Scamante v Dr Lanzer & Ors [2024] VSC 664

2 Ms Scamante says she served Dr Lanzer with documents required by s 28LT of the Act, that he did not respond within 60 days as required by s 28LW and that, as a result, he is deemed to have accepted the assessment of Dr Kennedy.

3 Dr Lanzer says there was no effective service on him of the documents required by s 28LT, that he validly referred a medical question regarding Ms Scamante's injuries to the Panel and that the determination, which is that her level of impairment did not meet the threshold level in s 28LB, is valid and effective.

4 At different times the solicitors for each of Ms Scamante and Dr Lanzer drafted a letter which did not reach an intended recipient. As will be seen, each party seeks, in effect, to say that the failure of their letter to reach its intended recipient is of no moment, but that the failure of the other party's letter to reach its intended recipient means the other party should be held strictly to their obligations under the Act and that irrevocable consequences follow. There is a sense in which each party seeks to have their cake and eat it too.

5 For the reasons that follow, I have concluded that there was no effective service on Dr Lanzer, that there was no deemed acceptance under s 28LB of the Act and that there was no valid referral of a medical question to the Panel. The determination should therefore be quashed, but the declaration Ms Scamante seeks should not be made.

6 On 22 December 2020 Ms Scamante underwent an abdominoplasty, commonly referred to as a 'tummy tuck', and liposuction of her thighs ('the operation'). The operation was performed by the first defendant, Dr Daniel Lanzer, at the Daniel Lanzer Skin Clinic. The Daniel Lanzer Skin Clinic was owned by Dermatology & Cosmetic Skin Services Pty Ltd ('DCSS') as trustee for the D & V Family Trust ('DVF Trust').

7 Ms Scamante alleges that she has suffered injuries as a result of the operation which include scarring on her lower abdomen, protruding weak stomach muscles, uneven skin on the abdomen and thighs, and a loss of sensation in the upper thigh and hip region ('the injuries').

8 On 21 February 2023 Dr David Kennedy examined Ms Scamante and completed a report and certificate of assessment ('the certificate of assessment') pursuant to s 28LN of the Act. The certificate of assessment certifies that Ms Scamante's impairment resulting from her injuries is greater than 5%, that is, she had suffered a significant injury for the purposes of s 28LB of the Act.

9 Ms Scamante's solicitors, Carbone Lawyers, prepared three sets of documents: one for Dr Lanzer, one for DCSS and one for DVF Trust.

(a) a cover letter addressed to his last known address ('the Lanzer cover letter');

(b) Claimant Prescribed Information ('the Lanzer prescribed form') which:

(i) under the heading 'Respondent's Details' names Dr Lanzer and provides his address; and

(ii) under the heading 'Additional Respondents' names DCSS and DVF Trust, provides their addresses and a reason in each case why they are additional respondents;

(c) the report of Dr Kennedy; and

(d) the certificate of assessment.

(together 'the Lanzer documents')

11 The Lanzer cover letter is dated 31 March 2023 and contains the following text:

By registered post

....

Dear Dr Lanzer,

RE: Daniela Scamante v Daniel Lanzer

We refer to the above matter.

We enclose, by way of service, the following:

(a) Claimant Prescribed Information Form pursuant to s 28LT(2) of the Wrongs Act 1958 dated 31 March 2023;

(b) Report of Dr David Kennedy dated 21 February 2023; and

(c) Certificate of Assessment of Dr David Kennedy dated 21 February 2023.

Strict timelines apply under the relevant Act. We recommend that you obtain urgent legal advice.

Should you have any queries, please do not hesitate to contact our office.

(a) a cover letter addressed to the proper officer of DCSS at its registered address ('the DCSS cover letter');

(b) Claimant Prescribed Information ('the DCSS prescribed form') which:

(i) under the heading 'Respondent's Details' names DCSS and provides its registered address; and

(ii) under the heading 'Additional Respondents' names Dr Lanzer and DVF Trust, provides their addresses and a reason in each case why they are additional respondents;

(c) the report of Dr Kennedy; and

(d) the certificate of assessment.

(together 'the DCSS documents')

(a) a cover letter addressed to DVF Trust at its address for service of documents ('the DVF Trust cover letter');

(b) Claimant Prescribed Information ('the DVF Trust prescribed form') which:

(i) under the heading 'Respondent's Details' names DVF Trust and provides its address; and

(ii) under the heading 'Additional Respondents' names Dr Lanzer and DCSS, provides their addresses and a reason in each case why they are additional respondents;

(c) the report of Dr Kennedy; and

(d) the certificate of assessment.

