Plaintiff v First Defendant

"6. His Honour erred in law in failing to consider whether the taking of evidence in court before the referral was necessary in order to -

(a) remove, or reduce, the possibility of the panel falling into error because of the overlooking of relevant facts and matters;

(b) assist the panel in the performance of its role under the Act; or

(c) ensure that justice was done as between the parties to the proceeding.

7. Further or alternatively, his Honour erred in law in failing to recognise, or take into account, the legitimate role played by the Court under s.45(1)(b) in eliciting facts and documents which might assist the panel to make an informed decision in respect of the medical questions the subject of the referral."

History of the County Court proceeding

5 Azzopardi's initial claim for compensation was made to the Authority on 9 May 2000. Her supporting affidavit sworn on that date stated:

"2. I performed heavy and repetitive work as a cleaner while employed by Howard Kingham Lodge and as a result injured my arms and hands and right shoulder. I haven't worked since late 1987.

3. I have been treated by General Practitioners. I have seen a specialist and I have undergone a carpal tunnel release operation to my left wrist. I was hospitalised for a day and have undergone massage / exercise treatment. I have undergone diagnostic tests. Currently I see a General Practitioner and receive laser acupuncture. I suffer from constant pain in my arms. The pain becomes worse if I drive a motor vehicle. My arms become painful if I do housework and I have to cut down on the amount of housework that I do. I have trouble even doing simple tasks like holding a telephone for any length of time. I can't hold a hose for a long period of time. I suffer from numbness of the fingers. I suffer from pins and needles sensation in both hands. I suffer constant aches and pains in my arms, wrists and right shoulder."

6 A medical report dated 12 May 2000 was also put forward by Azzopardi's solicitors to support her claim. The Authority rejected her claim.

7 Azzopardi commenced the County Court proceeding by writ dated 17 January 2002. By paragraph 2 of her statement of claim, she alleged that she was a worker, employed as a cleaner with Howard Kingham Lodge and, by paragraph 3 of her statement of claim, that she suffered injury which arose out of or in the course of her employment, the particulars of which were stated as:

"The plaintiff suffered injury as a result of the arduous and repetitive nature of her duties as a cleaner of an aged care facility. The plaintiff suffered injury to the arms, wrists, hands and shoulders and the production, aggravation, acceleration, exacerbation and deterioration of those injuries which include bilateral rotator cuff syndrome and bilateral carpal tunnel syndrome."

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:

"(1) Where the County Court exercises jurisdiction under this Part the County Court -

(a) ...

(b) if a party to the proceedings requests that a medical question or medical questions be so referred, must, subject to sub-sections (1B) and (1C), refer that medical question or those medical questions -

to a Medical Panel for an opinion under this Division.

(1B) The County Court may refuse to refer a medical question to a Medical Panel on an application under sub-section (1)(b) if the County Court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

(1C) The County Court has on an application under sub-section (1)(b) the discretion as to the form in which the medical question is to be referred to a Medical Panel.

(2) If the County Court refers a medical question to the Panel, the Court must give each party to the proceedings, copies of all documents in the possession of the Court relating to the medical question."

14 Mr Paine submitted in substance that if either party requested the Court that medical questions be referred to a medical panel, the Court must refer those questions to a panel unless of the opinion that the referral was an abuse of process. Mr Paine then suggested that the Court hear the Authority's argument for opposing the referral and the Judge invited Mr O'Brien to speak.

15 Mr O'Brien conceded at the outset that, apart from abuse of process, once a request was made by a party, a referral under the Act was mandatory but he said that the cases showed that there might be questions as to when and in what form a referral should be made.

16 Mr O'Brien then put the Authority's position in two ways, as follows:

(i) The matter ought not be referred to a medical panel because in the circumstances of the case, the application for referral having been made by letter on Friday 30 July 2004 was an abuse of process;

(ii) "The second and the fall-back position of the [Authority], is that if your Honour is against us in that submission, then at the very least evidence ought to be called as to the occurrence of an injury in the course of this plaintiff's employment with this employer."

17 In support of these submissions, Mr O'Brien referred, inter alia, to the following matters:

• no report of injury or problems with this employer during or some time after her employment;

• reference in her doctor's report in June 1997 to a history only "of working with her hands cutting chickens";

• her raising in her cross-examination at the initial hearing of "attention deficit disorder" in answer to attacks on discrepancies in her complaints;

• insufficient or mixed evidence subsequently to support her claim of "attention deficit disorder".

