Plaintiff v First Defendant

Plaintiff v First Defendant - [2005] VSC 361 - VSC 2005 case summary — Zoe

[11]

8 The Authority, by its defence dated 5 March 2002, denied the allegation as to injury in paragraph 3 of Azzopardi's statement of claim and said that it "specifically denies the particulars...".

9 The proceeding came on for hearing in the County Court before Judge Hogan on Friday 14 June 2002. No transcript was taken. Azzopardi commenced to give evidence and in the course of her cross-examination an issue was raised as to her credit which was thought to require medical evidence as to her mental health, which evidence was not then available. The result was that on Monday 17 June 2002 the matter was "adjourned out of the list".

10 The proceeding was subsequently refixed for hearing on Monday 2 August 2004 and came before the Judge. On this occasion a transcript of the hearing was taken. The trial appears to have proceeded "ab initio" and not as part-heard. Mr L R Paine of counsel appeared for Azzopardi and Mr J A O'Brien of counsel appeared for the Authority. They had not appeared at the earlier County Court hearing.

The submissions to the County Court Judge

11 Mr Paine told the Judge that Azzopardi was employed as a cleaner at the aged care facility between late 1995 and about September 1996 and that her work involved a lot of vibration and stress to her hands and wrists. He said that she attended a doctor in June 1997 complaining of pain and swelling in the hands. Mr Paine said that he was instructed that Azzopardi was also employed for a short time in the first half of 1997 by Bacchus Marsh Poultry Pty Ltd "doing some work with chickens". Mr Paine went on to refer to relevant medical matters and to what happened before Judge Hogan. Mr Paine also indicated that he had sought instructions from the plaintiff "to send questions to a medical panel" and he handed up a draft of those questions.

12 It then appeared, after further discussion between counsel and the Judge that a "preliminary" matter that would arise before the Judge would be whether questions should be referred to a medical panel pursuant to Azzopardi's request. That discussion was immediately followed by or merged into submissions by counsel on this preliminary matter.

13 Mr Paine immediately referred to s.45 of the Act which provides, so far as material:

[23]

18 Mr O'Brien on behalf of the Authority submitted to the Judge that Azzopardi was attempting to avoid having the court hear and adjudicate on credit issues. Mr O'Brien accepted that, if the questions were referred to a panel, disputed facts including whether there was an injury with the employer or not, and issues of credit, would be decided by the panel and that the opinion in writing of the panel when given to the County Court had to be "adopted and applied by the court and must be accepted as final and conclusive".[2]

19 Mr O'Brien in effect submitted to the Judge that it was appropriate, especially where credit issues were involved, for the court rather than a panel to determine whether or not Azzopardi's actual injury (which he conceded was ultimately diagnosed as bilateral carpal tunnel syndrome) was had "with this employer" but he nevertheless conceded that the Act permitted the panel to determine that issue.

20 Mr O'Brien then said that had the request for referral been made earlier he would not have contended that there was any abuse of process but would still have been "arguing that the court ought to hear 'some' evidence".

21 After some debate with the Judge concerning the relevance of the "timing" (or lateness) of the request for referral, Mr O'Brien shifted ground, saying that it was the "unfairness" rather than the timing of the request for referral which amounted to an abuse of process but that if such unfairness could be remedied at all it would be by the calling of evidence before the court.

22 When asked by the Judge what evidence would need to be called, Mr O'Brien nominated only the evidence of the plaintiff in the expectation, he said, that she would concede "that she didn't in fact make any mention of any problem with the employer or didn't make any claim or didn't make any note of injury with the employer".

23 After referring to case law and two pertinent decisions of the County Court,[3] Mr O'Brien urged that the Court could and should hear the plaintiff's evidence and "direct the medical panel's attention to the transcript and the matters and the difficulties raised therein at the very least." Mr O'Brien concluded his submission by saying:

[29]

"17. In support of his submission that the referral would constitute an abuse of process Mr O'Brien referred to notes taken of the cross-examination of the plaintiff at the aborted hearing before Judge Hogan. The thrust of his submission was that the plaintiff's credit was under attack because of her failure to complain of her injuries and their relationship to her work at the Lodge at times that might have been expected for the making of such a complaint. He said the plaintiff sought refuge in her alleged Attention Deficit Disorder, which was disputed by the defendant. However, Mr O'Brien fairly conceded that there was evidence that might support the existence of the Disorder.

