Plaintiff v Defendants

**2 The plaintiff was injured on 16 June 1998 while operating a machine for the first defendant. A sleeve of his company issued shirt caught in the machinery. He was badly injured. His upper arm was de-gloved resulting in considerable loss of muscle.

3 The first defendant was charged with breaches of the Occupational Health and Safety Act 1985 (Vic) and Occupational Health and Safety (Plant) Regulations 1995 (Vic). It pleaded guilty to those charges and was convicted and fined $35,000.

4 The plaintiff applied on 16 October 2001 under the Sentencing Act 1991 for compensation for pain and suffering resulting from the offences. His application was out of time and leave was required. He sought and obtained that leave on 31 January 2002.

5 On 27 February 2002, the solicitors for the first defendant wrote requesting that the plaintiff submit to a medical examination by a doctor chosen by the first defendant. The plaintiff declined. Further requests were made and rejected. On 29 April 2002, the first defendant asked the plaintiff to defer the hearing so that the plaintiff could be medically examined by a doctor of its choice.

6 On 30 April 2002, the first defendant applied for a stay of the hearing of the application for compensation. It relied upon the refusal of the plaintiff to agree to the request to be medically examined, arguing that unless it had the opportunity to have the applicant examined by its own medical experts it would be placed at a disadvantage in cross-examining the plaintiff's experts and so would suffer procedural unfairness.

7 Following the current practice, the plaintiff had filed, in support of his compensation application, affidavits sworn by him on 16 October 2001 and 26 April 2002. In them he gave an account of the accident and his injuries and the pain and suffering that had followed. He also filed a number of expert reports; Mr Moran of 29 January 2001, Dr Sutcliffe 18 December 2000, Dr Huang 12 April 1999, Dr Ryan 4 November 1998, Ms Mulcahy 19 April 1999, Jo Campbell-Smith 22 April 1999, Dr Blue 26 August 1999, Dr Monsour 24 September 2000, Dr Honey 26 March 2002, Flexi-Personnel 10 April 2002, Dr Sutcliffe 19 April 2002. The reports of Mr Moran and Dr Blue and the first report of Dr Sutcliffe were obtained by the Workers Compensation Insurer of the first defendant. The second report of Dr Sutcliffe was obtained by the solicitors for the plaintiff for the purpose of the compensation claim under the Sentencing Act. Thus the first defendant did have medical reports available from specialists who had examined the plaintiff on its behalf in an between 1999 and 2001. It did not, however, have reports available from experts who had examined the plaintiff on its behalf thereafter.

8 The learned magistrate, in his reasons, stated that the essence of the submission made on behalf of the first defendant was that, unless the plaintiff was medically examined, it would be placed at a disadvantage in cross examining expert witnesses called on behalf of the plaintiff and this would result in procedural unfairness to it. After referring to the submission made on behalf of the plaintiff including a submission that the Magistrates' Court did not have power to stay the proceedings, the learned magistrate said the following:**

"The possibility suggests itself that the range of potential areas for dispute will be relatively limited, but there are physiological and psychological prognoses which will be the subject of expert medical opinion and which will be based on an examination of the Applicant and an assessment by those experts of his prognosis in each of those two important areas. Whilst there has been some discussion of the characterisation of these proceedings as criminal proceedings as opposed to civil proceedings I do not believe that the issue is to be determined by reference to that question. The sections themselves provide the statutory framework which gives this court power to make orders for compensation for pain and suffering in addition to other orders in favour of a person who is injured by the criminal act of another person. Significantly section 85F provides that the court shall not refuse to countenance an application save where relevant facts do not appear from the evidence at the time of sentencing. "Relevant facts" I take to be caught up within Mr Bakic's prognoses. In addition Mr Bracken has invited my attention to section 85G which provides that a defendant must have a reasonable opportunity to be heard. The combination of those provisions is such as to suggest that it would not be procedurally fair for Yamasa Seafood Australia Pty Ltd to come to Mr Bakic's application without having had him assessed by its own medical experts."

After referring to the question of costs and indicating that he would reserve them his Worship said:

"The application by Yamasa Seafood Australia Pty Ltd is granted but in a modified form. I accept Dr Freckelton's submission that unless there is a statutory grant of power, this court, as a creature of statute, cannot arrogate to itself substantive procedural powers not found in the legislation. For reasons I have already outlined I am satisfied that the issue of expert evidence is a central issue and one which the Respondent should have an opportunity to canvass. For that reason the matter will be adjourned within the court's power to adjourn. It was asked by Dr Freckelton whether the matter will not return to be heard save if the Applicant submits to examination by the doctor chosen by the Respondent. That is inextricably interwoven with the finding that evidence from medical experts nominated by the defendant is essential to procedural fairness."

