Yaghoubi v Employers Mutual Limited

14

The provisions relating to Medical Panel referrals are contained in Part 6C of the Act. For present purposes the relevant provisions include the following:

(1) The function of a Medical Panel is to give an opinion on any medical question referred to it under this Act.

(2)

The Corporation or the Tribunal may, at any time or from time to time, require a worker -

(a)

who claims compensation under this Act; or

(b)

who is in receipt of weekly payments of compensation under this Act,

to submit himself or herself for examination by a Medical Panel or to answer questions (or both) on a date and at a place arranged by the Convenor of Medical Panels so that the Medical Panel can determine any specified medical question.

(3) In addition, a medical question that constitutes or forms part of, or arises in connection with, a matter that is the subject of a dispute under Part 6A must be referred to a Medical Panel.

(4) A Medical Panel may decide not to give an opinion on a particular medical question if it appears to the Medical Panel that the question relates to a matter that falls outside the range of matters that should be subject to determination under this Part.

Section 98F(3) had not come into operation at the date of the publication of this version.

(a) to meet with the Medical Panel and answer questions;

(b) to supply copies of all documents in the possession of the worker which relate to the medical question to the Medical Panel;

(c) to submit to a medical examination by the Medical Panel or by a member of the Medical Panel.

(2) A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying -

(a) the disability or alleged disability to, or in respect of, which the medical question relates;

(b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.

(3) A person or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that person or body to the Medical Panel.

(4) If a Medical Panel requests and the worker consents, a medical expert who has provided a medical service to a worker in relation to the relevant compensable disability must -

(a) meet with the Medical Panel and answer questions; and

(b) supply relevant documents to the Medical Panel.

(5) If a worker unreasonably refuses to comply with subsection (1) or in any way hinders an examination -

(a) the worker's rights to recover compensation under this Act with respect to the disability; or

may be suspended by the Corporation until the examination has taken place in accordance with the requirements of the Medical Panel (and any weekly payments that would otherwise be payable during the period of suspension are forfeited).

(6) Any attendance of a worker before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present.

(7) Information given to a Medical Panel cannot be used in subsequent proceedings unless -

(a) the proceedings are before the Tribunal or a court under this Act; or

(b) the worker consents to the use of the information; or

(c) the proceedings are for an offence against this Act.

(1)

A Medical Panel must form its opinion on a medical question referred under this Division within 60 days after the reference is made or such longer period as may be agreed by the Corporation or Tribunal (as the case requires).

(2)

The Medical Panel to which a medical question is so referred must give a certificate as to its opinion.

(3)

An opinion under subsection (2) must include a statement setting out the reason or reasons for the opinion provided by the Medical Panel.

(4)

For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any body or person acting under this Act and must be accepted as final and conclusive irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

15

The compensating authority submitted that the referral to the Medical Panel should be accepted as a valid referral for present purposes, and that it did not have to justify its validity in order to establish an entitlement to the orders sought. That being so, it submitted that a stay should be granted in the exercise of the Tribunal's inherent power to control proceedings before it upon the basis of the worker's refusal to submit to a medical examination by a Medical Panel in accordance with a request lawfully made under s 98G(1) of the Act. The compensating authority contended that this refusal was relevant to the progress of the judicial determination proceedings now before the Tribunal. This was so for two reasons. First, that under s 98H(4) of the Act, the Tribunal was a body required to adopt and apply, and accept as final and conclusive, an opinion of a Medical Panel. Second, that the questions which had been referred to the Medical Panel for opinion were directly related to the issues which arose for judicial determination by the Tribunal.

16

The compensating authority submitted that the worker's refusal to submit to a medical examination thus impeded the efficient and effective operation of the compensation scheme established by the Act, which would be best served by the Tribunal awaiting the certification of the Medical Panel opinion before the judicial determination proceeded further. The compensating authority contended that the worker should not be permitted to pursue his rights to compensation before the Tribunal whilst at the same time he refused to comply with a request that he submit to a medical examination by a Medical Panel with respect to a medical question relating to the issues arising in the disputes.

17

Whilst the compensating authority acknowledged that it had the power to take additional or alternative action to suspend the worker's rights to compensation under s 98G(5) of the Act on the basis of an alleged unreasonable refusal to submit to a medical examination, it contended that it did not have to proceed with such a course in the circumstances, and was entitled to a stay order in any event.

18

The worker put forward three alternate bases upon which I should decline to stay the proceedings. First, he contended that Medical Panel processes and procedures had no relevance to proceedings in the Tribunal, and that accordingly there was no power to order a stay upon the basis of asserted non-compliance with Medical Panel directions; second, that even if there was such a power, it could not be exercised unless the compensating authority sought to invoke its power under s 98G(5) of the Act to suspend the worker's rights to recover compensation on the basis of his alleged unreasonable refusal to comply with a request that he submit to a medical examination; third, that the purported referral of the medical questions to the Medical Panel was invalid, with the consequence that a refusal by the worker to submit to an examination by a Medical Panel upon the basis of such a referral could not be unreasonable and could not give rise to grounds for a stay.

