Maurice Blackburn Cashman v Brown

[2010] HCATrans 331

[2010] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M111 of 2010

B e t w e e n -

MAURICE BLACKBURN CASHMAN

Applicant

and

FIONA HELEN BROWN

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2010, AT 3.00 PM

Copyright in the High Court of Australia

MR M.F. WHEELAHAN, SC:   If the Court pleases, I appear with my learned friend, MR S.A. O’MEARA, for the applicant.  (instructed by Minter Ellison)

MR S.G. O’BRYAN, SC:   May it please the Court, I appear with MR S.R. McCREDIE on behalf of the respondent.  (instructed by Lennon Mazzeo)

FRENCH CJ:   Yes, Mr Wheelahan.

MR WHEELAHAN:   Your Honours, this application raises new aspects with a recurring problem, and the recurring problem is the relationship between the determination of rights to statutory compensation, or workers compensation, by reference to the issues defined by a statute and the trial of common law causes of action and, in particular, the extent to which the former affects the latter.  In this case my client, the applicant, disputes that the respondent suffers from psychiatric injury, severe or otherwise.  It does not accept that the respondent is totally incapacitated for work.

FRENCH CJ:   Your argument is with the proposition that you are, as it were, stuck with the medical panel’s assessment.

MR WHEELAHAN:   Yes, and there were two reasons for which the Court of Appeal held that to be the case; the first as a result of its construction of the relevant provisions of the statute, and I want to make three points about that, and, secondly and tentatively, issue estoppel, and I want to make three points about that.  So if I turn to the statutory construction firstly.  If subsection (15) of 134AB deems the plaintiff, the respondent, to have suffered a serious injury for all purposes and not simply for the purpose of engaging the gateway in subsection (2), then that is a very important component of the plaintiff’s case.

One would expect at trial plaintiff’s counsel will want to open that to the jury.  Plaintiff’s counsel will want to say to the jury, the first thing to bear in mind about this case is you must assume that as at 28 June 2006 my client suffered a severe psychiatric injury, and it is severe as to consequences for pain and suffering and severe as to loss of earning capacity consequences.  Plaintiff’s counsel would want to open to the jury in that way.

BELL J:   But could not.  Is that not your point?

MR WHEELAHAN:   Yes.  Similarly, the judge would be required to instruct the jury as to the effect of subsection (15).  When we look at subsection (23)(b) there is a prohibition on mentioning the fact that the plaintiff is deemed to have suffered a serious injury.

BELL J:   How did the Court of Appeal deal with that?

MR WHEELAHAN:   The court took a very literal approach to subsection (23)(b).  In our submission, the court did not deal with it correctly because had the court dealt with it correctly, it would have applied what this court had held in Project Blue Sky at paragraphs 69 to 72 and would have construed this statute harmoniously.  So subsection (15) sits harmoniously with subsection (23) and the way it sits harmoniously is if the deeming in subsection (15) is simply the key to the gateway, it is the key to the gateway in subsection (2), and that is the correct construction of subsection (15), in our submission.

The second of three points in relation to the statutory construction concerns the orders which the court made.  If I could ask the Court to leave the Act open and turn to subsections (37) and (38) and at the same time turn up the orders which the court made, which appear at page 80 of the application book.  Now, in answer to questions (2) and (3) that the Court of Appeal ordered that:

The defendant is prohibited –

from doing various things –

(a)making any assertion, whether by pleading, submission or otherwise; and

(b)leading or eliciting evidence, whether in evidence‑in‑chief, cross‑examination or re‑examination;

which is inconsistent with the opinion of the Medical Panel –

The court then went further and in paragraphs (i) and (ii) elaborated on what it had previously declared by introducing the concepts of:

permanent . . . mental or behavioural disturbance or disorder –

If I could just ask the Court to note the words in brackets:

(in the sense of being likely to last into the foreseeable future).

Now, those words do not appear in this Act.  Those words are taken from a decision of the Court of Appeal in a case called Barwon Spinners v Podolak and from the reasons of Justice J.D. Phillips at paragraph 34.  What then follows, that is, the references to “mental or behavioural disturbance of disorder”, those concepts are lifted, they have been imported into the order from the provisions in subsection (38).  Now, could I ask the Court to look subsection (38) ‑ ‑ ‑

FRENCH CJ:   Subsection (38).

