Donevski v Woolworths Limited
[2020] VSCA 82
•8 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0105
| NOVE DONEVSKI | Applicant |
| and | |
| WOOLWORTHS LIMITED | First Respondent |
| and | |
| DR ROBIN HUNTER | Second Respondent |
| and | |
| MR KEITH ELSNER | Third Respondent |
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| JUDGE: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 February 2020 |
| DATE OF JUDGMENT: | 8 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 82 |
| JUDGMENT APPEALED FROM: | [2019] VSC 163 (Richards J) |
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CIVIL PROCEDURE – Application to set aside Registrar’s refusal to extend time to file application for leave to appeal – Judicial review of determination of medical panel – Unsatisfactory explanation for lengthy delay – Proposed grounds of appeal having no prospects of success – Application refused – Gippsreal v Kenny [2016] VSCA 65, Kambouris v Kiatos [2016] VSCA 266 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Applicant in person | |
| For the First Respondent | Ms R Kaye | Meridian Lawyers |
| For the Second and Third Respondents | No appearance |
WHELAN JA:
Mr Donevski is an older man. English is not his first language. He is the plaintiff in proceedings in the County Court against Woolworths Limited (‘Woolworths’).[1] Mr Donevski’s claim against Woolworths is that he suffered injury on 18 January 2014 while pushing a shopping trolley down a travelator.
[1]Some of the documents name the party as ‘Woolworths Group Ltd’. It is not clear whether or not that is a different entity.
In the course of the County Court proceedings, Woolworths referred a medical question to a Medical Panel, constituted by the second and third respondents, Dr Hunter and Dr Elsner. The Panel made a determination adverse to Mr Donevski and he then instituted proceedings by originating motion in this Court to have that determination set aside. On 18 March 2019 Richards J dismissed Mr Donevski’s originating motion.[2] Mr Donevski did not seek leave to appeal from that dismissal within time. He subsequently sought an extension of time which the Registrar of the Court of Appeal refused. He now seeks to set aside the Registrar’s refusal.
[2][2019] VSC 163 (‘Reasons’).
The power to set aside the Registrar’s refusal is found in Rule 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Exercise of the power under this Rule requires the Court to consider the application for an extension of time afresh; it is not a review directed at determining whether or not an error has been committed by the Registrar.[3] Under Rule 64.42(9) and (10) the application to set aside the order must be dealt with on the basis of the materials which were before the Registrar unless leave of the Court of Appeal is given.
[3]Hewitt v Count Financial Ltd [2017] VSCA 354, [1].
The claim, the referral, and the medical question
Part VBA of the Wrongs Act 1958 (‘the Act’) makes provision for certain ‘thresholds’ in relation to the recovery of damages for non-economic loss on claims of the kind made by Mr Donevski against Woolworths.
Section 28LE of the Act provides that a person is not entitled to recover damages for non-economic loss unless the person has suffered a ‘significant injury’. Section 28LF relevantly provides that an injury is ‘significant’ if the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner as satisfying the threshold level, unless a ‘Medical Panel’ has made a determination as to the threshold level.
Where an assessment of the degree of impairment as a consequence of an injury has been made by an approved medical practitioner that practitioner is required by s 28LN of the Act to provide to the injured person a certificate of assessment. Under s 28LT, the injured person must serve the person against whom the claim is made (called the ‘respondent’) with a copy of that certificate if they intend to rely upon it. Section 28LT(3) sets out the information which must accompany the certificate, including ‘the injury’. Under s 28LW, a respondent upon whom a certificate is served must respond to it within a designated time. One response which is provided for is a response which includes advice that the recipient intends to refer a medical question to a Medical Panel.
Section 28LWE of the Act provides that a respondent who has received a certificate of assessment may refer a ‘medical question’ to a Medical Panel. ‘Medical question’ is a defined term. It means ‘a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level’ (s 28LB). The ‘threshold level’ applicable to Mr Donevski’s claim is 5 per cent (s 28LB).
The procedures to be followed when a medical question is referred to a Medical Panel are set out in Division 5 of Part VBA of the Act.
