James v Coles Group Limited & Ors
[2023] VSC 252
•16 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01974
| MANDIE SHARON JAMES | Plaintiff |
| v | |
| COLES GROUP LIMITED (and others according to the schedule of parties) | Defendants |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 April 2023 |
DATE OF JUDGMENT: | 16 May 2023 |
CASE MAY BE CITED AS: | James v Coles Group Limited & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 252 |
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ADMINISTRATIVE LAW – Judicial Review – Appeal from orders of Associate Judge – Medical Panel opinion as to termination of entitlements – Panel not provided with relevant medical records due to clerical error – Parties accepted that Panel opinion should be quashed – Whether medical questions should be remitted to same or differently constituted panel – Whether error in discretion to remit to same Panel - Whether appearance of unfairness in remitting questions to same Panel.
COSTS – Appeal from orders of Associate Judge – Whether costs discretion miscarried in making no order as to costs between plaintiff and first defendant – Where plaintiff succeeded in obtaining relief – No error of principle.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota | Maurice Blackburn Lawyers |
| For the First Defendant | Mr R Kumar | Wisewould Mahony |
HER HONOUR:
This is an appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) from orders of Associate Justice Daly dated 13 December 2022.
Background
The plaintiff commenced a proceeding on 27 May 2022 seeking judicial review of a medical panel opinion (the opinion). The opinion was obtained in a dispute about the termination of her WorkCover entitlements. The plaintiff was employed as a meat department manager for the first defendant at the Coles supermarket in Sunbury. She alleges various injuries arising out of two falls that occurred on 21 March 2019 and further injuries over the course of her employment. The first defendant accepted the two claims.
By notices dated 8 January 2020 and 1 June 2021, the first defendant terminated the plaintiff’s entitlement to weekly payments and medical and like expenses on the claims. The plaintiff disputed the termination notices and at conciliation medical questions were referred to a medical panel (the Panel) constituted under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Panel members are the second, third and fourth defendants.
On 8 February 2022, after the referral to the Panel and shortly before the scheduled examination, the plaintiff’s solicitors sent two emails to the Convenor of Medical Panels (the fifth defendant), enclosing five sets of medical records (totalling over 600 pages).
The plaintiff attended a medical examination by the Panel on 22 February 2023.
On 31 March 2022, the Panel issued a certificate of opinion and reasons for their opinion (the opinion and reasons). The opinion was that the claimed injuries had resolved and the plaintiff was no longer suffering any injury or condition relevant to the claimed injuries.
When the opinion and reasons were issued the Schedule of Attachments made no reference to the five sets of clinical records. The Convenor confirmed that the Panel did not consider the five sets of medical records sent on 8 February 2022 as they had been received by the Convenor but not been forwarded to the Panel due to a clerical error.
The plaintiff alleged that by not having the medical records available to them, the Panel failed to accord the plaintiff natural justice.
The plaintiff and first defendant filed a joint memorandum dated 20 November 2022 in this proceeding accepting that the Panel’s opinion should be quashed. The joint memorandum stated the basis for quashing the opinion was that:
The Plaintiff was not accorded with procedural fairness, in that she was effectively prevented from putting forward material (here, the various sets of clinical records), in support of her position that she continued to suffer from compensable injuries, which contributed to an incapacity for work.[1]
[1]‘Joint Memorandum of the Plaintiff and First Defendant’ dated 30 November 2023 in S ECI 2022 01974, [21].
The remaining defendants had taken a position in accordance with the Hardiman principle.[2] The trial of the proceeding and the relief sought by the plaintiff was therefore not opposed and came on for hearing as an undefended trial before the Associate Judge exercising her authority under r 77.01(2)(f) of the Rules.
[2]R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
On 5 December 2022 on the basis of the joint memorandum, the Associate Judge ordered that the Panel’s opinion be quashed. The parties consented to this order but could not agree on whether the medical questions should be remitted to the same or a different medical panel, nor could they agree on the appropriate costs orders. The Associate Judge made orders timetabling the provision of written submissions and, on receipt of those submissions, dealt with the outstanding issues on the papers.
