McAlister v Leitch & ors [Revision No 1, 1 March 2011]
[2011] VSC 51
•28 February 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST S CI 2010 03612
| JULIE McALISTER | Plaintiff |
| v | |
| ROBERT LEITCH AND MARK FARAGHER (in their capacity as members of a medical panel pursuant to Part VBA of the Wrongs Act 1958) | First and Second Defendants |
| and | |
| FRANKSTON AUSTRALIAN CLAY TARGET CLUB INC | Third Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 February 2011 | |
DATE OF JUDGMENT: | 28 February 2011 | |
CASE MAY BE CITED AS: | McAlister v Leitch & ors [Revision No 1, 1 March 2011] | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 51 | |
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ADMINISTRATIVE LAW – Judicial review – Certiorari – Jurisdictional error – Certificate of assessment certifying that plaintiff’s injury exceeds threshold for ‘significant injury’ within meaning of Part VBA of Wrongs Act 1958 so as to entitle plaintiff to recover damages for non-economic loss – Medical question referred by defendant to medical panel in response to certificate – Opinion of medical panel that threshold not met – Concession that panel failed to take relevant consideration into account and thus committed jurisdictional error – Panel’s opinion to be quashed accordingly – Additional ground advanced of lack of jurisdiction on any remittal due to alleged deemed acceptance by defendant/respondent of certificate, thereby rendering referral invalid – Whether a purported response under s 28LW(2)(b) of Wrongs Act 1958 to a certificate is a valid and effective response if it fails to expressly state that ‘the respondent is a proper respondent to the claim’ – Meaning of ‘proper respondent’ in Part VBA of the Wrongs Act 1958 – Held: defendant/respondent not deemed to have accepted certificate of assessment – Referral valid – Medical question remitted for redetermination – Wrongs Act 1958 ss 28LB, 28LE, 28LF, 28LN, 28LO, 28LP, 28LQ, 28LT, 28LW, 28LWA, 28LWB, 28LWC, 28LWD and 28LWE – Wrongs (Part VBA Claims) Regulations 2005 reg 6.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | S McCredie | Lennon Mazzeo |
| For the Third Defendant | MF Fleming SC and G Wicks | Thomson Playford Cutlers |
HIS HONOUR:
Overview
The Wrongs Act 1958 (Vic) (“the Act”) precludes the recovery of damages for non-economic loss (general damages) in a common law personal injury case, except where it is established by specified separate procedures that the person injured has suffered significant injury as defined: see Part VBA of the Act, comprising ss 28LB to 28LZQ.
Under the procedures, the existence of significant injury can be established as against a particular person by that person’s waiver, in certain circumstances, of the statutory requirement that would otherwise apply that the person injured be assessed by an approved medical practitioner to have met a specified threshold level of impairment. Significant injury can also be established by actual acceptance, or by deemed acceptance, of a statutory medical assessment certificate served by the claimant on the person concerned. Otherwise, the issue can only be resolved by referral to a medical panel in accordance with the Act.
In the present case the plaintiff, Ms Julie McAlister, challenges under the Administrative Law Act 1978 a determination made by a medical panel on 30 May 2010 that she had not relevantly suffered “significant injury”. The determination of the panel was made upon a referral to the panel by the third defendant, Frankston Australian Clay Target Club Inc (“the Club”). The first and second defendants are the members of the panel and have agreed to abide the outcome of the proceeding in the conventional way.
It is now common ground between Ms McAlister and the Club that the medical panel’s opinion is vitiated by jurisdictional error in that the panel failed to take into account the psychiatric injury or injuries alleged to have been suffered by Ms McAlister. Having considered the relevant material, I am satisfied that the parties are correct in that respect and that the opinion of the medical panel falls to be quashed accordingly by an order in the nature of certiorari.
