De Gelder v Rodger
[2014] NSWSC 872
•30 June 2014
Supreme Court
New South Wales
Medium Neutral Citation: Adam Roy De Gelder v James Norman Rodger [2014] NSWSC 872 Hearing dates: 28 May 2014 Decision date: 30 June 2014 Before: Rothman J Decision: 1. Proceedings in the District Court between the plaintiff and defendant, bearing the file number 2010/229350, be stayed pending further order of the Court or the determination of these proceedings, whichever occurs first;
2. These proceedings be expedited and heard prior to 21 August 2014;
3. Parties have liberty to approach the List Clerk for the obtaining of a hearing date;
4. Costs of the motion shall be costs in the cause in the District Court proceedings;
5. The parties have liberty to approach on any special or different orders as to costs.
Catchwords: TRANSFER OF PROCEEDINGS - Civil Procedure Act - motor vehicle injury - jurisdictional gateway not satisfied - other orders available to avoid abuse of process or inconsistent judgments - stay pending judicial review of medical panel Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 29; (1981) 148 CLR 170
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Attorney-General (NSW) v Mayas Pty Ltd
(1988) 14 NSWLR 342
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
Blair & Perpetual Trustee Co Ltd v Curran [1939] HCA 23; (1939) 62 CLR 464
Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506
Cashman v Brown [2011] HCA 22
Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502
Commissioner for Railways (NSW) v Locke [1970] HCA 20; (1970) 122 CLR 479
De Gelder v Rodger [2012] NSWDC 191
De Gelder v Motor Accidents Authority of New South Wales [2009] NSWSC 1173
Ellwood v Darling Downs Investments Pty Ltd (1987) 14 FCR 580
Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056; (2009) 54 MVR 102
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37
Kelly v Motor Accidents Authority of New South Wales [2006] NSWSC 1444; (2006) 46 MVR 553
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Kuligowski v Metrobus [2004] HCA 34
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435
Port of Melbourne Authority vPublic Service Association (SA) v Federated Clerks Union of Australia (No 1) [1991] HCA 33; (1991) 173 CLR 132
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Commonwealth Conciliation & Arbitration Commission; Ex parte Australian Workers' Union [1957] HCA 97; (1957) 99 CLR 505
R v The Judges of the Federal Court of Australia; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190
R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185
Re Building Workers' Industrial Union; Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81
Re Building Workers Industrial Union of Australia; Ex parte Pillar [1991] HCA 50; (1991) 174 CLR 263
Re Coldham & Ors; Ex parte Brideson (1989) 166 CLR 338
Re Martin & Anors, Ex parte Amtron Australia Pty Ltd (formerly Eutech Pty Ltd) (1996) 141 ALR 117
Roger v De Gelder [2011] NSWCA 97
Roger v De Gelder (No 2) [2011] NSWCA 235
Santos v Delphi Petroleum Pty Ltd [2002] SASC 272
Schlieske v Minister of Immigration & Ethnic Affairs (1987) 79 ALR 554 at 574
Schlieske v Young (1987) 14 ALD 535
Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332
Yirrell v Yirrell [1939] HCA 33; (1939) 62 CLR 287Category: Interlocutory applications Parties: Adam Roy De Gelder (Plaintiff)
James Norman Barr Rodger (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)
Mark Burns, John Carter and Scott Harbison in their capacity as a "medical assessors review panel" of the MMA (Third Defendant)Representation: Counsel:
P Semmler SC/A Canceri (Plaintiff)
M Robinson SC (First Defendant)
Solicitors:
CMC Lawyers (Plaintiff)
Curwoods Laywers (First Defendant)
NSW Crown Solicitor (Second and Third Defendant)
File Number(s): 2014/130575 Publication restriction: None
Judgment
HIS HONOUR: The defendant moves the Court for an order under s 140 of the Civil Procedure Act 2005, transferring to this Court proceedings that are currently before the District Court of New South Wales. The matter, being the justiciable controversy between the parties, has a sorry history, which, unfortunately, it is necessary to recount.
The basis for the application under s 140 of the Civil Procedure Act is that the existence of the District Court proceedings, which are sought to be transferred, together with proceedings in this Court seeking judicial review, is an abuse of process.
Facts and the Litigious Background
Although irrelevant for present purposes, it is necessary to state the factual background for the injuries said to be suffered by the plaintiff, Mr De Gelder. Mr De Gelder was the driver of a motor vehicle which was stationary on the off-ramp of the M2 motorway at Pennant Hills Road. The traffic in front of him had commenced to move and he was about to move off, when his car was struck from behind by another vehicle.
At the time of the impact, it is said, that Mr De Gelder had removed his foot from the brake pad, heard the sound of tyres screeching coming from behind him, looked in his rear vision mirror and saw a vehicle coming towards him, immediately before it impacted his vehicle. He was wearing a seatbelt. He was unaware of the speed of the vehicle behind him and, possibly because the other cars had moved off, his car was not pushed into the cars in front of him. Mr De Gelder's car was able to be driven and the police and ambulance were not called.
Other details of the accident are, for the purposes of these proceedings, probably irrelevant. It is sufficient to say that Mr De Gelder claims he was in shock immediately after the accident, but was able to exchange details with the other driver, before driving to his sister's residence about twenty-five minutes from the scene of the accident. There he felt sudden spasms in the muscles of his back and he had pain in his neck, mid back, lower back, right shoulder, and right wrist.
He went about ordinary functions, including driving to Newcastle the next day, and he did not seek medical attention because, according to Mr De Gelder, he believed the injuries were muscular and would resolve. Instead, the symptoms gradually worsened.
About three months later, without any incident that might seemingly cause any aggravation or injury, he experienced pain that involved his entire spine and was, the next day, unable to bend to tie his shoelaces.
His work supervisor, noting his pain or discomfort, referred him to a chiropractor who referred him on to a medical practitioner.
As the injuries suffered are said to arise from a motor vehicle accident, any cause of action arising from the incident is governed by the terms of the Motor Accidents Compensation Act 1999.
Pursuant to the Motor Accidents Compensation Act, Mr De Gelder's injury and/or claim was referred for medical assessment. He was assessed as having a whole person impairment of greater than 10%. There was an application for review, which, on 28 November 2008, was referred for a further assessment. At that further assessment Mr De Gelder was assessed at having a WPI of not greater than 10%. Mr De Gelder applied for review, which was refused on 24 April 2009.
Mr De Gelder challenged in this Court the determination of the proper officer to refuse a review and on 18 December 2009, Davies J granted certiorari quashing the determination: De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173.
On 20 April 2011, the Court of Appeal allowed an appeal against the judgment of Davies J and ordered that the summons be dismissed: Roger v De Gelder [2011] NSWCA 97. On 11 August 2011, the Court of Appeal varied its orders in relation to costs: Roger v De Gelder (No 2) [2011] NSWCA 235.
In the meantime, the plaintiff had commenced proceedings in the District Court for personal injury relying on what was then an extant determination of a greater than 10% whole person impairment. Those proceedings were commenced in 2010, with a file number 2010/229350.
