Ko v Hall
[2020] VSCA 224
•4 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0038
| LEE MEE KO (by her litigation guardian Leli Ko) | Applicant |
| v | |
| DR CAROLINE HALL and ORS (according to the Schedule attached) | Respondents |
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| JUDGES: | MAXWELL P, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 June 2020 |
| DATE OF JUDGMENT: | 4 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 224 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel gave decision outside time prescribed by s 28LZG(3) of Wrongs Act 1958 – Whether giving of decision outside time prescribed makes decision invalid – Whether parties can agree to extension of time after time has expired – Mikhman v Royal Victorian Aero Club [2012] VSC 42 considered – Wrongs Act 1958, s 28LZG(3).
STATUTORY INTERPRETATION – Legislative intention – Statutory purpose – Validity of act done in breach of statutory provision – Construction of statutory provision in its context – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied – Wrongs Act 1958, pt VBA.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Gorton QC with Mr P A Czarnota | Monaco Solicitors |
| For the First to Third Respondents | No appearance | |
| For the Fourth Respondent | Mr S J Moloney | Moray & Agnew |
MAXWELL P
BEACH JA:
In 2017, Lee Mee Ko commenced a proceeding in the Trial Division claiming damages for personal injuries from a surgeon, Dr Dean White. In that proceeding, Ms Ko alleges that she suffered injury (both physical and psychological) as a result of the negligence of Dr White.
In order to be able to obtain an award of damages for non-economic loss in her proceeding against Dr White, Ms Ko must satisfy the ‘significant injury’ threshold provisions contained in pt VBA of the Wrongs Act 1958 (the ‘Act’). In her proceeding against Dr White, Ms Ko alleges that her physical injury the subject of that proceeding satisfies the threshold level referred to in pt VBA (being a permanent whole person impairment of more than 5 per cent, as assessed in accordance with the provisions of the Act). Dr White, however, disputes this proposition.
Under the provisions of the Act, the dispute between the parties as to whether Ms Ko’s physical injury satisfies the threshold level in the Act fell to be determined by a medical panel to whom the question was referred in November 2018. The medical panel examined Ms Ko on 8 March 2019. On 20 May 2019, it issued a ‘Certificate of Determination’[1] in which it answered the question referred to it unfavourably to Ms Ko. In terms, the panel’s answer to the question referred to it was:
The panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.
[1]Together with ‘Reasons for Determination’.
On 18 July 2019, Ms Ko commenced a second proceeding in the Trial Division, seeking judicial review of the medical panel’s determination. In that proceeding, Dr White is the fourth defendant, and the medical practitioners who comprised the medical panel are the remaining defendants. The sole ground upon which Ms Ko seeks to impeach the medical panel’s determination is that the panel committed an error of law on the face of the record, and/or jurisdictional error, when the panel failed to comply with, and made its determination outside the period specified in, s 28LZG(3)(a)-(b) of the Act.
On 23 April 2020, pursuant to s 17B(2) of the Supreme Court Act 1986, Daly AsJ ordered that Ms Ko’s application for judicial review be reserved for the consideration of this Court. For reasons which follow, we would dismiss the application.
Relevant background
The question of whether or not Ms Ko’s physical injury satisfied the threshold level referred to in pt VBA of the Act was referred to the medical panel in November 2018. Pursuant to s 28LZC, the medical panel was entitled to ask Ms Ko to submit to a medical examination conducted by it. Pursuant to s 28LZE, the medical panel was also entitled to request information from registered health practitioners who had examined Ms Ko.
Section 28LZG(3) then required the medical panel to give its determination or certificate in respect of the medical question referred to it:
(a) within 30 days after the last of the following to occur—
(i)the last date on which the claimant complies with a request under section 28LZC;
(ii)the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or
(b)within such longer period as is agreed by the claimant and the respondent.
Ms Ko complied with the medical panel’s request to examine her in accordance with s 28LZC on 8 March 2019. The medical panel did not make any requests under s 28LZE. Thus, the medical panel was initially required to give its determination or certificate by 7 April 2019 or ‘within such longer period as is agreed by the claimant [Ms Ko] and the respondent [Dr White]’. On 5 April 2019, the medical panel requested, and Ms Ko and Dr White agreed to, an extension of time until 22 April 2019. The panel, however, did not meet that deadline.
On 16 May 2019,[2] the medical panel requested, and Ms Ko and Dr White agreed to, a further extension of time until 30 May 2019. As we have already said, the medical panel issued its Certificate of Determination on 20 May 2019.
[2]While there were communications between the parties between 5 April and 16 May 2019, it is not necessary for present purposes to describe those communications.
The issues
In their written submissions, the parties[3] identified the issues in dispute between them as giving rise to two questions which required answering:
(1)Is the giving of a medical panel’s determination or certificate within the time limit prescribed by s 28LZG(3) a condition of the jurisdiction of the panel to the giving of the determination or certificate?
(2)Can a consent given by a claimant and respondent, after time has otherwise expired, permit a medical panel to subsequently give its certificate or determination within jurisdiction?
[3]By which we mean Ms Ko and Dr White (the medical panel respondents having adopted a Hardiman position (see R v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13).
Central to the arguments of both Ms Ko and Dr White was an analysis of Kaye J’s decision in Mikhman v Royal Victorian Aero Club.[4] In Mikhman, Kaye J answered a variant of the first question in the affirmative, concluding that the time limit prescribed by paragraph (a) of s 28LZG(3) of the Act was a condition of the jurisdiction of a medical panel to give a determination. The current proceeding was reserved for the consideration of this Court because Dr White contended that Mikhman was wrongly decided and should not be followed. He also contended that, in any event, the agreement given by the parties on 16 May 2019 to an extension of time until 30 May 2019 meant that the medical panel’s certificate of determination issued on 20 May 2019 was within jurisdiction (whatever the correctness of Mikhman).
[4][2012] VSC 42 (‘Mikhman’).
