party seeking to have the question referred, the court must retain control, in the absence of clear provisions, over the precise formulation of the question to ensure both its relevance and its compliance with the Act as a medical question and, thus, ensure the cost effective disposal of cases.

89. In considering the case before him, Hedigan J went on to criticise the situation that had developed in the Magistrates' Court in that case, where the magistrate, in effect, heard all the evidence before determining whether to refer the question stating that in so doing the Act's requirements were defeated. His Honour commented:

"Without attempting to define the boundaries of the court's exercise of power to mould the referral of a question (that is, with regard to the matters already referred to by me), it is not to be doubted that once a s. 45 request is made, the court may not lawfully hear all of the evidence and answer the question for itself. It would be rare that the court would find it necessary to hear much evidence at all in order to make the referral. It would ordinarily be self-evident, once the matrix of facts have been explained and understood from the written material, whether the question was such that it was material and relevant that the answer be obtained to enable the court to exercise its conferred jurisdiction."

93. I again endorse his Honour's remarks. As with the exercise of all powers, errors can be made. Provided the powers of the courts are properly exercised, however, the purposes of s.45 will be advanced not hindered. The exercise of those powers in dealing with a s.45 application will often, however, be difficult.

97. While the present applications require consideration of s.45 of the Act, they pose a different question; namely, whether the authorised insurer or self-insurer may refer a medical question to a medical panel when it is a party to proceedings before the County Court or Magistrates' Court without referring the question to the court that happens to be seized of the matter. I agree with counsel for the defendants that ultimately the answer to the question posed is to be found by an analysis of the power, if any, conferred upon the authorised insurer or self-insurer to refer questions to medical panels. It is not necessary to determine whether in the absence of such power, such referrals would amount to an abuse of process or contempt of court.

100. As noted above the defendants submitted that the power is to be found in s. 67(1) and (2). They submitted that power conferred is one to refer a medical question at any time. No limitation was conceded - thus it is a power that could be exercised, on the defendants' argument, even though an insurer had asked a court to refer a question and the court had properly refused to do so.

103. Several comments may be made about the defendants' argument. The first is that neither sub-section expressly confers a power to refer questions to a medical panel. Section 67(1) assumes that such a power exists. Section 67(2) authorises the Authorised Insurer or self-insurer "at any time or from time to time" to require a worker to submit himself or herself for examination by a medical panel on a date and at a place arranged by the convenor of medical panels. Thus, it expressly confers a power but it is a power to require an applicant to submit to medical examination by a medical panel not a power to refer questions to a medical panel. Rather it assumes a power to refer questions to a medical panel for opinion and confers power to compel a person to submit to a medical examination presumably for the purpose of obtaining an opinion from the panel.

106. Reliance was placed by the defendants on the words "at any time or from time to time" in s. 67(2) as indicating that the power to require a medical examination can be exercised at any time and, therefore, can be required by the Authorised Insurer or self-insurer even though the claim is before the court. Assuming that to be correct, the section does not authorise the referral of questions at any time. In my view also the power contained in sub-s. (2), is a power that is subsidiary to any power to refer questions and may be invoked, for example when a medical question has been referred by an Authorised Insurer or self-insurer to a medical panel. Thus, "at any time" during such reference, a worker may be compelled to submit to a medical examination by the panel.

109. The defendants' are forced to argue that the power in the authorised insurer or self-insurer to refer medical question to medical panels is to be implied from s.67. There is a well established principle of statutory interpretation that a power conferred by parliament carries with it the power necessary for the performance or execution of that power - ubi aliquid conceditur, conceditur etiam id sine quo res ipsa esse non potest Thus, it has been held that the conferral of a power to extend time for compliance with a bankruptcy notice where an application has been filed to set that notice aside carried with it the power to set the notice aside (re Sterling [1980] FCA 61; (1980) 30 ALR 77 at 83 and the cases there cited; cited in Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1, 14; Alice Springs v Mpweteyerre Corporation (1997) 115 NTR 25, 35). Necessity would appear to be the basis for the implication. An example of the importance of that principle is to be found in the case of Doyle v Falconer (1866) LR 1 P.C. 328. That case was an appeal to the Privy Council. It concerned the question whether the Legislative Assembly of the Island of Dominica which had been constituted by Royal Proclamation had the power to punish members for contempt. No express power had been conferred for that purpose. The argument was put that such a power was indispensable to the existence of the Legislative Assembly. The Judicial Committee held that it was not and declined to imply the power. It held:

"It is necessary to distinguish between a power to punish for a contempt and a power to remove any obstruction offered to the deliberations of a legislative body, which power is necessary for self-preservation... the right to remove for self-security is one thing, the right to inflict punishment is another. The former is all that is warranted by the legal maxim which has been cited, but the latter is not its legitimate consequence."

113. I assume for present purposes that the principle can be applied in this case. In particular, I assume that it is not confined to persons that might be described as public bodies but extends to persons such as authorised insurers or self-insurers under the Act. (See, also, Zuijs v Worth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 574; Johns v Connor [1992] FCA 193; (1992) 107 ALR 465 at 473; Dunkel v DCT (NSW) (1991) 99 ALR 776 at 780; and Australian Securities Commission v Bell [1991] FCA 565; (1991) 104 ALR 125 at 137.) I also assume that the principle applies where parliament expressly confers powers on one body (here the panels) which are needed only if another body also has the powers that are contended for by it. I note, in the present case, however, that it is not necessary to imply the power in the insurers to enable the panels to have questions to consider; for references could still come to them from conciliators or the County or Magistrates Courts.

116. Accepting that the defendants, to support the assertion of the power claimed, must establish the necessity for such a power, the question to be asked is whether it is necessary to imply a power in the authorised insurer or self-insurer to refer medical questions to the medical panel where a claim for compensation is issued in the County Court or Magistrates Court. The answer appears to me to be plain. It is not necessary to imply such a power when an express power is conferred by s. 45 to ask the County Court or Magistrates' Court to refer a question and the court is obliged to refer the question to a panel.

119. There are other considerations that weigh heavily against the implication of such a power.

122. The defendants' argument, in my view, is a remarkable one. Not only can it not be shown to be necessary to imply such a power, the argument for the implied power, if correct, involves the proposition that an implied power should override an express power. It also renders the s. 45 procedure superfluous for one side of any dispute that goes to court for resolution.

125. The argument also involves the assumption that Parliament impliedly intended that one party in litigation before a court should have the right to bypass the court and have questions, which are properly before the court, determined by another body without the opposing party having any say in the matter. Thus having expressly enabled the dispute to be resolved in accordance with natural justice, Parliament, it is argued, introduced a statutory denial of natural justice by implication. The argument is even more remarkable when one considers that the court and the opposing party must accept the opinion and act upon it.

128. In addition, all parties in civil litigation are generally subject to the same rules and treated and controlled equally by and in accordance with those rules by the courts. This assists in achieving legal equality, an aspect of the rule of law. The contention for the defendants, however, involves the proposition that Parliament has conferred by implication a power which, to plagiarise George Orwell, would make one party "more equal than others". Thus, it is argued, Parliament has by implication granted a power at odds with the rule of law.

131. Parliament, of course, states the law and can, if it wishes, deny natural justice and introduce inequalities into the operation of the law. It has done so on occasions. That is its prerogative. But a clear expression of parliamentary intention to imply such powers is required, in my view, for that to be achieved. This it did not give.

135. For the above reasons, I am satisfied, that the attempted referral to the medical panels was not authorised by the Act. I will invite counsel to make further submissions about the appropriate form of orders.