Williams v Coles Supermarkets Australia Pty Ltd & Ors [2016] VSC 161

Supreme Court of Victoria|2016-04-15|Before: Ierodiaconou AsJ

PRACTICE AND PROCEDURE- Application for extension of time to commence proceeding- Supreme Court (General Civil Procedure) Rules 2015, r 56.02(3)- 'special circumstances'- Medical Panel determination - 'significant injury'- relevant threshold level - threshold as then defined by the Wrongs Act 1958- whether Wrongs Amendment Act 2015 retrospective in nature

2 This ruling concerns whether or not an extension of time should be granted to enable the proceeding to continue. The Court may only grant an extension of time in 'special circumstances'. The sole legal issue for determination in this ruling is whether or not there are 'special circumstances' within the meaning of r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2015.

3 For the reasons below, the Court considers that there are 'special circumstances' and accordingly will make orders granting the extension of time.

4 The parties were substantially in agreement as to the legal principles applicable to whether or not there are 'special circumstances'. These principles are discussed below.

5 The plaintiff made oral and written submissions in support of her application. The crux of her submissions is as follows.

6 Special circumstances are to be assessed by reference to the whole of the circumstances, and are not limited to circumstances connected with the reasons for delay.

7 There is a manifest or strongly arguable case for error on the part of the Medical Panel, or at least an arguable case. The reason for this is that the Panel failed to assess surgical scarring by reason of its misinterpretation or misapplication of the Mountain Pine Furniture Pty Ltd v Tayor decision ('Mountain Pine').[3] The plaintiff says that the scarring should have been added as an additional impairment. If it had been, then there would have been a finding of a 'more than' 5% whole person impairment. The consequence of that would have been that the plaintiff met the threshold level for a 'significant injury' within the meaning of the Wrongs Act 1958 and therefore would have been able to claim damages for non-economic loss.

8 The Wrongs Amendment Act 2015 ('the Amendment Act') commenced on 19 November 2015, subsequent to the Medical Panel decision, but with retrospective operation. It did not cause the delay in instituting proceedings for judicial review, however it was a circumstance that the plaintiff and her solicitor could not have anticipated. The threshold for spinal injury is now an impairment of '5% or more' rather than 'more than 5%'.[4] The Medical Panel assessed the plaintiff's injuries as 'not more than 5%'.

9 The reason for the delay was that the plaintiff's solicitor did not consider the application for judicial review until counsel raised it.[5] This may be distinguished from cases where solicitors make a miscalculation or an erroneous assumption about the applicable time limit for judicial review. As soon as the solicitor became aware of the possibility, he acted diligently.

10 The delay was not inconsiderable, but not especially great either. The delay was not an unbroken period as the plaintiff actively pursued her County Court proceeding during that time.

11 Arguments about finality of litigation are meaningless in the present application because the outcome of it will not finalise litigation in the County Court proceeding. The County Court proceeding is currently adjourned by consent until the outcome of this proceeding is known.

12 There is no prejudice to the defendants in extending time. However, the plaintiff will be significantly prejudiced if an extension is not granted as this is her one chance to claim damages for significant injury.

13 The first and fourth defendants opposed the application for extension of time and made both oral and written submissions. The second and third defendants did not participate in the hearing. They indicated to the Court they will submit to such orders as the Court may make.[6] References in this ruling to 'the defendants' are references to the first and fourth defendants.

14 The crux of the defendants' submissions is as follows.

15 No special, significant or good reason is provided as to why this application was not brought within time. Recent case law shows that the special circumstances test is applied exceptionally and strictly.

16 The period of delay by the plaintiff is substantial.

17 The Amendment Act commenced after the expiry of the time limit. The plaintiff's submissions regarding it are incorrect: Stapleton v Central Club Hotel ('Stapleton').[7]

18 The plaintiff had ample opportunity to take into account and seek legal opinion regarding the application of the Mountain Pine decision prior to the expiry of the time limit and indeed even prior to the determination of the Medical Panel. The plaintiff's solicitor was aware of the Mountain Pine decision and how it had been applied.

19 A difference of professional opinion does not fall within the ambit of special circumstances.

20 The Medical Panel decision is correct. The Court does not need to do a complex analysis of the AMA Guidelines. There is no guarantee of the plaintiff's success if the issue is revisited. The decision was made by a very experienced Medical Panel. It got the decision and process right. There has been no procedural unfairness.