Ms Ko contended to the contrary. In her submission, the decision of Kaye J in Mikhman was correct and should be approved by this Court.[5] With respect to the second question, Ms Ko submitted that the agreement or consent given by the parties on 16 May 2019, after time had expired on 22 April 2019, did not have the effect of making the certificate of determination issued on 20 May 2019 one that was issued within jurisdiction.
[5]We note for completeness that the persuasiveness of the analysis in Mikhman has been doubted by the learned authors of Judicial Review of Administrative Action and Government Liability, 6th ed, Aronson, Groves and Weeks, [6.270], n 173.
On the basis of the parties’ written submissions, it was contended that in order for Ms Ko to succeed in this proceeding, question 1 needed to be answered ‘yes’ and question 2 needed to be answered ‘no’; whereas Dr White would succeed either if question 1 was answered ‘no’, or question 2 was answered ‘yes’. As the oral argument progressed, however, it became apparent that the issues were more interrelated — involving the proper construction and analysis of s 28LZG(3) as a whole, rather than by construing and analysing separately the two paragraphs of which the section is comprised.
Mikhman v Royal Victorian Aero Club
Mikhman was a case that concerned s 28LZG(3)(a). There was no agreement by the claimant and respondent in that case as contemplated by s 28LZG(3)(b). In Mikhman, the relevant determination and certificate was given by the medical panel some 53 days after the claimant complied with the panel’s request to medically examine her pursuant to s 28LZC.[6]
[6]From the reasons in Mikhman, it does not appear that the medical panel in that case made any request under s 28LZE of the Act (cf s 28LZG(3)(a)(ii)).
In his discussion of the consequence of failing to comply with the time limit specified in s 28LZG(3)(a), Kaye J set out the parts of the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority,[7] which had relevant application. Specifically, Kaye J set out the following passage:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.[8]
[7](1998) 194 CLR 355 (‘Project Blue Sky’).
[8]Project Blue Sky (1998) 194 CLR 355, 388–9 [91] (citation omitted). Mikhman [2012] VSC 42, [17].
Kaye J then referred to their Honours’ statement that the classifications of statutory requirements as being ‘directory’ or ‘mandatory’ have outlived their usefulness. More particularly, their Honours said:
[A] court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.[9]
[9]Project Blue Sky (1998) 194 CLR 355, 390–1 [93] (citations omitted). Mikhman [2012] VSC 42, [18].
In concluding that the time prescribed in s 28LZG(3)(a) was a condition of the jurisdiction of a medical panel to give a determination, Kaye J referred to the following matters as being significant:
(1)The use of the word ‘must’, and the repeated use of that word in Divisions 4 and 5 of pt VBA of the Act, in the context of provisions which specify steps which must be taken in respect of a determination by a medical panel, showed that the word ‘must’ had been used in its ‘normal, mandatory sense’.[10]
(2)The intention of the Act was to provide for a speedy resolution of the threshold question of whether a claimant, in a particular case, had suffered a ‘significant injury’ within the meaning of the Act. The purpose of the statute was to ensure that this ‘preliminary step’ not be protracted and that each party be entitled to a prompt and efficient determination of it.[11]
(3)A number of provisions in the Act (in particular, ss 28LO(4), 28LP(3) and 28LW(4)) expressly provide for the consequences of the failure of a party to comply with a specified time limit. Each of those provisions indicated, his Honour said, a statutory intention that the time limits prescribed for each of the steps taken leading to the assessment of impairment by a medical panel must be complied with strictly.[12] As the judge put it:
They are part of a statutory scheme, in which the timetable is intended to be rigorously adhered to, so as to facilitate the expeditious determination of the assessment of impairment of a claimant.[13]
(4)Section 28LZK provides that any act or decision of a medical panel is not invalid ‘by reason only’ of any defect or irregularity in connection with the appointment of a member of the panel. In his Honour’s view, the fact that that section did not preserve the validity of a decision if a panel failed to comply with other mandatory provisions applying to its decision — including s 28LZG(3) — was ‘a further factor which adds weight’ to the construction preferred by his Honour.
(5)In his Honour’s view, the 30 day time period specified in s 28LZG(3)(a) was not unduly onerous. Save in a most unusual case, he said, one would not expect a medical panel to require greater time to deliberate on the materials presented to it.[14] On the other hand, if compliance with the time prescribed in s 28LZG(3)(a) were not a condition for the exercise by the medical panel of its power to make a determination, then the purpose of the Act could be frustrated — the statutory purpose to ensure the expeditious determination of impairment being undermined if panels could lawfully exceed the time prescribed.[15]
[10]Mikhman [2012] VSC 42, [24]–[27].
[11]Ibid [28].
[12]Ibid [29]–[30].
[13]Ibid [30].
[14]Ibid [37].
[15]Ibid [38].
In support of his contention that Mikhman is wrong and should be overruled, Dr White made the following points:
(1)The word ‘must’, when used in a statutory provision, is not always properly to be construed as being mandatory in its operation.
(2)There are cases where it is clear that the breach of a statutory provision containing the term ‘must’ was not intended to produce an invalidity or nullity as a result of such non-compliance.
(3)There are provisions in the Act ‘which were not considered [in Mikhman] which enable a conclusion that invalidity for breach was not drafted in s 28LZG(3) when it was drafted in those provisions’.[16] Put another way, while some of the provisions in the Act[17] contain subsections specifying that a step cannot be taken if it is not taken within time, there is no equivalent subsection in s 28LZG specifying the consequence of any failure by a medical panel to comply with the time limit in s 28LZG(3).
(4)The ability of the claimant and the respondent to agree to a ‘longer period’ as set out in paragraph (b) of s 28LZG(3) makes plain the fact that a medical panel’s jurisdiction does not end at the expiration of the 30-day period specified in paragraph (a) of the section.
(5)The construction favoured by Ms Ko would frustrate the speedy resolution of the significant injury threshold issue, and is thus contrary to the legislative purpose identified by Kaye J in Mikhman.
