HW Greenham and Sons Pty Ltd v Bruns
[2016] VSC 669
•21 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 01231
| HW GREENHAM & SONS PTY LTD & ANOR (in accordance with the attached Schedule) | Plaintiffs |
| v | |
| SHANE ANDREW BRUNS & ORS | Defendants |
(in accordance with the attached Schedule)
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 October 2016 |
DATE OF JUDGMENT: | 21 November 2016 |
CASE MAY BE CITED AS: | HW Greenham & Sons Pty Ltd & Anor v Bruns & Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 669 |
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ADMINISTRATIVE LAW – Application to quash decisions imposing conditions upon the referral of medical questions to Convenor of Medical Panels – Primary judge imposed conditions at the behest of plaintiffs – Relief refused on discretionary grounds – Workplace Injury Rehabilitation and Compensation Act 2013 ss 274, 303, 304 – Supreme Court (General Civil Procedure) Rules 2015 O 56.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M Fleming QC with Mr M Clarke | Hall & Wilcox |
| For the First Defendant | Mr P Gray QC with Mr E Makowski | Williams Winter |
| For the Second Defendant | Mr D Masel SC with Ms D Costaras | Moray & Agnew |
For the Third Defendant | No Appearance |
HIS HONOUR:
Introduction
On 7 March 2016 Carmody J, at the request of the plaintiffs, referred medical questions to a medical panel pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). The application for referral was opposed by Mr Bruns. His Honour excluded from the material to be forwarded to the Convenor a medical panel’s certificate and opinion dated 23 November 2015 in respect of Mr Bruns which arose out of proceedings in the Magistrates’ Court of Victoria. On 7 March 2016, Carmody J wrote to the Convenor requesting that ‘the medical practitioners involved in the medical panel certificate and reasons dated the 23/11/15 in respect of Shane Bruns are not involved in this referral’.[1]
[1]Affidavit of Markus Saltups affirmed 5 April 2016, “MS-23”, Letter from Carmody J to Dr P Lowthian, Convenor of Medical Panels.
The plaintiffs do not seek to quash Carmody J’s referral of medical questions pursuant to s 274(1) of the Act. However, they contend that Carmody J fell into jurisdictional error by excluding the 23 November 2015 certificate and opinion from the referral.[2] They also contend that he fell into jurisdictional error by requesting that the practitioners involved in the 23 November 2015 certificate and opinion not be involved in any new panel convened as a consequence of the referral.[3] The plaintiffs seek orders in the nature of certiorari directed to both these decisions.[4]
[2]Originating Motion dated 5 April 2016, [12].
[3]Ibid [13]; Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T44 LL22-23.
[4]Originating Motion dated 5 April 2016, [1]-[2].
Relief in the nature of certiorari is discretionary. The considerations which are relevant to the exercise of that discretion include the conduct of the applicant and the utility of the relief which is sought.[5] Relief may be refused if an applicant has acquiesced in the making of the orders which are the subject of the application for certiorari,[6] or does not come to court with clean hands.[7] Relief may also be refused if the applicant has in fact suffered no injustice because statutory law compels a particular outcome.[8]
[5]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [17] (Nettle JA).
[6]TA v Thompson (2013) 46 VR 10, [83] (Beach JA).
[7]SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294, [80] (McHugh J).
[8]Ibid.
I have declined to grant the plaintiffs the relief they seek. The plaintiffs did not simply acquiesce in the making of the decisions which they now contend should be quashed. Rather, they positively submitted to Carmody J that the referral of questions to the Convenor of medical panels should be upon the conditions that:
(i) The certificate of opinion and reasons dated 23 November 2015 should be excluded from the material referred to the Convenor; and
(ii) That the Court should write to the Convenor with a request that the composition of the new panel exclude the practitioners who were members of the earlier panel.[9]
[9]Affidavit of Carmel Marie Therese Genovese sworn 24 May 2016, [7]-[11], “CMG-03”, Typed Transcript of Proceeding on 9 February 2016, 3.