A Medical Panel is not bound by rules or practices as to evidence and must act informally (s 28LZ). A party referring a medical question to a Medical Panel must submit a notice setting out the medical question and must also submit a copy of the certificate of assessment (s 28LZA). A Medical Panel may ask the claimant to meet the Panel and answer questions and to submit to a medical examination (s 28LZC).
Provision is made for the Medical Panel to make a determination of the medical question (S 28LZG). A determination by the Medical Panel must be accepted by the Court (s 28LZH). There is no appeal on the merits from an assessment or determination of a Medical Panel (S 28LZI).
In February 2017 Professor Kenneth Myers certified that he was satisfied that the degree of impairment to Mr Donevski’s knees and to his back as a result of the incident of which he complains was more than 5 per cent. That is, the ‘injury’ so described satisfied the applicable threshold. As required by the Act, he produced a certificate of assessment. At that time Mr Donevski had solicitors acting for him. Mr Donevski’s solicitors served the certificate of assessment on Woolworths and later gave the following details of his claim:
On or about 8 January 2014 Mr Donevski suffered injuries to both knees and lower back, which injuries were caused by substandard equipment owned by Woolworths. Mr Donevski was travelling down a travelator at the Sunshine Plaza Woolworths when the braking mechanism on the trolley failed to work and in his attempts to catch the rolling trolley he fell, landing on his back while the trolley toppled on him and injuring both his knees.[4]
[4]Reasons [3].
Woolworths referred a medical question to a Medical Panel for determination, the question being whether ‘the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level’.[5]
[5]Ibid [5].
The Medical Panel was provided with the certificate of assessment, the details of the claim provided by Mr Donevski’s solicitors, and a number of medical and related reports. The panel examined Mr Donevski on 10 October 2017. On 19 December 2017 the panel gave its determination. The Medical Panel determined ‘that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level’.[6]
[6]Ibid.
The relevant proceedings
Mr Donevski still had solicitors acting for him when he filed the originating motion seeking judicial review of the Medical Panel’s determination. The originating motion set out three complaints as to that determination. They were:
The Panel’s hypothesis is unreasonable administratively as medical records on which the Panel have relied do not support the hypothesis and findings of the Panel.
The Panel’s determination is unreasonable because the Panel relied on irrelevant considerations in forming its opinion.
Further, in determining its opinion the Panel failed to afford the plaintiff procedural fairness.
By the time the proceeding first came on for directions Mr Donevski was acting for himself. Because of the vagueness of the grounds in the originating motion he was directed to file written submissions in support of his application for judicial review. The written submissions were very brief and read as follows (I have deleted confusing numbering):
•The Medical Panel failed to give consideration to current medical reports
•The Medical Panel failed to give consideration to my answers that I provided to their questions during medical examination and in my opinion my answers to every question was dismissed
•The Medical Panel decision and certificate and reason of opinion which was performed on the 9th of April 2014 was dismissed by current Medical Panel doctors 2018. This document stated that all injuries sustained have been resolved and that total impairment was 0. This document is also included in this letter.
•In the incident which occurred on the 18th of January 2015, I also injured my shoulders while holding the trolley on the escalator. However for some reason this was missed to be included and documented by my previous lawyers that was also to be examined by the Medical Panel.
After a further directions hearing Mr Donevski was permitted to file further written submissions, and he did so by adding the following further matters (I have again removed confusing numbering):
•The Medical Panel in their Reasons for their determination they mention numerous reports by Dr Alex Stockmen. They used opinion that were located on page 4 paragraph 1 and paragraph 2 and on page 8 in paragraph 3. They discuss his reports on 1st of April 2012 and 1st of April 2018. They mention a previous report written on 28th of June 2001.
•They fail to consider current reports from my general practitioner Dr Louis Glowinski, whom I have seen for more than 40 years on a regular basis. They also failed to mention the report of Professor Kenneth Myers which is dated on the 13th of February 2017 which is current.
•For Procedural fairness, the Panel failed to give a reasonable and a fair opinion to the plaintiff. They did not consider medical reports, MRI scans, treatment, operations and any of my answers. They used material that is out of date and applied reports that do not relate to the injuries sustained.
Judgment of Richards J
After setting out the background and the grounds for review in the originating motion and in Mr Donevski’s written submissions, the judge reviewed the panel’s key findings. She then considered each of Mr Donevski’s complaints in turn, commencing with the complaint that the panel had not considered current medical reports relating to the injury which he suffered. She found that the panel had not failed to consider those current medical reports.