MR WHEELAHAN:   Of 134AB, yes.

FRENCH CJ:   Yes.

MR WHEELAHAN:   We have to look at it together with subsection (37).  Now, subsection (37) is a definitional provision and it defines, amongst other things, “serious injury” just above subsection (38).  Subsection (38), however, is not, in our submission, a definitional provision.  Subsection (38) dictates certain criteria or “the assessment of serious injury” under subsections (16) and (19).  Now, just pausing there, this case did not concern an assessment of serious injury.  It is a deemed serious injury by reference ‑ ‑ ‑

FRENCH CJ:   Because it is more than 30 per cent of the impairment?

MR WHEELAHAN:   Yes, and that is just a scoring exercise done by two psychiatrists.

BELL J:   This is the assessment in accordance with the guides for the purpose of the statutory compensation?

MR WHEELAHAN:   Yes.  We have provided the Court with a copy of the relevant clinical guidelines which were published in the Government Gazette, but it is a scoring exercise.  It is not an assessment which is undertaken in any way by reference to the criteria in subsection (38).

FRENCH CJ:   That function incidentally is the function done under sections 67 and 68.

MR WHEELAHAN:   Yes, and pursuant particularly to 104B(9) which picks up 67 and 68.

FRENCH CJ:   Yes, that is right. 

MR WHEELAHAN:   So what the Court of Appeal has done then is it has then picked up the serious injury assessment criteria in subsection (38) and, in particular, paragraph (b) where it refers to consequences and imported it into the order.  Now, in our submission, the order in that regard is not supported by a proper construction of the statute.  The third point we make in relation to the statutory construction is the court has not followed its earlier decision in Pope v Walker.  We have supplied the Court with a copy of Pope v Walker.  The crucial passage in Pope v Walker is set out in our summary at page 98 of the application book.  The Court of Appeal in a judgment of Justice Eames with whom the other judges, Justices Neave and Bell, agreed, considered the very point, by way of obiter, that they considered the very point which arose in this case.  Justice Eames considered that subsection 68(4) ought to be read down, and these are his Honour’s words:

Otherwise, the subsection would bind, for example, a jury hearing a common law damages claim, and would do so even if the claim was brought against a non‑employer, in addition to an employer.

Now, we do not have a non‑employer here, but there is no reason why the Court of Appeal’s decision in this case would not operate in the way identified by Justice Eames.  Now, Justice Ashley in this case considered our submissions in relation to Pope v Walker commencing at page 71 of the application book at paragraph 171 and distinguished Pope v Walker, but his Honour did not refer to, deal with or seek to explain the passage from Justice Eames’ judgment at paragraph 23 to which we have just taken the Court.  So we are left with the position where we have two Court of Appeal decisions which are in conflict.

FRENCH CJ:   Now, I just want to make sure I understand the statutory relationships here.  You have 134AB, which regulates actions for damages in respect of injury arising in the course of employment, and you have this preclusive provision in 134AB(23) and, in particular, paragraph (b).

MR WHEELAHAN:   Yes.

FRENCH CJ:   Then in addition to that, you have 68(4) which is in the nature of a privative provision in connection with “the opinion of a Medical Panel”.

MR WHEELAHAN:   Yes.

FRENCH CJ:   Now, Pope v Walker was talking about 68(4), was it not?

MR WHEELAHAN:   Yes.  So the point of Pope v Walker was that in the context of statutory compensation a conciliation officer referred some questions to a medical panel, as he is empowered to do.

FRENCH CJ:   Yes.

MR WHEELAHAN:   The medical panel provided an opinion ‑ ‑ ‑

FRENCH CJ:   He does that under 104B?

MR WHEELAHAN:   No, it was under the statutory compensation provisions earlier in the Act, not a 104B reference.

FRENCH CJ:   Okay.

