Plaintiff v First Defendant

1 Ms Baumgartner, by Originating Motion in the County Court, is seeking leave to pursue a claim for damages in accordance with s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Prior to the hearing of her serious injury application, the Victorian WorkCover Authority (VWA) requested referral of medical questions by the Court to a Medical Panel for Opinion under s274(1)(b) of the WIRC Act. Judge Bowman refused to refer to certain of the proposed questions as, in accordance with s 274(3) of the WIRC Act, he formed the view that the referral of those questions would in all the circumstances constitute an abuse of process.

2 The issue raised by this Originating Motion is the construction and application of s 274(3) of the WIRC Act. His Honour concluded that the referral of a medical question takes place in the context of there being a dispute before the Court. He determined that where the available medical opinion does not give rise to any dispute or controversy that requires resolution, then referral of a medical question on that issue is an abuse of process. He formed the view that on some questions sought to be referred there was simply no dispute on the relevant medical material before him. In those circumstances he declined to refer those questions.

3 I have concluded that the learned Trial Judge was in error in the way he identified the dispute and so concluded that the referral was an abuse of process upon the wrong test. Ultimately his Honour allowed some questions and refused others, depending upon whether in his view the existing medical evidence expressed contrary views or left room for areas of factual dispute. I propose granting the relief sought and will hear the parties as to the form of the order and any ancillary orders.

4 By letter filed with the Court on 11 November 2019, the second defendant advised that it did not intend to take an active role in the proceeding, and will abide by the decision of the Court in accordance with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13.

5 Ms Baumgartner was, at the time of the proposed referral, a 45-year-old woman educated to Year 10 and who had completed a hairdressing apprenticeship and worked in this industry for some nine years thereafter. She commenced but did not complete a course in real estate, then worked in retail and hospitality for some years in various roles including sales assistant, assistant store manager and store manager. Dyslexia and learning difficulties were implicated in her decision to leave school and her inability to complete the real estate course. She commenced work in a full time sales position with the employer Australian Vacuum Cleaner Co Pty Ltd on 5 December 2014. Her duties included merchandising, sales, delivery and stock count duties.

6 The chronology of Ms Baumgartner's WorkCover claim is straightforward. The Statement of Agreed Facts that had been prepared by the defendant to send to the Panel, in accordance with s 304 of the WIRC Act, described it in this way:

7. By a Claim for Compensation form dated 3 March 2015, the Plaintiff alleged injury described as "right subacromial bursitis" said to have been sustained on 19 February 2015 said to have occurred in the following circumstances "It has been from lifting and moving boxes from the back room from high shelves, having to reach to get boxes and put them back on a small ladder as the other ladder was not in the store."

8. The claim was accepted and the Plaintiff was paid weekly payments and medical and like expenses in accordance with the Workplace Injury Rehabilitation Compensation Act 2013("the Act").

9. By notice dated 3 July 2015, the then WorkCover insurer for the employer (QBE) accepted liability for proposed cervical spine surgery (C5/6 anterior cervical discectomy and fusion). The Plaintiff underwent such surgery on 30 July 2015 performed by Dr Tanya Yuen, neurosurgeon.

10. By further notice dated 3 July 2017, the current WorkCover insurer for the employer (Xchanging) rejected liability for proposed right shoulder surgery (arthroscopic subacromial decompression) recommended by Mr Anthony Bonomo, orthopaedic surgeon. This issue was referred to a Medical Panel which provided a Certificate of Opinion and Reasons for Opinion dated 22 November 2017, finding that such surgery was "not currently appropriate for the worker's injury and/or condition".

11. By notice dated 3 May 2017, the Plaintiff's entitlement to weekly payments of compensation was terminated as from 19 August 2017 on the following grounds:

• "weekly payments have been paid or payable to you for a total of 130 weeks (whether consecutive or not), and:

o alternatively, you have no current work capacity but it is not likely to continue indefinitely."

12. The Plaintiff lodged a claim for impairment benefits under the Act in relation to "neck and right shoulder and psychological impairment" dated 14 December 2017. By notice dated 3 September 2018, Xchanging accepted liability for injuries to the cervical spine and psychological condition but rejected liability in relation to the right shoulder.

7 The Statement of Agreed Facts also set out attempts to return to work in accordance with return to work plans which accompanied the proposed referral and noted her last date of work was October 2016.