Before the Associate Judge, the plaintiff submitted that the appearance of unfairness arising from the Panel’s expression of concluded views in the absence of voluminous medical records required remittal to a differently constituted medical panel. In relation to costs the plaintiff submitted that, having brought the proceeding to protect her interest in obtaining medical panel opinion according to law, and having succeeded, she should be indemnified by the first defendant for her costs on the basis of the usual ‘rule’ that costs follow the event.
The first defendant submitted that there was no particular feature of the Panel opinion or the expression of its reasons that would give rise to an appearance of unfairness, therefore it was appropriate to remit the matter to the original panel. On costs, the first defendant acknowledged the usual rule regarding costs but submitted that neither the denial of natural justice nor the manner in which the judicial review was conducted warranted an order that the first defendant pay the plaintiff’s costs. The first defendant submitted that in the circumstances it would not be just or consistent with the Civil Procedure Act 2010 (Vic) (the Civil Procedure Act) obligations to order that the first defendant pay the plaintiff’s costs.
On 13 December 2022 the Associate Judge made orders remitting the medical questions to the original panel that provided the opinion of 31 March 2022, but giving the Convenor of Medical Panels a discretion to appoint a new panel if it became impractical or would cause undue delay to remit the medical questions to the original panel (the remittal order). Her Honour made no order as to the costs of the originating motion (the costs order). Other Matters recorded:
A.There is no particular feature of the current case which would render it unfair for the medical questions to be referred to the original panel. Given that the denial of procedural fairness to the plaintiff was not caused by any fault on the part of the original panel, there is no reason to believe the original panel will not consider the new material with an open mind. However, these orders will permit [the Convenor] to reconstitute the medical panel if it is impractical to reconvene the original panel.
B. I accept the submissions of the first defendant to the effect that any fault for the denial of procedural fairness to the plaintiff lies with her solicitors, not the original panel or the first defendant. The first defendant responded to the plaintiff’s claims in this proceeding promptly, and it would not be fair for the first defendant to bear the costs of this proceeding.
The plaintiff has appealed both the remittal order and the costs order. The appeal is by way of re-hearing with the plaintiff being required to demonstrate legal error. Both the remittal order and the costs order are discretionary decisions. Therefore the following principle applies in an appeal against the exercise of discretion:
It is not enough that judges composing the appellate court consider that, if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if [s]he allows extraneous or irrelevant matters to guide or affect him [her], if [s]he mistakes the facts, if [s]he does not take into account some material consideration, then his [her] determination should be reviewed and the appellate court may exercise its own discretion in substitution …if it has the materials for doing so.[3]
[3]House v R (1936) 55 CLR 499, 504-5.
There was no dispute as to the applicable principles.
The costs order requires leave to appeal. Plaintiff’s counsel acknowledged in the hearing that leave to appeal orders on the question of costs was required under s 17A(2) of the Supreme Court Act 1986 (Vic). This was in response to the first defendant’s written submission that leave to appeal is required where the order in question is a costs order.[4] The plaintiff had not filed an application for leave prior to the hearing and was out of time to do so. On 21 April 2023, the plaintiff sought leave to file an application for leave, an application for extension of time to apply for leave, and an affidavit in support. The plaintiff subsequently filed these documents to regularise this aspect of the appeal. The affidavit disclosed that the delay was caused by an inadvertent oversight of the plaintiff’s solicitors, not the plaintiff herself.
[4]First Defendant, ‘Submissions of the First Defendant in respect to Plaintiff’s Appeal’, Submissions in Sharon James Mandie v Coles Group Limited & Ors S ECI 2022 01974, 14 April 2023 [11].
The plaintiff alleges legal error in remitting the matter back to the same panel, and also that the Associate Judge erred in exercising the discretion to make no order as to costs.
Submissions on appeal
The parties agreed that the lack of procedural fairness was not attributable to the Panel members.
