Attard v Penspey Pty Ltd (Ruling)
[2025] VCC 1579
•31 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-25-04384
| JACOB ATTARD | Plaintiff |
| v | |
| PENSPEY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2025 | |
DATE OF RULING: | 31 October 2025 | |
CASE MAY BE CITED AS: | Attard v Penspey Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1579 | |
RULING
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Subject:ACCIDENT COMPENSATION
Catchwords: Medical panel referral – Whether a Medical Panel referral should be made
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:HIH Winterthur Workers’ Compensation (Vic) Ltd v Greeves [1998] VSC 97; Greeves v HIH Winterthur Workers’ Compensation (Vic) Ltd [2000] 1 VR 344; Baumgartner v Victorian Workcover Authority [2022] VSCA 21
Ruling: Medical Questions are to be referred to a Medical Panel pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC | Carbone Lawyers |
| For the Defendant | Ms F Blair | Hall & Wilcox |
HIS HONOUR:
1In this proceeding, the plaintiff seeks a determination of “serious injury” pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2On 18 August 2025, the defendant gave notice of intention to request that a medical question be referred to a Medical Panel.
3In addition to the notice of intention to refer a medical question to a Medical Panel, the defendant provided a notice of the questions that it proposed that the Court refer pursuant to s274 of the Act. The proposed medical questions are as follows:
“1 What is the nature of the medical condition (if any) of the Plaintiff’s:
(a) Left chest - pneumothorax; and
(b) Mind?
2 Does any medical condition of the ‘left chest – pneumothorax’, as identified by the Medical Panel in answer to Question 1(a), continue to result from, or be materially contributed to by, injury sustained by the Plaintiff in the course of his employment on or about 11 August 2021?
3 Does any medical condition of the Plaintiff’s mind, as identified by the Medical Panel in answer to question 1(b), result from or is it materially contributed by the Plaintiff’s ‘left chest – pneumothorax’ injury sustained on or about 11 August 2021?
4 If ‘yes’ to Question 2 and/or 3, is any medical condition of the Plaintiff’s:
(a) Left chest – pneumothorax; and
(b) Mind,
“permanent” meaning “likely to last for, during or through the foreseeable future”?”
4Section 274 provides as follows:
“Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a) may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b) if—
(i) a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii) the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2) This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985 —
(a) so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b) so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of "medical question" in section 3)—
to a Medical Panel for an opinion.
(3) If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4) A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
(5) A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
5The plaintiff opposes the referral. In his written submission, the plaintiff contended that the proposed referral amounts to an abuse of process pursuant to s274(3) of the Act.
6The primary reason why the plaintiff contended that the proposed referral was an abuse of process was because a Medical Panel had previously assessed the plaintiff and answered medical questions in an Opinion dated 31 July 2024. Relevantly, that Opinion was that:
“In the Panel’s opinion Mr Jaros-Attard has a 1% whole person impairment resulting from the accepted pneumothorax, left chest, respiratory condition and surgical scarring injury when assessed in accordance with the Act”.[1]
[1] Medical Panel Opinion dated 31 July 2024, page 1
7Pausing, the previous Medical Panel Opinion was provided in the context of a claim for impairment benefits. At a directions hearing held on 16 October 2025, the Court was informed that the previous Medical Panel referral had in fact been made by the plaintiff as part of a dispute about his impairment benefit claim.
8The parties agree that the previous Medical Panel Opinion is not one that is binding on the Court pursuant to s313(4) of the Act, because it was not a referral ordered by the Court in this proceeding.
9The contention of the plaintiff that the proposed referral is an abuse of process really drills down to two propositions. First, that there is no relevant medical question to refer because a previous Medical Panel accepted a permanent impairment from a compensable injury. Second, that more recent medical evidence does not support a finding that any injury as assessed by the previous Medical Panel has resolved.
10On the other hand, the defendant contended that the plaintiff was assuming, incorrectly, that there was no dispute between the parties as to matters of diagnosis and causation/contribution.
11The defendant contended that there was medical evidence to support the proposition that the plaintiff no longer suffered any physical condition relevant to the accepted injury, over and above that of scarring. It highlighted how the previous Medical Panel Opinion found a whole person impairment relevant to scarring only. It also highlighted that the plaintiff had a longstanding history of asthma which had been disregarded for the purpose of assessing a whole person impairment by the previous Medical Panel, raising issues to do with causation and impairment consequences from compensable injury.
12The defendant correctly contended that the proposed questions are relevant to the live issue between the parties in the serious injury proceeding.