21 The defendants will be prejudiced if an extension is granted. The parties had certainty about quantum after the Medical Panel decision. The County Court trial had been set down for March 2016. It needed to be vacated as a consequence of this proceeding. The process of negotiation has been derailed as the boundaries are not known. The steps in the County Court proceeding are frozen until this proceeding is resolved.

22 The Court needs to consider the overarching purpose in s 7 of the Civil Procedure Act 2010. There is a public interest in the case being resolved quickly and with certainty, and without further delay.

23 Special circumstances are not limited to circumstances connected with the reasons for delay.[8]

24 The test as to whether there are special circumstances within the meaning of r 56.02(3) is well-established and not in dispute between the parties.

The authorities establish that:

(a) The rule requires the Court to be objectively satisfied that special circumstances exist;

(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;

(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) [sic] include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties;

and

(v) the public interest in the finality of litigation.[9]

25 It is useful to outline the principles in relation to several of the factors above.

26 As to (i), the period of delay: the Court does not have regard simply to the number of days missed as it undermines the purpose of having time limits at all.[10] Further, whether the plaintiff is active or silent during that period may be relevant.[11]

27 As to (ii), the reasons for delay: ignorance as to Order 56 remedies on the part of a plaintiff or the plaintiff's professional advisors does not constitute special circumstances. An erroneous assumption by a solicitor is not a special circumstance.[12] It is necessary for a plaintiff to 'provide adequate evidence as to the circumstance relied upon and not make a broad and general assertion'.[13]

28 As to (iii), whether the plaintiff has an arguable case, this requires consideration of the merits of the case. The Court of Appeal recently held:

... consideration of the strength of the merits of the substantive case for judicial review may well bear upon how much weight should be given to it as a factor. Consequently, in our opinion it may not always be sufficient to consider whether the case is merely arguable or on the other hand, has no real prospect of success. We would add that the fact that an associate judge may not have power to hear and determine the ultimate application for judicial review (without an order made by a judge referring the substantive trial to an associate judge) does not mean that associate judges cannot and should not make an assessment of the prospects of success. In doing so, they are not determining the ultimate matter. Rather, they are simply making an assessment of the prospects of success for the purposes of the application before them for an extension of time. Whilst some care may need to be taken in analysing and describing the strength of the merits, it is nevertheless a task that more often than not will be necessary and should not be shied away from by judges and associate judges.[14]

29 The 'existence of a manifest or strongly arguable case of administrative or legal error may be relevant'.[15] However, the demonstration of error does not automatically mean that there are special circumstances - if it did, there would be little practical point in the time limit.[16]

30 As to (iv), justice to both parties, including prejudice, Gillard J explained in Lednar v Magistrates' Court that:

The court does have a discretion which it may exercise where special circumstances are established and what constitutes special circumstances in any particular case will depend upon the circumstances of the case. It is not appropriate to attempt to fetter the jurisdiction by seeking to define what are "special circumstances". In my opinion the chances of the plaintiff being successful in the application, the injustice to a plaintiff if the decision or order is allowed to stand, prejudice to the other party and difficulties concerning legal aid in my view are relevant factors to whether or not there are special circumstances. They have to be weighed and the court has to then determine whether in totality they constitute special circumstances.

...

The question comes down to what matters are relevant to the issue, and in my opinion justice must be a relevant consideration. That is justice to both sides. Prejudice to the other party is a weighty matter but often can be overcome by some suitable order, for example, adjournment or costs.[17]

31 As to (v), the public interest in the finality of litigation, this has been described by Kyrou J as:

...the public interest in ensuring certainty and finality in public decision-making once a statutory time limit for challenging a decision has expired.[18]

32 A global approach is required to be taken when assessing the factors. That is, the Court must consider and balance the factors 'to determine whether, on the basis of the particular facts of the case, in totality they constitute special circumstances'.[19] The 'finding that a particular factor favours the appellant does not of itself constitute a special circumstance. It is no more than a relevant matter that goes into the balancing exercise undertaken by the Court in determining whether there are special circumstances'.[20]

33 No particular feature needs to be unusual. A combination of circumstances may suffice. 'An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself'.[21]

34 The fact that a feature is unusual is not necessarily relevant. It must support an extension of time.[22]

35 The Court must consider the context in which the circumstances occur. "This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special. It is not appropriate to seek to define the meaning of the phrase 'special circumstances'. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words."[23]