She then addressed the complaint that the panel had failed to consider Mr Donevski’s answers. She observed that the written submission gave no details of this complaint other than to say that every answer had been dismissed. She recorded the fact that in the course of the hearing before her Mr Donevski had identified a number of matters in relation to which he considered that the panel had disregarded his answers. He did this from the Bar table. The judge concluded that none of the matters raised by Mr Donevski could amount to a jurisdictional error. The judge addressed all of Mr Donevski’s specific complaints. One of those specific complaints was that the panel had said that Mr Donevski had not felt it necessary to use a language interpreter. In relation to that complaint the judge said the following:
As to the use of an interpreter, Mr Donevski confirmed that an interpreter had been present during the whole examination. He did not make any complaint that he could not understand the questions asked of him or make himself understood, or that he was prevented from seeking the interpreter’s assistance at any point. I do not consider that the fact that the Panel conducted the examination in English, with an interpreter present and available to assist, could amount to jurisdictional error in this case.[7]
[7]Ibid [25(d)].
The judge dealt with Mr Donevski’s complaint concerning a previous Medical Panel decision. That decision concerned unrelated incidents in which he had injured his neck, back and right leg. That previous Medical Panel had assessed his impairment at zero per cent. Mr Donevski asserted that that determination was inconsistent with the Medical Panel determination of which Mr Donevski was complaining. In substance, Mr Donevski’s complaint was that whereas the previous panel had found that he had no continuing impairment, the second panel had found that he had an impairment which related to an injury unrelated to the incident at Woolworths. In relation to this complaint the judge said:
The first Panel did not, in fact, find that there was nothing wrong with Mr Donevski before January 2014. To the contrary, the first Panel considered that Mr Donevski was ‘suffering from wide spread pain symptoms in the setting of age related degenerative changes of the cervical and lumbosacral spines’. It also noted long standing shoulder symptoms following a motor vehicle accident in 2001, for which Mr Donevski had had a series of injections over the previous several years that provided only short term relief. Its assessment that he had no impairment was confined to impairment resulting from the soft tissue injuries he suffered at work in 1988 and 1989, which the first Panel found had resolved by the time it examined him in March 2014.[8]
[8]Ibid [29].
The judge then addressed Mr Donevski’s complaint that the panel had wrongly disregarded injury to his shoulders. The judge accepted that Mr Donevski had complained about an injury to his shoulders in an early letter to Woolworths but she rejected this complaint because the certificate of assessment by Professor Myers and the claim made by Mr Donevski’s solicitors had concerned injuries to ‘both knees and lower back’. Neither had mentioned any shoulder injury. The medical question referred to the panel did not include the claimed injury to Mr Donevski’s shoulders. The judge found that the panel had ‘addressed the question it was asked’, and that the panel had been ‘right to exclude Mr Donevski’s claimed shoulder injuries from its consideration’.[9]
[9]Ibid [37].
The judge turned to the complaint that Dr Stockman’s reports had been relied upon. Mr Donevski claimed that Dr Stockman’s reports were irrelevant, because they related to injuries that were the subject of the previous panel’s decision. The judge rejected that complaint observing that Dr Stockman’s reports were relevant.
The judge rejected the complaint that the panel had proceeded in a manner that was procedurally unfair. The judge observed that Mr Donevski’s complaints were not really about procedural fairness but were a reiteration of his other complaints.[10] The judge rejected the assertion in the originating motion that there was any relevant ‘unreasonableness’.[11]
[10]Ibid [43]–[44].
[11]Ibid [45]–[47].
Mr Donevski’s steps towards a proposed appeal
Mr Donevski said in the course of the hearing before me that he had liaised with the Court’s unrepresented litigant’s coordinator concerning a proposed appeal.
Documents including a document entitled ‘Application for Leave to Appeal’, a document entitled ‘Written Case’, and a document entitled ‘Summary of Case: Nove Donevski’ were sent to the solicitors for Woolworths on or about 20 May 2019. Inquiries by those solicitors with the Court of Appeal revealed that the documents had not been filed and that there was no application for leave to appeal on foot. By a letter dated 5 June 2019 Woolworths’ solicitors wrote to Mr Donevski pointing out that there was no record of the documents he had sent having been filed and specifically advising him as follows:
If you wish to appeal the Supreme Court judgment in relation to the Medical Panel then you will need to properly file your application with the Court of Appeal. Unless you do that, you will have no appeal on foot.