8 Ms Baumgartner's application to the VWA for a serious injury certificate was refused and she commenced proceedings in accordance with s 335 of the WIRC Act. The question then for the Court is whether it is satisfied on the balance of probabilities that the injury is a "serious injury" at the time of hearing, as required by s 335(5) of the WIRC Act.

9 Leave was sought under subparagraph (a) of the definition of serious injury at s 325, identifying injury to and impairment of the cervical spine, and in the alternative a claim under subparagraph (c) for the consequential mental or behavioural disorder. Leave relying on injury to the right shoulder and its consequent impairment had been abandoned. Leave was sought in respect of both pain and suffering consequences and loss of earnings consequences.

10 On 3 May 2019, prior to the hearing of the serious injury application in October of that year, the defendant gave notice of its intention to request the Court to refer medical questions to a Medical Panel. The referral was opposed by the plaintiff and the application to refer was argued before Judge Bowman in June 2019. The plaintiff opposed referral in its entirety, submitting that that the referral amounted to an abuse of process.

11 The judge fairly summarised the competing submissions of the parties. The plaintiff's position was that the defendant's medical reports supported the conclusion that the plaintiff suffered a 40 percent loss of earning capacity. As such there was no medical dispute as to whether she met the requirement for leave under either subparagraph (a) or (c). It was therefore an abuse of process to refer a question when no dispute was disclosed by the medical evidence. The plaintiff relied on the reasoning of Judge Rendit in Stewart v GUD Manufacturing Co Pty Ltd.[1]

12 The VWA submitted that a referral in the absence of a medical dispute was not an abuse of process. The defendant acknowledged before the trial judge that a procedural step in a court process used by one party against another might amount to an abuse of process. The defendant relied on the concept of abuse of process, referring to McHugh J in Rogers v the Queen.[2] The reasoning of Stewart was said to be inconsistent with the observations of the High Court in Wingfoot v Kocak,[3] that the role of a Medical Panel is not to adjudicate competing opinions but to form its own view of the medical question referred to it. Therefore a referral, even in the face of no conflict in the medical evidence, does not constitute an abuse of process. In the alternative it submitted that the court should be cautious to determine that there is no medical dispute and submitted that the medical material as a whole in this case did in fact demonstrate the existence of a medical dispute.

13 In dealing with whether there existed a medical dispute the attention was focused on the reports of two doctors who examined Ms Baumgartner on behalf of the employer; Dr Boffa, an occupational physician and Dr Shan, a psychiatrist. The plaintiff's existing medical reports were more dated and updated reports were foreshadowed.

14 His Honour determined first the question of whether a referral absent a dispute between the parties would be an abuse of process. He then considered for each proposed question whether there was a medical dispute or scope for disagreement from the opinions. Initially, there were in total 15 questions. Four became irrelevant once the shoulder injury was no longer relied on. The remaining questions broadly addressed the nature of the condition, permanency, current work capacity and whether particular jobs would be "suitable employment". The Judge determined that questions of capacity and suitable employment could be referred but others were directed to matters concerning which there is no dispute and so were not proper for referral.[4] The Judge's reasons relied heavily upon the reasoning in the case of Stewart.

15 In Stewart the request for the referral was made at the commencement of a hearing in a case involving the rejection of a claim for compensation. Evidence was taken from the plaintiff who was cross-examined and medical reports tendered for the purpose of the referral. Once the evidence was completed, the submission was made that there remained nothing relevant in issue between the parties based upon that evidence, and therefore no relevant medical question to be referred.

The purpose of a referral of a medical question to a medical panel is to assist the Court in such proceedings on a medical dispute and so reduce the cost of litigation. If the medical opinions are not conflicting then a court does not need such assistance. [5]

In my view, although a question requested to be referred may conform with the definition of a "medical question" contained in section 5, unless it is relevant to an issue in the case, there is no obligation to refer such a question. In my opinion, s.45(1), whilst mandatory in its language, impliedly excludes irrelevant questions being referred. [6]