MR WHEELAHAN:   Later, the worker sought leave to commence a common law proceeding under 134AB(16)(b).  So that was one of the three gateways for the commencement of a common law proceeding.  The judge raised the question, that is, the primary judge in Pope v Walker, whether he was bound by the opinion of the medical panel obtained for statutory compensation purposes and, notwithstanding the submissions of both counsel, the primary judge held that he was bound by the opinion.  His Honour was reversed by the Court of Appeal.  The ratio of the Court of Appeal’s decision is that 68(4) has to be read down, it cannot be read literally.

FRENCH CJ:   Right.

MR WHEELAHAN:   In the course of coming to that decision Justice Eames gave the example, well, if it was read literally, a medical panel opinion obtained for statutory compensation purposes would bind a jury at a common law trial, and that is the effect of the Court of Appeal’s decision in this case, because Justice Ashley purported to apply 68(4) without seeking to deal with what Justice Eames had said at paragraph 23 in Pope v Walker.

BELL J:   Again, just to better understand section 134AB, which can take a bit of time, I think, the Court of Appeal saw a lack of symmetry in the idea that one might have as the result of a (16)(b) determination an estoppel, and a (16)(b) determination only arising in a circumstance where the opinion of the panel is as to a degree of impairment less than 30 per cent.

MR WHEELAHAN:   Yes.

BELL J:   So, as I understand it, the view was taken, well, it would be an odd result, bearing in mind the operation of the estoppel in the (16)(b) circumstance, if one was not bound by the panel opinion in subsection (15).

MR WHEELAHAN:   Yes.  That, with respect, is a correct reflection of what the Court of Appeal said.

BELL J:   The difference is the (16)(b) exercise is an exercise by a judge hearing evidence and the leave application, as I understand it, is one not only in which the judge is required to give full reasons for the leave but it is a full‑blooded contest.

MR WHEELAHAN:   Yes, and it is subject to appeal as of right.  One does not need leave to appeal.  Can I identify a flaw in the Court of Appeal’s reasoning as to the suggestion that there is symmetry.

BELL J:   Yes.

MR WHEELAHAN:   The flaw is this.  There are actually three gateways.  The three gateways are the 30 per cent, the application for leave, the third gateway is consent, consent of the authority under (16)(a).  Now, the Court of Appeal does not deal in its reasons, or it does not even suggest that consent of the authority could give rise to an issue estoppel or a deemed serious injury, and we submit it gives rise to neither.  This is actually a three‑legged stool.  The suggestion that there would be a lack of symmetry is a wrong suggestion, in our submission.

FRENCH CJ:   How does this word “issue estoppel” get into the Act at all?  I notice that the Court of Appeal refers to the submission that there is an issue estoppel.

MR WHEELAHAN:   It was in paragraph (19)(c) of 134AB which, as we noted in our written submissions, was repealed by the Accident Compensation Amendment Act 2010.

FRENCH CJ:   I see.  It is a statutory issue estoppel, yes.

MR WHEELAHAN:   Well, it was an issue estoppel framed by the statute.  So the statute had as a premise there will be no issue estoppel except on the question of serious injury.  We had an argument about what that meant in the other side of this case which ‑ ‑ ‑

FRENCH CJ:   What principle of law moves into generate an issue estoppel in the case of a finding that the injury is a serious injury, if it is a finding by the panel?  It is not a judicial process.

MR WHEELAHAN:   Well, that is our submission, but the Court of Appeal held against us on that.

FRENCH CJ:   Yes, I am just trying to understand how it was said to be generated.

MR WHEELAHAN:   What would be said against us is that it determines a right to compensation, so in that sense it is an adjudication.  It might be convenient if I deal with my issue estoppel submissions, of which I have three.

FRENCH CJ:   Yes.

MR WHEELAHAN:   Could I start with the question of whether it is a final judicial decision.  Our submission is that it is not, because the opinion of the medical panel does not extinguish any cause of action.  It is simply an event which has fixed statutory consequences.  So that is the first reason why there is no issue estoppel.  The second reason is, the same question does not arise in the common law trial and this Court’s decisions in Ramsay v Pigram and Kuligowski v Metrobus stand in the way of there being an issue estoppel in this case because the only question, if there was a question, determined by the medical panel was the calculation of an impairment level for a particular statutory purpose.  That question does not arise in the common law proceeding.

