Ferguson v P Employment Pty Ltd
[2017] VCC 1481
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00093
| JAY FERGUSON | Plaintiff |
| v | |
| V P EMPLOYMENT PTY LTD AND VICTORIAN WORKCOVER AUTHORITY | First-named Defendant Second-named Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 10 October 2017 | |
DATE OF RULING: | 19 October 2017 | |
CASE MAY BE CITED AS: | Ferguson v V P Employment Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1481 | |
REASONS FOR RULING
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s274 – referral by plaintiff of medical questions in Magistrates’ Court proceedings – concurrent serious injury application – plaintiff considering possible appeal in relation to answers of Panel to questions referred in the Magistrates’ Court – serious injury application in this Court previously fixed for hearing – application by defendant before Judicial Registrar for adjournment on basis of plaintiff’s possible judicial review – adjournment of serious injury application to 2 November 2017 – defendant now seeks referral of medical questions relating to serious injury application – inevitability of further adjournment if application granted – whether abuse of process – Practice Note of County Court in relation to timing of referral of medical questions – whether adjourned hearing date becomes relevant date for purposes of when referral of medical questions should take place – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Robinson Gill |
| For the Defendant | Mr M Hooper | Russell Kennedy |
HIS HONOUR:
General background
1 This matter comes before me by way of a somewhat complicated dispute concerning a serious injury application pursuant to s134AB(17)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the ACA”) and the referral of medical questions pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In this dispute, Ms S Gold of counsel appeared on behalf of the plaintiff and Mr M Hooper of counsel appeared on behalf of the defendants. The interests of the defendants overlap entirely. No oral evidence was called. Various documents, including some transcript, were placed before me. Helpful and detailed submissions were made by counsel.
Factual background
2 Whilst again emphasising that any factual background was put before me for the purposes of the present application and was not the subject of evidence, that factual background could be summarised as follows. The plaintiff is alleging injury, and particularly injury that arose out of and in the course of his employment with the first-named defendant by which entity he was employed in an abattoir. The physical injury is a lacerating hand injury resulting from use of a knife. However, the essence of the dispute, insofar as injury is concerned, relates to paragraph (c) of the definition found in s134AB(37) of the ACA. In other words, attention is focussed largely upon any mental disorder of the plaintiff. That state of mental health may well be relevant to difficulties which have been encountered in relation to the progress of the matter.
3 The plaintiff launched proceedings in the Magistrates’ Court in relation to the termination of weekly payments of compensation. Payments had been terminated in April 2015 and the proceedings in that regard were issued in the Magistrates’ Court in September of that year. In April 2016, the plaintiff’s solicitors indicated an intention to refer medical questions to a Medical Panel. Ultimately, that application was granted on 17 August 2016 and the questions referred by a magistrate. As stated, that referral was by the plaintiff. There was then a failure on the part of the plaintiff to attend various appointments. Whether or not that failure be the result of mental health problems is not clear, but the bottom line is that on at least four occasions the plaintiff failed to attend the arranged appointments. In any event, there was a considerable delay before the Medical Panel was able to provide answers to the questions referred by the plaintiff in the proceedings in the Magistrates’ Court. Because of the delays, principally caused by the failure of the plaintiff to attend such appointments, the answers of the Medical Panel to the questions referred by the Magistrates’ Court were not received until 11 September 2017. I gather that, whilst the answers may have favoured the plaintiff in relation to some medical expenses, overall the plaintiff is unhappy with the outcome and is considering his position in relation to applying for a review by the Supreme Court of Victoria. The time for making any such application has not expired and the plaintiff is considering his options in that regard.
4 In the meantime, the plaintiff issued a serious injury application pursuant to the provisions of the ACA on 9 September 2016. This was initially set down for hearing on 2 June 2017. On 29 May 2017, the matter came on by way of a directions hearing before Judicial Registrar Gurry. The serious injury application had been fixed for hearing on 2 June 2017. The defendants sought an adjournment of that hearing, essentially on the following basis. In the Magistrates’ Court proceeding, the plaintiff had sought referral of medical questions to a Panel. Due to his failure to attend relevant appointments, the Panel had been unable to respond to the questions. At the time of the adjournment application, those answers were still outstanding. It was argued that the answers to those questions had the capacity to affect the conduct of the Serious Injury application. This argument found favour with Judicial Registrar Gurry. The trial date of 2 June 2017 was vacated and the matter refixed on 2 November 2017. As stated, the response of the Medical Panel recently became available.
