Catholic Church Insurances Ltd v Magistrates' Court of Victoria & Gizzi
[2000] VSC 31
•17 February 2000
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION Not Restricted
No. 6700 of 1999
| CATHOLIC CHURCH INSURANCES LTD | Plaintiff |
| V | |
| THE MAGISTRATES' COURT OF VICTORIA | First Defendant |
| - and - | |
| ORSOLA GIZZI | Second Defendant |
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JUDGE: | Eames J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2000 | |
DATE OF JUDGMENT: | 17 February 2000 | |
CASE MAY BE CITED AS: | Catholic Church Insurances v Magistrates’ Court and Gizzi | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 31 | |
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Worker's compensation – procedure – Section 45(1) Accident Compensation Act 1985 - whether referral of "medical question” to a Medical Panel may be delayed by Magistrate until after the magistrate hears evidence from the worker – the respective roles of the court and the Medical Panel upon referral of medical questions.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr M.F. Fleming | Herbert Geer & Rundle |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr L.R. Boyes QC With Mr P. Coish | Maurice Blackburn & Cashman |
HIS HONOUR:
This is an application for judicial review of an order made by a magistrate during the course of proceeding brought by the second defendant under the Accident Compensation Act 1985 ("the Act"). The application before me is brought by way of originating motion under O.56 of the Rules of the Supreme Court.
The secondnamed defendant (hereinafter referred to as "the worker") was a teacher employed at St. Anthony's Primary School, which held a policy of insurance in accordance with the Accident Compensation (WorkCover Insurance) Act 1993 with the plaintiff (hereinafter referred to as "the insurer"). The worker brought a claim in the Magistrates’ Court at Melbourne seeking compensation pursuant to the Act by way of weekly payments from 24 August 1998 to date and continuing. Additionally, she claimed medical and like expenses. In her statement of claim the worker alleged that she had been employed as a primary school teacher for some two years, during which time she suffered compensible injury. The particulars of injury listed in the statement of claim filed in the Magistrates’ Court were injuries to the neck and back involving disc injury and nerve root damage together with pain to the arms, sciatica, anxiety and depression and other pain and suffering.
The worker had first filed a claim for compensation with the employer on 15 December 1998. In answer to the pro-forma question as to what happened to cause the injury she answered "gradually developed over time performing repetitive duties using poor ergonomic postures". Accompanying her claim was a certificate of incapacity from her treating doctor, Dr Sevdalis, delivered pursuant to s.105 of the Act. Dr Sevdalis listed the injuries as being: “pain/spasm/numbness of all spine, upper and lower limbs, anxiety state”. The diagnosis stated in the form by Dr Sevdalis was: “Primary work-related anxiety/aggitated (sic) depression and post traumatic stress disorder – cervical and lumbar disc (word indecipherable) -repetitive vertebral traumatic injuries and nerve root compromise affecting upper and lower limbs – bilateral shoulder/elbow/forearm tendonitis and rotator cuff syndrome – musculo ligamentous repetitive strain injuries of upper limb/shoulder girdles and para-vertebral muscles (entire spine) – abdominal/gastric problems associated with analgesics, anti-inflammatory agents and stress”.
Section 82(1) of the Act provides:
"If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation…"
Section 5(1B) provides:
"In determining for the purposes of this Act whether a worker's employment was a 'significant contributing factor' to an injury –
(a) the duration of the worker's current employment;
(b) the nature of the work performed;
(c) the particular tasks of the employment;
(d)the probable development of the injury occurring if that employment had not taken place;
(e)the existence of any hereditary risks;
(f)the lifestyle of the worker;
(g)the activities of the worker outside the workplace –
must be taken into account."
On 13 January 1999 the insurer advised the second defendant that her claim for weekly payments had been rejected on the grounds that:
1.She did not sustain an injury within the meaning of the Accident Compensation Act 1985.
2.Her claimed injury did not arise out of or in the course of employment.
3.Her employment was not a significant contributing factor to the claimed injury.
The notice of defence to the worker’s claim which was later filed at the Magistrate’s Court, raised, among other matters, the same issues as those set out in the rejection advice of 13 January 1999.
A conciliation was undertaken by the WorkCover Conciliation Service during the course of which a number of medical reports were obtained on behalf of the worker and also on behalf of the insurer. After attempts at conciliation failed the worker exercised her rights under ss. 39 and 43 of the Act to make application to the Magistrates’ Court to determine questions arising out of the decision of the insurer, and issued a Magistrates’ Court complaint on 19 May 1999. By a facsimile transmission on 2 July 1999 the solicitors for the insurer served on the worker's solicitors a notice pursuant to s. 45(1)(b) of the Act advising that the insurer would request the Magistrates’ Court to refer five "medical questions" to a Medical Panel for an opinion. The questions as framed in that notice were as follows (they were subsequently varied - in the terms set out below in italics - after discussion between the parties and with the magistrate, after the ruling had been made which is the subject of complaint in the proceedings before me):
(a)What is the nature of the worker's medical condition relevant to the injury allegedly sustained by the worker (“injuries in paragraph 4 of the plaintiff’s statement of claim”)?
(b)Was the worker's (“plaintiff’s”) employment (“in fact”) a significant contributing factor to the worker's alleged injury?
(c)Could the worker's employment possibly have been a significant contributing factor to the worker's alleged injury?
(d)Does the worker have an incapacity for work (“since 24 August 1998”)?
(e)Is the worker currently incapacitated for work?
By s. 43 of the Act the Magistrates’ Court is given the same jurisdiction as that of the County Court under the Act for the determination of questions or matters under that Act. Section 39(1) of the Act provides as follows:
"39(1)Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter under this Act arising after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992, out of –
(a)any decision of the Authority, employer or a self-insurer; or
(b)any recommendation or direction of a conciliation officer."
Section 44 provides that in the conduct of proceedings the court is not bound by the rules or practice as to evidence, but may inform itself in any manner it thinks fit and may take evidence in writing or orally. Section 44(2) provides that the court may take evidence on oath and may administer an oath or take an affirmation or declaration. By s. 44(4) the court is given power either of its own motion or on application of a party to issue a summons to a person to appear or to produce documents.
