Koutroumanis v Transport Accident Commission
[2008] VSC 432
•21 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9983 of 2005
| ELEFTHERIOS KOUTROUMANIS | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 March 2008 | |
DATE OF JUDGMENT: | 21 October 2008 | |
CASE MAY BE CITED AS: | Koutroumanis v TAC | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 432 | |
---
ADMINISTRATIVE LAW – Appeal – History of adjournments - Refusal of application for adjournment of hearing – Solicitor appearing as advocate - Alleged procedural unfairness.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T. Alexander | Mr S. Angelatos & Co |
| For the Respondent | Ms A. Magee | Solicitor to the Transport Accident Commission |
TABLE OF CONTENTS
Background......................................................................................................................................... 2
The grounds of appeal...................................................................................................................... 2
Material before the Court................................................................................................................. 3
The history of the proceeding.......................................................................................................... 3
The 25 October 2005 adjournment application............................................................................ 8
The 31 October 2005 adjournment application.......................................................................... 15
Submissions and conclusions........................................................................................................ 19
The history of adjournments..................................................................................................... 19
The alleged need to obtain reports from other doctors......................................................... 20
The alleged need to obtain reports from the treating doctors.............................................. 20
The failure to brief counsel........................................................................................................ 23
The alleged failure to comprehend the proceeding............................................................... 25
HER HONOUR:
Background
The plaintiff (“Mr Koutroumanis”) was injured on 1 December 1994 when he was travelling in a tram which braked heavily and collided with a car. Subsequently, he suffered from an episode of upper gastrointestinal tract haemorrhage from a duodenal ulcer. The defendant (“TAC”) accepted responsibility for this condition and made payments for its treatment from about March 1995.
On about 21 February 2002, TAC told Mr Koutroumanis that it had decided to stop the payments for treatment. Mr Koutroumanis applied to VCAT for a review of TAC’s decision on 4 February 2003.
A Deputy President of VCAT heard the review application on 31 October and 7 and 8 November 2005. There had been a directions hearing before the same Deputy President on 25 October 2005, almost a week before the review hearing and Mr Koutroumanis had asked for it to be adjourned. He had also again requested an adjournment on 31 October, the first day of the hearing. The Deputy President refused each of his adjournment applications and went on to affirm TAC’s decision to stop the payments.
Mr Koutroumanis now appeals from the Deputy President’s refusals to adjourn the hearing on 25 and 31 October, as well as from her final decision. He brings his appeals under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”).
I note that the Senior Master initially refused his application for leave to appeal, but Mr Koutroumanis succeeded in an appeal from that decision and was granted the necessary leave to appeal by the Court on 5 February 2007.
The grounds of appeal
When granting Mr Koutroumanis leave to appeal on 5 February 2007, Hansen J described the notice of appeal as uninformative and unsatisfactory. His Honour identified the following grounds of appeal:
First, whether the Tribunal erred in law in refusing to adjourn the trial of the proceeding on 25 and 31 October 2005. Secondly, whether the Tribunal erred in law in applying the rule in Jones v Dunkel in its decision provided on 8 November 2005. Thirdly, whether the hearing was conducted in such a manner as to deny procedural fairness to [Mr Koutroumanis].[1]
[1]Transcript of 5 February 2007 hearing before Hansen J T 3 at lines 9-12.
Mr Koutroumanis does not press the challenge to the Deputy President’s decision on the basis of any error in applying the rule in Jones v Dunkel.[2] He does, however, contest the validity of the adjournment refusals and argues that he was denied procedural fairness.
[2](1959) 101 CLR 298.
Material before the Court
Mr Koutroumanis relies on his affidavit sworn on 5 June 2006, filed in support of his application for leave to appeal. Counsel for Mr Koutroumanis also referred to affidavits sworn by Mr Sam Angelatos of his instructing solicitors on 20 November 2006 and 12 January 2007. Objection was taken to reliance upon that material. Mr Angelatos had deposed in those affidavits to obtaining reports from Mr Koutroumanis’s treating gastroenterologist in November 2006, Dr Rajendra, and from a medico-legal gastroenterologist, Dr Jacobovits, respectively. Counsel accepted that the reports were obtained after the hearing before the Deputy President, but argued that they were admissible evidence of the fact that Mr Koutroumanis did subsequently seek further reports. No ruling was called for as to their admissibility for that purpose and counsel appeared to proceed on the basis of Mr Koutroumanis’s affidavit as the evidence in the appeal.
TAC relies, in turn, on an affidavit sworn on 12 July 2006 by its solicitor, Sandra Clara Minato, and another, sworn on 18 March 2008 by its solicitor, Giancarlo Giacchi.
The history of the proceeding
Ms Minato describes the history of the review proceeding, providing a context in which the adjournment applications on 25 and 31 October 2005 were refused. The facts are largely common ground.
The review was initially set down for hearing on 21 November 2003. By consent, it was adjourned to an administrative mention on 2 February 2004, because of a possibility Mr Koutroumanis was to undergo an endoscopy procedure.
Dr Peter Andrianakis, Mr Koutroumanis’s treating general practitioner, wrote to TAC and VCAT on 27 January 2004 requesting a further adjournment of the review application on the basis of Mr Koutroumanis’s ill health. TAC neither consented to the request nor opposed it and the matter was listed for a directions hearing on 10 March 2004.
Mr Koutroumanis then sought an adjournment of the 10 March 2004 directions hearing by a letter to VCAT dated 27 February 2004. He said that he was awaiting results from two named doctors and requested an administrative mention approximately six weeks from the directions hearing date. Again, TAC neither consented to nor opposed this request and a further directions hearing was fixed for 13 April 2004.
