Russo v Transport Accident Commission [2005] VCAT 24

Russo v Transport Accident Commission [2005] VCAT 24 - VCAT 2005 case summary — Zoe

[4]

1

Mr Russo, the applicant in these proceedings, sent a request to the Tribunal on 20 December 2004, seeking written reasons for the orders I made on 28 September 2004 and 6 December 2004.

2

On 28 September 2004, I made an order dismissing Mr Russo's application for review.

3

The application dismissed, was an application to review the Transport Accident Commission's (the Commission) decision made on 9 October 2001 that Mr Russo had a 23% whole person impairment arising from a transport accident on 2 August 1999.

4

The application has a long history. On 8 October 2002, Mr Russo lodged the application for review with the Tribunal. On 25 March 2003, Harvey Bruce & Co, solicitors, advised the Tribunal they were acting for Mr Russo. Orders were made in June 2003 setting the matter down for compulsory conference on 1 August 2003 and a hearing in September 2003. The matter was not resolved at the compulsory conference on 1 August 2003. At that conference the hearing date for September 2003 was confirmed.

5

The September 2003 hearing was adjourned by consent at the Commission's request because two medico-legal witnesses were unavailable.

6

A new date, 18 November 2003, was fixed. At Mr Russo's solicitor's request, by consent that date was vacated and it was refixed to commence on 19 April 2004.

7

To ensure matters would be ready to proceed on that date and to enable the subpoena of the clinical notes of Mr Russo's treating general practitioners Dr Roubos and Dr Lim, a Directions Hearing was listed for 17 March 2004. Orders were made on 17 March 2004 for the release of those reports unless Mr Russo claimed privilege.

8

Mr Russo himself then wrote direct to the Tribunal asking for a further Directions Hearing to enable him to discuss further medical reports obtained.

9

On 15 April 2004, the Tribunal received a request from Mr Russo's solicitors to further adjourn the hearing scheduled to commence on 19 April. They expressed confidence that any adjournment would be short and were firmly of the view that no further adjournment would be sought. On their suggestion, the matter was re-listed to commence on 5 July 2004.

10

On 1 June 2004, Mr Russo wrote direct to the Tribunal asking for a further compulsory conference. That was refused and he was advised the hearing was listed to commence on 5 July 2004.

11

On 4 June 2004, he again wrote direct to the Tribunal asking for a further compulsory conference, which request was refused.

12

On 5 July 2004, the matter came on for hearing before me. Mr Bruce appeared and advised that he no longer acted for Mr Russo, advising that he was the third solicitor who had acted for Mr Russo. He asked to be excused and I did so. In those circumstances, I vacated the hearing for that day, relisted it to commence on 27 September 2004 and made orders that Mr Russo inform the Commission by 30 August 2004 if he was to be legally represented at the hearing.

13

On 11 August 2004, Mr Russo again wrote to the Tribunal, seeking an urgent Directions Hearing "so that I can make an application for my Serious Injury Certificate to be released".

14

A Directions Hearing was held on 18 August 2004 and at that Directions Hearing, the hearing commencing on 27 September 2004 was confirmed.

15

The hearing commenced before me on 27 September 2004. Mr Russo represented himself and Mr Masel of counsel represented the Commission. The main areas of contention between the parties centred around what, if any, impairment ratings were attributable to the motor vehicle accident for a hernia problem, for hypertension, for a psychiatric condition, for cervico and lumbo-sacral spine conditions, scarring and Mr Russo's understanding that there should be an impairment assessment for respiratory impairment but in circumstances where no practitioner has allocated an impairment.

16

Given that Mr Russo was representing himself, the Commission had taken on the obligation of arranging Mr Russo's witnesses.

17

Mr Russo then went through the written statement he had provided and confirmed its contents were correct. Mr Masel cross-examined him. During the cross-examination, Dr Lim was interposed as a witness. Dr Lim was Mr Russo's treating doctor. He gave evidence and was cross-examined. Dr Lim took the Tribunal through all his notes, which commenced with the first record of treatment on 18 October 1984. All in all, Dr Lim accepted that the following was a fair summary of his records :

[6]

18

In further cross-examination of Mr Russo, other issues about problems which existed before the accident were put to Mr Russo, for example his hernia condition and a pre-existing degenerative spine etc as shown on x-ray prior to the transport accident. At that point, Mr Russo started questioning how long the hearing would take and why these issues were relevant.