In my view, whilst a Court is required to refer a medical question following a request to do so, such requirement is not absolute. It may decline to do so if the request is an abuse of process, or if it is an irrelevant question to the issues in the case or if it is not a question which falls within the definition of a medical question in s.5. What is the purpose of referring a medical question which does not relate to an issue in the case? Care must be taken that a party, in requesting a referral of a medical question, is not abusing the procedure provided for by s 45(1). Where there is no medical issue on the evidence before the Court, then a request for a referral is to be considered a last desperate throw of the dice by a party in the hope that an opinion of a medical panel will turn out to be favourable to that party's cause. In my opinion, the true characterisation of such a situation is that there is no medical dispute on the evidence and therefore the proposed medical question is not a relevant question and so is not required to be referred to a medical panel. [7]

18 Judge Bowman turned first to the question of whether the absence of a medical dispute meant that a referral of a medical question on an issue was irrelevant and therefore an abuse of process. Grounded in the reasoning of Judge Rendit he reasoned that:

(a) Section 274 falls within Part 6 of the WIRC Act, which is titled 'Dispute Resolution', so the referral of medical questions takes place in the context of there being a dispute.[8]

(b) In review of the extracts of the Parliamentary debates introducing Medical Panels, the words "dispute" and "debate" were noteworthy and indicated the potential "transferring of such disputes or debates from the Court to a Medical Panel".[9]

(c) The function of a Medical Panel when questions are referred, as described by the High Court in Kocak,[10] is premised on the existence of a factual dispute or controversy. This is strengthened by the requirement in s 304(a)(ii) of the WIRC Act that the referring body must give the Convenor facts or questions of fact relevant to the medical question as have been agreed and that are in dispute.[11]

(d) Therefore in the absence of a dispute revealed by the medical opinions, a referral of medical questions is an abuse of process.

19 These conclusions were expressed in the following paragraphs of his Honour's reasons:

1. Firstly, s274 and other relevant sections fall within Part 6 of the Act. That is headed "Dispute Resolution". As stated in s274, the Court, in referring a medical question to a Medical Panel, is exercising jurisdiction under that part - that is, in the context of Dispute Resolution. In order words, the referral of medical questions takes place in the context of there being a dispute.

...

51 The Minister was contrasting this...[12]

...

1. However, it seems to me that the observations of the High Court in Kocak to which reference has been made should be seen in the context of the overall decision. It is presumed that there has been a referral in accordance with the Act. The above statement in relation to the function of a Medical Panel and a referral to it is predicated on the existence of a dispute. The function of a Panel presupposes a dispute.

1. The observations of the High Court in relation to the function of the Medical Panel appear to be based on the foundation that there is a dispute. For example, the High Court has said that the function of a Medical Panel is not to choose between competing arguments. I would also refer to what is said in paragraph 10 of Kocak:

"In each case, the person or body referring the medical question to a Medical Panel must specify the injury or alleged injury to which the medical question relates. The person or body must also specify those facts relevant to the medical question that have been agreed and those questions of fact that are in dispute, and submit to the Medical Panel copies of all documents relating to the medical questions in the possession of that person or body."

20 His Honour gave the example of a referral to a Panel of a question of diagnosis in a statutory benefits case, in circumstances where all medical examiners agree on the diagnosis such as asbestosis.

Surely, to then refer a medical question as to diagnosis to a Panel would constitute an abuse of the procedure that has been set out in relation to dispute resolution. As was said by his Honour Judge Rendit, it would be considered as "a last desperate throw of the dice by a party in the hope that an opinion of a medical panel will turn out to be favourable to that party's cause".[13]

21 He then considered individually each question, permitting only those where there was, in the medical material, the foundation for a dispute. He described these questions as proper because there remained a "live issue".

22 Section 274 of the WIRC Act relevantly provides:

274 Medical Questions

(1) In exercising jurisdiction under this Part, a court -

...

(i) a party to the proceeding requests that a medical question be referred to a Medical Panel; and

(ii) ...

the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.

...

(3) If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

...

23 There was no question that the plaintiff's request for referral was otherwise in accordance with s 274(1)(b). Nor was it in dispute that by subparagraph (2) the referral provisions applied to an application for leave to commence a damages claim.

24 Save for the decision in Stewart, the parties could not identify any case specifically dealing with the application of s 274(3) or its predecessor provisions in the ACA.[14]

25 It is appropriate to set out the general principles applicable to abuse of process. There is no exhaustive description of what might constitute an abuse of process.[15] The description by McHugh J in Rogers v the Queen provides:

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.[16]

26 The inclusion of s 274(3) makes clear that despite the mandatory nature of a referral upon request by a party, the Court retains power to prevent the procedural step of referral from being abused.

