Akram Karam v Palmone Shoes Pty Ltd
[2017] VSCA 145
•21 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0086
| AKRAM KARAM | Applicant |
| v | |
| PALMONE SHOES PTY LTD | Respondent |
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| JUDGES: | ASHLEY and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 June 2017 |
| DATE OF JUDGMENT: | 21 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 145 |
| JUDGMENT APPEALED FROM: | Karam v Palmone Shoes Pty Ltd [2016] VCC 779 (Judge Wischusen) |
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ACCIDENT COMPENSATION – Application for leave to appeal – Application for stay –Interlocutory order of County Court – Order suspending proceedings because of refusal by worker to submit to medical examination – Whether judge erred in finding that requirement to submit to medical examination within reasonable interval and worker’s refusal unreasonable – No error – Leave refused – Accident Compensation Act 1985 (Vic) s 112.
PRACTICE AND PROCEDURE – Appeal – Interlocutory order of County Court – Whether appeal authorised by Accident Compensation Act 1985 (Vic) s 52 or County Court Act 1958 (Vic) s 74 – Whether Supreme Court Act 1986 (Vic) ss 14A–14D apply – Whether ‘real prospect of success’ test in Supreme Court Act 1986 (Vic) s 14C applies – Accident Compensation Act 1985 (Vic) s 391(1) – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 27, 627(3), 644 – Northern Health v Kuipers [2015] VSCA 172 and Metricon Homes Pty Ltd v Softley [2016] VSCA 60 referred to.
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| APPEARANCES: | Counsel | Solicitors |
| The Applicant appeared in person | ||
| For the Respondent | Mr S A O'Meara QC with Mr R Kumar | Minter Ellison Lawyers |
ASHLEY JA:
OSBORN JA:
On 6 June 2016, at a directions hearing in a proceeding in which Akram Karam (or ‘the applicant’) seeks accident compensation from his former employer, Palmone Shoes Pty Ltd (‘Palmone’ or ‘the respondent’), a judge ordered, inter alia, that:
Pursuant to s 112 of the [Accident Compensation Act 1985 (Vic)], the proceeding is suspended and is not to be relisted for hearing until the Plaintiff submits himself for examination by an independent medical examiner provided for by the authority.[1]
[1]See discussion of the statutory framework at [44] of these reasons. Prior to being repealed on 1 July 2014 by the Workplace Injury Rehabilitation and Compensation Act 2013 s 635(2), s 112 of the Accident Compensation Act 1985 provided:
(1) The Authority or a self-insurer may require a worker who has made a claim for compensation to submit at reasonable intervals to an examination by an independent medical examiner provided and paid for by the Authority or self-insurer.
(2) If a worker unreasonably refuses to have, or unreasonably obstructs, an examination under subsection (1)—
(a) any claim or proceedings commenced by or on behalf of the worker; and (b) the worker's entitlement—
(i) to compensation under this Act; or
(ii) to apply to the County Court or Magistrates' Court—
are suspended until the examination takes place.
(3) When the examination takes place any period between the date on which the worker unreasonably refused to have, or unreasonably obstructed, the examination and the date of the examination must be taken into account for the purpose of calculating, subject to this Act, a period or time for the purposes of this Part.
(4) Any weekly payments which would otherwise be payable during the period of suspension are forfeited.
(5) In this section independent medical examiner means— (a) a medical practitioner; or (ab) a registered dentist; or (b) a registered physiotherapist; or (c) a registered chiropractor or a registered osteopath; or (d) a registered psychologist— approved by the Authority for the purposes of this section.
The reference in the order to ‘the authority’ was a reference to the Victorian WorkCover Authority established under the Accident Compensation Act 1985 (‘the Act’). The WorkCover Authority was the second defendant in the proceeding. It is unnecessary to make further reference to its involvement.
By application dated 20 June 2016, Mr Karam sought a stay of the judge’s order.
By application dated 23 June 2016, filed on 24 June, Mr Karam sought leave to appeal against the order.
The Court heard the two applications on 5 June 2017. There was then no point to the stay application. The hearing focused upon the application for leave to appeal against the judge’s order, the matter being conducted on the footing that, if leave was granted, the substantive appeal should also be determined.
The applicant, who appeared unrepresented both below and in this Court, relied upon the same arguments on his leave to appeal and stay applications. Those arguments were very largely a recapitulation of matters which he had advanced on 6 June 2016 as reason why the impugned order should not be made. At the heart of his applications was the proposition that it was not open to the judge to have made the impugned order.
Circumstances up to 6 June 2016
The order which the judge made on 6 June 2016 was another step in long-running litigation between the applicant and Palmone.
The applicant is a man now aged 58. He was employed by Palmone between 2002 and February 2006 as a shoemaker. He was exposed to and inhaled fumes from various chemicals. They included benzene. He developed asthma. That was the cause of him ceasing work. His asthma was compounded by a psychiatric reaction. He claimed and was paid compensation under the Act for a period exceeding two years. He received a serious injury certificate in early 2008, and thereby was entitled to and did commence a common law proceeding.
In February 2008, Mr Karam was diagnosed as suffering from a plasma cell malignancy called plasmacytoma. Within the next 18 months, the condition spread. By August 2009, he was suffering from multiple myeloma.
In June 2008, the applicant made a claim for accident compensation with respect to his cancer condition. That claim, as later developed, relied particularly upon ss 82(6), 86 and 87 of the Act.
The applicant’s claim in respect of his cancer condition was speedily rejected. The matter was referred for conciliation. On 9 October 2008, a conciliator determined that there was a genuine dispute between the parties concerning the compensability of the applicant’s cancer condition, and referred the matter to a court for determination.
Mr Karam then commenced, in the Magistrates’ Court, a proceeding referable to his cancer condition. That was in December 2008. The particulars of injury referred to his cancer, and also to anxiety, depression and an adjustment disorder. The statement of claim placed reliance upon ss 82(6), 86(1) and 87 of the Act. It was asserted that, ‘[a]s a result of the injury and an accepted claim for industrial asthma, the plaintiff has no current work capacity’.
Claim was made for a declaration that Mr Karam had suffered compensable injury, weekly payments of compensation, reasonable medical and like expenses, and interest.