Please let us know whether you intend to file your Application for Leave to Appeal or not. If not, then we will need to take steps to progress the County Court proceeding.
In response Mr Donevski sent a letter dated 15 July 2019 which made an offer to settle the matter. The letter included the following passage:
I will give two weeks to reply to me otherwise I will lodge an appeal to the Supreme Court and in the County Court of Victoria.
As no application for leave to appeal was filed, the solicitors for Woolworths arranged for the County Court proceeding to be listed for directions on 23 August 2019. Mr Donevski did not appear, and the directions hearing was re-listed for 30 August 2019. On 30 August 2019 Mr Donevski did appear (representing himself) and informed the County Court that he intended to appeal Richards J’s judgment.
By an application other than for leave to appeal dated 19 September 2019 Mr Donevski sought an extension of time within which to apply for leave to appeal from the judgment of Richards J. The application was supported by a brief affidavit of Mr Donevski sworn 19 September 2019, a proposed application for leave to appeal, and a written case. The grounds or proposed grounds of appeal were:
(1)The judge is wrong to state that the Medical Panel had every right to exclude shoulder injury.
(2)The judge was wrong for finding that the second Medical Panel was inconsistent with the first Medical Panel.
(3)The judge was biased and there was no natural justice applied.
The solicitors for Woolworths filed a notice of opposition to the application, submissions on the application, and an affidavit of James Hand, solicitor, setting out some of the relevant history. The matter was determined by the Registrar without an oral hearing. He refused the application for extension on 30 October 2019.
By a letter dated 2 December 2019 Mr Donevski requested a ‘review’ of the Registrar’s decision. He also filed an affidavit sworn 25 November 2019 which added paragraphs to the affidavit he had previously sworn in support of the application for an extension by setting out details of certain medical conditions from which he suffers. On the hearing before me, counsel for Woolworths did not object to Mr Donevski relying upon the new affidavit, and I granted him leave to do so.
The explanation for the delay
Mr Donevski gave the following explanation for the delay.
In his September and November affidavits, he deposed that after 18 March 2019, there was a six week period where he was seeking pro bono assistance from the Victorian bar, or legal representation on a no win/no fee basis. When no offer of pro bono or other assistance was forthcoming, Mr Donevski decided to pursue his appeal without legal representation. On 20 May 2019 he sent draft appeal documents to the respondent, as referred to above.
Mr Donevski told me that it was only after receipt of the respondents’ letter of 5 June 2017 that he understood that, in order to commence an appeal, he must file the necessary documents with the Registry of the Court of Appeal. He attended the Registry for that purpose.
Mr Donevski deposed that he was delayed by the unrepresented litigants coordinator, who refused to accept his appeal documents for filing on the basis that they were not in a form acceptable for filing. He attended the Registry on numerous occasions (‘at least ten times’) to ‘fix up’ the documents for filing.
Mr Donevski also deposed that he is semi-literate in the English language and therefore incapable of preparing the appeal documents himself. He relied upon his daughter in this regard, and her capacity to assist was limited due to her full-time employment as a teacher.
Finally, Mr Donevski deposed that his ability to prepare his appeal was impeded by poor health. He has had bladder cancer for three years which requires numerous specialist treatments, including an invasive and painful procedure that has been performed on twenty separate occasions. He has had several operations to remove tumours from the bladder, and persistent infection in his urinary tract causing pain and irritation. He also suffers from consistent pain in his legs, shoulders and back.
In its written materials, the respondent submits that Mr Donevski has not provided sufficient information to explain the delay. Mr Donevski has provided no information as to the nature of the treatment for his bladder cancer in the relevant six month period of the delay. At the hearing of the application, counsel for the respondent submitted that Mr Donevski’s explanation in relation to his daughter’s limited capacity to assist was vague, and apparently belied by her presence at the trial before Richards J, and before the Court of Appeal.
