Luck v Lusty EMS Pty Ltd

[2008] QSC 146

SUPREME COURT OF QUEENSLAND

CITATION:	Luck v Lusty EMS Pty Ltd [2008] QSC 146
PARTIES:	LUCK, Matthew (defendant applicant) v LUSTY EMS Pty Ltd (plaintiff respondent)
FILE NO/S:	BS 6099/2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING
COURT:	Supreme Court
DELIVERED ON:	7 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 July 2008
JUDGE:	Byrne SJA
ORDER:	The order of the Court is for a medical examination of the Plaintiff
CATCHWORDS:	STATUTES – INTERPRETATION-– where application brought under Personal Injuries Proceedings Act 1992 for the plaintiff to undergo medical examination - whether implied constraint on medical examination because s.37 certificate of readiness signed
ss.25,37 Personal Injuries Proceedings Act 2002 UCPR 429G
COUNSEL:	D. Atkinson for the defendant applicant B. Charrington for the plaintiff respondent
SOLICITORS:	Minter Ellison for the defendant applicant Maurice Blackburn Cashman for the plaintiff respondent

1. This is a defendant's application for orders requiring the medical examination of the plaintiff by a specialist to be chosen from a panel of 3 nominated by the defendant.

2. The defendant seeks to invoke s.25 of the Personal Injuries Proceedings Act 2002 (“the Act”) or else UCPR 429G.

3. The application is resisted on the basis that the obligation to submit to an examination under s.25 has ceased because the defendant's solicitors have signed the certificate of readiness required by s.37 of the Act to proceed a compulsory conference. (The conference failed to result in a concluded compromise). A similar objection is raised to reliance on UCPR 429G.

4. The plaintiff's case, shortly stated, is that s.25 and UCPR 429G are to be read restrictively: s.25 as subject to some such implied restriction as that "This section does not apply where a respondent has signed a certificate of readiness under s.37." A corresponding restriction is said to prevent UCPR 429G authorising a medical examination here.

5. The notional addition of such words is said for the plaintiff to be required to enable s.25 and UCPR 429G to function conformably with division 4 of part 1 of the Act.

6. The compulsory conference is an important feature of a legislative scheme that aims (see s.4(2)(b)) to promote early settlement of claims and to ensure the parties are prepared for trial before litigation even commences: cf Gitsham v. Suncorp Metway Insurance [2003] 2 Qd R 251,256. To ensure that the parties are appropriately informed of matters that might affect a decision whether to compromise a claim and, if so, on what terms, the Act requires information pertinent to the claim to be supplied to the other party. See, for example, ss 22 and 27.

7. Section 25 provides a mechanism for enabling a defendant to obtain a medical examination of a plaintiff to inform the deliberations at the compulsory conference or in other compromise negotiations.

8. Section 37 imposes obligations to support the effectiveness of the compulsory conference as a primary means for achieving early resolution.

9. Section 37(1) provides that, at least 7 days before the compulsory conference, each party must give the other (a) copies of all documents not yet…