(together 'the DVF Trust documents')

14 On 3, 5 and 11 April 2023 a process server unsuccessfully attempted personal service of the Lanzer documents on Dr Lanzer at his last known address.

15 On 5 April 2023 Ms Scamante served the DCSS documents on DCSS and served the DVF Trust documents on the DVF Trust.

16 On 14 April 2023 solicitors for Dr Lanzer, Kennedys Lawyers wrote to Carbone Lawyers. Omitting formal parts, that letter states:

We confirm we act for Dr Daniel Lanzer in relation to the above claim.

Please ensure you direct any future correspondence to Cindy Tucker Cindy. tucker@kennedyslaw.com of Kennedys Law. We kindly request that you take no further steps while we obtain our clients instructions.

17 Six days later, on 20 April 2023, Kennedys Lawyers emailed Carbone Lawyers with the subject heading 'Dr Daniel Lanzer v Daniela Scamante' requesting a copy of the letter of instruction to Dr Kennedy, together with relevant enclosures. Carbone Lawyers responded on the same day by email attaching the letter of instruction and enclosures.

18 On 30 May 2023 three letters were sent regarding Ms Scamante's claim, each of them significant to the resolution of this proceeding, two of them particularly so.

19 First, Baker & McKenzie, solicitors for DCSS referred the question of whether Ms Scamante had an impairment from her injury which reached the threshold level to a medical panel ('DCSS referral'). Secondly, Kennedys Lawyers wrote to Carbone Lawyers disputing service ('the letter disputing service'). Thirdly, Kennedys Lawyers acting on Dr Lanzer's behalf, purported to refer the medical question of whether Ms Scamante had a level of impairment which met the threshold level to a medical panel ('the Lanzer referral letter').

20 The Baker & McKenzie letter was copied to Carbone Lawyers and they received a copy.

I refer to our letter of 14 April 2023 in which we advised that we act for Dr Daniel Lanzer in relation to the above claim.

We do not hold instructions to act for Dermatology and Cosmetic Surgery Services ('DCSS') and understand that you will be receiving correspondence from another firm instructed by DCSS.

On review of your letter of 31 March 2023 we note that this letter and associated material is served on the Proper Officer of DCSS and not on Dr Daniel Lanzer personally. Accordingly the material under cover of your letter of 31 March 2023 (that being the Claimant Prescribed Information Form, Report and Certificate of Assessment of Dr David Kennedy dated 21 February 2023) has not been properly served on Dr Daniel Lanzer, noting he is named as a respondent in his own right, separate to DCSS.

To assist this process we have instructions to accept service of these documents rather than requiring formal personal service on Dr Lanzer, who is presently not in Australia.

We look forward to hearing from you and to service of the relevant material pursuant to s.28LT of the Wrongs Act 1958.

22 The Lanzer referral letter contains the following:

We advise that we act for Dr Daniel Lanzer, the respondent, in relation to the claim made by Daniela Scamante.

The claimant, Daniela Scamante, served a Certificate of Assessment and Prescribed Information on 5 April 2023 (albeit the covering letter is dated 31 March 2023) on the Proper Respondent for Dermatology & Cosmetic Surgery Services ('DCSS'). We do not act for DCSS. Dr Lanzer has not personally been served in these proceedings pursuant to Section 28LT of the Wrongs Act 1958 (Vic) (the Act) although is listed as a proper respondent in the Prescribed Information.

Under cover of the objection arising from the fact that Dr Lanzer has not been personally served pursuant to the requirements of Section 28LT of the Act and out of an abundance of caution we make this referral in accordance with the information available to us and as served on DCSS. This referral is made within the time limits set out in Section 28LWE of the Act.

Dr Lanzer, if properly served, would acknowledge that he is a proper respondent to the claim and therefore refers a medical question in relation to the assessment to a Medical Panel for determination under Part VBA of the Act.

23 The letter then sets out the medical question Dr Lanzer sought to refer and enclosed the relevant form and attachments. I will refer to all of these documents compendiously as 'the Lanzer referral'.