There is no real prejudice to the plaintiffs flowing from the denial of the relief they seek. Notwithstanding the fact that the opinion and reasons of the previous panel were not included in the material referred to the Convenor, the new panel has the right to obtain that material pursuant to s 303(1) of the Act. Further, the submissions advanced on behalf of the Convenor, who took an active part in the proceedings, support a conclusion that Carmody J’s written request of 7 March 2016 simply reflected the practice of the Convenor to exclude from a medical panel any practitioner whose participation may give rise to an apprehension of bias.
The conduct of the plaintiffs in the proceedings before Carmody J
On 9 February 2016, Carmody J heard an opposed application by the plaintiffs for the referral of certain medical questions to a medical panel pursuant to s 274(1) and (2) of the Act. The primary ground of Mr Bruns’ opposition relied upon s 274(5) which provides:
A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.[10]
[10]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 274(5).
In opposing the referral of medical questions to a medical panel, Mr Bruns’ counsel relied upon adverse findings contained in the previous medical panel’s opinion. He submitted:
The Medical Panel found comprehensively against the Plaintiff [Mr Bruns], found there was no neck injury at all.[11]
The reasons of the previous medical panel did contain findings which were adverse to Mr Bruns. The findings include the following:
The Panel considered the nature, severity and chronicity of the claimant’s psychiatric injury and considered that it was not in the past and is not currently an impediment to a return to work in his pre-injury duties or undertaking suitable employment options.[12]
[11]Affidavit of Carmel Marie Therese Genovese sworn 24 May 2016, “CMG-03”, Typed Transcript of Proceeding on 9 February 2016, 3.
[12]Affidavit of Markus Saltups affirmed 5 April 2016, “MS-10”, Medical Panel certificate and reasons for opinion dated 23 November 2015, 11.
On 9 February 2016, counsel for the plaintiffs sought to neutralise Mr Bruns’ reliance upon the previous panel’s reasons by submitting that any referral pursuant to s 274(1) should be subject to two conditions:
(iii) That any newly convened panel should not be told of the earlier panel’s decision; and
(iv)That correspondence should be forwarded to the Convenor stating that none of the members of the previous panel should be included in a newly convened panel.[13]
[13]Affidavit of Carmel Marie Therese Genovese sworn 24 May 2016, [7]-[11], “CMG-03”, Typed Transcript of Proceeding on 9 February 2016, 3.
Prior to the hearing on 9 February 2016, the plaintiffs’ solicitors filed written submissions dated 3 February 2016. Those submissions included the following:
Previous Opinion of Medical Panel in the Statutory Benefits Jurisdiction
12.On 23 November 2015 the Medical Panel provided an opinion in the statutory benefits jurisdiction. In that opinion, the Medical Panel found that the plaintiff had ‘no inability arising from an injury such that he was not able to return to his pre injury employment’.
13.Capacity is not static and can change over time. In the circumstances of this case, there is no evidence that there has been any deterioration in the plaintiff’s cervical spine or psychiatric condition since 23 November 2015. Accordingly, the Defendant contends that the Medical Panel ought to consider providing an opinion which is in line with the 26 November 2015 Opinion.[14]
[14]Further Affidavit of Markus Saltups affirmed 8 June 2016, “MS-31”, ‘First Defendant’s Submissions’ dated 3 February 2016, [12]-[13] (emphasis altered).
There is no transcript of the proceeding before Carmody J on 9 February 2016. Nevertheless, it was an agreed matter before me that the notes of the hearing which were made by Mr Bruns’ solicitor, Ms Genovese, are an accurate record of what occurred on that day.[15] Relevantly, those notes record that the plaintiffs’ counsel submitted that paragraphs 12 and 13 of the submissions set out above should be deleted from the material to be forwarded to the Convenor. He submitted:
[15]See Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T8 LL11-28.
it’s inappropriate that this be included in any of the documents, 12 and 13 are not appropriate if the Medical Panel hears the matter.
Carmody J replied:
These carry the risk of potentially a Medical Panel being poisoned.
The plaintiffs’ counsel responded:
The basis of our Submissions should be [sic] a new Medical Panel that should not be referred to the previous.[16]
[16]See Affidavit of Carmel Marie Therese Genovese sworn 24 May 2016, “CMG-03”, Typed Transcript of Proceeding on 9 February 2016, 3.