However, Ms McAlister also claims that the panel’s decision should be quashed on a further ground. She submits that the referral to the panel by the Club was beyond the Club’s power and was therefore ineffective to confer jurisdiction or power on the panel to entertain the question referred; and that, accordingly, there is nothing required or able to be done now by the panel or by any reconstituted panel in relation to the purported referral. These submissions are based on the proposition, put forward in ground (a) of the order nisi for review, that the Club was “barred” from referring the medical question to the panel, because the Club was deemed to have accepted a certificate of assessment, previously served upon the Club by Ms McAlister, to the effect that Ms McAlister did meet the statutory threshold for significant injury. That deemed acceptance is alleged to flow from an alleged omission by the Club to include in its written response to the certificate an express statement pursuant to s 28LW(2)(b) of the Act that the Club was a “proper respondent to the claim”.
I do not accept the plaintiff’s deemed acceptance point. The point is based on a misinterpretation of the relevant statutory provisions and on an inappropriate reading of the relevant communications between the parties, as I will endeavour to show.
In these circumstances, it will not be necessary for me to consider the Club’s alternative submission to the effect that, by reason of her alleged waiver and delay, the plaintiff cannot rely, or should not be permitted to rely, on the deemed acceptance point.
The statutory provisions
The expressions “claimant” and “respondent” appear frequently in the relevant provisions. They are defined in s 28LB as follows:
claimant means a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person;
…
respondent, in relation to a claim, means the person against whom the claim is made; …
Neither “claim” nor “proper respondent to the claim” is separately defined in the Act.
Section 28LE is as follows:
28LE Restriction on recovery of damages for non-economic loss
A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
So far as presently relevant, sub-sections s 28LF(1) and (2) provide:
“28LF What is significant injury?
(1)For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if—
(a)the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
…
(2)For the purposes of this Part psychiatric injury to a person is significant injury if—
(a)the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
… .
Division 3 lays down requirements as to the qualifications of impairment assessors and as to the methods of assessment to be used, and it sets out certain related requirements. Among them is the requirement contained in s 28LN(1), as follows:
28LN Certificate of assessment
(1)Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
Division 4 contains the provisions of most relevance for present purposes. It is entitled “Procedure for Claim for Non-Economic Loss”.
Within Division 4, s 28LO should first be noted. It provides:
28LO Agreement to waive assessment of impairment
(1)A claimant may, in writing, ask the respondent to waive the requirement for an assessment of degree of impairment under this Part.
(1A)A request under subsection (1) must be in the prescribed form (if any) and include the prescribed information (if any).
(2)A respondent to whom a request under subsection (1) is made must respond in writing to the request within 60 days after receiving it.
(3)The response must—
(a)state that the respondent is a proper respondent to the claim and state that the respondent agrees to waive the requirement for the assessment of degree of impairment under this Part because the injury is significant injury; or
(b)state that the respondent is a proper respondent to the claim and request that the claimant obtain an assessment of degree of impairment under this Part; or
(c)if the respondent is unable to decide, on the information contained in the request, whether the respondent is a proper respondent to the claim, advise the claimant of the further information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim; or
(d)state that the respondent believes that the respondent is not a proper respondent to the claim, give the reasons for the belief and give any information that may help the claimant to identify the proper respondent.
(4)If the respondent fails to respond within the 60 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent.
(5)Information prescribed for the purposes of subsection (1A) may include information relating to—
(a)the identity of the claimant;
(b)the nature of the claim;
(c)the injury;
(d)the incident out of which the alleged injury arose;
(e)any medical practitioner who has treated the injury.
Section 28LP(1) provides that if under s 28LO(3)(c) the respondent advises a claimant that specified further information is needed, the claimant must give the respondent the information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim. The respondent must then respond in the manner set out in ss 28LO(3)(a) (b) or (d) within 60 days after receiving the information (see s 28LP(2)). If the respondent fails to respond within the 60 days, the requirement for the assessment of degree of impairment cannot be waived by the respondent (see s 28LP(3)).
Section 28LQ deals with procedures for attempting to obtain a waiver in cases where the respondent denies that it is a proper respondent. The heading to s 28LQ is noteworthy, to wit: “What if the respondent disputes responsibility?”.[1] Section 28LQ provides, in effect, that if a respondent responds in accordance with s 28LO(3)(d) (i.e. denies that the respondent is a proper respondent to the claim) the claimant can either accept this or not. If not, the claimant can require the “respondent” to respond within 14 days, either waiving the requirement for an assessment or requesting that the claimant obtain an assessment. If the respondent fails to respond within the 14 days, the requirement for an assessment of degree of impairment cannot be waived by the respondent.
