Cardona v Bacchus Marsh Mega Fresh Pty Ltd
[2011] VCC 1483
•12 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01458
| JOSEPH CARDONA | Plaintiff |
| v | |
| BACCHUS MARSH MEGA FRESH PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 September 2011 |
| DATE OF RULING: | 12 September 2011 |
| CASE MAY BE CITED AS: | Cardona v Bacchus Marsh Mega Fresh Pty Ltd (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1483 |
RULING
---
Catchwords: ACCIDENT COMPENSATION – application for serious injury – defendant notifying the Court of intention to request referral of medical questions to a Medical Panel – whether the referral constitutes an abuse of process: section 45(1)(b)(i) and (ii) and (1B)
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley | Patrick Robinson & Co |
| For the Defendant | Ms M Tsikaris | Hall & Wilcox |
| HIS HONOUR: |
Introduction
1 The plaintiff filed an Originating Motion on 6 April 2010 seeking leave of the Court pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 ("the Act").
2 The proceeding is listed for trial on 13 September 2011. The defendant notified the Court by letter dated 10 August 2011 to refer medical questions to a Medical Panel pursuant to section 45(1)(b)(i) and (ii), which require that if a party requests medical questions to be referred, then the court "must" make that referral where the Court has been notified of the request no later than fourteen days prior to the date fixed for the hearing of the proceeding.
3 Mr Stanley of counsel appeared for the plaintiff and Ms Tsikaris of counsel appeared for the defendant.
4 Mr Stanley and Mr Tsikaris provided me with:
• The letter to the Court dated 10 August 2011. • A draft request to refer medical questions to a Medical Panel. • A draft statement pursuant to section 65(6A)(b). • A chronology. 5 No other material was put before me. Both Mr Stanley and Mr Tsikaris made submissions relevant to such a referral. They also gave me an outline of the facts relevant to this proceeding following the filing of the Originating Motion which they both agreed I should accept as statements of fact relevant to my determination of the question posed for my consideration.
The Question
6 There was no issue that the amendments to the Act which created the regime in section 45(1) apply to this proceeding nor that the letter of Hall & Wilcox dated 10 August 2011 addressed to the Court did not constitute a notification to the Court of the defendant's intention to make a request to refer medical questions, nor that such notification occurred at a time fourteen days prior to the date fixed for the hearing of the proceeding.
7 The only issue which falls to my consideration is the saving in section 45(1)(b) that the referral is subject to subsections (1B), (1C) and (1D). Only subsection (1B) is of relevance. It is in the following terms:
"The Court may refuse to refer a medical question to a Medical Panel on an application under subsection (1)(b) if the Court is of the opinion that the referral ward, in all the circumstances, constitute an abuse of process."
Abuse of Process
8 Mr Stanley and Mr Karas referred me to Walton v Gardiner,[1] and Skordos v Garnett & Ors[2] in an endeavour to demonstrate the meaning of abuse of process.
[1] (1993) 177 CLR 378
[2] [2009] VSC 512
9 Walton v Gardiner was an appeal heard by the High Court relevant to an application to stay disciplinary proceedings. Skordos v Garnett & Ors is rather closer to the subject matter with which I am dealing, and that is, a belated application to refer questions to a Medical Panel before a Magistrate who refused the application on the basis that it amounted to an abuse of process. Cavanaugh J dismissed the challenge to the orders made by the Magistrate.
10 This matter was argued before me on Friday, 9 September 2011 with an impending hearing on the following Tuesday, 13 September 2011. I undertook to consider the matter as quickly as possible and to deliver a ruling at 9:30 am on Monday, 12 September 2011 in order to avoid any dislocation to the parties and further cost and expense, given that both would be facing the final necessary preparation in order to proceed before a Judge at trial on the following day.
11 I read both Walton v Gardiner and Skordos v Garnett & Ors, and also the authorities referred to by Cavanaugh J in footnote 6 to his reasons for judgment for the purpose of finding a statement which demonstrated what abuse of process amounts to, in a general sense, before turning to the particular facts of the matter before me.
12 Rule 23 of the County Court Civil Procedure Rules 2008, reproduced in Volume 1 of Williams Civil Procedure, and the commentary relevant to summary dismissal of claim refers an abuse of process and provides considerable assistance in determining the meaning of abuse of process.[3]
[3] paragraph 23.0 1.47 and following
13 In State Bank of New South Wales v Alexander Stenhouse Ltd,[4] Giles CJ described the Court’s power to stay proceedings as an abuse of process as follows:
"This Court's jurisdiction to stay its proceedings for abuse of process extends to all those categories of cases in which the processes of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness (Walton v Gardiner (1993) 177 CLR 378 at 395 per Mason CJ, Deane and Dawson JJ). It is important that freedom of access to the Courts should be preserved, and that defendants should not be encouraged to seek a stay on flimsy grounds for tactical reasons (Williams v Spautz (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ), but the fundamental policy considerations informing the jurisdiction are that the Court must ensure that its processes are used fairly as between the parties to the litigation and that the Court must avoid the erosion of public confidence through concern that its processes may lend themselves to oppression and injustice. So there have been identified as aspects of abuse of process first, oppression and unfairness to the other party to the litigation and, secondly, that the matter complained of will bring the administration of justice into disrepute (Rogers v The Queen (1994) 181 CLR 251 at 256 per Mason CJ; 286 per McHugh J; see also Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536 per Lord Diplock and Walton v Gardiner at 393)."