Carmody J inquired as to how this could be achieved and how a differently constituted panel could be ensured. In response, the plaintiffs’ counsel submitted that the panel should not be told of the earlier decision and that there should be correspondence addressed to the Convenor which would state that none of those members are to be involved.[17]
[17]Ibid.
Subsequently, the plaintiffs’ counsel submitted:
The authorities do stand for what they say, there is no attempt by the Defendant for the Medical Panel to be aware of the past decision. They hear it de novo.[18]
[18]Ibid 7-8.
Ms Genovese’s notes of the hearing on 9 February 2016 record Carmody J delivering ‘judgment’ in the following terms:
The Defendant by Notice of Request makes application for referral to the Medical Panel on a number of questions (1 to 7). The Plaintiff conceded that they were medical questions. The real opposition made to the application is in 274(5).
A Medical Panel in this case would be in a position, given the Schedule of Documents, able to answer each of the questions. The real issue is whether the Court would be in a better position.
I have read the Affidavits of the Plaintiff and whilst extensive in content in my view it does not take away from the fact that the Medical Panel would be in a position.
I will Order that the matter be referred to the Medical Panel, but any reference whatsoever to the previous Medical Panel Decision is to be quarantined from the Medical Panel. The Convenor needs to be advised of the previous panel and exclude them. Any reference to the previous Medical Panel are [sic] to be excised.[19]
[19]Ibid 8-9.
After Carmody J delivered the judgment set out above, counsel for the plaintiffs made an application for costs. Carmody J ordered that costs should be reserved until final adjudication. The proceeding was adjourned for mention on 7 March 2016 at 9.30am.[20]
[20]Ibid 9.
Subsequent to the hearing on 9 February 2016, the plaintiffs’ solicitors advised Mr Bruns’ solicitor that they considered that it was appropriate that the newly convened panel be informed of the previous panel’s opinion. Accordingly, the plaintiffs’ solicitors included the previous panel’s opinion amongst the documents which they proposed should be included in the material to be referred to the Convenor.
There is no transcript of the hearing before Carmody J on the morning of 7 March 2016. However, it is an agreed matter that the transcribed notes taken by Mr Bruns’ solicitor, Mr Krstevski, are an accurate record of what took place on 7 March 2016. Mr Krstevski’s notes record the following exchange on the morning of 7 March 2016:
Mr Makowski (counsel for Mr Bruns):
There has been a previous ruling by Judge Carmody that the matter be referred to the Medical Panel which should be constituted differently according to the convenor and be unaware of any prior opinion or reasons of the previous Medical Panel. The Defendant has amended their submissions, although they are refusing to remove Item 72 of the Schedule titled ‘Medical Panel Certificate of Opinion and Reasons’ dated 23 November 2015. This item should not be included and His Honour has already ruled that it should not be included.Carmody J:
I am of the same position. The prior opinion of the Medical Panel must be quarantined.
Ms Manova (counsel for the plaintiffs):
As you are aware, I was not present at the previous Hearing. The Defendant’s submissions should not refer to the previous opinion, but the previous opinion should be included. There is correspondence between parties to this effect. The decision of the Medical Panel is a ‘medical opinion’ on a relevant issue based on a medical assessment of the Plaintiff and should be included.Carmody J:
I acknowledge that you did not attend the previous Hearing and have made submissions on incorrect instructions, however this argument has already been ventilated.Ms Manova:
Then I will not push the issue.Carmody J:
I do not want the panel to be influenced. The new panel should be fresh and there should be no reference to the previous opinion.Ruling: Item 72 referring to the Medical Panel’s Certificate of Opinion and Reasons must be deleted from the document.[21]
[21]Affidavit of Jesse Krstevski sworn 24 May 2016, “JK-02”, Transcribed notes of hearing on 7 March 2016 before Carmody J, 1.
Mr Fleming QC, who appeared with Mr Clarke on behalf of the plaintiffs, acknowledged that there had been a change of position by his clients between the hearing on 9 February 2016 and 7 March 2016.[22] Nevertheless, he submitted that Carmody J had acted contrary to the express provisions of the Act in ‘quarantining’ the report of the previous medical panel from the newly convened panel and by requesting that the Convenor exclude from the new panel any members of the previous panel.[23]
[22]See Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T18 LL16-21.