Notice of defence was filed by Palmone on 5 March 2009. Compensable injury (under any of the sections of the Act upon which the applicant relied) was denied. By paragraph 16 of the document, various contentions were pleaded with respect to absence of compensable incapacity.
We must go back a little in time. On 1 April 2008, as permitted by the serious injury certificate mentioned at [8] above, the applicant commenced a common law proceeding for damages in respect of his asthma in the County Court. Eventually, that claim was transferred for hearing in the Supreme Court.
The applicant commenced a second proceeding in the Supreme Court. In it, he claimed damages in respect of his cancer condition.
The two common law proceedings were heard at the same time by T Forrest J. That was in late 2009.
On 18 January 2010, his Honour delivered judgment.[2]
[2]Karam v Palmone Shoes Pty Ltd [2010] VSC 3.
In short, the judge found against the applicant on his cancer claim. His Honour was prepared to conclude that it was at least highly possible that there was an increase in the risk of a person suffering multiple myeloma where there was occupational exposure to benzene at a significant level. But he concluded that the applicant’s exposure did not increase the risk to him of suffering that condition because the level of exposure had been low.
In the course of assessing, in considerable detail, the evidence of a number of medical witnesses called in the proceeding, the judge expressed the conclusion that Professor Richard Fox, an oncologist called by Palmone, was ‘impartial, widely read, and [an] impressive witness’.[3]
[3]Ibid [102]; and see also [119].
The applicant’s common law asthma claim had proceeded as an assessment. There, the judge awarded total damages to the applicant of $244,296. That overall figure included past earnings loss of $73,753 and future economic loss of $13,000.
In the course of determining the applicant’s economic loss claim, his Honour adverted to evidence respecting the applicant’s life expectancy with and without treatment of his cancer; and the applicant’s prospects of getting back to work after treatment. He accepted that, absent treatment, the applicant’s life expectancy was between six months and two years; and that, with treatment, life expectancy was in the order of eight to ten years, or even longer. There would be incapacity for work during treatment and for a period of six to eight months thereafter. Post treatment, the applicant might get back to work. The period of remission following treatment was normally three to five years, after which, following more treatment, the patient might again get back to work.
His Honour did not accept Palmone’s case that, from February 2008, the applicant had no chance of working because of his cancer.
The applicant appealed against both of the judgments. Those appeals were dismissed by this Court on 29 September 2010.[4]
[4]Karam v Palmone Shoes Pty Ltd [2010] VSCA 253.
The resolution of the common law claims left standing the applicant’s claim in the Magistrates’ Court for accident compensation in respect of his cancer condition. Despite some steps to bring that matter on for hearing in 2010, nothing then eventuated.
That proceeding languished for some years. Why that is so may not be important. But it is certainly the case that, in and after 2010, Mr Karam engaged in a good deal of what may be called ‘satellite litigation’ — at first instance, in this Court, and in the High Court.
In any event, in August 2014, Palmone filed a further amended defence in the Magistrates’ Court proceeding. Reliance was now placed on certain findings made in the common law trial respecting the applicant’s cancer condition.
Then, at a hearing on 21 April 2015, Palmone objected to the applicant continuing the proceeding. It submitted that as a result of the entry of judgment in its favour in the cancer case, an issue estoppel arose which precluded the applicant from continuing the proceeding. Alternatively, it submitted that the proceeding was an abuse of process. In either case, it contended that the proceeding should be dismissed.
On 27 May 2015, Magistrate Wright ruled against Palmone. He carefully explained why determination of the common law claim did not foreclose a successful claim for accident compensation.
Palmone did not appeal against the order made in consequence of his Honour’s conclusions.
The accident compensation claim did not remain in the Magistrates’ Court. In late August 2015, the proceeding was transferred to the County Court.
The applicant had been examined by Professor Fox on behalf of Palmone before the trial of the common law actions in late 2009. By letter dated 11 November 2015, Palmone’s solicitors notified the applicant’s solicitors that they had arranged for the applicant to be medically re-examined by Professor Fox on 23 November. The applicant’s solicitors replied that their client ‘has informed us he will not be attending the medical examination that has been arranged by your office as he says orders were already made by Magistrate Brian Wright, prior to our involvement in the matter, indicating that there would be no need for further medical examinations and the matter was to proceed upon the medical evidence that had already been exchanged’.
The applicant did not attend the 23 November appointment. Subsequent correspondence between the solicitors, which showed that their clients were at odds with respect to Palmone’s right to have the applicant further medically examined, led on to Palmone’s solicitors advising the applicant’s solicitors, on 8 December 2015, that a further appointment for 11 January 2016 had been made for the applicant to see Professor Fox. The applicant’s response, through his solicitors and, after he had dismissed them, personally, was that he would not attend a medical examination at the instance of Palmone.
On 4 February 2016, in the County Court, a judge ordered that the applicant’s proceeding not be listed for trial until the applicant had submitted to a medical examination as requested by Palmone. In consequence, a hearing date was vacated.
The applicant made complaint as to the circumstances in which the order of 4 February 2016 had been made. In part, his complaint was that his former solicitors had, by then, been dismissed — for which reason, he contended, he had not been represented at all on that occasion.
This imbroglio led on to the judge listing the matter for directions on 6 June 2016, on which day the applicant was to apply to vary the order made on 4 February.
In support of the application which he was to make on 6 June, the applicant prepared and filed a very detailed affidavit, sworn 23 May 2016.
The hearing on 6 June 2016
As we have already noted, the applicant contends that it was not open to the judge to have made the impugned order of 6 June 2016. That directs attention to the reasons which the judge gave for making the order.
In those reasons, his Honour summarised various arguments which the applicant advanced; and he explained why, for one reason or another, each of those arguments was unsound.
The judge put to one side, we immediately note, the applicant’s complaint that his former solicitors had at various times acted without his instructions, the asserted consequence being that the order made on 4 February 2016 had not been made fairly. His Honour stated in his reasons,[5] and the transcript of hearing confirms, that he told the applicant that he would consider the whole question of the applicant’s refusal to attend medical appointments afresh.
[5]Karam v Palmone Shoes Pty Ltd [2016] VCC 779 [4] (‘Reasons’).