[4] (1997) Aust Torts Reports 81-423 at 64,086. In Walton v Gardiner, Mason CJ, Dean and Dawson JJ used the expression "unacceptable injustice or unfairness" at 392
14 I will return to the principles stated by Giles CJ after turning to a summary of the plaintiff's proceeding and the steps which have been undertaken by both the plaintiff and the defendant up until 10 August 2011, and also by the date upon which the application was made to me for the purpose of determining whether any of the language used by Giles CJ as the means of testing whether an abuse of process has apparent apply to the facts and circumstances of this matter.
The Chronology of Relevant Events
15 In the course of composing the chronology I have had regard to the submissions made by both Mr Stanley and Ms Tsikaris, the chronology and the Court documents in the County Court file.
16 The relevant chronology is as follows:
• The plaintiff suffered injury on 17 April 2003. • The Originating Motion was filed on 6 April 2010. •
Orders were made by consent on 6 August 2010 of a procedural kind typically made in a serious injury application. The orders provided for a date for trial, being 4 April 2011.
•
The solicitors for the defendant served five subpoenas dated 1 October 2010; three on 21 October 2010 and one on 14 January 2011.
•
The solicitors for the plaintiff served six subpoenas dated 2 March 2011, all of which seem to have been served on medical practitioners upon whom the defendant had also served subpoenas.
•
The subpoenas were served pursuant to Rule 42A and were the subject of inspection by both the solicitors for the plaintiff and the defendant
•
The solicitors for the defendant served a Notice to Produce on the plaintiff dated 15 March 2011 requiring the plaintiff to produce, among other things, financial documents relevant to a business, Centrelink, a pension trust and job applications.
•
The solicitors for the defendant filed an affidavit sworn 16 March 2011 exhibiting thirteen medical reports which the defendant intended to rely upon in its defence of the plaintiff's proceeding.
•
The solicitors for the defendant served a further Notice to Produce on the plaintiff dated 25 March 2011 requiring the plaintiff to produce taxation materials.
•
On 4 April 2011, the appearance sheet shows that the plaintiff had retained senior and junior counsel, as had the defendant. The proceeding was not reached. It was re-fixed by order made that day for hearing on 13 September 2011 with priority.
The Questions and Their Purpose
17 The solicitors for the defendant wrote to the Court by letter dated 10 August 2011 notifying the Court of the defendant's intention to make a request to referred questions to a Medical Panel. The questions are as follows:
“1 What is the nature of the plaintiff's medical condition/s relevant to
the following alleged injuries to the:
i Lumbar spine? ii Cervical spine? iii Psychological/psychiatric injuries? 2 What is the extent to which any physical or mental condition, as found in answer to Question (1), results from or is materially contributed to by the alleged injuries to the:
i Lumbar spine? ii Cervical spine? iii Psychological/psychiatric injuries?"
18 A request was made for the Court to list the matter for a directions hearing; however, the file notes reveal that the application for a directions hearing was not by consent. In any event, after the processing of the application for a directions hearing was made, the next available occasion for such a directions hearing was provided being the date upon which I heard the matter.
19 Mr Tsikaris provided me with a document containing the questions which the defendant desires to refer to a Medical Panel. A comparison between the questions on that document and the questions in the letter written to the Court dated 10 August 2011 appear to me to be the same questions.
20 Mr Tsikaris also provided me with a draft statement pursuant to section 65(6A)(b) said to be a draft agreed statement of facts; however, it should be noted that the plaintiff has not considered the statement nor approved of it. However, what is of concern to me is what is drafted on the statement under the heading of "Facts or questions that are in dispute”
"1 The issue in dispute is the extent to which the incident of 17 April 2003 currently contributes to the plaintiff's neck, lower back and psychiatric/psychological conditions."
21 Before making any comment on the questions and the statement, I should also summarise some of the other matters which were put to me by consent:
• The plaintiff lodged a claim after she suffered injury. • The claim was accepted by the defendant. • The plaintiff was paid no fault compensation, that is, weekly payment of compensation, and her medical and like expenses were met. 22 Mr Stanley submitted that it will be difficult for the defendant to deny that the plaintiff suffered a compensable injury given acceptance of the claim and payment of no fault compensation. He referred me to what was said by Ashley JA in Ansett Australian Ltd & Anor v Taylor,[5] that acceptance of liability and payment of no fault compensation can amount to an admission by the defendant of liability which would ordinarily be regarded as very significant.[6]
[5] [2006] VSCA 171
[6] at paragraph 40
23 The submission was made in the context of a debate which I had with Ms Tsikaris, that the questions seek an opinion of a Medical Panel on causation. Question 1 is capable of being answered that there is no injury for which employment is a significant contributing factor. Question 2 is capable of being answered that the plaintiff no longer has a compensable injury.