24 At the foot of the Lanzer referral letter the following appears:

cc: Maria Dibattista, Solicitor for the Claimant, maria.dibattista@carbonelawyers.com.au

25 Despite what appears at the foot of the Lanzer referral letter, the letter and its attachments were not cc'd to Carbone Lawyers, who remained unaware of their existence and contents until 9 August 2023.

26 On 10 July 2023 the Panel wrote to Ms Scamante advising her of the DCSS referral and that she was required to attend the Panel for examination in person on 4 August 2023. The email from the Panel did not refer to the Lanzer referral.

27 On 4 August 2023 Carbone Lawyers sent submissions to the Panel relating to the DCSS referral and the Panel examined Ms Scamante.

28 On 8 August 2023 Kennedys Lawyers emailed Carbone Lawyers noting that Carbone Lawyers had made submissions to the Panel on Ms Scamante's behalf. The email complained of the failure to serve Kennedys Lawyers with those submissions and referred to the letter of 14 April 2023 in which Kennedys Lawyers had advised that they acted for Dr Lanzer in relation to Ms Scamante's claim. This email prompted a flurry of activity on the part of the Panel and each of the lawyers.

(a) At 2.22pm the Deputy Convenor of Medical Panels separately emailed each of Carbone Lawyers and Kennedys Lawyers advising them that it had consolidated the DCSS referral and the Lanzer referral;

(b) Ms Di Battista then phoned the Medical Panels administration;

(c) At 3.05pm, following Ms Di Battista's phone call, the Medical Panels administration sent Carbone Lawyers a copy of the referral form from Kennedys Lawyers for Dr Lanzer;

(d) At 3.47pm Carbone Lawyers wrote to the Panel stating that:

(i) it had served Dr Lanzer with a certificate of assessment and the prescribed information in accordance with s 28LT of the Act;

(ii) the respondent had failed to respond within the 60 days as required by s 28LW(1) of the Act;

(iii) Carbone Lawyers had not received a copy of the Lanzer referral sent in May;

(iv) as such there was a failure to refer a medical question to the Panel in accordance with the requirements of the Act; and

(v) Carbone Lawyers requested the Panel disregard any documents or material received by Dr Lanzer or his advisers in relation to the matter.

(e) At 5.37pm Kennedys Lawyers emailed the Panel stating that:

(i) they had not been advised of the examination scheduled for 4 August 2023;

(ii) the first correspondence they had received regarding the Panel had come from the lawyers for DCSS;

(iii) they wished to file submissions in the matter; and

(iv) they request that no decision be made until they have been afforded an opportunity to make such submissions.

30 The flurry of correspondence continued on 10 August 2023:

(a) At 10.37am the Panel emailed Kennedys Lawyers providing a copy of the original examination notice and confirming that the Panel would delay making a decision until after it had had an opportunity to consider additional information to be provided by Kennedys Lawyers;

(b) At 10.56am Carbone Lawyers forwarded Kennedys Lawyers their email to the Panel from 3.47pm the previous day;

(c) At 3.16pm Kennedys Lawyers emailed the Panel:

(i) referring to and summarising Carbone Lawyers' email of the previous day sent at 3.47pm;

(ii) attaching the letter of 30 May 2023 to Carbone Lawyers, in which it disputed that Dr Lanzer had been properly served;

(iii) stated that Ms Scamante had failed to serve the respondent pursuant to s 28LT of the Act;

(iv) stated that the referral to the Panel was 'in anticipation of such service';

(v) said that, in the absence of a response to the letter of 30 May 2023, there had been no service of Dr Lanzer of a certificate of assessment and prescribed information in accordance with s 28LT of the Act;

(vi) stated that Kennedys Lawyers were not in a position to raise any of these matters at an earlier date because they were not notified of any consolidation taking place and/or any examination being scheduled until 9 August 2023; and

(vii) concluded by asking the Panel to consider the information in the email in any decision it makes;

(d) At 3.26pm the Panel emailed Kennedys Lawyers, copying in representatives of other parties stating that Kennedys Lawyers would be provided until 24 August 2023 to provide a submission; and

(e) At 4.17pm Carbone Lawyers wrote to Kennedys Lawyers reiterating their position that Dr Lanzer had been properly served and was deemed to have accepted the certificate of assessment, referring to a decision Crowther v Australian Leisure and Hospitality Group Ltd trading as Chealsea Heights Hotel (Ruling)[1] which was said to support this position and reserving their client's rights.