We now set out the submissions which the applicant advanced, as noted by the judge in his reasons, and his Honour’s response. As will be seen, the reasons often enough used the language of ‘he’ and ‘I’ (or similar), there referring respectively to Mr Karam and the judge.
(1)Submission:
[O]nce the defendant had obtained a medical opinion in relation to his case and rejected his claim (which it did back in 2009), that was the only medical material on which this proceeding should be tried and it was unreasonable, or against the rules, or against the Act, to allow further medical evidence to be gathered after the time at which the decision to reject his claim has been made.[6]
[6]Ibid [5].
Response:
It was not the case, once the respondent had obtained a medical opinion and rejected the applicant’s cancer claim, that it was contrary to the Act, the Rules or unreasonable that it arranged for the applicant to be medically re-examined.[7]
[7]Ibid [5], [13]; and see Transcript of Proceedings, Karam v Palmone Shoes Pty Ltd (County Court of Victoria, 17-0336, Judge Wischusen, 6 June 2016) 12-14.
(2)Submission:
[T]he dispute about the rejection of his claim in respect of his malignancy, was referred to the Accident Compensation Conciliation Service, and he was informed by the conciliation officer that the matter could not be referred to the Medical Panel under the Act, because there were no Medical Questions arising in the case. If this was so, … what could be the point of the defendant having him further examined by Professor Fox when he had been assured by the conciliation officer that there was no Medical Question?’[8]
[8]Reasons, above n 5, [6].
Response:
The applicant had misunderstood the conciliation officer’s statement that the matter could not be referred to a medical panel under the Act, because there were no medical questions arising in his case. What the conciliation officer had been saying was that there was no medical question as defined which dealt with the question whether the applicant’s cancer was due to the nature of his employment with the respondent.[9]
[9]Ibid.
(3)Submission:
[B]y orders made by his Honour Magistrate Wright, this matter was listed for trial, back in 2010, in the Magistrates’ Court and, before that, orders were made about the gathering and service of the medical opinions upon which each side sought to rely.[10]
[10]Ibid [7].
Response:
The order made by a magistrate in 2010, dealing with the putting together of medical material for trial at that time, did not preclude the respondent from obtaining up-to-date material six years later.[11]
[11]Ibid.
(4)Submission:
[H]e should not be required to attend Professor Fox because of comments I had made about evidence the Professor had given in a case of Spina that I heard back in 2008.[12]
[12]Ibid [8].
…
[H]e would not be examined by Professor Fox because he is prejudiced and bullying and because he is a partisan witness and, for reasons he explained (these had been previously agitated in other courts) it is his belief that Professor Fox misled the court in his evidence in the Supreme Court proceedings.[13]
[13]Ibid [12].
Response:
The judge explained that critical comments which he had made about evidence given by Professor Fox in a case heard in 2008 said nothing about evidence that the witness might give in the present proceedings.[14] Furthermore, the judge noted that, when he asked the applicant if he could identify any discomfort or hardship that would occur to him as a result of attending an examination with Professor Fox, the applicant’s response, as his Honour understood it, was that his objection to re-examination was entirely one of principle, rather than any physical hardship or discomfort that an examination might cause.[15] Further again, his Honour noted that he had asked the applicant if he would be prepared to attend a medical examination by some other suitably qualified practitioner, and that the applicant’s objection was just as strong. It was Mr Karam’s position, the judge noted, that ‘as a matter of law he should not be required to attend any further medical examinations for reasons already canvassed in the discussion of his submissions.’[16]
[14]Ibid [8].
[15]Ibid.
[16]Ibid [9].
(5)Submission:
[A]ll the medical material relating to his disease has already been exchanged and more recent tests conducted earlier this year in the form of a blood test and a CT scan, which were all arranged by his current general practitioner, are also available for inspection by the Authority’s doctors, should they wish to do so.[17]
Response:
The judge addressed this submission by asking respondent’s counsel why it was thought necessary to have the applicant re-examined. The response had been as follows:[Counsel] referred me to a number of matters. The first of them was that they do not propose, as part of the examination by Professor Fox, to have him revisit any of the matters about which he had previously given evidence concerning the connection between the plaintiff’s disease and his employment. However, she pointed out that at the earlier trial the evidence was that his prognosis was for survival for a period ranging between six months and two years. As was plain from his (apparently) reasonable health in the course of today’s argument, he has done much better than that, and the Authority wishes to obtain Professor Fox’s opinion on whether his survival affects the diagnosis in the case and whether the results of recent investigations — the CT and the blood tests — have any bearing on those matters. His opinion is also sought as to whether the plaintiff’s disease, in its current state, incapacitates him from employment.[18]
[17]Ibid [10].
[18]Ibid [11] (citations omitted).
In the end, the judge expressed this conclusion:
I am not persuaded by the affidavit material or by the arguments put on the [applicant’s] behalf. In my view, it is not unreasonable for [Palmone] to require the [applicant] to be re-examined by Professor Fox, as it is about six years or more since he was last examined and I accept that the matters [Palmone] seeks to raise with him are relevant to the issues in this proceeding. Further, I am satisfied that the [applicant’s] refusal, based though it might be on his genuine misapprehension of the applicable law, to attend a medical examination is unreasonable and I order that the proceeding be suspended until the examination takes place, or further order.[19]
[19]Ibid [13].
We have read the transcript of the hearing on 6 June 2016 so as to be sure that the applicant did raise the matters to which his Honour referred, and in the way that his Honour stated them, and so as to be satisfied that no additional matter was raised to which his Honour must have made reference. It is clear, in the event, that his Honour did faithfully recapitulate the applicant’s submissions; and that no submission was made to which his Honour did not advert in his reasons. That is subject to one gloss: the applicant contended that Professor Fox could not be described as ‘an independent medical examiner’ (this being an expression used in s 112(1) of the Act). But, as the applicant put it, the description was inapt because of the doctor’s alleged bullying and bias, matters to which his Honour did refer.
The statutory framework
Submissions
Both Mr Karam and respondent’s counsel addressed the merits of the application for leave to appeal. In addition, respondent’s counsel made relatively brief submissions as to the statutory provisions relevant to the application. There is no doubt that this second aspect of the matter was not fully explored. The problem, in significant part, stemmed from the fact that the applicant appeared unrepresented.