The respondents’ submissions focussed on what was said to be the inexplicable delay after 20 May 2019, when appeal documents in a form substantially similar to those accepted for filing on 25 September 2019 were sent to the respondent. To demonstrate the near identity of the two sets of documents, the respondents’ counsel undertook a paragraph by paragraph comparison.
The written case which was eventually filed by Mr Donevski expands upon the 20 May version sent to Woolworths’ solicitors by the addition of points 8–17. The respondent submitted that points 1–7 in both are identical. Points 8–9, 12–13, and 15–17 are repetitious of arguments made in points 1–7 and do not add anything of substance. Points 10, 11 and 14 make the submission that Dr Stockman’s reports should not have been considered by the Medical Panel. The respondent submitted that, although not in the 20 May written case, the substance of this argument was included in the document entitled ‘Summary of Case: Nove Donevski’ sent to the respondent on 20 May 2019. The submission in relation to Dr Stockman does not appear in the Summary for the Court of Appeal filed by Mr Donevski. The respondent submitted that the argument has been removed from the summary filed with the Court, moved to the written case and fleshed out therein, but it is the same point.
The respondent accepted that proposed ground 3 appeared for the first time in the application for leave to appeal filed in September 2019, but noted that the substance of the ground was adverted to in the body of the May written case. The new proposed ground was not otherwise supported by any new submissions, save for those referred to above.
Analysis of delay
Rule 64.05 of the Rules requires that, unless otherwise allowed, an application for leave to appeal must be filed within 28 days after the decision was made to which the application relates. Rule 64.08 provides that the Court of Appeal may extend the time for filing an application for leave to appeal. The Court has published a Notice to the Profession of April 2017, which allows an automatic extension of 14 days in most civil appeals.
The principles governing the discretionary power to grant an extension of time are well established. In exercising its discretion the Court must facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. In deciding whether to grant an extension of time under Rule 64.08 the Court will consider:
(a) The length and reasons for the delay;
(b) The prospects of the application for leave to appeal succeeding; and
(c) The extent of any prejudice to a respondent.[12]
[12]Gippsreal v Kenny [2016] VSCA 65, [21] (Kyrou JA).
The Court will not grant an extension of time if the application for leave to appeal is ‘so devoid of merit that it would be futile to do so’.[13]
[13]Kambouris v Kiatos [2016] VSCA 266, [23].
Richards J’s judgment was handed down on 18 March 2019. The 28 day period to file an application for leave to appeal from that decision expired on 25 April 2019. The application for an extension of time was accepted for filing on 25 September 2019, 163 days after the expiry of the specified time for application for leave to appeal. Taking into account, in this calculation and those that follow, the 14 day extension provided for in the Notice to the Profession, the application was 149 days out of time.
For a part of that time, Mr Donevski was seeking pro bono assistance. He also says that he was unaware of the requirement to file his application for leave to appeal until so informed by Woolworths’ solicitors. Accepting that is so, that still leaves a period of 112 days between 5 June 2019 and the date the application was accepted for filing.
I accept the respondents’ submissions in relation to the similarity in the substance of the 20 May 2019 documents sent to the respondents’ solicitors, and those filed on 25 September 2019. During that period, little of substance was altered, although the form of the documents changed. For part of that period Mr Donevski deliberately held off filing his application, apparently in the belief that that would encourage the respondent to accept an offer of settlement which he had made. During that period Woolworths’ solicitors took steps to advance the County Court proceeding and incurred some costs in doing so.
I also accept the respondents’ submission that Mr Donevski has not adequately explained the effect of his medical conditions, and the effect of his daughter’s limited availability, upon his ability to file the application.
Mr Donevski’s explanation for the long delay is unsatisfactory. However, given the nature of his claim (being for physical injury), the potential effect of the Medical Panel’s determination on that claim, the fact that Mr Donevski is self-represented, that English is not his first language, and that he does suffer from a number of medical conditions, I would grant an extension if the proposed grounds had sufficient merit to warrant it.
I turn to address the proposed grounds. Mr Donevski’s proposed grounds of appeal are:
(1)The judge was wrong to state that the Medical Panel had every right to exclude shoulder injury.
(2)The judge was wrong for finding that the second Medical Panel was inconsistent with the first Medical Panel.
(3)The judge was biased and there was no natural justice applied.