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:

"But we would urge upon your Honour that your Honour at the very least ought to take evidence so that any credit issues or difficulties ought to be highlighted for the purposes of the medical panel and that in accordance with the authorities that I've referred to your Honour, the current law is that this court still has control over the referral and under that control evidence ought to be taken. I can hand copies of those decisions to your Honour."

24 Mr Paine, for Azzopardi, then replied. Mr Paine submitted, inter alia, that the medical panel was in the best position to determine on the evidence the question of Azzopardi's psychiatric state. In any event, he submtitted the real issues for the panel did not depend on credit or on the plaintiff's perception of the cause of her injuries. There was a body of evidence (affidavit and clinical) available to the plaintiff and there was no real dispute about the plaintiff's employment duties or the nature of her symptoms. Mr Paine submitted that there was not really a credit issue of relevance and, even if there was, the legislation provided that that was a matter for the medical panel. All the documents would be provided to the panel and no doubt the Authority would send "strong submissions about the various inconsistencies".

The Judge's decision

25 The Judge reserved judgment and on 11 August 2004 gave reasons for his decision, which was to refer the medical questions to a medical panel.

26 After noting the history and factual background of the matter and the legislation and the request for referral, the Judge said that:

"Mr O'Brien argues that such referral would, in all the circumstances, constitute an abuse of process. He further argues, as a fall-back position, that at least evidence ought to be called as to the alleged occurrence of an injury in the course of the plaintiff's employment with the Lodge."

27 The Judge then set out the questions[4] sought to be referred:

"1. What is the nature of the Plaintiff's medical condition relevant to the claimed injuries to the:-

arms;

hands?

2. Was the Plaintiff's employment with Howard Kingham Lodge Inc. in fact, or could it possibly have been a significant contributing factor to all or any (stating which) of the claimed injuries?

3. What is the Plaintiff's level of permanent industrial loss of use expressed in percentage terms for the Plaintiff's:-

(a) right arm;

(b) left arm;

(c) right hand;

(d) left hand?"

"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.

SHOULD THE COURT TAKE ANY EVIDENCE PRIOR TO REFERRAL OF THE QUESTIONS TO A MEDICAL PANEL.

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.

WOULD REFERRAL TO A MEDICAL PANEL CONSTITUTE AN ABUSE OF PROCESS?

37. I accept that this Court has an inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner (1993) 177 CLR 378.

38. In the context of this case I accept that I would be entitled to control the processes and procedures of this Court to prevent manifest unfairness to the defendant.

39. However, I am not satisfied that referral of the questions to a Medical Panel in this case would or even might result in such unfairness to the defendant.

40. The President of the Court of Appeal noted in Masters v McCubbery, that the legislature intended to create the Medical Panels as an alternative method of dispute resolution. The panels are required to accord procedural fairness. The process was intended to cut the costs of compensation.

41. I am not satisfied this request for a referral of medical questions constitutes an abuse of process.

42. I therefore will make the order sought by the plaintiff and refer medical questions to a Medical Panel for an opinion pursuant to s.45(1)(b) of the Act."

29 The Judge went on to determine that there was no abuse of process. There is now no challenge to this aspect of the decision.

Why judicial review?

30 Section 52 of the Act deals with appeals from the County Court in accident compensation matters and provides:

(1) Any person who was a party to proceedings before the County Court at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.

(2) If a person intends to appeal to the Supreme Court under sub-section (1), the person, within 21 days after the giving of the judgement or making of the decision, must serve notice of intention to appeal on the County Court and on each other party to the proceedings.

(3) If a person has served a notice under sub-section (2), that person must lodge the appeal application within 6 months after the making of the determination or by leave of the Supreme Court (obtained before or after that period) after that period.

(4) The Supreme Court must not consider an appeal if--

(a) notice of intention to appeal has not been served under sub-section (2); or

(b) the appeal application is not lodged as required by sub-section (3).

(5) For the purposes of Division 6 of Part IV, the service of a notice of intention to appeal and the lodging of an appeal under that Division do not operate as a stay of a determination of the County Court.

(6) If the determination appealed against included a determination that compensation in the form of weekly payments be paid, the weekly payments must continue despite service of notice of intention to appeal or lodging the appeal application until the County Court reviews the determination in accordance with sub-section (8).