In our opinion, for reasons which we will explain, some questions as to the relevant statutory framework need not be finally decided. Nonetheless, the framework needs to be considered.
It was submitted for the respondent that the relevant provision with respect to medical examination was s 112 of the Act. That was so because the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Workplace Act’), which by s 27 has its own provision relating to medical examinations, relevantly applies to injuries arising out of, in the course of or due to the nature of employment on or after 1 July 2014, but does not apply to any such injury occurring solely before 1 July 2014;[20] and because s 391(1) of the Act, inserted by s 644 of the Workplace Act provides:
Except as in the Workplace Injury Rehabilitation and Compensation Act 2013 or regulations made under section 621 of that Act expressly provided, all persons, things and circumstances appointed or created by or under this Act or existing or continuing under this Act immediately before 1 July 2014 continue under and subject to the Workplace Injury Rehabilitation and Compensation Act 2013 to have the same status, operation and effect as they respectively would have had if that Act had not been enacted.
[20]Workplace Injury Rehabilitation and Compensation Act 2013 s 5.
Counsel agreed that s 391 is curiously drafted. He informed the Court that to his knowledge it has not previously been judicially considered.
Counsel did not mention, presumably because he considered it beside the point having regard to the transitional provision, that s 52 of the Act,[21] providing for appeals to the Court of Appeal, was repealed by s 627(3) of the Workplace Act, and that s 112 of the Act was repealed by s 635(2) of the Workplace Act, each of those repeals operating from 1 July 2014 by reason of s 2(1) of that Act.
[21]Section 52 provided:
(1)Subject to subsection (1A), any person who was a party to proceedings before the County Court at which a judgement or decision was given or made may appeal to the Court of Appeal on a question of law raised during those proceedings.
(1A)If the judgement, decision or determination a person intends to appeal against was in respect of an interlocutory matter, the person may only appeal to the Court of Appeal with leave of the Court of Appeal.
(2)If a person intends to appeal to the Court of Appeal under subsection (1), the person, within 21 days after the giving of the judgement or making of the decision or determination, must—
(a)serve a notice of appeal on the County Court and on each other party to the proceedings; and
(b) lodge the notice of appeal with the Court of Appeal.
(3)A person who intends to appeal to the Court of Appeal in accordance with subsection (2), may apply to the Court of Appeal for an extension of time to serve and lodge the notice of appeal as required by that subsection within 21 days after the giving of the judgement or making of the decision or determination that the person intends to appeal.
(4)The Court of Appeal may extend the time by which a person must serve and lodge a notice of appeal under subsection (2) whether or not—
(a) an application has been made to extend that time;
(b) the time for lodging and serving the notice of appeal has expired.
(5)The Court of Appeal must not consider an appeal if the notice of appeal has not been served and lodged as required by this section.
Counsel’s submission that the appellate process derived from s 52 of the Act, (which assumed its survival in the present circumstances — we will not keep repeating it) and not s 74 of the County Court Act 1958 (‘the County Court Act’), was founded upon the judgment of this Court in Green v Victorian WorkCover Authority.[22] Given that the Court did not have the benefit of any argument which might have been advanced to the contrary, it appears that such reliance was sound. In Victorian WorkCover Authority v CE Heath Underwriting and Insurance (Australia) Pty Ltd,[23] the ambit and operation of s 52(1) was explained and limited. But no limitation there identified is of present relevance.
[22][1997] 1 VR 364.
[23][1998] 2 VR 427, 430–3 (Ashley AJA).
Counsel emphasised that an appeal under s 52(1) of the Act is limited to a ‘question of law raised during’ the proceeding. In the present case, the question of law was limited to the contention that it was not open to the judge to make the impugned order.
As we apprehend it, the respondent’s argument was then, on an assumption that s 52 provided the appellate pathway, that the regime there set out — see sub-ss (1A), (2), (3) and (4) — applied. Although sub-s (1A) provided, in respect of an interlocutory matter, that a person may only appeal to the Court of Appeal with leave of the Court of Appeal, ss 14A–14D of the Supreme Court Act 1986 (‘the Supreme Court Act’),[24] (simply, ‘the general provisions’), which require grant of leave to appeal in any ‘civil appeal’,[25] were not engaged. Presumably, that was said to be so because, according to the respondent’s argument, the regime set out in ss 52(1A)–(4) of the Act could not precisely align with the regime set out in s 14B of the Supreme Court Act. The consequence of that being the case, as we understand it, was that an application for leave to appeal authorised by s 52 of the Act would engage the test with respect to appeal from an interlocutory decision set out in Niemann v Electronic Industries Limited,[26] namely, whether, first, the decision was attended by sufficient doubt to justify granting leave and, second, whether substantial injustice would be done by leaving the decision unreversed; and not the ‘real prospect of success’ test specified by s 14C of the Supreme Court Act.
[24]Inserted by the Courts Legislation Miscellaneous Amendments Act 2014 and which commenced on 10 November 2014.
[25]Subject to presently irrelevant exceptions.
[26][1978] VR 431 (‘Niemann’).
Counsel further submitted that, if the present application did not find its legislative authorisation in s 52 of the Act, and if s 74 of the County Court Act was in point, then it did not follow that the test for grant of leave to appeal set out in the general provisions — the ‘real prospect of success’ test — was applicable. It was submitted that the state of the law in that connection was presently unresolved.
The end point of counsel’s submission was that, at a practical level, it mattered not whether the applicable leave to appeal test was that set out in Niemann[27] or, rather, the test set out in s 14C of the Supreme Court Act. Either way, the applicant was contending that the judge’s order had not been open, and that contention must fail.
[27]Ibid.
Other than that, and again assuming the operation of s 52 of the Act, the respondent took the point that the applicant had not complied with s 52(2) because notice of appeal had not been lodged with this Court ‘within 21 days after the making of the decision or determination’ the subject of the appeal; and because it and the County Court had not been served with a notice of appeal within that period. Rather, on 24 June 2016 (well within the 21 day period), the applicant had filed an application for leave to appeal in this Court. The consequence, so it was submitted, was that — see s 52(5) of the Act — this Court must not consider an appeal.