[23]Ibid T23 L20 – T24 L2; ‘Plaintiffs’ Submissions’ dated 7 June 2016, [14], [28].
The plaintiffs did not merely acquiesce in Carmody J imposing conditions upon the referral pursuant to s 274(1) of the Act. Rather, the plaintiffs positively submitted to Carmody J that he should impose those conditions. This was in response to a submission advanced on behalf of Mr Bruns that the Court should refrain from referring medical questions on the grounds set out in s 274(5). A key aspect of Mr Bruns’ reliance upon s 274(5) was the adverse findings which had been made in respect of him in the previous medical panel’s reasons.
The plaintiffs do not seek to set aside Carmody J’s order referring questions to the medical panel. Rather, they wish to retain the benefit of that order whilst overturning the conditions upon which it was made. The unfairness of this course is self-evident. Carmody J did no more than accede to the submissions advanced on behalf of the plaintiffs in response to Mr Bruns’ counsel’s reliance upon s 274(5). Had these submissions not been advanced on behalf of the plaintiffs there is a real possibility that Carmody J would not have made any orders pursuant to s 274(1) of the Act. Thus, the plaintiffs seek to retain the benefit of those orders whilst excising the very basis upon which those orders were made. The conduct of the plaintiffs weighs heavily against the Court exercising its discretion to grant the plaintiffs the relief they seek.
During the course of the proceeding on 9 February 2016, the plaintiffs’ counsel tendered a copy of the previous medical panel’s opinion. This occurred in the context of the plaintiffs’ submission that this opinion should not be forwarded to the Convenor.
Mr Fleming submitted that Carmody J fell into jurisdictional error by failing to include in the material to be forwarded to the Convenor the previous panel’s opinion.[24] He submitted that s 304(b) of the Act required Carmody J to refer the previous opinion to the Convenor.[25] Section 304(b) provides:
A person or body referring a medical question to a Medical Panel must give the Convenor –
…
(b)copies of all documents relating to the medical question in the possession of that person or body.[26]
[24]‘Plaintiffs’ Submissions’ dated 7 June 2016, [14], [20].
[25]Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T29 LL15-19.
[26]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 304(b).
Mr Fleming submitted that the previous medical panel’s opinion was a document ‘relating to the medical question in the possession of’ the County Court.[27] He submitted, relying upon the mandatory terms of s 304(b), that Carmody J was required to refer the previous opinion to the Convenor.[28]
[27]‘Plaintiffs’ Submissions’ dated 7 June 2016, [19].
[28]Ibid.
One only has to pose the question of whether the previous panel’s opinion was ‘in the possession of’ the County Court to reveal the potentially unfair outcome which could be visited upon Mr Bruns. On 9 February 2016, the plaintiffs’ counsel tendered the previous opinion in aid of his submission that that opinion should not be forwarded to the Convenor. However, if as a result of the tender the opinion is ‘in the possession of’ the County Court for the purposes of s 304(b), this may produce the result that Carmody J would be required to forward the opinion to the Convenor. The conduct of the plaintiffs is a striking illustration of approbation and reprobation. On the one hand, the plaintiffs tendered the previous opinion in aid of the submission that that opinion should not be forwarded to the Convenor. Now, in aid of their claim for certiorari, the plaintiffs submit that the opinion was in the possession of the County Court, thereby enlivening the mandatory terms of s 304(b). Once again, the conduct of the plaintiffs weighs heavily against the relief they seek.
Questions of utility are relevant to whether the relief sought by the plaintiffs should be granted. Section 303(1) provides:
A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.[29]
[29]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 303(1).
In the current proceedings, all parties accepted that s 303(1) confers upon a medical panel the right to call for production of a report of a previous medical panel.[30] Mr Masel SC, who appeared with Ms Costaras on behalf of the Convenor, informed the Court that a practice exists whereby cross-referencing takes place in respect of medical panel reports:
[30]Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T65 L30 – T66 L1, T100 LL2-4, T148 LL18-28.