31 The reservation of rights by Carbone Lawyers in the email of 10 August 2023 at 4.14pm is of some significance given the way in which Dr Lanzer puts his arguments in this proceeding. The full text of the email, omitting formal parts, is as follows:

We refer to your email below.

We do not propose to respond to the Panel as we have made our client's position clear - that is, Dr Daniel Lanzer was served with the certificate and prescribed material as required under s 28LT of the Act. If he were not, it is inconceivable that he would have engaged solicitors to act on his behalf. Further, we refer to the ruling in Laura Crowther v Australian Leisure and Hospitality Group Limited [2023] VCC 32 (attached), which upholds our position that service on Dr Daniel Lanzer was in accordance with the requirements under the Act.

Irrespective of the Panel's determination, given the above, and in view of Dr Daniel Lanzer having failed to respond to our client via our office in accordance with s 28LW of the Act, it is our client's current position that Dr Lanzer is deemed to have accepted the certificate of assessment served on him.

We expressly reserve all of our client's rights in this regard, including the right to apply to the Court for a determination of significant injury as against Dr Lanzer personally, should the opinion of the Panel be that the plaintiff has not satisfied the threshold level.

We do not propose to correspond any further on this issue at this time to avoid further costs being incurred.

32 On 23 August 2023 Kennedys Lawyers provided submissions and other material on behalf of Dr Lanzer to the Panel. On the following day DCSS provided its submissions and other material to the Panel.

33 On 4 September 2023 the Panel, pursuant to s 28 LZG(3) of the Act, provided the determination together with the reasons dated 2 September 2023.

Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?

Answer: The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.

(emphasis in original)

35 Under s 28LT of the Act Ms Scamante was required to serve on Dr Lanzer a copy of the certificate of assessment, together with the prescribed information in the prescribed form. Ms Scamante says that she effected such service.

36 In her written submissions, Ms Scamante invited the Court to find that postal service was sufficient and submitted that the Court could infer postal service had been effected because of the notation on the Lanzer cover letter and the content of the letters from Kennedys Lawyers to Carbone Lawyers on 14 and 20 April 2023.

37 The letter disputing service proceeds on the assumption that personal service of documents is required under s 28LT of the Act. Before me however, counsel for Dr Lanzer properly accepted that postal service could be effective, but said the Court should not accept that in this case there had been any postal service.

38 Despite the notation in the Lanzer cover letter, it does not appear the Lanzer documents were ever sent by registered post to Dr Lanzer's last known address. Ms Scamante's solicitor swore two affidavits in the proceeding, each dealing with aspects of service of the Lanzer documents, the DCSS documents and the DVF Trust documents. Notably, neither affidavit deposed to the Lanzer documents having been posted. On the evidence before me, I would not draw the inference that the Lanzer documents were posted and I find, on the balance of probabilities, that they were not.

39 Ms Scamante then contends that even if the Lanzer documents were not personally served or served by post there was still effective service on Dr Lanzer for the purposes of s 28LT. Her argument relies on the propositions that:

(a) Service on DCSS and the DVF Trust was sufficient to bring to Dr Lanzer's attention all of the relevant material required by s 28LT of the Act; and

(b) The letter of 14 April 2023 in which Kennedys Lawyers confirm that they act for Dr Lanzer in relation to a claim brought by Ms Scamante provides a clear indication that they had been instructed by Dr Lanzer and that they, or Dr Lanzer, were aware of the claim made against him.

40 As a result, Ms Scamante says that Dr Lanzer was effectively served as required by s 28LT of the Act on 5 April 2023 or, alternatively, by no later than 14 April 2023 when Kennedys Lawyers advised that they had instructions to act.

41 Section 28LW(1) of the Act requires a respondent on whom a copy of a certificate of assessment is served to respond in writing to the claimant within 60 days after receiving the certificate and the required information under s 28LT. Subsection 28LW(2) provides for four types of responses which may be broadly described as acceptance of the assessment, referral to a medical panel, a request for further information or a statement that they are not a proper respondent. If the respondent fails to respond in writing within the 60 days pursuant to s 28LW(4) they are deemed to have accepted the assessment.

42 Ms Scamante says that Dr Lanzer did not respond in writing within 60 days as required by s 28LW(1) of the Act. It follows, in her submission, that Dr Lanzer is deemed, pursuant to s 28LW(4) of the Act, to have accepted the assessment of Dr Kennedy.