Before going further, we will say something about that submission. If s 52 of the Act provided the appellate pathway in this case, and if sub-s (2) had continuing operation, we would not hesitate to exercise the power to extend time which is given by sub-ss (3) and (4). If the applicant did take a procedurally incorrect step, it was understandable, substantively inconsequential, and made by an unrepresented litigant. The submission was, for those reasons, quite unattractive.
Analysis
Whether the circumstances of the matter were considered by the judge below by reference to s 112(1) and (2) of the Act or, rather, s 27(1) and (2) of the Workplace Act is essentially beside the point. Relevantly, the two sets of provisions are identical.[28] The real issue, as we see it, is whether the leave to appeal test in the case of an appeal instituted under s 52 of the Act or under s 74 of the County Court Act is any different. Only if there was a difference would it be necessary to decide the statutory origin of the appeal. About that matter, absent full argument, we refrain from expressing a conclusion. We will say no more than that, in our view, there is room for doubt whether, despite the transitional provision to which counsel referred, s 52 is preserved in the case of an order or judgment made or entered after 1 July 2014, a fortiori in the case of an order made on an application initiated after that date. One matter which might not be irrelevant in that connection is that s 52 was repealed by the Workplace Act, relevantly operative from 1 July 2014. The Courts Legislation Miscellaneous Amendments Act 2014 (‘the 2014 Amendments Act’), which introduced the general provisions, and which amended a considerable number of Acts in which provision was made for appeal to the Court of Appeal so as to introduce a leave requirement,[29] for obvious reasons said nothing about the then repealed s 52 of the Act. It might be accounted odd that a repealed provision would be construed to have continuing, anomalous[30] operation in such circumstances.
[28]Section 27(2)(b) of the Workplace Act refers, inter alia, to ‘entitlement’ under the Act, ie. the Accident Compensation Act 1985. Because the Workplace Act applies to claims under the Act made on and after 1 July 2014, s 27(2)(b) might simply refer to claims of that kind. On the other hand, the reference is consistent with s 27 having a broader application to proceedings under the Act.
[29]Amendments were made to s 134AC of the Act (which was not repealed by the Workplace Act), the Casino Control Act 1991, the County Court Act 1958, the Disability Act 2006, the Fisheries Act 1995, the Imprisonment of Fraudulent Debtors Act 1958, the Judgment Debt Recovery Act 1994, the Land Acquisition and Compensation Act 1986, the Legal Profession Act 2004, the Status of Children Act 2004, the Urban Renewal Authority Victoria Act 2003, the Valuation of Land Act 1960, the Victorian Civil and Administrative Tribunal Act 1998 and one section (s 351) of the Workplace Act.
[30]For more than one reason. See later in these reasons.
The significance of s 74 of the County Court Act is this: in the Workplace Act, there is no section which corresponds with s 52 of the Act. Absent such a provision, it seems clear that s 74 would countenance an appeal from an order made under s 27(2) of the Workplace Act. Section 74(1) of the County Court Act extends to ‘any judgment or order of the court constituted by a judge’ and permits appeal to the Court of Appeal with leave of the Court of Appeal. Section 74(1) is broader than its predecessor version, which excepted a judgment or order in an interlocutory application, or as to costs. Subsections (2D) and (2E), referable to those matters, were repealed in 2014 (again by the 2014 Amendments Act). So s 74(1) of the County Court Act applies to an interlocutory order as well as to a final judgment.
An appeal under s 74 of the County Court Act is an appeal in the nature of a rehearing.[31] It appears that the repeal of s 74(3) in 2014[32] made no difference. Certainly, the legislature subjectively intended no change.[33] On the other hand, as we have said, an appeal authorised by s 52 of the Act is restricted to an appeal upon a question of law. In some cases, that difference would be significant. But, having regard to the nature of Mr Karam’s complaint, that is not so in this case.
[31]See, eg, Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 [90]–[91] (Santamaria JA, Tate and Whelan JJA agreeing).
[32]By the 2014 Amendments Act.
[33]See Explanatory Memorandum, Courts Legislation Miscellaneous Amendments Bill 2014, 9–10.
Thus, if the alternative possibilities in the present case are that the appeal is from an order made under s 112 of the Act via s 52 of the Act, or, alternatively, an appeal authorised by s 74 of the County Court Act in respect of an order made under s 27 of the Workplace Act, the question which arises is whether the Niemann[34] test applies in one or both instances; or, alternatively, whether the s 14C test applies in one or both instances.
[34][1978] VR 431.
From 2010, when s 52(1A) of the Act was inserted,[35] until the commencement of ss 14A–14D of the Supreme Court Act, the Niemann[36] test plainly applied. So, in the case of s 52, the question is whether the situation changed when the general provisions were inserted into the Supreme Court Act. Assuming that s 52 of the Act continued to be an appellate pathway after the commencement of those sections, we think that they plainly had some effect upon the appellate regime. That is because sub-s (1A) of s 52 only imposed a leave requirement in respect of ‘an interlocutory matter’. There would be no statutory leave to appeal requirement in respect of a judgment if the general provisions did not operate.
[35]By the Transport Accident and Accident Compensation Legislation Amendment Act 2010.
[36][1978] VR 431.
An argument that there was simply no leave to appeal requirement in the case of a judgment sought to be appealed in reliance upon s 52 of the Act would essentially call upon the disconformity between sub-ss (2)–(4) of that section, and s 14B of the Supreme Court Act. Disconformity problems have been perceived to arise between the general provisions and other appellate pathways. We consider that the resolution of such problems in the case of other legislation bears upon resolution of the relationship between s 52 and the general provisions.
The appellate regime established by s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’)[37] was in a number of respects out of alignment with the general provisions. In Ikosidekas v Karkanis,[38] the question was left open whether s 148, in the case of appeals directly to this Court, created, in combination with Chapter I of the Rules,[39] a regime parallel to, but not the same as, the regime established by the general provisions.
[37]Itself amended by the 2014 Amendments Act.
[38][2015] VSCA 121.
