Ryan & Anor v Watkins & Anor

[2005] NSWCA 426

Court of Appeal (NSW)|2005-12-05|Before: Mason P, Handley JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2005-12-05

Before

Mason P, Handley JA

Catchwords

Privilege - public interest immunity - ss 129, 130 Evidence Act 1995 (NSW) - certificates and report of Medical Assessor under Motor Accidents Compensation Act 1999.

Source

Original judgment source is linked above.

Catchwords

Privilege - public interest immunity - ss 129, 130 Evidence Act 1995 (NSW) - certificates and report of Medical Assessor under Motor Accidents Compensation Act 1999.

Judgment (60 paragraphs)

[1]

Introduction. This is an application for leave to appeal and, if leave is granted, an appeal, heard concurrently against the refusal of Judge Sidis of the District Court to set aside two subpoenas for the production of material I later specify. 4 The first claimant Dr Michael Ryan ("the medical assessor") was at all relevant times a medical assessor duly appointed pursuant to the provisions of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). The second claimant is the Motor Accidents Authority of NSW ("the Authority") established by the Act. 5 The first opponent Robert Watkins ("the plaintiff") suffered personal injury as a result of a motor accident admittedly the fault of the second opponent Tania Power ("the defendant"). 6 Pursuant to procedures to which I shall come the plaintiff was examined by the medical assessor on 12 November 2002. The medical assessor issued certain certificates and a statement of reasons. 7 On 17 November 2003 the plaintiff filed a statement of claim in the District Court claiming damages for his injuries and their consequences. 8 On 27 August 2004 Judge Sidis heard a number of interlocutory applications including motions by the medical assessor and the Authority to set aside subpoenas addressed to them. 9 On 14 October 2004 her Honour gave judgment on the applications and, amongst other things, dismissed the applications to set the subpoenas aside. 10 It is unnecessary to detail all the matters in issue before the Judge because the application before us was expressly limited to the refusal of the Judge to accept the claim of public interest immunity in respect of the following documents: "Documents from the Medical Assessor's File a. ……… b. The Medical Assessor's handwritten notes of the medical examination made on 12 November 2003 (3 pages in the medical assessor's handwriting) and a one page form styled ":MAA assessment" (a medical assessor checklist provided to the medical assessor by the MAA) which is completed in the medical assessor's handwriting and dated by him 12 November 2002. c. A 12 page draft reasons for assessment of a medical dispute and certificates dated 20 November 2002 not signed styled "First Draft". d. A two page facsimile transmission from an "Assessments Reports Officer" of the MAA to the medical assessor dated 10 March 2003 being a request from an officer of the MAA made pursuant to clause 10.11 of the MAA's Medical Assessment Guidelines (at Tab 8 of the White Book) being a request of an officer of MAS for the medical assessor to correct an error in the medical assessor's draft reasons for assessment of a medical dispute or certificate. e. A 13 page draft reasons for assessment of a medical dispute and certificates dated 20 November 2002 not signed styled "2nd Draft". Documents from the MAA's Files f. A copy of a 12 page draft reasons for assessment of a medical dispute and certificates dated 20 November 2002 received [by] the MAA on 28 November 2002. g. A two page facsimile transmission from an "Assessments Reports Officer" of the MAA to the medical assessor dated 10 March 2003 (with the facsimile transmission report attached) from the MAA's files being a request from an officer of the MAA made pursuant to clause 10.11 of the MAA's Medical Assessment Guidelines (at Tab 8 of the White Book) being a request for an officer of MAA for the medical assessor to correct an error in the medical assessor's reasons for assessment of a medical dispute or certificate." 11 This description is taken from an affidavit of Mr Dawson, the solicitor for the claimants, which the Court permitted to be read on the appeal. Mr Petty of Senior Counsel, who appeared with Mr J T Kearney for the plaintiff, initially objected to the use of this description, however, I did not understand him to maintain that objection. 12 The description is more complete but not essentially different to that enunciated by Mr M A Robinson of Counsel who appeared for the claimants before Judge Sidis as follows: "3. The documents in respect of which privilege is claimed may be described as: a. Internal medical assessment practice management (two documents); b. The Medical Assessor's handwritten notes of the medical examination - one document of which is recorded on the MAA assessment form (the assessor checklist) referred to in the Authority's letter to the Medical Assessor dated 23 October 2002 (two documents): c. Written Communications with an officer of the Authority (one document); and d. Draft certificates and reasons for certificates (two documents). 4. The Authority seeks similar orders relating to the subpoena addressed to it in relation to documents concerning communications between the Medical Assessor and the Authority regarding the medical assessment (other than those documents that were copied to the parties as at the time of the said assessment). In the present case, there are three documents in respect of which the Authority claims privilege and some computer records." 13 As it happens nothing turns upon the precise description of the documents. The Court was invited by all Counsel to inspect the documents if it were thought appropriate to do so. On the view I take of the matter such inspection is unnecessary.

