Plaintiff v Defendants

2 On 29 October 2015, a WorkCover conciliation officer referred questions to a Medical Panel ('Panel') concerning Mr Gaffy's work capacity, pursuant to s 45(1) of the Accident Compensation Act 1985 (Vic) ('the Act').

3 On 5 January 2016, the Panel determined and certified that Mr Gaffy's work capacity was limited to two days per week as the result of the injury, and that this would continue indefinitely.

4 DEK's application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules')[1] seeks to review this decision on the basis that 'the Panel fell into jurisdictional error by misconstruing its jurisdiction and/or by asking itself the wrong question and/or by misconstruing s 94CD(4)(b) of the Act.'

5 The fundamental issue to be resolved is whether the Panel properly understood and applied the expression 'continue indefinitely to be incapable of undertaking further additional employment or work', which appears in s 94CD(4)(b), in determining that Mr Gaffy was not capable of working to any greater capacity than in the alternative employment he had secured in December 2014.

6 At the time of the accident, Mr Gaffy was employed by DEK as a building renderer.

7 On 21 November 2011, Mr Gaffy fell off a ladder at work and fractured his right ankle ('the injury').

8 On 24 November 2011, Mr Gaffy lodged a claim for compensation under the Act in respect of the injury, which was accepted. He commenced receiving payments of compensation and medical and like expenses from 21 November 2011 (the date of the injury).

9 On 3 December 2013, Mr Gaffy's ankle was operatively fused. His recovery was complicated by a post-operative wound infection.

10 On 14 February 2014, Mr Gaffy was given notice by DEK that his weekly compensation payments would cease from 19 May 2014 on the basis that he had a current work capacity and/or was likely to have a work capacity in the future.

11 On 1 December 2014, Mr Gaffy commenced working two days per week with Insulcon Pty Ltd ('Insulcon'), as a factory hand. His work involved rendering polystyrene sheets used for second-storey extensions and cladding.

12 On 14 July 2015, Mr Gaffy lodged a request for the reinstatement of weekly payments under s 93CD of the Act. This was rejected by DEK on 19 October 2015 on the grounds that he had a capacity to increase his hours of employment.

13 Mr Gaffy then referred DEK's decision to conciliation under s 282 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act'). A conciliation officer referred a number of medical questions to a Medical Panel on 27 October 2015.

14 The Panel was convened on 18 November 2015 to determine whether Mr Gaffy had greater work capacity than that which he was exercising at the time, working 16 hours per week with Insulcon.

15 The decision of the panel was given on 5 January 2016. It answered the questions referred by the conciliator as follows:

Question 1: Is Mr Gaffy likely to continue indefinitely to be incapable of undertaking further or additional employment or work which would increase his current weekly earnings because of his injury?

Question 2: If not so capable, what further or additional employment or work is Mr Gaffy capable of undertaking?

16 In precis, in its accompanying reasons, the Panel found that Mr Gaffy has 'persisting right leg pain and dysfunction following a fracture dislocation of the right hindfoot' as well as suffering from 'an untreated Adjustment Disorder with mixed anxiety and depressed mood, as a consequence of [his] right ankle injury.'[2] On the basis of those findings, the Panel concluded that Mr Gaffy is:

Currently working to his maximum capacity; that this situation is unlikely to change in the foreseeable future and that [Mr Gaffy] is likely to continue indefinitely to be incapable of undertaking any further or additional employment in his current role, because of the... injury.

17 In reaching its conclusions regarding Mr Gaffy's current and future work capacity, the Panel referred to two medical reports: that of independent medical examiner, Dr Michael Baynes dated 6 October 2015 and that of Mr Gaffy's treating general practitioner, Dr GE Isaacs dated 14 May 2015. Of particular relevance is Dr Baynes' discussion in his report of alternative employment options for Mr Gaffy. Dr Baynes opined that:

The worker is fit for alternative duties where there is no heavy lifting or carrying of weights. He should not be involved in continuous standing work. He should be able to rotate his posture between standing, walking and sitting. He should not be involved with work that requires ladders or squatting. With appropriate postures, he would be fit to undertake full-time hours.[3]

18 The Panel determined that Dr Baynes' comments regarding alternative employment were not, to use the Panel's words, 'a relevant consideration' and accordingly, it confined its analysis to whether Mr Gaffy 'is currently working to his maximum capacity in his current employment.'[4]

(a) the panel asked itself the wrong question and/or misconstrued section 94CD(4)(b) of the Act; and

(b) the panel failed to take into account a relevant consideration, namely the opinion of Dr Baynes.