Mr Koutroumanis wrote to TAC and VCAT on 22 March 2004 requesting an adjournment of his appeal for “approximately three to five months”, citing “ongoing and more severe neck pains, headaches, migraines, vertigo and nausea and pelvis pains”. He said that he had been referred to “specialist doctors”, Mr Thien and Mr Christophi; he maintained that he needed some time to be thoroughly examined and medical reports written. Mr Koutroumanis said that his “multiple pains” had been aggravated by five motor vehicle accidents and one industrial injury he had sustained. TAC opposed the request.
At the 13 April 2004 directions hearing, Mr Sam Angelatos appeared as an advocate for Mr Koutroumanis. He informed the Tribunal that Mr Koutroumanis was to undergo a gastroscopy on 23 April 2004. The application for review was then listed for a compulsory conference on 26 August 2004 and a hearing on 27 September 2004.
Victoria Legal Aid wrote to VCAT on 24 August 2004, on Mr Koutroumanis’s behalf, requesting that the conference and the hearing be adjourned because Mr Koutroumanis had recently obtained a report from Dr Lester Walton, a psychiatrist, and the report needed to be reviewed. The letter stated that it was also possible that counsel’s opinion might be required. TAC opposed the adjournment application.
On 26 August 2004 the compulsory conference went ahead before a Senior Member of VCAT. Mr Sam Angelatos again appeared as an advocate for Mr Koutroumanis. Mr Angelatos told the Tribunal that he was instructed that Mr Koutroumanis’s treating general practitioner, Dr Andrianakis, was preparing a report and could not complete it without reviewing Dr Walton’s report. The matter was listed for a directions hearing on 14 September 2004. The Senior Member maintained the hearing date.
Victoria Legal Aid wrote to VCAT again on 7 September 2004 on behalf of Mr Koutroumanis, requesting an adjournment of the 14 September 2004 directions hearing, citing the fact that Dr Andrianakis was on leave between 3 September and 3 November 2004. The letter stated that Mr Koutroumanis required a further gastroscopy, but had been unable to arrange it because of financial difficulties. It also stated that an application for a grant of legal aid had been lodged for counsel’s opinion and representation.
At the directions hearing on 14 September 2004, Mr Sam Angelatos appeared again as advocate for Mr Koutroumanis and told the Tribunal about Dr Andrianakis’s scheduled leave. The hearing was then adjourned to 15 February 2005, to allow Mr Koutroumanis also to obtain counsel’s opinion and representation.
On 2 February 2005, Mr Koutroumanis wrote seeking an adjournment of the 15 February 2005 hearing, this time because he had been diagnosed with an inguinal hernia which required surgery. He requested a four to six month adjournment. He provided a letter from his general practitioner stating he had been unwell after certain procedures. TAC consented to an adjournment of the hearing for four weeks.
The matter was adjourned to a directions hearing on 1 March 2005. Mr Angelatos again appeared as advocate for Mr Koutroumanis. The application for review was listed for a compulsory conference on 18 May 2005 and a hearing on 7 July 2005.
By a letter to VCAT dated 29 April 2005, Mr Koutroumanis requested an adjournment of the application for review for six to eight months on the basis that he was having further treatment and had a conciliation conference with the Health Services Commissioner in a claim against TAC for failure to disclose medical and other documents to him. In his letter, he informed VCAT that he had had a number of motor vehicle accidents and had engaged Mr Opie of Slater and Gordon solicitors to act for him. He said that he had been dissatisfied with Mr Opie’s performance and that Slater and Gordon had successfully applied to VCAT for the appointment of a guardian. Mr Koutroumanis had subsequently had that appointment overturned by VCAT. He wanted to seek compensation which he believed had been denied him as a result of Mr Opie’s conduct. He requested that VCAT reconsider “any previous decisions” and advise him as to how he could pursue any claim for such compensation.
TAC opposed the adjournment request, on the basis that the matter before the Health Services Commissioner had no bearing on the review application; it rather related to Mr Koutroumanis’s request for amendment to personal records held by TAC under s 39 of the Freedom of Information Act 1982 which were not relevant to the decision the subject of the application for review. TAC noted that Mr Koutroumanis had not provided any evidence as to the relationship between his current gastroenterological problems and the transport accident.
The application for review was listed for a directions hearing on 11 May 2005 before a Senior Member of VCAT. The Senior Member adjourned the compulsory conference listed for 18 May to 24 June 2005, but maintained the 7 July 2005 hearing date. She also stated that any further adjournment requests had to be supported by medical evidence.
Mr Koutroumanis failed to attend the compulsory conference on 24 June 2005. He states in his 5 June 2006 affidavit that he was sick and unable to be present. Mr Angelatos appeared as an advocate on his behalf. The compulsory conference did not proceed and Mr Koutroumanis was ordered to file and serve a statement of evidence within seven days, with the warning that if he failed to do so, the proceeding might be struck out. The hearing date of 7 July 2005 was confirmed by the Senior Member.
Mr Koutroumanis filed and served a statement of evidence on 1 July 2005.
The Deputy President who made the decision from which Mr Koutroumanis now appeals presided over the hearing on 7 July 2005. Mr Angelatos appeared as Mr Koutroumanis’s advocate and applied for an adjournment of the hearing, on the basis that Mr Koutroumanis was awaiting medical reports from Dr Andrianakis, and Dr George Papadopoulos, his treating gastroenterologist. Mr Koutroumanis was also to be examined by Dr John Coleman on 28 July 2005.
Counsel for TAC submitted that the matter should be finalised, as it had been going on for some time. She sought guidance from the Tribunal as to the appropriate course of action.