43 I accept that if service of the certificate of assessment and the prescribed information in the prescribed form had indeed been effected on Dr Lanzer on 5 or 14 April 2023, that Dr Lanzer would be deemed to have accepted the assessment. The letter disputing service did not fall within any of the categories of a required response in s 28LW(2) and the failure to actually copy Carbone Lawyers into the Lanzer referral letter meant no response of the kind anticipated by s 28LW(2) of the Act had occurred within 60 days of the putative service. However, for the reasons below, I do not accept that the matters on which Ms Scamante relies constitute effective service for the purposes of s 28LT of the Act.

44 Ms Scamante referred to the well-established principle that if a document has actually come to the notice of a defendant it will be taken to have been served. She started by referring to the oft-quoted passage from Hope v Hope:[2]

The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.[3]

45 I was taken to numerous cases where this principle had been applied.[4] That principle applies where the documents come to the notice of the party to be served. Here though, the Lanzer documents did not come to the notice of Dr Lanzer, indeed there is no evidence that the Lanzer documents were served upon anybody.

(a) there is evidence from which it can be inferred that the DCSS documents and the DVF Trust documents did come to the notice of Kennedys Lawyers;

(b) that service of the DCSS and DVF Trust documents meant Kennedys Lawyers were aware of the substance of the claim against Dr Lanzer; and

(c) that upon writing the letter of 14 April 2023 in which they indicated that they acted for Dr Lanzer in relation to the 'above claim' (being Dr Lanzer re Daniela Scamante), the solicitors had accepted service on behalf of Dr Lanzer as his agent.

47 It is plain Kennedys Lawyers were aware of at least the DCSS documents. Given the contents of the 14 April 2023 letter and the fact that it was only the DCSS and DVF Trust documents which were ever served, it is apparent that at least one of those sets of documents had come to the attention of Kennedys Lawyers by 14 April 2023. The letter disputing service confirms Kennedys Lawyers were aware of the DCSS documents.

48 The DCSS documents and the DVF Trust documents included the certificate of assessment. Each of the DCSS prescribed form and the DVF Trust prescribed form provided relevant claimant details, described Dr Lanzer as an additional respondent, provided a description of why Dr Lanzer was a proper respondent to the claim and described the incident, injuries and documentation relied upon.

49 On this basis, Ms Scamante says that the service of the DCSS documents and/or the DVF Trust documents placed Dr Lanzer on notice of:

(a) the certificate of assessment; and

(b) all of the substantive information which would have been contained in the Lanzer prescribed form.

50 Ms Scamante says that the 14 April 2023 letter is then determinative because it constitutes an acceptance of service by Kennedys Lawyers as agent for Dr Lanzer. In this regard she relies on the decision of Kestel v Superannuation Complaints Tribunal ('Kestel').[5]

51 In other words, adapting the language of Hope v Hope,[6] Ms Scamante says that upon the DCSS and/or DVF Trust documents coming to the notice of Dr Lanzer (via his solicitors) what had substantially been done was that Dr Lanzer had been made aware of and was able to resist all that was put against him.

53 What constitutes proper service depends upon the particular statutory context of Part VBA of the Act. In my view, that context requires service of a prescribed form which does more than simply name the putative respondent as an additional respondent.

54 Service of the certificate of assessment and the prescribed information in the prescribed form triggers the 60 day obligation to respond contained in s 28LW of the Act. If a response is not made within 60 days of service there is the deemed acceptance of the assessment under s 28LW(4). The provisions of the Act, in particular ss 28LR, 28WC and 28LZB, and the decision of the Court of Appeal in Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd ('Citywide Service Solutions')[7] all emphasise the differentiation which may occur as between differing respondents in terms of both:

(a) subsequent steps under Part VBA of the Act; and

(b) substantive outcomes in relation to the question as to whether a claimant is accepted, deemed or determined to have a serious injury.