His Worship then adjourned the matter to 30 July 2002.

9 In an amended originating motion the following grounds are stated upon which the above-mentioned relief is sought:

"1. The learned magistrate erred in determining that an applicant for compensation under section 85B of the Sentencing Act 1991 (Vic) can be obliged to submit to medical examination by medical practitioners nominated by an offender ;

1. 2. The learned magistrate erred in determining that "procedural fairness" and section 85G of the Sentencing Act 1991 (Vic) entitled the offender to an adjournment of proceedings until medical practitioners nominated by the offender examine the victim; and
2. 3. The learned magistrate erred by making what in fact was an illegitimate stay order by purporting to utilise the power of the court to adjourn."

The amended originating motion then listed the following "mistakes" made by the learned Magistrate, mistakes as to:

• the entitlement of offender to have a victim examined by medical practitioners nominated by the offender prior to the hearing of application under section 85B of the Sentencing Act 1991 (Vic)
• the procedural unfairness of an offender being unable to have a victim examined by medical practitioners nominated by the offender prior to the hearing of application under section 85 B of the Sentencing Act 1991 (Vic) and
• the use of the adjournment power to secure examinations of a victim by medical practitioners nominated by the offender for the purposes of application under section 85B of the Sentencing Act 1991 (Vic).

(a) finds a person guilty of an offence; or

(b) convicts a person of an offence- it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of sub-section (2).

(2) A compensation order may be made up of amounts-

(a) for pain and suffering experienced by the victim as a direct result of the offence;

(b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;

(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;

(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.

(3) In sub-section (2) "offence" includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample count, any other occurrence of the same offence involved in the course of conduct of which the count charged was representative or a sample.

(4) In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.

(a) must be made within 12 months after the offender is found guilty, or convicted, of the offence; and

(ii) on the victim's behalf by any person other than the offender if the victim is a child or is incapable of making the application by reason of injury, disease, senility, illness or physical or mental impairment; or

(A) if the sentencing court was a court other than the Magistrates' Court, by the Director of Public Prosecutions; or

(B) if the sentencing court was the Magistrates' Court, by the Director of Public Prosecutions, the informant or police prosecutor.

(2) Nothing in sub-section (1) (b) (iii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a victim.

85D. Extension of time for making application

(1) A court may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so.

(2) A court may extend time under sub-section (1) before or after the time expires and whether or not an application for an extension is made before the time expires.

(3) A court must not extend time under sub-section (1) without giving the offender a reasonable opportunity to be heard on the matter.

(1) In a proceeding on an application for a compensation order a party-

(ii) with the leave of the court, by any other person.

(2) A proceeding in a court on an application for a compensation order made by or on behalf of a child or other incapable person must be taken to be a civil proceeding for the purpose of any provision of an Act or rule of court relating to-

(a) the appointment or removal, and the power or authority, of a litigation guardian in a civil proceeding in that court; or

(b) the administration of money ordered to be paid to a child or such an incapable person- and any such provision applies in relation to a proceeding on an application for a compensation order with any necessary modifications.

85F. Court must not refuse to hear and determine application except in certain circumstances

(1) A court must not refuse to hear and determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from-

(a) evidence given at the hearing of the charge; or

(b) any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or

(c) the available documents-

together with admissions made by or on behalf of any person in connection with the application.

(2) In sub-section (1) (c) "the available documents" means-

(a) any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or

(b) the depositions taken at the committal proceeding; or

(c) any written statements or admissions used as evidence in the committal proceeding; or

(d) any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it.

(a) the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and

(b) the victim, offender or other person who gives evidence may be cross-examined and re-examined; and

(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and

(d) the finding may be proved by production of a document under the seal of the court from which the finding appears; and

(e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section.

(2) A court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order.

85H. Court may take financial circumstances of offender into account

(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

85I. Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996

If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision.

(1) On deciding to grant or refuse an application for a compensation order or to refuse to hear and determine such an application, the court must -

(b) cause those reasons to be entered in the records of the court.

(2) The failure of a court to comply with Subdivision Act 1988-section (1) does not invalidate the decision made by it on the application.

Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.

