Plaintiff v Defendants

2 The plaintiff seeks damages from the first defendant, a surgeon. The second and third defendants constituted the medical panel and the fourth defendant is the convenor of medical panels.

3 The defendants did not contradict the plaintiff's affidavit and made no submissions on the substantive issue of the plaintiff's entitlement to quash the decision. The second to fourth defendants adopted the 'Hardiman position'.[1] The defendants only addressed me in relation to costs.

4 For the reasons that follow, I will quash the certificate and determination of the medical panel and remit the medical question to a medical panel to be convened in accordance with the Wrongs Act 1958 (Vic). I will further order that the first defendant pay the plaintiff's costs, that otherwise there be no order as to costs, and that the first defendant be granted an indemnity certificate under s 4(1) of the Appeal Costs Act 1998.

5 The plaintiff's mother died at Gippsland Base Hospital on 18 February 2008 as a result of hypovolaemic shock from excessive blood loss following surgery allegedly performed negligently at the Bairnsdale Hospital on 18 February 2008 by the first defendant. The plaintiff claims that the first defendant breached a duty of care he owed to her that caused her to suffer a psychiatric injury. By a report dated 5 February 2013, Professor Lorraine Dennerstein certified that the plaintiff suffered major depressive disorder and that her degree of psychiatric impairment was permanent and greater than 10%.[2]

6 Upon receipt of the prescribed information from the plaintiff, the first defendant, on 1 October 2013, referred a medical question to a medical panel.

7 By 23 October 2013, a medical panel had been convened and it notified the plaintiff of a proposed examination on 14 November 2013. On that day, the plaintiff attended the medical panel and was examined. It is accepted that, by reason of s 28LZG(3)(a)(i) of the Wrongs Act 1958, the medical panel was required to give a determination or certificate within 30 days of that date. No determination or certificate was received from the medical panel when time expired on 15 December 2013.

8 By letter dated 23 December 2013, the medical panel sought an extension to 20 January 2014 for the medical panel to determine the medical question. By letter dated 6 January 2014, the plaintiff's solicitor wrote granting consent to the extension of time, but stating her opinion that the plaintiff's consent after the expiry of the time period was ineffectual in conferring jurisdiction on the medical panel to provide its determination.

9 On 16 January 2014, the medical panel signed off its certificate and its reasons for determination. It certified that the degree of psychiatric impairment resulting from the injury to the claimant alleged in the claim did not satisfy the threshold level.

10 Curiously, on 17 January 2014, the medical panel again wrote to the plaintiff's solicitor seeking a further extension of time to 31 January 2014 for the medical panel to determine the question, specifically stating that the medical panel had not yet done so and the extension was requested for that the reason. On 23 January 2014, the plaintiff's solicitor reiterated the position she had stated in her letter of 6 January 2014.

11 On 24 January 2014, the medical panel forwarded its certificate of determination and its reasons to the plaintiff.

12 On 17 March 2014, the plaintiff issued an originating motion seeking an order quashing the opinion of the medical panel on various grounds. The following grounds were pressed at trial.

1. The medical panel failed to give a determination or certificate within 30 days of the examination of the plaintiff by the panel pursuant to s 28LZG(3)(a) of the Wrongs Act 1958.
2. The medical panel sought the consent of the parties to an extension of time within which to make its decision pursuant to s 28LZG(3)(a) of the Wrongs Act on 23 December 2013 and indicated that if such consent was not provided the panel would not provide its determination in the matter thereby vitiating any consent provided by the parties.
3. The medical panel sought the consent of the parties to an extension of time within which to make its decision pursuant to s 28LZG(3)(a) of the Wrongs Act on 23 December 2013 after expiry of the time within which the panel was required to make its decision being 14 December 2013 thereby vitiating any consent provided by the parties.

13 The medical panel is amenable to judicial review and its determination or certificate can be quashed if it makes a jurisdictional error.[3] It commits a jurisdictional error if its determination is given beyond the time limit of 30 days as specified in s 28LZG(3)(a).[4] It is clear that the medical panel's determination was given beyond the specified 30 day time limit and is, accordingly, beyond the statutory power of the medical panel.

14 There was a residual question of whether the subsequent correspondence that included the plaintiff's conditional consent to an extension of time is of any legal effect. The defendants did not contend that such consent validated the medical panel's determination and given that the plaintiff's solicitor specifically reserved the plaintiff's rights to contend that the panel could not have jurisdiction conferred on it by a consent given outside of the 30 days period, that is hardly surprising.

15 Further, in an attractive submission, the plaintiff's counsel advanced six reasons for concluding that the Act contemplates that the pre-litigation steps are to be completed in a timely fashion, following the strict timelines for processing the pre-litigation component of a claimant's personal injuries claim set out in the Act. The Act should not be construed to render the time limit prescribed by s 28LZG(3)(a) as directory rather than mandatory in nature. I am persuaded that the plaintiff's conditional consent did not validate the determination.

16 In the particular circumstances of this case, I am satisfied that the medical panel's determination was beyond the power and ought to be quashed.

17 There was, until yesterday, a dispute between the plaintiff and the first defendant as to whether the medical question should be remitted to a differently constituted medical panel for hearing and determination. The first defendant's opposition to that course melted away when he was informed that one of the panel members would be unable, into the indefinite future, to participate on medical panels.

18 It is common practice where a decision has been set aside for error, to remit the matter to be heard by a differently constituted tribunal by reference to fairness considerations.[5] Because the first defendant's opposition until yesterday to remittal to a differently constituted tribunal is relevant on the question of costs, some further facts need to be recited.