5 In the meantime, having considered the position, the solicitor for the defendants opted to refer questions to a Medical Panel for determination, these questions relating to the Serious Injury application. The intention of the defendants in this regard was relayed to the Court by way of email on 28 June 2017. It is emphasised that, prior to the original hearing date of 2 June 2017, no such application had been made.
6 The plaintiff opposes the referral of any questions in the Serious Injury application, primarily on the ground of abuse of process and for other reasons which shall be discussed. It is conceded by the defendants that, if leave is given for the sending of questions, the hearing date of the Serious Injury application of 2 November 2017 cannot be maintained and the case would have to be removed from the list and adjourned. Certainly, if leave was given, it seems to me to be impossible for that hearing date to be maintained. However, the defendants, inter alia, argue that no abuse of process is involved and that they are entitled to leave to refer their questions. I might say that, at this particular hearing, the validity of the wording of the particular questions was not debated. Argument centred upon whether, in the circumstances, the defendants should have leave to refer any such questions.
7 I shall now give a brief summary of the arguments advanced.
The submissions on behalf of the plaintiff
8 The submissions of Ms Gold on behalf of the plaintiff could be summarised as follows. There is no structural link between the Magistrates’ Court action in relation to statutory benefits and the Serious Injury application, being effectively an interlocutory procedure in which the plaintiff seeks to establish his entitlement to bring a common law claim for damages. The contemplated review of the Medical Panel decision in the Magistrates’ Court case has no relevance to the Serious Injury application and has no effect upon it. With all due respect to the decision of the Judicial Registrar, there is no risk of inconsistent decisions and the Medical Panel in each instance simply considers the matter before it. Further, estoppel does not flow from a Serious Injury hearing.
9 The two matters can proceed simultaneously. An injured worker is able to pursue both avenues – statutory benefits and a Serious Injury application – at the same time.
10 When argument concerning adjournment of the Serious Injury application was conducted before the Judicial Registrar, the defendants did not state that they were considering an application to refer matters to the Medical Panel. That was not raised. The successful adjournment application was conducted on entirely different grounds and granted very shortly before the hearing date of 2 June. Had the defendants made an application in respect of Medical questions at the hearing before the Judicial Registrar on 29 May, it would have been well outside the time limits. Various decisions concerning abuse of process would have been relevant. In any event, this was not canvassed before the Judicial Registrar. The first time that the defendants indicated their intention of referring questions to a Medical Panel was less than one month after the contested adjournment application. Nothing changed in relation to the progress of the Medical Panel application before the Magistrates’ Court.
11 It is submitted that the abuse of process arguments in respect of an application out of time regarding referral of questions, which would have been made before the Judicial Registrar on 29 May, had such an application been made, are valid in the present situation. The relevant Practice Notes apply. The time restraints should apply in relation to the initial listing for hearing. Prior to 29 May, the plaintiff had prepared for hearing. Counsel had been briefed and materials prepared and updated. In the present case, the defendants, not having previously evinced any intention of referring the current matter to a Medical Panel, changed course for strategic reasons. The defendants did not even await the opinion of the Medical Panel in the Magistrates’ Court proceedings before changing course and seeking a referral in the present case. They used the process of the Court effectively to circumvent the Practice Note, one of the objects of which is to avoid a situation where a party prepares for hearing and then the matter has to be adjourned because of a referral.