The Deputy President granted Mr Koutroumanis an adjournment of the hearing from 7 July 2005 to 31 October 2005. She ordered that Mr Koutroumanis file and serve a further medical report from Dr Andrianakis, a report from his treating gastroenterologist, Dr Papadopoulos, and any medico-legal report from Dr Coleman, a gastroenterologist, by 31 August 2005. The Deputy President ordered that Dr Andrianakis’s subpoenaed records be released to Mr Koutroumanis for inspection. TAC was granted leave to inspect and copy the material (subject to any claim of privilege by Mr Koutroumanis by 25 August 2005) and TAC’s agreement to provide copies of the material to Mr Koutroumanis was noted in the orders.
Under cover of a letter dated 23 August 2005, TAC served its Respondent’s Statement under s 49 of the Act upon Mr Koutroumanis’s solicitor. TAC served copies of reports it had received from Dr Andrianakis which, amongst other things, sought payment for Mr Koutroumanis’s treatment from time to time. The reports from Dr Andrianakis were dated 15 January 1997, 19 June 1997, 29 August 1997, 21 March 1998, 10 July 1998, 7 January 2000, 25 February 2000, 6 April 2000 and 10 October 2002. Copies of medico-legal reports from its expert gastroenterologist, Dr Desmond, dated 11 July 2000 and 11 February 2002, were also served as part of this material.
It was Mr Koutroumanis’s failure to comply with the orders which resulted in TAC seeking the directions hearing on 25 October 2005.
On 25 October 2005, Mr Angelatos appeared as an advocate for Mr Koutroumanis and made another request for the hearing to be adjourned. The Deputy President refused the request and confirmed the hearing date of 31 October 2005. Mr Koutroumanis now appeals from this decision, alleging that the Deputy President made an error of law in refusing his application.
The 25 October 2005 adjournment application
The transcript of the hearing before the Deputy President is exhibit “EK2” to Mr Koutroumanis’s 5 June 2006 affidavit. The Deputy President asked Mr Angelatos whether he was acting for Mr Koutroumanis. The transcript records his response that he was appearing again “in the usual manner as an advocate” and that Mr Koutroumanis continued “to act on his behalf (sic)”.
Ms Minato appeared as TAC’s solicitor at the directions hearing and she told the Deputy President that Mr Koutroumanis had failed to attend an appointment TAC had arranged for him with Dr Paul Desmond, a gastroenterologist. Because Mr Koutroumanis had not attended Dr Desmond, TAC could not obtain a further report from him. (Dr Desmond, then Director of the Department of Gastroenterology at the University of Melbourne, had made two reports to TAC. In an 11 July 2000 report he had said that he had taken a history with the help of a Greek interpreter, although Mr Koutroumanis spoke reasonably good English. Dr Desmond had concluded that it was reasonable for TAC to cease payment for Mr Koutroumanis’s treatment for his then current reflux oesophagitis which, in Dr Desmond’s opinion, was unrelated to the non-steroidal anti-inflammatory agents he had taken after his 1994 accident.)
Ms Minato told the Deputy President that Mr Koutroumanis had failed to provide TAC with further reports from either Dr Andrianakis or Dr Papadopoulos. As at 25 October 2005, Mr Koutroumanis was also continuing to claim privilege in relation to Dr Andrianakis’s subpoenaed records. TAC had nevertheless, summonsed the doctors to attend on Monday 31 October 2005 to give evidence at the hearing.
Mr Angelatos then told the Deputy President that she probably would not be surprised to hear that his instructions were that Mr Koutroumanis wanted more time.[3] The Deputy President replied that he had had “lots of time and more time”.[4]
[3](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 3 at lines 7-8.
[4](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 3 at lines 9-10.
Mr Angelatos told the Deputy President that Mr Koutroumanis had an issue with a 2 September 1987 decision by the Guardianship and Administration Board to appoint a guardian and administrator on the basis that he was found to be schizophrenic. That decision had been reversed on 17 September 1987.
Mr Angelatos then said that Mr Koutroumanis believed that TAC had, in some way, been using that decision to appoint a guardian and administrator to affect his rights and that he wanted “to get to the bottom of it”. Mr Angelatos said that he had tried to explain to Mr Koutroumanis that the appointment was a separate matter which had no direct relevance to the issue of the ongoing treatment for his stomach condition. Mr Koutroumanis however took a contrary view and this issue was preventing him from preparing his case. Mr Angelatos said that he could not understand how the matter bore on the case, apart from the fact that it was in Mr Koutroumanis’s mind and he was insisting that he could not proceed without resolution of that matter.
The Deputy President then spoke to Mr Koutroumanis directly. Mr Koutroumanis appeared to refer to the guardianship matter and the Deputy President responded:
DEPUTY PRESIDENT:
Alright. Even though you’re getting worse the task of the Tribunal in this matter which is different – it’s not your Guardianship matter and I understand from what I’m being told is that you believe that a lot of these problems stem from what happened then?
MR KOUTROUMANIS:
In 2002 when they did the case, or the determines (sic) all my (indistinct) the documents with the scheme and they forced the doctors to believe what one or two doctors they say - - -
DEPUTY PRESIDENT:
Alright. You can tell the Tribunal that when the case starts on Monday.
MR KOUTROUMANIS:
Well, no, I don’t have the reports up to date. That’s why we want another adjournment.
DEPUTY PRESIDENT:
No, we’re not giving you any more adjournments. We’ve had too many and it’s reached the stage where some decisions have to be made.[5]
[5](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 4 at line 28 – T 5 at line 13.
Mr Koutroumanis responded by referring to a letter he claimed to have received two days earlier. Mr Angelatos explained that there was a 23 February 1988 letter from State Trustees to the Guardianship Administration Board requesting copies of the orders which had been made on 2 September 1987 and on 17 September 1987 (in his subsequent appeal to the Administrative Appeals Tribunal).