Submissions on proposed grounds
The submissions of Mr Donevski in relation to proposed grounds 1 and 2 essentially repeated the matters put to the primary judge concerning the shoulder injury and the asserted inconsistency between the two panels, and criticised her for failing to accept Mr Donevski’s position on these issues. The respondent submitted that the trial judge was correct to reject these arguments for the reasons that she gave.
Mr Donevski’s proposed Written Case does not clearly relate the arguments he puts to proposed ground 3. He raises a number of complaints about the Medical Panel and submits that the primary judge’s findings on those issues reveal bias against him. Insofar as Mr Donevski contends the primary judge was biased against him, or failed to accord him natural justice, there is no credible basis for that assertion. It is put entirely on the basis that she reached conclusions contrary to those contended for by Mr Donevski. Nevertheless, as Mr Donevski is self-represented, I will address the complaints he makes about the Medical Panel without relating them to proposed ground 3.
First, Mr Donevski complains about the position with the interpreter. His position on this issue on this application has altered from the position which the primary judge says that he adopted before her. An interpreter was present throughout the relevant examination. The primary judge records (as quoted earlier) that Mr Donevski made no complaint that he could not understand the questions asked of him, or that he was prevented from seeking the interpreter’s assistance at any point. In his proposed Written Case Mr Donevski asserts that the Medical Panel refused to allow him to use the interpreter who was present, and that there were ‘a lot’ of questions that he did not understand. As to whether Mr Donevski says that that led to the panel making some error of fact, it is difficult to identify that in the proposed Written Case. Mr Donevski did allege that the panel made factual errors before the primary judge (when his position on the interpreter was different) but identifying any asserted error on the basis of the new complaint is difficult. Perhaps by the closest one comes to it is a passage which reads:
The judge says I do not accept that the panel disregarded Mr Donevski’s answers during the examination in any material respect or made a mistake o[f] fact about any fundamental issues. In my view the medical panel disregarded the value of the medical reports and the value from the scans of my back, shoulder and knees.
Second, Mr Donevski submits that the primary judge erred by failing to find that the Medical Panel failed to consider the ‘values’, ‘diagnosis’, ‘results’ and ‘impairment’ from the medical reports and MRI scans of his back, shoulders and knees. Before the primary judge Mr Donevski’s complaint was that the panel had not considered the reports and scans. On this application he submitted that the problem was not that the panel had not considered this material but that the panel had erred by finding his degree of impairment resulting from the trolley incident to be less than 5 per cent, in circumstances where the relevant medical reports and scans assessed his degree of impairment to be 5 per cent or greater.
A third matter relied upon is a repetition of Mr Donevski’s submission about the irrelevance of Dr Stockman’s reports. As he submitted to the primary judge, Mr Donevski submits that the reports should not have been considered because they were prepared for the purposes of a WorkCover claim made in 2000 in respect of a workplace injury that occurred in 1988–89, and because Dr Stockman is a rheumatologist.
The respondent submitted that the complaint now made about the interpreter was raised for the first time in the material in support of the proposed application for leave to appeal. The respondent submitted, relying on Foody v Horewood,[14] that Mr Donevski should not be given an extension of time in reliance on this new complaint, because a party is ordinarily bound by its conduct at trial. Evidence available at trial that is not adduced will not be admitted on appeal unless it is sufficiently credible, could not have been obtained with reasonable diligence, and there is a high probability that the outcome of the trial would have been different had the evidence been admitted. Counsel for the respondent emphasised the stringency of the test, and referred to the decision of the High Court in Council of the City of Greater Wollongong v Cowan[15] where Dixon CJ, delivering the judgment of the Court, referred with approval to the statement in Orr v Holmes that the evidence must be ‘well-nigh decisive’.[16] It was submitted that the new complaint with respect to the interpreter failed on all three criteria.
[14][2007] VSCA 130.
[15](1955) 93 CLR 434, 445; [1955] HCA 16.
[16]Ibid citing Orr v Holmes (1948) 76 CLR 640, 642; [1948] HCA 16.