19

In the alternative, assuming there had been a valid referral to the Medical Panel, the worker contended that neither a stay nor an adjournment of the dispute proceedings should be granted given the delay by the compensating authority in making that referral. The referral was made seventeen months after the claims for compensation were lodged, and eleven months after the determinations rejecting the claims were disputed. The worker contended that the Medical Panel referral could have and should have taken place much earlier, and that no adequate explanation had been provided for the reasons for the delay, such that the application should be denied.

20

The compensating authority contended that to the extent that any delay could be attributed to the compensating authority, it was not of such significance as to disentitle it to the relief sought. The compensating authority pointed to the fact that it had notified the worker of its intention to refer medical questions to a Medical Panel whilst the matter was still at the conciliation stage, and that the referral after that time had been delayed, in part at least, by what the compensating authority alleged was the worker's failure to respond to draft medical questions and later to draft terms of the Medical Panel referral.[7]

21

There was no dispute that the Tribunal, in the exercise of the limited jurisdiction conferred on it by statute, has such jurisdiction as is necessary to allow it to appropriately discharge its statutory function. It was not disputed that in controlling proceedings before it, the Tribunal constituted of a presidential member was empowered, in appropriate circumstances, to order that judicial determination proceedings be stayed.[8]

22

It is my view that the Tribunal may consider exercising the power to stay judicial determination proceedings by having regard to the progress (or lack of progress) in the deliberations of a Medical Panel with respect to medical questions validly referred for opinion where those medical questions are relevant to proceedings before the Tribunal. This follows in light of provisions of the Act which reveal a correlation between outcomes of Medical Panel processes and proceedings before the Tribunal.

23

That correlation is illustrated at a general level by reference to the objects of the Act.[9] Those objects include the establishment of a workers rehabilitation and compensation scheme that reduces the employer and community costs of what is intended to be a fair and balanced scheme; the efficient and effective administration of the scheme; and the reduction of litigation and adversarial contests to the greatest possible extent. The provisions relating to Medical Panels in Part 6C of the Act must be considered to be part of this scheme, and should be interpreted in a manner which assumes an intended complementary operation with the dispute resolution scheme set out in Part 6A of the Act.

24

The correlation is illustrated at a more specific level by provisions of Part 6C dealing with the establishment, functions and powers of Medical Panels. These provisions were introduced by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 ("the Amendment Act"). Although the provisions of the Act dealing with resolution of disputes by way of judicial determination were largely unaltered by the Amendment Act, the conduct of such proceedings may now be affected by outcomes of Medical Panel deliberations.

25

For example, a worker claiming compensation under the Act or who is in receipt of weekly payments of compensation may be required by either the Tribunal or the compensating authority to submit to an examination by a Medical Panel so that the Medical Panel can determine a specified medical question.[10] Such a person may or may not be a party to proceedings before the Tribunal. The determination of the Medical Panel following any such examination is to be expressed by way of a certificate of opinion which sets out the reason or reasons for the opinion.[11] For the purposes of the determination of any question or matter "by any body or person acting under this Act", the opinion of a Medical Panel on a medical question referred to it is to be adopted and applied and must be accepted as final and conclusive.[12] A body or person so bound must be taken to include the Tribunal when discharging its functions under the Act including the judicial determination of disputes.

26

The result, in my view, is that where medical questions which are validly referred to a Medical Panel constitute or form part of, or arise in connection with, an issue arising in a dispute before the Tribunal, whether for conciliation or judicial determination, it would be contrary to the scheme of the Act for the Tribunal to conduct its proceedings without regard to the Medical Panel process. Were the Tribunal to do so, there would be a potential for a duplication of costs and proceedings, and for the creation of conflicting outcomes, and it would be likely that parties would be induced to seek to gain a perceived advantage by competing to have one process or proceeding completed before the other.

27

Accordingly, it is within the Tribunal's power to stay the proceedings on the basis that it would be inappropriate to allow the worker to continue with them whilst refusing to comply with a lawful request by the Medical Panel that he submit to a medical examination with respect to medical questions relating to or arising out of matters in issue in the judicial determination proceedings.

28

I reject the worker's submission that the Tribunal has no power to order a stay in these circumstances unless the compensating authority has sought to exercise its power of suspension under s 98G(5) of the Act. That provision allows the compensating authority to suspend a worker's rights to recover compensation or to weekly payments where the worker unreasonably refuses to comply with or hinders a request that the worker submit to a medical examination by a Medical Panel. Whether the compensating authority seeks to invoke that power or not does not impinge upon the power of the Tribunal to make a stay order for the same reason which might justify a suspension under s 98G(5). A successful invocation by the compensating authority of its powers under s 98G(5) may obviate the need for a stay, but the absence of any such action does not mean that a stay cannot be ordered in appropriate circumstances.

29

The rejection of the worker's first two points based upon a lack of power in the Tribunal to order a stay requires consideration of his third alternative proposition, that the referral to the Medical Panel is invalid, and that accordingly his refusal to submit to an examination by the Medical Panel cannot be unreasonable and cannot be a proper basis upon which to order a stay.

