Plaintiff v First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant

2 The process for obtaining a determination as to whether a claimant has sustained a 'significant injury' is governed by Part VBA of the Wrongs Act. Where the respondent to a claim does not accept the claimant's assessment, the medical question is referred to a Medical Panel for a determination of the question pursuant to s 28LWE of the Wrongs Act.

3 On 20 November 2016, a Medical Panel determined that the plaintiff's injury did not satisfy the statutory threshold ('Determination').

4 By Originating Motion dated 19 January 2017, the plaintiff seeks an order in the nature of certiorari quashing the Determination and an order remitting the medical question in respect of which the Determination was made to a differently constituted Medical Panel to be reconsidered according to law. The plaintiff contends that the Medical Panel erred in purporting to make the Determination outside of the time period mandated by s 28LZG(3)(a) of the Wrongs Act. She submits that the Determination is invalid.

5 The parties agree that the Determination is invalid, having been made outside the statutory time period. They have provided the Court with a joint opinion submitting that the Court should set aside the Determination and remit the medical question to a differently constituted Medical Panel.

6 It is necessary for the Court to consider for itself, albeit briefly, whether the Determination should be set aside and the medical question remitted to a differently constituted Medical Panel.[1] For the reasons that follow, I am satisfied that the Court should make the orders sought by the parties.

7 Part VBA of the Wrongs Act imposes thresholds for the recovery of damages for non-economic loss and sets out procedures for claiming for non-economic loss. In particular, it provides for medical questions to be referred to a Medical Panel for determination where a respondent to a claim does not accept the assessment provided by the claimant.

8 Division 5 of Part VBA sets out the powers and procedures of a Medical Panel in relation to a medical question referred to it.

9 Relevantly, s 28LZG provides that a Medical Panel must determine the medical question. If it cannot determine the medical question, the Medical Panel must give a certificate certifying that it is unable to do so but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised or, alternatively, state the time fixed for further assessment of the person.

10 Section 28LZG(3) of the Wrongs Act provides:

The Medical Panel must give the determination or certificate -

(a) within 30 days after the last of the following to occur -

(i) the last date on which the claimant complies with a request under section 28LZC;

(ii) the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or

(b) within such longer period as is agreed by the claimant and the respondent

11 The sequence of events in this case was as follows.

12 The plaintiff forwarded prescribed information to the second defendant in accordance with s 28LT of the Wrongs Act on about 5 August 2016. Accompanying the prescribed information was a medical report of Dr Matthew Tagkalidis dated 9 June 2016, in which he opined that the plaintiff had suffered a 'significant injury' within the meaning of s 28LN of the Wrongs Act.

13 By letter dated 25 August 2016, the solicitors for the second defendant, Avant Law Pty Ltd, confirmed that the second defendant was a proper respondent to the claim and stated that they had been instructed to refer the plaintiff to a Medical Panel for assessment pursuant to s 28LWE of the Wrongs Act.

14 By letter dated 26 August 2016, the Convenor of Medical Panels confirmed that a referral had been received from the second defendant and advised that the plaintiff would be required to meet with and be examined by a Medical Panel.

15 By letter dated 13 September 2016, the Convenor of Medical Panels advised that a Medical Panel comprising Dr Remy Glowinski and Dr Edmond van Ammers had been convened and requested that the plaintiff attend for examination on 17 October 2016.

16 By letter dated 15 September 2016, DLA Piper Australia, on behalf of the first defendant, also referred a medical question relating to the assessment of the plaintiff's injury to a Medical Panel for determination under s 28LWE of the Wrongs Act. The two referrals were consolidated.

17 The plaintiff attended the Medical Panel and underwent an examination on 17 October 2016.

18 The Medical Panel did not make a request to attend or provide information to any registered health practitioner pursuant to s 28LZE of the Wrongs Act.

19 As a result, the Medical Panel was required to make a determination or a give a certificate within 30 days of 17 October 2016.

20 By letter dated 17 November 2016, the Convenor of Medical Panels sought from the parties an agreement to extend the time for the Medical Panel to make its determination to 25 November 2016. The letter stated that the Medical Panel had not yet formed its opinion.

21 By letter dated 17 November 2016, the plaintiff's lawyer wrote to the Convenor of Medical Panels consenting to the extension of time.

22 By a letter dated 23 November 2016, the Medical Panel forwarded to the plaintiff a Certificate of Determination dated 20 November 2016 and its reasons for determination.