85L. Right to bring civil proceedings unaffected

Nothing in this Subdivision takes away from, or affects, the right of any person to recover damages for any expense or other matter so far as it is not satisfied by payment or recovery of compensation under this Subdivision. "

**11 The first defendant has raised a number of procedural issues. For example, it submitted that the description of the learned magistrate's decision in the above mentioned grounds is not accurate and, in particular that he did not make a stay order and did not decide that procedural fairness entitled the defendant to an adjournment until medical practitioners nominated by it examined the plaintiff. It also raised issues as to the scope of the Court's jurisdiction and whether the decisions made were amenable to review under Order 56. Discretionary issues were also raised on the basis that the plaintiff was in effect seeking to fragment the proceedings.

12 It is not necessary to consider the issues raised as to jurisdiction, the scope of review under Order 56 or fragmentation in view of the conclusion I have reached about the characterisation of the learned magistrate's actions and on the question of whether he erred in law in doing what he did.

13 I turn to those matters - first, to the characterisation of the learned magistrate actions**

Issue - did the learned magistrate stay the proceedings?

**14 Counsel for the plaintiff submitted that the learned magistrate, by his order, stayed the plaintiff's application until the plaintiff submitted to a medical examination requested by the first defendant. Counsel for the first defendant submitted that the learned magistrate merely adjourned the matter.

15 Plainly, as his Worship then viewed the situation, if the case was to proceed, the plaintiff would have to submit to a medical examination. But, having formed the view that the first defendant would not have a reasonable opportunity to be heard on the application unless it had the applicant medically examined, the learned magistrate had only two options. He could have dismissed the application there and then under section 85G (2). Alternatively, he had the power under section 128 Magistrates' Court Act (1989) to**

"...adjourn the hearing of the proceeding... for such purposes...as it considers necessary or just in the circumstance...."

**16 What the learned magistrate said should be understood in light of what he did. What he did was adjourn the matter and so give the plaintiff the opportunity to consider his position. The plaintiff could return on the adjourned date not having submitted to medical examination and face the likely consequence that his application would be dismissed - or seek a further adjournment. Alternatively, he could submit to the medical examination and on the adjourned date attempt to proceed with his application. While the issue of medical examinations and adjournment were inextricably connected, his Worship did not order that the proceeding be stayed until the plaintiff submitted to the requested medical examination. While the consequences of the order were somewhat similar to a stay order, he did not stay the proceeding until the plaintiff was medically examined. He merely adjourned it. What would happen on the adjourned date depended on what happened during the adjournment and what applications were made when the matter resumed.

17 I turn to the substantive issue in this proceeding - whether the learned magistrate erred in adjourning the application to give the plaintiff the opportunity to address the first defendant's request for a medical examination. In resolving that question it is necessary to consider whether the first defendant was entitled to seek the medical examination of the plaintiff .**

Issue - was the first defendant entitled to seek a medical examination? Plaintiff's submission

**18 Counsel for the plaintiff submitted that a claim for compensation under section 85B of the Act is sui generis. Counsel submitted that it is not a civil proceeding. He referred to the fact that no costs orders can be made.[1] He submitted that the relevant sections provide a short, quick and informal way of getting compensation for pain and suffering. The victim retained the alternative of civil proceeding. The rights of the offender, it was put, are less than they would be in civil proceedings - in particular, there are no pre-hearing rights to discovery of documents or to signed documents. At the same time counsel submitted that an application forms part of the criminal process.[2] It follows on from the conviction of the offender. Counsel argued that within the criminal justice system, whether at trial or on sentencing, an offender does not have a right or entitlement to compel a victim to be medically examined even though such evidence might be relevant on issues like causation or in the sentencing process. He submitted there was good reason for that. Amongst other things it had the potential to further traumatise the victim of the crime. Pressed, counsel said that he was submitting that the rights of an offender under the legislation were less than those available to a defendant in civil proceedings.

19 Counsel submitted that the offender is protected in a practical way because the lack of material that might have been obtained from such a medical examination can be factored in to the fact-finding process. He also submitted that these applications are not normally the last word. Normally they will take place shortly after conviction and normally within 12 months of conviction. Often it will be too early to assess long-term effects and the right remains in the victim to bring civil proceedings.

20 As to the procedural rights of the participants, counsel submitted that they are described by the statutory provisions, in particular ss 85E and 85G and did not include a right to have the plaintiff applicant medically examined. Counsel submitted that such a right should not the imported into the proceeding.