Section 45 provides as follows (sub-paragraph (3) has been repealed by Act No. 107 of 1997):
"45(1)Where the County Court exercises jurisdiction under this Part, the County Court –
(a)may refer a medical question; or
(b)if a party to the proceedings requests that a medical question or medical questions be so referred, must refer that medical question or those medical questions –
to a Medical Panel for an opinion under this Division.
(2)If the County Court refers a medical question to the Panel, the Court must give each party to the proceedings, copies of all documents in the possession of the Court relating to the medical question
(4)If the County Court refers a medical question to a Medical Panel, the Court must give a copy of the Panel's opinion to the worker and to the employer, Authority or self-insurer and may give a copy to a party to the proceedings."
A "medical question" is defined in s. 5 of the Act, and is constituted by one or more of the matters addressed in thirteen sub-paragraphs under the definition. For relevant purposes the medical questions contained in the notice of request served by the insurer in this case most closely relate to sub-paragraphs (a), (aba), (abb), (abc), (b), (ba), (c), (f). I set out those relevant sub-paragraphs, in full, below. The definition reads:
"Medical question" means -
(a)a question as to the nature of a worker's medical condition relevant to an injury or alleged injury; or
(ab)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated; or
(aba)a question as to whether a worker has a current work capacity or has no current work capacity and what employment would or would not constitute suitable employment; or
(abb)a question as to whether a worker has no current work capacity and is likely to continue indefinitely to have no current work capacity; or
(abc)a question as to whether a worker has a current work capacity and because of the injury, is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work, and if not so incapable, what further or additional employment or work the worker is capable of undertaking; or
(b)a question whether a worker’s employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury; or
(ba)if paragraph (b) does not apply, a question whether a worker’s employment was in fact, or could possibly have been, a contributing factor to an injury or alleged injury, or to a similar injury; or
(c)a question as to the extent to which any physical or mental condition, including any impairment, resulted from or was materially contributed to by the injury; or
(f)a question whether a worker's incapacity for work resulted from or was materially contributed to by an injury or alleged injury."
As noted earlier, conciliation was attempted, but without success. Under s.61A evidence of anything said, or any admission or agreement made during a conciliation procedure, or any document prepared for the purpose of that procedure, is not admissible in proceedings such as those taken in the Magistrates’ Court by the worker.
The establishment and constitution of Medical Panels is provided for in s. 63 of the Act. A Panel comprises no more than five members, but therefore could be constituted by a single member (although I was told that it would not be usual for a Panel to contain less than three medical practitioners). Section 65 provides the procedures and powers of the Medical Panel. By 65(1) the Panel is not bound by the rules or practices as to evidence and may inform itself in any manner it thinks fit. Section 65(2) provides that the Panel must act informally and without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows. Section 65(4) provides that any attendance of a worker before the Panel must be in private unless the Panel considers that it is necessary for another person to be present. Arguably, the worker would not, therefore, be entitled, as of right, to have a lawyer present, although that is an issue which does not fall for determination by me.
Section 65(5) provides that the Panel may require a worker to meet with it and to answer questions put by the Panel and to supply copies of all documents in the possession of the worker which relate to the medical question referred to the Panel. The worker may be required to submit to a medical examination by the Panel or by a member of the Panel. If the Panel requests, and the worker consents (s. 65(6)), the Panel may require a medical practitioner who has examined the worker to attend before the Panel and to answer questions and to supply documents.
Section 67(1) provides that the function of the Medical Panel "is to give its opinion on any medical question in respect of injuries arising out of, or in the course of or due to the nature of employment…" By s. 67(4A) "a person referring a medical question to a Medical Panel must provide copies of all documents relating to the medical question in the possession of that person to the Medical Panel".
By s. 68(1) the Medical Panel must form its opinion (on "a medical question", which has been referred to it) within 60 days after the reference is made, or such later time as may be agreed by the court. By s. 68(2) it "must give a certificate as to its opinion", and by sub-section 3 must give its opinion in writing within seven days of having formed its opinion on a medical question referred to it. Section 68(4) provides as follows:
"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 court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."
In response to the notice of request for referral to a Medical Panel the solicitors for the worker wrote to the solicitors for the insurer advising that they objected to the referral and added: "We confirm the facts have not been established and accordingly it would be necessary for this matter to be fixed for hearing to take the worker's evidence and to settle the medical questions". Furthermore, they objected that the proposed questions were not "medical questions" within the meaning of s. 5. Additionally, the solicitors requested a view of the premises at which the worker had been employed.
On 14 July 1999 the matter was listed for mention before Magistrate Mr T.M. O'Dwyer. At that hearing counsel for the insurer advised that the notice of request had been served, and submitted, in effect, that His Worship was obliged, without further ado, to accede to the request and to refer the matter to a Medical Panel. Counsel for the worker submitted, in response, that the referral should not occur until after evidence had been taken, on oath, from the worker, and intimated that at a later time there might also be a request for the taking of additional evidence, from an engineer/ergonomist, before referral to the Medical Panel. No report from such a consultant had been placed on the court file, and it is apparent from the transcript of the hearing that the worker’s advisers did not consider that it was appropriate that a report be obtained until after a view of the premises had been conducted.
In brief, extempore, reasons His Worship ruled that he would hear evidence from the plaintiff and have it transcribed "so it can go to the Medical Panel with medical questions", and added that both parties could supply "reports" on which they relied. The learned magistrate did not make any decision as to the appropriateness of the calling of additional evidence, and it does not therefore become necessary for me to decide whether it would have been open for the magistrate to have also taken evidence of an ergonomist before referring the medical questions to the Panel. In any event, it was implicit in his ruling that (whether or not he might also have later agreed to hear additional evidence) one of the reports which might have been sent to the Medical Panel, had the worker chosen to do so, was that of the ergonomist.