55 In that context, I do not accept that service of a document on a person which describes another person as the respondent and describes them only as an additional respondent is substantial compliance such as to make service effective. As Pagone J said in Redline Towing & Salvage Pty Ltd v The Convenor of Medical Panels ('Redline Towing & Salvage'):[8]

The terms of s 28LT(2) should be construed to give them a reasonable and practical operation. It may be, therefore, that the contents of information in documents found elsewhere may be seen, in an appropriate case, to have "accompanied" the certificate of assessment where they have been referred to, for example, in a covering letter. That, however, was not this case. The obligation in s 28LT(2) that the information accompany the certificate is designed for a claimant to identify with precision the information needed for another to deal with a claim. The information required by the section is that identified in the section and the regulations made under the section. Compliance with that should not be left to inference or assumption. It is for the person upon whom the obligation falls to provide the information and to do so explicitly. It will usually be necessary for the information to be physically provided with the certificate in order to satisfy the requirement that the information accompany the certificate.[9]

56 Service of the DCSS documents and the DVF Trust documents left Kennedys Lawyers to infer or assume that Dr Lanzer would be served. This was not enough. Kennedys Lawyers were entitled to wait for service of a prescribed form which nominated Dr Lanzer as the respondent and named DCSS and (possibly) DVF Trust as additional respondents.

57 Nor does the letter of 14 April 2023 change things in this regard. Kestel establishes that where a solicitor has indicated that they act for a person in a particular matter, that service on the solicitor will constitute service on the person for the particular matter on which the solicitor has been engaged. This is an application of the normal principles of agency. Kestel does not assist Ms Scamante here because whilst Kennedys Lawyers did indicate that they acted for Dr Lanzer in the matter described as 'Dr Lanzer re Daniela Scamante', they did not receive the Lanzer documents. In other words, had the Lanzer documents been served on Kennedys Lawyers, the letter of 14 April 2023 would have been sufficient to confirm service. However, service of the DCSS and DVF Trust documents on an agent could be no more or less effective than if they had been served on Dr Lanzer himself and, for the reasons I have indicated, I do not accept that service of the DCSS and DVF Trust documents satisfied the relevant requirements under s 28LT of the Act for service upon Dr Lanzer.

58 Dr Lanzer says that his referral was valid notwithstanding that he was not served with the documents required by s 28LT of the Act and notwithstanding that he did not respond to Ms Scamante under s 28LW(1) of the Act. He says there was no requirement to respond under s 28LW(1) of the Act because there was no effective service, but that he could waive the ineffective service for the purpose of making a referral and that that was what he did. In substance, he contends that he was permitted to make a referral without giving Ms Scamante any notice that he had done so. That unattractive proposition should be rejected.

59 Section 28LW(1) and (2) of the Act relevantly provides:

(1) The respondent on whom a copy of a certificate of assessment is served must respond in writing to the claimant within 60 days after receiving the certificate and the required information under section 28LT.

(b) state that the respondent is a proper respondent to the claim and advise the claimant that the respondent intends to refer or has referred a medical question in relation to the assessment to a Medical Panel for determination under this Part;

60 Section 28LWE(1) of the Act provides:

(1) The respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part -

(a) within 60 days after receiving the certificate and the required information under section 28LT; or

(b) within 60 days after receiving the information provided under section 28LWA; or

(c) within 14 days after receiving the notice under section 28LWB.

61 It follows from my finding that Ms Scamante had not served Dr Lanzer with the required information under s 28LT, that Dr Lanzer was not required to respond under s 28LW(1). However, the corollary in my view is, that absent a waiver of Ms Scamante's non-compliance with s 28LT, there can be no valid referral under s 28LWE(1)(a). Indeed, in his written submissions, Dr Lanzer said:

[A] respondent's right to refer to a Medical Panel under s.28LWE only arises after service of the certificate of assessment and the prescribed information in the prescribed form.

62 The chapeau to s 28LWE(1) refers only to service of the certificate of assessment but a respondent's capacity to refer a medical question arises under paragraph (a) within 60 days 'after receiving the certificate and the required information under s 28LT'. At the time of the referral it may be accepted that Dr Lanzer (via his solicitors) had received the certificate of assessment but he had not received the required information under s 28LT. The referral did not occur 'after receiving ... the required information under s 28LT'. Subject to the issues discussed below, an essential precondition for the exercise of the right of referral was absent.

63 Dr Lanzer however contends that the referral was still valid. Senior counsel submitted:

Because for the purposes of the panel's referral, we're effectively overlooking the fact of invalid service and saying 'well, we've been seized of the matter, plainly we're seized of the matter, and therefore we're sending it to the medical panel'.