24 The real reason for the referral of the questions to a Medical Panel is made all the more stark and real by the draft statement which puts the context of the questions to be answered as questions on causation court, in other words, whether the plaintiff any longer suffers from a compensable injury. I cannot see how the "Facts or questions are in dispute" can be interpreted in any other way.
An Abuse of Process?
25 The legislature intended that both parties are entitled to notify the Court of an intention to make a request to refer a question to a Medical Panel so long as the notification is made in accordance with section 45 of the Act.
26 However, the legislature also considered that there should be a balance created by permitting an objection to be taken to the referral where "in all the circumstances" the referral would constitute an abuse of process.
27 In Walton v Gardiner, Mason CJ, Deane and Dawson JJ, when considering the approach taken by the Court of Appeal, approved of its use of a weighing process appropriate in criminal proceedings but adapted to take into account the differences between the two kinds of proceedings, and in approving of that process, they observed :
“… Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. … .” [7]
[7] at 396, and the authorities referred to by Cavanaugh J in footnote 1 of Skordos v Garnett & Ors
28 A conclusion that the conduct of a party amounts to an abuse of process should not be arrived at lightly. Indeed, the authorities demonstrate that such a conclusion ought to be arrived at only in exceptional circumstances.[8]
[8] R v Smith [1995] 1 VR 10 at 14, per Brooking J
29 Section 134AB provides a gateway to an injured worker to obtain leave to bring a proceeding at common law to recover damages for injuries sustained in a workplace incident. The provisions are almost a code in requiring the parties to meet a series of requirements not only to be able to capably bring the proceeding, but also a serious provisions which are also almost a code as to the manner in which a judge must go about determining the relevant issues in an application for serious injury.
30 By necessity, the preparation undertaken by a plaintiff involves affidavits, medical reports and other materials which demonstrate that the consequences in terms of pain and suffering and loss of earning capacity meet the relevant statutory tests. The process most often involves the production of significant volumes of medical records and other materials.
31 Although such applications can take as little as hours, and sometimes days, it is clear enough to me that the preparation, and in particular, the cost and expense involved in preparation, is very significant.
32 Furthermore, it is very common to see applications for serious injury occurred many, many years after the relevant incident occurred.
33 The language used by Giles CJ, Mason CJ, Deane and Dawson JJ in their joint judgment, requires me to examine the processes of the Court and whether they have been used fairly in order to avoid the erosion of public confidence in the processes of the Court where a step might be taken which is oppressive or leads to injustice or unfairness, because if that occurs then it brings the process of the administration of justice into disrepute. I think this language resonates in the authorities which I have referred to and which have been the subject of analysis in those authorities.
34 What is curious is that Ms Tsikaris initially submitted that all that the defendant wanted was for a Medical Panel to identify the medical conditions claimed by the plaintiff. It seems to me that if that is the real import of the questions which the defendant intends to refer to a Medical Panel, then the questions together with the accompanying statement do not reflect that intention in any sense at all, but rather a very different intention, and that is to have a Medical Panel offer an opinion on whether the plaintiff has suffered a compensable injury.
35 Those questions could have been the subject of a notification much, much earlier and at a time well before the solicitors for the plaintiff had committed themselves to a great deal of industry in the preparation of the plaintiff's claim. It is very apparent to me that the claim was ready to be heard on 4 April 2011 when there was an assembly of instructing solicitors and senior and junior counsel, no doubt with Court Books and other materials, which condescended to the particulars of the plaintiff's claim. No intention was manifest at that stage, or even before that stage, to refer questions to a Medical Panel. Nor indeed was any such intention manifest until a very late stage prior to the priority hearing scheduled for 13 September 2011.
36 It seems to me that the plaintiff and the defendant, and their solicitors and counsel, were committed to the issue of whether the plaintiff suffered a serious injury being determined at trial. The processes of the Court were used for the purpose of that being achieved. In my opinion, the referral is oppressive, and unfair and unjust to the plaintiff and not a fair use of the processes of the Court to notify the Court at such a late stage after all that has passed, because it cannot do otherwise than erode public confidence that a party can run a proceeding up to a very short time before the door of the Court appears to then be prevented from having the Court determine the issues in the claim which was the resolute intention of the parties, and to which they had committed all their energies.
37 In arriving at this conclusion I have proceeded by applying the weighing up process, and on the footing that the facts and circumstances appear to me to be exceptional, pointing to the referral amounting to an abuse of process.
Conclusion
38 For the reasons set out above, I refuse to refer the medical questions to a Medical Panel because, in all the circumstances, I consider that the referral constitutes an abuse of process.
---
5
6
0