Having made that ruling, and after further discussion with counsel, His Worship suggested some changes which might be made to the format of the questions which had been framed for referral to the Medical Panel. I have identified those changes, above. Before me, there appeared to be agreement between the parties as to the wording of the questions which would be appropriate for reference to the Medical Panel but it was not clear, and the transcript of the proceedings in the Magistrates’ Court does not assist in this regard, whether his Worship had made any concluded decision as to the wording of the questions or was merely indicating a possible form of words, which was open for further discussion, at a later time.
The issue raised by the application before me is said to be one of importance to practitioners in the worker’s compensation field, concerning the operation of s. 45 of the Act. The insurer seeks to quash the ruling of the Magistrate that referral to the medical board be delayed until after the hearing of evidence from the plaintiff. On behalf of the insurer it was submitted that the imperative of s. 45(1)(b) - that the court "must" refer the questions to the Medical Panel - deprived the court of any fact finding or fact gathering role, those roles being entirely the province of the Medical Panel for the purpose of its own investigation and resolution of the medical questions referred to it.
In his written outline of argument, Mr Fleming, counsel for the insurer, argued that by delaying the reference to the Panel for the purpose of hearing evidence "the court acquiesced in dismantling the applicant party’s statutory right to have fact gathering relevant to the discharge of the Panel's function performed by the Panel itself, and in accordance with the more informal processes of Medical Panels: ie. facts determined informally, no oral examination or cross-examination by lawyers, no transcript, panel members entitled to employ their own expertise etc."
Given that the opinion of the Medical Panel on a medical question "must be accepted as final and conclusive by any court" pursuant to s. 68(4), the practical effect of acceptance of the submission on behalf of the insurer would be that the court would be effectively deprived not merely of any adjudicative role under the Act, but also of any fact gathering or evidence collating role. Whilst counsel for the insurer conceded that there might be circumstances in which the court could lawfully delay the referral to a Medical Panel until after the hearing of evidence such instances would be rare and would be confined only to the situations where the evidence was necessary for the purpose of the court being satisfied that the questions were relevant and/or for the purpose of the framing of the questions. Where, however (as, so it was submitted, was the case here), there could be no doubt that the questions, as framed, were relevant and were indeed “medical questions”, and given that it had not been asserted that the evidence was required for the purpose of constructing the form of the questions, then, so it was submitted, the court had no jurisdiction to delay the reference to the Medical Panel for the purpose of hearing any evidence.
The contention made on behalf of the insurer, as to the effect of s.45(1), gains no direct support from authority of a superior court. Although the question has been touched upon in some cases in this Court it has not been the subject of ruling. A number of judges in the County Court, experienced in the conduct of litigation under the Act, have, however, made rulings rejecting a similar argument when it had been advanced in that Court.
Mr Fleming, counsel for the insurer, submitted that it was solely the province of the Medical Panel to assess the facts relating to the work which was performed by the worker at the time of the alleged injury. That, he submitted, was the intention of the legislature, the legislature specifically rejecting the contention that a judge or magistrate was in a better position, and was better qualified, to evaluate and determine the disputed questions of fact and law which arise in such compensation proceedings. It was the intention of Parliament, Mr Fleming submitted, to create and provide to any party requesting it, a cheap alternative process of dispute resolution, one in which the Medical Panel would resolve all factual issues arising in the medical questions, and would do so without recourse to the judicial process of fact finding. Thus, there would not be the trappings of a judicial evidence gathering process, with the taking of evidence on oath and with counsel appearing, and exercising rights of cross examination. There would be no transcript costs, either. The Court would have no role to play in that alternative process until after the Medical Panel had delivered its opinion, Mr Fleming submitted, neither as fact gatherer, nor as fact finder. Were the court to do so it would be denying the right of the requesting party to utilise the alternative means of resolving the dispute, with the minimal costs and delay which the alternative system should have provided.
No appeal on the merits from a decision of a County Court judge or a magistrate is permitted under the Act (see s.52), nor does s.45 permit an appeal on the merits from an opinion of a Medical Panel (and see, too s.63(1)(c) of the Accident Compensation (WorkCover) Act No.67 of 1992, which altered s.85 of the Constitution Act 1975 so as to prevent appeals on the merits to the Supreme Court). Given the absence of a right of appeal on the merits the court seized of the matter, either in the County Court or the Magistrates’ Court, might be expected to have a role to play to ensure that the Medical Panel, a non-judicial tribunal, would neither fail to take proper account of relevant facts nor misconceive the legal issues which underlay the factual questions before it. Mr Fleming submitted that such an expectation would be misconceived because the legislature intended to deny such a role to the court. The question whether that was so must be considered against the backdrop of the decision of the Court of Appeal in Masters v McCubbery[1], wherein it was held that the legislature certainly intended to effect a radical transfer of decision-making power from the courts to the Medical Panels. As Winneke P. held, at 644:
“This regime of dispute resolution was undoubtedly intended by the legislature to cut the costs of the compensation system by providing non-adversarial means, where possible, of settling disputes. It is an obvious incident of that intention that the medical panels have the power to make conclusive decisions affecting the rights of the parties, in those cases where the court has referred questions to them.”
[1][1996] 1 VR 635.
Notwithstanding that Parliament intended to vest such powers with the Medical Panels, and that appeals on the merits were denied, the Court of Appeal also held that the decisions of the Medical Panel were properly open to judicial scrutiny, and the Panels are obliged to comply with principles of procedural fairness. If the Medical Panel took into account facts which had not been properly established or failed to take into account facts relevant to the medical questions then its conduct might constitute a denial of natural justice to the worker and would accordingly be a matter which could be the subject of review under the Administrative Law Act 1978 or by proceedings before the Supreme Court by way of judicial review.
The fact that there is, therefore, some limited means available to review decisions or opinions of the Medical Panels does not tend to render it either more or less likely that the legislature might have also intended that the judge or magistrate retain a fact gathering role. That question can only be resolved by close examination of the legislation.
The role of the Medical Panels.