21 Counsel submitted that what the learned magistrate had done was import civil procedure into a criminal proceeding.

22 Finally, counsel submitted that if the right to a reasonable opportunity to be heard could on occasions be relied upon to compel an applicant to submit to medical examination, there was no need for such examination in the present case because of the medical reports available to the first defendant which had been commissioned by its insurer for the purpose of the workers compensation claim and the existence of a current report from Dr Sutcliffe, a doctor who had been originally engaged by the first defendant's insurer. Counsel submitted that the first defendant would have the opportunity to cross-examine each of the witnesses called on behalf of the plaintiff.[3]**

**23 Plainly there are significant differences in the nature and purpose of civil and criminal proceedings. The former provide a mechanism to resolve civil disputes, by curial decision if necessary. The latter are part of a process in which the State attempts to establish the guilt of a citizen and so control, deter and punish the commission of crime. But each requires adherence to the rules of natural justice. In criminal proceedings, that is reinforced, so far as the accused is concerned, by the long-standing concern to minimise the risk of wrongful conviction. A fundamental concern has always been to ensure that the accused can confront his or her accuser.

24 Thus, it seems to me that the plaintiff faces some difficulties in pursuing an argument that categorising the application for compensation as a criminal proceeding in some way will deny the offender the right to some aspects of procedural fairness. In addition, the proceeding is only available once the criminal offence is established and what is being sought is compensation. Further, unlike a criminal proceeding, the victim seeking compensation under the Act initiates and retains control of the application.

25 I accept the propositions, however, that the proceeding is sui generis and that one must look to the legislation for guidance. This was in fact the approach of the learned magistrate.

26 Parliament appears to have had in mind informal proceedings that will occur at or soon after conviction. But it is clear from the legislation that Parliament intended that the offender be able to cross-examine the victim and any other person who gives evidence[4] and have a reasonable opportunity to be heard.[5] Parliament did not spell out any detailed procedure. It must be taken, however, to have intended that the statutory entitlement given to each party to cross-examine witnesses called by the other party would have substance. In a particular case, it may be possible to test effectively the evidence of an expert witness effectively without expert assistance. But a party would be denied a reasonable opportunity to be heard if he or she was prevented from testing the opposing expert evidence because of the denial of the opportunity to seek informed expert assistance - whether because of non-co-operation by the other party or decision of the Court.

27 I have come to the conclusion, therefore, that, where an offender believes that to have a "reasonable opportunity to be heard" it is necessary that a victim be medically examined, the offender can raise the issue and have it resolved within the framework of section 85G (2) of the Act. The Court is not given a specific power to direct the victim to submit to a medical examination but must exercise such powers as it has to ensure that the offender is given a reasonable opportunity to be heard. If in the end that is not possible, the Court "must not make a compensation order".

28 It does not follow that, in every case, an offender would be entitled to obtain the court's assistance to have a victim medically examined. The offender would have to persuade the court that such examination was needed to give him or her a reasonable opportunity to be heard on the compensation application. To that end, it would be relevant to identify what were the matters in issue and whether such examination could have relevance to those issues. I will resist the temptation, however, to discuss further the question of what else would be relevant in determining what might be a "reasonable opportunity to be heard" in various circumstances.

29 Counsel for the plaintiff, as noted above, sought to support his argument by reference to the undesirability of further trauma to the victim. Plainly further trauma is undesirable. But the application is initiated by the victim and Parliament has expressly stated that the offender must have a reasonable opportunity to be heard - including by cross-examining the victim who gives evidence.[6] Further, it does not follow that medical examinations will increase the overall trauma. There will be cases where it will be less traumatic for the victim to undergo a further medical examination - e.g., cases where that examination will confirm the victim's own experts and so remove debate.

30 I turn to the argument that the learned magistrate erred in law in his conclusion, on the evidence, that procedural fairness in this case required the victim to submit to examination by the first defendant's own medical experts.

31 It cannot be demonstrated that it was not open to the learned magistrate to reach that conclusion. It is true that there was in existence a current report from Dr Sutcliffe, a doctor originally engaged as an expert by the first defendant's workers compensation insurers. But the first defendant had not had the opportunity to engage a doctor to explore, by means of a medical examination, the expert and other issues it might wish to raise about the progress of the plaintiff's condition in more recent times. In my view, it was plainly open to the learned magistrate to conclude that unless the first defendant was able to have the plaintiff medically examined by its experts, it would not have been given a reasonable opportunity to the heard.**

32 For the foregoing reasons the plaintiff has failed to make out his grounds of challenge to the decision of the magistrate. The application should be dismissed.

[2] DPP be Esso [2001] VSC 401 at [11].