The third reason we say no issue estoppel arises is because it would be inconsistent again with the statutory scheme in 134AB and, in particular, again it would be inconsistent with subsection (23)(b) because in order to prove the relevant record which would give rise to the issue estoppel, one would imagine you would have to tender, if you had to, the medical panel opinion.  So for all those reasons, we say that the decision of the Court of Appeal is attended with error and the error has consequences not just for the trial in this proceeding, but the trial of all proceedings.  Not simply trials, the management of all proceedings which are commenced after a plaintiff has obtained an impairment assessment of more than 30 per cent.

FRENCH CJ:   Sorry, can I just understand.  The Court of Appeal did not reach a concluded view on the question of issue estoppel?

MR WHEELAHAN:   That is correct.

FRENCH CJ:   You describe it as a tentative ‑ ‑ ‑

MR WHEELAHAN:   Tentative, yes.

FRENCH CJ:   Well, where does it affect the outcome and why is there a ground of appeal relating to it?

MR WHEELAHAN:   If we were successful on the statutory construction point, either it might be said against us that we also have to defeat the issue estoppel ‑ ‑ ‑

FRENCH CJ:   Well, they might have to raise a notice of contention to deal with that.

MR WHEELAHAN:   That may be the case, and if they ‑ ‑ ‑

FRENCH CJ:   It would not be a matter of appeal.

MR WHEELAHAN:   That may be the case, your Honour, and if our learned friends wish to abandon the issue estoppel pleas because it is in their pleading, then we do not have to deal with it.

FRENCH CJ:   If the Court of Appeal did not make a finding adverse to you about it, it is not clear to me at the moment – though I might hear obviously what Mr O’Bryan has to say – how it qualifies to become a ground of your appeal as distinct from a notice of contention.  Anyway, we can hear from him about that.

MR WHEELAHAN:   If the Court pleases.

FRENCH CJ:   Yes, all right, thank you.  Yes, Mr O’Bryan.

MR O’BRYAN:   If your Honours please.  Your Honours, the suggested point of general importance in this case – and I am reading from paragraph 32 of our learned friend’s primary submissions at page 98 of the application book – is that the questions raised have profound significance in common law proceedings in Victoria.  Firstly, we strongly take issue with that.  It is a very small subset of common law proceedings, apart from the obvious fact that we are only talking about work injury related proceedings.  The subset, and it is a fairly rare subset relatively, only involves obviously medical panel opinions where 30 per cent or more level of permanent impairment is found and that is very much the exception. 

Most matters are dealt with – your Honours will be aware, the County Court is filled with applications seeking leave before judges under subsection (16)(b) under 134AB where people fall below 30 per cent, generally speaking.  So we are in a fairly rarefied atmosphere anyway.  Moreover, it is a situation where – if I can call it the statutory estoppel, it is probably not quite the right terminology – but if I can call the section 68(4) point statutory estoppel for the purposes of the argument where it has a very narrow scope of operation, namely, it is only as at the time of the opinion, and in this particular case obviously back in June of 2006, and says nothing as to the future, although there is an accepted common law definition of “permanent” because permanent itself is not defined for these purposes in the Act, so that it is ‑ ‑ ‑

FRENCH CJ:   It is just a privative provision, is it not?

MR O’BRYAN:   Yes, your Honour.

FRENCH CJ:   Perhaps with a bit of added high octane, it must be accepted as, it is not just cannot be challenged but must be accepted, so perhaps it goes a little further, but it seems to have the character primarily of you cannot challenge this and the certificate or the determination of the panel must be taken to be correct.

MR O’BRYAN:   Yes, with respect.

FRENCH CJ:   I think it rather confuses the issue to bring in words like “estoppel” because that has a lot of baggage.

MR O’BRYAN:   I had not intended the baggage.

FRENCH CJ:   Yes.