MR MASEL:Yes, the convenor in fact has a practice of cross referencing referrals to previous referrals. So that there's no doubt that the panel would be aware very quickly that there had been a previous opinion and referral. Now that's important - - -
HIS HONOUR: And would be provided with the opinion?
MR MASEL:It could do a number of things. It could ask the parties to provide a copy of the opinion. Or, and I don't have express instructions on this, I'm going from my reading of the Act, it could inform itself of the opinion but in accordance with the convenor's directions it would inform the parties that it had done so and invite opportunity to comment.
HIS HONOUR: So which is the section which talks about the panel informing itself as it sees fit? Is that s 303?
MR MASEL: Yes, 303, Your Honour.
HIS HONOUR: Just let me have a look at that. All right, well s 303(1) is a very broad provision.
MR MASEL:Very broad. And would, in our submission, authorise that not only the panel to know of the earlier opinion but to actually obtain it.[31]
[31]Ibid T65 L12 – T66 L1.
Thus, in the present case, irrespective of whether the report of the previous medical panel was provided to the Convenor pursuant to s 304(b), the Convenor would become aware of its existence. Further, a new panel would be entitled to request that the report be provided to it pursuant to s 303(1).
The effect of s 303(1) is that, in a practical sense, the plaintiffs suffer no prejudice as a consequence of Carmody J’s decision not to include the opinion of the previous panel in the material forwarded to the Convenor. The Convenor will become aware of the previous medical panel report notwithstanding that it has not been forwarded as part of the material. Any panel convened will have the right to request that it be provided with a copy of that report. Mr Gray QC, who appeared with Mr Makowski for Mr Bruns, submitted that the exercise of this right was subject to Mr Bruns being afforded an opportunity to make submissions to the panel as to why the panel should not have recourse to the previous report.[32] I accept this submission. The obligation to afford procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations subsists subject only to the clear manifestation of a contrary statutory intention.[33] Section 303(1) does not manifest an intention to oust the requirement to afford procedural fairness to an individual who may be affected by the outcome of the medical panel process. Subject to Mr Bruns being afforded an opportunity to advance submissions as to why the new panel should not have regard to the previous panel’s opinion, s 303(1) confers upon the panel the right to obtain the previous panel’s opinion.
[32]Ibid T96 LL21-29.
[33]Kioa v West (1985) 159 CLR 550, 584 (Mason J).
Carmody J’s letter to the Convenor of 7 March 2016
The plaintiffs characterise Carmody J’s letter of 7 March 2016 as being a decision ‘purporting to direct the Convenor of Medical Panels to convene a Panel that did not include the members of the Medical Panel who gave the prior Opinion and Reasons’.[34] There is a significant question as to whether the letter of 7 March 2016 is amenable to relief in the nature of certiorari. Certiorari will only lie in respect of a decision which determines questions affecting rights.[35] An order in the nature of certiorari is available only in respect of an exercise or purported exercise of power that has an apparent legal effect.[36] Carmody J’s request to the Convenor by letter dated 7 March 2016 did not have any statutory force. The Convenor was not legally required to act in accordance with the request. The correspondence did not constitute an order of the Court. It was a request. I therefore conclude that Carmody J’s letter of 7 March 2016 is not amenable to relief in the nature of certiorari.
[34]Originating Motion dated 5 April 2016, [2].
[35]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159.
[36]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [25].
If I am wrong in reaching the conclusion set out above I would, in any event, decline to grant certiorari on discretionary grounds. First, and foremost, in forwarding the letter of 7 March 2016, Carmody J was acting entirely in accordance with a submission advanced on behalf of the plaintiffs on 9 February 2016. On 7 March 2016 the plaintiffs submitted that the previous medical opinion should be included in the material referred to the Convenor. However, counsel for the plaintiffs submitted:
We also do not oppose a written request to the Convenor that the Medical Panel be constituted differently.[37]
[37]Affidavit of Jesse Krstevski sworn 24 May 2016, “JK-02”, Transcribed notes of hearing on 7 March 2016 before Carmody J, 2.