30

The worker submitted that the Act vests no express or implied power in the compensating authority to refer a medical question to a Medical Panel for opinion where the medical question concerns or relates to issues arising in a dispute which has already been referred into the Tribunal for judicial determination under s 92D of the Act.

31

The provisions of the Act relating to the establishment, functions and powers of Medical Panels in Part 6C of the Act do not confer an express power in the Tribunal, the compensating authority (as the agent of WorkCover Corporation) or any other body or person to refer a medical question to a Medical Panel. The question is whether Part 6C vests an implied power of referral in the Tribunal and the compensating authority, and if yes, then in the case of the compensating authority, whether there are limits on the circumstances in which that power can be exercised.

32

First, the worker submitted that although there was no express power of referral vested in the compensating authority by Part 6C of the Act, there was an express power of referral under Part 4 Division 4 of the Act. Reference was made to s 35C(3)(b) of the Act, which restrains the compensating authority from refusing to make a determination under s 35C(2) of the Act relating to current work capacity unless it has first referred a medical question on the issue as to the extent and nature of a worker's ongoing disability "for the opinion of a Medical Panel under Part 6C". The provision has no application in the present case, but the worker contended that the existence of such an express power of referral weighed against the argument of the compensating authority that an additional and implied power of referral could be inferred from the provisions of Part 6C. That argument, so the worker submitted, was premised upon an assumption that the Act contained no express powers of referral, and that unless both the Tribunal and the compensating authority were taken to be vested with implied powers of referral by Part 6C of the Act, the Medical Panels could not receive referrals from any source and would have no work to do, a result which the compensating authority contended could not have been in the contemplation of Parliament. The existence of an express power of referral in s 35C(3)(b) undermined that argument, submitted the worker, for it allowed Medical Panels to receive referrals through this source and thus have some ongoing, albeit limited, function.

33

I do not consider that s 35C(3)(b) has the effect for which the worker contends. The provision does not of itself vest a power of referral in the compensating authority. It merely creates a condition precedent before there can be a refusal of a request for a determination on current work capacity under s 35C(2) of the Act, namely that there be a referral of a specified medical question to the Medical Panel. The source of power and the mechanism for making such a referral is to be found in Part 6C, not in s 35C(3)(b) of the Act. Further, even if the submission of the worker as to the existence of an express power of referral under s 35C(3)(b) was correct, it would not lead me to conclude that no implied power of referral could be drawn from other provisions of the Act, otherwise the range of medical questions as defined in s 98E able to be referred to a Medical Panel would be so limited that the Medical Panels would have next to no function.[13]

34

This then leads to the worker's second submission, which is that Part 6C cannot be interpreted as vesting an implied power of referral of a medical question to a Medical Panel in either the Tribunal or the compensating authority even if no independent express power of referral is conferred by the Act.

35

The only provisions of Part 6C which could give rise to an implied power of referral are contained in s 98F and s 98H. The worker contended that these were mechanical provisions only, which could not in themselves effect a referral, and which assumed that a medical question had been validly referred to a Medical Panel under some other provision of the Act. The worker conceded that the position might be otherwise if s 98F(3) of the Act was in force, but given that it was not, the more explicit terms of that unproclaimed provision, to the effect that in certain circumstances a medical question "must be referred to a Medical Panel", simply served to illustrate how Parliament could have made the position clear had it so wished.

36

The worker drew support for his contentions from the reasoning in decisions of the Supreme Court of Victoria in Freisleben and Johns v Nisselle and Others.[14] Whilst it was conceded that these decisions were made in the different context of the equivalent Victorian legislation, namely the Accident Compensation Act 1985 (Vic) ("the Victorian Act"), it was contended that the decisions were persuasive given similarities between that legislation and the provisions of the Act dealing with Medical Panels.

37

In each case proceedings had been issued in the County Court of Victoria by a worker pursuing workers compensation entitlements under the Victorian Act. During the course of those proceedings, an insurer which was not a party to the court proceedings purported to refer a medical question relating to an issue in the proceedings to a Medical Panel, and sought an adjournment of the court proceedings pending receipt of the Panel's medical opinion. In each case the worker objected to this process and sought relief from the Supreme Court of Victoria in the nature of prohibition restraining the convenor of the Medical Panels from continuing with the referrals.

38

The question to be decided was whether the insurer had power to make the referrals. There was no express power to do so. The insurer contended that it had an implied power to make the referrals, and relied upon s 67(1) and (2) of the Victorian Act in this regard. Although there are some differences, these provisions at the relevant time were somewhat similar to s 98F(1) and (2) of the Act. The Victorian Act also contained a provision very similar to s 98H of the Act. A major difference in the legislation however was s 45 of the Victorian Act, which vested an express power in the County Court, once proceedings had been issued in that Court, to refer a medical question of its own motion, and which required the County Court to do so at the request of a party to the proceedings.