(6)The presence of the ‘validity’ provision in s 28LZK does not support the construction advanced by Ms Ko. To the contrary, the absence of such a provision in relation to s 28LZG(3) ‘raises the prospect that invalidity for breach of s 28LZG(3)(a) does not arise’.
Counsel for Dr White made further arguments by way of oral submissions, which are mentioned below.
[16]In his written argument, Dr White identifies such provisions as ss 28LO(4) and 28LQ(4). Immediately, it may be observed that, contrary to Dr White’s submission, Kaye J expressly considered s 28LO(4): see Mikhman [2012] VSC 42, [29].
[17]Sections 28LO and 28LQ being examples.
Part VBA of the Act
Before proceeding further, it is necessary to describe briefly the relevant provisions in pt VBA of the Act. Part VBA is divided into seven divisions. Division 1 (ss 28LB–28LD) contains definitions, and provisions concerning the application of pt VBA to various kinds of proceedings.
Division 2 (ss 28LE–28LF) contains the section restricting the recovery of damages for non-economic loss to those cases involving ‘significant injury’, and the section that defines the expression ‘significant injury’.
Division 3 (ss 28LG–28LNA) contains provisions about how impairment is to be assessed. In these sections, there is frequent use of the word ‘must’ (eg, in assessing a degree of impairment under pt VBA, ‘regard must not be had to any psychiatric or psychological injury … arising as a consequence of … a physical injury’).[18] As counsel for Dr White pointed out in oral submissions, however, none of the provisions in this division specify any consequence for failing to comply with the relevant section.
[18]See s 28LJ.
Division 4 (ss 28LO–28LXA), headed ‘Procedure for claim for non-economic loss’ contains provisions dealing with how claims for damages for non-economic loss are made by claimants and responded to by those against whom they are made. Although the word ‘must’ is used many times in this division, only six sections specify a consequence for failure to comply with an obligation imposed using the word ‘must’. Those six sections are all directed at non-compliance by a respondent. Specifically:
·Section 28LO permits a claimant to ask a respondent to waive the requirement for an assessment of the degree of impairment under pt VBA. Subsection (2) requires the respondent to respond in writing to any such request within 60 days after receiving it. Subsection (4) provides:
If the respondent fails to respond within the 60 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
·Section 28LP is another provision requiring a respondent to respond to a request for a waiver of the requirement for an assessment of the degree of impairment. The time limit in s 28LP is 60 days after receiving certain information from the claimant. Subsection (3) relevantly provides:
If the respondent fails to respond within the 60 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
·Section 28LQ is a further provision requiring a respondent to respond to a request for a waiver of the requirement for an assessment of the degree of impairment. The time limit in this section is 14 days after receiving a specified notice from the claimant. Subsection (4) provides:
If the respondent fails to respond within the 14 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
·Section 28LW requires a respondent, on whom a certificate of assessment has been served, to respond in writing to the claimant within 60 days. Subsection (4) provides:
If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.
·Section 28LWA requires a respondent, who has asked for further information from a claimant, to respond again within 60 days after receiving the further information. Subsection (3) provides:
If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.
·Section 28LWB requires a respondent, who disputes responsibility, to give a response under that section within 14 days of receiving a written notice from the claimant. Subsection (4) provides:
If the respondent fails to respond within the 14 days, the respondent is deemed to have accepted the assessment.
Division 5 (ss 28LY to 28LZL), headed ‘Procedure of Medical Panel’ contains provisions dealing with the powers and procedures of medical panels. In this division, the words ‘must’ and ‘may’ are used frequently. Section 28LZ(2) provides:
A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
While Division 5 contains provisions requiring a medical panel to take particular steps or to act in a particular way (see for example s 28LZ(2)), there are no provisions in the Division which provide for the consequences of the medical panel not acting in accordance with the relevant provision. On the other hand, there is one provision (s 28LZA) which requires a respondent to provide certain information and documents to the medical panel. That section contains a subsection (sub-s (4)) which provides that a failure by the respondent to provide the requisite information and documents within 30 days of being requested to do so results in a deemed acceptance by the respondent of a claimant’s certificate of assessment.
Section 28LZG is the critical section. It is headed ‘Determination of Panel’, and contains 10 subsections. Section 28LZG uses the word ‘must’ and the word ‘may’ on multiple occasions. While sub-s (3) is the section that falls to be considered in this case, it is important to observe the context in which it appears. Section 28LZG provides:
(1)A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.
(2)After making the assessment, the Medical Panel must give the claimant and the respondent—
(a)its determination of the medical question in accordance with subsection (4); or
(b) its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or
(c)its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).
(3) The Medical Panel must give the determination or certificate—
(a) within 30 days after the last of the following to occur—
(i)the last date on which the claimant complies with a request under section 28LZC;
(ii)the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or
(b)within such longer period as is agreed by the claimant and the respondent.
(4)If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(5)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.
(6)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing—
(a) certify that it is unable to determine the medical question; and
(b)fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.
(7)The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.
(8)More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.
(9)A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.
(10)If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be significant injury.
Finally (so far as Division 5 is concerned) s 28LZK, headed ‘Validity of acts or decisions’ provides:
An act or decision of a Medical Panel under this Division is not invalid by reason only of any defect or irregularity in or in connection with the appointment of a member.
Division 6 (ss 28LZM), headed ‘Proceedings on Claim’ and Division 7 (ss 28LZO–28LZT), headed ‘General’ contain further provisions dealing with the significant injury question. It is not, however, necessary to describe further the provisions in those divisions.
Resolution of the proceeding
There are two related issues in this case: first, whether s 28LZG(3), properly construed, only permits the parties to agree an extension of the time limit before time has expired, or whether it permits the parties to agree an extension even after time has otherwise expired; and secondly, whether non-compliance with the time limit in the section results in invalidity.
