Galea v TAC [2000] VCAT 446

For the Applicant: Mr Schulze of Maurice Blackburn Cashman

1. This is a directions hearing brought on urgently at the request of the respondent Transport Accident Commission. Mr Galea seeks a review of the Commission's determination as to his permanent impairment.

2. The respondent Commission requested that Mr Galea attend an assessment by Mr Lugg, an orthopaedic surgeon which was fixed, initially, for 16 February, that is tomorrow, at 11.00 a.m. That appointment has now been brought forward to 9.15 a.m. as a result of surgical commitments in Geelong which Mr Lugg has undertaken.

3. Independently of that issue, Mr Galea's solicitors wrote a letter dated the 13th of February 2000 which the calendar tells us is a Sunday, which states as follows:

"We refer to your request to have the applicant examined by Mr Lugg. We confirm Mr Brearley examined the applicant on behalf of the respondent on 11 January 1999 and conducted an assessment pursuant to Chapter 1 of the AMA Guides. We understand Mr Lugg is an orthopaedic surgeon. We confirm you are allowed only one orthopaedic assessment for the purposes of this application for review. In the absence of exceptional circumstances any additional such assessments constitute doctor shopping. Accordingly we advise our client will not be attending the appointment you have arranged with Mr Lugg."

4. Mr Ryan of TAC Law says that this statement of position by the applicant's solicitors first became known to him today and it was for that reason that he brought this application on as a matter of urgency before me this afternoon.

5. Mr Schulze who appears on behalf of the applicant, opposes the order which the Commission seeks. That order being that Mr Galea is required to attend the assessment before Mr Lugg. He says first, as the letter which I have quoted states, that a general surgeon, Mr Brearley has already conducted an assessment under Chapter 1 of the AMA Guides and that assessment was the basis upon which the Commission made its own assessment. Mr Schulze says that enquiries of Mr Brearley's rooms indicate that he would be available to conduct a re-examination and update of the assessment which he made over 12 months ago. In those circumstances, says Mr Schulze, as did the letter, to introduce a further orthopaedic assessment by Mr Lugg would amount to "doctor shopping" and be something which the Tribunal ought not to countenance. He also referred me to a number of rulings given by other members of the Tribunal. In particular a matter of Phillipou v Transport Accident Commission a ruling given by Deputy President Galvin and he says rulings to similar affect by other members, Deputy President Coghlan and Presiding Member Davis. In all of those matters he says the Tribunal concluded that it did not have power to compel a TAC applicant to submit to a medical examination.

6. Further, Mr Schulze says that his client is now resident in Lakes Entrance and travel from Lakes Entrance to a medical assessment in Melbourne would be both burdensome and expensive for him. Mr Schulze says that his client suffers depression, other psychiatric problems and has attempted suicide. To require such a man to undertake the assessment required would be oppressive and the more so says Mr Schulze because the assessment would not be being undertaken for any proper purpose but rather for the improper purpose of doctor shopping.

7. Mr Ryan on behalf of the Commission referred me to two heads of power which he says authorise me to give the direction which he seeks. Section 80(1) of the Victorian Civil and Administrative Tribunal Act 1998 states:

"The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding."

8. He also referred me to Section 71 of the Transport Accident Act 1986 which states inter alia:

"In order to determine its liability under Part 3 or Division 1 of Part 10 the Commission may require a person who was injured as a result of a transport accident and makes a claim for or receives compensation under this Part or that Division to submit from time to time to examination by one or more medical practitioners nominated by the Commission."

9. Sub-section (2) goes on to provide that a person who fails to comply with the request made in accordance with sub-section (1) is subject to having his compensation entitlements suspended.

10. What then is one to make of the situation?

11. One further item should be added to the equation and that is Rule 4.09 of the Victorian Civil and Administrative Tribunal Rules 1998. It states:

"The Tribunal may where the physical or mental condition of a party is relevant to a proceeding, require the party to submit to medical examination by an expert whom another party proposes to call as a witness."

12. Section 157(2) of the Victorian Civil and Administrative Tribunal Act 1998 authorises the making of rules for the conduct of proceedings in the Tribunal and refers to Schedule 2 as setting out subject matters for rules. One of the subject matters appearing in Schedule 2 is "Procedure for calling in experts". I infer that it is under that heading that Rule 4.09 has purportedly been made

13. I turn first to the issue of power to make the order which Mr Ryan seeks. I have not been referred of the text of any of the decisions relied upon by Mr Schulze. He says that he has had to come to the hearing this afternoon at the drop of a hat and therefore he has not had the opportunity to conduct the sort of research which in other circumstances he might have done. It is clear however from the passages which I have quoted from in Section 71 of the Transport Accident Act 1986 that it refers primarily to the Commission's role in the making of its own assessments and the making of its own determinations. It seems not particularly, or perhaps at all directed to the situation where the Commission's determinations are being reviewed in this Tribunal. It may well be that the draughtsman has thought it a proper approach to leave the issue of medical examinations in these latter circumstances to be dealt with by the legislation rules and practice notes which pertain in this Tribunal. If Mr Galvin and the other members of the Tribunal who Mr Schulze said declined to make orders of the type now sort were pressed to make them under Section 71 of the Transport Accident Act 1986 and declined to do so, I would respectfully agree with them. That Section gives no authority to the Tribunal to order anything. Certain consequences may flow under sub-section (2) as a result of an applicant's failing to comply with the requirements made by the Commission under sub-section(1) but that is a different matter.