20 Practically, these two grounds come down to one primary argument - that the Panel fell into jurisdictional error when it limited its consideration to Mr Gaffy's capacity to undertake further [or] additional employment or work in his current role, and failed to have regard to Mr Gaffy's capacity to undertake further [or] additional employment or work in alternative suitable employment.

21 A secondary issue arose as to whether the words of the relevant provision (s 93CD (1)(4)(b)) accurately reflected Parliament's intention. As will be seen in a moment, the sub-section requires consideration of 'further additional employment or work'. DEK argues that this is a drafting error and the proper wording is 'further or additional employment or work'. Whilst far from determinative, this issue needs to be resolved, particularly if it is decided to refer the matter back to the panel.

22 It is convenient now to go to the relevant provisions of the two Acts, although initially I should mention the interaction between the WIRC Act and the Act, and their application to this proceeding.

23 Mr Gaffy's entitlements continue to be governed by the provisions of the Act, however the procedures by which questions go before the Panel and the manner in which the Panel is constituted, are determined by reference to the WIRC Act. So the referral to the Panel in this case was pursuant to the WIRC Act, but the question of Mr Gaffy's entitlements falls to be determined under s 93CD of the Act.

24 At the time of the accident, the relevant section read: [5]

93CD Continuation of weekly payments after second entitlement period

(1) A worker who has a current work capacity and is, or has been, entitled to compensation in the form of weekly payments under this Division, may make an application at any time, in accordance with this section, to the Authority or self-insurer, in a form approved by the Authority, for a determination that the worker's entitlement to weekly payments does not, or will not, cease by reason only of the expiry of the second entitlement period.

...

(2) ...

(3) ...

(4) The Authority or self-insurer must not approve an application under subsection (1) unless it is satisfied that -

(a) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings, or current weekly earnings together with non-pecuniary benefits within the meaning of section 5AB(1)(d), of at least $155 per week; and

(b) because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work which would increase the worker's current weekly earnings. [Emphasis added]

25 This provision was part of the 'Hanks amendments'[6] introduced in 2010 by the Accident Compensation (Amendment) Act 2010 (Vic). Prior to the Hanks amendments s 93CD was formulated ever so slightly differently - the word 'or' was included between 'further' and 'additional' so that it read 'further or additional employment or work.' Following the Hanks amendments, the word 'or' was excised from s 93CD.

26 Section 5 of the Act needs to be mentioned on this point. It deals with the ambit of the jurisdiction of a medical panel and in the context of medical questions:

(abc) a question as to whether a worker has a current work capacity and, because of the injury, is, and is likely to continue indefinitely to be incapable of undertaking

(i) further or additional employment or work; or

(ii) further or additional employment or work that would increase the worker's current weekly earnings -

and, if not so incapable, what further work or additional employment or work the worker is capable of undertaking;

27 Section 3 of the WIRC Act is also relevant. It also deals with medical questions:

Medical question means any of the following

...

(f) a question as to whether a worker has a current work capacity and, because of the injury is, and is likely to continue indefinitely, to be incapable of undertaking -

(i) further or additional employment or work; or

(ii) further or additional employment or work that would increase the worker's current weekly earnings -

and, if not so incapable, what further or additional employment or work the worker is capable of undertaking.

28 Both questions posed in this proceeding require the application of principles of statutory construction. It is not necessary for me to go further than to refer to a decision of the Court of Appeal in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd,[7] in which the principles are conveniently set out:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.

To enable the relevant provision to be properly construed, it is therefore necessary to identify the legislative purpose of the Act as a whole and whether the relevant provision can be interpreted in a manner harmoniously with that purpose. This process requires consideration of:

(a) the text of the relevant provision itself; and

(b) the whole of the instrument, and the provisions with which the relevant provision interacts. The context extends to the existing state of the law, the history of the legislative scheme and the mischief which the statute sought to remedy, and 'imports all legitimate means by which the legislative intent may be ascertained'.

When identifying the legislative purpose of the Act consideration may be given to extrinsic material, but such extrinsic material should be looked at after 'exhausting the application of the ordinary rules of statutory construction' and it 'cannot be relied on to displace the clear meaning of the text'.

Where the ordinary meaning of the text is consistent with the legislative purpose, the court will apply that as the legal meaning.