39

Justice Smith heard the proceedings. The argument put to him by the insurer appeared to draw on an extrapolation of the principle of statutory interpretation to the effect that a power conferred by Parliament on a body or entity carries with it the power necessary for the performance or execution of the power.[15] The submission was that, given that Parliament had expressly conferred a power on a body such as a Medical Panel to form opinions on medical questions referred to it, there was an implication that a body such as the insurer, having power under s 67(2) to require a worker to attend before a Medical Panel for an examination, also had the implied or associated power to refer a medical question to the Medical Panel in relation to which the required medical examination was to take place.

40

Smith J rejected this argument, considering that it was not necessary to imply a power of referral in the insurer given that an express power or obligation to refer a medical question to a Medical Panel was conferred on the County Court by s 45. In his view the insurer's argument contemplated the overriding of an express power vested in the County Court by an implied power in the insurer, which would render the s 45 referral procedure superfluous for one party to any dispute that came to the court for resolution.

41

The reasoning of Smith J highlights an obvious point of distinction between Freisleben and the present case. The argument now put forward, to the effect that Part 6C of the Act confers no implied power of referral on either the Tribunal or the compensating authority, must be considered in the context that the Act does not confer an express power of referral on these or any other bodies. The consequence of the worker's submissions, if upheld, would be that Part 6C of the Act would be of no effect at all, in that the Medical Panels, although properly established under the Act, would have no work to do because neither the Tribunal nor the compensating authority nor any other person or entity had either express or implied power to refer any medical question to a Medical Panel.

42

There is another construction of the Act which is reasonably open, and which promotes the purpose and objects of the Act, and should thus be preferred consistently with s 22 of the Acts Interpretation Act 1915. In my view, given the absence of any express power of referral, the provisions of Part 6C of the Act can be understood to imply that both the Tribunal and the compensating authority have an implied power to refer medical questions to a Medical Panel. This is consistent with Parliament's manifest intention that Medical Panels have a function to perform with respect to medical questions referred to them. Such an outcome is in accordance with what has been described as a "modern approach to statutory construction" which permits the finding of an implication where it is proper and legitimate to do so having regard to accepted guides to legislative intention: Austereo v Trade Practices Commission.[16]

43

Such a conclusion is open having regard to the terms of s 98F and s 98H of the Act. Section 98F(2) allows the compensating authority or the Tribunal to require a worker to submit to an examination by a Medical Panel so that the Medical Panel can determine "any specified medical question". The "medical question" referred to must be taken to be a "medical question" which falls within the definitions in s 98E of the Act. In order for a Medical Panel to discharge the function of determination contemplated in s 98F(2), a document containing the information required under s 98G(2) must be submitted to a Medical Panel.

44

In order for the provisions of Part 6C to have any operation, it must be assumed that a power is vested in some entity to implement the referral under s 98G. It can be accepted that Parliament intended that the Tribunal or the compensating authority be vested with this power, given their power under s 98F(2) to require a worker to submit to an examination by the Medical Panel for the purpose of determining a specified medical question. Were it otherwise the medical examination would be pointless, as the Medical Panel would be unable to certify an opinion on the specified medical question.

45

A consideration of s 98H points to the same conclusion. Section 98H(1) sets a time limit of 60 days for the formation by a Medical Panel of an opinion on a medical question which has been referred to it under Division 2 of Part 6C (comprising ss 98E to 98H). Such longer period is allowed "as may be agreed by the Corporation, or the Tribunal (as the case may require)". The need for the Medical Panel to seek agreement to an extension of time from either the Corporation or the Tribunal implies that either the Corporation or the Tribunal (as the case may be) was the entity which had the power to refer the medical question to the Medical Panel in the first place.

46

This conclusion gains support from s 98H(2) which refers to the need for the issue of a "certificate" of opinion by the Medical Panel "to which a medical question is so referred". Likewise it is supported by s 98H(4) of the Act which provides for the adoption and application of an opinion of a Medical Panel "on a medical question referred to the Medical Panel".

47

It remains then to address the third alternative put by the worker to the effect that, if Part 6C is to be taken to imply a power in the Tribunal and the compensating authority to refer questions to a Medical Panel so that the Panels can perform their intended function, the extent of that implied power should be taken to be limited in the case of the compensating authority. In particular, the worker submitted there was no basis for the implication of any power of referral in the compensating authority where a dispute has already been referred into the Tribunal for judicial determination. There was no necessity to do so, for absent such an implied power of referral, the Medical Panels still had a function to discharge. Medical questions could be referred by the compensating authority at a stage before a dispute was referred into the Tribunal for judicial determination, or by the Tribunal at any stage of the dispute resolution process, whether before or after the dispute had been referred for judicial determination.

48

The worker contended that an interpretation of the Act which limited the referral power of the compensating authority in this way was consistent with a principle of statutory interpretation to the effect that an implied power of referral of a medical question could only be exercised by the compensating authority for the discharge of some function given to it under the Act. The worker accepted that if the compensating authority had an implied power of referral, then that power might be properly exercised in the performance of its statutory function as primary decision maker. However, submitted the worker, after the dispute had been investigated, determined, conciliated and then referred into the Tribunal for judicial determination, the compensating authority had no relevant ongoing decision making function under the Act in relation to which a power to refer a medical question might be exercised. By that stage, it was submitted, the role of the compensating authority had altered from that of primary decision maker to that of an adversarial party to proceedings subject to the control of the Tribunal. Such a party should then no longer be taken to have unilateral power to refer a medical question related to the issues in dispute to the Medical Panel.