64 Dr Lanzer places particular reliance on another passage from the judgment of Pagone J in Redline Towing & Salvage:

The word "must" in s 28LT(2) is used to impose an imperative obligation upon a complainant so that the complaint can be dealt with by the respondent and by the Medical Panel if called upon to do so. The provision of information is essential to the proper conduct of complaints and is not merely directory or optional for the person upon whom the obligation is expressed to fall. That is not to say that a complainant cannot waive strict compliance or that the Panel will lack jurisdiction to consider a question referred to it if there has not been strict compliance by the person upon whom the obligation is imposed. In Project Blue Sky Inc v Australian Broadcasting Authority it was said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

The mandatory obligation in s 28LT is designed to impose an obligation upon a person who has the necessary information to provide that information to the person who is called upon to respond to a complaint and, if referred to a Medical Panel, for the Medical Panel to be able to deal with it efficiently and effectively. The consequences of noncompliance need not be to deny jurisdiction to the Panel, but will be sufficient to prevent a party relying upon the provision where it is that party who has not complied with its terms.[10]

65 The fundamental problem with a submission that Dr Lanzer waived or overlooked Ms Scamante's non-compliance with s 28LT is that he did not. The letter disputing service sent on the same day as the purported referral complains that service has not been properly effected and says that Kennedys Lawyers will accept service of the s 28LT documents, both propositions are inconsistent with any waiver. The Lanzer referral letter contests the validity of service and then 'under cover of that objection' and 'out of an abundance of caution' encloses the referral documentation. Tellingly, it concludes that 'if properly served' Dr Lanzer would acknowledge he was a proper respondent. Dr Lanzer simply did not waive Ms Scamante's non-compliance with s 28LT. Indeed, at 3.16pm on 10 August 2023 Dr Lanzer was still insisting that he had not been properly served.

66 Is this enough to deprive the Panel of jurisdiction? In my view, it is. Not having waived compliance with s 28LT, Dr Lanzer cannot then rely upon s 28LWE(1)(a) because his referral did not occur within 60 days after receipt of the s 28LT documents.

67 Properly understood, the passage from Redline Towing & Salvage says no more than that waiver by a respondent of non-compliance with s 28LT does not deprive the Panel of jurisdiction. However, it is another thing entirely to suggest that absent waiver, a respondent could insist that service had been ineffective such that it was under no obligation to respond to the claimant but nonetheless refer a medical question to a medical panel. In the language of Project Blue Sky Inc v Australian Broadcasting Authority[11] I can find no discernible purpose for such a construction.

68 There being no valid referral, the Panel had no jurisdiction to proceed as it did.

69 In those circumstances, I do not need to resolve the competing contentions as to what would have been the case had Dr Lanzer waived Ms Scamante's ineffective service when he purported to refer the matter to the Panel.

70 Ms Scamante says that if there had been a waiver, the provisions of s 28LW(4) operate to deem Dr Lanzer's acceptance of the certificate of assessment. This might occur 60 days after service of the DCSS documents being 4 June 2023, 60 days after the 14 April 2023 Kennedys Lawyers letter being 13 June 2023 or at the latest 60 days after the purported referral being 29 July 2023. Ms Scamante says that if that were so, the Panel had no jurisdiction to proceed with its determination.

71 Dr Lanzer says that the provisions of s 28LWE only preclude a referral if the respondent has accepted, or been deemed to accept, the certificate of assessment. As this had not occurred on 30 May 2023, there was a valid referral and, he contends, a later deemed acceptance by Dr Lanzer did not preclude the Panel exercising its jurisdiction to determine the medical question which had been referred. Dr Lanzer then says that the provisions of s 28LZH then create an imperative for a court to accept the Panel's determination over any deemed acceptance.

72 Had it been necessary to determine this issue, I would have preferred the contentions of Ms Scamante for three reasons:

(a) First, I would hold that a referral by a respondent under s 28LWE is a continuing act. If there is an acceptance or deemed acceptance of an assessment after an initial referral, the better view is that the provisions of s 28LWE(2) preclude the continuation of the referral - in other words, the Panel is deprived of jurisdiction to determine the medical question previously referred;

(b) Secondly, if a respondent has accepted or been deemed to accept an assessment there is, in my view, no medical question for the medical panel to determine; and

(c) Thirdly, construing the sections in the way I have suggested avoids the outcome of two separate provisions of the same Part of the Act dictating inconsistent findings in relation to the level of impairment in respect of the same claimant and the same respondent.