14. Section 80(1) of the Victorian Civil and Administrative Tribunal Act 1998 is in the widest possible terms. In my view however it is unnecessary for me to consider precisely how wide those terms are as to matters such as medical examinations. It is unnecessary because Rule 4.09 of the Tribunal's rules appears to deal squarely and directly with the situation which confronts me today and in its clear terms authorises in a general sense the making of orders such as the Commission now seeks. I therefore entertain no doubt that I am empowered to make an order such as the Commission seeks if I am persuaded that it is proper to do so.

15. I am at a disadvantage in not having the text of Phillipou or the other authorities relied upon by Mr Schulze but my only expectation at present is that they deal with Section 71 of the Transport Accident Act and not with Rule 4.09. If they purport to deal with that Rule, given its clear wording I would have to respectfully disagree with my colleagues; but my expectation is that they were simply not referred to the ruling.

16. I now turn to the question of the propriety of making the order. Mr Shulze's submission and the tone of the letter which touched off this dispute is that the Commission has one shot at getting an orthopaedic assessment and having chosen its expert once, it is precluded from revisiting the issue with another expert. It is obvious that the Commission is in a far better position to commission experts and is generally empowered with deeper pockets for the conduct of litigation than is an ordinary applicant. Having conceded that however, it is difficult to conclude that this fact in itself would have the dramatic consequences that Mr Schulze has suggested.

17. My own experience of being involved in hearing and determining impairment disputes in this Tribunal and its predecessor the General Division of the Administrative Appeals Tribunal of Victoria is that both applicants and respondents frequently, indeed I would say, more often than not, in matters that proceed to a full scale contested hearing, have more than one assessment under a particular chapter and are not generally restricted to a single expert on a single chapter of the Guides. To the extent that Mr Schulze submits that it is improper in itself to require an applicant to submit to a second assessment under the same Chapter of the Guides as has already been the subject of an assessment by another examiner, I have to reject his contention.

18. The Tribunal has an obligation to reach the correct or preferable decision. A second orthopaedic assessment for the Commission may well assist it in so doing. Mr Schulze has been highly critical of what he perceives as doctor shopping. His criticisms may be well merited and if this matter proceeds to a contested hearing the issue of doctor shopping may well provide fertile ground for an eloquent closing address. I am not persuaded however that it should preclude the Commission from obtaining a separate orthopaedic assessment. If the existing Brearley assessment is perceived by the applicant as possessing advantages to it, either because it is favourable in an objective sense to the applicant or because it is so unreasonably unfavourable to the applicant that it is discredited these forensic points remain available to the applicant.

19. The one matter which does trouble me however is that I have been informed by Mr Schulze that his applicant now resides in Lake Entrance. The practical chances that a man who has decided not to attend a medical assessment tomorrow could be in Melbourne at 9.15 a.m. tomorrow for an assessment are to my mind zero. In those circumstances whilst I propose to accede to Mr Ryan's request that the applicant be required to submit to an examination by Mr Lugg it will be an examination on a date to be fixed and the obligation of Mr Galea to attend will be subject to his first being given at least 14 days written notice of the time and place of the appointment and secondly to his being provided in advance with his reasonable costs of travelling from Lakes Entrance to Melbourne.

20. I have just given my reasons for making an order in the terms which I then described requiring the applicant to attend a medical assessment with Mr Lugg, Orthopaedic Surgeon. As a consequence Mr Ryan on behalf of the respondent Commission seeks an order pursuant to Section 79(2) of the Transport Accident Act 1986 that the applicant pay the Commission's costs of this directions hearing. He says that the notice of the applicant's refusal to attend the assessment with Mr Lugg was given at the last possible moment by a letter which, whatever its actual course through the system and Mr Schulze has informed me that it went via the Document Exchange, had not come to his attention. In those circumstances he says that the applicant has opposed attendance at a medical assessment on grounds set out in the letter which I quoted in my substantive reasons which I found to be without basis. Other matters which led me to modify somewhat the order which might otherwise have been made were the subject of assertion from the bar table and not the subject of any explanation in earlier correspondence. In those circumstances Mr Ryan says that the applicant should bear the costs of today's hearing.

21. Mr Schulze however says that the letter which bears date on Sunday, was despatched yesterday and should have come to the attention of the Transport Accident Commission. He has been required to attend this hearing as a matter of urgency after already spending a morning in a Tribunal hearing, in circumstances which precluded him from being a party to any of the telephone conversations which were made to his secretary. It was unreasonable he says for this application to be brought on.

22. In my view there are grounds for criticism of the line that both sides have taken. My substantive reasons indicate that I am unpersuaded as to the justification of the objection taken by the applicant. Given that the objection could have been communicated by TAC Law by telephone yesterday or by facsimile transmission yesterday, the notice of objection was at least 24 hours later than it really need have been.

23. On the other hand I think that Mr Schulze is correct in saying that the air of drama which has attended this proceeding was largely if not totally unnecessary. Certainly, the waste of the professional orthopaedic surgeon's time created by a non-attendance at an assessment is regrettable. However, since this matter stands fixed for hearing as far off as August, there will be other opportunities for assessment and the blinding urgency of this application is not made out to my mind.

24. In those circumstances I think the proper order is that the costs of this application should be costs of the proceeding.