36 Special circumstances may arise due to events subsequent to the expiry of the 60 day time period.[24]

37 Subsequent legislation with retrospective effect is not of itself necessarily a special circumstance. It may however be a starting point for considering whether there are special circumstances in an individual case.[25]

38 In relation to whether a special circumstance existed for the purposes of s 13(1) of the Occupational Superannuation Standards Act 1987 (Cth), Beazley J in Tefonu Pty Ltd v Insurance and Superannuation Commissioner upheld the AAT's finding that there were no special circumstances. One of the applicant's arguments was that retrospective legislation can itself be a special circumstance. Her Honour dealt with that argument as follows:

In my opinion, the fact that legislation is retrospective, does not of itself constitute 'special circumstances'. Rather, it is the consequences which flow to a particular trustee, having regard to the fact that the legislation is retrospective, which must be taken into account in determining whether 'special circumstances' exist in any given case.

To the extent that the submission made was that retrospectivity was a 'very very significant starting point for the determination of whether there were special circumstances', it amounts to no more than a complaint as to the weight which was given to the retrospective nature of the regulation. The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal's decision is manifestly unreasonable. In the present case, it is clear that the Tribunal had regard to the retrospective nature of the legislation in determining whether there were 'special circumstances': see, for example, its consideration of the issues of the date at which 'special circumstances' were to be considered; the trustee's lack of awareness of the Treasurer's statement and the gazettal of the regulations; the prejudice to the trustee had it not proceeded with the purchase and the borrowing; and the fact that the Treasurer's statement was different to the regulation as proclaimed. It was not submitted that any of the Tribunal's findings, including in relation to these matters, were manifestly unreasonable. Indeed, such a submission was expressly disavowed by senior counsel for the applicant. Nor could the Tribunal's reasons be so categorised. Accordingly, I am of the opinion that no error of law on this ground has been made out.[26]

39 In McMennemin v Commissioner of Taxation[27] the AAT found that retrospective changes to taxation legislation did not amount to special circumstances within the meaning of s 292-465(3)(a) of the Income Tax Assessment Act 1997 (Cth). Section 292-465 allowed the Commissioner to determine that all or part of non-concessional contributions for a financial year be disregarded or allocated instead for the purposes of another financial year. The Commissioner could so determine if the Commissioner considered that there were special circumstances, among other conditions. The reason the retrospective legislation did not amount to special circumstances in McMennemin was that the changes to the law were already in place when the applicant made the contributions that led to there being excess non-concessional contributions.[28] The retrospective changes did not, of themselves, affect the applicant at the time.[29]

40 The period of delay is substantial, being more than four months. During this time, the plaintiff actively pursued the County Court proceeding.

41 The plaintiff's reason for delay is that her solicitor did not consider the Medical Panel's error until counsel raised it. The plaintiff says that once counsel raised it, the solicitor acted diligently. As the authorities above indicate, ignorance or erroneous assumptions by solicitors do not constitute special circumstances.

42 The plaintiff relied upon Kocak, a decision in which it was held that there were special circumstances. In that case, the Court held that the employer's proposal to use the medical panel's opinion collaterally in an unforeseen and unprecedented way explained the failure to seek judicial review in time. The alleged serious potential of the employer's proposal supported the decision by the Court to extend time.[30] Kocak is distinguishable from this case because of the different factual circumstances. In this case, there was no proposal by the employer to use the medical panel opinion collaterally in an unforeseen and unprecedented way, indeed there was no such proposal at all.

43 The plaintiff relied upon Sodexho Australia Pty Ltd v Rowe ('Sodexho').[31] In that case, counsel gave an incorrect view of the time limit based on case law as it then was. It was conceded that there was an arguable case for review.[32] In that case, information was given to the medical panel regarding the worker's current work capacity and the Court accepted that communication of that information would have led the plaintiff employer to take the actions it did.[33] The delay was six days. There was no material establishing prejudice by the six day delay save for the worker's possible loss of benefits if the medical panel decision was ultimately quashed. The factual circumstances in this case may be distinguished from those in Sodexho. There is no concession that there is an arguable case, there is no suggestion that the medical panel has been given incorrect information, and the delay is more than four months rather than six days.