18. Mr O'Brien summarised the matters relied on at p.20-21 of the transcript to support the thrust of his submission that it was "an abuse of process, on the eve of the hearing in the afternoon, to want to send this matter off to a Medical Panel". He asserted that it was "simply a clear attempt to avoid having the court hear and adjudicate on credit issues".

19. It was not suggested by Mr O'Brien that the Medical Panel was prevented from considering credit issues; indeed he said that the defendant would "shout from the rooftops, in the disputed facts, that there was no injury".

20. Mr Paine submitted that the credit of the plaintiff was not really an issue of relevance in any event but even if it was then, he argued, that was a matter for the Medical Panel.

21. As I understand Mr O'Brien's argument it is that the plaintiff has chosen one method of dispute resolution namely to present evidence to the Court but when her position becomes difficult she seeks an alternative course, namely to present material to a Medical Panel, at the last moment. Such a course, says the defendant is unfair and this unfairness amounts to an abuse of process.

22. It seems to me that Mr O'Brien was really complaining that the defendant has suffered what it perceived to be a lost opportunity of success before Judge Hogan. I am far from convinced that this is so. However, even if it were, that is because the proceedings before Judge Hogan were aborted. Precisely how this came about is unclear. It may have been by agreement between the parties. What the situation would be if a plaintiff sought referral to a Medical Panel whilst being cross-examined simply to avoid the questioning or for some other improper purpose is another matter. Mr O'Brien disavowed any reliance on improper purpose as the head of abuse upon which he relied.

23. The fact is that the matter here was fixed for rehearing and the application for referral was made at the outset of the hearing. The legislation envisages alternative methods of resolving disputes. The legislation is expressed in strong language. The Court must make the referral except in circumstances where an abuse of process can be made out.

24. In HIH Winterthur Workers Compensation (Vic) Ltd v Greeves (1998) VSC 97, Hedigan J stated:

"S_ubject to the case of an abuse of process and possibly the issue of the time of a referral and the refinement of the medical question the court is obliged to refer the medical question to a panel on request. There is no discretion to decline to refer a medical question._"

25. As noted earlier Mr O'Brien argued both that referral would constitute an abuse of process and, as a fall back position, that at least evidence should be called from the plaintiff before any referral.

26. In argument Mr O'Brien conceded that the abuse of process, of which he complained, would be avoided if evidence from the plaintiff was called prior to referral (Transcript P32).

27. In these circumstances I propose to consider whether it is appropriate to take evidence from the plaintiff prior to referral before I consider the submission relating to abuse of process.

[31]

28. Prior to any examination of the legislation and authorities I was attracted to the notion that there might be value in the court taking evidence for the assistance of the panel.

29. Mr O'Brien relied upon the comments, which he paraphrased, of the President of the Court of Appeal in Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 to support his argument that the court has procedural control of the conduct of a case and that taking some evidence by the Court would be appropriate in this case.

30. He also referred me to decisions of this Court namely, Rick Johnson v Rare Spares Pty Ltd. (delivered 9 April 2003) and Rose v Frankston City Council (delivered 24 April 2003) where Judge Howie and Judge Coish respectively, refused to take evidence before referral. Mr O'Brien also referred me the circumstances surrounding the inclusion of s.65(6A) into the Act dealing with the referral of agreed and disputed facts to the Panel.

31. The principal purpose for the Court taking the evidence before referral, as I understand Mr O'Brien, would be to prevent or lessen any unfairness to the defendant as a result of losing an opportunity to adequately test the credibility of the plaintiff. It was implicit in the submission that the defendant would be better able to test the plaintiff's credibility before a court compared with the process before a Medical Panel. This, as I understood the point, might provide assistance to the Panel to decide the issues and provide procedural fairness to the parties.

32. It was not argued that the taking of evidence was necessary to refine or define the relevant questions to be referred.