MR O’BRYAN:   Your Honour, if I could just finish my point, if I may, as to how non‑profound the impact of this will be.  Firstly, we are looking at a date in the past and that date, it says nothing as to the future.  Permanent impairment can change, it can change, and it does not stop a defendant from arguing in the trial that it has changed.  Then if one looks at the content of this as at June 2006, it is limited to severe injury of this kind, it is limited to permanent within the common law and therefore intended statutory meaning and it really carries very little else in terms of significance and it may ‑ ‑ ‑

BELL J:   Well, I have no idea, as a matter of daily practice in the County Court, how frequently proceedings of this character arise, but to say that a conclusion that the opinion of a medical panel as to the percentage impairment of injury in proceedings, in common law proceedings in front of a jury, has the effect that this decision confers on it would seem to have some significant ramification for the conduct of common law proceedings in courts in Victoria on those occasions where an injured worker has got through the gateway.

MR O’BRYAN:   Yes.  We are not saying it may not have a ramification, your Honour, but we are just taking issue with the profound significance that is relied on as a matter of general importance.

BELL J:   Well, let us get rid of the words “profound significance” and just acknowledge that it is a point not without ‑ ‑ ‑

MR O’BRYAN:   Yes.  It may have ramification, it may, and, of course, in this case it may or may not, it depends on what the defendant has up its sleeve and how it wants to argue its case, so that ‑ ‑ ‑

BELL J:   The defendant does not have much chance to argue its case in the way the matter now lies.

MR O’BRYAN:   On that, we would submit, that issue, that precise issue, it can argue breach of duty and all sorts of things and damages and level of pain and suffering, et cetera, that goes to damages, it is limited on this limited issue.  Coming perhaps to the significance of the medical opinion itself which your Honours have been raising, the actual opinion is given particular standing, we would submit, when one looks, in particular between sections 63 and 65 of the Act, at the independence of the panel, the level of expertise of the panel, the procedures and powers.

BELL J:   Well, let us assume those things.  This is a decision arrived at by a panel under the statutory scheme.  There has been no opportunity to test it.  I think taking us to those parts of the legislation that show that only qualified people are likely to become members of a panel will not ‑ ‑ ‑

FRENCH CJ:   What is the nature of the process before the panel, Mr O’Bryan?  Is it simply how you look at things on the papers?  Is it an adversarial process?

MR O’BRYAN:   It is largely within their control, your Honour, so that ‑ ‑ ‑

FRENCH CJ:   Section 65 ‑ ‑ ‑

MR O’BRYAN:   I think 65 is essentially the procedures, and they are not bound by the rules of evidence, but then again I do not think a judge is in a subsection (16)(b) application, but – I am told he is.  I thought he was not, but if he is, he is.  But at any rate, the nature of the procedure is set out in section 65 and the panel can do a combination of decision on the papers and, as you can see in section 65(5), calling the worker to meet with the panel, et cetera, and ‑ ‑ ‑

FRENCH CJ:   What is the employer’s input?

MR O’BRYAN:   The employer does, I think, at least put in various material.  If you will excuse me for a moment, my learned junior has a good working knowledge of this, his bread and butter.  You also have to read with 65, your Honour, the procedures in 104B.

FRENCH CJ:   Yes.

MR O’BRYAN:   There is all the preliminary medical reports and such that would have been the background to the employer or authority’s assessments which would be before the panel as well.  Yes, it is not what you might call strictly an adversarial procedure, but it is not a one‑sided procedure for all that.

FRENCH CJ:   Well, does the employer have the right to make submissions to the panel?

MR O’BRYAN:   As we understand it, the employer has input into the section 65(6A) procedure, but that would be done on the papers.  Although there is no ability to appeal, as your Honours are aware, there has always been an ability under Administrative Law Act provisions to review, but obviously restricted to what administrative law permits – judicial review.  Of course, under the Administrative Law Act (Vic) reasons can be required and, as we understand the position, traditionally reasons have been given, but, as I say, they can be extracted under the Administrative Law Act.  Quite recently there have been amendments to require reasons, but that, I think, postdates the Act at the time the matter was argued.

BELL J:   Can I just take up with you, Mr O’Bryan, this question of the symmetry in the provisions of subsection (15) and (16)(b) which the Court of Appeal referred to and just raise with you whether an asymmetrical feature is the distinction that the proceedings before the judge in the case of a leave application are open to being fully contested, evidence led on both sides and so forth?  It seems just a very different procedure and that might explain the different effect of the two determinations.

MR O’BRYAN:   Yes, can I take that on board, your Honour, but before that just add one thing that I was going to finish on?