(iii)(a) Whether the plaintiff has an arguable case - Mountain Pine decision

44 The plaintiff argues that the Medical Panel determination was in error because it misinterpreted or misapplied the Mountain Pine decision. It says that the Medical Panel failed to assess a surgical scar on the plaintiff's back. The plaintiff relied upon both Chapter 3, paragraph 3.3d and Chapter 13, Table 2 of s.13.5, of the of the AMA Guides to the Evaluation of Permanent Impairment (edition 4) to argue that the surgical scar should be added. Paragraph 3.3d applies the Mountain Pine decision and states in part:

With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment.

45 The effect of the Mountain Pine decision has been overturned by legislation in respect of both workers' and transport accident compensation legislation: Transport Accident and Accident Compensation Acts Amendment Act 2007. This amending legislation requires the above section of the AMA guide to be disregarded. However, this claim does not fall under such legislation. It is a Wrongs Act claim. Accordingly, the Mountain Pine decision and its manifestation in the above AMA guide remain applicable in respect of this claim.

46 Prior to making its determination, the Medical Panel wrote to the plaintiff's solicitors inviting submissions on the application of Mountain Pine.[34] The Medical Panel specifically considered and applied the Mountain Pine decision.[35] It disregarded the surgical scar. This is consistent with the above AMA guideline. The plaintiff cited Nettle JA's decision at paragraph [38] in Mountain Pine as authority in support of its submission that there should be a further and separate calculation for the surgical scar injury. The observations made by Nettle JA were clearly obiter. However, his Honour did refer to other authority.[36] Whether or not there should be an additional assessment for the result of surgery will depend on the circumstances of a particular case, including whether or not the chain of causation has been broken by a novus actus interveniens and whether or not the relevant injury is reasonably foreseeable.[37] For these reasons, the Court rejects the plaintiff's submission that the effect of Mountain Pine is that if there is an injury as a result of surgery, then it is a new injury that falls to be assessed as a further injury attracting its own additional impairment assessment.

47 The plaintiff did not suggest that the Medical Panel engaged in procedural unfairness. The Court should not review the merits of a Medical Panel assessment or determination.[38]

48 There does not appear to be a manifest or strongly arguable case of error on the part of the Medical Panel. That is, there is no manifest or strong argument that it was not open for the Medical Panel to apply Mountain Pine and the AMA Guide as it did and to disregard the surgical scar in accordance with the AMA Guidelines. Further, even if the surgical scar had been assessed, the Medical Panel may still have reached the same determination that the impairment was 'not more than 5% and is permanent'.

49 In addition, as the defendants submitted, the plaintiff had ample time to seek judicial review of the Medical Panel determination if she was relying upon the Mountain Pine decision.

50 The Medical Panel determination in respect of the Mountain Pine decision does not of itself constitute a special circumstance. For the reasons described above, it cannot be said that it is a manifest or strongly arguable case of error. Even if it were considered arguable, it does not necessarily support an extension of time.

(iii)(b) Whether the plaintiff has an arguable case - Wrongs Amendment Act 2015

51 The plaintiff submits that the Amendment Act has retrospective application and applies to the decision of the Medical Panel. The Amendment Act lowers the threshold for 'significant injury' for a spinal injury to '5% or more' rather than 'more than' 5%. The Panel assessed the plaintiff's injuries as 'not more than 5%'.

52 The plaintiff concedes that the Amendment Act did not cause the delay. This is not fatal to the plaintiff's application. As discussed above, special circumstances are not limited to the reasons for delay.

53 The defendants submit that the Amendment Act does not have retrospective effect and relies upon Stapleton.

54 As discussed above, subsequent legislation with retrospective effect may be a starting point for considering whether there are 'special circumstances'.

55 There is a strong or manifest argument that the Amendment Act has retrospective effect as the plaintiff contends. The key issue here is whether the lowered threshold in s 28LB of the Wrongs Act 1958 applies retrospectively to the plaintiff's case. Resolution of this issue will turn on the effect of s 28LZS of the Wrongs Act, which provides:

(1) The definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person, and in relation to which a claim for the recovery of damages for non-economic loss to which this Part applies may be made, irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred.

(2) Without limiting subsection (1), the definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person and in relation to which a proceeding for a claim for the recovery of damages for noneconomic loss to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section.