The Court of Appeal accepted that it was the intention of the Parliament to empower the Medical Panel so as to perform a role hitherto regarded as the sole province of a judge or magistrate. It does not necessarily follow that the legislation was also intended to deny any fact gathering role, at all, to a judge or magistrate in such cases. Nor does it necessarily follow that the court must cease all functions in fact-gathering the instant a valid request for referral of a relevant medical question is made by a party. Counsel for the insurer submitted, however, that the legislative intention, as explained by the Court of Appeal, should lead to those conclusions also, save for very limited circumstances where some continuing role might be retained by the court. Counsel submitted that that result flowed by reference to the intention of the legislature, as discussed by the Court of Appeal, and that amendments to the legislation which occurred subsequent to the decision of the Court of Appeal have served to further emphasise that Parliament intended the results for which the insurer now contends.
The Court of Appeal in Masters v McCubbery was interpreting s. 45 as it stood in 1995. That section was amended by Act No. 107 of 1997, as was the definition of "medical question". Even before the amendments were made, however, the significance of the change in the regime, and the changes to the respective roles of the court and of the Medical Panels in considering such claims, had been emphasised by the Court of Appeal.
Dealing with the definition and the terms of s. 45 as they stood before the 1997 amendments, Winneke P, after setting out some of the paragraphs of the definition of "medical question" (which for present purposes may be regarded as similar to or the same as the amended paragraphs which I have enumerated earlier), held, at p. 637: "It is thus clear that what is capable of being transmitted to a Medical Panel for its 'opinion' is that matter which would otherwise be determined by the court in deciding the applicant's entitlement to compensation". Later, at 642, the learned President added:
"It is my view that the Act does require a Medical Panel, in forming opinions on 'medical questions' referred to it by a court, to observe the rules of natural justice. It cannot be denied, as the trial judge found (correctly in my view) that the scheme of the legislation is such that the Medical Panels are empowered to decide, in a manner which binds the court making the referral, the critical issues which have arisen between the worker and the authorised insurer, which issues the worker has referred to the court as a consequence of action taken by the insurer. Although these critical issues are referred to the Medical Panel couched in terms of 'medical questions' and the responses of the panel to them are couched in terms of 'opinions', such legislative terminology cannot obscure the fact that the panel is being called upon to decide matters of mixed law and fact, which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination."
In Masters v McCubbery the insurer had terminated weekly compensation payments of the worker. At issue was the question whether the worker was totally incapacitated and/or was suffering serious injury, and whether the worker was unable to engage in his pre-injury employment or other suitable employment. Additionally, it was in issue whether his incapacity in that respect resulted from or was materially contributed to by the injury. It was those issues which were referred to the Medical Panel. As to those issues, Winneke P held:
"It can be seen, at a glance, that these 'questions' required the Medical Panel not only to make an assessment of the worker's medical condition but also to determine in the light of that assessment whether the worker was in fact incapacitated from carrying out his former employment or any other 'suitable employment'; whether that incapacity was 'permanent'; whether the worker was 'partially' or 'totally' incapacitated for any form of employment and the level of his impairment (if any) assessed in accordance with the guides."
After observing that the opinions on those questions involved the determination of a series of subsidiary questions, leading to an ultimate conclusion that the worker was partially but not totally incapacitated, and as to the percentage impairment expressed in the whole body terms, and as to his capacity to perform suitable employment, his Honour observed, at 643:
"These ultimate conclusions expressed by the panel as 'opinions' dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them in money terms. The conclusions by virtue of the Act become binding on the court. Thus the effect which the Act gives to the panel's 'opinion' is apt to demonstrate how clearly the powers invested in the panel are capable of interfering with the rights of the individual. By virtue of those opinions the appellant's claims that he was entitled to compensation as a person who had suffered a 'serious injury' and/or was 'totally incapacitated for work' were conclusively determined against him."
The learned President concluded at 643:
"In my view it can be seen that the legislature did intend to create the Medical Panels as an alternative method of dispute resolution to the court."
His Honour held, at 645, that the Medical Panel, having before it competing medical opinions, would have the task of resolving those competing contentions. Ormiston JA agreed generally with Winneke P.
Callaway JA, who reached the same conclusion as Winneke P and Ormiston JA, held, at 654, that a panel was not just a body of persons with power to effect detrimentally a person's rights, interests or legitimate expectations but was a body that "decides a question that would otherwise be decided by a court of law".
Callaway JA held further, at 659, that whilst the opinion of the Medical Panel did not of itself operate as the decision which will affect the worker's rights (it being the judge or magistrate who makes the decision as to whether the worker is to be awarded a grant of compensation) it would be playing with words to deny the practical effect of the opinion. His Honour held that:
"It would be a triumph of form over substance to say that a panel does not in law determine a question when an Act of Parliament requires its opinion to be adopted by a court as the answer to that question. Moreover the decision represented by the opinion has an inevitable bearing on the determination of rights made by the court".
As I earlier noted, at the time of the decision in Masters v McCubbery Section 45(1)(b) required the court to refer "a" medical question to a Medical Panel for an opinion, whereas the amendment to the section introduced by Act No.107 of 1997 requires the court, upon request by a party, to refer "that medical question or those medical questions" as had been the subject of the request by the party. The role, and discretion, of the court in determining what might be an appropriate question has thus been even further constrained. The legislative intention to even further empower the Medical Panels at the expense of the court was also emphasised by the amended definition of "medical question".
The definition of "medical question" in paragraph (b), before amendment, read:
"(b)A question whether a worker's employment could possibly have been a significant contributing factor to an injury or alleged injury, or to a similar injury, other than a question whether the worker's employment was in fact such a significant contributing factor." (my emphasis)
The amendment to sub-paragraph (b) and the introduction of sub-paragraph (ba), however, introduce, an alternative, and new, “medical question” upon which the Medical Panel might opine, namely, whether the employment was “in fact” a contributing factor to an injury. That change further emphasises the extent to which the Medical Panel has been granted the role of fact finder on questions which had hitherto been the province of a judicial officer. Those sub-paragraphs are set out in full in paragraph 12, above.
