Plaintiff v Defendants

Supreme Court of Victoria|2015-05-14|Before: McDONALD J

ADMINISTRATIVE LAW - Judicial review - Question referred to medical panel under s 28LWE of Wrongs Act 1958 - Panel giving determination outside the time prescribed by s 28LZG(3)(a) - whether determination valid.

1 The central question in the present proceedings is whether a determination of a medical panel convened pursuant to the ('the Act') is invalid if the determination is given outside of the 30 day period prescribed by In Mikhman v Royal Victorian Aero Club and Ors, Kaye J (as his Honour then was) answered precisely the same question in the affirmative. I am bound to follow the judgment of Kaye J unless I am satisfied that it is plainly wrong. I am not satisfied that the judgment of Kaye J is plainly wrong. To the contrary, if I was determining the question unaided by his Honour's judgment, I would, in any event, have come to the same conclusion.

2 The plaintiff alleges that she suffered psychiatric injury in reaction to the suicide of her daughter. At the time of her death, the plaintiff's daughter was in the care of the first defendant. The plaintiff alleges that her daughter's death was caused by the negligence of the first defendant in its care, monitoring and supervision of her daughter. On around 12 June 2012, the plaintiff's solicitors served a Certificate of Assessment and Particulars on the first defendant in accordance with s 28LT of the Act. On or around 30 July 2012 in accordance with s 28LWE of the Act, the first defendant referred for assessment by a medical panel the question: does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level? The second and third defendants jointly constituted the medical panel which was appointed in accordance with Part VBA of the Act to determine the question.

3 On 1 October 2012, the medical panel examined the plaintiff. When attending for this examination the plaintiff was complying with a request which had been made pursuant to s 28LZC of the Act. Upon the plaintiff complying with this request, the medical panel was required by s 28LZG(3)(a)(i) to give a determination or certificate within 30 days; in this instance, by 31 October 2012.

4 On 14 November 2012, the medical panel provided to the plaintiff's solicitors documents titled 'Medical Panel Certificate of Determination' and 'Reasons for Determination', in which they determined that the degree of psychiatric impairment resulting from the psychiatric injury to the plaintiff did not satisfy the threshold level under the Act.

5 The date on which the medical panel provided the plaintiff's solicitors with a Certificate of Determination and Reasons for Determination was outside the 30 day period prescribed by s 28LZG(3)(a) of the Act.

6 By an originating motion dated 13 December 2012, the plaintiff seeks relief in the nature of certiorari, quashing the medical panel determination dated 2 November 2012, pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules'). As originally formulated, there were a number of grounds in support of the relief sought. However, by the time of the hearing before me the sole basis upon which relief was sought was that the medical panel fell into jurisdictional error by issuing the Certificate of Determination and Reasons for Determination outside of the 30 day period prescribed by s 28LZG(3)(a) of the Act.

Mikhman v Royal Victorian Aero Club [2012] VSC 42

7 The defendant concedes that I am bound to follow the judgment of Kaye J in Mikhman unless I am satisfied that it is plainly wrong.

8 In addressing the question of whether a determination of a medical panel is invalid by reason of being outside the period prescribed by s 28LZG(3)(a) of the Act, Kaye J noted that the principles relevant to the construction of the 30 day time limit specified in s 28LZG(3)(a) are those considered by the High Court in Project Blue Sky Inc and Ors v Australian Broadcasting Authority.[3] As to the proper test for determining whether an act done in breach of a condition regulating the exercise of a statutory power is invalid and of no effect, Kaye J cited with approval para 93 of the joint judgment of McHugh, Gummow, Kirby and Hayne JJ:

... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.

9 Kaye J's conclusion that a determination of a medical panel outside the 30 day time period prescribed by s 28LZG(3)(a) of the Act is invalid, was underpinned by the following conclusions:

(i) The time limit specified in s 28LZG(3)(a) is expressed in mandatory terms, ie 'must'.[4]

(ii) The verb 'must' is used repeatedly in Divisions 4 and 5 of Part VBA of the Act. In each instance the verb 'must' is used in its normal, mandatory, sense.[5]

(iii) Division 5 of Part VBA, which prescribes the procedures of a medical panel, contains a number of provisions expressed in mandatory terms: ss 28LZ(5), 28LZD(1), 28LZD(2) and 28LZE(2).[6]

(iv) Sections 28LZG(1) and (2) each use the verb 'must' to prescribe a procedure to be complied with by a panel.[7]

(v) The intention of the Act is to provide for a speedy resolution of the threshold question as to whether a claimant, in a particular case, has sustained a 'significant injury'.[8]

(vi) The existence of provisions expressly providing for the consequences of a failure of a party to comply with a time limit indicate a 'statutory intention that the time limits, prescribed for each of the steps to be taken leading to the assessment of impairment by a medical panel, must be strictly complied with.'[9] They are part of a statutory scheme in which the time table 'is intended to be rigorously adhered to, so as to facilitate the expeditious determination of the assessment of impairment of a claimant.'[10]