The submission advanced on 7 March 2016 must be considered in light of the fact that on 9 February 2016 the plaintiffs had positively submitted that there should be a written request to the Convenor that the medical panel be constituted differently. Thus, it is not simply a case of the plaintiffs seeking to quash an order in circumstances where it acquiesced in the making of the order. Rather, the plaintiffs seek to quash an order which was made at its behest. Once again, the plaintiffs’ conduct weighs heavily against the relief that it seeks.
Further, the submissions advanced by Mr Masel SC support a finding that Carmody J’s letter of 7 March 2016 did no more than pre-empt that which would have occurred in practice. Mr Masel submitted that the Convenor is mindful to avoid any apprehension of bias on the part of a panel.[38] In the circumstances of the present case where a medical panel has previously expressed an unfavourable opinion in respect of Mr Bruns, the Convenor would be most unlikely to allocate to a new panel, a member of the previous panel. Mr Masel conceded that such an outcome would be unlikely in the following exchange:
[38]Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T66 LL16-23.
HIS HONOUR: So does it boil down to this, Mr Masel, that your submission is that what's occurred here, putting to one side the unfortunate background, is that Judge Carmody has purported to impermissibly fetter the express statutory powers conferred upon (a) the convenor in terms of the composition of the panel and (b) the panel itself as to what it may or may not have.
MR MASEL: Yes, Your Honour.
HIS HONOUR: Yes.
MR MASEL:Yes, Your Honour, and the first point may be a distinction without great practical difference in the present case because while it's a matter for the convenor and not for me as counsel, and I don't have instructions what would happen, but I can certainly say that there would be a very strong case for the constitution of a differently constituted medical panel on this occasion in order to avoid the apprehension of bias both either by reason or the prior determination of what very simply are medical issues, or by reason of an apprehension of giving undue weight to one's own opinion over the opinion of others. There would be a compelling case, a very strong case for the constitution of a different panel.[39]
[39]Ibid T67 L11 – T68 L1.
Mr Masel referred to the ‘Convenor’s Directions as to the Arrangement of Business of Medical Panels (Workplace Injury Rehabilitation and Compensation Act 2013) 2015’ (‘the Directions’).[40] The Convenor is empowered to make such directions under s 303(6) of the Act. Section 303 of the Act provides:
[40]Affidavit of Philip John Rowell sworn 31 May 2016, “PJR-1”, Convenor’s Directions as to the Arrangement of Business of Medical Panels (Workplace Injury Rehabilitation and Compensation Act 2013) 2015.
303 Procedures and powers
…
(3) The Minister may, for the purposes of –
(a) ensuring procedural fairness in the procedures of the Medical Panels; and
(b)facilitating the proper administration of the Medical Panels –
make guidelines as to the procedures of Medical Panels.
(4)The Minister must consult with the Attorney-General before making any guidelines under this section.
…
(6)The Convenor may give directions as to the arrangement of the business of the Medical Panels but must not give directions inconsistent with any guidelines made by the Minister.[41]
[41]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 303.
The purpose of the Directions is outlined in cls 4 and 5 of that document, which provide:
Purpose and objectives
4.The purpose of these directions is to assist in the timely and efficient provision of opinions by Medical Panels for referrals under the Act by the implementation of directions as to the arrangement of the business of Medical Panels.
5.For this purpose, the directions aim to ensure that referrals are in accordance with law, that Medical Panel opinions are responsive to the questions referred and that the process affords the parties natural justice and procedural fairness.[42]
[42]Affidavit of Philip John Rowell sworn 31 May 2016, “PJR-1”, Convenor’s Directions as to the Arrangement of Business of Medical Panels (Workplace Injury Rehabilitation and Compensation Act 2013) 2015, 2.
The Convenor is empowered under s 305 of the Act to convene a medical panel. That section provides:
305 Convenor to convene Medical Panel
If a medical question is referred to the Convenor under section 304, subject to section 306(1), the Convenor must, as expeditiously as possible-
(a) convene a Medical Panel; and
(b)give the Medical Panel the documents received by the Convenor with the reference.[43]
[43]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 305.