19 Following her examination by the medical panel on 14 November, the plaintiff complained to her solicitor that she felt that she was the subject of aggressive, forceful questioning in the style of cross-examination by a panel member. On 19 November 2013, the plaintiff's solicitor corresponded with the convenor of medical panels complaining about that behaviour during the course of the plaintiff's attendance at the medical panel. Ultimately, on 1 May 2014, the plaintiff's solicitor received a response to that complaint.

20 Had it been necessary to rule on this issue, I would have been persuaded, by issues of fairness and in order to avoid the prospect of further challenge to any determination, to have directed that the medical question go to a differently constituted panel. Accordingly, to the extent that the first defendant's opposition to the orders being sought from the court, following its concession that it would not file material or make submissions on the primary question, contributed to costs being incurred, the first defendant would not have been successful on that issue.

21 The court has a broad discretion in relation to costs, which must be exercised judicially.

22 The plaintiff contended that the application of the usual rule, that costs follow the event, would require that the first defendant, as the proper contradictor of the application, should be ordered to pay the plaintiff's costs. It is plain that it was necessary for the plaintiff to institute and prosecute this proceeding in order to quash the determination of the medical panel and such relief is not granted unless the court is affirmatively satisfied that it is appropriate to do so. No disentitling conduct is alleged against the plaintiff.

23 The first defendant submitted that the court should make no order as to the costs of any party for three reasons. First, there is an established line of authority that costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely.[6] This principle has been applied in respect of medical panels.[7] It is not suggested by any party that there is a basis to order costs against the second to fourth defendants in this proceeding. There being no basis for a costs order against the party that was practically responsible for the want of jurisdiction that vitiates the determination, liability for costs falls unfairly on the first defendant as contradictor. There is nothing unusual in this circumstance and the policy basis for the Appeal Costs Act is that an unsuccessful respondent should be indemnified for the costs of an error made by a primary court or tribunal.

24 Secondly, the first defendant submitted that the plaintiff obtained a material benefit in the proceeding in that an adverse determination has been quashed notwithstanding that she consented to an extension of time, affording the plaintiff the opportunity of a positive outcome. The consequence for the first defendant is that a risk of an adverse outcome for him has been enlivened when he has done nothing wrong, in the sense that might attract the exercise of a costs discretion, in the proceeding.

25 I am not persuaded by this submission. To the extent that the plaintiff is advantaged by the adverse decision being quashed, that is the consequence of the conduct of the medical panel. The only benefit that the plaintiff has received is one to which she is entitled in law, namely that the panel's determination in respect of her rights is made within its statutory powers.

26 It is not necessary when exercising the costs discretion, on the basis that a standard order for costs will follow the event, to consider whether there is any culpability, misconduct, or error evident from the unsuccessful party's opposition to the relief granted by the court. Simply that the event was lost by the party ordered to pay costs may be sufficient.

27 Thirdly, the first defendant submitted that he was a passive party who did not contribute to the basis on which the determination has been quashed. I do not accept that the first defendant's role was entirely passive. It is true that the first defendant did not contest the basis upon which I have ordered that the decision be quashed. However, costs have continued to be incurred because the first defendant opposed remittal to a differently constituted panel and an order that he pay the plaintiff's costs. The plaintiff was unable to obtain the consent of the defendants to a joint memorandum identifying the jurisdictional error that might have been submitted to the court. As I have stated, the plaintiff was entitled to press for remittal to a differently constituted panel and the plaintiff will not be denied recovery of her costs because the role of the first defendant can be characterised as more passive than the position adopted by contradictors in other cases.

28 I am not persuaded that there are any circumstances in this proceeding that warrant departure from the outcome that costs follow the event.

29 The plaintiff had no choice other than to bring the proceeding in order to quash the medical panel's opinion and for her rights to compensation to be determined in accordance with law. Had the plaintiff not instituted this proceeding, the medical panel's opinion would be final and conclusive.

30 The lack of opposition from the first defendant to the substantive relief sought by the plaintiff is a factor in favour of no order being made, but there is nothing in the plaintiff's conduct in this proceeding that would warrant the plaintiff being deprived of a costs order. Further, the passive position of the first defendant satisfies me that it is proper to grant to the first defendant a certificate under s 4 of the Appeals Costs Fund Act. The application is, for the purposes of that section, an appeal that has succeeded.[8]

31 For these reasons, I will order that the first defendant pay the plaintiff's costs of the proceeding but otherwise there is no order as to costs and I will grant the first defendant an indemnity certificate under s 4 of the Appeal Costs Act.

[1] Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[2] Professor Dennerstein's report and certificate was not in evidence before the court.

[3] Masters v McCubbery [1995] VSC 209; [1996] 1 VR 635.

[4] Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42, Ryan v The Grange at Wodonga Ltd [2015] VSCA 17, Holloway v Department of Human Services [2015] VSC 184.

[5] Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VicRp 73; [1984] VR 903, Davidson v Fish & Ors [2008] VSC 32 (and see the cases cited at fn 14), Bregu v Brydon & Ors [2010] VSC 417, Walia v Stay Cool Heating and Airconditioning [2010] VSC 565, Clarchet Pty Ltd & Anor v Demediuk & Ors [2011] VSC 22, Murphy v State of Victoria & Anor [2014] VSCA 238, 313 ALR 546, 289 FLR 331, Slade v John Patrick Pty Ltd & Ors [2014] VSC 563.

[6] Psychologists Registration Board of Victoria v The Herald and Weekly Times Ltd & Ors [2000] VSCA 118.

[7] Smith v Lloyd & Ors (No 2) [2007] VSC 436, Ripper v Kotzman [2008] VSC 448.

[8] See the analysis of the cases by Mukhtar As J in Vinton v Sim and Ors [2014] VSC 568.