49

The worker submitted that there was an inherent unfairness in the compensating authority having power to refer a medical question to a Medical Panel after referral of a dispute for judicial determination, given that the other party to the proceedings had no such power and that the Tribunal had no power to intervene. The worker submitted that there would need to be a very clear Parliamentary intent able to be drawn from the legislation before an implied power could be taken to exist in these circumstances, and that the provisions of the Act did not support such an extensive implied power.

50

The compensating authority submitted that no anomaly arose from its exercise of an implied power of referral of a medical question to a Medical Panel after a dispute had been referred into the Tribunal for judicial determination. It contended that, if one accepted there was an implied power, it must be taken to be unlimited, given that s 98F(2) allowed the compensating authority, "at any time or from time to time", to require a worker to attend a medical examination by a Medical Panel. It submitted that this was also supported by the terms of s 98H(4), which provides that a medical opinion must be accepted as final and conclusive "irrespective of ...when the medical question was referred".

51

Further, the compensating authority contended that its status as an entity which had to have regard to more than its own interests continued throughout the dispute resolution process, including after referral of a dispute for judicial determination, and that there was nothing to prevent it from referring a medical question to a Medical Panel at that stage of proceedings. The compensating authority submitted that it was entitled to take the view, having regard to matters beyond its own interests, that a referral to the Medical Panel after proceedings came into the Tribunal for judicial determination might be a more efficient means of seeking a resolution to the dispute, or aspects of it, and that it should not be inhibited in this regard, even if by that time the proceedings had progressed to a very advanced stage, even to the close of evidence and submissions.

52

In my view there are a number of considerations which support the worker's contention that an implied power vested in the compensating authority to refer medical questions to a Medical Panel must have some limitations on the circumstances in which it can be exercised. These considerations include the changing nature of the functions which the compensating authority has during the course of the entire dispute resolution process; the lack of specificity in the Act as to the power of the compensating authority with respect to referrals to Medical Panels; and the potential for dispute resolution processes to operate in a way contrary to the objects of the Act if the referral power is entirely unconstrained.

53

Some general principles as to constraints upon the exercise of functions by statutory bodies were adverted to by Phillips JA in the reasons for decision he gave as part of the Appeal Court which dismissed the appeal against the decision of Smith J in Freisleben.[17] In considering the appellants' contention on s 67(1) of the Victorian Act, the equivalent for present purposes to s 98F(1) of the Act, although in somewhat different terms, Phillips JA said the following:[18]

"Let it be supposed, then, that the appellants are correct, and that ...it was necessarily to be implied from the terms of s.67(1) that the Authority and a self-insurer...had the power to refer medical questions to a medical panel. To my mind that is not a complete statement of the implication. Any statutory power must be - and indeed can be - exercised only for the purpose for which it is conferred:...(citations omitted). For what purpose then was this implied power conferred? Surely it could only have been for the discharge of some function committed to the body or person in question by or under this legislation. The Authority or self-insurer... all had powers and duties in relation to the handling of claims for compensation (sometimes involving assessment, sometimes determination)... If, then, the appellants are right and a power to refer medical questions to a medical panel was to be implied...I see no reason to doubt that that power, implied as it was, could be exercised by the conferee...only for the purpose of its discharging some function given it under the Act.

...My point is only that if the power was to be implied then its proper exercise was necessarily limited by the purpose for which it was conferred. In the two cases under appeal, the authorised insurer had completed its consideration and processing of the claims made for compensation; so far as relevant it had rejected them and had notified the worker of its decision, advising him at the same time that, if he wished to establish his claims, he should now proceed by litigation, subject to his first attempting conciliation. Nothing more remained to be done by the authorised insurer in respect of its handling of the worker's claims; the rest was up the courts. Each court had the power in the proceeding commenced before it to refer medical questions to a medical panel, but that did not give any like power to the authorised insurer. Any power the insurer might once have had in that regard was past, if not spent. That is the first reason why, if the appellants were right in contending that power was to be implied from s.67(1), the implication would not avail the authorised insurers in these two cases."

54

Phillips JA then proceeded to outline a second point which included comments as to the effect of s 68(4) of the Victorian Act, the equivalent of s 98H(4) of the Act. He observed this to be "a most extraordinary provision" which made it particularly important that the circumstances and the conditions under which an insurer under the Victorian legislation was authorised to refer medical questions to a medical panel be made as clear as possible.[19] The worker drew upon these observations in support of his argument.

55

It must immediately be acknowledged that Phillips JA was addressing limitations on the implied power of referral of entities which had a different role under the Victorian Act to that of the compensating authority, and that, as already noted, the issues in Freisleben were considered in the context that the County Court had an express power to refer medical questions in relation to proceedings before it, whereas under the Act no entity is vested with such express power. Further, it is difficult to draw anything from the remarks of Phillips JA about the equivalent of s 98H(4), as they were made in the context of a very convoluted history of legislative amendment of the Victorian Act which does not apply here.