(3) Section 28LZMA, as inserted by section 12 of the Wrongs Amendment Act 2015, applies to a proceeding for a claim for the recovery of damages for non-economic loss to which this Part applies that has been commenced before the commencement of section 12 of that Act but has not been finally settled or determined before the commencement of that section.

56 In Stapleton[39] the County Court considered this issue and decided that the provisions of the Amendment Act 'should not be interpreted as having retrospective application so as to displace the medical panel determination unless the Amendment Act demonstrates an express intention to do so'.[40] It considered it important that the Amendment Act did not specifically render invalid any determination by a medical panel based on the old thresholds, nor did it refer to pre-existing medical panel determinations.[41] It considered that the Amendment Act did not demonstrate an express intention that it should have retrospective application so as to displace the medical panel determination. Without such an express intention, the presumption against retrospectivity prevailed.[42]

57 The plaintiff in this case argues that Stapleton was wrongly decided and she adopts the following arguments made by the plaintiff in Stapleton.

It is put on behalf of the plaintiff that:

•the transitional sections make it clear that the amending Act applies in respect of an injury suffered by a person irrespective of when the act or omission causing the injury occurred, notwithstanding that a proceeding for recovery of damages for non-economic loss has been commenced if that proceeding has not been finally settled or determined before the commencement of the amending Act;

•the statutory scheme behind the introduction of the new thresholds was implemented so as to reduce any injustice associated with the old thresholds and increase the numbers of injured persons who would qualify for the right to maintain a claim for non-pecuniary loss in respect of injuries to which the provisions of the Act apply;

•the plain meaning of these words operates so as to apply to the psychiatric injury suffered by the plaintiff in this instance, the result being that the plaintiff is entitled now to serve a certificate certifying that she presents with a psychiatric impairment which exceeds the definition of "significant injury" insofar as it applies to psychiatric injury as set out in the amending Act; and

•upon the service of such a certificate, the defendants have the right to refer a question to the Medical Panel as to whether or not the plaintiff's psychiatric impairment does or does not meet the current statutory threshold.

It is put on behalf of the plaintiff that in those circumstances:

•the Medical Panel determination was merely a determination as to the old threshold; and

•whilst the Medical Panel determination was and remains binding upon a court, the injury suffered by the plaintiff is one to which the provisions of s28LZS(1) and (2) apply and accordingly that the plaintiff is entitled to rely upon the January 2016 Certificate.[43]

58 The decision in Stapleton is not binding on this Court.

59 The presumption against retrospectivity may be overcome by the transitional provisions in legislation.[44]

60 Section 28LZS(2) of the Wrongs Act provides that the 'definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury...in relation to which a proceeding for a claim for the recovery of damages for noneconomic loss to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section'.[45]

61 On the natural and ordinary meaning of the words there is a manifest or strong argument that, to fall within this section, the proceeding should (a) have commenced before the commencement of s 11 and (b) not be finally settled or determined.

62 Regard may be had to the secondary reading speech and Explanatory Memorandum in respect of the Amendment Act in order to interpret s 28LZS(2) of the Wrongs Act.[46] The second reading speech for the Amendment Act did not deal with the transitional provisions. The only parts of the speech that are likely to be relevant to the retrospectivity issue are the following general statements:

The bill makes a number of amendments to the Wrongs Act 1958 to ensure that Victoria's personal injuries legislation operates clearly and consistently to benefit claimants who are injured by the negligence of others, while not unduly affecting the availability of insurance at affordable premiums. The bill implements most of the recommendations of the Victorian Competition and Efficiency Commission's report Adjusting the Balance - Inquiry into the Wrongs Act 1958, which identified a number of anomalies, inconsistencies and inequities in Victoria's personal injuries legislation.

...

The bill gives effect to most of the recommendations in the commission's report, and will make it easier for certain types of claimants to access compensation for their injuries. It is a responsible, evidence-based reform package.

...

The bill aims to ensure that Victoria's personal injuries legislation operates clearly and consistently, and makes important amendments that will lead to better, fairer outcomes for claimants.[47]

63 As to the changes to the thresholds, the Attorney-General explained:

The current whole-person impairment threshold for access to damages for non-economic loss, which compensates for pain and suffering and loss of enjoyment of life, is 'greater than 5 per cent'. The bill will lower this threshold for claimants with spinal injuries to '5 per cent or more', which recognises that spinal injury impairments are only assessed in increments of 5 per cent. This will mean that some claimants who suffer from spinal injuries who are presently unable to access compensation for non-economic loss will be able to do so, reflecting the fact that spinal injuries often have a major impact on a claimant's overall quality of life.