(vii) The fact that s 28LZK (which provides that any act or decision of a panel is not invalid 'by reason only' of any defect or irregularity in connection with the appointment of a panel member) does not preserve the validity of a decision if a panel fails to comply with other mandatory provisions, including s 28LZG(3)(a).[11]

(viii) No public inconvenience is caused by the invalidation of a medical panel decision by reason of failure to comply with the prescribed time period.[12]

10 I agree with Kaye J that each of the matters set out above support the conclusion that non-compliance by a medical panel with the mandatory terms of s 28LZG(3)(a) has the consequence that the panel's determination is invalid.

Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135

11 On 2 April 2014, Kyrou J (as his Honour then was) delivered judgment in Ryan v the Grange at Wodonga Pty Ltd.[13] One of the issues dealt with in his Honour's judgment concerned the question of whether an opinion formed by a medical panel outside of the 60 day period prescribed by s 68(1) of the Accident Compensation Act 1985 ('the ACA') was invalid.[14] Kyrou J answered this question in the negative. His Honour distinguished the judgment of Kaye J in Mikhman. He considered that Mikhman turned on the specific provisions of the Act which differed in material respects from the provisions of the ACA regulating the procedures of medical panels.

12 Kyrou J's judgment in Ryan was subject to an appeal. The proceedings before me were adjourned pending the Court of Appeal judgment in Ryan. That judgment was delivered on 13 February 2015.[15]

13 One of the issues raised in the appeal in Ryan was the correctness of Kyrou J's conclusion that a medical opinion formed outside of the 60 day period prescribed by s 68 of the ACA was not invalid. Neave JA (Santamaria JA and Ginnane AJA agreeing) delivered the leading judgment of the Court of Appeal. Relevantly, her Honour stated at paras 35 and 36:

I agree with his Honour that the decision of Kaye J in Mikhman, that non-compliance with the time limit imposed on a medical panel for making a determination under s 28LZG(3)(a) of the Wrongs Act invalidates the Medical Panel's decision, does not require the same conclusion to be reached in relation to s 68(1) of the Act. I would accept the respondents' submission that there are significant differences between the Wrongs Act provisions and s 68(1).

As Kaye J remarked in Mikhman, the provisions in the Wrongs Act spell out 'a series of time limits, within which each particular step, in the statutory scheme, is to be carried out.' Section 28LZG(3)(a) of the Wrongs Act sets out a period of 30 days for a medical panel to make a determination and that period commences only once the medical panel has all the necessary information. There are also default provisions which spell out the consequences for a claimant or respondent of failure to comply with those time limits. These features are sufficient to differentiate the statutory scheme in the Act from the statutory scheme in Mikhman. For these reasons ground 3 fails.

14 In supplementary submissions filed after the Court of Appeal delivered judgment in Ryan, the first defendant submitted that the Court of Appeal's judgment 'did no more than note the relevant aspects of the decision (in Mikhman) and distinguish the statutory scheme provided by the ACA from that of the Act. Nothing in the judgment is authority for any view as to the effect of a time limit imposed on a Medical Panel by s 28LZG(3) of the Act. The only authority concerning that provision remains the decision of Kaye J in Mikhman's case.'[16] I do not accept this characterisation of the Court of Appeal's judgment.

15 Ground 3 of the Notice of Appeal in Ryan contended that 'the primary judge erred in holding that a medical panel opinion formed outside the prescribed period is not invalid.' The appellant had sought to rely upon the judgment of Kaye J in Mikhman in support of the proposition that Kyrou J had erred in concluding that a determination outside of the 60 day period was not invalid. The Court of Appeal held that on the proper construction of the ACA, the medical panel had complied with the 60 day time limit prescribed by s 68(1). It was therefore unnecessary for the Court of Appeal to express any view on the question of whether a determination of a medical panel falling outside the 60 day period would be invalid.

16 It was also unnecessary for the Court of Appeal to express any view regarding the correctness of Kaye J's reasoning in Mikham. Nevertheless it did so. The judgment of Neave JA expressly endorsed the reasoning of Kaye J that the Act spells out a 'series of time limits, within which each particular step in the statutory scheme is to be carried out'. Her Honour also referred to ss 28LWE(1) and (3) which spell out the consequences for a claimant or respondent of the failure to comply with the prescribed time limits. Neave JA concluded that there are 'significant differences' between the scheme of the Act and s 68(1) of the ACA. It is those significant differences which permit the reconciliation of the otherwise inconsistent reasoning of Kyrou and Kaye JJ as to the consequences of a medical panel determination being outside of the prescribed time limit.