33. In my view to hear evidence before referring the questions to a panel would be contrary to the legislative scheme dealing with medical panels, which provides an alternative method of dispute resolution to the Court. In any event I do not accept that there is sufficient reason for undertaking such a course in this case. The medical panels are required to accord procedural fairness to the parties.

34. In this regard I have considered the detailed rulings of Judge Howie and Judge Coish to which Mr O'Brien referred me.

35. I have also had regard to a number of other relevant authorities including those referred to by Mr O'Brien, in particular, Masters v. McCubbery [1996] VicRp 46; [1996] 1 VR 627, HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97 and Catholic Church Insurances v. Magistrates' Court of Victoria & Gizzi [2000] VSC 31.

36. I do not propose taking evidence before making the referral of medical questions to a Medical Panel.

[40]

31 The question arises why, if the legislation permits the Authority to appeal to the Court of Appeal from the decision of the County Court Judge in this instance, judicial review should be made available as an alternative. Mr Wheelahan SC, who appeared with Mr Fleming of counsel, for the Authority, submitted that s.52(1) of the Act did not apply to interlocutory decisions and that the decision of the Judge in this case was an interlocutory decision. Mr Wheelahan pointed out that s.52(1) referred to a person who "was" a party to County Court proceedings at which a judgment or decision "was" given or made and he submitted that the use of the past tense suggested that s.52 was concerned with appeals from final determinations rather than interlocutory decisions. Mr Wheelahan found further support for his argument in the use of the word "determination" in sub-ss.52(3), (5), (6), (7) and (8) and the power of this Court (under s.51(1)) to "confirm, reduce, increase or vary the assessment, decision or determination." Mr Wheelahan submitted that it was sufficient that there was at least some doubt whether interlocutory decisions were covered by s.52(1) and, as the point only went to this Court's discretion to grant judicial review, that doubt was sufficient to justify the Court exercising its discretion to grant judicial review (if the Authority had established grounds to do so).

32 In Green v Victorian Workcover Authority,[5] the Court of Appeal had before it an appeal pursuant to s.52(1) of the Act against a decision of the Chief Judge of the County Court that the appellant was not a "worker" within the meaning of the Act. In the course of his reasons, Tadgell JA[6] referred to the broad and imprecise language of s.52(1). His Honour noted that he had had something to say in an earlier case of Accident Compensation Commission v CE Heath Underwriting and Insurance (Aust) Pty Ltd[7] in relation to one of the forerunners of s.52 of the Act of s.52, namely s.61(3). In the earlier case the Court had concluded that s.61(3) was to be understood as if the words "against the determination" were somewhere contained in it, this interpretation being suggested by the use of the word "determination" elsewhere in s.61. However Tadgell JA noted that in s.52(1) the word "determination" did not appear but instead the words "judgment or decision" were used, notwithstanding the continuation of a reference to "determination" in other parts of s.52. As a result Tadgell JA considered that:[8]

[46]

36 In my view the reasoning of the Court of Appeal in Kuek is directly applicable here. The Authority had a right of appeal on questions of law against the decision of the Judge not to permit evidence to be given in court before the referral of the questions to a medical panel. The Authority chose not to exercise that right of appeal. The questions of law raised in this judicial review proceeding could all have been raised on an appeal under s.52(1) of the Act (whether the alleged errors of law were "jurisdictional" or otherwise).

37 In my opinion there are no exceptional circumstances which would justify permitting the Authority to avoid the necessity to appeal to the Court of Appeal by bringing a judicial review proceeding in the Trial Division. Even if exceptional circumstances need not be established, I see no good reason in the Court's discretion to permit the Authority to proceed in this way. I should add that the Authority submitted as a matter going to discretion that, if there was an error of law in the way in which questions were referred to a medical panel, it was important that the error be corrected prior to the referral. That submission depended for its force on the assumption, which I have rejected, that an appeal did not lie under s.52(1) of the Act from an interlocutory decision.

38 I have concluded that for the foregoing reasons the originating motion should be dismissed but, in case that is wrong, and in deference to the submissions put by counsel, I turn to consider whether there were errors of law made by the Judge.