The bill will also lower the impairment threshold for claimants with psychiatric injuries, from 'greater than 10 per cent' to '10 per cent or more', which will slightly increase the pool of claimants who are eligible for compensation for psychiatric injuries.[48]

64 The Victorian Competition and Efficiency Commission's report Adjusting the Balance - Inquiry into the Wrongs Act 1958, which was referred to in the second reading speech for the amendment Act, did not deal with transitional arrangements for its proposed changes to the Wrongs Act.

65 The Explanatory Memorandum for the Amendment Act provides in relation to s 28LZS(2):

New section 28LZS(2) provides that the new definition of threshold level, as amended by section 11 of the Bill, will apply to an injury which is the subject of a proceeding for damages for non-economic loss under Part VBA of the Principal Act, which proceeding was commenced but not finally settled or determined before the commencement of section 11. This means that the new definition may apply to proceedings which are currently on foot.[49]

66 The Explanatory Memorandum is consistent with the ordinary meaning of s 28LZS(2) of the Wrongs Act. This section could apply to the facts in this proceeding as follows. The plaintiff commenced a proceeding for a claim for the recovery of damages for noneconomic loss in respect of her injury. The proceeding was commenced before the commencement of s 11 of the Amendment Act, that is, before 19 November 2015. Under s 28LZS(2), the new definition of 'threshold level' in s 28LB will apply to the plaintiff's injury unless the plaintiff's proceeding was finally settled or determined before 19 November 2015.

67 The question then is whether the plaintiff's proceeding for her non-economic loss claim was finally settled or determined before 19 November 2015. If it was, the new definition of threshold level does not apply to her injury. If it was not, the new definition of threshold level applies to her injury.

68 As the plaintiff has not settled her claim, the key expression here is 'finally determined'. The issue is whether the plaintiff's proceeding was finally determined once the Medical Panel made its decision as to the threshold level in May 2015, which decision must be accepted by the court pursuant to s 28LZH. The plaintiff may argue that the Medical Panel's determination does not amount to final determination of her proceeding, because the proceeding continues until judgment is delivered. The defendants may argue that the proceeding was finally determined once the Medical Panel found that the threshold level had not been met, because the Court must accept that decision and the claim for non-economic loss damages can go no further. Certainly, if the Medical Panel had determined that the threshold level had been met, that would not amount to final determination because the proceeding would continue in the County Court.

69 Whether the Medical Panel determination that the threshold level had not been met amounts to the proceeding being finally determined will depend on the proper construction of 'finally determined'. It is unnecessary for the purposes of this application to reach a final conclusion as to the proper construction. There does, however, appear to be a manifest or strong argument that the Medical Panel's determination did not finally determine the proceeding, because the proceeding continues to exist in the County Court after the Medical Panel delivered its determination.

70 If the proceeding has not been finally determined, then the new definition of threshold level will apply to the plaintiff's claim, and the Medical Panel's determination will be non-responsive to the new definition of threshold level. If the new definition applies, and there is a manifest or strong argument that it does, then the Medical Panel's determination does not answer the question as to whether the plaintiff's injury meets the new threshold level.

71 The Amendment Act is not of itself a special circumstance. However, the consequences of it upon the plaintiff are that she has a manifest or strong argument that there is an additional ground of review available to her because the Medical Panel determination does not address the new threshold. The impact of the Amendment Act on the plaintiff, which was not known until after the expiry of the time limit for seeking judicial review, is therefore a special circumstance.

(iv) Justice to both parties, including the prejudice to the parties

72 The prejudice to the defendants is the potential quashing of the Medical Panel determination and the potential awarding of damages to the plaintiff in respect of a finding of significant injury. The defendants say that they are prejudiced as the County Court proceedings are effectively frozen until this proceeding is determined. Further, the negotiation boundaries for settlement are now uncertain because of this proceeding. These are really issues regarding finality of litigation and are dealt with further below. The defendants did not identify any prejudice external to the litigation.

73 The prejudice to the plaintiff is that she may lose an opportunity to have the Medical Panel determination revisited with the consequence that she may not be able to claim damages for non-economic loss.