[39]

………………………." 39 The Medical Assessment Service (MAS) has been established by the Authority to resolve medical disputes. Certificates and Report 40 The plaintiff was examined by the medical assessor on 12 November 2002. 41 On 20 May 2003 the Medical Assessment Service of the Authority received from the medical assessor four certificates each referring to the same accompanying report which set out his reasons. The certificates were all dated 12 November 2002 and the report was dated 20 November 2002. 42 By his respective certificates the medical assessor found and certified as follows: 1. That the plaintiff's whole person permanent impairment was not greater than 10%. 2. That the injuries to the neck and right shoulder had stabilised whereas the low back injury had not. 3. That certain identified conservative medical treatment and the proposed spinal surgery were not reasonable and necessary. 4. That the same conservative treatment and the proposed spinal surgery were not causally related to the injury caused by the subject motor accident. 43 Pursuant to the Act certificates 1 and 2 were conclusive as to the matters certified. Certificate 3 was conclusive as to treatment "already provided" but not as to any treatment (including the proposed spinal surgery) thereafter. Certificate 4 was not conclusive. 44 As the matter was argued nothing turns upon the fact that one certificate had both conclusive and non-conclusive aspects. Accordingly I shall for simplicity of expression speak hereafter of conclusive and non-conclusive certificates. 45 The accompanying report was in a conventional form. It dealt, to varying degrees, with all of the plaintiff's injuries as it had to in order to make an assessment of whole person impairment. It contained material that was of forensic use to the defendant. 46 Judge Sidis in her judgment only referred to three of the certificates, however, nothing turns upon this. It is to be noted that Mr Petty conceded that there was no forensic purpose in pursuing material related solely to the conclusive certificates which he accepted were determinative of the matters certified. 47 Judge Sidis conveniently referred to some extracts from the medical assessor's report as follows: "On the basis of contemporary evidence (record of symptoms), I do not consider that Mr Watkins' current low back symptoms are directly related to the accident of the 29 October 1999.

[46]

The Appellant's Submissions 54 Mr Gageler put that the documents for which he sought privilege "in broad terms deal with the decision making or deliberative process undertaken by the medical assessor". He said that it was, fundamentally, on that ground that public interest immunity is sought to be maintained. 55 He asserted that, whilst an arbitrator could be called to give evidence of what took place before him, he could not be asked to give evidence in respect of the deliberative process. He put that that principle was now reflected in s 129 of the Evidence Act and that "it's fundamentally that principle that we seek to invoke here". 56 Mr Gageler demonstrated how the District Court Rules set out above [17] brought s 129 and s 130 of the Evidence Act into operation at the subpoena stage (Esso Australia Resources Ltd v The Commissioner of Taxation (1999) 201 CLR 49 at [18] - [28]). He also noted that under the rules the common law of public interest immunity remained in place. 57 It is convenient to note that Mr Petty did not challenge these matters. 58 Mr Gageler then went to s 129 [20] and submitted that the medical assessor was either an arbitrator falling within subs (1)(b) or a judge within subs (1)(a). 59 As to the meaning of "arbitrator" he referred to the written submissions Mr Robinson had made to Judge Sidis. In those submissions Mr Robinson put that "an arbitrator is properly described as a person to whom a dispute or difference is referred to be resolved by arbitration". Mr Gageler submitted, in my view correctly, that arbitration is fundamentally "the settlement by binding determination of a dispute between parties". 60 As to the meaning of "judge" he relied upon the definitions set out above. [21]. 61 Mr Gageler put that there was nothing in the definition of Australian court paragraph (e) that confined the evidence referred to therein to evidence of the nature that would be received in court. He did, however, exclude "simply (an) investigation agent" and conceded that in the context the person would be one "who is acting judicially". 62 He put that the subjection of the medical assessor to the process required by 10.10 to 10.13 of the Medical Assessment Guidelines [34] was "a quality control process" which did not lead to the conclusion that the medical assessor was not acting judicially. He did concede, I think correctly "that a proposition put back by the officer of the authority that the doctor had not followed the prescribed method of assessment could lead to quite significant changes in the outcome of the report". He also accepted that application of the Guidelines could differ from mind to mind. 63 Mr Gageler then indicated that the appellants relied upon s 130 and in particular subs (4)(f). [20]. Not surprisingly he did not elaborate upon this submission. 64 Whilst accepting that the common law position was substantially encapsulated in ss 129 and 130 Mr Gageler did take the Court to a number of the leading cases dealing with that position. Mr Petty did not join issue on the formulation of the relevant principles and detailed reference to those authorities is unnecessary. 65 The first case to which Mr Gageler referred was Duke of Buccleuch v Metropolitan Board of Works (1871) LR 5 HL 418. 66 The relevant issue was whether certain evidence given by an arbitrator in respect of a dispute was admissible, and if so, to what extent, and for what purpose. 67 Baron Cleasby said at 432: "I answer the first question by giving it as my humble opinion -