The Directions provide guidance to the Convenor in its exercise of this power. Clause 21 of the Directions provide:
On receipt of a valid referral, the Convenor will convene a Medical Panel as expeditiously as possible having regard to considerations including, but not limited to, the availability and suitability of members or consultants and appropriate support resources in the Office of the Convenor. The Convenor will convene a Panel that he/she considers appropriate in specialty and number for the consideration of the nature of the medical issues raised by the referral and if there is more than one member, he/she will nominate one as a presiding member.[44]
[44]Affidavit of Philip John Rowell sworn 31 May 2016, “PJR-1”, Convenor’s Directions as to the Arrangement of Business of Medical Panels (Workplace Injury Rehabilitation and Compensation Act 2013) 2015, 5.
Clause 22 of the Directions provides further guidance on managing conflicts of interest in the appointment of a medical panel. This clause provides:
Managing Conflict of Interest
22. The Convenor will comply with the ‘Medical Panels Conflict of Interest Policy’ and the ‘Procedures for Managing Conflict of Interest in the Appointment of Medical Panels’ which include the following:
…
·A procedure for the replacement of a panellist or consultant if the Convenor or the Deputy Convenor agree there is a reasonably perceived conflict of interest or a reasonable apprehension of bias regarding a particular panellist or consultant, when a complaint of a perception of a conflict of interest or an apprehension of bias is received from a party to a particular referral and for the appropriate notification of the parties.[45]
[45]Ibid 5-6.
Mr Masel then referred the Court to the ‘Conflict of Interest Policy’ (‘the Policy’),[46] and the ‘Procedures for Managing Conflict of Interest in the Appointment of Medical Panels’ document (‘the Conflict of Interest Procedures’),[47] with which the Convenor must comply under cl 22 of the Directions.[48] Clauses 4, 5 and 11 of the Policy are particularly relevant to the present case. Clause 4 of the Policy provides:
4. The Convenor and Deputy Convenors of Medical Panels have a responsibility to have a policy and procedure in place with the purpose of ensuring that there is no potential conflict of interest or reasonable apprehension of bias for any eligible panellist or consultant in relation to their appointment to a Medical Panel.[49]
[46]Affidavit of Philip John Rowell sworn 31 May 2016, “PJR-3”, Conflict of Interest Policy.
[47]Ibid Procedures for Managing Conflict of Interest in the Appointment of Medical Panels.
[48]Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T84 LL8-16.
[49]Affidavit of Philip John Rowell sworn 31 May 2016, “PJR-3”, Conflict of Interest Policy, 2.
Clause 5 of the Policy provides:
5. Once a Medical Panel has given an opinion or determination, the Supreme Court of Victoria is the arbiter as to whether the Panel or a member of the Panel or any consultant to the Panel actually had a conflict of interest, or whether there was a reasonable apprehension of bias.[50]
[50]Ibid.
Clause 11 of the Policy provides:
11. All conflict of interest issues are to be managed transparently and the effective management of these issues requires the participation of the Convenor of Medical Panels, Deputy Convenors of Medical Panels, the staff of the Office of the Convenor of Medical Panels, eligible panellists and consultants.
·The Convenor and Deputy Convenors are responsible for the implementation of this ‘Conflict of Interest Policy’ and the ‘Procedures for Managing Conflict of Interest in the Appointment of Medical Panels’ in relation to referrals received pursuant to Victorian workers compensation legislation and the Wrongs Act 1958.
·Where the Convenor is appointed to a Medical Panel, the responsibility for implementation of this policy and procedures for managing conflict of interest will vest in a Deputy Convenor.
·Where a Deputy Convenor is appointed to a Medical Panel the responsibility for implementation of this policy and procedures for managing conflict of interest will vest in the Convenor or other Deputy Convenor.
·All eligible panellists are required to complete a ‘Declaration of Private Interests’ document annually as part of their Governor-in-Council appointment to be a member on the list of medical practitioners eligible to be appointed to a Medical Panel and have a continuing obligation to disclose any new interests which may affect their eligibility to be so appointed. This document will also be held as part of the ‘Register of Interests’ for that eligible panellist.
·All eligible panellists and consultants are responsible for following the ‘Procedures for Managing Conflict of Interest in the Appointment of Medical Panels’ and, in particular, for informing the Convenor, Deputy Convenors or a Registrar in the Office of the Convenor of Medical Panels, of a conflict of interest in relation to each referral in which the eligible panellist or consultant receives notice of appointment to a Medical Panel.