His Honour Judge Levy SC DCJ heard the District Court proceedings, in part, and on 15 October 2012, Levy SC DCJ delivered interim reasons dealing, in part, with the interlocutory issue relating to the causation of fractures in the plaintiff's thoracic spine. There had been twelve hearing days before the District Court on that causation issue. Further, the causation issue is the fundamental difference in the various whole person impairment assessments conducted under the Motor Accidents Compensation Act.
On 15 October 2012, Levy SC DCJ ordered, pursuant to s 62(1)(b) of the Motor Accidents Compensation Act, that the matter be referred for a further medical assessment. The further medical assessment resulted in a determination that the plaintiff had sustained a whole person impairment of greater than 10% and was so determined on 18 December 2012.
From that determination the defendant applied for a review. A review was granted. On 21 May 2013, the review panel issued a certificate (and reasons) and determined, consistent with the assessment from which this was a review, that the plaintiff's injuries resulted in a greater than 10% whole person impairment.
From the Review Panel determination of 21 May 2013, the defendant sought judicial review in this Court. This Court issued consent orders quashing the Review Panel certificate. The application for review was remitted to the Motor Accidents Authority for determination in accordance with law.
The review, conducted as a consequence of the consent orders issued by this Court, resulted in a determination of the Review Panel, issued on 4 February 2014, which revoked the earlier certificate and certified that the injury gave rise to a whole person impairment not greater than 10%.
The plaintiff in the substantive proceedings in this Court seeks judicial review of the Review Panel certificate issued on 4 February 2014. Originally the summons pressed five grounds of judicial review. The grounds are expressed somewhat discursively but, in summary, were to the following effect:
1) That the panel misdirected itself as to the law concerning issue of causation of injuries, being an error of law on the face of the record;
2) The panel misdirected itself as to causation by taking into account the inability of the plaintiff to explain why two medical practitioners did not report complaints by the plaintiff of thoracic spine pain;
3) The panel took into account an irrelevant consideration, namely the inability of the plaintiff to explain why two medical practitioners did not record his complaints;
4) The panel failed to take into account relevant considerations or material, particularised in six sub-paragraphs; and
5) The panel denied the plaintiff procedural fairness in failing to draw to the plaintiff's attention the failure to mention significant localised pain at the site of the particular fractures.
On 11 April 2014, the plaintiff notified Levy SC DCJ, at a directions hearing for the proceedings in the District Court, that he sought orders under s 61(4) of the Motor Accidents Compensation Act, namely, that the District Court reject the whole of the certificate of the Review Panel, dated 4 February 2014, on the ground of a denial of procedural fairness.
As a result of the notification to the District Court that orders were sought in the nature described immediately above, on 7 May 2014, the defendant filed the motion with which the Court is now dealing. It should also be noted, at this point in time, that the summons in the substantive proceedings now before the Court was filed on 30 April 2014.
Thus, on the summons seeking substantive relief in these proceedings and the application to the District Court under s 61(4) of the Motor Accidents Compensation Act, each of the Supreme Court and District Court was being asked to deal with the denial of procedural fairness.
The motion for orders under s 61(4) of the Motor Accidents Compensation Act is listed before the District Court for hearing on 21 August 2014.
In the course of the proceedings in this Court, the plaintiff, through the affidavit of Mark Capolupo of 27 May 2014, informed the Court that it had informed the first defendant that the plaintiff did not press the denial of procedural fairness ground in the application of judicial review in this Court and the plaintiff tendered a proposed Amended Summons deleting ground five from the original summons. That proposed Amended Summons has not yet been filed in the Court, but is an exhibit (exhibit A) on the motion.
No doubt, the foregoing is an example of the "just, quick and cheap resolution of the real issues between the parties" brought about by the Civil Procedure Act and the Motor Accidents Compensation Act. During the course of the proceedings in this Court, Mr De Gelder, somewhat plaintively, submitted that all that was desired was that he be able to pursue his remedy. After almost four years, such a submission is not an unreasonable request.
In the course of responding to that request, I sought from the parties submissions as to whether or not the District Court was able to determine whether the Review Panel Determination (the last of them) was valid and, therefore, whether, even if only at a practical level, the District Court could determine whether it was bound by the conclusion of the Review Panel that the whole person impairment was not greater than 10%.
It is necessary to deal with the legislative scheme under the Motor Accidents Compensation Act and the powers of the District Court.
Motor Accidents Compensation Act
The scheme of the Motor Accidents Compensation Act has been described on a number of occasions. In Kelly v Motor Accidents Authority of New South Wales [2006] NSWSC 1444; (2006) 46 MVR 553 at [9]-[15] and in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056; (2009) 54 MVR 102 at [8] and [13], I analysed the overall operation of the Motor Accidents Compensation Act and the function and procedure for medical assessment.
It has been analysed in many other judgments of this Court, including the Court of Appeal, to substantially the same effect.
The Motor Accidents Compensation Act was promulgated to implement a special scheme for the resolution of damages arising out of motor vehicle accidents and modified or eliminated certain common law rights, particularly the right to damages for non-economic loss, which now can be obtained only if the assessment of whole person injury is greater than 10%.
Somewhat ironically, the objects of the Act include the encouragement of "early and appropriate treatment and rehabilitation"; the provision of "compensation for compensable injuries sustained in motor accidents"; and the encouragement of "early resolution of compensation claims".
The clear intent of the legislature in promulgating the Motor Accidents Compensation Act was to restrict the level of non-economic loss compensation in cases of minor injuries. The injuries suffered by Mr De Gelder are not minor.
However, there is a real issue between the parties as to whether the injuries suffered by Mr De Gelder were caused by the motor vehicle accident. That the issue is real is attested by the different and seemingly changing assessment as to whole person impairment.
Returning to the construction of the Motor Accidents Compensation Act, the interpretation of the provisions of the statute are expressly directed at a construction that would promote the objects of the statute.
A dispute about whether the 10% threshold as to whole person impairment has been satisfied is, pursuant to the terms of Part 3.4 of the Motor Accidents Compensation Act, to be resolved by assessment by a Medical Assessor and, on review, by a Medical Review Panel. It may be appropriate to set out the provisions that render such a certificate conclusive evidence in court proceedings and I recite s 61 of the Motor Accidents Compensation Act, which is in the following terms:
"s 61 Status of medical assessments
(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.
(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
(3) (Repealed)
(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.
(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.
(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.
(7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter.
(8) This section:
(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and
(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter.
(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.
(10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury):
(a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor's assessment is concerned,
(b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment,
(c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly.
(11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error."
As can be seen from the foregoing, the provisions of s 61(2) of the Motor Accidents Compensation Act render a certificate as to a medical assessment conclusive evidence as to the matters so certified in any court proceedings. At the same time, a trial court dealing with a claim for damages may reject such a certificate on the grounds that there has been a denial of procedural fairness to a party in the proceedings in connection with the issue of the certificate.