56

However, what can be distilled from the general principles of statutory interpretation adverted to by Phillips JA is that, if an implied power of referral of a medical question to a Medical Panel can be taken to be vested in the compensating authority by the Act, as I consider it can, the use of that power is constrained by the need for it to be exercised only for the discharge of some function committed to the compensating authority under the Act which is consistent with the objects of the Act.

57

It is helpful to review the respective functions of the Tribunal and the compensating authority under the Act in this context. The Tribunal may be constituted of a Full Bench, a single presidential member or a single conciliation officer (s 78), and, as previously observed, the Tribunal has jurisdiction as conferred by statute (s 79). The jurisdiction includes conciliation of disputes referred by the Registrar under s 91A of the Act, and the judicial determination of disputed claims which must be referred into the Tribunal under s 92D of the Act by a conciliation officer if conciliation proceedings do not result in an agreed settlement of the dispute.[20]

58

It would seem unlikely that any issue as to referral of a medical question by the Tribunal to a Medical Panel would arise before a dispute formally came before the Tribunal after reference for conciliation by the Registrar under s 91A, although conceivably the question of a referral could arise in the course of an application for an expedited decision under s 97B of the Act. Be that as it may, once the dispute is before the Tribunal following the Registrar's referral under s 91A, the Tribunal has control of the proceedings, and among its various other powers, it may of its own motion or at the request of a party decide to refer a medical question to a Medical Panel. Consistent with the function of the Tribunal to resolve disputes by conciliation or determination, there is no reason why such a referral could not take place at any stage of the Tribunal proceedings, whether before, during or after conciliation proceedings, or after the dispute has been referred into the Tribunal for judicial determination. At all times the Tribunal would remain in control of the timing and terms of any referral, as is contemplated by s 98G(2) of the Act and rule 19(2) of the Workers Compensation Tribunal Rules 2009, and it can be accepted that if the Tribunal chose to make such a referral it would hear the parties involved in the proceedings as to their views on the proposed referral, and would take their legitimate interests into account.

59

Thus, notwithstanding the absence in the Tribunal of an express power of referral, and accepting that its implied power of referral should be exercised only to the extent necessary to allow it to perform its functions, there appears to be no impediment to concluding that the implied referral power might be exercised by the Tribunal at any stage of the proceedings before it, whether at conciliation or judicial determination. However, in my view, an analysis of the functions of the compensating authority leads to the conclusion that the circumstances in which its implied power of referral might be properly exercised are more limited.

60

King CJ explained the function of the compensating authority in general terms in Robbins v Harbord.[21] That explanation was given in the context of a review and appeal system which has long since been replaced by the current system of conciliation and judicial determination, but nevertheless it remains applicable. Whilst the compensating authority (or an exempt employer as the case may be) is a party to proceedings with respect to a dispute,[22] it is not an ordinary party to litigation. The dispute proceedings will have arisen from a decision made by the compensating authority in pursuance of its statutory function of investigating and determining claims for compensation. In that role the compensating authority is not entitled to determine a claim by simply consulting its own interests. Thus, the compensating authority is a party to dispute proceedings not as an ordinary litigant but as the primary decision maker defending its decision against a person affected by the decision.

61

The compensating authority submitted that this understanding of its role supported its contention that the power of referral of a medical question could be exercised at any time, including after referral of a dispute into the Tribunal for judicial determination. It contended that if there was to be a limitation on its power of referral by reference to the stage which proceedings had reached, there was no rational basis for drawing the line at the stage of referral of the dispute into the Tribunal for judicial determination. The Tribunal will have assumed control of the dispute proceedings from the time of referral for conciliation, and if it was accepted that, in referring a medical question to a Medical Panel at or before the conciliation stage, the compensating authority was discharging a function given to it under the Act, it was submitted that there was no reason why the compensating authority was not to be taken to be discharging the same function under the Act if the referral was initiated after commencement of the judicial determination stage of the dispute.

62

In my view this proposition does not have any or sufficient regard to the fact that the dispute resolution process, upon referral of a dispute into the Tribunal for judicial determination, enters a distinctly new and final stage. By this time, the compensating authority will have exercised its function over a number of phases of the dispute resolution process. It will have discharged its initial statutory function of investigating and determining the claim. The claim having been disputed, it will have discharged its obligation to engage in a reconsideration of the claim. The dispute will have undergone the conciliation process. Whilst from the outset of conciliation the compensating authority is a party to proceedings and as such can be taken to be adopting the role of defending its decision, the primary focus of proceedings at this stage is on conciliation. The emphasis is on the evaluation and further consideration by the parties of their positions in light of additional material which comes to hand in the course of this process, and during the structured conferences which are conducted within a well established framework and with the close involvement of a conciliator.[23]

63

The conciliation process will facilitate the identification and clarification of the range of issues in dispute, and if the matter does not resolve during this process, as indeed most do, the parties and the Tribunal will have the opportunity to consider the most appropriate means of progressing resolution of the dispute. All appropriate means of dispute resolution should be explored. One of the options which should be considered at this stage, if it is to be considered at all, is whether some or all of the issues in dispute, to the extent that they give rise to a "medical question" as defined by s 98E of the Act, might best be dealt with by a referral for an opinion of a Medical Panel.