The Deputy President responded that Mr Koutroumanis could hand that letter up and it could be part of the material, even though VCAT was not reviewing the guardianship matter. The transcript records the following exchange:
MR KOUTROUMANIS:
No, I don’t worry about but I want the doctors to - - -
DEPUTY PRESIDENT:
The doctors are coming, they’ve been subpoenaed and they will come on Monday.
MR KOUTROUMANIS:
I can’t do that because I don’t have the proper diagnosis.
DEPUTY PRESIDENT:
I know you’re talking about the proper diagnosis and they’re the medical practitioners and those things can be discussed at that hearing. Now what’s going to happen at the hearing on Monday? Are you an advocate of that?
MR ANGELATOS:
It’s a question – most likely.
DEPUTY PRESIDENT:
Most likely. That would be helpful.
MR ANGELATOS:
I don’t know that I’m appropriately qualified to run a VCAT matter. I’m a solicitor as you know, Ma’am, but I will certainly try and help him. I’ve been trying to explain to him that, you know, there are times – when was it, yesterday I tried to explain to him the purpose and he seemed to have always thought that this was all about not just the stomach – sorry, the issue for the treatment of his stomach but he also thought that it was something to do with impairment and so on and he is always having this problem with coming to terms with the fact that this is a simple case of his stomach and the payment for the treatment of his stomach and I – you know, I’ve explained it to him on a number of times but he – but I believe that the …
DEPUTY PRESIDENT:
I think probably the file has been here for so long that it’s reached a time where the reality is we’re calling the doctors. I don’t think adjourning it again is going to assist him in a greater understanding of what the issues are and what we are concerned about.
MR ANGELATOS:
I believe he has another application on foot specifically in relation to stigma so you might want to explain to him that under the Freedom of Information Act, for the amendment of the record – that’s on foot and there is another proceeding in this Tribunal. …[6]
[6](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 6 at line 9 – T 7 at line 14.
Ms Minato informed the Deputy President that that application related to Mr Koutroumanis’s request that TAC amend his personal record by removing a report on its file from 20 years earlier. That application had been set down for hearing at VCAT on 1 December 2005. Mr Angelatos told the Deputy President that he had explained to Mr Koutroumanis that the second proceeding was the appropriate means to get rid of his “stigma” – not the one before the Tribunal, which was related to his stomach.
Mr Koutroumanis interjected that “they” wanted reports to give to their own doctors to certify him or commit him.
Mr Angelatos explained that the application to the Guardianship Board had been made by Mr Koutroumanis’s own solicitor at the time, who believed he could not get instructions to settle a claim.
The Deputy President told Mr Koutroumanis that VCAT was looking at whether TAC should continue to pay for his duodenal ulcer treatment and not the other matters he was concerned about.
Eventually, the transcript records Mr Angelatos’s statement :
MR ANGELATOS:
… I think Ma’am, the most appropriate thing is that it does proceed, certainly there’s no basis for any further adjournment. He has got his day in relation to the stigma in December. If there’s any reason to adjourn that because that could be a different issue, that’s up to – that’s not the issue today. Certainly I will try my best to make him understand that he has to be here on Monday.[7]
[7](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 12 at lines 7-14.
The Deputy President then enquired as to whether an interpreter was needed and Mr Angelatos responded that Mr Koutroumanis would need an interpreter for giving evidence.
Arrangements were then made for Dr Papadopoulos to attend at 2.15 pm on the hearing date of 31 October, in order to accommodate his schedule of gastroscopy procedures.
Mr Koutroumanis interjected that the matter was being rushed. The Deputy President responded that it was not, as it had been at VCAT for four years. Mr Koutroumanis then referred to a fax he had recently obtained and said that he had not had an opportunity to “see the doctors to explain the matter”. The transcript records how the Deputy President responded:
DEPUTY PRESIDENT:
Yes, I know but we’ve made many orders and given you every opportunity, Mr Koutroumanis, so Monday is your day.[8]
[8](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 15 at lines 25-27.
Mr Koutroumanis answered that he would come on Monday, but would make a public protest afterwards.
The Deputy President said that the case would proceed even though Dr Papadopoulos had not provided a report and Mr Koutroumanis had not attended Dr Desmond.
Mr Koutroumanis said that he did not have “the reports” at the time of the appointment. This exchange then took place:
MR KOUTROUMANIS:
I didn’t have the reports and now, this is going in the wrong – the wrong (indistinct) after details. It will be a big mess. You make me so many years, you destroy my life …
DEPUTY PRESIDENT:
Fortunately for you, Mr Angelatos - - -
MR KOUTROUMANIS:
But you are not going to destroy my family tree with the stigma. I withdrew that. I make the protest.
DEPUTY PRESIDENT:
I know, and we’re not looking at what happened – we’re looking at this rather small issue - - -
MR KOUTROUMANIS:
You don’t know that thing this is. It is more important. I said I don’t have the time to explain to the doctors. And now you want Monday over there, and I say to each doctor, here are the documents, and here are the – to say what, to say what, for God’s sake, please make adjournment.
DEPUTY PRESIDENT:
No.
MR KOUTROMANIS:
If you don’t make adjournment you take a big responsibility for - - -
DEPUTY PRESIDENT:
That’s right.
MR KOUTROUMANIS:
for after the days.
DEPUTY PRESIDENT:
That’s right. That’s my job.
MR KOUTROUMANIS:
Is that’s (sic) your job but also my job to keep my name and the family tree clear of the mental illness because I didn’t - - -
DEPUTY PRESIDENT:
I am not making any decisions about whether you ever had or didn’t have a mental illness. I am looking at the discrete issue of whether the Transport Accident Commission should be responsible for the ongoing treatment of the ulcer.[9]
[9](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 16 at line 12 - T 17 at line 11.