The plaintiff’s submission as to error in the remittal order began from the starting point that the ‘overwhelmingly usual order ‘[5] is for remittal to a differently constituted medical panel. The purpose of such a practice is said to be grounded in the need to have due regard for the appearance of unfairness.[6] The plaintiff submitted that the appearance of unfairness in remittal to a previous decision-maker was particularly acute where a procedural fairness error has been identified. The Associate Judge is said to have disregarded principles regarding the appearance of unfairness when considering the appropriate remedy and impermissibly focused only on the risk of actual unfairness. This error was said to be demonstrated by the phrase in Other Matters: ‘there is no reason to consider that the original panel will not consider the new material with an open mind’.
[5]Plaintiff, ‘Plaintiff’s Submissions on Appeal from Order of Associate Justice Daly made on 13 December 2022’, Submissions in Sharon James Mandie v Coles Group Limited & Ors S ECI 2022 01974, 14 April 2023, [5].
[6]Citing Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 42 (‘Northern NSW’); Barro Group Pty Ltd v Brimbank City Council (No 2) [2012] VSC 199, [9].
The plaintiff submitted that guarding against the perception of unfairness is fundamental to preserving the integrity of medical panel decision-making within the worker’s compensation system. The plaintiff submitted that because the Panel had expressed a concluded view and issued a binding opinion on the questions asked of it, a remittal to the original panel would give rise to an appearance of unfairness and an apprehension that the Panel might not approach the additional material with an open mind. The plaintiff submitted that an appearance of unfairness arises because the Panel has already expressed conclusive findings on the basis of ‘extremely limited materials’.
The plaintiff also submitted that by the Panel rendering an opinion based upon the limited material before it (71 pages of attachments), and by not considering 600 pages of clinical records, the denial of procedural fairness was a significant deprivation of the plaintiff’s right to be heard and that this was relevant to there being an appearance of unfairness by returning the matter to the original panel.
The first defendant submitted that there was no universal rule to be adopted in remitting medical questions.[7] It submitted that the following considerations are relevant:
(a) that an original decision-maker might ‘patch up’ their initial decision[8] that has been set aside; and
(b) the unnecessary delay and additional cost of recommencing a referral to a different panel.[9]
[7]Citing Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718, [54] (‘Toyota’).
[8]Ibid [59].
[9]Vegco Pty Ltd v Gibbons (2008) 30 VAR 1 (‘Vegco’) 20 [33].
Although the additional materials are voluminous, the first defendant submitted that there was no particular feature or aspect within them that was significant and that had necessarily been overlooked. The first defendant submitted that the Associate Judge’s statement in Other Matters was directed at both actual unfairness and the appearance of unfairness and was responsive to matters raised in the written submissions provided to her Honour. In the first defendant’s submission, there was no feature of unfairness identified and there were potential savings in time and cost by a remittal to the original panel.
In relation to the merit of an appeal against the costs order, the plaintiff submitted that the discretion, while broad, has a ‘usual course’ in civil litigation that costs follow the event. This reflects the principle that a successful party is entitled to costs, subject to ‘certain limited exceptions’.[10] The plaintiff relied on the comments of McHugh J in Oshlack v Richmond River Council (‘Oshlack’).[11]
[10]Quoting McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72, 97 [67] ('Oshlack’).
[11]Ibid.
Those identified exceptions relate primarily to misconduct relating to the litigation. The plaintiff submitted that any fault by the plaintiff’s solicitors in sending the medical records after the referral had been made, or any of the other conduct criticised by the first defendant, did not give rise to misconduct that would disentitle a successful party from obtaining a costs order reflecting their success in the judicial review. In this way the plaintiff submitted that the costs discretion miscarried.
The first defendant submitted before the Associate Judge that the oversight arose because the medical records, although in the possession of the plaintiff’s solicitors at the time of the referral by the conciliator, were only sent to the Convenor of Medical Panels subsequently, and the first defendant was not copied in to this communication with the Convenor as required by the Convenor’s Directions. Accordingly the first defendant submitted that the explanation for the Panel failing to consider the material lay principally in the actions of the plaintiff’s solicitors. The first defendant submitted that there is no principle that misconduct is required to displace any guiding rule in the exercise of the costs discretion, rather the issue is one of fairness in all the circumstances. This includes a consideration of responsibility for incurring legal costs.