23 In Mikhman v Royal Victorian Aero Club,[2] Kaye J held that compliance with the time limit in s 28LZG(3)(a) of the Wrongs Act is a condition of the jurisdiction of a Medical Panel to make a determination or give a certificate. His Honour stated:[3]

[I]t is significant that the time limit, specified in s 28LZG(3)(a), is expressed in mandatory terms. The use by the legislature of the verb 'must' is an important indication of a statutory intention that the time limit is mandatory.

It was the clear intention of Parliament that the time limits, specified in Divisions 4 and 5 of Part VBA, be rigorously adhered to, so that there be some certainty as to the time within which the degree of impairment of a claimant might be assessed and determined. It is understandable that, in such a context, Parliament would have intended that the time limit, prescribed by

s 28LZG(3)(a), would be a condition of the exercise by a panel of its power, rather than be directory to it. Otherwise, the statutory purpose, to ensure the expeditious determination of impairment, could be undermined, if panels could, lawfully, exceed the 30 day time limit at their discretion.

25 Justice Kaye held that the Medical Panel had exceeded its jurisdiction by purporting to issue its determination after the period of 30 days specified in s 28LZG(3)(a) of the Wrongs Act. His Honour granted relief in the nature of certiorari and quashed the decision of the Medical Panel.

26 The reasoning in Mikhman was usefully summarised by McDonald J in Holloway v Department of Human Services:[5]

Kaye J's conclusion that a determination of a Medical Panel outside the 30 day time period prescribed by s 28LZG(3)(a) of the Act is invalid, was underpinned by the following conclusions:

(i) The time limit specified in s 28LZG(3)(a) is expressed in mandatory terms, ie 'must'.

(ii) The verb 'must' is used repeatedly in Divisions 4 and 5 of Part VBA of the Act. In each instance the verb 'must' is used in its normal, mandatory, sense.

(iii) Division 5 of Part VBA, which prescribes the procedures of a medical panel, contains a number of provisions expressed in mandatory terms: ss 28LZ(5), 28LZD(1), 28LZD(2) and 28LZE(2).

(iv) Sections 28LZG(1) and (2) each use the verb 'must' to prescribe a procedure to be complied with by a panel.

(v) The intention of the Act is to provide for a speedy resolution of the threshold question as to whether a claimant, in a particular case, has sustained a 'significant injury'.

(vi) The existence of provisions expressly providing for the consequences of a failure of a party to comply with a time limit indicate a 'statutory intention that the time limits, prescribed for each of the steps to be taken leading to the assessment of impairment by a medical panel, must be strictly complied with'. They are part of a statutory scheme in which the time table 'is intended to be rigorously adhered to, so as to facilitate the expeditious determination of the assessment of impairment of a claimant'.

(vii) The fact that s 28LZK (which provides that any act or decision of a panel is not invalid 'by reason only' of any defect or irregularity in connection with the appointment of a panel member) does not preserve the validity of a decision if a panel fails to comply with other mandatory provisions, including s 28LZG(3)(a).

(viii) No public inconvenience is caused by the invalidation of a medical panel decision by reason of failure to comply with the prescribed time period.

I agree with Kaye J that each of the matters set out above support the conclusion that non-compliance by a medical panel with the mandatory terms of s 28LZG(3)(a) has the consequence that the panel's determination is invalid.

28 The parties have also referred the Court to Ryan v The Grange at Wodonga Ltd,[7] in which the Court of Appeal considered whether a Medical Panel had exceeded its jurisdiction by failing to comply with the time limit prescribed by s 68(1) of the Accident Compensation Act 1985. Neave JA (with Santamaria JA and Ginnane AJA concurring) distinguished the statutory scheme there in issue with the arrangements considered by Kaye J in Mikhman.[8]

29 The Court is bound by the decisions in Mikhman and Holloway, unless persuaded that they are clearly wrong. I am not so persuaded.

30 Accordingly, I am satisfied that the Medical Panel has erred in law and that the Determination should be set aside. The matter should be remitted to a differently constituted Medical Panel for determination of the medical question.

[1] Practice Note SC CL 9, 5. See also Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574, 577 [12]-[16] and cases there cited, especially Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323.

[2] [2012] VSC 42 ('Mikhman').

[5] [2015] VSC 184 [9] ('Holloway') (citations omitted).

[7] [2015] VSCA 17.