13The defendant highlighted decisions such as Greeves[2] and more recently in Baumgartner.[3]
[2]HIH Winterthur Workers’ Compensation (Vic) Ltd v Greeves [1998] VSC 9; Greeves v HIH Winterthur Workers’ Compensation (Vic) Ltd [2000] 1 VR 344.
[3] Baumgartner v Victorian Workcover Authority [2022] VSCA 21.
14Broadly, where a dispute arises as to the existence or aetiology of an injury, that is a sufficient ground to refer relevant medical questions to a Medical Panel for opinion, unless the referral is an abuse of process.
15As was said in Baumgartner:
“The fact that, in a given case, the defendant has medical evidence that supports the plaintiff’s case, or is unable to point to any medical evidence that refutes it, does not mean that the issues in dispute are necessarily confined. It is not necessary that there exist, at the time of the request, a conflict on the existing evidence on that question. Indeed, a request may be made early in the litigation before the requesting party has obtained material of its own. The text of s 274 of the Act is not couched in terms of resolving a dispute and, as was made plain in Wingfoot, the purpose of the referral is not to have the panel arbitrate or adjudicate on competing opinions. In our view, as a matter of construction, s 274 is not confined to those cases where the referring party can affirmatively point to evidence that is in conflict with the other party’s case.
Further, to impose a requirement that there be some conflict in the evidence introduces an indeterminate criterion for the exercise of the referral power. It involves the judge making some assessment as to the cogency of the evidence before the hearing of the proceeding. In this case, the primary judge regarded a referral of a question touching the nature and extent of the injury as ‘unnecessary’. On the other hand, the primary judge concluded that there was some qualification in the opinion of Dr Shan as to work capacity and that ‘it cannot be said that he has provided an answer that rules out any dispute.
It follows that there is nothing in the text of s 274 that limits the referral power to those circumstances in which a factual dispute between the parties on the medical question has been established.”[4]16The defendant accepted that the referral may not resolve all issues in dispute but highlighted how the answer to the proposed medical questions may narrow the issues in dispute.
17Much of the plaintiff's written contention focused on the “serious injury” test for pecuniary loss, noting that the plaintiff was under 26 years of age when he was injured. However, the legal test of “serious injury” is not necessarily relevant at all for the referral of medical questions to a Medical Panel.
18True it is that the referral may not resolve all issues in dispute between parties, but that is not uncommon and equally the referral may narrow the issues in dispute, based on the answer to medical questions by a Medical Panel that will have specialist expertise in answering such questions.
19Having considered the material before the Court and the parties’ contentions, I prefer those of the defendant on this occasion.
[4] Ibid at [75]-[77]
20First, the fact that a previous Medical Panel provided a non-binding Opinion in the context of a referral for an assessment of impairment does not mean that in this proceeding all relevant medical questions have been answered.
21Second, there is a basic dispute in this proceeding, namely whether the plaintiff has identified “very considerable” consequences from a compensable injury. True it is that that the Medical Panel cannot decide the “serious injury” issue, but equally the Act provides for a system where relevant medical questions can be referred to a specialist Medical Panel as part of the “serious injury” process. Seeking to refer questions about causation or capacity is not an abuse of process.
22Third, the legal test for pecuniary loss serious injury is not relevant to the task of the Medical Panel. That is an issue that is ultimately for the Court. Even if the plaintiff considers he has a very strong claim for “serious injury” that of itself is not a ground to refuse to refer medical questions.
23Overall, I prefer the defendant’s submissions because they focused on the fact that there is a medical dispute for which medical questions can properly be referred to the Medical Panel. On the other hand, the plaintiff’s submissions focused more on the “serious injury” test, seek to rely on the evidence in the previous Panel Opinion (which is not binding) and on a general complaint that he has strong medical evidence in support of his application for “serious injury”. None of those grounds in isolation or even in combination amount to an abuse of process.
24I also pause to note that at this stage I do not have access to all the relevant medical evidence or other evidence that either party seeks to rely on and am in no position to accept that the plaintiff’s claim for “serious injury” is as strong as he submits. It would be an erroneous consideration to act in such an assertion in the context of a Medical Panel referral.
25Overall, this is not a scenario where there is such a substantial factual dispute, or a late application to refer, where it could be said to be an abuse of process to refer medical questions to a Medical Panel.
26Accordingly, s274(5) of the Act is not enlivened and it is appropriate to refer medical questions to a Medical Panel.
27Parties are invited to prepare minutes of orders sought to give effect to this Ruling.
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