[47]

That the umpire was a competent witness, like any other person, to prove matters material to the issues. 2. That questions might be properly put to him for the purpose of proving the proceedings before him, so as to arrive at what was the subject-matter of adjudication when the proceedings closed, and he was about to make his award. 3. That as regards the effect of the award no questions could properly be put to the umpire for the purpose of proving how it was arrived at, or what items it included, or what was the meaning which he intended at the time to be given to it." 68 At 434 he said: "Thirdly: As soon as the award is made it must speak for itself. It must be applied, as in other cases, by intrinsic evidence to the subject-matter, but cannot be explained or varied or extended by extrinsic evidence of the intention of the person making it. There appear to me to be the strongest objections against allowing the umpire to be examined for the purpose of shewing what he intended to be included in the award." 69 In the same case Lord Cairns said at 462: "As regards the reception of the evidence, in my opinion the line has been most properly and accurately drawn by Mr. Baron Cleasby . It appears to me that upon every point which may be considered to be a matter of fact with reference to the making of the award, the evidence of the arbitrator or umpire was properly admissible. He was properly asked what had been the course which the argument before him had taken - what claims were made and what claims were admitted; so that we might be put in possession of the history of the litigation before the umpire up to the time when he proceeded to make his award. But there it appears to me the right of asking questions of the umpire ceased. The award is a document which must speak for itself, and the evidence of the umpire is not admissible to explain or to aid, much less to attempt to contradict (if any such attempt should be made) what is to be found upon the face of that written instrument." 70 This case was followed by the Privy Council in O'Rourke v The Commissioner for Railways (1890) 15 App.Cas. 371. 71 Herijanto v Refugee Review Tribunal [2000] (170 ALR 379) was a case in which it was sought to administer interrogatories to individual members of a Refugee Review Tribunal. Such members enjoyed by Statute the general protection and immunity of a justice of the High Court. Gaudron J said at 16: "Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment. And that approach is entirely consistent with what was said in Hennessy ." 72 The case of Hennessy thus referred to (Hennessy v BHP Co Ltd (1926) 38 CLR 342) was the next case to which Mr Gageler turned. 73 In that case a Medical Board appointed under the Workmen's Compensation (Lead Poisoning - Broken Hill) Act 1926 had issued a certificate as to the physical fitness of Hennessy which was held to be "inoperative". The question then arose whether the trial judge had been correct in rejecting evidence of the members of the Medical Board as to Hennessy's physical condition and fitness for work as ascertained by them at an official examination. 74 The High Court upheld the view of the Supreme Court of New South Wales that the trial judge had been in error. The judgment of Knox CJ, Gavan Duffy and Starke JJ, after referring, amongst other things, to the Duke of Buccleuch, went on: "Now, members of the Medical Board are neither Judges nor arbitrators: their functions are administrative and supervisory. To them is confided the duty of ascertaining and certifying whether a workman is or is not suffering from lead poisoning, and whether he should be removed from future exposure to its risks. It is impossible in these circumstances, in our opinion, to deny their competency as witnesses; but the extent to which they can give evidence of matters coming before them officially is another matter. In our opinion the evidence tendered is admissible because it is not prohibited or privileged, because it does not seek to invalidate any act of the Board or to explain, contradict or vary any of its certificates or acts or to disclose the manner in which the Board exercised any of its functions, and because it merely seeks the disclosure of existing facts and symptoms and the opinion of expert witnesses who also happened to be members of the Board upon those facts and symptoms." 