There are conditions on a court's rejection of the certificate, which are currently irrelevant. If a court rejects the certificate pursuant to the power conferred by s 61(4) of the Motor Accidents Compensation Act then, subject to s 61(6), the court is required to refer the matter for further assessment and adjourn the proceedings until a further certificate is granted: s 61(5) of the Motor Accidents Compensation Act.
Presumably (and see s 61(8) of the Act) such a referral under s 61(5), is additional to the power to refer conferred by s 62(1) of the Motor Accidents Compensation Act, which is in the following terms:
"s 62 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or claims assessor."
Over and above the foregoing, a party to a medical dispute may apply to the Registrar, described in the Act as the proper officer of the Authority, to refer a medical assessment to a Review Panel and, pursuant to the terms of s 62(1)(a), seek a further medical assessment, if it is on the grounds of the deterioration of the injury or additional relevant information about the injury.
The District Court, on 15 October 2012, referred the medical dispute for further assessment purportedly on the basis of the existence of "further additional and relevant information becoming available concerning the plaintiff's injury". As a matter of statutory construction, it is not necessary for a trial court to base a referral on such a ground. It is only a referral for further assessment by one or other of the parties to the medical dispute that must be so grounded.
The motion before the District Court also seeks an order under s 61(6) of the Motor Accidents Compensation Act, which has been recited above. That is the only exception to the legislative requirement that otherwise all assessments of whole person injury must be performed by a Medical Assessor or a Review Panel and be subject to a certificate under the Act.
As is or should be clear from the foregoing, the fundamental issue between the plaintiff and the first defendant is whether the thoracic spine injuries were caused by the motor vehicle accident. On 15 October 2012, in determining the interlocutory issues then before the District Court, Levy SC DCJ concluded:
"[282] I therefore conclude that on the preponderance of the medical evidence, as analysed above, the overwhelming conclusion to be drawn from that evidence is that the fractures to the plaintiff's thoracic spine identified on radiological imaging were more probably than not, caused by the subject accident.
[283] In my view, the evidence overwhelmingly satisfies the requirements of factual causation: s 5D(1)(a) of the CL Act. I am satisfied that the plaintiff's fractures would not have occurred but for the admitted negligence of the defendant: Strong v Woolworths Ltd [2012] HCA 5, at [18].
[284] In arriving at this conclusion, it is relevant to observe that the plaintiff must show that on a commonsense analysis, the negligence of the defendant either caused or materially contributed to the plaintiff's injury: March v (E & MH) Stramare Pty Limited [1991] HCA 12;(1991) 171 CLR 506, at [17] to [18]. In this regard, the defendant must take the plaintiff as he finds him, with underlying vulnerabilities included: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at [8]. This was the very basis of the opinion of Dr Harvey-Sutton, and it compels the rejection of the defendant's arguments directed at seeking to avoid causation in this case.
[285] I therefore consider that Dr Maxwell and Dr Best have misdirected themselves in their analysis of the causation issue, and their views should not be accepted. Instead, the evidence leads me to conclude that on the balance of probabilities, the plaintiff's thoracic spine fractures, and the pathology and pain from the plaintiff's neck and lumbar spines, were caused, or materially contributed to, by the subject motor vehicle accident. The evidence persuades me that the plaintiff would not have encountered those problems but for the accident in question, and these matters fall within the scope of the defendant's legal liability: s 5D of the CL Act.
[286] The defendant now consents to the matter being remitted for a further MAS assessment. Having reviewed the relevant evidence in detail as outlined in these reasons I am satisfied that in the circumstances it is plain that relevant additional information has emerged that indicates that the order sought, which is discretionary, is appropriately made" (De Gelder v Rodger [2012] NSWDC 191).
Other than the provision relating to the certificate of a Medical Assessor being conclusive evidence in proceedings, there is no privative clause seeking to render unchallengeable or otherwise protecting determinations of a medical panel or claims assessors.
Jurisdiction of the Supreme Court to Issue Orders on the Motion or Alternatives
The defendant, being the applicant on the motion, relies, as earlier stated, on s 140 of the Civil Procedure Act 2005. That provision, relevantly, is in the following terms:
"s 140 Transfer of proceedings to higher court
(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.
...
(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:
(a) in the case of a motor accident claim or a workplace injury damages claim:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, or
(b) in any other case:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or
(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.
..."
Given that the proceedings involve a motor vehicle accident, the most relevant provision is s 140(3)(a), above, which requires the satisfaction of both paragraphs (i) and (ii), i.e. that the likely award of damage would be more than $1,000,000 and that the matter involves complex legal issues or issues of general importance.
The substantive proceedings, in this Court, invoke the jurisdiction of the Court for judicial review described in s 69 of the Supreme Court Act, which continues the jurisdiction of the Court to grant prerogative relief but replaces the writs with orders in the nature thereof. The Court's jurisdiction to grant prerogative relief stems from its creation under the Third Charter of Justice in 1824 and the devolution to it of all the relevant powers of the Courts in Westminster, the Courts of Chancery and Ecclesiastical Courts.
As a consequence, the Court possesses inherent jurisdiction. Its jurisdiction to grant orders in the nature of prerogative relief is now protected by the Constitution, at least in relation to review for jurisdictional error: see Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1.
The legislature has made no attempt in the Motor Accidents Compensation Act, to preclude the jurisdiction conferred or continued by s 69 of the Supreme Court Act. By operation of s 69(3) of the Supreme Court Act, such orders will be available for error of law on the face of the record, including, in that regard, the reasons for the ultimate determination of the tribunal or court, the decision of which is sought to be reviewed.
It is appropriate to refer to the provisions of s 63 of the Supreme Court Act, which confirms the Court's power to grant all remedies to which a party is entitled so that all matters in controversy are completely and finally determined and a multiplicity of proceedings are avoided: see Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at [307], per Barwick CJ and Jacobs J.
In the discussion of the High Court in Neeta, the High Court was dealing with the difficulties in declaratory relief and the necessity to utilise the provisions of s 63 of the Supreme Court Act (at a final hearing) to avoid a multiplicity of proceedings and/or to ensure the finality of issues before the Court. The avoidance of multiplicity of proceedings and the necessity for orders dealing with that which is truly in controversy and justiciable between the parties, is also consistent with the duty imposed upon the parties and the Court by the provisions of the Civil Procedure Act 2005. It applies equally to issues associated with interlocutory orders of the kind here sought.
As long as each of the parties is on notice as to the issues between them, and has had an opportunity of dealing fully with any orders that may issue as a result of the proceedings, the Court is required to facilitate the expeditious finalisation of issues between the parties. The current proceedings have suffered significant difficulty in that area.
As earlier stated, the proceedings, being the substantive justiciable controversy between the parties, have been dealt with in a manner that is anything other than expeditious. The foregoing is not a criticism of any court or tribunal. Nor is it a criticism of the parties. Each is entitled to exercise its rights. Nevertheless, the cri de coeur of the plaintiff, namely that the matter needs to be dealt with to finality, is one that merits significant consideration.