[1]Section 28LWB has an identical heading. See further below.
The procedures to be followed in cases (like the present case) where waiver of a medical assessment has not been sought, or in cases where waiver of the requirement for an assessment has not been achieved, are dealt with in ss 28LT and following. Section 28LT provides as follows:
28LT Copy of certificate of assessment to be served on respondent
(1)A claimant must serve on the respondent a copy of a certificate of assessment (if any) obtained under this Part on which the claimant intends to rely.
(2)The copy of the certificate of assessment must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO.
(3)The information prescribed for the purposes of subsection (2) may include information relating to—
(a)the identity of the claimant;
(b)the nature of the claim;
(c)the injury;
(d)the incident out of which the alleged injury arose;
(e)any medical practitioner who has treated the injury.
Regulations made for the purposes of s 28LT have expanded the list of matters in respect of which the claimant must give information to the respondent: see Wrongs (Part VBA Claims) Regulations 2005, reg 6.
Section 28LW is the most significant provision of all for the purposes of this case. It reads:
28LW Response to medical assessment
(1)The respondent on whom a copy of a certificate of assessment is served must respond in writing to the claimant within 60 days after receiving the certificate and the required information under section 28LT.
(2)The response to the claimant must—
(a)state that the respondent is a proper respondent to the claim and state that the respondent accepts the assessment for the purposes of this Part; or
(b)state that the respondent is a proper respondent to the claim and advise the claimant that the respondent intends to refer or has referred a medical question in relation to the assessment to a Medical Panel for determination under this Part; or
(c)if the respondent is unable to decide, on the information provided with the certificate of assessment, whether the respondent is a proper respondent to the claim, advise the claimant of the further information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim; or
(d)state that the respondent believes that the respondent is not a proper respondent to the claim, give the reasons for the belief and give any information that may help the claimant to identify the proper respondent.
(3)The respondent must state that the respondent is a proper respondent to a claim if the respondent has already stated under section 28LO or 28LP that the respondent is a proper respondent to the claim.
(4)If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.
Sections 28LWA, 28LWB, 28LWC, 28LWD and 28LWE should also be noted. They are as follows:
28LWA What if the respondent asks for more information?
(1)If, under section 28LW(2)(c), a respondent advises a claimant that specified further information is needed, the claimant must give the respondent the information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim.
(2)The respondent must respond in the manner set out in section 28LW(2)(a), (b) or (d) within 60 days after receiving the information.
(3)If the respondent fails to respond in writing under this section within the 60 days, the respondent is deemed to have accepted the assessment.
28LWB What if the respondent disputes responsibility?
(1)If a respondent responds in accordance with section 28LW(2)(d), the claimant must give written notice to the respondent, within 14 days after receiving the response, that either—
(a)on the information available to the claimant, the claimant accepts that the respondent is not a proper respondent to the claim; or
(b)the claimant considers that the respondent is a proper respondent to the claim and requires the respondent to respond to the notice.
(2)The respondent must respond in writing to a notice under subsection (1)(b) within 14 days after receiving the notice.
(3)The response under this section must—
(a)state that the respondent is a proper respondent to the claim and state that the respondent accepts the assessment for the purposes of this Part; or
(b)state that the respondent is a proper respondent to the claim and advise the claimant that the respondent has referred or intends to refer a medical question in relation to the assessment to a Medical Panel for determination under this Part.
(4)If the respondent fails to respond within the 14 days, the respondent is deemed to have accepted the assessment.
28LWC Can a respondent bind any other respondent?
An acceptance under this Division by a respondent to a claim of an assessment does not bind any other respondent.
28LWD Statement not admission of liability
A statement under this Division that a respondent is a proper respondent to a claim is not an admission of liability in respect of the claim.
28LWE Referral of medical question to Medical Panel
(1)The respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a Medical Panel for determination under this Part—
(a)within 60 days after receiving the certificate and the required information under section 28LT; or
(b)within 60 days after receiving the information provided under section 28LWA; or
(c)within 14 days after receiving the notice under section 28LWB.