The first issue is resolved by applying fundamental principles of statutory interpretation, which requires reading the text of s 28LZG(3) in its context, paying proper regard to the overall purposes and objects of the Act.[19] The second issue requires a performance of the analysis referred to in Project Blue Sky to determine whether a legislative purpose to invalidate a decision given outside time can be discerned.[20]
[19]See Binsaris v Northern Territory [2020] HCA 22, [54] (Gordon and Edelman JJ).
[20]Project Blue Sky (1998) 194 CLR 355, 388–9 [91].
Commencing with whether the agreement referred to in paragraph (b) of s 28LZG(3) is one that may be entered into after time has otherwise expired, it may be observed that, on occasion, in different statutory contexts,[21] the legislature has stated expressly that a statutory power to extend time ‘may be exercised at any time and/or notwithstanding the fact that time may have already expired’. Ms Ko submitted that the absence of such an express statutory provision in relation to s 28LZG(3) told against there being any power in the parties to agree a longer period for the medical panel to provide its decision once time has already run.
[21]See, for example, s 23A(4) of the Limitation of Actions Act 1958.
We reject that submission. First, construed in context, we see no reason to limit the plain words in paragraph (b) of the section, which say in unqualified terms that the medical panel must give its decision ‘within such longer period as is agreed by the claimant and the respondent’. Secondly, we are unable to discern any legislative purpose for limiting the parties’ ability to agree an extension of time so that no agreement (however much the parties may be willing participants in it) can be given effect once the time has expired.
In support of her submissions, Ms Ko relied upon the legislative purposes identified by Kaye J in Mikhman that the requirements of the Act, so far as the significant injury issue is concerned, be dealt with expeditiously and that there be certainty as to the time within which the degree of impairment of a claimant might be assessed and determined.[22] While we accept that when one examines pt VBA (and in particular Divisions 4 and 5) there is some warrant for saying that the relevant provisions disclose an intention that the statutory requirements be dealt with expeditiously and that there be some certainty in respect of the timeframes within which steps are to be taken, we do not think that those considerations can be taken too far.
[22]Mikhman [2012] VSC 42, [38].
The statutory scheme in relation to the resolution of the significant injury issue has elements that lack certainty. In order to see that, one need go no further than s 28LZG itself. Subsection (5) permits a medical panel that is unable to determine the medical question because the relevant injury has not stabilised to certify that fact in writing. Subsection (6) then permits the medical panel to fix a time, ‘not being later than 12 months after the first assessment’, for a further assessment to be made. Further, sub-s (8) permits more than one further assessment to be made (albeit that each further assessment ‘must be made within the period of 12 months following the first assessment’).
Moreover, in relation to the certainty of the time prescribed in s 28LZG(3), it should be observed that in some cases the parties may not even be aware when the initial period under paragraph (a) expires. Under s 28LZG(3)(a), absent some agreement, time expires 30 days after the last date on which the claimant complied with a request under s 28LZC or on which the last of any number of potential registered health practitioners complied with a request under s 28LZE. In such circumstances, neither the claimant nor the respondent may know with any precision the date upon which that time might expire.
As to a legislative intention that steps in the significant injury process be undertaken expeditiously, it may be observed that if time expires (perhaps, as we have noted, unbeknown to the parties) and the parties are not empowered to agree an extension (because at that point time has expired), then this would have the inconvenient consequence of requiring the parties to commence the significant injury process afresh — and with all of the delay that might be attendant to that consequence.
Moreover, any legislative intention that the significant injury process be undertaken expeditiously would, in context, have to yield to an intention that the statutory processes be performed with proper care and attention to the resolution of the substantive issue (whether the claimant in fact has an injury that satisfies the statutory threshold level). The existence of such an intention (the proper or just resolution of the substantive issue) can be discerned at least from sub-ss (5)–(8) of s 28LZG, to which we have already referred.
Because the decision in the present case was determined within the time required by s 28LZG(3), the above conclusion suffices to dispose of the case in Dr White’s favour. However, for the sake of completeness, and because of its importance, we will deal with the question of whether a legislative purpose to invalidate a decision given outside the time prescribed in s 28LZG(3) can be discerned.
Does the time limit go to jurisdiction?
This Court is, once again, confronted by what might be called ‘the Project Blue Sky question’, that is, the question whether ‘an act done in breach of a condition regulating the exercise of a statutory power’ is invalid. As Maxwell P pointed out in Ian Street Developer Pty Ltd v Arrow International Pty Ltd,[23] a question of this kind arises only where the provisions imposing the relevant condition are silent about the consequences of non-compliance with it. As a result, the interpreting court must examine the statutory scheme in question in order to decide
where there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.[24]
[23][2018] VSCA 294, [44] (‘Ian Street’).
[24]Project Blue Sky (1998) 194 CLR 355, 388–9 [91].
Put another way, the task of interpretation requires the court ‘to divine the legislative intention with respect to a matter about which the legislature has said nothing’. As this case further illustrates, the inevitable result is a high degree of interpretive uncertainty, and unpredictability of outcome.
In Ian Street, Maxwell P suggested that the starting point for the interpretive analysis was neutral:
[T]he interpreter begins from the assumption that there are two possible conclusions — that non-compliance was intended to result in invalidity, or that it was not — and that the two conclusions are equally available. Which will turn out to be the correct conclusion can only be determined after a detailed examination of the statute, and an evaluation of the practical implications of invalidity for those affected.[25]
[25]Ian Street [2018] VSCA 294, [55].
In a context like the present, however, there are reasons for thinking that the starting point is not neutral. We are concerned with the jurisdiction of a tribunal established by statute, whose members are medical professionals and whose decision will operate — by force of law — to determine conclusively a question arising in a proceeding for damages for personal injury. It might be thought improbable, given the nature of the interests at stake and the involvement of independent experts as adjudicators, that Parliament would have intended the panel to forfeit its jurisdiction should it — for whatever reason — run even slightly over the 30 day limit.