12 Reliance is placed upon various authorities as to this. In particular, reference is made to the ruling of his Honour Judge Saccardo in Monteiro v Tiago Enterprises Pty Ltd [2012] VCC 362, and to paragraph 3 of that ruling. Reference is also made to the decision of his Honour Judge Misso in Cardona v Bacchus Marsh Mega Fresh Pty Ltd [2011] VCC 1483. As in Cardona, in the present case the questions could have been the subject of notification at a much earlier time and well before the plaintiff’s solicitors committed themselves to the preparation of his case, which was to be conducted on 2 June 2017. In the present case, no intention to refer questions to a Medical Panel was manifested at the contested adjournment hearing on 29 May 2017 and that was only four days before the hearing date, which had been in place for a considerable period. It would erode public confidence if a party can run a proceeding up to a very short time before the door to the Court and then seek to prevent the Court from determining the issues. At least when the adjournment application was being heard on 29 May, the defendant should have foreshadowed that there was going to be an application to refer questions to a Panel. Reference is also made to the decision of his Honour Judge O’Neill in Briggs v Victorian WorkCover Authority [2016] VCC 204.
13 In the present case, there has been a large amount of time and effort spent preparing the case for trial, and it is listed on 2 November next. Any referral of questions to a Medical Panel at this stage would, by necessity, cause the adjournment of the trial date (this proposition was not disputed by Mr Hooper, who in fact agreed with it). If the case is adjourned for the purposes of a referral to a Medical Panel, it would be well into 2018 before it could be dealt with by the Court. As in Briggs, the plaintiff in the present case suffers from a significant psychiatric condition. He is very unwell. The defendants’ practitioners, being experienced, would be well aware of the importance of a trial date and particularly to a vulnerable plaintiff. That is critical in the present case.
14 Reliance is also placed upon s274(5) of the Act. Matters of credit will almost certainly be relevant and these are factual matters better determined by a Court.
15 The relevant Practice Note of the Court, as at the date in question, required notice of referral to the Medical Panel to be within 30 days after the date of the order setting down the case or 150 days before the hearing date, whichever is later. The hearing date of 2 June 2017 was fixed by an order of 25 January 2017. It is admitted that the Practice Note is not a code, but what occurred supports the argument of abuse of process. The relevant date is the original date upon which the matter was fixed for hearing. Otherwise, the time restraints in relation to referral of medical questions would need to be reset every time a case could not be heard on the specified hearing date, whether that be because of adjournment or of not being reached. The original hearing date is the appropriate date. It is conceded that, even if there is non-compliance with the Practice Note, a party is not inevitably shut out from referring a matter to a Medical Panel, but the Practice Note supports the plaintiff’s argument. What is set out in the legislation is a bare minimum in order to achieve compliance. The Practice Notes were designed to ensure that certain abuses, such as a very late request for referral, could be avoided and certainty in relation to hearing dates obtained.
16 In relation to the argument concerning s274(5) of the Act, reference is made to the decision in United Doormakers (Vic) Pty Ltd v Amendola (Court of Appeal, 16 November 2012). Essentially, the ruling in that case was that a Court is in a much better position to resolve factual issues, particularly those relating to credit, than is a Medical Panel. The plaintiff in the present case has a history of illicit drug use. There seems to be no doubt but that there will be a vigorous challenge in relation to his credit. This should be done by way of the adversarial process.
The submissions on behalf of the defendants
17 The submissions of Mr Hooper on behalf of the defendants could be summarised as follows.
18 The wording of s274(1)(b)(i) and (ii) deals with the question of timing. A party is required to notify the Court of any application for referral. Such notification must take place either no later than 14 days prior to the date fixed for hearing or another time determined by the Court. In the present case, it is conceded that the Court has determined a different time by way of Practice Notes. The relevant Practice Note states that, where a proceeding is set down for hearing by an order dated 8 May 2017 or later, the relevant time limit is 30 days after the date of that order. The Judicial Registrar’s order was made on 29 May 2017. The defendants made the relevant application on 28 June, which was the 30th day.
19 In the present case, the matter had also been set down for hearing by an order prior to 8 May 2017. That sets a different time limit, namely 30 days after the date of the setting down order or at least 150 days prior to the hearing.
20 Once the Judicial Registrar made an order, paragraph (a) of the Practice Note became enlivened. The Practice Note does not say that the only relevant date is the first setting down date. If the contrary was true, enormous difficulties would be created. The date fixed for hearing includes an adjourned date. The argument on behalf of the plaintiff is that the 30 day window only operates in relation to the initial hearing date, regardless of what happens subsequently. Once it is accepted that the application for referral was made within time, and bearing in mind the importance given by the statutory scheme to the determination of medical questions by panels of medical experts, the plaintiff must establish that what has occurred is either an abuse of process or that there exist factual issues better determined by the Court. Neither such ground has been made out.