64

At any of these phases of the process commencing from the making of a claim up to the end of conciliation, it can be accepted that the compensating authority, if it elected to refer a medical question to a Medical Panel, did so in the proper discharge of a function given to it under the Act, namely to resolve an aspect of the dispute through the opinion of a Medical Panel as an alternative or an adjunct to a later judicial determination.

65

As observed above, once the dispute has been referred into the Tribunal for judicial determination, the process enters a distinctly different phase. The referral will have been made because the presiding conciliation officer had taken the view that proceedings have not resulted in agreement despite all reasonable efforts to bring the parties to the dispute to agreement. The Tribunal remains in control of the proceedings, but now by means of a presidential member, and in this final phase the purpose of the proceedings is to progress in a timely way to a resolution of the dispute by judicial determination. The compensating authority is now primarily adopting the role of an adversarial party. Its functions with respect to the earlier phases involving investigation, determination, reconsideration, and conciliation in accordance with Part 6A Division 4 of the Act, have been discharged. It could be expected that any medical questions thought appropriate for the opinion of a Medical Panel would have been identified and referred to a Medical Panel before this final stage.

66

None of these observations should be taken to suggest that during the judicial determination stage the parties should not and do not engage in further conciliation or refinement of the issues, for indeed they do, and more often than not an agreed outcome is the result. Nevertheless, the dispute having been referred into the Tribunal for judicial determination, there is no necessity for the compensating authority to continue to have a function under the Act which allows for the referral of a medical question of its own motion and without regard to the views of the Tribunal.

67

Were it otherwise, it would allow the compensating authority, as one party to the litigation, to unilaterally elect to bypass the judicial determination proceedings, no matter what stage they had reached, and no matter what the views of the other parties, or the Tribunal. The following comments made by Smith J in Freisleben as to the insurer's argument in that case are apposite in this context, notwithstanding the distinguishable facts of that case and the terms of the Victorian Act identified above:

"The argument ... involves the assumption that Parliament impliedly intended that one party in litigation before a court should have the right to bypass the court and have questions, which are properly before the court, determined by another body without the opposing party having any say in the matter. Thus having expressly enabled the dispute to be resolved in accordance with natural justice, Parliament, it is argued, introduced a statutory denial of natural justice by implication. The argument is even more remarkable when one considers that the court and the opposing party must accept the opinion and act upon it.

In addition, all parties in civil litigation are generally subject to the same rules and treated and controlled equally by and in accordance with those rules by the courts. This assists in achieving legal equality, an aspect of the rule of law. The contention for the defendants, however, involves the proposition that Parliament has conferred by implication a power which, to plagiarise George Orwell, would make one party "more equal than others". Thus, it is argued, Parliament has by implication granted a power at odds with the rule of law."[24]

68

If the compensating authority is to be taken to be able to exercise the implied power of referral of a medical question arising out of or related to a dispute which has already been referred for judicial determination, there is the potential for a number of undesirable consequences. The Tribunal will have no power to prevent the compensating authority from making the referral to the Medical Panel. The Tribunal would have only two options. It might accede to an application that it stay or adjourn the proceedings to await the Medical Panel opinion, which, depending upon the stage of the proceedings, may result in a waste of time already expended on preparation for judicial determination and the incurring of unnecessary costs, and a delay in the resolution of the dispute. Alternatively, it may continue with the proceedings, and issue a judicial determination of the dispute, which may result in an outcome which conflicts with the opinion of a Medical Panel on the same issue. That will also result in a duplication of time and resources and unnecessary costs.

69

The potential for such outcomes is quite contrary to many of the objects of the Act. It would not appear to be consistent with a system which has the objective of achieving a reasonable balance between the interests of employers and the interests of workers; it would not tend to promote the reduction of the economic cost to the community of employment related disabilities; it would detract from the efficient and effective administration of the scheme; it would not provide an incentive to encourage efficiencies in dispute resolution procedures and nor would it discourage abuses; and it would not be conducive to a reduction in litigation and adversarial contests.

70

Had it been the intention of Parliament to empower the compensating authority to refer medical questions to a Medical Panel at any stage of Tribunal proceedings, it might have been expected that Parliament would have clearly expressed that intent. Certainly, more so than by leaving one to resort to the inference that a power to request "at any time" that a worker undergo medical examination by a Medical Panel meant that a referral could be effected at any time,[25] or that the fact that an opinion was "final and conclusive irrespective of ...when the medical question was referred" should lead to the same conclusion.[26] References to the ability of the compensating authority to require a worker to attend a medical examination by a Medical Panel at any time should be read down so as to encompass no more than a reference to the imposition of such a requirement consistently with the constraints on the implied power of the compensating authority to make a referral to the Medical Panel.