[39]The rules there applicable were the Supreme Court (General Civil Procedure) Rules 2008. The Supreme Court (General Civil Procedure) Rules 2015 commenced on 25 November 2015. Order 64 was in the form substituted by the Supreme Court (Civil Appeals Amendments) Rules 2014. It is the present form of that order.
In Metricon Homes Pty Ltd v Softley,[40] Warren CJ identified and discussed four inconsistencies said to exist between the s 148 regime contained in the VCAT Act and that established by ss 14A–14D of the Supreme Court Act.[41] Her Honour concluded that the better view was that the regime established by the general provisions of the Supreme Court Act should prevail.[42] Tate JA agreed with the reasons of the Chief Justice, and Robson AJA specifically agreed that the leave to appeal test was that set out in s 14C.[43] Since that time, the conclusion expressed in Metricon,[44] understandably, has been applied a number of times by this Court.[45]
[40][2016] VSCA 60 (‘Metricon’).
[41]Ibid [53]–[62].
[42]Ibid [63]–[70].
[43]Ibid [293].
[44][2016] VSCA 60.
[45]Pham v Victims of Crime Assistance Tribunal [2016] VSCA 102 [20]; Mercedes Benz Australia/Pacific Pty Ltd v Commissioner of State Revenue [2016] VSCA 194 [2]; Secretary, Department of Justice and Regulation v Zhong [2017] VSCA 18 [3]; and Victorian Institute of Teaching v O’Byrne [2017] VSCA 43 [3].
The relationship between the appellate process set out in s 74 of the County Court Act[46] and the general provisions has also been remarked upon. In Northern Health v Kuipers,[47] an interlocutory appeal was brought pursuant to s 74(1) from an order made in the County Court. A question arose whether the test to be applied was that set out in s 14C of the Supreme Court Act or, rather, the Niemann[48] test. Kyrou and McLeish JJA exposed the opposing arguments, before concluding that it was unnecessary in the particular case to decide which test was applicable. Their Honours described the question which arose, but which they did not need to decide, this way:
The question that arises is whether an application for leave to appeal from an order of the County Court is ‘an application for leave to appeal under s 14A’ of the SC Act.
On one view, such an application is an application under s 74(1) of the CC Act which, together with the other provisions of that section and the rules of this Court, is part of a self-contained procedure governing such applications. That procedure differs from the procedure in ss 14A to 14D of the SC Act in a material respect, namely, in relation to variation of the 28 day deadline for filing an application for leave to appeal. As discussed at [6] above, s 74(2A) of the CC Act provides that the Court of Appeal may extend that deadline. By contrast, s 14B of the SC Act stipulates that the rules of this Court may ‘otherwise provide’ in relation to the deadline and makes no express provision for extensions by this Court.
The opposing view is that the provisions of s 74 of the CC Act do not preclude an application for leave to appeal in accordance with those provisions constituting an application under s 14A of the SC Act. This is because the definition of ‘civil appeal’ in s 14A(3) of the SC Act is wide enough to cover an appeal from an order for which the CC Act provides an appeal to the Court of Appeal.[49]
[46]Again, as amended by the 2014 Amendments Act.
[47][2015] VSCA 172 (‘Kuipers’).
[48][1978] VR 431.
[49]Ibid [12]–[14]. It had been assumed, but not decided, in Kennedy v Shire of Campaspe [2015] VSCA 47 that the general provisions applied to an appeal from judgment in the County Court; see also in Haque v State of Victoria [2015] VSCA 83.
Warren CJ was alive to the problem identified in Kuipers[50] when deciding Metricon.[51] Her Honour said this:
A further consideration is that, as this Court observed in Kuipers, many of the arguments that could be said to support the conclusion that ss 14A–14D do not apply to appeals from VCAT would also arise in the context of appeals from the County Court pursuant to s 74 of the CC Act. A finding that ss 14A–14D do not apply to appeals from VCAT to the Court of Appeal would make it more likely that the provisions will also not apply to appeals from the County Court to the Court of Appeal. This would further narrow the scope of the civil appeals regime introduced by ss 14A–14D, contrary to the intention of the Amending Act to create a ‘general’ or ‘universal’ regime for appeals to the Court of Appeal.[52]
[50][2015] VSCA 172.
[51][2016] VSCA 60.
[52]Ibid [66].
The issue raised but not decided in Kuipers[53] has been left open in other decisions of this Court — both before and after Metricon.[54] It is certainly the case that the issue has not been finally resolved. But parity of reasoning with Metricon[55] suggests that an appeal brought under s 74(1) of the County Court Act should be held to engage the general provisions. There is, indeed, more reason, in our opinion, why the general provisions ought be held to apply than in the case of s 148 of the VCAT Act. That is so despite the problems identified in Kuipers.[56] In Metricon,[57] one consequence of this Court’s decision was that a different appellate regime applied depending upon whether the appeal lay to a judge in the Trial Division, or to this Court. There was also the fact that, in respect of appeals brought under s 148 of the of the VCAT Act, there was an established jurisprudence governing applications for leave to appeal — the so-called Hulls test.[58]
[53][2015] VSCA 172.
[54]Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347 [72]–[73] (Kyrou and McLeish JJA), Jakimowicz v Jacks [2016] VSCA 42 [50]–[51] (Warren CJ, Tate and Ferguson JJA) and nn 63–5; and Moorabbin Transit Pty Ltd v Vekhit [2016] VSCA 70 [38] (Tate, Ferguson and McLeish JJA).
[55][2016] VSCA 60.
[56][2015] VSCA 172.
[57][2016] VSCA 60.
[58]Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117.
It is implicit in what we have said thus far, and we should make it explicit, that, in our opinion, the definition of ‘civil appeal’ in s 14A(3) of the Supreme Court Act, meaning ‘an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal by way of rehearing or judicial review, for which … any other Act … provide[s] an appeal to the Court of Appeal’ comfortably includes an appeal authorised by s 74 of the County Court Act; and that is so, as sub-s (3) explicitly states, both with respect to a judgment and an order, the latter of which would include an interlocutory order.
That takes us to an appeal authorised by s 52 of the Act. Assuming its continued survival in a case such as the present, there is, in our opinion, less reason than in the case of either s 148 of the VCAT Act or s 74 of the County Court Act to conclude that the general provisions do not apply. That is so for a number of reasons.