·The Registry Manager of the Office of the Convenor of Medical Panels is responsible for the implementation and compliance with the procedures for managing conflict of interest in the appointment of all Medical Panels and for maintaining a ‘Register of Interests’.
·The Registrars of the Office of the Convenor of Medical Panels are responsible for the everyday application and implementation of the procedures for managing conflict of interest in the appointment of Medical Panels.
·All other staff of the Office of the Convenor of Medical Panels are responsible for being aware of this ‘Conflict of Interest Policy’ and the ‘Procedures for Managing Conflict of Interest in the Appointment of Medical Panels’.[51]
[51]Ibid 4.
Mr Masel also referred the Court to cls 2, 3 and 5 of the Conflict of Interest Procedures. Clause 2 relevantly provides:
2. These procedures apply to the Convenor of Medical Panels, Deputy Convenors of Medical Panels, the staff of the Office of the Convenor of Medical Panels, medical practitioners eligible to be appointed to a Medical Panel (eligible panellists) as well as the medical practitioners and allied health professionals appointed as consultants to a Medical Panel (consultants).[52]
[52]Affidavit of Philip John Rowell sworn 31 May 2016, “PJR-3”, Procedures for Managing Conflict of Interest in the Appointment of Medical Panels, 2.
Clause 3 of the Conflict of Interest Procedures relevantly provides:
3. An actual, reasonably perceived or potential conflict of interest of an eligible panellist or consultant can be identified as follows:
…
·A complaint of a perception of a conflict of interest or an apprehension of bias is received from a party to a particular referral before the Panel has given its opinion or determination in answer to a medical question.[53]
[53]Ibid.
Clause 5 of the Conflict of Interest Procedures provides:
5. When an eligible panellist or consultant receives notice of an appointment to a Medical Panel for a particular referral, he/she will examine the referral documents with a view to ascertaining whether a potential conflict of interest exists.[54]
[54]Ibid 3.
After referring the Court to the documents discussed above, Mr Masel conceded that as a matter of practicality, a Convenor would likely act in the manner requested by Carmody J in his letter of 7 March 2016, namely by refraining from appointing to the new medical panel any members who had sat on the previous panel:
HIS HONOUR: Well it sounds, Mr Masel, that the upshot of your submission is that Judge Carmody got it right in a practical sense. It sounds as if the bottom line is that absent Judge Carmody's intervention, there would be little or no prospect consistent with these policies for the composition of the newly appointed panel to have replicated the previous panel.
MR MASEL:I can agree with Your Honour. As a matter of process, that would be the convenor's call after hearing from the parties. And I can't say that I don't wish to be heard to say that the convenor would have a closed mind on any matter, but as a matter of practicality His Honour got it right. There would be a very strong case of an apprehension of bias, I say, put before either on the basis of a pre-decision or on the basis of giving undue weight to the panel's own opinion over other opinions that were put before the new panel.[55]
[55]Transcript of Proceedings, HW Greenham & Sons Pty Ltd v Bruns (Supreme Court of Victoria, S CI 2016 01231, McDonald J, 10 October 2016) T87 LL4-20.
Thus, in a practical sense, there is no prejudice to the plaintiffs arising from the correspondence forwarded by Carmody J to the Convenor.
Conclusion
The plaintiffs’ application will be dismissed. It is appropriate that the plaintiffs pay the first defendant’s costs on a standard basis, to be taxed in default of agreement. Mr Masel submitted that the Convenor did not seek any order for costs in his favour.[56] No order for costs will be made as between the plaintiffs and the Convenor.
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[56]Ibid T132 LL8-12.
SCHEDULE OF PARTIES
| No. S CI 2016 01231 | |
| BETWEEN: | |
| HW GREENHAM & SONS PTY LTD | First Plaintiff |
| XCHANGING INTEGRATED SERVICES PTY LTD | Second Plaintiff |
| - and - | |
| SHANE ANDREW BRUNS | First Defendant |
| DR PETER LOWTHIAN, CONVENOR, MEDICAL PANELS | Second Defendant |
| COUNTY COURT OF VICTORIA | Third Defendant |
2
9
0