19

Cross-examination resumed the following day and concluded. Dr Jelinek was then called for Mr Russo. He gave evidence and was cross-examined. Mr Russo was relying on Dr Jelinek's impairment assessment. The assessment was 8% for hypertension, 6% of which Dr Jelinek related to the transport accident.

20

After Dr Jelinek had given his evidence and been cross-examined, with the benefit of a fuller history put to him, Dr Jelinek no longer stood by the 6% impairment he had originally assessed related to the transport accident. At best he said arguably it might be 1% or 2%, or something not measurable at all. After Dr Jelinek was excused, Mr Russo asked me if there was an approximate impairment for the hypertension. I responded that having heard what Dr Jelinek had said it was unlikely there would be any impairment, and the difficulties Mr Russo faced in relation to that impairment were discussed with him. I was mindful of his long history, which predated the transport accident, of difficulties with controlling his hypertension.

21

Dr Kaplan, a psychiatrist who had prepared a medico-legal report for Mr Russo, was then called to give evidence. During cross-examination when issues about Mr Russo's past psychiatric history and reactions were being put to Dr Kaplan, Mr Russo objected and said he could not stay in the hearing because the matters were traumatising him and he wanted Dr Kaplan to excuse him. I explained to Mr Russo that Dr Kaplan was not in a position to do that and Mr Russo indicated that he was leaving the hearing. There were further outbursts from Mr Russo about his situation. I offered to stand the matter down to allow Mr Russo time to calm down and I allowed Mr Russo in the absence of counsel for the Commission and instructing solicitor, to speak to Dr Kaplan and myself.

22

I repeated the offer to stand the matter down to allow Mr Russo time to think about whether or not he wished to leave. I made it clear that if he left he could not come back and I would dismiss his application.

23

As it turned out, Mr Russo did leave. I dismissed the application. Mr Masel did not seek any order as to costs. He confirmed that Mr Russo still had other proceedings on foot in relation to a serious injury determination in the County Court and that the orders I made would not be "closing his gates". As I understand it, he has an undetermined application for a "serious injury certificate" at the County Court.

24

Mr Russo applied on 1 October 2004 to have his matter at the Tribunal reinstated. On 27 October 2004, I made orders that the application not be considered before completion of his County Court proceedings.

25

On 8 November 2004, Mr Russo again wrote to the Tribunal seeking a compulsory conference and hearing. The matter was listed for 6 December 2004.

26

On 6 December 2004, I explained to Mr Russo that I had dismissed his application by order on 28 September 2004 and having dismissed the application had no power to reinstate it.

27

I chose to dismiss the substantive application and not to strike it out, which would have left Mr Russo free to seek reinstatement. I did so because I intended that the matter should be brought to an end, and should not be capable of being reinstated. (see Tanska v Transport Accident Commission [2000] VSC 56). For the avoidance of doubt, I dismissed his application to reinstate the application which I considered on 6 December 2004 because I had already dismissed the substantive application and the Tribunal was functus officio.

28

I noted in the order of 6 December 2004 I had dismissed the application under s 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the Act) for "want of prosecution", in that Mr Russo had left the hearing and failed to progress his application further. Equally, my reasons for dismissing his application on 28 September 2004 were that in leaving the hearing, in circumstances where I had given him repeated opportunities to reflect on his position, and had explained to him that if he did leave, I would dismiss his application and he would not be able to come back, his abandonment amounted to vexatiously conducting the proceeding to the disadvantage of the other party such as to warrant dismissal under s 78 of the Act. This is particularly so, given the lengthy and difficult history of the application and where every effort had been made to assist Mr Russo in the presentation of his case.

29

Mr Russo said he did not want to go on with the hearing because he said he felt traumatised by the evidence of his psychiatric history. Whilst I place no reliance on this, it may well be that he abandoned the hearing because he had well understood that when the practitioners, on whose evidence he sought to rely to support his claim of a permanent impairment greater than 23%, were made aware of his full history, those assessments may not have been sustainable. That is what had happened to Dr Jelenik's impairment assessment and Mr Russo believed that the same would happen to Dr Kaplan's impairment (see transcript p131) and was not happy about that.

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Russo v Transport Accident Commission [2005] VCAT 24 (10 January 2005)

Parties