The submissions of the parties on judicial review

27 The VWA submitted that the statutory obligation is to refer medical questions relevant to the issues for determination by the Court. In determining relevance by reference to whether the evidence disclosed a "medical dispute", the Court imposed the wrong test of relevance. What might be relevant is sufficiently broad to include matters that are a necessary step along the way to deciding a case. On the proper test of relevance, no abuse of process arose and all questions in relation to the cervical spine and psychiatric injury should have been referred.

28 The worker submitted that the state of the medical evidence did not disclose competing contentions or contrasting opinions that might need to be resolved in the proceeding. A party's attempt to refer medical questions when no evidentiary dispute exists was an abuse of process because such questions were not relevant to any issue in dispute between the parties. The cases dealing with referral of medical questions identify a division of opinion between medical experts as being in issue. The role of a Medical Panel is, as has been described, in its own way to resolve 'the competing contentions of partisans'.[17] Therefore, for questions to be relevant there must be matters of contest in the medical evidence.

29 The parties did not take issue with the proposition that referral of an irrelevant question might amount to an abuse of process. Judge Rendit came to this conclusion as did Justice of Appeal Phillips in Greeves v HIH Winterthur Workers' Compensation (Vic) Ltd[18] which is discussed below. The divergence was in how the question of relevance is identified.

30 In Masters v McCubbery,[19] President Winneke described the definition of "medical question" to be sufficiently broad as "encompassing the essential ingredients which underwrite a worker's entitlement to compensation".[20] As such, he said, what is "capable of being transmitted to a medical panel for its 'opinion' is the matter which would otherwise be determined by the Court in deciding the applicant's entitlement to compensation".[21] The President described the function of a Panel in answering medical questions:

... to decide, in a manner that binds the court making the referral, the critical issues which have arisen between the worker and the authorised insurer, which issues the worker has referred to the court as a consequence of action taken by the insurer. ... the panel is being called upon to decide matters of mixed law and fact which decisions operate by virtue of the provisions of the Act to bind the court and thus effectively to dispose of the issues which have been raised by the worker and placed by him before the court for its determination. [22] (emphasis added)

31 The trial judge, Nathan J, had described, as a characteristic of a tribunal, that it arrives at a decision to "resolve the competing contentions of partisans which are affected by its decision making process".[23] The President said:

In any event, it seems to me that the medical panel is clearly "resolving the competing contentions of partisans", to adopt his Honour's phrase. The medical panel should ordinarily have before it all the material which the court would otherwise have including the 'competing' medical opinions obtained from practitioners engaged by both parties to the dispute. In its own informal way the panel is deciding the dispute by reference to "competing contentions".[24]

32 It is clear in my view that the President was referring to the contested issues between the parties and not the evidentiary material upon which that contest might fall to be decided by a court or tribunal. One might ordinarily anticipate that the evidence would encompass differing medical opinions.

33 Insofar as the reference might have been to competing medical opinions this was clearly stated not to be the role of a medical panel by the High Court in Kocak, saying "it goes too far however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions".

34 Both parties referred me to HIH Winterthur Workers' Compensation (Vic) Ltd v Greeves,[25] an appeal from a Magistrate's refusal to refer questions to a Medical Panel. In that case the Magistrate had before him competing medical opinions. Rather than refer the issue that arose by these competing opinions as a medical question, he determined the issue for himself and then concluded that the proposed medical question was irrelevant. The facts of Greeves bear repeating. A compensable back injury had occurred and a claim accepted. A second incident occurred at home for which the worker was told by the employer he needed to lodge a second claim. The rejection of the second claim was the subject of the Magistrates' Court proceeding. The statement of claim did not plead the home incident but pleaded incapacity from the time of the work incident and incapacity attributed to the work injury. At issue therefore was whether the incapacity following the home incident was incapacity resulting from or materially contributed to by the work injury. Justice Hedigan discussed the Court's duty to manage the exercise of its jurisdiction and, while explicitly not attempting to define abuse of process, said:

I would not disagree that a question that is addressed to a wholly irrelevant matter or issue, one which was so peripherally connected with the medical legal issues that it could not be reasonably thought that the answer to it could aid in any way the orderly and just disposition of the claim, might be regarded as an abuse of process.[26]

35 This passage demonstrates the requirement that a medical question be a relevant one. Judge Rendit had made specific reference to the decision in Greeves. Ms Baumgartner's submissions relied on Justice Hedigan's reference to issues "peripherally connected...that it could not reasonably thought that the answer to it could aid...the orderly or just disposition," to submit that an issue, not put in contention by the medical evidence, was not a relevant issue between the parties. It followed that a medical question, opening an area of dispute that was not a live issue on the medical evidence would amount to an abuse of process.