This analysis of the decision of the Court of Appeal lends strong support to the contention of counsel for the insurer that Parliament intended by s. 45 to offer to parties an alternative process for resolution of disputes over corporation. But did Parliament intend that the adoption of the Medical Panel process should deny any continuing role as fact gatherer for the court in ensuring the efficacy of the process?
What role for the Court?
Given the regime of the legislation and the conclusion reached by the Court of Appeal in Masters v McCubbery - even before the most recent amendments - as to the intention of the legislature to transfer decision making to Medical Panels in the circumstances discussed, the continuing role of the court, if any, in the determination of issues may be uncertain. Nonetheless, as Callaway JA, held at 657:
"Section 45 does not effect the control of the County Court or the Magistrates’ Court over its own procedure, including its power to adjourn where that is necessary or expedient in the interests of justice."
Mr Boyes QC, senior counsel for the worker, referred me to many instances in which experienced judges in the County Court, having regard to that entitlement of a judge to control the procedures in the court, concluded that a judge was entitled to hear evidence and to refer that evidence to the Medical Panel, thereby delaying the referral to the Medical Panel until after the receipt of the evidence[2]. Indeed, in some instances Judges of the County Court have ruled that not only was the judge entitled to make rulings on law for the direction of the Medical Panel but also to make findings of fact, after hearing evidence on issues which were to be referred to the Medical Panel. In some instances the rulings of County Court judges to which I was referred arose at a time before the amendments to the legislation, and were based, in part, upon the discretion retained by the court, as s. 45 then stood, to determine what questions would be referred. To that extent the continued assistance to be gained from some of the decisions is reduced, given the later requirement that the court refer "that question or those questions" as requested by a party. Before further considering decisions of judges in the County Court I will refer to some decisions in the Supreme Court where the issues were touched upon.
[2]Green v VWA, unreported, Judge Williams; Milhalce v ACC and VWA, unreported, 5th February 1993, Judge Just; Greigle v Transfield Defence Systems, unreported, 17th July 1998, Judge Strong; Ferrugia v State of Victoria, unreported, 12th October 1999, Judge Strong; O'Brien v Portland Smelter Services, unreported, 3rd May 1996, Judge GD Lewis; Metcalf v SAI Workers Compensation (Vic) Ltd, unreported, 2nd June 1997 and 20th June 1997, Judge Strong; Gregory v Cotterell, unreported, 23rd April 1999, Judge G.D. Lewis; Singh-Jhikka v MMI Workers Compensation (Vic) Ltd, unreported 9th April and 24th May 1999, Judge Rendit.
In HIH Winterthur Workers Compensation (Vic) Limited v Greeves[3] Hedigan J considered s. 45(1) which was in the same terms as in the present case. In that case notice was given by the insurer some months before the proceeding was to be heard, requesting that a medical question be referred to a Medical Panel. Rather than do so, the Magistrate said that he would reserve his decision on that request until after he had heard oral evidence. Having heard a substantial body of medical evidence, and having considered medical reports, his Worship in that case made findings on disputed medical issues, and having done so concluded that there was no longer any relevant question to be referred to the Medical Panel, because the issue had been resolved by himself, after he heard witnesses on the issue. Hedigan J held that in proceeding in that way the Magistrate acted beyond power and had failed to comply with the mandatory requirement of s. 45(1).
[3][1998] VSC 97.
After referring to the decision of Byrne J in Austin v Amcor Ltd[4] and to the decision in the County Court of Judge Williams in Green v VWA,[5] Hedigan J observed: "In my view, neither Byrne J nor Judge Williams expressed any doubt that, subject to the case of an abuse of process, and possibly the issue of the time of referral and the refinement of the medical question, that the court is obliged to refer a medical question to a panel upon request. There is no discretion to decline to refer a medical question". (emphasis mine)
[4]Unreported 3rd April 1998, Byrne J.
[5]Unreported 16th November 1995, decision of Judge Williams.
Hedigan J was not called upon to determine the question which is now before me, namely, whether the court retains any fact gathering role once a relevant medical question, or medical questions, has or have been the subject of a request for referral by a party under s. 45(1)(b). His Honour noted, without expressing dissent, that Judge Williams in Green v VWA had held that, consonant with its duty to maintain the orderly processes of the court and to ensure a just outcome, the court was required to define and provide the relevant legal principles and interpretations and, if need be, to decide the factual parameters that lay outside the scope of the medical question to be referred. He noted, too, that Judge Williams had expressed the view that it was the court which should determine at what stage referral should be made, and the amount of evidence that needed to be heard and recorded before the question could be formulated. Hedigan J also noted a similar conclusion reached by Byrne J in Austin v Amcor, a case in which Byrne J was concerned with s. 45(1) in terms before its amendment.
Byrne J in Austin v Amcor held that notwithstanding the terms of s. 45(1) (as it was, before amendment, in that case) the court's entitlement to determine the appropriate time for referral of the medical question to the Medical Panel was a function of the power and the duty of the court to control its own procedures so as to ensure that justice is done to the parties. In dealing with the amended section, Hedigan J also noted that the power and responsibility of the court to give the final decision in the case remained intact, notwithstanding the fact that the opinion of the Medical Panel on the medical question must be adopted as the answer to the medical question. His Honour held that "there is still nothing in the Act which would indicate any intention to strip the court of all control and input" and that "it is the court's duty to manage the exercise of its jurisdiction. The jurisdiction has not been diluted".
The changes made to s.45(1) by the 1997 amendment must be kept in mind when considering the terms of the reasons for decision of Byrne J. Thus, his Honour’s conclusion, at page 6, would not be entirely apposite with respect to the section after amendment. In that passage Byrne J held:
"Subject possibly to the case of abuse of process, the obligation of the court is to refer a medical question. It is not to refer the very medical question which the party requests. Neither is it to refer to the medical panel every question before the court which falls within the statutory definition. It is consistent with this provision that it remains with the court to determine not only the appropriate time for the reference but also what medical questions should be referred and its terms."
Allowing for the fact that the amendment does, indeed, now require the court to refer “the very medical question which the party requests”, the balance of his Honour’s remarks in the above passage remain valid, in my respectful opinion.