(2)The respondent may not refer a medical question in relation to the assessment to a Medical Panel if the respondent has accepted the assessment or is deemed to have accepted the assessment under this Division.
(3)If the respondent advises the claimant under section 28LW, 28LWA or 28LWB that the respondent intends to refer a medical question in relation to the assessment to a Medical Panel and does not refer the question within the required time under this section, the respondent is deemed to have accepted the assessment under this Division at the expiration of that required time.
Division 5 of Part VBA regulates the procedure of the medical panel. Division 6 deals with proceedings in court in cases to which Part VBA applies. Division 7 contains general provisions. It is unnecessary to set out any of the provisions in those Divisions.
The facts
The relevant facts are not in dispute.
By a County Court writ filed on 1 September 2009 Ms McAlister commenced a common law proceeding seeking damages against the Club, and also against two named individuals as defendants, for personal injuries allegedly sustained in an accident on 15 April 2007 when Ms McAlister was allegedly struck by shotgun pellets ricocheting from the ground at a shooting range operated by the Club at 123 Rossiter Road, Carrum Downs. Ms McAlister alleged negligence and breach of duty by each of the defendants. By its defence that was filed and served on 28 October 2009, the Club admitted its incorporation and its capacity to be sued; admitted that it operated a clay target club at the premises in question; admitted that it owned and/or occupied a shooting range at the premises; admitted that it invited and/or permitted its members and strangers to shoot at the shooting range for a fee; and admitted that Ms McAlister was a member of the Club and was licensed to shoot clay targets. The Club denied that it was negligent.
Under cover of a letter dated 22 December 2009, sent for the purposes of Part VBA of the Act, Ms McAlister’s solicitors provided to the solicitors for the Club a copy of a certificate of assessment together with a schedule of information said to accord with s 28LT of the Act and the regulations thereunder. The schedule included a statement (as required by the regulations) explaining why the plaintiff asserted that the respondent was a proper respondent to the claim, and the answer given was that the respondent had the care, control and management of the premises on which the claimant was injured.
On 19 February 2010 the Club’s solicitors forwarded a letter to Ms McAlister’s solicitors. It contained the respective file reference numbers of the two firms of solicitors and was headed “Frankston Australian Clay Target Club Inc & Ors ats Julie McAlister”. It stated that there was enclosed, by way of service, a copy of a psychiatric report concerning Ms McAlister obtained by the Club’s solicitors for the purposes of the County Court case. It then proceeded (omitting formal parts):
We also refer to your letter dated 12 December 2009, under cover of which you served a Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury dated 16 December 2009 together with Schedule of Information.
Pursuant to s 28LW(2)(b) of the Wrongs Act 1958 (Vic) (Act), our client has referred a medical question in relation to the assessment of the Plaintiff’s degree of impairment to the Medical Panel for determination.
A copy of our client’s referral to the Medical Panel is enclosed for your information.
A copy of the referral was indeed enclosed with the letter to Ms McAlister’s solicitors. The referral itself bore the same date as that letter, 19 February 2010. The referral was received by the Deputy Convenor of Medical Panels on that same day. It advised the Deputy Convenor that a claim had been made by Ms McAlister against, among others, the Club. It gave basic details about the nature of the claim. It was expressed to be a referral of a medical question pursuant to s 28LWE of the Act. The medical question was formulated as follows:
Does the degree of impairment resulting from the injury allegedly suffered by the Plaintiff as a result of the incident satisfy the threshold level pursuant to the Act?
There is no suggestion that the referral, if otherwise valid, was deficient in form.
On 22 February 2010, the Deputy Convenor of Medical Panels wrote to the Club’s solicitors, with a copy to Ms McAlister’s solicitors, confirming that a referral pursuant to s 28LWE of the Act had been received on 19 February 2010. The letter also contained the following paragraph:
I am advised that when a referral of the medical question is made to a Medical Panel pursuant to section 28LWE of the Act, it is implicit that the Respondent has accepted that it is the correct Respondent, it has received a proper “Certificate of Assessment” as defined in the Act, it has received any prescribed information and that the referral is made within the time limits set out in Section 28LWE of the Act.