36 Hedigan J's decision in Greeves was affirmed on appeal. Phillips JA said:

The fact that the question submitted for referral was poorly worded did not relieve the Magistrate of his obligation to make a referral under the provision. The question identified the issue of the division of opinion between medical experts, of which the Magistrate was well aware, and which the defendant sought to have resolved by a Panel. [27]

It was the issue of whether the worker's present incapacity was a result of the work related injury, which was itself the subject of division of medical opinion, that was the relevant issue that the defendant sought to have resolved.

37 A week after the appeal in Greeves was decided, Phillips JA delivered reasons in Isuzu v Jordon.[28] A referral of questions to a Medical Panel had been requested by a defendant and refused by the Court in a disputed rejection of a claim under s 98 and 98A of the Accident Compensation Act 1985 (Vic). The request for referral came at the conclusion of the evidence and, as noted, the refusal left the Court, so far as medical evidence went, with only that led by the plaintiff. Phillips JA found it unnecessary to consider the residual possibility of abuse but agreed with Hedigan J that a relevant medical question must be referred. The absence of any contest on the medical evidence was not identified by him as impacting upon relevance. His Honour said:

In this context relevance means only that the question might be capable of assisting the Court in resolving the dispute before it.[29]

In those circumstances it follows, I think, that the Court to whom a request is made under s.45(1)(b) must still have a residual power to decline to refer a question if the Court is clearly of the opinion that the opinion of the medical panel on that question cannot be of assistance in resolving the issues which are in dispute in the litigation.

38 While at times reference is made to medical opinions being "of assistance to a court", it is clear that the role of a Medical Panel may in fact effectively impose disposition of a matter on all issues. In this context 'assistance' must include the imposition of a binding answer to some or all of the issues for determination.

39 Relevance was further considered by Osborn J in Isikli v Surville Pty Ltd,[31] a judicial review of a Magistrates Court proceeding challenging a termination of weekly payments for failure to make reasonable efforts to return to work. A Magistrate declined to refer questions on the ground that they constituted an abuse of process. Osborn J said:

...in substance the learned magistrate formed the view that the answers to the questions proposed were irrelevant to the ultimate determination of issues before him. If it was open to him to conclude they were irrelevant to the dispute before him then the referral to the medical panel might in my view properly be regarded as an abuse of power within the meaning of s 45(1B). Conversely, if the questions were, as a matter of law, relevant to the litigation before the Magistrates' Court then the Court was obliged to refer them to a medical panel.[32]

40 Osborn J found that three of the four proposed questions would not have disposed in any practical sense of the dispute between the parties and did not have the potential to do so. Nor were they directed at a step along the way to deciding the case. It was open to the Magistrate to refuse to refer them as they asked about current incapacity; an irrelevant issue. The fourth question did squarely raise the issue of past incapacity at the critical period of time. The fourth question as framed might not necessarily determine the case, but relevance was established if the opinion might be capable of assisting the court in resolving the dispute before it.[33]

41 In Kamener v Griffin[34] Ashley J, as he then was, made a number of observations as to the function of a Medical Panel. On reviewing the relevant authorities he said:

Each of Greeves and Jordon, quite apart from the evolution of s 45, show that the obligation to refer a medical question on request is not absolute and unqualified. There is nothing radical in that proposition.[35]

The question that was referred to the Panel in Kamener was one that asked whether employment was a significant contributing factor to injuries. Such a question could only be asked if injury was found to be one in the extended sense of the definition of injury; by way of s 5(b) or (c) of the Accident Compensation Act. Bearing in mind that a medical panel engages in fact finding, a question framed to ask whether employment is a significant contributing factor could of necessity only relate to injury in the extended sense. His Honour concluded that if a panel, when asked such a question, came to the view that a traumatic injury only had been sustained it should not answer a medical question founded on the contrary assumption that it was an injury in the extended sense. On the question of referring such a medical question to a medical panel his Honour said:

A court would be obliged to refer such a question[36] to a panel if there was something before it which suggested the potential relevance of para (b) or (c) of the definition of "injury" to an injury alleged by a worker. The "something" might perhaps consist of a pleaded allegation of injury, or medical evidence adduced or a medical report put in evidence before a referral was sought. That does not exhaust the possible sources of "something".[37]

42 Properly understood, these cases identify relevance by reference to the issues in dispute between the parties which fall for determination by a court. They do not in my view conclude that within those issues there must also be an evidentiary dispute or contest, although obviously this may often be the "something" that demonstrates relevance. In a statutory benefits context, pleadings will frame the issues in dispute. In serious injury applications, the Court is required to be affirmatively satisfied of all elements necessary to grant leave. In all cases the issues may be further narrowed by concession or agreement between the parties. Otherwise issues remaining fall for determination by a Court.

43 In this case the plaintiff had to satisfy the Court that she met the requirements for a grant of leave for pecuniary loss in accordance with s 335. Therefore the relevant issues included the identification of the compensable injury and its consequences, including whether the plaintiff met the narrative test in relation to pecuniary loss, and whether she met the calculated 40 percent loss. Establishing pecuniary loss required reference to the concepts of suitable employment, the calculation of "without injury earnings" and "after injury earnings", and the concepts of rehabilitation and retraining. Each of these were relevant issues for determination. Some of those issues were amenable to medical questions as defined.

44 His Honour concluded that the opinions of Dr Boffa and Dr Shan were unchallenged on issues of the nature of the medical condition and permanency, and so found the proposed medical questions on those topics were 'unnecessary', and an abuse of process. I do not accept the worker's submission that, as there was no medical dispute disclosed by the evidence, there was no live issue and so no relevance to the questions. The Court had to identify the nature of the compensable injury as a necessary step in determining and evaluating the relevant consequences.[38] The Panel would not be bound to accept unchallenged medical evidence, its role was to form its own opinion.

45 The medical reports in fact canvassed a variety of diagnoses and opinions as to the physical and psychiatric injuries and their consequences. For example, Dr Boffa diagnosed "a permanent aggravation of pre-existing cervical spondylosis". An earlier Medical Panel, looking at a request for shoulder surgery, had described the neck injury as "cervical spine dysfunction with radicular symptoms into the right upper limb". Dr Yuen, the treating neurosurgeon, gives a more fulsome description of a C6/7 posterior lateral disc protrusion causing C7 nerve impingement requiring a C6/7 discectomy and fusion. While there may be no great controversy about the surgery itself, clearly a "live issue" for the purpose of identifying consequences was whether the right arm pain was attributable to the neck and/or to the shoulder injury. At the very least, the Panel's answer to the question about the medical condition was a necessary step along the way to determining capacity questions.

46 The worker's submission, accepted by the Trial Judge, was that any variation in opinion was irrelevant because all of the opinions on the issues could only lead a court to conclude that the applicable test would be met. In this way the medical opinions did not demonstrate disagreement or dispute on the questions, so the proposed medical questions became irrelevant.

47 The submission rests on the foundation that the available and relevant evidence, being all one way, did not demonstrate any dispute for determination. This in my view is to confuse the identification of relevant evidence with the identification of relevant issues. The analysis must accept that the question of work capacity is a relevant issue. Whether or not a Court, bound to determine the issue of capacity on the evidence before it (including medical opinion), could come to no ultimate conclusion other than its satisfaction as to incapacity does not determine of itself whether the referral is an abuse of process.

48 It is instructive to look at the way the parties identified the injury and the issues in dispute. The particulars of injury prepared by the plaintiff in respect of the cervical spine injury document potentially 13 descriptions from "neck injury", to "discal injury and nerve impingement" at particular levels, to referred right arm symptoms and weakness, to laryngeal complications following the surgery. A great many medical reports (somewhat dated by June 2019) were also available, and supported the various particulars as outlined. Although unsigned and prepared by the defendant, the joint statement proposed to be sent in compliance with s 304 set out a factual chronology. It identified the issues in dispute to be, from at least the defendant's perspective - the nature of the worker's current medical condition; whether it continues to result from or be materially contributed to by employment; whether it is permanent; and current capacity.