As counsel for Ms Ko properly conceded, an interpretation which resulted in the panel losing jurisdiction to make a determination simply by virtue of exceeding the 30 day time limit would create obvious inconvenience for all concerned. That was one of the powerful considerations which led the Court in Ian Street to conclude that the time limit fixed for adjudication on a progress payment claim was not a condition of the adjudicator’s jurisdiction. There, as here, arguments were advanced to the effect that treating the time limit as jurisdictional would promote certainty and that this benefit was sufficient to justify what was conceded to be the resulting inconvenience.
In Ian Street, as in the present case, the statute required the decision-maker to act as expeditiously as possible. The Court concluded that the interests of the parties, and the objects of the scheme, would be adversely affected if the time limit went to jurisdiction:
[T]he statement of legislative purpose [‘as expeditiously as possible’] is strong and clear. To hold that the expiry of the time limit terminated the adjudicator’s jurisdiction would frustrate that purpose. It would potentially work great inconvenience on a claimant — and, for that matter, on a respondent. Counsel for the applicant properly conceded that this was so.
It seems highly improbable, in my view, that Parliament intended to allow the completion of the adjudication process to be frustrated — as it were, at the last minute — by reason of the adjudicator’s having failed to make a decision within time …
Obviously enough, the adjudicator’s conduct is wholly beyond the control of the claimant. A consideration of that kind has consistently been viewed in the authorities as militating against a conclusion of invalidity.
Counsel for the applicant argued that considerations of commercial certainty supported the view that Parliament did intend invalidity to follow from a breach of the time limit. It would be conducive to certainty for all concerned, it was said, if it was known in advance that the adjudicator’s jurisdiction would automatically lapse at the end of the statutory period. If that were not so, it was submitted, there was likely to be ‘mayhem’.
I am not persuaded by that submission. In my opinion, the effectiveness of this scheme, and the maintenance of the confidence of participants in the building industry, would be much more detrimentally affected if an adjudicator’s delay — involving no fault on the part of the claimant — operated to nullify the process of adjudication.[26]
[26]Ibid [74]–[78] (citations omitted).
We are, of course, concerned with a different statutory scheme and with different statutory provisions. As is apparent, however, there are important similarities between the two statutory adjudication schemes and the beneficial purposes which they were respectively established to serve. Moreover, as we have noted, the Court is here being asked to weigh up exactly the same considerations — certainty on the one hand and inconvenience and delay on the other. Given those similarities, this Court should be slow — absent a decisive difference in the statutory provisions — to come to a different conclusion as to the effect of non-compliance by the adjudicator with a time limit fixed for the completion of the adjudication.
As will appear, there is no such decisive difference in the provisions. Although the procedural steps are necessarily of a different character, there are strong textual indications that it was not the legislature’s intention that the expiry of the 30 day period should rob the panel of jurisdiction.
It follows that we respectfully disagree with Kaye J, who came to the opposite conclusion in Mikhman and whose reasoning we have carefully considered. As counsel for Ms Ko pointed out, his Honour’s decision has until now stood unchallenged. In the light of the decision in Ian Street, however, and for the reasons set out below, we are persuaded that the Project Blue Sky question must be answered in the negative.
The provisions examined
As noted earlier, div 4 contains six separate provisions fixing a time limit within which the respondent must respond to the claimant concerning a specified matter. In each case, the provision imposing the time limit specifies an automatic consequence if the respondent fails to respond within the specified period.[27]
[27]See ss 28LO(4), 28LP(3), 28LQ(4), 28LW(4), 28LWA(3), 28LWB(4).
The provision for referral of a medical question likewise imposes a time limit on the respondent, with specified consequences for non-compliance. Under s 28LWE(1), the respondent, having been served with the certificate of assessment, may within a specified time refer ‘a medical question in relation to the assessment’ to a medical panel for determination. If, having advised the claimant that it intends to refer such a question, the respondent does not make the referral within the specified time, it is deemed to have accepted the assessment at the expiration of that time.
The legislative purpose expressed in these provisions is clear. Delay by a respondent in the completion of the various procedural steps will not be allowed to prejudice a claimant. The statute seeks to ensure strict compliance with the various time limits, by providing for automatic consequences of non-compliance. It is notable that the obligations which div 4 imposes on a claimant are not subject to time limits, the assumption evidently being that it will be in the claimant’s own interests to act expeditiously to complete the necessary steps.
Again, as we have already observed, div 5 sets out the powers and procedures of a medical panel ‘in relation to a medical question referred to it under div 4’.[28] And the statutory objective of expedition is made explicit in s 28LZ(2), which provides that a medical panel must
act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
[28]Section 28LY.
Division 5 maintains the policy of strict enforcement of time limits against a respondent. Thus, s 28LZA(1) requires the respondent to provide the panel with certain information and documents. If it fails to do so within 30 days after receiving a request to do so from the Convenor of Medical Panels, the respondent is deemed to have accepted the assessment in the certificate of assessment.[29] The same automatic consequence follows if the respondent fails to provide particular documents requested by the Convenor within 30 days of such a request.[30]
[29]Section 28LZA(4)(a).
[30]Section 28LZA(4)(b).
Other provisions in div 5 impose time limits on the panel itself. Thus, under s 28LZC, a panel may ask a claimant to meet with it and answer questions, supply documents and/or submit to a medical examination. Under s 28LZC(2), such a request must be made ‘within 30 days after the medical question is referred to the medical panel.’ As noted earlier, however, the section is silent as to the consequences, if any, of such a request being made outside that time limit.
Again, s 28LZE authorises a panel to request (with the claimant’s consent) the attendance of a medical practitioner who has examined the claimant. Again, a 30 day time limit is specified for the making of this request, the period to be calculated from the occurrence of the last of four possible events set out in s 28LZE(2). Once again, the section is silent as to the consequences, if any, of a request of that kind being made outside that time limit.
Section 28LZG prescribes the procedure for the making of a determination. Before it determines the degree of impairment, the panel must first assess the degree of impairment. Having done so, the panel must either give the parties ‘its determination of the medical question’ or a certificate stating that it is unable to determine the question. As noted earlier, s 28LZG(3) prescribes the time by which the determination or certificate must be given to the parties. Once again, nothing is said about the consequences of that being done after the period has expired.