Powers to which s 63 of the Supreme Court Act refers are to the same effect as s 22 of the Federal Court Act 1976, which, because the Federal Court was established by statute with specific jurisdiction, has received more judicial attention: see Adam P Brown Male Fashions Pty Ltd v Phillip MorrisIncorporated [1981] HCA 39; (1981) 148 CLR 170; Ellwood v Darling Downs Investments Pty Ltd (1987) 14 FCR 580. The power conferred is not "at large" (see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne JJ). However, in circumstances where the jurisdiction to grant a stay of the District Court proceedings is appropriately conceded, and where an abuse of process is alleged, the power of the Court to grant a remedy, not expressly sought in the motion before it, cannot seriously be doubted. It should be noted that the provisions of s 22 of the Federal Court Act have been used, together with the provisions of s 23 and s 32 of the Federal Court Act, to ground the accrued jurisdiction of that Court.
Whatever its source, there can be little doubt that this Court has the jurisdiction and power to stay the proceedings in the District Court, pending the outcome of proceedings in this Court. Likewise, it has the power to stay the proceedings in this Court.
Two difficulties arise. First, the Court must ensure that each party is aware that the alternative of a stay, as against transfer of the proceedings into this Court, is an alternative being considered by the Court, and ensure that each party has had an adequate opportunity to prepare and to present any case put against it.
Secondly, the Court, as presently constituted, must be cognisant of the administrative arrangements prescribed in s 48 of the Supreme Court Act, namely, that any review of a decision of the District Court, or any order prohibiting or restraining the District Court from proceeding in any matter, is assigned to the Court of Appeal, as distinct from a judge of a Division. Further, subject to the provisions of s 48(3) of the Supreme Court Act, an order removing into this Court a matter currently before the District Court is also assigned, initially, to the Court of Appeal.
As to the first issue above, the plaintiff was, or should have been, aware that the alternative was an option. The issue was raised expressly during the course of proceedings: see Re Building Workers' Industrial Union; Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81 at [83]-[84].
Further, the plaintiff has had adequate opportunity to address the alternative, including the opportunity in later written submissions. In those later submissions, the plaintiff points out, correctly, that the motion before the Court seeks orders under s 140 of the Civil Procedure Act and does not expressly seek a stay of proceedings in the District Court. That submission was put as an argument why the Court ought not issue such a stay.
The parties have not referred to any rule exempting an order under s 140 of the Civil Procedure Act from the administrative arrangements under s 48(2) of the Supreme Court Act: see s 48(3) of the Supreme Court Act. Nevertheless, in my view, the Court's jurisdiction and/or power to remove a matter, which is to be heard at first instance in the Court of Appeal, is different from the jurisdiction/power to transfer pursuant to s 140 of the Civil Procedure Act.
Removal under s 48(2)(d) of the Supreme Court Act, in its context, involves orders in the nature of certiorari or otherwise removing, for the purpose of declaring the jurisdiction of the District Court, or enforcing limitations thereon. On the other hand, a transfer pursuant to s 140 of the Civil Procedure Act involves discretion to ensure that a trial is conducted in the most appropriate forum, as determined on the criteria prescribed by the legislature. As such, s 48(2)(d) of the Supreme Court Act does not require an order under s 140 of the Civil Procedure Act, in relation to proceedings in the District Court, to be exercised at first instance by the Court of Appeal.
Jurisdiction of the District Court and the Conclusiveness of the Certification of Whole Person Impairment
The terms of s 61(2) of the Motor Accidents Compensation Act, as has been earlier stated, render a certificate of a Medical Assessor (including, for this purpose, a Review Panel) conclusive evidence as to the matters certified therein in any court proceedings.
A medical assessment applies to a dispute about those matters prescribed in s 58(1) of the Motor Accidents Compensation Act, which matters relate to the treatment provided, or to be provided, in various respects and to whether, or not, the whole person impairment of the claimant is greater than 10%.
For reasons associated with the timing of such disputes, a certificate does not generally issue, at least on the experience of this Court, in relation to the various treatment matters, but may if the issue forms a medical dispute that has been referred to an assessor under the Motor Accidents Compensation Act: s 61(1) of the Motor Accidents Compensation Act. Generally, and in this controversy, the certificate issued under s 61(1) of the Motor Accidents Compensation Act relates solely to whether the whole person impairment is, or is not, greater than 10%.
By operation of s 131 of the Motor Accidents Compensation Act, general damages (i.e. non-economic damages) may not be awarded by a court, unless the whole person impairment is greater than 10%. Even if that condition were satisfied and non-economic damages were able to be awarded, such damages are capped: s 134 of the Motor Accidents Compensation Act. If there be a dispute as to whether the degree of whole person impairment is sufficient for an award of non-economic damages, a court "may not award...such damages unless the degree of impairment has been assessed by a medical assessor": s 132(1) of the Motor Accidents Compensation Act.
There are limitations on the awarding, and amount of, damages that may be awarded for other heads of damage, but, for relevant purposes, such limitations need not be discussed. The limitations on damages to be awarded otherwise and the amount thereof do not inform the status or role of a certificate as to whole person impairment, nor arguably impact upon the jurisdiction of a court in any way relevant to the issues currently before the Court.
Further, there are some limitations on the capacity of persons claiming to be injured by a motor vehicle accident commencing proceedings in a court. Relevantly, those limitations do not, even arguably, prevent or limit the capacity of the plaintiff, Mr De Gelder, from having commenced proceedings in the District Court.
It is unclear, on the material before the Court, whether the proceedings before the District Court were commenced as a result of a certificate issued under s 92 or a certificate issued under s 94 of the Motor Accidents Compensation Act. For present purposes, it makes no difference.
It is sufficient, for present purposes, to remark that, as earlier stated, there is no suggestion that the District Court did and does not have jurisdiction to deal with a claim for damages that was and is before it. That jurisdiction existed either as a result of an exemption from the Claims Assessment Process under the Motor Accidents Compensation Act, or as a result of the conduct of the parties rendering the Claims Assessment not binding on them, in the relevant sense.
Once the District Court was seized of jurisdiction in a claim for damages arising from a motor vehicle accident, it is necessary for it to assess damages. If the whole person impairment were not greater than 10%, that assessment by the District Court could not include non-economic damages. If the whole person impairment were greater than 10%, the assessment would include non-economic damages.
However, in either case, it is necessary for the District Court, where it is seized of jurisdiction, to determine the level of damages that it may award. If the damages to be awarded were not to include non-economic damage, it would still be necessary to determine future economic loss (and past economic loss) occasioned by the motor vehicle accident.
In so doing, the District Court would be required to determine the level of disability, or, more accurately, the loss of earning capacity as a result thereof. Therefore, the District Court must determine the extent of the injuries caused by the accident in order to determine accurately the extent of loss of earning capacity.
A certificate issued by a Medical Assessor (including a Review Panel) as to whole person impairment certifies (and is conclusive evidence on) the whole person impairment, but is not conclusive evidence (or, unless tendered, evidence) of the reason for the outcome. In other words, while a medical assessment certificate may certify that there is a whole person impairment greater than 10%, it does not certify that a particular injury arises from the motor vehicle accident, even though the basis for the assessment of the whole person impairment is the causation aspect.