49 The defendant's submission to the Panel which was before his Honour identified ways that the defendant said the questions it wished to refer were "live" in light of the medical opinions. The prospect of improvement in the cervical spine condition post-operatively as anticipated by the dated report of the treating neurosurgeon was raised, as was the lack of treatment and the suggestion of an undertreated condition in relation to the psychiatric injury raised questions of permanency. The issues raised were not founded on contested opinion but by gaps or questions raised by the existing opinions. Perhaps the same could not be said of questions asking material contribution given the issues identified in the termination of weekly payments and the issues canvassed in the submissions.

50 It may well be that the parties could by agreement refine those listed issues in dispute. If the medical evidence clearly left no room for debate on an issue, say as to diagnosis, the parties may well be under an obligation[39] to identify it as an agreed fact narrowing the issues in dispute. But, within those constraints a party who wishes to contest an issue is entitled to do so, either before the Court or on referral to a Medical Panel, as that party so chooses.

51 Abuse of process does encompass use for an improper purpose. Whether a party, in the face of perhaps overwhelming adverse medical opinion on a relevant issue makes a forensic decision or "throws the dice" by referring questions rather than seeking further expert opinions, their motivation or purpose to do so should not be assumed to be improper. Instead, it should be demonstrated to be so by reference to evidence and available inferences showing an improper purpose, an oppressive quality or some other feature of impropriety surrounding the process.

52 An alternative form of dispute resolution has been provided for by Parliament, and subject to the timeliness of any request, is available to a party. Whether or not a "medical dispute" is raised by the available opinions is by itself neither determinative of relevance nor demonstrative of an abuse of process. The entitlement to access an alternative mechanism of dispute resolution cannot be removed by demonstrating that a court, in considering those very issues on the potential evidence to date, might be compelled to a particular conclusion.

53 His Honour determined that the absence of any contrary medical view was sufficient to make the referral an abuse of process. The framing of the "dispute" as a dispute between experts rather than the disputed issues between the parties, led his Honour into error. In circumstances where a litigant is able to obtain further partisan evidence in an attempt to strengthen its case before a Court, it could not be said that a referral to obtain a medical panel opinion instead would constitute an abuse of process.

[1] Stewart v G.U.D. Manufacturing Co. Pty Ltd; M.M.I Workers Compensation (Vic.) Ltd (unreported, County Court of Victoria, Rendit J, 4 May 1999) ('Stewart').

[2] (1994) CLR 251 ('Rogers').

[3] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 ('Kocak').

[4] Baumgartner v Victorian Workcover Authority (County Court of Victoria, Bowman J, 6 September 2019) [2019] VCC 1435] ('Bowman J Reasons').

[8] Bowman J Reasons (above n 4) [48].

[10] Kocak (above n 3) [37]-[38].

[11] Bowman J Reasons (above n 4) [59].

[12] Bowman J Reasons (above n 4), 'this' being a reference to the situation described by the Minister 'where parties to a dispute have employed their own medical experts and brought them to court'.

[13] Bowman J Reasons (above n 4) [63].

[14] Being Accident Compensation Act 1985 (Vic) s 45(1B).

[15] Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256; Jago v District Court (New South Wales) [1989] HCA 46; (1989) 168 CLR 23.

[16] Rogers (above n 2) (McHugh J) [16].

[17] Masters v McCubbery and Ors [1996] VR 365 ('Masters v McCubbery'), 644.

[18] [2000] VSCA 68; [2000] 1 VR 344.

[19] Masters v McCubbery (above n 17).

[24] Masters v McCubbery (above n 17), 645.

[25] [1998] VSC 97 ('Greeves').

[27] Greeves v HIH Winterthur Workers' Compensation (Vic) Ltd [2000] VSCA 68; [2000] 1 VR 344, 344.

[28] Isuzu General Motors Australia Ltd v Jordon [2000] VSCA 63; (2000) 2 VR 212 ('Isuzu').

[31] [2004] VSC 236.

[34] Kamener & Ors v Griffin & Ors [2005] VSC 202 ('Kamener').

[36] That is, a question that necessarily implied that "the (alleged) injury was one which, if it had been suffered, could only constitute injury because it was an injury at least partly falling within the language of para (b) or (c) of the definition of injury".

[38] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622;; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Acir v Frosster Pty Ltd [2009] VSC 454; Guppy v VWA [2010] VSCA 164; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; (2012) 37 VR 232; Yirga-Denbu v VWA (2018) 57 VR 545;

[39] In accordance with the obligations under the Civil Procedure Act s 23 to narrow the issues in dispute.