74 The Court does not accept the plaintiff's submission that this is her one chance to make a claim for significant injury. She has proceedings on foot in the County Court and could make an application to that court asking it to use its powers under s 28LZT of the Wrongs Act to make any order it considers appropriate to resolve a difficulty arising because of the operation of the Amendment Act. The Court does consider, nonetheless, that the plaintiff may be prejudiced if the extension of time is not granted. There is no certainty as to the outcome of any application for a s 28LZT order.

(v) Public interest in the finality of litigation

75 Both parties referred to the finality of the County Court litigation. The plaintiff's submission that the finality of litigation factor is meaningless in this case is not accepted. The finality of litigation in this context refers to the finality of that part of the County Court proceeding determined by the Medical Panel. After the 60 day time limit for judicial review has elapsed, there is a public interest in the parties being able to proceed in the County Court proceedings on the basis that the Medical Panel determination is a final one. A second medical panel hearing will delay the County Court proceeding. If the second medical panel were to reach a different determination and the plaintiff becomes entitled to general damages, then the County Court proceeding will become more complex, costly and time-consuming.

76 Consistently with the Civil Procedure Act 2010, the efficient use of Supreme Court resources is also relevant. Granting an extension and hearing out-of-time judicial review applications impacts upon Court resources. Section 9(1)(f) of the Civil Procedure Act 2010 specifically requires the Court to have regard to the timely determination of civil proceedings.

77 For the reasons above, the public interest in the finality of litigation weighs against the plaintiff in these circumstances.

78 On balance, and considering the totality of factors, the Court considers that there are special circumstances. The special circumstances are constituted by the impact of the Amendment Act on the plaintiff, and the potential for her to be seriously prejudiced if the extension of time is not granted. These factors outweigh the other factors that favour the defendants.

79 The Court will make orders granting the extension of time. The parties are requested to confer in respect of the applicable orders and the costs of this application.

MEDICAL PANEL CONSTITUTED BY MR JOHN BOURKE AND MR ROY CAREY

[1] Exhibit 'JR-4' to the affidavit of Joseph Ridley affirmed on 6 November 2015 ('the Ridley affidavit').

[4] See Wrongs Act 1958, s 28LB definition of 'threshold level'.

[6] The second and third defendants indicated that in doing so they adopt the comments of the High Court in The Queen v The Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-36.

[8] Mann v Medical Practitioners Board [2004] VSCA 148 ('Mann'), [57].

[9] Lazarevic v Victoria Police [2015] VSC 13, [36], upholding the decision of Derham AsJ in Lazarevic v Victoria Police [2014] VSC 497.

[10] Wurth Australia Pty Ltd v Gallichio [2010] VSC 630 ('Wurth'), [44], [45].

[11] Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285 ('Kocak'), [66]-[71].

[12] Wurth [2010] VSC 630, [47]-[55].

[13] Lovejoy v Myer Stores Ltd [1999] VSC 271, [25].

[14] Glass v The Chief Examiner [2015] VSCA 127, [77].

[15] Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [19], upheld on appeal Mann [2004] VSCA 148, [72].

[17] [2000] VSC 549, [143], [146].

[18] BCD v Chief Examiner [2012] VSC 193, [35].

[19] Wilson v Building Commission of Victoria [2015] VSC 629 ('Wilson'), [31].

[21] Kocak [2011] VSC 285, [36].

[23] Wilson [2015] VSC 629, [53].

[24] See for example Kocak [2011] VSC 285, [62]-[64].

[25] Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412; (1993) 44 FCR 361, 374.

[29] See also QT96/78 and Commissioner of Taxation [1996] AATA 406.

[34] Exhibit 'JR-5': Letter from Convenor of Medical Panels to the plaintiff's solicitors dated 8 April 2015.

[37] Mahony v J K Krushich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 528-529. See also the Wrongs Act Part X, which deals with the duty of care, causation and the negligence of professionals.

[44] See for example D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014), [6.15].

[47] Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2015, 3281 (Mr Pakula, Attorney-General).

Court (General Civil Procedure) Rules 2015

Supreme Court (General Civil Procedure) Rules 2015

Wrongs Amendment Act 2015

Superannuation Standards Act 1987

Tax Assessment Act 1997

Transport Accident and Accident Compensation Acts Amendment Act 2007

Legislation Act 1984

At a glance

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