17 There is no suggestion in the judgment of the Court of Appeal of error on the part of Kaye J in concluding that a determination of a medical panel outside the 30 day limit prescribed by s 28LZG(3) is invalid. To the contrary, the reasoning underpinning the ratio decidindi of Kaye J's judgment has been expressly endorsed. This is a matter which I have taken into account in concluding that the first defendant has failed to establish that the judgment of Kaye J is plainly wrong.

18 Dr Hanscombe, who appeared with Ms McKenzie for the first defendant, contended that there was an 'inherent flaw' in Kaye J's judgment in Mikhman. In particular, Dr Hanscombe focussed attention on paras 57 and 58 of the judgment which are as follows:

For the reasons, which I have set out above, I have reached the following two conclusions:

(1) That the panel exceeded its jurisdiction by purporting to issue its determination after the period of 30 days specified by s 28LZG(3)(a) of the Act.

(2) In reaching its decision, the panel did not fail to take into account relevant considerations, and did not take into account irrelevant considerations.

As a result of the first conclusion, which I have just stated, it follows that the plaintiff should be granted relief, in the nature of certiorari, quashing the decision of the medical panel made on 10 May 2011. The effect of that order will be that, although the medical question has been properly referred for determination by a medical panel, no determination has been made by such a panel in accordance with the Act. Therefore, it is appropriate that I also direct that the Convenor of medical panels constitute another panel to determine that question, pursuant to s 63(4) of the Accident Compensation Act 1985 (which applies pursuant to s 28LZL(2) of the Wrongs Act.)

19 Dr Hanscombe submitted that if, as found by Kaye J, the panel's jurisdiction to determine a referral ceases 30 days after the operative event, any error in that determination cannot be remedied by sending the matter for redetermination, since the redetermination would also be unlawful for the same reason, ie for being made than 30 days after the operative event. Accordingly, once the 30 day time limit had been reached in a matter, the Panel could not make any determination in relation to that matter. This result would deprive a person validly referring the medical question to the Panel of any enforceable right to a determination by the Panel, despite disagreeing with the Certificate of Assessment provided by an approved medical practitioner, and despite the referring party complying fully with its statutory obligations. Dr Hanscombe submitted that this could not have been Parliament's intent, and that to avoid this outcome s 28LZG(3)(a) should be construed such that non-compliance with the 30 day time limit does not have the effect of invalidating a panel's determination.

20 Dr Hanscombe's submission is premised upon Kaye J having erred in concluding that he had the power to direct the Convenor of medical panels to constitute another panel pursuant to s 63(4) of the ACA. Dr Hanscombe submitted that there is no power under the Act for a Convenor to reconstitute a medical panel once a question has been referred under s 28LWE. Dr Hanscombe submitted that it would be a futile exercise for a Convenor to constitute a new panel because that panel would not be able to exercise the powers conferred by s 28LZC(1) to ask a claimant to meet with the Panel and answer questions and/or submit to a medical examination by the Panel. Under s 28LZC(2) a request to a complainant under s 28LZC(1) must be made within 30 days after the medical question is referred to the panel. Dr Hanscombe submitted that in the present proceedings this 30 day time limit had already expired in 2012 following the referral to the second and third defendants of the question of whether the degree of impairment resulting from the injury alleged by the plaintiff satisfied the threshold level.

21 Dr Hanscombe submitted that the same considerations apply in respect of s 28LZE of the Act and that a reconstituted medical panel would not have the power to ask a registered health practitioner who has examined the claimant to meet with the Panel and answer questions because the 30 day period within which such a request could have been made also expired in 2012.

22 I reject the submissions of Dr Hanscombe set out above for two reasons. First, the submissions assume incorrectly that the failure of a medical panel to give a determination within the 30 day period prescribed by s 28LZG3(a) of the Act has the effect of invalidating, not only the determination, but also any steps taken by the parties prior to the referral of a medical question to the Panel. I agree with Kaye J's conclusion in Mikhman that a failure to comply with the time prescribed by s 28LZG(3)(a) does not invalidate the steps taken by the parties leading to the referral of the relevant medical question to a panel. Nor would it affect the validity of the referral by a respondent under s 28LWE of the Act of a medical question to a panel. [17]

23 Second, Dr Hanscombe's submissions are underpinned by an erroneous construction of s 28LWE of the Act. Section 28LWE(1) provides:

The respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part -

(a) within 60 days after receiving the certificate and the required information under s 28LT; or

(b) within 60 days after receiving the information provided under s 28LWA; or

(c) within 14 days after receiving the notice under s 28LWB.

24 Dr Hanscombe submitted that there was no capacity for a Convenor to reconstitute a medical panel because the first defendant had referred the relevant question to the medical panel constituted by the second and third defendants in 2012 and the time limits prescribed by subs-ss (a),(b) or (c) of s 28LWE(1) of the Act had long since expired. This construction of s 28LWE ignores the preliminary steps which must be undertaken by the Convenor prior to convening a medical panel. These steps include ensuring that the medical question referred to the panel is properly drafted, that the members of the panel have appropriate skills and experience to undertake the assessment; and are not unsuitable by reason of any conflict of interest.