The nature of the Medical Panel process

39 Medical panels are constituted under s.63 of the Act and are made up of medical practitioners. A panel must act informally and is not bound by rules or practices as to evidence and may inform itself on any relevant matter in any manner it thinks fit.[14] I was told that the practice was for parties to send written material and submissions to the panel. Any attendance of a worker before a panel must be in private, unless the panel considers that it is necessary for another person to be present.[15] The panel may ask a worker to answer questions, supply documents and to submit to a medical examination by the panel or a member of the panel.[16]

40 The function of a medical panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment referred, inter alios, by the County Court.[17] Section 68 of the Act obliges the panel to give its opinion in writing and, as already mentioned, such opinion is final and conclusive.

41 The County Court has a discretion as to the "form" in which the medical questions are referred to the panel under a request by a party.[18] The County Court must also submit a document to the medical panel specifying the injury or alleged injury to which the medical question relates and the relevant facts or questions of fact which have been agreed or those that are in dispute and copies of all documents in its possession.[19] The documents so submitted could include a transcript of evidence if any were taken by the Court.

42 The Minister may issue guidelines for the purpose of ensuring fairness in the procedure of medical panels.[20] In 1995, in Masters v McCubbery,[21] the Court of Appeal had held that the medical panels were obliged to accord procedural fairness or to observe the rules of natural justice, given that the opinions of panels were, by force of statute, adopted by the court and thereby decided and determined questions of fact and law affecting the rights of parties. The legislature had, at the option of a party, effectively divested the court of the power to make the ultimate decision as to the applicant's entitlement to compensation and invested that power in a panel of doctors.[22]

43 Although bound to refer medical questions at the request of a party, the referring court still remains in control of its own procedures,[23] including the appropriate time for the reference.[24] In Austin v Amcor Ltd,[25] Byrne J said that there needed to be a sound factual basis for the questions referred and also agreed with the view expressed by Judge Williams in a case in the County Court that a court may need to direct the medical panel as to the legal principles to be applied.

44 In J. Gadsden Pty Ltd and MMI Workers' Compensation (Victoria) Pty Ltd v Bruce McDonald[26] a party had applied at the outset to a magistrates' court for referral of medical questions to the panel. The magistrate had declined to do so immediately but had instead heard relevant evidence first. On an appeal to this Court, Smith J opined that:

[47]

"9. Gadsden and MMI, the appellants in the appeal before me, have been critical of the course of action followed by his Worship and commented that he should have dealt with the application to refer questions immediately. Whatever may be thought of his Worship's action, the appeal does not raise that question for decision. In view of the vigour of counsels' criticisms, however, some consideration of what occurred and of the practice followed is warranted. It was put, in particular, that the procedure adopted by the learned magistrate effectively subverted that intention of Parliament. Counsel submitted that the effect of the learned magistrates' conduct of the proceeding was that he had inflicted on the parties and community both methods of dispute resolution.

10. The practice followed was considered by Hedigan, J. in HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves, unreported, 2 October 1998) and received qualified approval from him. I endorse his comments. There is a danger that the practice could lead to an erroneous use of the system if a court proceeds too far into an investigation of the facts before referring the questions to a panel. Where to draw the line is difficult to judge. The present case, however, highlights the desirability of the judge or magistrate, and the parties, taking care over the formulation of the questions to be submitted to the medical panel. (See also Community Services Victoria v William Bradbury [1993] VSC 32). The failure to draw questions specific to the circumstances of the case and the consequent reliance upon the broad language of the definitions of various medical questions in s.5 of the Act had the result that the attention of the panel was not directed to the issues that they needed to consider. The appellants, who submitted the questions, share the responsibility for this.

11. A proper supervision of the referral of questions can only assist in the speedy resolution and cost efficient resolution of claims. Anyone with any experience in litigation knows that the formulation of questions to be determined separately from the primary litigation is a difficult task and should not be embarked upon without a proper understanding of the issues in the particular case. It is only then that there is reasonable prospect of avoiding unnecessary cost and delay which can flow from the referral of inappropriate questions to the other tribunal - in this case the medical panel. To that end it will be necessary in some cases to receive evidence before formulating questions. Care must be taken, however, to proceed no further than is necessary for the effective reference of medical questions and the ultimate resolution of the dispute."