Subsequently, the Deputy President was informed that Mr Koutroumanis had been told by Dr Coleman, his own medico-legal expert, that he wanted to see him again. Mr Angelatos said that Mr Koutroumanis “reserve[d] his rights in relation to that issue”. He had not filed a report from Dr Coleman.
The Deputy President then enquired as to which doctors he wanted at the hearing and Mr Angelatos stated that he thought it would be appropriate to have Dr Andrianakis, and Dr Papadopoulos. There was discussion as to the scheduling of witnesses and it was foreshadowed that Dr Papadopoulos would cancel patients and attend at 2.15pm on 31 October.
Ms Minato indicated that Dr Desmond would be available on Wednesday, 2 November and that it would be desirable for him to see relevant reports contained in Dr Andrianakis’s file, since he had last seen Mr Koutroumanis in 2000 and there had since been further gastroscopies. Mr Angelatos responded that he believed Mr Koutroumanis’s instructions would be that he would not be prepared to waive privilege in relation to his medical file, even though Mr Angelatos agreed that the history was relevant to the matters before VCAT.
Mr Koutroumanis once again raised the issue of the “stigma” related to the guardianship application in this exchange with the Deputy President:
DEPUTY PRESIDENT:
It starts on Monday but we won’t be sitting on Tuesday because it’s a holiday, and then on Wednesday. We continue on Wednesday and if we don’t finish Wednesday we might go into the next day. But because nobody is quite clear because reports haven’t been obtained from the doctors, the doctors are going to have to come and give us the evidence on the spot.
MR KOUTROUMANIS:
As I told you I am sorry about this. I didn’t have the time to explain the stigma and the situation.
DEPUTY PRESIDENT:
You can explain the stigma and the situation to the Tribunal on Monday.
MR KOUTROUMANIS:
I give the reports – first to the doctor to see it, how I been treated so many years with the various doctors or con doctors, and note what I said to (indistinct) to bring Dr Stevenson report who got all the – excuse me – all the accidents, the (indistinct) accidents because they taking me so many years because they taking me so many years because if I get that Monday I will get that from the public.
DEPUTY PRESIDENT:
Alright.[10]
[10](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 24 at line 17 – T 25 at line 5.
The 31 October 2005 adjournment application
On 31 October 2005, Mr Angelatos again appeared before the Deputy President as an advocate for Mr Koutroumanis. The Deputy President immediately informed the parties that, for administrative reasons, the hearing would not be able to continue, after that day, before the following week.
Mr Angelatos then requested an adjournment on that basis and because he was instructed that Mr Koutroumanis had been unable to obtain a medical report from Dr Andrianakis, his treating general practitioner. This was said to be because Dr Andrianakis was unable to prepare a report as the Tribunal had been holding his files. The Deputy President responded that the files could be released and Dr Andrianakis could come to the Tribunal on Monday, 7 November.
Mr Angelatos then asked that the matter be adjourned until Monday, 7 November because Dr Andrianakis had not provided medical reports. The Deputy President pointed out that that was, presumably, because no request had been made for the material which the Tribunal had been holding for so long.
The Deputy President said it did not seem to her that there should be an adjournment. She said that Dr Andrianakis could provide a report when he attended the Tribunal on 7 November.
Mr Angelatos responded that it would be inappropriate for the hearing to start before the “main” treating doctor had prepared a report. Mr Angelatos conceded that the matter had been raised the week before, on 25 October, but denied that it was Mr Andrianakis’s fault, stating that he had written to Dr Andrianakis asking for a report in May 2005.
Counsel for TAC urged that the matter should proceed, stating that Dr Papadopoulos was scheduled to attend. The Deputy President noted that Dr Papadopoulos had cancelled all his patients, to be ready to give evidence on 31 October. She decided that there was nothing to stop the proceeding commencing that day and stated that this would give Dr Andrianakis time to prepare a report for the resumed hearing the following week, on Monday, 7 November.
The Deputy President ruled that the file held by the Tribunal would be released to counsel from TAC in order for Dr Andrianakis’s notes to be put to Dr Papadopoulos under cross‑examination. Mr Angelatos stated that he would organise to have the records delivered to Dr Andrianakis’s surgery for him to prepare a report.
Mr Koutroumanis then raised the guardianship issue and claimed discrimination and referred to his human rights.
Mr Angelatos then resisted a TAC request to be provided with a copy of a report from Dr Papadopoulos. He said that Mr Koutroumanis did not want to release it, notwithstanding that Dr Papadopoulos was giving evidence that afternoon.
Mr Angelatos informed the Tribunal that he had had a problem getting instructions from Mr Koutroumanis and that he had tried to convince him to release Dr Papadopoulos’s report. He conceded that he had no legal basis for objecting to the release of Dr Andrianakis’s notes about Mr Koutroumanis’s gastrointestinal condition to TAC, but stated that his instructions were not to do so. Mr Angelatos acknowledged the Tribunal’s discretion in the matter.
The Deputy President decided that, notwithstanding her mindfulness of Mr Koutroumanis’s concerns, the document should be released and provided to Dr Andrianakis to assist in the preparation of his report.
Mr Koutroumanis then acknowledged that he had a copy of Dr Papadopoulos’s report with him. Mr Angelatos said his instructions were to object to producing that copy which had been obtained for legal purposes.
Mr Koutroumanis then referred back to the 1986 guardianship issues. He said that he wanted to get the materials so that his details could be put into the reports from the doctors. The Deputy President alerted him again to the fact that those matters were not relevant for the hearing before her.[11]
[11](Ex “EK2”) Transcript of 31 October 2005 VCAT hearing, T 46 at lines 10-11.