First, it should not be readily concluded that there is no leave requirement in the case of a judgment. Yet s 52 makes no provision for obtaining leave to appeal in such a case, whilst at the same time requiring leave in an ‘interlocutory matter’.
It is true that the rules relating to appeals and applications to this Court, by O 64 as substituted in 2014, make mechanical provision for the leave to appeal process, and, in doing so, permit the Court to grant extensions of time.[59] It is also true that, by r 64.03, reference is made to ‘an application for leave to appeal to the Court of Appeal under s 14A or 17A of the [Supreme Court Act] or under any other Act or otherwise …’. So it cannot be said that the rules would not permit mechanical steps with respect to the initiation and prosecution of an application for leave to appeal. But that does not touch the question when it is that s 14A applies; nor the test to be applied on an application for leave to appeal. On its face, appeal against a judgment under s 52 of the Act would fall within the meaning given to ‘civil appeal’ in s 14A of the Supreme Court Act, and subject to the resolution of any disconformity argument, the general provisions should be held to apply.
[59]Supreme Court (General Civil Procedure) Rules 2015 r 64.08.
Second, and relatedly, it would be anomalous if there was no leave requirement in the case of a judgment, but a leave requirement of some sort in the case of an interlocutory decision. It would also be anomalous if the leave regimes differed one to the other, which would be the outcome if the general provisions (including the s 14C test) applied to an appeal against judgment, but the s 52 regime (and, as the respondent would have it, the Niemann[60] test) applied in the case of an interlocutory matter.
[60][1978] VR 431.
Third, whilst s 52(1A) of the Act requires leave to appeal in an interlocutory matter, sub-ss (2)–(5) relate to appeals. True it is that the outcome of a successful application for leave to appeal is that an appeal may be pursued. But in terms sub-ss 52(2)–(5) say nothing about a leave to appeal regime. In those circumstances, it cannot be said that those subsections set up a regime incompatible with that established by the general provisions. There would seem to be no disconformity between the general provisions and s 52 of the Act. In other words, ss 52(2)–(5) could co-exist with the general provisions, simply requiring institution of an appeal within the specified period, though subject to an order extending time.
Emphasising again, as we have previously done, the difficulties in dealing with an argument in part advanced by one party and by the other party not at all, we think that much the better view is that, from the commencement of the general provisions on 10 November 2014,[61] an application for leave to appeal under s 52 has been governed by those sections. It is implicit in what we have just said, and it is our opinion, that an appeal brought under s 52 of the Act (including an appeal against an interlocutory order) falls within the meaning given to the term ‘civil appeal’ by s 14A(3) of the Supreme Court Act. The argument that an appeal on a question of law from a decision of the Victorian Civil and Administrative Tribunal, because of the function which the Tribunal performs, could not be described as a civil appeal was rejected in Metricon.[62] There is a stronger case for its rejection where the order has been made in the exercise of a judicial function.
[61]See above n 24.
[62][2016] VSCA 60 [51].
In the event, in our opinion, whether the origin of the appeal lies in s 52 of the Act or in s 74 of the County Court Act, the test to be applied is that set out in s 14C of the Supreme Court Act. But in this case, we consider that it would make no difference if the test to be applied in one or other case was the Niemann[63] test.
[63][1978] VR 431.
We add this, for completeness. The Justice Legislation Amendment (Court Security, Juries and Other Matters) Bill 2017 was read for the second time on 25 May 2017.[64] Clauses 31 and 32 amend s 148 of the VCAT Act, and cl 33 amends s 74 of the County Court Act. In each instance, the amending provision is said to clarify that appeals to the Court of Appeal are governed by the civil appeals regime introduced in 2014 by ss 14A–14D of the Supreme Court Act.
[64]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1485–8 (Martin Pakula, Attorney-General).
In the case of s 74 of the County Court Act, there is to be inserted a footnote to sub-s (1), ‘See ss 14A–14D of the Supreme Court Act 1986’. Then, ss 74(2), (2A), (2C), (4) and (5) are repealed.
So, for the future, the regime is unequivocally intended to be that which, in our opinion, represents the better view at the present time.
Of course, the forthcoming amendments to s 74 of the County Court Act and s 148 of the VCAT Act could not be replicated in the case of s 52 of the Act, that section having been repealed as of 1 July 2014.
Submissions in this Court
Applicant’s submissions
Turning to the substantive issue in this proceeding. The applicant submitted in writing that—
(1) he had already submitted to medical examination, so there was no need for him to submit to another unnecessary examination. Having been examined for the respondent, his cancer claim had been rejected, and that was an end to the respondent’s right to have him medically examined;
(2) the conciliator referred the matter to court ‘to be determined on the available evidence’. This meant determination on the evidence then available;
(3) the conciliator refused to refer the matter to a medical panel, saying that there was no medical question in the applicant’s case, rather that it was a matter of law or a legal issue to be determined by the Court;
(4) he was entitled to refuse examination in reliance upon r 33.04 of the County Court Civil Procedure Rules 2008. The respondent’s request that he be examined by Professor Fox was inappropriate and unreasonable, and his refusal was not without reasonable cause;
(5) the respondent’s request that he be medically examined was inappropriate and unnecessary because information was available from treating practitioners and from hospital records. This was adequate and available to the respondent. Further, independent examination on behalf of the respondent was inappropriate because diagnosis, treatment and prognosis were not in issue;
(6) his solicitors at the time had advised him, before the respondent required him to be examined, that ‘it will be not necessary to obtain fresh reports from doctors’;
(7) the referral for examination by Professor Fox was in fact made by his then solicitors, not the respondent;
(8) the referral did not state the reasons for the referral;
(9) Professor Fox was biased and partisan, as was shown by what a judge had said about him in Spina v Galaxy Paints Pty Ltd.[65] Professor Fox was not an ‘independent medical examiner’ within the meaning of s 112(1) of the Act;
[65][2008] VCC 1173 (‘Spina’).