The plaintiff also sought leave to rely on new evidence in relation to the costs order, namely, an affidavit of the plaintiff’s solicitors dated 19 April 2023. This affidavit describes the common practice taken by the plaintiff’s solicitors in relation to the provision of medical records to medical panels in particular when provided subsequent to the referral. The first defendant opposed the plaintiff’s attempt to rely on new evidence.
In relation to the plaintiff’s application for leave to appeal on the question of costs, the first defendant submitted that considerations of the length of delay in filing the application for leave and the reasons for doing so, as well as the fact that the plaintiff’s appeal lacks merit, favours the application for leave being dismissed.
In the event leave is granted, the first defendant submitted that the normal course – that costs follow the event – should not be made in this case. The first defendant submitted this is because the conduct of the plaintiff’s solicitors contributed to the error (that is, the medical records not being provided to the Panel), notwithstanding the Convenor’s clerical error. The first defendant did not characterise this as misconduct but submitted that the outcome of the judicial review is not one where the successful party ought be indemnified by the first defendant. The first defendant submitted that it could not be described as the unsuccessful party when it did not contribute to the occurrence of the procedural error nor the maintenance of the judicial review proceeding on identification of the error. In the first defendant’s submission, for it to bear a costs responsibility in the circumstances of this particular case would cause an unfairness between the parties.
Analysis
For the reasons that follow I am not persuaded that the Associate Judge’s discretion miscarried either in making the remittal order or the costs order, and so this appeal must be dismissed.
The remittal order
As J Forrest J said, there is no universal rule as to the course to be adopted when quashing and remitting a medical panel opinion. There are three options: remit to the original medical panel, remit to a different medical panel or remit to the Convenor of Medical Panels to decide (with or without a recommendation as to the constitution of the panel to consider question).[12]
[12]Toyota (n 7) [54].
There is no starting presumption that matters should be remitted to a differently constituted medical panel. As Kyrou J said in Vegco Pty Ltd v Gibbons:
For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same primary decision-maker or where it would be impracticable for the same primary decision-maker to redetermine the matter.[13]
[13]Vegco (n 10) 10-11.
Absent persuasion of good reason on established principles to remit to a different medical panel, remittal to the same panel is appropriate. Frequently, denial of natural justice will provide those good reasons whether because of the decision-maker’s conduct, the manner in which the reasons for decision are expressed or other circumstances surrounding the hearing. Particular matters may give rise to a perception of unfairness or pre-judgment. Whether this is so is a question of degree and of impression in any particular case.
I accept that the appearance of fairness is integral to the process of obtaining medical panel opinions. I also accept that frequently a failure to accord natural justice by a medical panel will give rise to a perception of unfairness such that a discretion is exercised to remit to a differently constituted medical panel. Both are sound principles.
The plaintiff relied on Northern NSW FM v Australian Broadcasting Tribunal[14] to emphasise the importance of the appearance of unfairness. In that case, the parties to a judicial review proceeding had agreed that an original decision of a Tribunal member be set aside for error, and sought a direction that the original member not conduct the rehearing. The trial judge acceded to this, noting:
The trenchancy of the Tribunal’s conclusions on the applicant’s statutory qualifications make doubtful how it could have found the applicant to be suitable for a licence at all. It is difficult to see how a reasonably perceptive outsider would fail to doubt that the writer of those words could be fully objective in a reconsideration of the same matters.[15]
[14]Northern NSW (n 6).
[15]Ibid 42, quoting the trial judge in the same proceeding.
On appeal the majority said:
If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated.[16]
[16]Ibid.
The Full Court dismissed the appeal noting that discretion of the trial judge was exercised in the context of fully and firmly expressed view adverse to the company.
However, in that case, unlike this one, the discretion was to be exercised in the context of a usual practice that re-hearings go before a differently constituted tribunal and it was for a party seeking the same tribunal to show that a re-hearing by a differently constituted tribunal was inconvenient or unsuitable. In the context of medical panels, there is no such usual practice.