Hedigan J emphasised in his judgment that he was answering only the question which was posed in the case before him, namely, whether the magistrate was entitled to answer for himself the very question contained in the medical question which was the subject of the request for referral. His Honour held that the jurisdictional base for the mandatory operation of s. 45(1) had come into effect in that case. That was because the question posed was plainly a relevant one and could not possibly constitute an abuse of process. Mr Fleming, for the insurer, submitted before me that in the present case the questions posed were also plainly relevant and were not capable of constituting an abuse of process. Counsel for the worker did not seriously argue to the contrary. Thus, Mr Fleming submitted, just as in the case before Hedigan J, the questions posed here were relevant questions, which must have been referred to the Medical Panel. That, however, still leaves open the question whether the court could play any further role in the collation or gathering of evidence to be placed before the Medical Panel or in giving any directions to the Medical Panel as to relevant principles of law to which regard should be had.
It is clear from the passages above cited that Hedigan J envisaged the possibility of further evidence being taken before a matter was referred to the Medical Panel. His Honour held, having concluded that the question in that case was a relevant one and was not an abuse of process:
"The Magistrates’ Court was in possession of all of the medical reports and some evidence. At the very least at that point of time, a reference of the medical question might have been made without further deferral, and certainly without the necessity for deciding which medical opinion was preferred." (my emphases)
Hedigan J at page 15, noted that the issue in the case before him was narrow, because the magistrate had "embarked upon the task of deciding the issues of fact and, having decided them against the insurer, concluded that it was thereby irrelevant to refer any question". The magistrate in that case had heard the whole of the relevant evidence, and did so not merely (if at all) in order to decide whether the proposed question was a relevant one, but took it upon himself to decide what was the answer to the medical question. Hedigan J held, at page 16: "whatever else might be said, it cannot be a correct application of the statute to so mould the judicial process that the court may hear all the evidence, reach a conclusion which answers the very question and then conclude that that unlawful and unauthorised process makes referral irrelevant" (my emphases). Hedigan J continued:
"Without attempting to define the boundaries of the court’s exercise of power to mould the referral of a question (that is, with regard to the matters already referred to by me), it is not to be doubted that once a s. 45 request is made, the court may not lawfully hear all of the evidence and answer the question for itself. It would be rare that the court would find it necessary to hear much evidence at all in order to make the referral. It would ordinarily be self-evident once the matrix of facts had been explained or understood from the written material, whether the question was such that it was material and relevant that the answer be obtained to enable the court to exercise its conferred jurisdiction. The charade of trying the case, deciding it on the facts and then declaring that it was unnecessary and therefore irrelevant to refer the question to the medical panel, cannot be countenanced. Save in the case in which there is or are jurisdictional facts in issue (e.g. whether the applicant was in employment or whether any injury-producing event had happened), the need to explore the circumstances on which the question is focused is not likely to be commonplace." (my emphases)
Hedigan J did not reject the possibility that it might be open to the court to hear evidence, albeit not for the purpose not of deciding the medical question but for the purpose of assisting those with the responsibility to decide the medical question, namely, the Medical Panel. Hedigan J, at page 19 envisaged that the task of the Panel was to approach the referred question "with full knowledge of the background circumstances". As I later conclude, it seems to me that the court retains a role to ensure that the Medical Panel is indeed assisted in that way, in any case where, in the opinion of the judge or magistrate, it is in the interests of justice and in the interests of ensuring the efficacy of operation of the legislation, as intended by the legislature, that he or she should be so involved.
In McDonald v Kotzman and others [6] Smith J was concerned with a case where a magistrate delayed the referral of medical questions to a Medical Panel until after he had taken evidence relevant to the compensation claim, including evidence from medical witnesses. The evidence was transcribed, and the magistrate also purported to make a finding as to the cause of the plaintiff’s injury, before referring the question to the panel. Upon receipt of the opinion of the Panel the magistrate declined to consider the reasons which had been provided in support of the opinion, but having considered the opinion of the Medical Panel and also the evidence which he had heard, concluded that the question of injury which was relevant in that case had not been answered by the Panel, and that that question fell to be resolved by himself, by reference to the evidence which he had heard. The procedure adopted by the magistrate was challenged by the insurer in that case and Smith J considered the decisions of Hedigan J and Byrne J, discussed above.
[6]Unreported, 3 June 1999, Smith J.
Smith J held that the question of delaying the referral of medical questions until after the hearing of evidence was not directly in issue before him. Nonetheless, Smith J acknowledged that such an approach had received the “qualified approval” of Hedigan J, and expressly agreed with that approach. Smith J added, however, that it would be an erroneous use of the system “if a court proceeds too far into an investigation of the facts before referring the questions to a panel. Where to draw the line is difficult to judge.” His Honour approved the approach insofar as it arose for the purpose of ensuring the appropriateness of the terms of the questions being referred, but added that even there: “Care must be taken . . .to proceed no further than is necessary for the effective reference of medical questions and the ultimate resolution of the dispute.”
In his decision, Smith J held, at p.13, that the magistrate was correct to have no regard to the reasons for decision of the Panel, since under the Act it was the opinion upon which the magistrate was bound to act, not the reasons. If the reasons disclosed error, then the remedy was for a judicial review application to be taken in the Supreme Court.
May evidence be taken before referral?
In my view, there is nothing in the Act which prohibits the court from taking evidence on oath on matters which are relevant to the medical question or questions which are to be referred to a Medical Panel. Nor, in my view, is there anything in the Act which suggests that it would be improper for the court to identify the matrix of facts which appear to the court to be relevant to the determination of the medical question. The Medical Panel has itself power to investigate the issues, and to receive evidence, in an informal way. It seems unlikely, given the terms of the legislation, that the court could bind the Panel as to the facts, by stating the court’s own assessment of the relevant facts, but that is not a question which I am called upon the resolve. The question before me is whether the court is empowered to assist the Panel by gathering facts. The submissions on behalf of the insurer, in effect, were that once the request for referral is made then it is only the Medical Panel which has the entitlement to gather or investigate the facts relevant to the medical question and that the court ceases to have any role, at all, to that end.