Mr Angelatos reported Mr Koutroumanis telling him that he wanted time to think about whether to go on oath during the hearing. He was allowed that time and it was agreed that Dr Papadopoulos should be called after the luncheon adjournment.
When the hearing resumed at 2.20 pm after a luncheon adjournment, Mr Angelatos told the Tribunal that he had not run a case for a very, very long time and that, probably, he had not done a very good job with the last case he had run. He asked the Tribunal to be gentle with him.
Dr Papadopoulos was then called.
The transcript records an interpreter interrupting proceedings at one point to identify him or herself and to ask if Mr Koutroumanis was understanding everything, stating that he was only using the interpreter when he did not understand something. The interpreter said that he or she had asked Mr Koutroumanis whether he had understood something and he had answered : “Most of it”.
There were many exchanges between the Deputy President and Mr Koutroumanis recorded and I have not found a reference in the transcript of the proceeding to any complaint by Mr Koutroumanis or Mr Angelatos that Mr Koutroumanis had not understood the English spoken in the Tribunal.
Mr Angelatos then told the Deputy President that Mr Koutroumanis was maintaining that he needed some sort of letter of apology from TAC to his doctor. Without such a letter, he would not give evidence on oath. Mr Angelatos said that he himself did not understand. The Deputy President indicated that Mr Koutroumanis could give evidence without being on oath.
There was then an exchange between the Deputy President and Mr Koutroumanis who interjected that he wanted an apology from 17 September 1987. He stated that he had been “released from mental illness”. After some further discussion between the Deputy President and Mr Koutroumanis, Mr Angelatos raised his concern about whether Mr Koutroumanis was capable of giving evidence, in the context of some remarks he had made. He went on to say that, “generally speaking”, when he spoke to Mr Koutroumanis, he had no reason to doubt that he understood what was going on. Eventually, a statement from Mr Koutroumanis was tendered and counsel for TAC indicated that there would be no cross‑examination.
Further exchanges took place between Mr Koutroumanis and the Deputy President. The Deputy President indicated that she perceived Mr Koutroumanis could not understand why he could not have his application in relation to the 1986 guardianship matter determined at the same time as the application before the Tribunal that day. She indicated to Mr Koutroumanis that he would have to attend for a hearing in the guardianship matter on 2 December 2005. Mr Koutroumanis responded that there was no way he would attend and that somebody else would.
The Deputy President then released the documents held by VCAT to Mr Angelatos. She asked whether Dr Andrianakis was going to write a report. Mr Angelatos responded that he doubted it and commented that Dr Andrianakis had had ample opportunity to write a report.[12] The hearing was then adjourned to Monday, 7 November 2005.
[12](Ex “EK2”) Transcript of 31 October 2005 VCAT hearing, T 83 line 30 – T 84 line 3.
On 7 November 2005, Dr Andrianakis gave evidence. He had not prepared a further report. He acknowledged having read Dr Paul Desmond’s reports of 11 July 2000 and 11 February 2002. Under cross‑examination, Dr Andrianakis also referred to three reports from Dr Papadopoulos which he had read and gave evidence relating to their contents. He did not say that he had been adversely affected by not having had material at any particular stage.
The Deputy President ultimately confirmed the TAC decision to discontinue payment for treatment of Mr Koutroumanis’s gastric condition. She preferred the views of the specialist gastroenterologists, Dr Papadopoulos and Dr Desmond in this regard to those of the treating general practitioner, Dr Andrianakis, and was not satisfied that Mr Koutroumanis’s ongoing gastrointestinal symptoms resulted from the treatment he had received after the 1994 accident.
Submissions and conclusions
The history of adjournments
Counsel for Mr Koutroumanis argues that the Deputy President erred in the exercise of her discretion in relation to each of the adjournment applications. He first contends that she took into account what he argues is the extraneous or irrelevant consideration of the history of adjournments in the matter. He argues further that the Deputy President erred by placing too much weight on the history of adjournments.
The Deputy President’s decision as to whether to grant a further adjournment of the hearing of the application was within her discretion. An appellate court will rarely interfere with such an exercise of discretion.[13] In some circumstances, a refusal to grant an adjournment might prevent a party from presenting his case and an appellate court has the power and duty to review the exercise of a discretion if such an injustice might have resulted.[14]
[13]See McColl v Lehmann [1987] VR 503 at 506 per Kaye J.
[14]McColl v Lehmann [1987] VR 503 at 507 per Kaye J.
The history of adjournments was relevant to the question as to whether Mr Koutroumanis had been provided with sufficient time to present his case as fully as necessary. I am not persuaded that the Deputy President erred either by taking that history into account or by placing too much weight upon it in the exercise of her discretion.
The alleged need to obtain reports from other doctors
Counsel argues that the Court should infer that Mr Koutroumanis in fact wanted to obtain reports from other doctors. The thrust of this argument would seem to be that the Deputy President erred in law by failing to allow the necessary time and therefore causing injustice to Mr Koutroumanis. Counsel for Mr Koutroumanis concedes that there is no evidence of that matter having been put to the Deputy President and that there was no evidence that any other further reports which might have been obtained would have assisted the Tribunal or Mr Koutroumanis’s position.[15] He argues, nevertheless, that it was implicit in the submissions which were made that Mr Koutroumanis did want time to obtain reports from other doctors.
[15]Transcript of 18 March 2008, T 76 at lines 14-19.
It was in relation to this argument that counsel for Mr Koutroumanis sought to rely upon Mr Angelatos’s affidavits relating to the reports subsequently obtained from Dr Rajendra and Dr Jacobovits.