I do not accept the plaintiff’s argument that remittal to the same panel would be exceptional or unusual. That submission was made and rejected in Toyota Motor Corporation Australia Ltd v Bendrups.[17] Nor do I accept that simply because a medical panel has expressed a concluded view on the information provided, this is itself sufficient to raise an apprehension of unfairness. The effect of such a submission would mean that at least in all matters where a procedural fairness ground succeeds, remittal to a differently constituted panel would not be a matter of persuasion. In my view the submission overlooks the need to identify salient features to persuade a court it would be impractical for the primary decision-maker to re-determine the medical questions.
[17]Toyota (n 7) [57]-[58].
Unlike other administrative decision makers, a medical panel is not an adjudicative body determining matters by consideration of competing evidence.[18] It expresses a professional opinion based upon various clinical sources. Although the opinion is binding on a Court by operation of statute, the view expressed is the opinion actually formed by the practitioners who comprise the medical panel on the information provided to them. There is no reason in principle to apprehend that a medical professional, appraised of new and relevant information, would not bring an open mind to questions posed for their consideration because relevant material was inadvertently overlooked.
[18]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 499.
As the cases make clear, there needs to be some feature of the conduct or the reasons that makes it unfair or gives the appearance of unfairness, whether to a bystander or to an unsuccessful party, to remit it back to the same panel. Before the Associate Judge the plaintiff’s submissions did not identify any particular features.[19]
[19]Paragraph 9 only identified the expression of concluded views and the deprivation of voluminous medical records.
Although the plaintiff submitted before me that there was an element of prejudgment apparent in the Panel’s reasons, I do not consider that this is so on a fair reading. The submission was that there was a ‘disconnect’ between the information provided to the Panel and the Panel’s recorded observations. The plaintiff said that she was in constant but varied pain, which was ‘7-8/10’ at worst, and on the day of the examination was similar to her pain on any regular occasion. The Panel recorded its observation that the plaintiff could sit without discomfort through one and a half hours without apparent distress or pain expression. By this the Panel was said to be challenging the complaints of pain by relying on observations that did not accord with the description of symptoms.
In my view, read in context there was no suggestion that the Panel took the plaintiff to be exaggerating her description of pain and no suggestion that she was exhibiting pain behaviours during the examination. Any disconnect is equally consistent with stoicism. The Panel made no express credit finding about the plaintiff, either adverse or favourable. In circumstances where the issue was resolved on the question of whether work continued to contribute to present medical conditions, rather than the existence of conditions, there was nothing to suggest that the Panel had formed an adverse view of the plaintiff’s credit.
The absence of medical records, even voluminous records, does not in itself suggest any prejudgment or unfairness. Indeed in considering the lumbar spine condition, which had a history going back many years, the Panel noted ‘it was not provided with any treating practitioner files to make its own assessment of her prior lumbar spine condition’.[20] While this certainly indicates that the absence of prior medical records did in fact prevent the plaintiff putting forward material in support of her position, it also indicates the prospect that the Panel wished to make its own informed view of the prior lumbar spine condition, and, if provided with relevant material, it would do so. In a number of places the Panel referred to the onset and longevity of symptoms both before and subsequent to the work injuries as being relevant to the medical questions it was to answer. In my view, rather than expressing views adverse to the plaintiff, whether on credit or otherwise, the Panel’s reasons identified that they were limited by the absence of relevant medical records. The reasons demonstrate features of an open-minded decision-maker.
[20]Plaintiff, ‘Affidavit of Jake Patrick Tyler’ sworn on date in Sharon James Mandie v Coles Group Limited & Ors S ECI 2022 01974, exhibit JT-2, 13.
I also do not accept that the volume of medical material is necessarily proportionate to the significance of a potential denial of natural justice. The records were forwarded without any submission as to which parts were critical or which features relevant, and the plaintiff did not make any submissions about the relevance of the material to the medical questions. It may be that the relevance of the records lies in demonstrating the duration and severity of symptoms recorded. If this is the case, I expect the same panel will take those factors into account upon consideration of the material. I do not accept that the volume of material not put before this Panel has any bearing on the question of whether the questions should be remitted to a differently constituted medical panel.
A plain reading of the Panel reasons, which in my view are balanced and objective, supports the view that the same panel would consider additional material with an open mind. Indeed the reasons themselves expressly recognised that such material, if available, would assist the Panel’s own assessment of the prior lumbar condition. It follows that this in turn would inform the assessment of compensable condition.