If the text permits more than one possible construction, s 35(a) of the Interpretation of Legislation Act 1984 requires that a construction which would promote the purpose or object of an Act be preferred to one that would not.

A tension arises when the court considers that the ordinary meaning of the text is inconsistent with the legislative purpose. As the plurality in Project Blue Sky Inc v Australian Broadcasting Authority explained:

the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

The circumstances which may justify a court departing from the ordinary meaning of a relevant provision include where:

(a) the literal meaning would conflict with other provisions of the statute;

(b) the literal meaning is inconsistent with the purposes of the statute;

(c) the literal meaning is incapable of practical application; or

(d) adoption of the literal meaning would lead to a result which is absurd, unreasonable or anomalous.

Recent statements of the High Court have emphasised the primacy of the text in the resolution of any perceived tension between the text and the legislative purpose of the Act. Such statements include the following:

(a) 'The words of the statute, not non-statutory words seeking to explain them, have paramount significance'.

(b) 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text itself ... The language which has actually been employed in the text of legislation is the surest guide to legislative intention'.

(c) 'A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions'.[8]

'Further additional employment or work' or 'further or additional employment or work' in s 93CD(4)(b)?

29 In Taylor v The Owners - Strata Plan No.11564,[9] the High Court dealt with a preliminary point concerning the application of s 12(2) of the Civil Liability Act 2002 (NSW).[10] The short point was whether it was possible to read in additional words to the relevant provision so as to give effect to parliamentary intention.[11] The contest on the appeal to the High Court was whether the section should be given its ordinary grammatical meaning or a different meaning (and there was argument about the extent of it) by way of statutory implication.

30 After noting differences in approach in the New South Wales and Victorian Courts of Appeal, the High Court said:

Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot.

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".

Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.'[12]

(a) whether it is necessary for a proper understanding of the provision to read in the word 'or'; and

(b) whether such an insertion accords with the parliamentary intention and purpose of this provision.

32 For the following reasons I think both questions are answered in the affirmative.

33 First, it is difficult, to the point of incredulity, to discern why such a change should have been made as a result of the Hanks amendments. There is nothing in the Second Reading Speeches or any other relevant material to indicate why the word 'or' was deleted from this section as part of the Hanks amendments. The expression 'further or additional employment' is scattered throughout the Act both in its preHanks and post-Hanks iterations.[13]

34 Second, and this flows from the first point, there is an inconsistency which, it is fair to assume, Parliament did not intend. The scheme of the Act is that a decision made by the authority or a self-insurer may ultimately result in consideration by a medical panel which is authorised to determine an issue in relation to 'further or additional employment or work': section 5 (reproduced at [26]). It is highly unlikely that the word would have been deliberately omitted from s 93CD(4)(b) and retained for the purpose of determining the jurisdiction of a medical panel. It is also of significance that the expression 'further additional employment or work' appears nowhere else in the Act, whereas the expression with the word "or" appears on at least four other occasions.

35 Third, I mentioned at the outset there is an interaction between the Act and the WIRC Act. The definition of medical question contained in s 3 of the WIRC Act (identical to the Act on this point)[14] is intended to set the parameters (or jurisdiction) for questions which may be referred to a medical panel. Again, it is unlikely that Parliament could have intended that a medical question extend to 'further or additional employment or work', as s 3 requires, inconsistently with s 93CDA(4)(b).

36 I should add that the expression 'further or additional employment' is used in two other provisions of the WIRC Act: s 325(2)(g) and s 325(5)(b)(i). Further, there is no reference within the WIRC Act to the expression 'further additional employment or work'.

37 Finally, there is the grammatical problem. Whilst one can understand what 'further' employment as opposed to 'additional' employment or work might mean, endeavouring to discern what 'further additional employment' means is difficult and does not make sense. At least the addition of the conjunction 'or' directs the reader to look at other employment.

38 The words 'further' and 'additional' are defined in the Macquarie Dictionary as follows:

Further

1. at or to a greater distance; farther.

2. at or to a more advanced point; to a greater extent; farther.

3. in addition; moreover.

-adjective (comparative of far)

4. more distant or remote; farther.

5. more extended.

6. additional; more: I've two further points to make.

-verb (t) 7. to help forward (a work, undertaking, cause, etc.); promote; advance; forward.

Additional

adjective added; supplementary

39 Whilst I doubt that the use of the word "or" makes any great difference to the nature of the inquiry of a Medical Panel, it makes grammatical sense and is consistent with the legislation as a whole.