This argument has no substance and I reject it. I note, in this regard, that I would not have been dissuaded from this view by reference to Mr Angelatos’s evidence that the reports from Dr Rajendra and Dr Jacobovits were obtained. The fact that further reports were obtained would not have altered my view.
The alleged need to obtain reports from the treating doctors
Counsel argues that the Deputy President erred in the exercise of her discretion by refusing the adjournment sought in order for a further report to be obtained from Dr Andrianakis and Dr Papadopoulos, causing injustice to Mr Koutroumanis. He contends that the Deputy President erred by failing to conclude that the reports Mr Koutroumanis wanted to obtain from those treating doctors were sufficiently important to warrant the granting of an adjournment. In other words, he argues that the deputy President placed insufficient weight upon what he maintains is the relevant consideration of the absence of what he describes as properly prepared medical reports.
Mr Koutroumanis already had a report from Dr Papadopoulos, but had not provided it to TAC before 31 October 2005. In his 5 June 2005 affidavit, he states his opinion that Dr Papadopoulos’s report did not deal with the issues that were required for the VCAT hearing. At the hearing, Mr Koutroumanis also interjected at one point to tell the Deputy President that Dr Papadopoulos’s report did not deal with the “stigma”.
Mr Koutroumanis, however, also maintains in his affidavit that he asked Dr Papadopoulos for another report, but that the specialist had refused ”on the grounds that it was Dr Andrianakis’s responsibility to do that”. There was no evidence in the transcript relating to the VCAT hearings that Mr Koutroumanis or Mr Angelatos had said anything to this effect to the Deputy President. Mr Angelatos had explained to the Deputy President that, after speaking to Dr Papadopoulos, his impression was that the doctor was reasonably supportive of Mr Koutroumanis, but that “the problem in dealing with Mr Koutroumanis [was] that he [didn’t] trust anybody“.[16]
[16](Ex “EK 2”) Transcript of 25 October 2005 VCAT directions hearing, T 20 lines 1-6.
Dr Papadopoulos gave evidence at the hearing on 31 October 2005. It was not put to him that he had been asked to prepare another report or that he had refused to do so, as Mr Koutroumanis asserts in his affidavit.
In his affidavit, Mr Koutroumanis also states that Dr Andrianakis refused to prepare a report on the basis that it was the responsibility of the gastroenterologist and that Dr Andrianakis would not do so, “especially without his notes”. There was, however, no statement to this effect to the Deputy President recorded in the transcript of the directions hearing on 25 October or the hearing itself on 31 October 2005. The Deputy President also pointed out on 31 October 2005 that there had been no request for the files to be released to Dr Andrianakis. She released them on that day to Mr Angelatos to be provided to Dr Andrianakis for him to prepare a report before he was to give evidence on 7 November 2005.
As I have noted, Mr Angelatos himself also, eventually, told the Tribunal on 31 October 2005 that he doubted whether Dr Andrianakis would provide a further report,[17] telling the Deputy President that he had helped Mr Koutroumanis write to Dr Andrianakis requesting a further report some five months earlier, on 27 May 2005.
[17](Ex “EK 2”) Transcript of 31 October 2005 VCAT hearing, T 83 at line 30.
I note further that, when Dr Andrianakis appeared to give evidence to the Tribunal on 7 November 2005, he did not bring any further report, nor did he say that he had not had time to prepare a report (or himself), notwithstanding the release of the files. The first question Mr Angelatos put to him in examination in chief was as to whether he had received a letter from Mr Koutroumanis dated 27 May 2005 requesting a report. Dr Andrianakis responded that he could not recall.[18] I am not persuaded by counsel’s argument that the fact that Dr Andrianakis failed to produce a report on 7 November establishes that he had insufficient time to prepare one.
[18](Ex “EK2”) Transcript of 7 November 2005 VCAT hearing, T 88 at lines 20-23.
In so far as it is argued that the Deputy President should have adjourned the hearing on 25 or 31 October 2005 to allow Dr Andrianakis to examine Dr Papadopoulos’s report or those from the TAC medico-legal witness, Dr Desmond, it appears from the transcript of his evidence on 7 November 2005 that Dr Andrianakis had read those reports before giving evidence and that he was conversant with their contents. Further Dr Desmond’s report had been served on Mr Koutroumanis’s solicitors on about 23 August 2005 and Dr Papadopoulos’s report had been in Mr Koutroumanis’s own possession at the hearing on 31 October 2005.
I am not persuaded on the basis of the material before the Court that Dr Andrianakis’s evidence would have been any different had he been given any more time than that between 25 October or 31 October and 7 November 2005 to consider any of the relevant reports or his own files relating to Mr Koutroumanis. It follows that I am not persuaded by counsel’s argument that the Deputy President erred by failing to give sufficient weight to the absence of further reports from Dr Andrianakis or that a further report from him was critical to Mr Koutroumanis’s case. I take the same view in relation to the absence of any further report from Dr Papadopoulos.
Mr Koutroumanis appears to have been concerned throughout about the 1987 VCAT decision to appoint a guardian and administrator being dealt with by the Tribunal at the same time as the question whether TAC should be obliged to fund the treatment for his gastric problems. Mr Angelatos admitted that he had unsuccessfully attempted to explain to Mr Koutroumanis that the proceeding before the Deputy President related only to his stomach and not to his mental health, which had been the subject of the previous guardianship application. Furthermore, significantly, Mr Angelatos conceded that the most appropriate course would be to proceed and that Mr Koutroumanis had no basis for a further adjournment.[19] Mr Angelatos told the Tribunal that Mr Koutroumanis would have his hearing in relation to the other matter in December 2005.