It was suggested that in depriving the court of any fact gathering role, at all (and I leave to one side the question whether that might include a fact-deciding role, because the magistrate here did not say that he intended to make findings of fact relating to the evidence which he planned to hear) the court would be subverting the terms of s. 45(1). In my view, that would not be so.
It was conceded by counsel for the insurer that the Panel was not bound to act only upon the material held on the court file and forwarded by the court upon acceding to the request to refer the medical questions. Thus, the worker’s solicitors could forward to the Medical Panel such material, including reports of an ergonomist, as they chose to place before the Medical Panel. Counsel for the worker submitted to the magistrate, in this case, that there was a danger that the Medical Panel would misconceive the factual matrix if only the materials then held by the court were forwarded to the Panel. It was submitted to the magistrate that the bare facts outlined in the pleadings were potentially misleading, without the assistance of the evidence of an ergonomist, and that the most appropriate format for the gathering of such evidence was to have the witness give evidence on oath.
Before me, Mr Boyes, for the worker, submitted that merely forwarding the court file, even if supplemented by the solicitor forwarding additional material, might still not overcome a discernible risk that, without some assistance from the court, the Medical Panel might misconceive the relevant facts. To illustrate that point, Counsel pointed to the fact that in its notice of advice rejecting the worker’s claim the insurer relied upon an attached opinion of a medical specialist, Mr D Chamberlain, who had examined the worker.
In his report, Mr Chamberlain said, inter alia, of the injuries from which he found the worker suffered:
"the last three conditions appear of degenerative origin and I would not believe the normal duties of a Primary School teacher are such that they would significantly contribute to that, particularly in regard to the lower back. The onset of symptoms has obviously been some months after she last worked. The worker does report that she believes that the work environment in which she was working was not ergonomically sound. I am uncertain as to what she really means by that but her duties appeared varied and I would not feel that they have significantly contributed to it."
The approach adopted by Mr Chamberlain, Mr Boyes submitted before me, demonstrated the danger of a medical expert making assumptions about matters which were not within his area of medical expertise, i.e. the ergonomic effect of the work performed by the worker, and the furniture used by her. It demonstrated, too, how important it was to know precisely what was the scope of the work performed by the claimant, and to ensure that the Medical Panel did not act on a mistaken or incomplete picture as to that. Mr Boyes submitted that the magistrate in ensuring that the Medical Panel performed its statutory role, and did not fall into error, was entitled to take steps by way of having evidence produced for delivery to the Panel, together with the material already on file.
Having regard to the judge or magistrate's own duty to control the process of the court, I see no reason why a process could not be undertaken by a judicial officer of collecting evidence on oath if in the opinion of the judicial officer it was an exercise which would assist the refinement of the issues, help avoid the possibility of error arising because of the overlooking of relevant facts, and ensure the expeditious and just disposition of the case which is before the court, and upon which it is the court which, finally, gives the decision. That conclusion is consistent also with the statutory role given to the Panel. The legislature expressly left open the timing of the referral of medical questions to the Medical Panel, notwithstanding the fact that a number of County Court judges, and also Byrne J, had concluded that the referral could be delayed until after the taking of evidence. That view had been expressed by judges at a time prior to the amendment of s. 45 in 1997, and the legislature did not seek to amend the section so as to prevent the court acting in such a manner if it deemed it appropriate to do so.
For the court to retain a right to control its process in this way would reflect that it was the intention of the legislature that the alternative process be not merely cost effective, but be also just. The role of the court in preventing avoidable error in this way (where the risk of error was apparent to the court) would be a cost effective approach to ensuring a speedy, final and just conclusion to the dispute. It would be unlikely that Parliament would have intended that the court play no role to prevent error but should be content to leave the error to be later identified by a limited review process, one which did not permit an appeal on the merits.
Section 68(3) obliges the Medical Panel to give its "opinion" in writing but does not expressly require that reasons for the opinion also be provided. The Court of Appeal held in Masters v McCubbery that a Medical Panel was obliged to comply with principles of natural justice and, accordingly, was obliged to give reasons for its decision if such reasons were requested. Winneke P held, at 650, that the Panel was under an obligation to act in accordance with procedural fairness with respect to the requirement that it give reasons and that obligation required "reasons sufficient to indicate to a court of review that the Panel had exercised its powers according to law". The President added that "a Medical Panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions. This, after all, is the limit of the obligation imposed by the Administrative Law Act upon a "tribunal" which is required to accord natural justice in arriving at its decision: see s.8(4) of the Administrative Law Act". Later, at 651 the President added that the Medical Panels "are not obliged to overwhelm themselves with the provision of elaborate reasons. As I have already pointed out, they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did, sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably. See Iveagh (Earl of) v Minister of Housing and Local Government [1964] 1 QB 395 at 410".
In reaching the same conclusion, Callaway JA held that the kind of reasons required by s. 8 of the Administrative Law Act were "medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the Panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience".[7]
[7]Masters v McCubbery at p.661.
Ormiston JA, at 653, agreeing generally with the President and with Callaway JA, held that:
"It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that did not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review. Even if the opinions of Medical Panels were confined to what might be strictly described as factual matters, there would seem nothing in the statute to require the court to hold that it would be against public policy that those reasons should be furnished."
His Honour added:
"Moreover, the task of determining impairment and the like given to Medical Panels cannot strictly be described as a mere enquiry of fact as it would ordinarily involve, to a greater or lesser extent, questions of law such as the proper interpretation of the Guides to the Evaluation of Permanent Impairment and their legal application under the Accident Compensation Act."
As to the kind of reasons required by the section Callaway JA held, at 661, that:
"In the present context, they are medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the Panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the member's medical knowledge and experience. There is nothing in the nature even of the simplest medical question that is incompatible with the furnishing of reasons".