BELL J:   Yes, I am sorry.

MR O’BRYAN:   Which is, of course, that the medical panel opinion is given in the context of a dispute.  There is obviously a dispute that is being determined here, and that, we submit, is important and it is recognised in Metrobus.  I do not think it is an issue, that even though it might be what you might call an administrative body and not a court strictly, if it is determining a dispute, as we submit this is part of the determination of a dispute procedure, that that is also relevant, just as the judge who hears the (16)(b) application is determining a dispute.  The determination has the consequences like a judgment where, putting aside the fact that it cannot be appealed as such, statutory benefits, for example, will flow if that is a matter that has been in dispute, so that it has important consequences under the Act.

All that one has to do is do the mathematics and if you do the mathematics in, for instance, a table of names type of situation, once the dispute has been resolved between the parties by the panel opinion, you will end up, depending on the outcome, with money flowing in a statutory benefit sense, for example.  So it does have important consequences which bind the parties as if a court had ruled that benefits are to flow.  I might have only half answered your Honour Justice Bell’s question, but it was just a matter that was still in my mind I wanted to get out before I went any further.

Now, added to that are the words of 68(4) in the widest possible words and we submit that they are the words Parliament chose, they are very wide and the three pillars which our learned friends rely on and relied on below to try to somehow find a way of defeating those words, none of them, we submit, are valid.  There is the jury, what the jury can and cannot be told, but our simple answer to that is, that is amongst a list of things that we submit quite sensibly are matters that may well serve to distract a jury from its proper functions of properly considering in the evidence.  There are good reasons why you would not put those technical matters before a jury.  As far as handling the effect and consequences of the 68(4) restriction, the trial judge is perfectly able to manage that without having to burden the jury with those sorts of technical matters, and that is, as we see it, effectively how Justice Ashley dealt with that.

So the important thing is, it says nothing about that particular matter – subsection (23)(b), says nothing about 68(4), nothing whatsoever, and it is explicable in another way.  Then the two cases our learned friends rely on, a short piece of obiter from the Brambles v Wail Case, we take no issue with any of that short piece of obiter, but the problem for our learned friends is the Court of Appeal there was not addressing the question that Justice Ashley was addressing.  They were only addressing it in an obiter way, as I say, and looking at the gateway and nothing they said there could have any impact on the scope of 68(4), we submit.  It is not intended to have any impact. 

One assumes the court chose its words carefully and each sentence is quite correct, but has nothing to do with the proper construction of 68(4) and its application, and Pope’s Case, there is a difference between the parties as to what that means.  We make the same point about Pope’s Case.  Pope’s Case, in essence, the decision was that there is a reading down to be done and that one looks at the purpose behind the obtaining of the panel opinion and his Honour Justice Eames, who delivered the primary judgment in Pope’s Case, decided that it needed to be read down to the extent of looking at the purpose for which this was obtained. 

One sees on the face of the opinion it was obtained for purposes, inter alia, and intended to be used for purposes, inter alia, of 134AB.  Section 134AB is, as our learned friends say, the gateway to being able to bring common law proceedings, and that brings us to the symmetry argument where, if you can have an estoppel, as the statute appeared to intend with the old (19)(b) I think it was, then it makes perfect sense, logical and sensible, that if you have jumped the higher bar, which our situation is actually the higher bar of 30 per cent plus impairment, it makes sense that the basis for that, namely, the panel opinion, is to be given some level of assuredness or certainty down the track and application. 

I should add, that nothing that the Court of Appeal in Pope’s Case addressed the issue that is now being looked at, we submit.  One can imagine a situation – if I could stick with the symmetry argument – where, as Justice Eames said in Pope’s Case, a judge doing a (16)(b) application may call for medical questions to be answered by the panel.  He has got that power, and Justice Eames talks about that in Pope’s Case.  He can call for the opinion. 

If he receives the opinion and if the Brumar decision is correct based on the legislation as it was before it got changed after the argument in the Brumar appeal, if it is correct, then the judge is bound by the panel opinion and, therefore, that would flow through to the common law trial where an aspect of the judge being bound by the panel opinion means that when you track back through what the judge had to do in following the panel opinion, it comes from the panel itself.  So why would Parliament have intended anything different when we look at a panel opinion that avoids the need for a judge?  We submit that is quite a considerable consideration when one looks at the symmetry.