As this analysis shows, there is a consistent — and apparently deliberate — difference between the provisions which impose time limits on a respondent and those which impose time limits on a panel. Every time limit to which a respondent is subject carries its own provision specifying the consequences of non-compliance with the time limit. None of the three provisions in div 5 which impose time limits on a panel contains any such specification of the consequences of non-compliance.
The submission for the claimant was that the provisions attaching consequences to a respondent’s non-compliance with time limits revealed a general legislative intention that ‘there are consequences of not complying with time limits’. It would be consistent with that general intention, it was said, for this Court to conclude that non-compliance by the panel with the 30 day time limit was also intended to have consequences, notwithstanding that they were not spelt out in the Act. The submission relied on the characterisation adopted by Kaye J in Milkhman. As noted earlier, his Honour said that these provisions were all part of
a statutory scheme in which the timetable is intended to be rigorously adhered to, so as to facilitate the expeditious determination of the assessment of the impairment of a claimant.[31]
[31]Mikhman [2012] VSC 42, [30].
In our view, this submission must be rejected. The uniformity, and particularity, of the time limit provisions applicable to a respondent demonstrates in the clearest terms that, where the legislature intended that there should be automatic consequences of non-compliance with a time limit, those consequences were specified. As counsel for Dr White submitted, it is hardly to be thought that when time limits were specified in relation to actions of the panel, the need for the specification of consequences for non-compliance was simply overlooked. Loss of jurisdiction is a very grave consequence for non-compliance with a time limit. Had that been the legislature’s intention when imposing the time limit in s 28LZG(3), it could and would have said so.
It is, in our view, entirely understandable that the legislature distinguished in this way between the effect of time limits imposed on a respondent and the effect of time limits imposed on the panel. The panel’s determination is the culmination of what can — and often will — be a complicated series of procedural steps. It is plainly in the interests of all concerned that those steps are completed as quickly as possible and hence that respondent time limits are strictly enforced. It is equally in the interests of all concerned that, should the making of the determination be for some reason delayed beyond the expiry of the time limit, the panel should be able to complete its work, rather than the parties having to begin the process all over again.
The submission for Ms Ko was that, if the 30 day time limit did not go to jurisdiction, medical panels might treat the time limit ‘as if it didn’t matter’. We would reject that submission too. In our opinion, the task of statutory interpretation must proceed on the assumption that persons on whom statutory functions are conferred will comply with the provisions which govern the discharge of those functions.
In the present case, the assumption must be that the members of a medical panel will view themselves as bound to comply with the time limit imposed by the Parliament, expressed as it is in imperative language. So far from postulating the case of a panel acting with careless indifference to the time limit, the competing arguments should be tested by considering the case of a panel which conscientiously carries out its functions but is for some reason unable to finalise its determination within the specified time.
We do not regard the provision allowing for an agreed extension of time as requiring a different conclusion on the question of jurisdiction. In our view, the fact that the parties can extend the time by agreement sits comfortably with the conclusion that the time limit is not jurisdictional. It is consistent with what we have said about the panel regarding itself as obliged to finish its work within the 30 days that the parties should be able to agree to enlarge that time.
Put another way, without such agreement the panel would doubtless strive to meet the 30 day deadline but may encounter circumstances in which an additional period, short or long, is called for. Moreover, the existence of the 30 day time limit in s 28LZG(3)(a) facilitates the expeditious resolution of the significant injury question by providing a party, seeking a medical panel’s timely determination, with a basis for applying to the Court for relief in the nature of mandamus upon the expiration of the 30 day period.
On this particular point, too, there is a real issue of consistency with the decision in Ian Street.[32] In that case, the statutory specification of a time limit for the adjudication was likewise accompanied by a provision allowing for an extension — if the claimant agreed. That companion provision was not seen as affecting the conclusion that the time limit itself was not jurisdictional. It would, in our opinion, be unfortunate if an equivalent extension provision in the present case was thought to require a different conclusion on the effect of non-compliance with the time limit.
[32][2018] VSCA 294.
Our conclusion is reinforced by examining the relevant statutory provisions in the way suggested by this Court in Davis (a pseudonym) v The Queen.[33] In Davis, the question was whether non-compliance with s 212 of the Criminal Procedure Act 2009, which specified a time limit for the commencement of a trial for a sexual offence, deprived the County Court of jurisdiction to conduct the trial. The Court identified five factors that may fall for consideration in the application of Project Blue Sky to the question of whether non-compliance with a statutory provision resulted in invalidity. The factors identified were:
(1)whether the statutory requirement merely regulates the exercise of a function already conferred or is, rather, an ‘essential preliminary’ to the exercise of the function;
(2)the nature of the requirement, and, in particular, whether it has a ‘rule-like quality’ that can easily be identified and applied;
(3)the public inconvenience that would result if non-compliance means that the decision was invalid;
(4)whether there are any other means of giving effect to the relevant requirement, other than by invalidating a decision that does not comply with that requirement; and
(5)the extent and consequences of non-compliance in the particular case.[34]
[33](2016) 55 VR 1 (‘Davis’).
[34]Ibid 23 [88].
As the Court in Davis said, the first factor was important in Project Blue Sky itself.[35] The same may be said of s 28LZG(3). Section 28LZG(3) merely regulates the exercise of a function already conferred on the medical panel. It is difficult to see how the requirement could be said to be an ‘essential preliminary’ to the exercise of the medical panel’s function — being to determine the degree of impairment of the claimant in accordance with div 3 of pt VBA.
[35]Ibid [89].
The second factor equally tells in favour of our conclusion that non-compliance with the time limit does not deprive the panel of jurisdiction. The fact that the time limit might vary depending upon the time in which it takes relevant registered health practitioners to comply with requests under s 28LZE tells against the easy identification and application of the time limit. Additionally, the same might also be said in relation to the parties’ ability to agree to an extension of the time limit (which agreement may or may not be known to the medical panel at a particular point in time).