75 It is convenient to say at this point Mr Gageler was taken by the Bench to the possibility that the history taken by the medical assessor and the notes of the physical examination, as opposed to comments thereon, might be factual material as to what was before him of which evidence could be given in accordance with the authorities. 76 Mr Gageler replied to this suggestion as follows: GAGELER: "Yes. Your Honour there are really three categories of documents. There are the drafts of the report that were incorporated by reference into the certificate and form the reasons for the certificate in our respectful -- HANDLEY JA: The drafts of the report that later was incorporated into the certificate. GAGELER: Yes, yes. In our respectful submission that clearly enough forms part of the deliberations of the medical assessor and falls squarely within the rule. There are then the communications with the Authority, checking and pointing out errors in the draft. That clearly does not form part of the deliberation as such of the medical assessor but is clearly enough part of the deliberative process in which the medical assessor was engaged. Both of those in our respectful submission fall comfortably within the rule and we accept that when one gets to the notes of the examination that there is more difficulty in the contention but in our respectful submission the notes of the examination where the examination really forms part of the process of considering the evidence, not simply taking the evidence but considering the evidence and forming judgments as the examination progresses is part of the deliberative process but we accept your Honour that that lies in a more difficult stage of proceedings." 77 We were later informed by Mr Gageler that the notes of the examination did contain commentary material. It was suggested that should it be necessary the parties could attend to any necessary deletion of material. 78 The last authority to which Mr Gageler went was Ward v Shell-Mex and BP Ltd (1952) 1 KB 280. Streatfield J accepted that a member of a medical board set up under the National Insurance (Industrial Injuries) Act 1946 could not be called to testify to the plaintiff's condition when he had examined him in the course of his duties as a member of the board. The Judge said: "That is the very question which the court has to decide. There is, of course, the well known exception of the opinion of experts, but although this doctor whose evidence is in issue is an expert, and because he is an expert he was appointed to this board, the opinion which he there expressed was not so much the opinion of an expert as the opinion of a member of a judicial statutory body. Therefore in my view his evidence falls under quite a different principle. He would be an admissible and competent witness to give evidence on the facts and matters which were presented before him but he would not, in my opinion, and I so rule, be able to give any evidence at all as to the reasons which prompted him in coming to the conclusion which resulted in the certificate which was granted by this medical board under the Act. That certificate - I do not know what it was - stands on its own footing and it cannot be contradicted or explained or varied by a member of that tribunal. It seems to me, therefore, that this witness who is tendered is bound to be in this position: either he will support his award, in which case the award speaks for itself, or else he will contradict it, in which case he could be cross-examined on the very line that Cleasby B. said was inadmissible in Duke of Buccleuch's case That being the inevitable result of calling this witness, his evidence ought not to be received." 79 Mr Gageler took the Court through the relevant processes of the Act to which it is not presently necessary to refer.

[49]