Finally, I do not accept that a fair reading of Other Matters in the orders demonstrates that the Associate Judge impermissibly confined her consideration to actual bias or unfairness. Her Honour correctly turned her mind to the question of whether the same decision-maker could bring an open mind to the additional material. The passive voice in which the issue was expressed – ‘there is no reason to believe’ – clearly encompasses an objective consideration not just of whether the Panel will bring an open mind but also whether in the circumstances they could be seen to do so. In light of the plaintiff’s submissions that focused on the appearance of unfairness and did not make any submission of actual unfairness, there is no reason at all to read the recording of brief reasons in Other Matters as having fundamentally misunderstood the plaintiff’s submissions.
The appropriate course to be adopted is also informed by the requirements of the Civil Procedure Act for the Court to give effect to, and further, the overarching obligations to facilitate the just, efficient, timely and cost-effective resolutions of the real issues in dispute. This includes having regard to the importance of a just determination, efficient use of judicial and administrative resources, and dealing with a proceeding in a manner proportional to the issues in dispute.[21] It is relevant, as the first defendant submitted, that referral to the same panel might have the effect of saving time and costs given the examination of the plaintiff has already occurred and a further examination might not be required.
[21]Civil Procedure Act 2010 (Vic) ss 7, 9.
Accordingly, I am not satisfied that the Associate Judge’s exercise of discretion miscarried in making the remittal order.
Costs
The parties correctly accepted that the discretion as to costs is broad.[22]
[22]Supreme Court Act 1986 (Vic) s 24.
The following factors are relevant in considering the appropriate costs order to be made:
(a) a successful litigant is generally entitled to an award of costs;[23]
(b) the principle that a successful litigant is generally entitled to an award of costs in her favour is grounded in the concept of achieving fairness as between the parties, and is not intended to punish an unsuccessful party;[24] and
(c) there are very few, if any, exceptions to the usual order as to costs outside of disentitling conduct.[25]
[23]Oshlack (n 11) 96 [66].
[24]Ibid 97 [67].
[25]Ibid 98 [70].
Many individual factors may guide the discretion, but most important is the result of the litigation. The rationale underpinning that usual rule is that costs are to be awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party.[26] McHugh J in Oshlack said:
If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.[27]
[26]Ibid 97 [67] (McHugh J), 75 [1] (Brennan CJ).
[27]Ibid 97 [67].
In the context of this statement of principle the plaintiff relies on observations as to exceptions to the usual order or costs being awarded to a successful party. The traditional exceptions identified in the judgment are focused on disentitling conduct of a successful party and McHugh J described there being few, if any, other exceptions. It was not necessary to set out any other exceptions because the question to be determined was whether the public interest nature of the litigation was one such exception.
The underlying dispute is one between the plaintiff and her employer regarding her entitlement to WorkCover payments. The binding nature of the Panel’s opinion would be determinative of that dispute. The judicial review proceeding was necessary to engage the supervisory jurisdiction of the Court to review the lawfulness of the Panel’s opinion. The parties to the dispute in which a medical panel is engaged are necessary parties to the proceeding. Generally the party who has obtained a medical opinion in his or her favour will be an active contradictor to the proceeding. On occasion that party might not be an active contradictor and simply put the party seeking judicial review to their proof. Smith v Lloyd(No 2) (‘Smith’)[28] was one such instance where the defendants other than the Panel did not enter the fray but neither consented nor opposed the grant of relief and sought to be heard only on the question of costs. Lasry J noted the artificiality of separating the judicial review from the underlying dispute, which in that case was a damages claim in the County Court.[29] The underlying dispute is clearly a relevant factor in achieving fairness between the parties. The dispute between the plaintiff and first defendant did not involve any underlying court proceeding.
[28]Smith v Lloyd (No 2) [2007] VSC 436.
[29]Ibid [18].
In Ripper v Kotzman & Ors (‘Ripper’),[30] a similar case dealing with the quashing of a medical panel opinion, Kyrou J found that it was just and reasonable to order the employer to pay the plaintiff’s costs, with the employer and the medical panel to bear their own costs, because:
[30][2008] VSC 448.