Between February and May 2010 the parties were involved in correspondence with each other and with the Deputy Convenor concerning information to be supplied to the panel and concerning the progress of the referral generally. Ms McAlister presented herself to the panel and was medically examined by the members of the panel.
Neither Ms McAlister nor her solicitors nor anyone else on her behalf contacted the Deputy Convenor or the panel or the Club’s solicitors, at any time prior to the publication of the panel’s decision in early June 2010, in order to dispute the Deputy Convenor’s statement in the letter of 22 February 2010 that it was “implicit that the Respondent has accepted that it is the correct Respondent, it has received a proper ‘Certificate of Assessment’ as defined in the Act, it has received any prescribed information and that the referral is made within the time limits set out in s 28LWE of the Act”.
Ascertaining the plaintiff’s arguments on the deemed acceptance point
It is difficult to pin down and summarise the case made by Ms McAlister in support of the deemed acceptance point. Her written outline of submissions filed in advance of the hearing is not particularly enlightening. She asserts in the outline that Part VBA sets out a “cost-effective and expeditious system for determining whether a claimant exceeds the threshold”. She says that s 28LW is “critical” to the scheme. She emphasises the word “must” in s 28LW(2).[2] She refers to subsections 28LW(3) and (4). She points out that s 28LWE(2) provides that a respondent may not refer a medical question in relation to an assessment to a medical panel if the respondent is deemed to have accepted the assessment. She says that by the letter of 22 December 2009 her solicitors “served on the respondent a Certificate of Assessment in accordance with section 28LT”. She says that by the letter of 19 February 2010 and the enclosed copy of the referral “the respondent purported to respond pursuant to section 28LW(2)(b) that it wished to refer a question to a Medical Panel”. She says that neither the letter nor the enclosed referral stated in writing that the respondent was a proper respondent, whereas, she submits, this was required by ss 28LW(1) and (2). Accordingly, she says, the assessment was deemed by s 28LW(4) to have been accepted; and s 28LWE(2) operated “to bar the respondent from referring the medical question to the Medical Panel”. She says that without a referral in accordance with the Act there was no statutory basis upon which the panel had authority to determine the medical question. She concludes:
The literal interpretation of these provisions is sensible. Parliament must have intended that the dispute resolution machinery of the Medical Panel should only be engaged where there was an unequivocal acceptance by the respondent that it was a proper party. Absent the written acceptance by a respondent that it is a proper respondent as required by section 28LW(2)(b) this is not achieved.
[2]Compare my observations in Booth v Ward (2007) 17 VR 195 at 210 [56], and the cases there cited, relating to the care which may need to be exercised in some instances to determine whether the Victorian Parliament really intended to use the word “must” in a mandatory sense in a particular statute.
The Club filed an outline of answering submissions to which it is unnecessary to refer. In the plaintiff’s outline of submissions in reply she denied that the deemed acceptance point was a “trivial complaint”. She disputed the Club’s contention that there was no ambiguity as to the course of action taken by it under ss 28LW(2)(a)-(d). She said that the answer to the Club’s contention could be found by posing the following question: “Had the defendant by its response waived forever its right to defend the plaintiff’s proceeding on the ground that it was not the proper respondent?” She said that the answer to this question must be that, far from having waived its right to such a defence, by its silence in the face of a statutory compulsion to state that it was the proper respondent, the Club was leaving that defence open. She continued:
No doubt it was to avoid this result that the deeming provision was inserted. The deeming provision is far from being draconian, it simply restores to the plaintiff her common law rights, an apt result for a respondent’s failure to comply with the statutory scheme introduced for its benefit.