[49]

58. In my view, there is nothing in the Act which prohibits the court from taking evidence on oath on matters which are relevant to the medical question or questions which are to be referred to a Medical Panel. Nor, in my view, is there anything in the Act which suggests that it would be improper for the court to identify the matrix of facts which appear to the court to be relevant to the determination of the medical question. The Medical Panel has itself power to investigate the issues, and to receive evidence, in an informal way. It seems unlikely, given the terms of the legislation, that the court could bind the Panel as to the facts, by stating the court's own assessment of the relevant facts, but that is not a question which I am called upon the resolve. The question before me is whether the court is empowered to assist the Panel by gathering facts. The submissions on behalf of the insurer, in effect, were that once the request for referral is made then it is only the Medical Panel which has the entitlement to gather or investigate the facts relevant to the medical question and that the court ceases to have any role, at all, to that end.

64. Having regard to the judge or magistrate's own duty to control the process of the court, I see no reason why a process could not be undertaken by a judicial officer of collecting evidence on oath if in the opinion of the judicial officer it was an exercise which would assist the refinement of the issues, help avoid the possibility of error arising because of the overlooking of relevant facts, and ensure the expeditious and just disposition of the case which is before the court, and upon which it is the court which, finally, gives the decision. That conclusion is consistent also with the statutory role given to the Panel. The legislature expressly left open the timing of the referral of medical questions to the Medical Panel, notwithstanding the fact that a number of County Court judges, and also Byrne J, had concluded that the referral could be delayed until after the taking of evidence. That view had been expressed by judges at a time prior to the amendment of s. 45 in 1997, and the legislature did not seek to amend the section so as to prevent the court acting in such a manner if it deemed it appropriate to do so.

65. For the court to retain a right to control its process in this way would reflect that it was the intention of the legislature that the alternative process be not merely cost effective, but be also just. The role of the court in preventing avoidable error in this way (where the risk of error was apparent to the court) would be a cost effective approach to ensuring a speedy, final and just conclusion to the dispute. It would be unlikely that Parliament would have intended that the court play no role to prevent error but should be content to leave the error to be later identified by a limited review process, one which did not permit an appeal on the merits."

[54]

52 In the context of the Judge's consideration of the above-quoted County Court decisions, I take the Judge's reference to the hearing of evidence as being "contrary to the legislative scheme" as not intended to mean "barred or excluded by statute". I think that the Judge was referring to the same discretionary considerations and policy as referred to by Judges Howie and Coish. Therefore I am of the view that, properly understood, the statement of the Judge which is under attack did not involve any error of law.

53 If, contrary to my view, the Judge's statement is to be taken literally and in isolation and therefore taken to have involved an error of law, his Honour went on to state as an alternative and independent ground for his decision that in any event he did not accept that there was sufficient reason for undertaking the course of hearing evidence before referral in the case before him. In my opinion it was well open to the Judge in his discretion to so conclude and I reject the Authority's submission that the reasons show a failure by the Judge to properly exercise such discretion.

54 The Judge later in his reasons noted that it was not contended before him that the evidence of Azzopardi was necessary to refine or define the medical questions to be referred but that the principal purpose advanced for the court to take evidence was said to be to prevent or lessen any unfairness to the Authority as a result of losing an opportunity to adequately test the credibility of Azzopardi. It was open to the Judge to be unpersuaded, as he was, by that proposition. In that respect he also referred to the panel's obligation to accord procedural fairness. Further it appears from his reasons as a whole that the Judge was also taking into account the discretionary considerations and policy referred to by Judges Howie and Coish. In my opinion the Judge did not make an error of law when exercising his discretion to refuse to take the evidence of Azzopardi before referring the medical questions to the medical panel.

Conclusion

55 For the foregoing reasons the originating motion is dismissed with costs.

At a glance

Court

Decision date

Before

Source

Judgment (55 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (2)