The Plaintiff's Submissions 81 Mr Petty put that the medical assessor's certificates did not represent "decisions" in "any usual sense" because they had "many curious features" to which he would come. 82 Further, he put that the process of medical assessment did not have the hallmarks of "proceedings" before a judge or an arbitrator or the like with the consequence that ss 129 and 130 and the associated common law was not engaged. 83 Mr Petty pointed out that of the six matters that could be certified three were rendered conclusive and three were not. There were he submitted good reasons for conclusiveness to be provided for in each of the cases in which it was. 84 As to whole person impairment it is the necessary gateway to a claim for economic loss. As to stabilisation that is the trigger to the steps to be taken by a claimant. As to past medical expenses that is a dispute normally of a fairly limited nature and also involved in some circumstances the obligation of the insurer to pay without awaiting final adjudication. 85 Mr Petty stressed the terms of s 61(3) which, for convenience, I repeat: "Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned." 86 Thus, Mr Petty argued, it could not be said that the matters set out in the non-conclusive certificates were final because of this statutory description of them. Mr Petty used the word "final" to convey the sense in which a judicial or arbitral decision, not being interlocutory, is final (see Cross on Evidence Aust ed 5025; G Spencer Bower, A K Turner and K R Handley, The Doctrine of Res Judicata, 3rd ed, ch 5; and Russell on Arbitration 19th ed at 333). 87 Further, Mr Petty put in respect of all the certificates that they could not be considered final. Without error being necessarily shown they could be referred again under s 62. They may also be reviewed under s 63. Mr Petty did put that there was no need for error to be found for there to be a review by an enlarged number of assessors. It is, however, to be born in mind that under s 63(2) "An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect." 88 Mr Petty put that, in using the language of s 61(3), the Parliament appreciated that the "evidence" of which the provision spoke would usually be used in the context of medical evidence. He put: "The submission that I was developing is this - the word [evidence]. Parliament must be intended to know how these cases are fought out and they usually involve a contest of expert evidence. Parliament must also be assumed to know that there's an established body of law which requires the party relying on expert evidence and the tribunal of fact to look at what assumptions have been made by the expert and what assumptions have been disclosed by the expert. If it is not possible to test the assessor's evidence in the usual way then a number of very unfortunate consequences - - -" 89 Mr Petty submitted that, on the basis of that knowledge, had the Parliament wished to circumscribe the way in which the medical assessor could be called and examined it could readily have done so. 90 He illustrated his argument with the following situation: "We then have this extraordinary situation that the assessor's report and certificate could be tendered and then a party would be not able to cross-examine that witness in the same way as his or her opponent's other medical witnesses. One of two things could occur. The trial judge might give primacy to the assessor's opinion because it hadn't been effectively challenged or, swinging in the opposite direction, and because it hadn't been tested in the usual way, simply regard it as of no weight. In neither instance is the proper function of the court assisted by the evidence being treated by means of a stereotype."

[50]

91 He put that Parliament had either expressly or impliedly evinced the intention that the certificate and the report is to be expert evidence in the usual way and subject to all the developed body of knowledge that relates to expert evidence. 92 Mr Petty then turned to s 129 and submitted that the function of a medical assessor had none of the usual indicia of judicial proceedings, arbitral proceedings or the like. 93 He put that the certificates did not finally decide a matter and that the functions of the medical assessor included a significant investigative role. Mr Petty submitted that the medical assessor did not decide any rights in a relevant sense and drew attention to the provision for successive applications over time. 94 He contended that the fact that the assessor was obliged to act judicially (which he appeared to accept at least for the purposes of the argument) did not mean that he was a judicial officer and referred to Lamb v Moss [1983] 49 ALR 533 at 558-559 and Sutcliffe v Thackrah (1974) AC 727 per Lord Reid at 737. 95 Mr Petty drew attention to the scrutiny by an administrator upon matters that went beyond a mere slip rule. This, he submitted, was inconsistent with the role of a judge or arbitrator. 96 Mr Petty submitted in relation to subparagraph (e) of the definition of Australian Court that the words hear, receive and examine evidence connote a formal process of receiving evidence in a curial type way and, ordinarily, upon oath. 97 He submitted that the medical assessor was not an Australian Court and that the process of assessment was not a proceeding. 98 Mr Petty put that s 61(3) evinced an intention that the medical assessor be available for full cross-examination in respect of matters the subject of non-conclusive certificates. This intention, he put, supplanted any more restrictive role purported to follow from Hennessy. 99 In relation to s 130 Mr Petty, correctly in my view, excluded consideration of the exceptional class of documents that ought to be protected irrespective of their particular content. He submitted that any balancing exercise should come down on the side of disclosure. He put that there was a compelling public interest in the proceedings being transparent and drew attention to the Guidelines in ch 9.7 which say that all information which is before the assessor should be shared between the parties. He drew attention to Judge Sidis's comment on this point. 100 In an exchange with the Bench it emerged that there was nothing of consequence for present purposes in the report of the medical assessor which could be said to be relevant solely to the conclusive certificates.