(a) the plaintiff had no choice but to bring the proceedings to quash the medical panel’s opinion, as otherwise, the opinion would be final and conclusive;
(b) this proceeding had an intimate connection with the plaintiff’s claim, and the plaintiff’s relationship with the employer; and
(c) there was nothing in the plaintiff’s conduct that would warrant the plaintiff being deprived of a costs order.[31]
[31]Ibid [23].
The plaintiff submitted that the similarities between Ripper (in which Kyrou J followed the approach of Lasry J in Smith) and this case should have resulted in consistent exercise of the discretion. However, Ripper can be distinguished in two important ways. First, the employer in Ripper took a ‘passive role’ – attending the hearing but making no submissions on legal error. Secondly, the error was one where the medical panel wrongly relied on a plaintiff’s history that the plaintiff had not provided to the Panel. No question arose as to the plaintiff’s conduct contributing to the Panel’s error.
I accept the plaintiff’s submission that she did not commit any conduct that would be a reason to disentitle her to costs. Her solicitors’ conduct does not amount to misconduct in the litigation. Although the solicitors omitted to send the medical records at an earlier time and omitted to inform the first defendant when they did send them, this does not amount to conduct that would deprive the plaintiff of her costs.
However, those matters are not determinative. The usual rule does not fetter the broad discretion, nor is there any rule that, absent disentitling conduct, a successful party is entitled to their costs.
The discretion is to be exercised to bring about fairness between the parties. Although the plaintiff is a successful party and would have an expectation of recovering costs, it could not necessarily be said that the first defendant was an unsuccessful party against which those costs should be recovered. The first defendant did not contribute to the Panel’s inadvertent breach of procedural fairness nor did it act as an active or passive contradictor on the substance of the judicial review. The first defendant actively joined with the plaintiff in seeking to have the opinion quashed – itself a distinguishing feature in the present case. Nor was the error due to any conduct of the Panel that might entitle the plaintiff or first defendant to seek costs from the Panel.[32] The proceeding was in substance an undefended matter and the underlying dispute was not one in which legal costs would be recoverable between the parties.
[32]Psychologists Registration Board of Victoria v Herald and Weekly Times Ltd [2000] VSCA 118.
The Associate Judge considered fairness as between the plaintiff and the first defendant. Her Honour did so in the particular circumstances that gave rise to the need for the proceeding and the manner in which the first defendant conducted the proceeding. Accepting that there are circumstances in which the usual rule may be departed from, and that reasonable minds may differ as to whether the particular circumstances warrant a departure, in my opinion no legal error arises in the exercise of the discretion in this case.
Finally, I also refuse the application to admit fresh evidence. Costs orders are made by reference to what is just and reasonable between the parties. Although fault was attributed to the plaintiff’s solicitors, the plaintiff made no submission to the Associate Judge or this Court that the plaintiff’s solicitors’ conduct amounted to misconduct. The matters contained in the affidavit went to the question of lack of misconduct on the part of the plaintiff’s solicitors. The contents of the affidavit would not in any event compel some different exercise of discretion. Accordingly, there is no basis to admit the fresh evidence.
In light of the conclusions I have reached it would not be appropriate to grant leave to extend time within which to seek leave to appeal. The appeal in respect of the costs order will be dismissed as incompetent.[33]
[33]In accordance with Rule 77.06.2(4).
The appeal is otherwise dismissed.
I will hear from the parties as to the form of orders.
SCHEDULE OF PARTIES
S ECI 2022 01974
| MANDIE SHARON JAMES | Plaintiff |
| -v- | |
| COLES GROUP LIMITED | First Defendant |
| DR PETER JASEK | Second Defendant |
| DR ANDREW BENDRUPS | Third Defendant |
| ASSOCIATE PROFESSOR MIRON GOLDWASSER | Fourth Defendant |
| ASSOCIATE PROFESSOR PETER GIBBONS (AS THE CONVENOR OF THE MEDICAL PANELS) | Fifth Defendant |
0
10
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