(10) his former solicitors had sent him a letter with respect to the second appointment made with Professor Fox after they had been dismissed;
(11) the only reason why the respondent had arranged the medical examination ‘was to disadvantage and prejudice’ him; and
(12) a medical examination conducted on the respondent’s behalf would not assist resolution of the matter. This Court could perhaps refer the matter to a medical panel, although the magistrate had said that this would not be appropriate.
Orally, the applicant repeated and, to some extent, expanded upon his written submissions. But he added nothing of substance.
Respondent’s submissions
It was submitted for the respondent that, the matter being governed by s 52 of the Act, the applicant had not complied with the requirements of sub-ss (2) and (3) of that section; and so, sub-s (5) prescribed that this Court must not consider the putative appeal. We have already addressed that submission, at [54]–[55] above.
It was next submitted that the substance of the arguments in the applicant’s written case had been advanced before the judge below, and had been referred to by his Honour. What the applicant was attempting to do was simply repeat the case which had been put and rejected below.
Then it was submitted that, in the course of the hearing below, the judge had explained to the applicant that—
(a) s 112 of the Act permits the WorkCover Authority to require the applicant to attend for medical examination at reasonable intervals, and if the applicant unreasonably refused the proceedings could be stayed;
(b) the Court must decide the claim for compensation afresh, and is not limited to medical evidence available at the time of the rejection of the claim for compensation (in 2008);
(c) there are ‘live’ issues in the proceeding concerning both the applicant’s incapacity and prognosis;
(d) the applicant had misunderstood what had happened before the conciliation officer;
(e) the applicant had also misconstrued the judge’s comments in Spina[66] concerning Professor Fox;
(f) the applicant, in any event, was refusing to be examined by any medical examiner and insisting that he need not be medically examined at all, which was mistaken; and
(g) the respondent was entitled to have the applicant medically examined at reasonable intervals (the applicant not having been so examined since 2009).
[66][2008] VCC 1173.
Summarising, the respondent submitted that there was no error in the order which the judge made. The applicant’s position was unmeritorious. There was no basis for the matter proceeding, as the applicant wished to do, on his material and without the respondent having had an opportunity to conduct timely medical examination in respect of live issues.
Orally, counsel agreed that, when considering whether to make an order under s 112 of the Act, the judge needed to be satisfied that the respondent’s requirement that the applicant attend for medical examination fell within the conception of ‘at reasonable intervals’; and needed to assess whether the applicant had ‘unreasonably’ refused medical examination. Those concepts involve matters of fact and degree. They required consideration of relevant circumstances, and the exclusion of consideration of irrelevant circumstances.
Counsel also submitted that r 33.04 of the County Court Civil Procedure Rules 2008, relating to medical examinations, was not engaged. The requirement that the applicant be medically examined had been reliant on s 112 of the Act.
Analysis
Respondent’s counsel was correct in submitting that the substance — though not necessarily the entire detail — of the applicant’s arguments in this Court recapitulated matters advanced below. That is so with respect to the applicant’s written submissions which, at [79] above, we have numbered 1, 2, 3, 5, 9, 10, 11 and 12.
The judge’s responses to those submissions, noted below, were, we consider, not simply arguably correct. They were correct.
(1) The respondent was not confined to reports from its medical consultants as at the time of its rejection of the cancer claim.
(2) The conciliator’s reference to trial ‘on the available evidence’ did not mean that the state of the evidence was frozen as at the time of projected trial in 2009 or 2010.
(3) The conciliator’s observation that referral to a medical panel was not in point was correct, and that observation has been misunderstood by the applicant.
(4) The respondent is not constrained to go to trial only on the basis of medical reports which it had in 2009, together with the reports of treating doctors and investigation reports addressing the period 2009 to 2017. Rather, the respondent is entitled to consider whether the course of events between 2009 and 2017 bears upon diagnosis and treatment, and likewise the extent of incapacity from time to time. Medical examination with a view of elucidating those matters is pertinent.
(5) The fact that a judge criticised Professor Fox’s evidence in a particular case did not mean that the doctor was biased and partisan in this case. Nor is the fact that the applicant considers that the doctor’s evidence in the trial of his common law cancer claim was misleading decisive that the doctor is biased and partisan against him. As a corollary, s 112 of the Act defines what is meant by ‘an independent medical examiner’. ‘Independent’ does not mean ‘non-partisan’, even if, theoretically, it could be ‘not unreasonable’ to refuse examination by an avowedly partisan practitioner.
(6) The applicant’s contention that the respondent’s only purpose in arranging the examinations was to ‘disadvantage and prejudice’ him could not be sustained. The judge was satisfied that the respondent had valid reasons for requiring the applicant to undergo re-examination.
In all, upon the cases advanced for the parties below, it was plainly open to the judge, considering all relevant matters and not bringing to account irrelevant matters, to decide the matter as he did, and so to make the order which he did. Not that it affects those conclusions, we agree with the submission of respondent’s counsel that the transcript of the hearing below reveals that the judge patiently engaged with the applicant and explored with him the matters upon which he relied.
The applicant should not be permitted, on this application, to rely upon arguments not advanced below. The submissions noted as 4, 6, 7 and 8 at [79] above appear to fall into that category. But whether or not that be so is irrelevant
because —
(1) even if, contrary to the respondent’s argument, r 33.04 of the County Court Civil Procedure Rules 2008 applies, the respondent’s request was ‘on reasonable terms’, and the applicant’s refusal to be examined was ‘without reasonable cause’. So much necessarily flows from the judge’s reasons;
(2) the advice said to have been given to the applicant by his then solicitors that it would not be necessary to obtain fresh reports said nothing about the respondent’s right to require a medical examination;
(3) contrary to the applicant’s submission, his solicitors did not refer him for examination by Professor Fox. They advised him of a requirement communicated to them by the respondent’s solicitors; and
(4) it was not necessary for the referral letter to give reasons for the referral. Section 112(1) of the Act provides, simply, that examination by an independent medical examiner could be required.
Orders
The applicant has decisively failed to establish that his proposed appeal has a real prospect of success. If, contrary to the view we hold, the applicable leave to appeal test is that formulated in Niemann,[67] the applicant has equally failed to make out a case for the grant of leave. It follows that we would refuse Mr Karam’s application for leave to appeal; and we would refuse also his application for a stay of the impugned order.
[67][1978] VR 431.
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