21 Essentially, any delay that has occurred since the issuing of the serious injury application in January 2017 has been largely caused by the plaintiff. It was the plaintiff who sought that the issues before the Magistrates’ Court be referred to a Medical Panel. The plaintiff then failed to attend a number of appointments. As was found by the Judicial Registrar, delay may not have arisen but for the plaintiff.
22 The defendants have complied with the timelines. It is not an abuse of process by the defendants that has resulted in the vacation of the trial date. At all times, the defendants have complied with the time limits set by the Court. The defendants sought the adjournment before the Judicial Registrar so that the findings of the Panel in the Magistrates’ Court proceeding in relation to capacity for employment were known. The defendants had applied for an adjournment of the hearing date some five weeks before that date. The fact that the application was not listed for hearing until 29 May is beyond the control of the defendants. They have since given good notice in relation to the application to the Medical Panel. It was determined by the defendants that there should be a referral to the Panel before the opinion in relation to the Magistrates’ Court proceeding was received. That was not received until 11 September 2017, by which date the defendants would have been out of time. In order to cover their position, the defendants applied within time. There was no obligation to say to the Judicial Registrar that such a course was being considered.
23 It is repeated that the basic cause of the length of the delay has been the plaintiff’s failure to attend appointments with the Medical Panel. The referral to the Panel is likely to be beneficial in that it will narrow the issues. It is likely to resolve the question of loss of earning capacity one way or the other. Essentially, the defendants have wished to use the same type of appropriate dispute resolution mechanism as was used by the plaintiff in the Magistrates’ Court.
The reply on behalf of the plaintiff
24 If, at the time that the matter was before the Judicial Registrar, the defendants had an intention to seek referral to a Medical Panel, they would have been out of time. Only by reason of obtaining an adjournment on other grounds could they conceivably fall within the timelines of the Practice Note – a proposition which is contested in any event. The consideration of the right to judicial review in relation to the Magistrates’ Court proceeding is entirely separate. The fact that the plaintiff is considering his position in that proceeding has nothing to do with what is now before the Court.
25 The proposition that it would now be efficient to refer the matter to a Medical Panel is disputed. There is a hearing date on 2 November next. Senior and junior counsel have been briefed. It is not credible that issues in dispute will be determined more quickly by way of referral to a Medical Panel, which, in any event, has 60 days in which to make a determination from the date of receipt of the referral. That, in turn, would have to be prepared. There is then a problem of listing the matter before the Panel. Given the intervention of Christmas, it is almost impossible to think of a situation whereby a judicial decision would take longer than the return of a Medical Panel opinion, which, in any event, might require further judicial consideration.
Ruling
26 I am of the opinion that the defendants are entitled to refer appropriate questions to a Medical Panel. There has been no argument before me as to whether the proposed questions have been properly formulated and as to whether they comply with the legislative requirements. Should there be any dispute as to this, I shall hear argument in that regard.
27 I have come to the conclusion that referral to a Medical Panel is appropriate for the following reasons. They are not set out in order of importance or significance.
28 I say at the outset that it is a misconception to think that I am, in some way, sitting in appeal on the ruling of the Judicial Registrar on 29 May last. I appreciate that Ms Gold made it clear that I am not so doing. Nevertheless, there was some discussion as to authorities in relation to the proposition that proceedings in relation to entitlement to statutory benefits are quite separate from Serious Injury applications and specifically if there has been a Medical Panel determination – see McVey v GJ & LJ Smith Pty Ltd & Ors [2014] VSCA 293. The bottom line is that, having heard arguments, the Judicial Registrar determined that the hearing date of 2 June 2017 should be vacated and the hearing adjourned until 2 November 2017. The question then becomes one of whether the adjourned hearing date becomes the “date fixed for hearing” for the purposes of the Act and the Practice Note. If it does not, and if the “date fixed for hearing” refers only to the first or original date so fixed, the defendants are clearly not complying with the Practice Note and any argument based upon abuse of process would be considerably enhanced.