40 In the result I am satisfied that to give appropriate meaning to the section it is necessary to insert the word 'or' between 'further' and 'additional'. However, I repeat what I said initially: this makes no real difference to the primary question, which is that of construction of the section and its application by the Panel.

Is the question of work capacity under section 93CD confined to a consideration of the worker's current job?

41 The Panel addressed this issue by solely analysing whether the worker could undertake further or additional employment "in his current role."[15]

42 Senior counsel for DEK argued that s 93CD(4)(b) was clear in its terms and required an analysis by the authority or self-insurer of "work or employment" at large (i.e. in other occupations and not merely confined to Mr Gaffy's current job). Once the Panel restricted itself to an analysis only of his current work situation it went wrong and committed jurisdictional error.

43 Senior counsel for Mr Gaffy contended that reading s 93CD(4)(b) in isolation led to error and that the panel was correct in limiting its consideration to Mr Gaffy's current employment. This was because s 93(4)(a) and (b), when read conjunctively, requires an analysis of that work alone and not work in general. So, it was contended, the necessary inquiry was whether, in his current job, Mr Gaffy could perform further or additional work - and that was the approach adopted by the Panel.

44 Before applying the principles which I have set out at [28], it is necessary to look at the context in which s 93CD(4) appears. Under the Act, a worker's entitlement to weekly payments may cease by reason of the expiry of what is known as a second entitlement period. Section 93CD then provides for certain circumstances in which a continuation of weekly payments after that period may occur.

45 The engagement of this provision (by s 93CD(1)) is the existence of a current work capacity. Section 5(1) defines that expression as follows:

A present inability arising from injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

46 Suitable employment is defined in s 5 of the Act as:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker's pre-injury employment; and

(iii) the worker's age, education, skills and work experience; and

(iv) the worker's place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether --

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market.

47 Sub-sections (2) and (3) of s 93CD(1) are then procedural. Sub-section (4) (which I have set out above at [24]) then sets out the two mandatory requirements before the authority or self-insurer can approve an application for continuation of payments. The first requirement is that the worker has returned to work and is receiving at least $155 per week. The second requirement is that the worker is incapable of performing "further or additional employment or work."

48 It is in that context that I return to the question of the meaning and application of sub-section (4). In my view, and for the following reasons, there is no warrant to confine the words further or additional employment or work to that of Mr Gaffy's current employment - rather the words are of general application and require consideration of "further or additional work or employment" at large.

49 First and foremost, the text of the provision itself does not suggest any restriction on the work or employment which is to be considered by the decision-maker (the Authority, self-insuree or a medical panel). It does not impose any restriction upon the consideration of what is a generally well-understood expression.[16] If the legislature had wished to confine the inquiry to a worker's current job or task then such words could have been used. For instance, by use of the words 'in his current employment or work'.

50 To limit the consideration of the inquiry to a worker's current job would require a court charged with the task of construing the provision to ignore the plain meaning of the expression 'further or additional employment ...'. This, I think, clearly refers not only to the worker's current work - covered by the word 'work' but requires a more extensive inquiry as to other areas of employment - including those outside his or her work at that time.

51 Second, the reference to the worker's 'current weekly earnings' in part (a) of the subsection does not, in my opinion, qualify the inquiry as to what further or additional employment or work he or she might be capable of. Rather, it requires a stand-alone finding as to what the worker's current weekly earnings amount to (the sub-section (a) requirement) and then a determination as to whether the further or additional work or employment would result in an increase in those wages (the sub-section (b) requirement). It does not limit the inquiry concerning further or additional work to that of the current employment or work. The two sub-sections are not interdependent. They set out two separate requirements: sub-section (a) requires a return to work under certain conditions. Sub-section (b) then mandates a separate inquiry as to capacity of work. Sub-section (a) does not result in a reading down of the clear words of sub-section (b).

52 Third, the concept of a decision-maker considering what a worker may or may not be able to do outside his or her current job is a characteristic of various provisions within the Act and the WIRC Act. Regularly one or more of the decision-making bodies may be required by either piece of legislation to examine both the current earnings of the worker and what the worker may be capable of earning in 'further or additional employment' or, to use another expression throughout the Act 'suitable employment'. There is nothing unusual in this State in accident compensation legislation requiring the decision-maker to undertake a hypothetical examination of a worker's capacity to work in jobs other than that where the worker is currently employed.