BELL J:   I do not know that I fully understood that, and that may be just my lack of understanding of the (16)(b) procedure, but the (16)(b) procedure assumes that the panel has determined an assessment of impairment of less than 30 per cent, is that right?

MR O’BRYAN:   Not necessarily, your Honour.  You may have had a panel opinion that put you under 30, in which case you go to the judge, or you might have bypassed the panel, you can bypass the panel, and gone straight to the judge, and the judge himself has the power, as Justice Eames talks about in Pope’s Case, to call for the panel to answer some medical questions.  Now, that could have happened here.  We could have bypassed the panel.  We could have exercised our right under subsection (3)(b) of 134AB and we could have gone straight to, ultimately, the judge without this panel opinion. 

The judge could have, theoretically, called for a medical opinion from the panel and he could have received this very opinion and according to the Brumar decision, which we submit is soundly based on the legislation as it was, that aspect of the judge’s decision would have been driven by the panel’s opinion according to Pope’s Case.  So if we had gone the judge route and that had happened, theoretically, that panel opinion would have – consequences would have flowed through to the jury trial and that is why we say rhetorically, why would Parliament have intended any different result just because we have been lucky enough to avoid the judge application and we have been able to get the panel to get us to 30 per cent?

BELL J:   In an instance where the panel makes an assessment of less than 30 per cent impairment and the worker brings a (16)(b) application, the judge is there required, presumably on the evidence tendered before him or her, to come to a conclusion about a level of impairment being greater than 30 per cent, is that right?

MR O’BRYAN:   No, the judge just has to decide whether it is a serious injury within the meaning of those later provisions.

BELL J:   Yes.  So the judge makes that assessment based on evidence led before the judge and in light of the submissions that the parties make?

MR O’BRYAN:   Yes.

BELL J:   In that circumstance, the judge’s holding that it is a serious injury is one that is not then revisited on the hearing, is that the way the scheme works?

MR O’BRYAN:   Yes, that is right.

BELL J:   In the way that it is ‑ ‑ ‑

MR O’BRYAN:   Yes, that is how it will work now with the new (19A), but under the Brumar decision – of course, the issue estoppel would arise under the Brumar decision, but now it is all changed with the new (19A), the whole statutory landscape was changed.

BELL J:   I am trying to understand the concept of the symmetry with which the Court of Appeal was concerned in the context of the legislation as it stood at the time.

MR O’BRYAN:   Yes.

BELL J:   All I am raising with you is whether it is right to see that a leave application under (16)(b) at that time in the case of a worker who had not satisfied the medical panel that his or her impairment was 30 per cent or more involved a hearing on evidence led before the judge with a conclusion being formed after the judge had the benefit of submissions with respect to whether or not the worker had suffered a serious injury and that determination then was one that was not revisited.  Have I put that correctly as at the time?

MR O’BRYAN:   Yes, and in the sense that at that previous time when Brumar was decided the issue estoppel would arise in respect of the judge’s decision.

BELL J:   Yes.

MR O’BRYAN:   Could I just add one thing, your Honour, and that is that if a judge had a medical panel opinion that was, say, two or three years old and you were only, say, 20 per cent, there is nothing to stop a judge, in theory – and this is getting back to what Justice Eames said in Pope’s Case – there is nothing to stop the judge saying, “Look, this is a bit old, I would not mind referring similar questions again to a panel because we are a few years down the track”, there would be nothing to stop, we would submit, a judge from doing that and getting an update and theoretically getting a 30 per cent result which would then – it would all be over.  The judge would stop at that point because you have got a deemed serious injury, and that could have been our case theoretically too.  So I am just saying that these panel opinions, under the Brumar result, they could well have flowed through to the common law trial in an estoppel sense.