25 The power of a Convenor/Deputy Convenor to constitute a medical panel for the purposes of Part VBA of the Act was previously found in s 63(4) of the ACA which applied to a medical panel appointed for the purposes of Part VBA pursuant to s 28LZL(2) of the Act. That power is now found in identical terms in s 537(7) of the Workplace Injury Rehabilitation and Compensation Act 2013 ('WIRC Act') read in conjunction with s 28LZL of the Act.

26 Division 2 of Part 12 of the WIRC Act sets out provisions applicable to medical panels constituted for the purposes of Part VBA of the Act. Also relevant is s 28LZ(4) of the Act which provides that a Convenor may give directions as to the procedures of medical panels under Part VBA. In the proceedings before me, the parties jointly referred to a document entitled 'Deputy Convenor's Directions as to the Procedures of Medical Panels under Part VBA of the Wrongs Act 1958: 2008' ('Directions'). The Directions set out the procedures to be followed when a respondent to a claim wishes to refer a medical question to a medical panel:

(i) the claimant and the respondent are notified of the date the referral is received by the Deputy Convenor;

(ii) the Deputy Convenor examines each referral to determine whether the question is phrased in a way which comes within the meaning of s 28LB of the Act. If it does not the Deputy Convenor will seek the agreement of the respondent to amend the question;

(iii) the Deputy Convenor will convene a medical panel appropriate in speciality and number for the consideration of the nature of the injuries alleged in the claim; and

(iv) the Deputy Convenor will comply with the Medical Panel's Conflict of Interest Policy and the Procedures for managing Conflict of Interest in the appointment of medical panels.

The form of the directions set out above highlights the fact that a medical panel cannot be convened until a number of preliminary steps are taken by a Convenor/Deputy Convenor. When s 28LWE of the Act is read in the context of the provisions contained in Division 2 of Part 12 of the WIRC Act (which apply by virtue of s 28LZL of the Act) the right which is conferred upon a respondent by s 28LWE is a right to commence the referral process by referring a question to a Convenor/Deputy Convenor who in turn is required to refer the question to an appropriately constituted panel. The respondent must commence the referral process within the relevant period prescribed by either subs-ss (a), (b) or (c) of s 28LWE(1) of the Act.

27 The first defendant submitted the relevant medical question to the Convenor within the time prescribed by s 28LWE(1)(a) of the Act. A finding of invalidity of the medical panel's determination by reason of it being outside the 30 day period prescribed by s 28LWG(3)(a) has no effect on the validity of the steps taken by the first defendant in referring the relevant medical question to the Convenor/Deputy Convenor. Contrary to the first defendant's submission, there is no impediment to the Convenor of medical panels complying with an order of the Court requiring a new panel to be convened to determine the relevant medical question.

28 I shall make an order quashing the Certificate of Determination and Reasons for Determination dated 2 November 2012 of the medical panel comprised of the second and third defendant. Consistent with the approach of Kaye J in Mikhman, I shall order that the medical question be referred back to the Convenor of the medical panel for determination by a differently constituted medical panel. The Convenor has the power to reconstitute a medical panel under s 537(7) of the WIRC Act which is identical to the terms of s 63(4) of the ACA Act. There will be an order that the first Defendant pay the plaintiff's costs.

[1] 2012 VSC 42 ('Mikham').

[2] See ACCC v Giraffe World Australia Pty Ltd and Ors [1998] FCA 819; (1998) 156 ALR 273, 280.1; Bank of Western Australia Ltd v Federal Commissioner of Taxation (1994) 55 FCR 233, 255; Bradley v Armstrong [1981] FCA 177; (1981) 39 ALR 118.

[3] [1998] HCA 28; (1998) 194 CLR 355 ('Project Blue Sky').

[9] Sections 28LO(4), 28LP(3), 28LW(4), 28LWB(4) of the Act.

[12] Ibid [37]. See also Project Blue Sky [97].

[13] [2014] VSC 135 ('Ryan').

[14] His Honour was not required to determine this question because he concluded that the relevant opinion had been formed within the prescribed period. However, as the parties had made extensive submissions on the issue, his Honour set out his views in relation to it: See Ryan [71].

[15] Ryan v The Grange at Wodonga Pty Ltd and Ors [2015] VSCA 17.

[16] Paragraph 3 of the further submissions of the first defendant dated 17 February 2015.

Court (General Civil Procedure) Rules 2005

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

Court (General Civil Procedure) Rules 2005

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

Court (General Civil Procedure) Rules 2005

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

Court (General Civil Procedure) Rules 2005

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

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