53 For instance, s 134AB(38) of the Act has exercised much judicial scrutiny as to how a Court goes about the task of determining the question of suitable employment.[17] In Barwon Spinners, the Court of Appeal made the following observations about 'suitable employment':

The concept of "suitable employment" will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to "work for which the worker is currently suited". Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker's incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as "suitable" if situated too far from the worker's place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing "suitable employment" for a worker resident in Melbourne. The expression "whether or not that work is available" emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is "suitable employment", whether or not the job is currently available. [18]

54 In a different context, that of statutory payments, in Richter v Driscoll, the Court of Appeal considered the definition of 'no current work capacity' and found that any assessment required consideration of a worker's capacity to return to work 'in employment' in a meaningful way as a 'settled member of the workforce'.[19] The Court also observed that a worker's capacity to return to work encompasses more than a physical ability to perform tasks and any examination of a worker's capacity will require a consideration of 'matters travelling beyond bare medical expertise.'[20]

55 The point is that the type of inquiry mandated by s 93CD(4)(b) as to further or additional employment or work sits comfortably within the scheme of the Act and the WIRC Act.

56 In the result, I am satisfied that the panel misdirected itself as to the meaning of the provision. It requires a consideration of 'further or additional employment or work' without limitation to the work actually being performed by the worker at the time that the authority was required to make its decision

57 Finally, I do not accept the argument put on behalf of Mr Gaffy that the Panel was entitled to put Dr Baynes' opinion[21] to one side and, having done so, there was no evidence of further or additional employment or work which would increase Mr Gaffy's earnings. Whether Dr Baynes' opinion was acceptable or not, this submission misses the primary point: the Panel misdirected itself as to the task it was required to undertake. Indeed, even if the Panel applied the correct test and then put Dr Baynes' opinion aside, it was not confined to determining the matter on the medical evidence alone but could rely upon its own expertise, provided it gave the parties the opportunity to make submissions on the issue. To put it simply, once the Panel went wrong in determining its jurisdiction, its consideration of Dr Baynes' evidence is irrelevant.

58 The decision of the Panel will be quashed. I think it appropriate to remit the matter to the Convenor of Medical Panels for his determination as to the nature and composition of the Panel on the re-hearing, rather than make any specific order. As far as I can tell, there is no reason why the original Panel could not re-hear this matter. That said, there was very little material before it and the matter will need to be reconsidered, with any further evidence and submissions that the parties wish to rely upon to be provided to the Panel which hears the remitted matter.

(a) Make an order in the nature of certiorari quashing the certified opinion of the Panel dated 5 January 2016;

(b) Remit the matter to the Convenor of Medical Panels for further determination according to law.

[1] The second, third, fourth and fifth defendants are members of the Medical Panel, namely, Associate Professor Evange Romas, Dr Mary Leach, Dr Peter Millington and Mr John Bourke. In accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardimann (1980) 144 CLR 13, the members of the Panel took no part in the hearing and have indicated that they will submit to such orders as the Court might make.

[2] Reasons for Opinion of Medical Panel dated 5 January 2016.

[3] Report of Dr Michael Baynes dated 6 October 2015.

[5] The relevant provisions are to be found in the sixteenth reprint of the Act.

[6] Mr Peter Hanks produced a report to government - Accident Compensation Act Review: Final Report, August 2008.

[7] [2016] VSCA 328.

[9] [2014] HCA 9; (2014) 253 CLR 531 ('Taylor').

[10] Its cognate provision under the Victorian legislation is the Wrongs Act 1958 (Vic) s 28F(2).

[11] Taylor [2014] HCA 9; (2014) 253 CLR 531, 545 [28] (French CJ, Crennan and Bell JJ).

[13] Pre-Hanks: see ss 5 (definition of medical question), 93CD(3)(b), 93CD(4)(b)(i) and (ii), 134AB(38)(g) in Reprint 15 and Post -Hanks: see ss 5 (abc) and 134AB (19)(b) in Reprint 16.

[16] The expression has been considered in the context of s 93CD by Judges of this Court: Isikli v Surville Pty Ltd [2004] VSC 236; A+L Transport Ltd v Fish [2013] VSC 448.

[17] See Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 662 ('Barwon Spinners'); Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Poholke v GoldacresTrading Pty Ltd [2016] VSCA 232.

[18] Barwon Spinners (2005) 14 VR 662, 636 [25]. See also Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; (2008) 21 VR 193.

[19] [2016] VSCA 142, [95].