However, at the hearing counsel for the plaintiff resiled from what he called an “aspect” of the argument contained in the plaintiff’s outline of submissions in reply.[3] The outline involved an error, counsel submitted, insofar as it equated the identification of a “proper respondent” with the identification of a correct defendant in the underlying dispute or court proceeding. Rather, counsel submitted, the meaning of “proper respondent” was “slightly protean”,[4] in that the way in which a “proper respondent” is to be identified will differ depending on “the circumstances in which the expression ‘proper respondent’ appears in the Act”.[5] Counsel submitted that “proper respondent” means or refers to a respondent who is satisfied that the claimant has satisfied the requirements of the Act in terms of providing whatever information the claimant is meant to provide at the relevant stage[6]. Hence a respondent might at a particular time be a “proper respondent” within the meaning or for the purposes of one section within Part VBA but not a “proper respondent” within the meaning or for the purposes of another, according to counsel.[7] Counsel seemed to submit, further, that a respondent who or which is obliged under s 28LWB(3) to state that he, she or it is a proper respondent is indeed a proper respondent, also.[8] It seems to me that in advancing these submissions and in resiling from the proposition that a “proper respondent” is to be identified by reference to the underlying dispute or court proceeding, counsel was not merely departing from an “aspect” of the plaintiff’s outline of submissions in reply but was departing fundamentally from that outline. Counsel was also departing from the plaintiff’s original outline which included, in the portion quoted above, a reference to the need for an unequivocal acceptance by the respondent that it was a “proper party”. Further, counsel was of course departing fundamentally from the understanding of “proper respondent” implicit in the abovementioned schedule of information which the plaintiff had served on the Club in December 2009, in which she asserted that the Club was the proper respondent because it had the care, control and management of the premises at which she was allegedly injured.
[3]Transcript p 18 and see also at p 16.
[4]Transcript p 18.
[5]Transcript p 19.
[6]Transcript pp 21, 28, 32, 42, 54, 81-82.
[7]Transcript pp 107-108.
[8]Transcript pp 61, 62.
Counsel for the plaintiff conceded – in contrast to the tenor of the plaintiff’s written outlines – that to be in accordance with paragraph (b) of s 28LW(2) of the Act a communication by a respondent need not include “magic words” drawn from that paragraph, provided that the precise equivalent of a statement that the respondent is a “proper respondent to the claim” is included.[9]
[9]Transcript p 105.
Finally, counsel for the plaintiff conceded that the acceptance of his submissions about the meaning (or meanings) of “proper respondent to the claim” was essential to the plaintiff’s success on the outstanding issue between the parties.[10]
[10]Transcript p 101.
Was the Club deemed to have accepted the assessment?
Under s 28LW(4) the Club was deemed to have accepted the assessment if, and only if, the Club failed to respond in writing under s 28LW within the 60 day period referred to in the section.
The plaintiff contends that a respondent will fail to respond in writing “under” s 28LW unless the respondent sends a document that fully answers one (and only one) of the descriptions set out in subsection (2) of s 28LW. I will assume in the plaintiff’s favour, without deciding, that she is correct to that extent, although I should not be taken to accept that such a strict interpretation of the word “under” is necessarily appropriate in this context.
It is common ground that the correspondence from the Club’s solicitors to the plaintiff’s solicitors dated 19 February 2010 did not amount to a response within paragraph (a), paragraph (b) or paragraph (d) of s 28LW(2).
But, in my opinion, subject to one minor possibility referred to in paragraph 40 below, the correspondence fully answered the description in paragraph (b) of s 28LW(2). As mentioned above, it consisted of the letter to the plaintiff’s solicitors dated 19 February 2010 and a copy of the referral to the medical panel of the same date. The letter expressly referred to the correspondence from the plaintiff’s solicitors of 19 December 2009 upon which she herself now relies as having given rise to the occasion for the Club to respond under s 28LW(2). Hence it must have been obvious to the plaintiff’s solicitors that the Club, by its solicitors, was at least attempting to do that very thing. Moreover, in the immediately following paragraph of the letter, the Club’s solicitors proceeded to refer expressly to s 28LW(2)(b). Strictly speaking, the Club’s solicitors were inaccurate in saying, as they did, that the referral had occurred “[p]ursuant to s 28LW(2)(b)”. Rather, all referrals within Part VBA occur pursuant to s 28LWE. But this only means that the reference to s 28LW(2)(b) in the letter from the Club’s solicitors should be taken to have conveyed some piece of information other than the fact that the Club had referred a medical question in relation to the assessment to a medical panel. The only remaining piece of information within the purview of s 28LW(2)(b) that the solicitors could have been intending to convey, consistently with the indication that the Club was acting pursuant to s 28LW(2)(b), was that the Club accepted that it was “a proper respondent to the claim”. In other words, by its solicitors’ letter of 19 February 2010, the club apparently accepted unequivocally that it was a proper respondent to the claim. In my view, subject to the minor possibility referred to in paragraph 40 below, the Club thereby stated (within the meaning of s 28LW(2)(b)) that it was a proper respondent to the claim, or at least stated the “precise equivalent” thereof (to use the language of the abovementioned concession made by the plaintiff’s counsel). It would seem that the plaintiff’s solicitors themselves detected no deficiency in the Club’s solicitors’ response, at least until after the decision of the medical panel became known. In my view, whatever the true meaning of “proper respondent to the claim” may be, subject only to the minor possibility referred to in paragraph 40 below, the Club unmistakably signified to the plaintiff, in writing, that it was adopting in full the option set out in s 28LW(2)(b).