(7) If the determination appealed against included a determination that compensation in a form other than weekly payments be paid, the compensation in dispute--

(a) must not be paid until the period specified in sub-section (2) has elapsed; and

(b) if a notice of intention to appeal has been served under sub-section (2), must not be paid until the period of six months has elapsed; and

(c) if an application has been lodged under sub-section (3), must not be paid until the Supreme Court has considered the appeal and the County Court has made a determination under sub-section (8) or the appeal has been withdrawn.

(8) On the making of a determination by the Supreme Court on an appeal under this section, the County Court must review its determination and make a new determination not inconsistent with the Supreme Court's determination.

(9) Section 74 of the County Court Act 1958 does not apply to a judgement or order of the County Court in proceedings under this Act ..."

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]

"It is therefore scarcely possible sensibly to insert notionally into s.52(1) the words "against the determination". The best that I can make of it is to treat "determination" wherever appearing in s.52 as meaning "decision" (as to which see s.5(3)) and to treat s.52(1) as conferring a right of appeal to the Court of Appeal from (or against) a judgment or decision of the County Court on a question of law raised during the proceedings before the County Court and which is involved in the judgment or decision."

33 Tadgell JA's reasoning does not solve the present question but does suggest that s.52(1) should not be construed restrictively as applying only to a "determination" and that effect should be given to its plain language. Thus, as expressed, there is a right of appeal from any "judgment or decision" given or made in the relevant County Court proceedings. This supports the view that interlocutory judgments or decisions are covered by the section. It would have been easy, had the intention been to exclude interlocutory judgments or decisions, to do so expressly, for example, by using the provision contained in s.74(2D) of the County Court Act 1958,[9] or by using the formula of "final order" to be found in ss.92(1) and 109(1) of the Magistrates' Court Act 1989 (Vic). Furthermore the Authority's submission is inhibited by the extensive and inclusive definition of "determination or decision" contained in s.5(3) of the Act, in particular, that a reference to a "decision" includes a reference to:

"(a) making, suspending, varying, revoking or refusing or failing to make an order, award, decision or determination;"

34 In my opinion, on a plain reading of this provision and for the reasons indicated, s.52(1) of the Act covers interlocutory judgments and decisions.

35 In Kuek v Victoria Legal Aid[10] the Court of Appeal had before it an appeal from a decision of the trial judge dismissing an application under Order 56 for judicial review of the decision of a magistrates' court in civil proceedings. The trial judge (Warren J as she then was) had exercised her discretion to refuse to entertain the application because the litigant had a right of appeal under s.109 of the Magistrates' Court Act 1989. Phillips JA (for the Court) said:

"In this instance leave [to appeal out of time] was sought and refused .... In substance the application for judicial review was no more and no less than the appellant's attempt to appeal by another means ... . The judge held that in those circumstances the appellant could not succeed under O 56, and I agree.[11]

...

In my opinion, this Court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under O 56 ... a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s109.[12]

...

... I prefer to rest the decision that the appellant does not succeed here on the exercise of discretion, lest by referring to jurisdiction the powers of the court under O 56 be unintentionally circumscribed. ... It is perhaps a moot point whether a case will arise in which it would be proper, despite the right of appeal conferred by s109, to exercise the discretion in favour of relief by way of judicial review after error of law on the part of a magistrate, but I need not decide it. It is enough, that as at present advised, I would not altogether exclude it. As I have already said, such a case would surely depend upon exceptional circumstances."[13]

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:

"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."

45 In Catholic Church Insurances v Magistrates' Court and Gizzi[27], Eames J (as he then was) dealt with this question as follows:[28]

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."

46 The views of Smith J and Eames J have to be read subject to the subsequent insertion of s.45(1C) in the Act, but I note that Kaye J generally followed these views and adopted a similar approach in the later case of CGU Workers' Compensation (Vic) Ltd v Magistrates' Court.[29]

Did the Judge make errors of law?

47 In the present case it was common ground, in the light of the foregoing judicial statements, that the County Court might hear the worker's evidence before referring the questions to the panel, if it thought this course to be appropriate.

48 Mr Wheelahan submitted that the Judge therefore made an error of law when he said that "to hear evidence before referring the question to a panel would be contrary to the legislative scheme dealing with medical panels."

49 As a further indication that this was an error, Mr Wheelahan referred to the Judge's earlier statement that, prior to any examination of the legislation and authorities, he was attracted to the notion that there might be value in the court taking evidence for the assistance of the panel. This reference to "authorities" I understand to be a reference, inter alia, to the decisions of two other County Court Judges in which they declined to exercise their discretion to take evidence prior to the obligatory referral to a Panel. In his reasons the Judge referred to those two decisions.