29 The next point that I would make is this. Section 274(1)(b)(ii) refers to notification as follows:
“… no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court …”.
30 I accept the argument that the time constraints set out in the Practice Notes represent “another time determined by the Court”. However, I am not of the view that the time limits set out in the Practice Notes, which, I might say, seem to me to be sensible and constraints which should be applied in most cases, represent the be-all and end-all of the situation. It seems to me that some discretion still resides in the Court to determine “another time”. There will be situations which occur where the strict application of the time limits set out in a Practice Note is not appropriate.
31 I am also not of the view that “the date fixed for hearing of the proceedings”, as referred in s274(1)(b)(ii), is confined to what could be described as the original hearing date when a matter was first fixed for hearing. Matters are adjourned out of the list for a variety of reasons. Let us assume that, in a matter where there has been no referral to a Medical Panel, a plaintiff successfully obtains the vacating of a hearing date and the fixing of a new hearing date, the ground being that such plaintiff is to undergo major surgery in respect of the injury in question. Does this mean that the defendant is then precluded from referring the matter to a Medical Panel, because no such referral had previously been sought and the time limits set out in the Practice Note prevent such referral? In my opinion, it would not. This would tend to defeat the whole purpose of the operation of Medical Panels and their role in determining medical questions.
32 The next issue is, should a referral should be ordered in the present case? As is evident, I am of the view that it should. The responsibility for the delay in this matter ultimately being fixed for hearing rests with the plaintiff. It was the plaintiff’s decision in the Magistrates’ Court proceedings to refer questions to a Medical Panel. There was then a lengthy delay in the Panel being able to provide answers because of the plaintiff’s repeated failure to keep appointments. The resultant delay was obviously an important factor in the decision of the Judicial Registrar that the hearing date of 2 June 2017 be vacated and that the matter be refixed on 2 November next. The defendants then gave notice of their intention to refer questions to the Panel in the present case. For reasons which appear to be the fault of nobody, it then took some time for the application currently before me to be heard. I appreciate the argument that the plaintiff has a psychiatric condition and that further delay is to his detriment. However, the principal cause of delay has been his referral in the Magistrates’ Court proceedings, his failure to attend appointments and the ultimate ruling of the Judicial Registrar. Further, as argued before the Judicial Registrar, the plaintiff has been considering his situation in relation to a possible judicial review of the answers in the Magistrates’ Court proceedings. That situation continues.
33 I am not persuaded by arguments that the referral would constitute an abuse of process for the purpose of s274(3) of the Act. This is not a situation where an application for referral has been made at a very late stage prior to the scheduled hearing, as was the situation in Cardona. The hearing date of 2 November 2017 was fixed by the Judicial Registrar on 29 May 2017. On 28 June 2017, the Notice of Request in relation to the referral and a copy of the proposed questions were served. In short, this is not a situation where documents have been served almost at the last minute and an attempt made to have the hearing adjourned for the purposes of such last-minute referral. I am not of the view that what has occurred constitutes an abuse of process.
34 On the basis of the material before me, I am also not satisfied that s274(5) is applicable. I am not of the view that the formation of an opinion by a Panel on a medical question will depend substantially on the resolution of factual issues which are more appropriately determined by the Court. It may or may not be that the case will involve an attack on credit. I appreciate that the plaintiff may have had a problem with drugs, but that is something which seems to me to be well within the capacity of a properly constituted Panel to consider. In short, I am not satisfied that it has been made out that the formation of an opinion by a Medical Panel would depend substantially upon the resolution of factual issues more appropriately determined by the Court.
35 I find in favour of the defendants in relation to the arguments before me. However, there was no debate as to whether the individual proposed questions are proper. Attention was focussed on the capacity to refer rather than to the contents of the referral. Having found that appropriate questions can be referred to a Panel, I shall hear any argument that is required in relation to whether the proposed questions are proper questions for the purposes of the operation of the Act.
36 I shall hear the parties in this regard and as to any orders, including ancillary orders, that are required.
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