In the current proceedings, the fact that there is a Review Panel certificate to the effect that the whole person impairment is not greater than 10%, based, as it is, on the finding that the fractures identified in the plaintiff's thoracic spine were not occasioned as a result of the accident, is conclusive evidence of the level of whole person impairment, but is not conclusive evidence (or evidence at all) that the fractures to the thoracic spine were not caused by the accident.
It is necessary to deal in a little detail with the jurisdiction, generally, of the District Court. The District Court is a court of record, but not a superior court of record. As a consequence, the District Court has no inherent jurisdiction and is amenable, more readily, to judicial review.
More importantly, as a result of the foregoing described status, orders of the court made in excess of jurisdiction are a nullity. The District Court has jurisdiction arising by implication from the jurisdiction otherwise granted, but does not have inherent jurisdiction of the kind enjoyed by this Court: see Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 and Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at [50] and [51]. Thus, the District Court has such powers as are reasonably required or legally ancillary to the accomplishment of the specific remedies granted to it by the various statutes.
In this case, the District Court has jurisdiction (and power) to determine its own jurisdiction and, within its jurisdiction, to make findings of fact and law necessary for it effectively to exercise the jurisdiction conferred on it. "Necessary" in the foregoing refers to those matters that are "reasonably required or legally ancillary to the accomplishment of the specific remedies" granted to it: Pelechowski at [51].
The Motor Accidents Compensation Act expressly grants to the District Court jurisdiction to determine damages, where a certificate under either s 92 or s 94 of the Motor Accidents Compensation Act has been issued. The jurisdiction of the District Court, here, is not in issue. Further, as already seen, a court, including the District Court, once seized of jurisdiction may issue an order under s 62(1)(b) and under ss 61(4), 61(5) and 61(6) of the Motor Accidents Compensation Act.
As earlier stated, it would be necessary for a court, including the District Court, to determine the cause of injuries said to be suffered by a plaintiff, in order to determine the appropriate amount of damages or to inform itself as to whether an order under s 62(1)(b) of the Motor Accidents Compensation Act ought issue.
As earlier stated, the jurisdiction of the District Court to refer a medical dispute for further medical assessment, pursuant to s 62(1)(b) of the Motor Accidents Compensation Act, does not need to be based upon the grounds that act as a precondition to a referral by a party to the medical dispute under the provisions of s 62(1)(a) of the Motor Accidents Compensation Act. Nevertheless, no exercise of discretion, if this be an exercise of discretion, is truly unfettered:
"A legislative discretion to decide does not, as a matter of ordinary statutory construction, import a discretion to give effect to that which, having regard to the scope and purposes of the legislation, is in the opinion of the decision-maker desirable. A discretion of that nature will be implied only if the context (including the subject-matter to be decided) so necessitates, for example, whether the context provides no positive indication of the considerations by reference to which a decision is to be made": Re Coldham & Ors; Ex parte Brideson (1989) 166 CLR 338 at 347 per Wilson, Deane and Gaudron JJ.
Nevertheless, a finding by a judge that injuries arose from the accident, which a Medical Assessor (or Review Panel) has not taken into account in the determination of whole person impairment, would be a criterion, the existence of which might inform a referral under s 62(1)(b) of the Motor Accidents Compensation Act.
As a consequence of the foregoing, dealt with in greater length than might otherwise be the case, Levy SC DCJ was exercising the jurisdiction of the District Court in determining, as he did in the recited passages above, that the plaintiff's thoracic spine fractures were caused, or materially contributed to, by the subject motor vehicle accident.
As a consequence of that finding, his Honour referred the matter to a further medical assessment pursuant to the terms of s 62(1)(b) of the Motor Accidents Compensation Act. As already stated, that order issued on 15 October 2012.
The orders issued as a result of some twelve days of hearing and the conclusions, although forming part of an interlocutory proceeding, are conclusions based upon a final determination of the medical and other evidence; the credit of parties and witnesses; and the consideration of a number of significant expert reports. The judgment issued by his Honour, Levy SC DCJ has not been the subject of challenge. It is an extant judgment of the District Court, binding on each of the plaintiff and defendant in these proceedings.
Subsequent Medical Assessments
At the time the proceedings commenced before Levy SC DCJ (the first day of hearing being 21 May 2012), there was a medical assessment that was or had been impugned. As set out at paragraph [10] above and following, there was originally a certificate that whole person impairment was greater than 10%, which was subject to a further assessment involving a determination that the whole person impairment was not greater than 10%. A review by the plaintiff was refused on 24 April 2009.
Davies J quashed that determination on 18 December 2009. The District Court proceedings commenced in 2010, at which time there was an extant certificate determining that the whole person impairment was greater than 10%.
The orders issued by Davies J on 18 December 2009 were valid until set aside by the Court of Appeal on 20 April 2011. As a consequence, the status of the certification of whole person impairment altered on 20 April 2011 (assuming the status is that which has been certified by a Medical Assessor and/or Review Panel).
When, on 21 May 2012, Levy SC DCJ commenced hearing the interlocutory application, the extant medical assessment certified for a whole person impairment of not greater than 10%. This remained the case until Levy SC DCJ issued orders on 15 October 2012.
On 15 October 2012, as earlier stated, Levy SC DCJ referred the matter for a further medical assessment pursuant to the terms of s 62(1)(b) of the Motor Accidents Compensation Act. That further medical assessment resulted in a determination that the plaintiff had sustained a whole person impairment of greater than 10%. That last mentioned determination was certified on 18 December 2012.
The defendant applied for a review from that determination, which review, as earlier stated, confirmed the whole person impairment certification and purported to certify that it was greater than 10%.
The last review was a review for which the defendant applied. The defendant applied for that review after the determination of 18 December 2012, which determination was as a result of the referral by Levy SC DCJ under s 62(1)(b) of the Motor Accidents Compensation Act.
Thereafter, those certificates were, by consent, quashed in this Court and determinations (medical assessment and/or review) issued that certified a whole person impairment of not greater than 10% (see above).
The analysis previously summarised of the jurisdiction and powers of the District Court applies, with probably greater force, to an inferior tribunal other than a court. An order made by an inferior tribunal, exercising judicial power, that has no authority to make an order of the kind in question is a nullity: Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357, per McHugh JA. See also Re Building Workers Industrial Union of Australia; Ex parte Pillar [1991] HCA 50; (1991) 174 CLR 263, per Brennan, Gaudron and McHugh JJ.
Similarly, in Pelechowski, supra, at [27] and following, Gaudron, Gummow and Callinan JJ remarked, citing Attorney-General (NSW) v Mayas Pty Ltd, in the following terms:
"[27] In United Telecasters Sydney Ltd v Hardy, Samuels AP (with whom Clarke and Meagher JJA agreed), in giving the judgment of the Court of Appeal, applied to the District Court the principle which, in Attorney-General (NSW) v Mayas Pty Ltd, McHugh JA had explained as follows:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.