To reiterate, it would be entirely consistent with the court’s duty to ensure that justice is done in the court, that the judge or magistrate should endeavour - in any instance where the court deemed it appropriate in the interests of justice - to assist the Medical Panel, to the extent the judicial officer can, in the performance of the role of the Medical Panel, but without intruding on the jurisdiction given solely to the Panel to itself reach its conclusion on the medical question. This case raises the question whether assistance by way of taking evidence on oath from the claimant worker for delivery to the Panel with the referred questions might fall into that category, and I am satisfied that it might do so. What other categories of evidence (if any) might also be received in this way is a matter which does not fall for decision by me.
Whilst it is plainly correct that cost saving was an intended objective in the passage of s.45, and, whilst the taking of evidence by way of examination and cross-examination would also involve some cost (both for the lawyers and also for transcript, because it is the usual practice that the insurer is ordered to pay the costs of transcript), nowhere in the Act can be found any prohibition of the court acting in this way. The question of saving of costs is, of course, relative, and costs incurred by virtue of the examination on oath of a plaintiff before the magistrate, in a case where, for example, the magistrate considered that the factual matrix was a complex one, and that the task of the panel might be assisted by the magistrate so acting, might well be offset against the costs, financial and otherwise, of the Panel proceeding without such assistance, and perhaps falling into error (which might or might not be discernible upon reading the reasons of the Panel, or might, for financial or other reasons be incapable of correction by the dissatisfied party).
As noted earlier, s.67(4A) requires the court to provide to the Medical Panel copies of all documents relating to the medical questions in the possession of the court. There is no prohibition against the court adding to the documents which it is holding at the time of the request for referral, and for the purpose of so doing taking evidence on transcript from such witnesses as the judge or magistrate deems appropriate, having proper regard for the fact that the legislation requires that it is the Panel which is to answer the referred questions, not the court.
There are undoubtedly limits to the extent of involvement of a court once a request is made under s.45(1), as was recognised by Hedigan J and Smith J in the cases discussed, above. However, neither the decision in the Court of Appeal, nor the decisions of judges of this court to which I was referred, deny that there might be such a continuing role for the judge or magistrate of the County Court or Magistrates’ Court, respectively, when dealing with such cases. As I have earlier said, such a conclusion had been reached by a number of judges in the County Court and had not been denied by judges of this court who had considered the question, obiter, in cases to which I was referred.
The decisions of judges in the County Court, in my respectful opinion, offer many practical insights into the need for a continuing role of the trial judge or magistrate in cases such as these. In Green v VWA Judge Williams, in a helpful review of the legislation and Parliamentary debates, and after an examination of the decision of the Court of Appeal, concluded that there must remain an ongoing role for the judge or magistrate, not merely for the purpose of ensuring that the questions sought to be referred are both relevant and appropriately phrased but also, in many instances, so as to ensure that the Medical Panel is made aware of relevant legal principles and the ambit of factual matters which were or were not relevant to the medical questions which had been referred to the Panel. His Honour gave a number of examples of instances where it would be appropriate for the court to ensure that the Panel was aware of the technical meaning and interpretation of particular words or concepts so as to ensure that the opinion of the Panel, when given, was not based on error or misconception as to relevant matters, or that, in turn, the judge or magistrate in making the order did not misunderstand the intended effect of the opinion.
It is not necessary for me to decide whether all of the instances cited by Judge Williams would indeed be appropriate occasions for judicial involvement prior to referral of medical questions to a panel. These are matters which require judicial consideration on a case by case basis. In many instances it may be entirely appropriate that the medical questions be referred immediately the request is made. It is the judgement of such matters which is the task of the judicial officer, having proper regard to the limits of involvement of the judge or magistrate which I have discussed above.
An alternative ground for challenging the ruling
An alternative basis for seeking to review the decision of the magistrate, in the present case, was advanced on behalf of the insurer, although the terms in which the argument was advanced bore little if any resemblance to any of the grounds for relief listed in the originating motion. That alternative issue was barely the subject of any discussion by counsel for the insurer, and does not seem to have been seriously pressed, but, for completeness, I will deal with it briefly.
It was submitted that the magistrate in making his ruling took into account an irrelevant consideration, namely, that he relied “at least in substantial part, upon an assurance by the worker’s counsel that it was necessary for his (i.e. counsel’s) own understanding of the worker’s case . . .” It is true that in his ex-tempore reasons for decision his Worship made a comment in such terms, but the recording of what was said by his Worship is incomplete and is not entirely reliable. Furthermore, it is plain that his Worship was not articulating or formulating his reasons with great precision, and there is a distinct possibility that the reasons, such as they are, could be misunderstood. In my view, the passage to which attention was directed suffers that defect.
In my opinion, a reading of the submissions which were made by counsel for the worker to the magistrate, and the responses thereto of the magistrate, demonstrate that all his Worship was intending to say in his reasons was that he accepted the assertion of counsel for the worker that the case was not as simple as may have been thought by reading the pleadings. Counsel was submitting that without the court taking evidence as to the facts, including possibly that of an ergonomist, and without preliminary investigation by way of evidence, and maybe, also, a view, the material sent to the Medical Panel could be misleading, and the complexity of the factual situation not be understood. Counsel was arguing that it was his own assessment that the facts were much more complex and uncertain than a mere reading of the pleadings might suggest. Counsel for the employer was arguing that the facts were clear from the pleadings and there was no reason to delay sending the medical questions to the Panel. Understood against the background of the discussions with counsel, I do not consider that his Worship did fall into error by his reference to the opinion of counsel, in the way suggested.
Conclusion
During the course of the hearing before me counsel for the worker sought to raise a number of subsidiary issues, concerning the powers of the court when dealing with an application under s.45. These, however, were issues which were not the subject of the ruling actually made by his Worship, to which the present proceedings are directed. The question before me is whether the ruling of the magistrate in this case - namely, that the medical questions not be referred to the Medical Panel until after he had heard evidence on oath from the worker - should be set aside. It is unnecessary for me to venture opinions beyond that issue, and it would be unwise to do so when developed argument has not been advanced on those subsidiary issues.
For the reasons stated, above, I am not persuaded that the learned magistrate erred in law when making the ruling which is sought to be impugned, and the application will be dismissed with costs.
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