[19](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing, T 12 at lines 7-14.
The failure to brief counsel
Counsel for Mr Koutroumanis challenges the exercise of the Deputy President’s discretion by refusing the adjournment applications and argues that there was a procedural unfairness, not only because of the failure to adjourn the proceedings but also because Mr Koutroumanis would also, in other circumstances, have briefed counsel.
Mr Koutroumanis states in his affidavit that, although Mr Angelatos was there, he was not appearing for him; he maintains that it was rather the case that he was running his own case with Mr Angelatos’s assistance. He says he did try to run the case as best he could with Mr Angelatos’s assistance. He also says that he intended to have the best representation possible and to make his limited resources available for that purpose.
Mr Koutroumanis, however, also refers in his affidavit to his discussions with Mr Angelatos about whether he would have a barrister at the hearing. He states that he did not think that, without proper preparation and proper materials, it would have done any good to have a barrister. Mr Koutroumanis makes other statements to the effect that he wished to preserve his resources for when they were needed most. I note that when counsel for Mr Koutroumanis was directed to those passages in the affidavit in this Court, he did not offer any explanation.
Bearing in mind Mr Koutroumanis’s concern about the application relating to the guardianship order which was scheduled for December 2005 and, more generally, in all the circumstances, I am not persuaded that any injustice was caused in this regard by the Deputy President’s refusal to adjourn the proceedings on 25 October or 31 October 2005. There is no evidence of anything which prevented Mr Koutroumanis from briefing counsel between 25 and 31 October 2005. Mr Angelatos did not submit to the Deputy President that the matter ought to be adjourned, so that a barrister could be briefed. Indeed, Mr Angelatos indicated that he was appearing as an advocate, as he had done on many other occasions, and he only asked the Tribunal to be “gentle” with him, given his relative inexperience.
I agree with the submission by counsel for TAC that Mr Koutroumanis has failed to establish that a miscarriage of justice resulted from the suggested incompetence of Mr Angelatos and that, as Kirby J pointed out in Nudd v R[20], it is not the Court’s function in the appeal to rate Mr Angelatos’s conduct of the case “according to some scale of ineptitude”.
[20][2006] HCA 9 at [81].
In so far as any counsel for Mr Koutroumanis argues that injustice resulted from incompetence on the part of Mr Angelatos, I note that the Deputy President assisted in the presentation of Mr Koutroumanis’s case. An example of this assistance is to be seen in her involvement in the re-examination of Dr Papadopoulos.[21] Further, the Deputy President said in her reasons for decision that she had been greatly assisted by Mr Angelatos’s efforts as Mr Koutroumanis’s advocate.[22]
[21]See instances (Ex “EK2”) Transcript of 31 October 2005 VCAT hearing T 62-70.
[22](Ex “EK1”) Written Reasons of Deputy President dated 16 November 2005 at [5].
I am also not persuaded by counsel’s argument that there was any injustice to Mr Koutroumanis as a result of the conduct of the hearing because he himself became involved in addressing the Deputy President, from time to time.
The alleged failure to comprehend the proceeding
There is a further argument that there was procedural unfairness to Mr Koutroumanis on the basis of his assertion that he did not understand the proceedings very well and that the interpreter did not interpret relevant matters to him. Mr Koutroumanis says that he found it hard to follow proceedings because of his eyesight and language problems.
Counsel in this appeal submitted that, when the interpreter interjected to point out that Mr Koutroumanis was not using him or her throughout, the Deputy President might perhaps have enquired as to why Mr Koutroumanis did not understand all of what was happening in the proceeding and that she might have made an effort to ensure that he did understand it. He stated that was as high as he could put the argument about injustice by reason of the lack of an interpreter.
In my view, Mr Koutroumanis has failed to establish that there was any procedural unfairness, by reason of the Deputy President’s failure to adjourn the hearing or at all. He was represented by Mr Angelatos as an advocate as he had been on many previous occasions. He made no application for time to brief counsel. There was an interpreter present. The transcript also records Mr Angelatos speaking Greek to Mr Koutroumanis at one point,[23] so it would appear that he was in a position to perceive any lack of understanding on his client’s part. Further, the interpreter stated that Mr Koutroumanis was only using him or her when he did not understand something. The interpreter had pointed out that, when the interpreter enquired as to whether Mr Koutroumanis did understand a particular matter, Mr Koutroumanis had responded “most of it”. It was up to Mr Koutroumanis, Mr Angelatos and the interpreter between them to work out when and to what extent translation should have taken place. The Deputy President had enquired on 25 October about his need for an interpreter and had been told by Mr Angelatos that he would need one to give evidence. Mr Koutroumanis did not end up giving evidence orally, in any event.
[23](Ex “EK2”) Transcript of 25 October 2005 VCAT directions hearing T 17 at line 20.
I note in this regard that the transcript records a good deal of conversation in English between Mr Koutroumanis and the Deputy President. Although he sometimes spoke in a way that was unclear and ungrammatical, I am not persuaded that he did not understand what was going on and was denied procedural fairness.
I am not persuaded that Mr Koutroumanis has established any error of law (much less a “multitude of errors”[24]) on the part of the Deputy President in the exercise of her discretion or any failure on her part to accord procedural unfairness at the directions hearing on 25 October 2005 or at the hearing on 31 October and 7 and 8 November 2005. Nor am I satisfied that Mr Koutroumanis sustained any injustice as a result of the exercise of the Deputy President’s discretions or by reason of the conduct of the directions hearing or the hearing.
[24]As submitted by counsel for Mr Koutroumanis : transcript of hearing on 18 March 2008, T 86 lines 20-5.
The appeal should be dismissed.
---
0