As to the third factor, we have already noted the obvious public inconvenience in having medical panels go through all of the steps necessary to perform their statutory function, and then to have all of those steps rendered nugatory by a failure to comply with the time limit, however inconsequential or small that failure might be.
In relation to the fourth factor, in our view, adequate effect can be given to s 28LZG(3) by recognising that, where the period prescribed has expired, an application may be made to compel the panel to give its determination or certificate.[36]
[36]Cf Davis (2016) 55 VR 1, 24–5 [96].
As to the fifth factor, if (contrary to our conclusion that the time limit was validly extended) there was a breach of s 28LZG(3) in this case, it was by no means egregious. Moreover, it occurred in circumstances where, a mere few days before the panel gave its decision, both Ms Ko and Dr White were content to receive the medical panel’s decision within the timeframe in which the decision was ultimately provided.
A further factor telling against the conclusion that a failure to comply with the time limit in s 28LZG(3) deprives the medical panel of jurisdiction is that compliance with the time limit is outside the control of the parties affected by the decision. To
require those parties to engage in a process which involves the incurring of costs and expenses and then to have such costs and expenses wasted because of a failure by a third party (the panel) to comply with a statutory time limit is a result that is inherently unjust and one which the legislature could not reasonably have intended.
Finally, we reject the submission that the standard form provision contained in s 28LZK (providing that a decision of a medical panel is not invalid by reason only of a defect or irregularity in or in connection with the appointment of a member of the panel) is in any way dispositive of the issue under consideration.
Conclusion
Ms Ko’s judicial review proceeding must be dismissed.
McLEISH JA:
I have had the advantage of reading in draft the reasons of Maxwell P and Beach JA. I agree with them, for the reasons they give, that s 28LZG(3) of the Wrongs Act 1958 (‘the Act’) is to be construed as permitting the parties to agree that a medical panel may give its determination or certificate within a period longer than the 30 day period specified in para (a) of that provision, including by reaching such an agreement after that 30 day period has expired.
That conclusion suffices to require the dismissal of the present proceeding. However, I agree that the question whether failure by a medical panel to give its determination or certification within the period required under s 28LZG(3) deprives the panel of jurisdiction to do so is of sufficient importance that it should be addressed. Aside from the possibility that the matter may go further, the issue was fully argued and the case calls into question the correctness of the result reached by Kaye J in Mikhman v Royal Victorian Aero Club,[37] which has been regularly followed in
the Trial Division.[38]
[37][2012] VSC 42 (‘Mikhman’).
[38]Holloway v Department of Human Services [2015] VSC 184, [1], [10] (McDonald J); Wentworth v Bass Coast Regional Health[2017] VSC 403, [29] (Emerton J); Santo v Gibbons [2020] VSC 488, [13] (Moore J).
At this point I have the misfortune to disagree with the conclusion to which Maxwell P and Beach JA have come. In my respectful view, if a medical panel fails to give its determination or certification within the period required under s 28LZG(3), it is without jurisdiction to do so thereafter. In the circumstances, I will state my reasons shortly.
It is convenient to set out the provision again. Section 28LZG(3) requires a medical panel to give its determination or certificate in respect of the medical question referred to it:
(a) within 30 days after the last of the following to occur—
(i)the last date on which the claimant complies with a request under section 28LZC;
(ii)the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or
(b)within such longer period as is agreed by the claimant and the respondent.
The governing principles are not in doubt. As explained by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[39]
[39](1998) 194 CLR 355, 388–9 [91] (‘Project Blue Sky’).
The question is therefore one of statutory interpretation, which requires construing s 28LZG(3). That in turn attracts the principles set out in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[40]
[40](2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).
The text of s 28LZG(3) provides for the identification of a time period. It is to be identified having regard to two factors. The first is the last to occur of the two dates specified in para (a). The second, which produces a ‘longer period’, is any agreement as to such a period on the part of the claimant and the respondent as permitted under para (b). In the absence of any such agreement, the time period runs until the date determined under para (a).
In these circumstances, the question immediately arises, what is the purpose of para (b)? In my view, the only conceivable purpose is to ameliorate the effect of a time period calculated solely by reference to para (a). That indicates that para (a), in the absence of an agreement, is effective to bring about a result which the parties might wish to avoid. Paragraph (b), by its terms, permits the panel to make a determination or certification. This is the express cure offered for the problem that may face the parties as a result of the operation of para (a) on its own. That suggests that the panel would, but for para (b), be disempowered from giving its determination or certificate if that were not done within the period in para (a). While it is true a party could go to the trouble and expense of seeking an order for mandamus if the panel had not given its determination or certificate by the end of the period in para (a), that does not suggest any substantive purpose underlying para (b). Mandamus could be sought without any extension of the period.
Conversely, if invalidity were not the result of a failure to give a determination or certificate within the period in para (a), it is not apparent what would be achieved by the parties agreeing to a ‘longer period’, or what result would flow from the parties failing to reach such an agreement. Any discussion as to a possible agreement would be an arid exercise and para (b) would serve no useful purpose, because (short of an order for mandamus) the panel could make its determination or certification at any time irrespective of whether the parties reached an agreement.
In summary, these considerations suggest that para (b) has the effect of enabling extension of a period of time within which a medical panel must give a determination or certificate in order for that determination or certificate to have effect, and that without such an extension the panel would lack power to finish its work. Consistently with that reasoning, the same consequence would attach to a failure of the panel to make a determination or certificate within the longer period. It would be anomalous, and there would be no point in agreeing upon a longer period, if the panel was thereupon at liberty to give a determination or certificate after the end of the agreed period.
This understanding of s 28LZG(3) is consistent with the use of the word ‘must’ to describe the obligation on the panel, albeit that this is of course not determinative.