[55]

118 I should note that I accept Mr Petty's submission that Lamb and Sutcliffe [92] exclude an argument that in so far as the medical assessor had a duty to act fairly (as to which see [123] to [129]) he was to be regarded as an arbitrator. 119 Mr Gageler then relied upon para (e). The meaning of this provision is somewhat obscure. However Mr Gageler, in my view correctly, accepted that the person or body would not be one whose role was purely investigatory. 120 It would take very clear words indeed to indicate that the Parliament had intended that "an Australian court" could include a person or body that was not independent of executive or administrative oversight in decision-making and was not bound by rules of procedural fairness (see Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 per Isaacs J at 93). There are no such words in the Evidence Act 1995. 121 Whilst the Guidelines [35] make the procedures to be followed by the medical assessor, "subject to the rules of procedural fairness" (para 8.1) and provide that assessors not consider documents not shared between the parties (para 9.7), that requirement is brought to an abrupt halt at the draft certificate and report stage by the specific, and therefore overriding, provisions of paragraphs 10.10 and following [36]. 122 Once the draft copy of the report and certificate is provided to the Proper Officer, "an assessor may, at his or her own motion or at the request of an officer of MAS, correct or request the correction of an error in the draft report or certificate". (para 10.11). 123 Examples of the errors which may be corrected include not following the prescribed methods of assessment. 124 As earlier mentioned [60] questions of opinion can arise on this issue. Presumably it would be an unqualified officer of the MAS who would conclude that the medical assessor had not correctly applied the Guidelines. As Mr Gageler conceded different results could follow from the application of different minds. 125 There is no provision for the person assessed to have further input before the issue of the final report and certificate. Such a procedure is well outside the rules of procedural fairness and a person bound by statute to act in this way is not acting independently or in accordance with such rules. It is relevant to point out that in Herijanto Gaudron J observed that the purpose of the immunity for the decision making process is to "ensure freedom of thought and independent judgment" [69]. 126 I should make it clear that I am not concerned with any question as to procedural validity or the appropriateness of the methods adopted by the scheme. My task is to consider the issues before the Court having regard to the features of the relevant procedures. 127 A medical assessor acting in accordance with the Guidelines is not acting independently or in accordance with rules of procedural fairness. Accordingly, he is not a person falling within para (e). 128 Thus the procedures followed by the medical assessor were not "proceedings in an Australian court". 129 I should observe that if Mr Petty meant to concede in a general way that the medical assessor was acting judicially [93], rather than that he was acting within the terms of the relevant statute, I do not agree for the reasons I have given. 130 Mr Petty further submitted that para (e) was not applicable on the basis that the expression "hear, receive and examine evidence….connotes the formal process of receiving evidence in a curial type way and ordinarily …..on oath". 131 In Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Finklestein J accepted that the Refugee Review Tribunal fell within para (e), albeit its proceedings were not adversarial and "may best be described as inquisitorial". Whilst not bound by the rules of evidence the Tribunal was required by the Migration Act 1958 (Cth) to provide a mechanism of review that is, amongst other things, "fair". 132 Significantly, the Tribunal has the power to take evidence and can administer an oath or take an affirmation for that purpose. The Tribunal can receive statutory declarations in relation to any fact it is to consider and also receive written arguments. 133 There are no similar powers conferred by the Guidelines, however, Ch 8 of the Guidelines [35] clearly contemplates that what is described as "evidence" will be heard, received and examined. 134 The Guidelines are an "Australian law" and, on one approach, it can be said that the medical assessor is authorised by that law to hear, receive and examine evidence. 135 It does not follow that such an approach necessarily satisfies the requirements of para (e). I do not need to reach a conclusion on this aspect and prefer to leave the question until a case in which it needs to be resolved. 136 It is apparent from the terms of s 129 that the "proceedings" referred to are contemplated to be proceedings capable of producing a decision to which the section can apply. As discussed above the procedure conducted by the medical assessor was not one, as to the non-conclusive certificates, which could produce a decision and, therefore, not one being a procedure amounting to a "proceedings" to which the section applies. 137 Were it not for the inclusion in the definition of an Australian court of para (e) I would be of the view that the procedure did not have the characteristics, apart from the matter last dealt with, to be a "proceeding". However, para (e) much widens the type of body and person that could be considered as a court within the phrase " an Australian court". It is, I think, arguable that that extension also extends the meaning which should be given to "proceedings" in s 129. It is not necessary for me to reach a concluded view on this aspect and I prefer to leave the question until a case in which it needs to be resolved.

Ryan & Anor v Watkins & Anor

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Judgment (60 paragraphs)

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