[28] In United Telecasters, the Court of Appeal held that the District Court did not have power to order the prior restraint of a threatened contempt by a television station in broadcasting material which might identify the accused in a trial before that court. The Court of Appeal also held that the District Court did not have power to accept undertakings in the same terms. In the latter connection, the court referred to the decision of this court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission. It followed, as Samuels AP put it, that the order in question "was a complete nullity and bound no one" and could not found a proceeding for contempt. Further, his Honour held that:
[s]ince [the District Court] had no power to issue an injunction in those terms, it can have no power to accept an undertaking in the same terms. Since the undertaking was clearly unenforceable I would dismiss the claim for a declaration that [United Telecasters] was guilty of a contempt for breaching an undertaking to the court."
While the foregoing relates to the powers of the District Court, the analysis applies equally to an inferior tribunal exercising what would ordinarily be called judicial power. The Medical Assessors exercise a power or jurisdiction that resolves the relative rights and obligations of individual members of society as prescribed by law. Certainly, the medical assessments are part of the process of the resolution of what would ordinarily be termed a justiciable controversy between the parties.
The distinction drawn in Mayas, supra, and cited with approval by the High Court in Pelechowski, between orders of a kind that are within a tribunal's power but which were improperly made, on the one hand, and an exercise of power for which the tribunal has no authority, on the other hand, derives from the difference between a want or excess of jurisdiction.
Not uncommonly, the terms "excess of jurisdiction" and "want of jurisdiction" are used interchangeably. When strictly used, they refer to different processes. They are not terms of art, but are used to describe acts of inferior courts or tribunals performed in breach of the conditions, which circumscribe the powers and authorities of those courts or tribunals. A want of jurisdiction generally occurs when a court or tribunal does an act which is beyond its general power or authority. An excess of jurisdiction occurs when it does an act, ordinarily within its general power or authority, but performed in breach of the conditions which authorise its performance. See Yirrell v Yirrell [1939] HCA 33; (1939) 62 CLR 287 at 294, 304; R vCommonwealth Conciliation & Arbitration Commission; Ex parte Australian Workers' Union [1957] HCA 97; (1957) 99 CLR 505 at 511; R v The Judges of the Federal Court of Australia; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190 at 201, 202, 230; R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 194, 217; Commissioner for Railways (NSW) v Locke [1970] HCA 20; (1970) 122 CLR 479 at 482; Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157 at 169; and Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124,at 130.
The foregoing cases were recited, with authority, in the dissenting judgment of McHugh J in Public Service Association (SA) v Federated Clerks Union of Australia (No 1) [1991] HCA 33; (1991) 173 CLR 132 at 164. The fact that the judgment of McHugh J was in dissent does not detract from the analysis of his Honour, which analysis accords with the underlying principles accepted by the whole of the Court in that judgment.
From the foregoing, one can discern a principle that an inferior tribunal exercising a power of a kind exercised by the Medical Assessors (and Review Panel), if acting in want of jurisdiction, performs an act that is a nullity and can be treated by all parties as if it did not occur. On the other hand, if the Medical Assessors conduct a medical assessment, which ordinarily would be within jurisdiction, in a manner that ignores conditions or limitations on the exercise of that power, assuming the exercise is bona fide, the certificate is, at least arguably, valid until set aside or quashed.
An issue arises as to the reconciliation of the provisions of s 61(6) of the Motor Accidents Compensation Act, on the one hand, and the provisions of s 132(1) of the Motor Accidents Compensation Act, on the other hand. It is now well established that the process of statutory construction should be one that implements the purpose of the legislature, as evidenced by the terms of the legislation, in a manner which achieves its harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
The legislation, on the one hand (s 61) allows a court, in certain restricted circumstances, to determine for itself the degree of whole person impairment without a further assessment of a Medical Assessor. On the other hand (s 132(1)), it disentitles a court from awarding damages where there is a dispute about the requisite degree of permanent impairment, unless the degree of permanent impairment has been assessed by a Medical Assessor.
In the usual situation, there is no inconsistency between the two provisions. Arguably, there may be an inconsistency in a situation where there has been a denial of procedural fairness, which has occasioned a court to reject a medical assessment.
Even in the exceptional case of a situation where a court has rejected a medical assessment on the basis of a denial of procedural fairness and proceeded to assess, itself, the degree of whole person impairment, the two provisions (ss 61 and 132) are strictly reconcilable.
The purpose of the legislation has been the subject of much comment. The legislature has sought to implement an informal process for the assessment by medical experts of injuries arising from accidents and to expedite the resolution and determination of claims for damages arising from motor vehicle accidents. The legislature has, under the legislation, allowed for some matters to be determined by courts.
In an exceptional case, where the court rejects a medical assessment on the basis of a denial of procedural fairness, the legislature has allowed the court to proceed, where appropriate, to assess for itself the degree of whole person impairment. That is the manner in which the statute operates, including s 61 of the Motor Accidents Compensation Act.
The terms of s 132 prohibit a court from awarding non-economic damages, in circumstances where there is a dispute about the degree of permanent impairment, unless that permanent impairment has been assessed by a Medical Assessor. In order for a court to exercise the jurisdiction contained in s 61(4) of the Motor Accidents Compensation Act, there must be in existence a certificate by a Medical Assessor certifying the degree of permanent impairment as one that is, or is not, greater than 10% whole person impairment.
Thus, strictly, where a court rejects a medical assessment under s 61(4) of the Motor Accidents Compensation Act, the degree of permanent impairment had been assessed by a medical assessor, and rejected. In that circumstance, the provisions of s 132(1) of the Motor Accidents Compensation Act would have been satisfied.
Similarly, in the exceptional situation that a court would proceed to assess, for itself, the whole person impairment under the provisions of s 61(6), there must have already been an assessment by a Medical Assessor. That the certificate rejected under s 61(4) of the Motor Accidents Compensation Act is not the basis upon which the court would proceed under s 132(1) of the Motor Accidents Compensation Act is confirmed by the reference in s 61(6) to the provisions of s 133 of the Act.
None of the foregoing detracts from the exceptional nature of a practice whereby the court would substitute its own determination as to the degree of permanent injury to that of a Medical Assessor (including a Review Panel). The ordinary course would be that the certificate as to medical assessment would, in accordance with s 61(2), be conclusive evidence of the degree of whole person impairment.
In a case where a court, on a ground of denial of procedural fairness, rejects such a certificate, the ordinary course would be that the court would, pursuant to s 62(1)(b), refer the matter for further assessment; stay the proceedings pending that assessment; and, once the further assessment has been certified, proceed on the basis of what has become the conclusive evidence as to the degree of whole person impairment.
In very exceptional cases, the court will proceed itself to assess, in accordance with s 133 of the Act, the degree of whole person impairment.
As already stated, on 15 October 2012, Levy SC DCJ, having come to a conclusion that the thoracic spine fractures were occasioned, wholly or substantially, by the motor vehicle accident, referred, pursuant to the terms of s 62(1)(b) of the Motor Accidents Compensation Act, the matter for a further assessment. Such an order did not involve the provisions of either s 61(4) or s 61(6) of the Motor Accidents Compensation Act. It was an exercise under s 62 of the Act.