The respondent developed its submission in relation to the third criteria, that there must be a high probability that the outcome of the trial would have been different. It was submitted that Mr Donevski had been unable to identify any material factual errors in the panel’s reasons that had arisen as a result of the alleged refusal to use the interpreter. Relying on this Court’s judgment in Chang v Neill,[17] the respondent submitted that a factual error in the panel’s decision would only amount to a jurisdictional error if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material which is the subject of the error is an essential feature of a valid exercise of the function. The respondent referred to the factual errors asserted by Mr Donevski before the primary judge, set out at para [23] of the Reasons. To the extent that those issues do not overlap with the proposed grounds of appeal dealt with above, the asserted factual errors relate to:
[17][2019] VSCA 151 (‘Chang’).
(d) the mechanism by which the injury occurred as part of the trolley incident,
(e) the condition of the trolley,
(f) Mr Donevski’s bladder and bowel function,
(g) his capacity to walk prior to the incident, and
(h) whether the Panel erred by failing to assess impairment in both knees.
The respondent submitted that the issues raised by the first three asserted errors were not relevant to the panel’s assessment of the degree of impairment. In relation to Mr Donevski’s claims concerning his capacity to walk prior to the incident, the respondent submitted that the primary judge had correctly found that it was open to the Medical Panel to express doubt about his claims in light of the reports of Mr Donevski’s treating doctors. The respondent submitted that the primary judge had correctly found that on a proper reading of its reasons the panel had not failed to assess the claimed impairment in both knees.
In relation to the third matter, the respondent submitted that, as the primary judge had found, the panel had correctly taken the Stockman reports into account, because it was bound by s 28LL of the Act to disregard impairments arising from unrelated injuries or causes.
Analysis of proposed grounds
On an application for an extension of time, the prospects of success of the application are not to be assessed in the detail required in the hearing of an application for leave to appeal.
Proposed ground 1 (the shoulder injury) has no prospect of success. The Act sets out the procedure by which a claim is to be made. A claimant serves on a respondent a copy of a certificate of assessment upon which they intend to rely, together with the prescribed information, including specification of the injury. The certificate of assessment relied upon by Mr Donevski did not refer to a shoulder injury. Nor did the claim sent to Woolworths by his then solicitors. The shoulder injury did not form part of Mr Donevski’s claim.
A respondent can only refer a medical question to a Medical Panel about an injury alleged in the claim. The task of the Medical Panel is to determine that medical question. The respondent could not refer a medical question about the shoulder injury, because it did not form part of the claim. Likewise, the Medical Panel could not determine a medical question it was not asked. The Medical Panel did not err by not considering the shoulder injury.
Proposed ground 2 (inconsistent panel decisions) also has no prospect of success. The primary judge correctly found that there was no inconsistency in decisions of the Medical Panels, for the reasons that she gave.
Proposed ground 3 (bias and natural justice), as expressed, has no prospect of success. There is no credible basis for the assertion of bias or a failure to accord natural justice. Further, none of the various complaints which I have addressed under proposed ground 3, even if they were to be the subject of proposed grounds of appeal, appear to me to have any prospect of success, or to have sufficient prospects of success to warrant an extension of time, given the long unsatisfactorily explained delay which has occurred in this case.
Mr Donevski should not be permitted to alter at this stage the nature of his complaint about the use of the interpreter. In any event, he has failed to establish a basis for any credible argument that the panel made an error of fact capable of constituting a jurisdictional error of the kind described in Chang.
Mr Donevski’s submission that the Medical Panel erred by determining that the degree of impairment resulting from the injury is less than 5 per cent, amounts to an attempt to challenge the merits of the Medical Panel’s determination. The trial judge’s finding that the Medical Panel did consider the relevant reports has not been challenged on this application. The complaint now is as to the outcome of that consideration. As stated above, an appeal on the merits is not permitted under the Act (s 28LZI).
Finally, as the primary judge found, the Medical Panel was correct to consider the Stockman reports, for the reasons the primary judge gave. The 2001 Stockman report related to ‘longstanding … low back pain’ and the 2012 report to ‘pain in the … left … knee’. These are areas affected by the 2014 incident. The reports were relevant to the Medical Panel’s assessment of whether the impairment arises from unrelated injuries or causes.
Disposition
The proposed appeal has no prospect of success, or has insufficient prospects of success to warrant an extension given the lengthy unsatisfactorily explained delay. The application to review the Registrar’s refusal of the application to extend time for leave to appeal is refused.
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