71

Other provisions of the Act illustrate that Parliament has quite explicitly vested the compensating authority with a range of powers to require a worker to submit to certain procedures in other contexts - for example, to comply with obligations under rehabilitation and return to work plans under s 28A, to submit to medical examinations for the purposes of a determination of a claim under s 53, or a review of entitlements under s 38, and for the purposes of other provisions such as s 36(1a)(a) and s 108. The absence of a conferral of an unfettered power of referral of medical questions to a Medical Panel in similarly explicit terms is of significance in the present circumstances.

72

A constraint upon the power of the compensating authority to refer a medical question to a Medical Panel to the extent proposed does not compromise the ability of the compensating authority to discharge its statutory functions. It is a limitation quite consistent with the objects and purposes of the Act. The compensating authority will have ample opportunity, from the time a claim is made up to the close of the conciliation process, to refer medical questions to a Medical Panel if it considers that to be an effective and efficient means of resolving all or part of a dispute with respect to the claim. The proposed constraint does not inappropriately restrict the circumstances in which medical questions might be referred to Medical Panels for opinion. Even after a matter is referred into the Tribunal for judicial determination, the Tribunal may choose to refer a medical question to a Medical Panel, either of its own motion or at the request of one of the parties.

73

For these reasons I conclude that the compensating authority does not have the power to refer a medical question to a Medical Panel where that medical question constitutes, or forms part of, or arises in connection with, issues in a dispute which already has been referred into the Tribunal for judicial determination under s 92D of the Act. I find that the referral which the compensating authority purported to make in this matter by means of its Certificate of Referral dated 21 April 2010 was not a valid exercise of power by the compensating authority under the Act.

74

In these circumstances, the requests by the Medical Panel that the worker meet with it or submit to a medical examination were not lawful requests under the Act, and the worker was not and is not obliged to comply with them. His failure to comply cannot provide a proper basis upon which the Tribunal proceedings should be either stayed or placed in the suspense list.

75

Given my conclusion on the invalidity of the referral to the Medical Panel, it is not necessary that I address the worker's alternative contention that, assuming the referral to be valid, I should decline to make the orders sought on account of the alleged delay by the compensating authority in making the referral to the Medical Panel. It is not appropriate that I express any tentative view in this regard because, if I am wrong in my conclusion on the issue of validity, an analysis of the issue of delay will be better informed by an understanding of the precise basis upon which the referral might be found to be valid, and the period of time over which any such power of referral might have been exercised. Thus the delay issue should be dealt with at a later time, if that ever becomes necessary.

76

There is no basis upon which a stay of the judicial determination proceedings should be granted, or upon which the proceedings should be referred to the suspense list. I dismiss the compensating authority's application for orders in this regard.

77

I will list the judicial determination proceedings for further directions including trial orders in the near future and will have appropriate notice given to the parties accordingly.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

[3] 25 June, 29 July, 26 August and 4 September 2009 - Affidavit of Maria Billias (Exhibit "CA2").

[4] Each being a medical question as defined in subsections (a), (b) and (g) respectively of s 98E of the Act.

[5] Attachment "MB1" to the affidavit of Maria Billias sworn 11 May 2010 (Exhibit "CA1").

[7] On the basis of the facts set out in Exhibit CA2.

[8] The existence of such an inherent power in the Tribunal arising under the Act is recognised by rule 22(5) which permits the Tribunal to make any order required to facilitate the fair and expeditious hearing of a matter, including under sub-clause (a)(xx), a general power to make an order for the stay of proceedings.

[11] Section 98H(1), (2) and (3) of the Act.

[13] Section 98E identifies 18 "medical questions" capable of referral to a Medical Panel, although the provisions are yet to come into operation in relation to five of these questions. A referral in relation to s 35C(3)(b) could encompass only that medical question set out in s 98E(k).

[14] [1999] VSC 191 - a decision of Justice Smith which was later upheld by the Court of Appeal of the Supreme Court of Victoria - QBE Workers Compensation (Vic) Ltd v Freisleben and Nisselle [1999] VSCA 207; [1999] 3 VR 401.

[15] As articulated in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, Butterworths at para 2.39.

[16] [1993] FCA 301; (1993) 41 FCR 1 at 36 - 37; and see generally Pearce and Geddes at paras 2.30 - 2.35.

[17] QBE Workers Compensation (Vic) Ltd v Freisleben and Nisselle [1999] VSCA 207; [1999] 3 VR 401.

[19] Phillips JA at paras [39] and [40].

[20] The fact that a disputed claim is to be referred "into the Tribunal" for judicial determination under s 92D does not imply that the conciliation proceedings preceding that referral were not also proceedings in the Tribunal, as explained in Sianis v WorkCover/QBE Mercantile Mutual Workers' Compensation Ltd [2005] SAWCT 70 at paras [27] - [40].

[21] [1994] SASC 4571; (1994) 62 SASR 229 at 236.

[22] In accordance with s 89 of the Act.

[23] In accordance with Part 6A Division 4 of the Act and rule 17 of the Rules and the second schedule to the Rules.

[24] [1999] VSC 191 at paras [35] and [36].