I know I have been on a red light for a while.  Could I just finish on the basis that the problem with the changed landscape now with the changes that were made reversing the old (19)(c) into the now (19A), the problem is the whole statutory landscape has changed and so if this Court were to grant leave, we now have to argue it under a new statutory landscape because the new provisions will apply to this trial and they are all retrospective.  Our learned friends have not said in their submissions that they will not be trying to argue before the trial judge that the landscape has changed to the point where they now can escape the consequences of the Court of Appeal’s decision in this case, they have not said that, and they are not barred from trying to do that.

So that we will all be having a fresh argument on a new statutory landscape and, as so often happens with this Act, who is to say, just like with the Brumar appeal, that if they do not feel it went well for them that it will not be changed before the decision?  They have got the ability, as we saw with changing the Brumar statutory landscape, to just change it at the drop of a hat when they think things are not going so well.  That is why we submit it is a very unsatisfactory and unsafe vehicle.  Let them go back to the trial judge, we submit, and put such arguments as they want to put and it may be that this decision has no real impact on the way the trial is run.  We just do not know.

FRENCH CJ:   Thank you, Mr O’Bryan.

MR O’BRYAN:   If the Court pleases.

FRENCH CJ:   Yes, Mr Wheelahan.

MR WHEELAHAN:   Three points in reply, if the Court pleases.  Firstly, in relation to the insertion of subsection (19A), that occurred after the matter was argued before the Court of Appeal but before the Court of Appeal’s decision.  So the Court should not think in consequence of our learned friend’s submissions that the amendment is something that might be raised for the first time at the trial.  The amendment was effected and became effective before the Court of Appeal handed down its decision.

The second point is that we do not understand our learned friend’s submission made about five minutes ago to the effect that a judge hearing a (16)(b) application might order an impairment assessment of the worker.  The a judge hearing a (16)(b) application has no such power.  The judge may, however, refer medical questions of a different character to a medical panel for the purpose of determining the issues which the judge has to undertake on the (16)(b) application, which is the assessment of serious injury by reference to the criteria in subsection (38), and not by reference to scoring an impairment in accordance with guidelines.  That is an exercise which is peculiar to the impairment assessment.

The third and final point is that in relation to the number of cases which go through the system, my instructions are that for the calendar year 2009, 85 applications to bring common law proceedings entered the gateway through the 30 per cent impairment assessment and for the year to 30 November 2010 there have been 132 such applications.  If the Court pleases.

FRENCH CJ:   The Court will adjourn briefly to consider what course it should take.

AT 3.52 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.02 PM:

FRENCH CJ:   Yes, well, there will be a grant of special leave in this matter, but, Mr Wheelahan, I would just like to ask you about, first of all, ground 2, that is at page 87, and related to that the relief you are seeking in B.1.1.  You do not have a finding adverse to you on this question of issue estoppels and they had dealt with that question in the Court of Appeal by saying it was unnecessary to answer it, I think, is that right?

MR WHEELAHAN:   Yes, I accept we do not need to agitate issue estoppel and it would only arise if our learned friends sought to file a notice of contention.

FRENCH CJ:   Yes, and you will undertake to pay the respondent’s costs of the appeal in any event?

MR WHEELAHAN:   Yes, we do.

FRENCH CJ:   What is your estimate of time?

MR WHEELAHAN:   A day.

FRENCH CJ:   Yes.  Mr O’Bryan?

MR O’BRYAN:   Yes, we agree with that, your Honour, a day.

FRENCH CJ:   Are you likely to be filing a notice of contention?

MR O’BRYAN:   I think at this stage we are, your Honour.

FRENCH CJ:   Yes, all right.  Now, could I just draw to your attention the new rules which will be coming into effect on 1 January.  There is now a revised timetable provided for those rules for the filing of material in appeals and it may well be that this matter will come on for hearing in the March sittings.  So I would ask the parties to liaise with the Registry in relation to the necessary times for filing documents to fit in with those new rule requirements.

MR WHEELAHAN:   If the Court pleases.  In view of our learned friend’s indication that there would be a notice of contention, I would think a day and a half would be more realistic.

FRENCH CJ:   Yes, well, I will bear that in mind.  I am not sure we want to spend more than a day on this Act.  Yes, all right.  Thank you.  We will adjourn now until 2.15 pm on Wednesday, 15 December 2010, in Canberra.

AT 4.04 PM THE MATTER WAS CONCLUDED