Again, as already stated, the determination by Levy SC DCJ as to the causation of the thoracic spine injuries was an aspect of the proceedings in the District Court that was essential for his Honour to determine, in order to assess properly the economic damage and in order to determine whether he should refer the matter for a further assessment under s 62(1)(b) of the Motor Accidents Compensation Act.
Further, as has already been stated, the medical assessment that was before Levy SC DCJ was conclusive evidence only to the extent of the certification, namely, a degree of whole person impairment and, under the statute, the determination of the Medical Assessor and/or Review Panel is not conclusive on any issue or matter that gave rise to that which is certified.
Issue Estoppel
Somewhat ironically, one of the bases upon which the defendant relies for the order transferring proceedings from the District Court to this Court is that one or other of the proceedings in the District Court or this Court will give rise to an issue estoppel. Thus, to proceed with both matters concurrently is to give rise for a potential of conflicting judgments and, therefore, an abuse of process. Alternatively, the defendant/applicant raises Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589).
Anshun estoppel is a broader version of the doctrine of res judicata and requires parties to bring all matters for determination in the one set of proceedings, preventing one or other of the parties from later agitating an issue that reasonably could have, or should have, been raised in the earlier proceedings: see Anshun; Chamberlain v Deputy Commissioner of Taxation(ACT) [1988] HCA 21; (1988) 164 CLR 502; Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332 at 346.
The plaintiff seeks to answer such a submission on the basis of an amendment to the proceedings before this Court by withdrawing, as previously stated, reliance upon a denial of procedural fairness. The difficulty with such an answer is that Anshun estoppel applies to prevent a party from proceeding on an issue not only where inconsistent judgments may be the result of two sets of proceedings. It applies to situations where there is a potential for inconsistency in result because a party has failed to raise the same matter in the earlier set of proceedings and that failure was unreasonable: see, in particular, Chamberlain, supra.
Earlier, I referred to the reliance by the defendant on abuse of process arising from Anshun estoppel or issue estoppel as ironic. It is necessary to set out, why, in my view, there is a degree of irony in the submission.
First, it is appropriate to discuss how the principles associated with issue estoppel and Anshun estoppel apply in relation to the assessment of the medical panel.
As earlier stated, the certificate of a Medical Assessor or Review Panel is, according to the statute, conclusive evidence only in relation to the matters certified.
Further, the determination of the assessor and/or medical panel is not, pursuant to the statute, final. Nor does it prevent a party to the medical dispute (claimant or insurer) from re-agitating the issues to which the certificate attests.
Moreover, a court or claims assessor may, at any time and for any reason within the scope and purpose of the statute, refer the parties for a further medical assessment. Lastly, a court hearing proceedings between the parties may reject the certificate on limited grounds and assess for itself the whole person impairment. The last mentioned course may occur even though the certificate is not quashed and remains extant.
In this regard, the status of a medical panel certificate (or a certificate of a medical assessor) is akin to the status described by the High Court in Cashman v Brown [2011] HCA 22.
In particular, the appropriate construction of the statute is that the certificate from the Medical Assessor or Review Panel is, as stated, conclusive only as to the whole person impairment and does not give rise to an issue estoppel or Anshun estoppel (if such an estoppel could ever operate in such circumstances) as to, for example, the injuries that were caused by the accident.
The statute leaves to the court, hearing an action, to determine for itself the damages that arise from the accident (whether economic or non-economic) and the court, in that respect at least, is at large: see Cashman, supra, at [26], [36]-[38],[39]-[41] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
On the other hand, different issues arise as to whether issue estoppel arises from the judgment of Levy SC DCJ, while it remains extant. A decision that is interlocutory both as to form and substance cannot give rise to an estoppel in relation to matters decided in it: Schlieske v Young (1987) 14 ALD 535; Kuligowski v Metrobus [2004] HCA 34.
As earlier stated, the District Court had jurisdiction to arrive at the decision it did. It had jurisdiction on two bases: first, it had jurisdiction to determine whether to refer the claimant for further medical assessment pursuant to s 62(1)(b) of the Motor Accidents Compensation Act; and, secondly, it had the jurisdiction to determine for itself the injuries caused by the accident in order to determine, at least, the loss in earning capacity occasioned by the accident. No one suggests that the District Court did not have the jurisdiction to determine as it did.
The judgment of the District Court is not an administrative decision (see Administration of the Territoryof Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 451, per Gibbs J).
The issue that may arise in relation to the judgment of Levy SC DCJ is whether it is a final judgment or a preliminary ruling. That the judgment was made on an interlocutory application does not preclude issue estoppel arising: Schlieske v Minister of Immigration & Ethnic Affairs (1987) 79 ALR 554 at 574; Santos v Delphi Petroleum Pty Ltd [2002] SASC 272 at [399]-[400].
Neither party seeks to rely on an issue estoppel in relation to causation in these proceedings. Nor, it seems, did either party rely upon issue estoppel as to causation for the thoracic spinal injuries when the matter was being assessed by the Medical Assessor/Review Panel. If issue estoppel were to run, then the parties could not, before a Medical Assessor or Review Panel, contest that the thoracic spinal injuries were caused by the motor vehicle accident. The latter issue was the fundamental basis for the certificate that the injuries were not greater than 10% of whole person impairment.
The correct approach in determining whether a judgment arising out of interlocutory proceeding is final, for the purpose of issue estoppel, is to consider whether, in the circumstances, it is reasonable to regard the earlier decision as a final determination of the issue that one of the parties wishes to raise again: Blair & Perpetual Trustee Co Ltd v Curran [1939] HCA 23; (1939) 62 CLR 464; Carl Zeiss Stiftung v Rayner & Keeler Ltd(No 3) [1970] Ch 506; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37; Re Martin & Anors, Ex parte Amtron Australia Pty Ltd(formerly Eutech Pty Ltd) (1996) 141 ALR 117.
In his Honour's judgment in Re Martin, supra, Cooper J said at 121-122:
"While it is clear that a decision which is "truly" interlocutory cannot found a relevant estoppel (eg dismissal of a claim for interlocutory relief on the ground that there is not disclosed a serious question to be tried: see Schlieske v Minister for Immigration and Ethnic Affairs (1987) 79 ALR 554 at 574 per Beaumont J), there is authority that, in certain circumstances where an issue is finally determined in what are interlocutory proceedings, an issue estoppel may arise: see Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 3) [1970] Ch 506 at 538-9; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA) at 42-3; Makhoul v Barnes (Fed C, Hill, Cooper and Branson JJ, 24 November 1995, unreported) at 24.
In Joseph Lynch Land Co, the New Zealand Court of Appeal said (at 42-3):
The purpose behind cause of action estoppel and issue estoppel is that litigants should not be twice vexed by the same claim or point and it is in the public interest that there be an end to litigation: see New Zealand Social Credito Political League Inc v O'Brien [1984] 1 NZLR 84 (CA) at 95 per Someres J; Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110 (CA) at 114 per Richardson J and at 118 per Somers J and also the Carl Zeiss case cited above at 946 per Lord Upjohn.