Considerations of context and purpose do not suggest any different conclusion. As to context, in my view, the absence of a provision relating to s 28LZG(3) of the kind contained in other provisions of pt VBA which address the consequences of various failures to act on the part of the respondent[41] does not suggest that s 28LZG(3) attaches no consequence to a failure by a medical panel to comply with the time limit for which it provides. Section 28LZG(3) is different, not only because it concerns default by a panel rather than either party, but because it places the issue in the hands of the parties, which is the mechanism by which the subsection allows for flexible outcomes. In that way, it does address failure to act within the time limit in para (a), in a distinctive way that is not found elsewhere in pt VBA.
[41]See ss 28LO(4), 28LP(3), 28LQ(4), 28LW(4), 28LWA(3), 28LWB(4) and 28LZA(4).
Further, in so far as other provisions impose a time limit on a medical panel without specifying a consequence of non-compliance, that pattern is not, in my view, revealing as to the proper interpretation of s 28LZG(3). That is because, again uniquely among these provisions, that provision contains its own answer to non-compliance, in the form of para (b). It stands apart from otherwise comparable provisions in pt VBA in this way. Far from the legislature having overlooked what happens if para (a) is not complied with, it has provided the answer in para (b). As explained earlier, that answer carries with it the implication that the time limit, once identified, is one with consequences for validity.
The presence of s 28LZK, providing as to the validity of panel decisions notwithstanding a defect or irregularity in a member’s appointment, provides some support for the implication that non-compliance with s 28LZG(3) is not a mere irregularity or defect in procedure without effect. But ultimately the two provisions address quite different subject matter and little is to be derived from s 28LZK for present purposes.
As to purpose, it is axiomatic that pt VBA is directed to achieving an expeditious and efficient process, including for the making of panel determinations, as confirmed by s 28LZ(2). Either construction of s 28LZG(3) achieves that result, but in different ways. The construction preferred by Maxwell P and Beach JA avoids the undesirable prospect of the process being set at nought by reason of a dilatory medical panel where the parties cannot agree on an extension. But it does so at the expense of permitting that dilatoriness to occur. The alternative construction contains a sharper impetus to timeliness on the part of a panel, while leaving it to the parties to agree on a lengthier process. In the end, these different ways of advancing considerations of expedition and efficiency are not, in my opinion, especially helpful in identifying which construction should be preferred.
The analysis which makes compliance with s 28LZG(3) essential to a medical panel’s jurisdiction cannot be said to produce inevitable inconvenience. The parties remain able at all times to agree that the panel has jurisdiction. In that respect, the case is fundamentally different from that considered in this Court’s decision in Ian Street Developer Pty Ltd v Arrow International Pty Ltd.[42] In that case, s 22(4)(b) of the Building and Construction Industry Security of Payment Act 2002 only permitted the claimant to agree upon an extension of the statutory time limit for an adjudicator’s determination by up to 5 business days.[43] In that way, the consequences of delay were, subject only to the possibility of that limited extension, beyond the claimant’s control. Here, in contrast, a claimant can reach agreement with a respondent to achieve any extension they see fit.
[42][2018] VSCA 294 (‘Ian Street’).
[43]Ibid [79]–[87] (Maxwell P, McLeish JA and Niall JA relevantly agreeing at [88] and [91]).
In these circumstances, to construe s 28LZG(3) as making compliance a condition of jurisdiction is not to undermine the efficiency of the scheme or necessarily to inconvenience claimants. It is to provide a powerful motivation to a medical panel to do its work within the specified period, and to leave it in the hands of the parties whether a failure to do so deprives the panel of its ability to proceed. This interpretation affords both certainty and flexibility, rather than arbitrary inconvenience.
It is necessary to say something more about Ian Street. Of course, each case ultimately depends on an analysis of the statute in question, rather than by comparing the position under other statutes. However, it should be noted that the legislation in that case contained several fundamental differences from that with which we are concerned. I have mentioned one, which goes to the different potential for inconvenient results under the respective provisions. Another is that the Building and Construction Industry Security of Payment Act contained a provision (s 23(2B)) specifically providing that an adjudicator’s determination was ‘void’ in identified circumstances, which did not include failure to make a determination within the time limited. The Court treated this as an exhaustive statement of such circumstances.[44] There is no such provision here.
[44]Ibid [69].
A third is that the Building and Construction Industry Security of Payment Act provided for a specific consequence of an arbitrator’s failure to make a determination within the time limited, namely that the claimant could elect to withdraw the application for adjudication.[45] The Court observed that this provision had the necessary corollary that, if the claim was not withdrawn it could still be determined; the provision for withdrawal would otherwise be unintelligible.[46] Again, there is no such provision in this case.
[45]Building and Construction Industry Security of Payment Act2002 s 28(2).
[46]Ian Street [2018] VSCA 294, [71].
It remains to note that, in Mikhman there was no agreement of the kind contemplated by para (b) of s 28LZG(3), and it appears that the Court did not have the benefit of submissions as to the relevance of that paragraph to the proper analysis of the subsection. While I reach the same result, my reasoning differs from that in Mikhman.[47] As explained, in my view the construction of s 28LZG(3), and the Project Blue Sky analysis, must be conducted with regard to the whole of s 28LZG(3), including both paras (a) and (b) of the subsection, regardless of whether there is, or was, any agreement entered into between the parties of the kind referred to in para (b).
[47]This Court distinguished Mikhman in another context, in Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [35]–[36] (Neave JA, Santamaria JA and Ginnane AJA agreeing at [112] and [113]).
For these reasons, in my opinion, a medical panel lacks jurisdiction to make a determination or certification outside the time provided for by s 28LZG(3). However, as noted at the outset, I agree that the proceeding should be dismissed.
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SCHEDULE OF PARTIES
| LEE MEE KO (by her litigation guardian Leli Ko) | Applicant |
| and | |
| DR CAROLINE HALL | First respondent |
| ASSOCIATE PROFESSOR DAVID HUNTER-SMITH | Second respondent |
| ASSOCIATE PROFESSOR VAL USATOFF | Third respondent |
| DR DEAN WHITE | Fourth respondent |
7
6
0