73 If indeed Dr Lanzer had waived Ms Scamante's ineffective service of the s 28LT documents and there had been a valid referral as at 30 May 2023, I would have held that Dr Lanzer was deemed to have accepted the certificate of assessment by operation of s 28LW(4) and that the Panel was thereby deprived of jurisdiction.

Does Ms Scamante's conduct disentitle her to relief?

74 Dr Lanzer contends that, even if I find that the Panel lacked jurisdiction because there was no valid referral, I should refuse Ms Scamante relief because she acquiesced in the Panel proceeding and did not ask the Panel to cease the referral or come to the Court to restrain the Panel from proceeding.

75 In this respect Dr Lanzer relies on R v Lilydale Magistrates' Court; Ex parte Ciccone[12] where McInerney J said:

Certainly, if a case of "lying by" is made out, certiorari would be refused. Equally, if a clear case of election is made out, that is, that the applicant knowing the facts and knowing what alternative courses are open to him on those facts, intentionally chooses one rather than the other, he will be held to that choice (or election). In my view, however, an applicant for certiorari may also be refused relief if it is shown that with knowledge of the facts entitling him to object to a continuance of the legal proceeding, he has not objected but has taken an active part in the proceedings right down to judgment.[13]

76 I do not accept there has been any such acquiescence. Ms Scamante did not 'lie by'. She immediately wrote to the Panel and asserted that there was no valid referral in respect of Dr Lanzer. She did in fact ask the Panel to cease dealing with the Lanzer referral. Nothing in my view turns on her failure to seek an injunction in this Court. She had reserved her rights and the Panel was bound to determine the DCSS referral in any event. There was eminent good sense in awaiting the outcome of that referral before commencing any proceeding in this Court in respect of the Lanzer referral.

77 Dr Lanzer says further that I should infer the failure to respond to the letter disputing service was an attempt to exploit any failure by Dr Lanzer to respond in writing in order to take advantage of the s 28LW(4) deeming. There is no basis for such an inference, just as there would be no basis for the inference that the Kennedys Lawyers' failure to copy Carbone Lawyers into the Lanzer referral letter was an attempt to exploit a lacuna created by ineffective service of the s 28LT documents.

78 Dr Lanzer then contends that granting certiorari would reward Ms Scamante for her own lack of diligence in properly serving Dr Lanzer. I do not see it that way. Granting certiorari or an order equivalent is appropriate because Dr Lanzer took a step he was not entitled to take in purporting to refer a question to the Panel at the same time as contesting that he had been properly served.

79 Finally, Dr Lanzer says that granting certiorari would create an outcome contrary to the Panel's determination. There is nothing in this. Granting certiorari always results in quashing the decision-maker's decision. Secondly, the result of my decision will not necessarily result in any inconsistency between the outcome of Ms Scamante's claim against Dr Lanzer and the Panel's determination. Thirdly, Citywide Service Solutions makes plain that the legislative scheme contemplates that there will on occasion be inconsistency between outcomes as between different respondents.

80 In all the circumstances, Ms Scamante's conduct does not disentitle her to the relief she seeks in the nature of certiorari.

81 The Panel did not have jurisdiction to issue a determination in respect of Ms Scamante's claim against Dr Lanzer. The Panel's determination should be quashed.

82 Within seven days the parties should file consent orders giving effect to these reasons (including as to costs) or in the absence of a consent position being reached, file and serve competing orders together with submissions of no more than two pages in support of their proposed orders.

[1] [2023] VCC 32.

[2] [1854] EngR 805; (1854) 43 ER 534.

[4] National Australia Bank v Macrae & Ors [1994] VicSC 325, 7-8; Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542, 544; R v Heron; Ex parte Mulder (1884) 10 VLR 314, 318; Pino v Prosser [1967] VicRp 107; [1967] VR 835, 839; BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739, [111]-[112], [120].

[5] [2010] FCA 1300; (2010) 276 ALR 112.

[6] [1854] EngR 805; (1854) 43 ER 534.

[7] [2023] VSCA 281 (Beach, Osborn JJA and Forbes AJA).

[8] [2012] VSC 472.

[10] [2012] VSC 472, [8].

[11] [1998] HCA 35; (1998) 194 CLR 355.

[12] [1973] VicRp 10; [1973] VR 122.