While we acknowledge that points decided in interlocutory proceedings may in certain circumstances lead to an estoppel, the rationale is less powerful in an interlocutory context. Therefore the justice of the case must be compelling before a decision which is in substance interlocutory is held to prevent the later ventilation of an issue. We consider that the statement in Cross at para 12.9 (p 317) that a decision on an interlocutory matter will not suffice for an issue estoppel is too widely expressed.
In my view, the correct approach is to consider whether in the circumstances it is reasonable to regard the earlier decision as a final determination of the issue
Which one of the parties wishes to raise again, rather than to restrict consideration to the nature of the earlier proceedings: Joseph Lynch Land Co at 43; Makhoul v Barnes at 24."
The proceedings in the District Court before Levy SC DCJ occurred over twelve days in which the major issue was whether the thoracic spinal injuries were caused by the motor vehicle accident. A practical, rather than technical, view of whether the issues were finally determined ought be taken and, on that approach, no party could seek to agitate the question of causation before Levy SC DCJ again. Nor should they be in a position to agitate it elsewhere.
Nevertheless, notwithstanding my view as to the estoppel that may arise from the judgment of Levy SC DCJ, such estoppel is not a basis relied upon by either party in these proceedings. Nevertheless, it seems to me that the issue of causation has been factually litigated and determined by Levy SC DCJ: see Kuligowski v Metrobus at [53] and [61]-[62].
Conclusion
It is, from the foregoing, unnecessary to determine finally, or at all, whether res judicata or issue estoppel arises in a manner that would bind the Medical Assessor or Review Panel, or either of the parties to the medical dispute. No party has raised the issue and there are complications associated with the statutory intention that it is the Medical Assessor (with very limited exceptions) that determines whole person impairment and, for the purpose of such a determination, determines whether any particular injury has been caused, on a factual or medical level, by the motor vehicle accident.
It would seem to be inconsistent with that approach for there to arise an issue estoppel from a judgment of a court dealing with the question of causation at a point in time that is not one of the exceptions to the proposition that it is for the Medical Assessor and/or Review Panel to determine the degree of whole person impairment.
Nevertheless, this proceeding raises other issues. The provisions of s 140 of the Civil Procedure Act, upon which the defendant relies for success in its motion, require that the court be satisfied of both of the jurisdictional pre-conditions for transfer of a motor vehicle accident damages claim. As earlier recited, the provisions of s 140(3)(a) require that the amount to be awarded is likely to be more than $1,000,000 and that the case involves complex legal issues or issues of general public importance.
The reference in s 140(3)(a)(ii) is a reference to "the case" before the District Court. Notwithstanding that there are complex legal issues associated with the application of issue estoppel to the Medical Assessor and/or Review Panel, the matter before the District Court is not one that involves complex legal issues, any more than any other motor accident claim before the District Court.
I am satisfied that, if successful, the plaintiff is likely to be awarded more than $1,000,000, which satisfaction is conditioned on the acceptance that the thoracic spinal injuries are caused by the motor vehicle accident and would be taken into account in determining the loss of earning capacity.
Otherwise, the issues in the trial before Levy SC DCJ involve issues of causation and the assessment of damages. Liability is not an issue in the proceedings. As a consequence, I am not satisfied that the proceedings before the Levy SC DCJ involve "complex legal issues or issues of general public importance".
Therefore, the jurisdictional condition for the transfer of a motor vehicle claim from the District Court to this Court has not been satisfied. No order shall be made under s 140 of the Civil Procedure Act to transfer the proceedings to this Court.
The alternative sought by the defendant/applicant is for this Court to stay the proceedings in the District Court, pending the outcome of the current proceedings in this Court. The alternative relies upon abuse of process and difficulties with issue estoppel or Anshun estoppel.
The difficulty with reliance upon any aspect of estoppel is the substantial difference in the remedies associated with the different proceedings in the two courts. Anshun estoppel would depend upon the proposition that it would be reasonable for one or other of the judicial bodies to deal with the claim currently heard by the other. I am not persuaded that such a course would be reasonable.
The proceedings before the District Court are proceedings contemplated, expressly, by the Motor Accidents Compensation Act. The proceedings allow the District Court to grant a remedy unavailable in this Court on prerogative relief.
This Court, on prerogative relief, or orders in the nature of the writs, would not be able to reject, for the purposes of a personal injury claim, the medical assessment. Nor, more importantly, would this Court have the jurisdiction to substitute its own determination for whole person impairment, were it otherwise minded so to do and found that there was a denial of procedural fairness.
As a consequence, the remedy available for a denial of procedural fairness is far greater and more appropriate if dealt with in the District Court.
On the other hand, the District Court has no jurisdiction to deal with the grant of orders in the nature of prerogative writs or to quash the medical assessment that is currently extant. Thus, it is not possible (and therefore not reasonable) for the plaintiff to seek relief of the kind sought in this Court before the District Court in the proceedings sought to be removed.
There are other aspects that require consideration. First, there is the aspect alluded to in passing earlier in these reasons, namely, the injunction in s 56 of the Civil Procedure Act to facilitate the quick, just and cheap resolution of the real issues between the parties. Frankly, the delay in the finalisation of these claims is inconsistent with the achievement of the purposes of the Civil Procedure Act.
Secondly, the reasonableness of taking the procedural fairness grounds in this Court or the prerogative relief grounds in the District Court is not determinative of the issues to be decided. Given the litigious history of this matter, it is likely that, whatever orders were issued, there will be an appeal by at least one of the parties that feels aggrieved by the orders. The District Court proceedings will not end the matter. Nor will the Supreme Court proceedings.
The fundamental difficulty does not arise from the District Court determining to reject the medical assessment on the ground that there was a denial of procedural fairness and proceeding, itself, to determine the degree of whole person impairment. The difficulty arises in two other circumstances. It arises if the Court of Appeal ultimately determines such a rejection was wrong in law or if the District Court determined not to reject the medical assessment, but the proceedings in this Court determined that the medical assessment ought to be quashed for error of law.
I do not consider that the instigation and processing of the District Court proceedings is an abuse of process, notwithstanding that there are proceedings on foot in this Court dealing with the legal effect, if any, of the medical assessment to be considered in the District Court.
Nevertheless, it seems to me that the most expeditious way of dealing with the now complicated interplay of proceedings is to grant a stay of the District Court proceedings, grant expedition of the Supreme Court proceedings to an extent that would have them heard, and one would hope determined, prior to 21 August 2014, when the matter is next listed before the District Court.
For the foregoing reasons, the Court makes the following orders:
(a) Proceedings in the District Court between the plaintiff and defendant, bearing the file number 2010/229350, be stayed pending further order of the Court or the determination of these proceedings, whichever occurs first;
(b) These proceedings be expedited and heard prior to 21 August 2014;
(c) Parties have liberty to approach the List Clerk for the obtaining of a hearing date;
(d) Costs of the motion shall be costs in the cause in the District Court proceedings;
(e) The parties have liberty to approach on any special or different orders as to costs.
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Decision last updated: 30 June 2014
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