Plaintiff v First Defendant

Counsel for Mr R Leitch and Mr R Corlett (the first and third defendants in action 2009 10527) and for Dr Peter Farnbach and Dr Diane Neill (the first and second defendants in action 2010 00261)

1 As indicated in the course of submissions made to me by Dr Hanscombe, I am persuaded that this is an appeal for the purposes of s 4 of the Appeal Costs Act; and, secondly, that it is an appeal against the decision of a court as defined by s 3 of that Act.

2 In reaching that conclusion I am fortified in my views by the information helpfully given to me by Ms Britbart, who appears on behalf of the panel in each proceeding, that in fact certificates have been granted under s.4 of the Appeal Costs Act 1998 in applications for judicial review of medical panels.

3 The only matter which has caused me some hesitation is whether the appeal in this case has succeeded for the purposes of s 4 of the Act. Dr Hanscombe has referred me, in that regard, to the judgment of Brooking J when he was a member of the Full Court, in Pickford v Incorporated Nominal Defendant.[1]

4 In this case the parties, have each agreed that I should make orders in the form of certiorari quashing the findings of the Medical Panel. The grounds upon which the review was sought are complex, and that is particularly so because of the view that has been taken by the Medical Panel as to the effect of a statement by Cavanough J in McAlister v Leitch & Ors[2] as to whether there should be one or more questions and one or more determinations by the panel, where there is both a physical injury and a psychological injury which are each relied upon as being significant injuries for the purposes of the Wrongs Act.

5 As I indicated in argument, it has been accepted by the parties that it would be most undesirable were I to express any views as to the complicated matter which has been raised as to whether the convenor of the panel has taken the correct view as to whether it is necessary in such a case to remit both questions as one question to one panel, or to refer those questions in some other manner.

6 However, I am persuaded that, at least in the state of the legislation and in light of what has fallen from Cavanough J in McAlister, it is sufficiently arguable that in this case there was procedural error. I am also persuaded, without hearing any detailed argument at all in relation to the matter, that in the panel which considered the psychological injury, that is in the case of Ozkan v St Vincent's Hospital (Melbourne) Ltd & Ors, there may be an error of law on the face of the record on the basis that the panel, by taking into account an arguably incorrect history, may have taken into account an irrelevant matter. As I say, I have not formed any concluded view one way or other relating to those matters, but I do accept each as sufficiently arguable that, given the complex structure of the proceedings, it is appropriate that the findings of the Medical Panels in each case be quashed.

7 In those circumstances, while I do have some hesitation about the matter, I am satisfied that the plaintiff has succeeded in each case in obtaining the relief which she has sought in her originating motion. Thus, again with some hesitation, I am persuaded for the purpose of s 4 of the Appeal Costs Act that the appeal in that way has succeeded, thereby entitling, in each case, the defendant, St Vincent's Hospital, to an indemnity certificate. In the exercise of my discretion and having been satisfied that the Act does apply, in my view, this is a case in which it is eminently appropriate that such a certificate be granted and I do so grant such a certificate.

[1] [1981] VicRp 58; [1981] VR 583.

[2] [2011] VSC 5, [4].