50 In Johnson v Rare Spares Pty Ltd[30] Judge Howie said:[31]

"There remains the issue of the court gathering evidence before referring the questions. No specific proposal has been made about that to date. For the reasons suggested by Smith J in [J. Gadsden Pty Ltd and MMI Workers' Compensation (Victoria) Pty Ltd v Bruce McDonald] I would be very cautious about agreeing to such a proposal. It seems to me that it would be very difficult for a court to form a view about the credit of a witness in relation to a particular matter of matters without hearing most, if not all, of the evidence.

It is likely that to commence on such a course would not be a sensible or expeditious dealing with the proceeding, having regard to the statutory scheme requiring referral of medical questions as defined to a medical panel."

51 In Rose v Frankston City Council[32] Judge Coish said:[33]

"I do not propose to defer the referral of medical questions to a medical panel whilst I hear evidence from the plaintiff and perhaps other witnesses. I do not consider that it is appropriate to embark on a fact-gathering exercise before I make this referral. In reaching this conclusion I have had regard to a number of relevant authorities ... [34]

...

In my opinion the concerns expressed by the defendant about the issues of causation, the plaintiff's credit and the inconsistent histories are satisfied by the provision to the medical panel of appropriate documentation pursuant to s.65(6A). In this case the plaintiff has no objection to the defendant including in the material the court sends to the medical panel a very detailed submission ... .

I do not consider it appropriate to require the plaintiff to give evidence and be cross-examined to enable the defendant to then formulate further submissions for the medical panel having regard to the plaintiff's evidence in court ... .

...

... In particular, I remain convinced that to embark upon an open ended fact-gathering exercise defeats the purpose of the statutory provisions dealing with medical panels."

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.

[1] It is a proceeding within the exclusive jurisdiction of the County Court - see s.39(1) of the Accident Compensation Act 1985 (Vic).

[2] See s.68(4) of the Act.

[3] See paras [50] and [51] below.

[4] It was common ground both below and in this Court that these questions constituted "medical questions" covered by the extensive definition contained in s.5(1) of the Act.

[5] [1997] 1 VR 364.

[6] [1997] 1 VR 364 at 368-370.

[7] Unreported, Full Court, 13 December 1991.

[8] [1997] 1 VR 364, 369.

[9] "An appeal does not lie to the Court of Appeal from a judgment or order of the court in an interlocutory application".

[10] [2001] VSCA 80; (2001) 3 VR 289.

[11] [2001] VSCA 80; (2001) 3 VR 289, 292-293.

[12] [2001] VSCA 80; (2001) 3 VR 289, 293.

[13] [2001] VSCA 80; (2001) 3 VR 289, 293-294.

[14] S.65(1) and (2) of the Act. These provisions are partly in similar terms to the provision which applies to the County Court itself - see s.44(1) of the Act.

[15] S.65(4) of the Act.

[16] S.65(5) of the Act.

[17] S.67(1) of the Act.

[18] S.45(1C) of the Act.

[19] S.65(6A) of the Act.

[20] See s.65(8) of the Act - apparently no guidelines have been issued.

[21] [1995] VICSC 209; [1996] 1 VR 635.

[22] [1995] VICSC 209; [1996] 1 VR 635, 637 per Winneke P.

[23] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 657 per Callaway JA.

[24] See Austin v Amcor Ltd (unreported, 3 April 1998, Supreme Court of Victoria, Byrne J, BC9801104 at pp.6-7)

[25] Unreported, 3 April 1998, Supreme Court of Victoria, Byrne J, BC9801104 at pp.14-15.

[26] [1999] VSC 190 - see too HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves [1998] VSC 97.

[27] [2000] VSC 31.

[28] [2000] VSC 31 at [58], [64]-[65]. See also paras [19]-[20], [24], [27] and [29]-[30].

[29] [2004] VSC 22.

[30] County Court proceeding number 1066 of 2001, Judge Howie, 9 April 2003.

[31] County Court transcript at pages 79-80.

[32] County Court, Judge Coish, 24 April 2003.

[33] County Court, Judge Coish, 24 April 2003, extracted from unnumbered pages of the transcript.

[34] His Honour referred to Austin v Amcor Ltd, Catholic Church Insurances v Magistrates' Court and Gizzi, HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves and J. Gadsden Pty Ltd and MMI Workers' Compensation (Victoria) Pty Ltd v Bruce McDonald.