The word “state” has a range of dictionary meanings. Not all of them carry connotations of great formality or precision. Indeed one meaning given by the Macquarie Dictionary is (simply) “say”. I was not referred by counsel to any judicial consideration of the word “state”. Nor have my own researches found any by a superior court. However, as I mentioned to counsel, it was held by a Judge of the District Court of Queensland in Asset Loan Co Pty Ltd v Mamap,[11] after referring to various meanings for the word “state” given by the Shorter Oxford English Dictionary, that, for the purposes of the legislation there in question, something could be “stated” (in a particular kind of document) by being incorporated by reference. This supports the view that it is sufficient for the purposes of s 28LW(2)(b) that the requisite statement be made by necessary implication. I do not need to decide whether incorporation by reference would itself be sufficient.
[11][2005] QDC 295 at [38]-[39].
If what I have said so far is correct, the plaintiff’s deemed acceptance argument would fail regardless of the true meaning of “proper respondent” in s 28LW(2)(b), subject to the following minor possibility. Perhaps it might be said that, because of the Club’s allegedly mistaken subjective understanding of “proper respondent to the claim”, the Club did not really adopt the option in s 28LW(2)(b) and so did not truly “state” that it was a proper respondent to the claim.
It is desirable, therefore, to consider the true meaning of “proper respondent to the claim”. As I have mentioned, if the true meaning of that expression is not in accordance with the plaintiff’s new submissions, she herself concedes that she must fail on the deemed acceptance point.
In my view, the plaintiff’s new interpretation of “proper respondent” is plainly incorrect.
Throughout Part VBA the expression “proper respondent” only appears as part of the larger expression “a proper respondent to the claim”, except in s 28LO(3)(d) and s 28LW(2)(b) where it appears as part of the expression “the proper respondent”.[12] In each such exceptional instance, taking into account the relevant context, the clear Parliamentary intention is, likewise, to refer to the proper respondent to the claim. “Claim” is not separately defined, but the word is contained in the definition of “claimant” and also in the definition of “respondent”, and in such a way as to indicate clearly that “the claim” means the claimant’s claim for damages for personal injury. And, of course, “respondent” itself is defined to mean (in relation to a claim) “the person against whom a claim is made”.
[12]My emphasis.
Unsurprisingly then, the Club submits that a “proper” respondent (to the claim) is a person who is arguably liable in relation to the claim for damages or (as I would prefer) a person who is properly or appropriately identified or named as a person who may be responsible in relation to the claim for damages.
The view that “proper respondent to the claim” does not mean a respondent who is satisfied that the claimant has satisfied the claimant’s obligations as to the exchange of information, but rather means a person who is properly or appropriately identified as a person who may be responsible in relation to a claim for damages, is confirmed, in my opinion, by the very provisions of the statutory scheme relating to the exchange of information. For example, s 28LO(3)(c) provides that if the respondent is unable to decide, on the information contained in the request, whether the respondent is a proper respondent to the claim, the respondent must advise the claimant of the further information the respondent reasonably needs to decide whether the respondent is a proper respondent to the claim. This clearly implies that the question whether the respondent is a proper respondent to the claim is a discrete question, to be considered, in a case of doubt, by reference to the content of relevant information supplied or to be supplied, not merely by reference to a comparison between the extent of the statutory obligations of the claimant to provide information and the extent to which those obligations have been fulfilled. The same comment applies in relation to s 28LW(3)(b). Further, the plaintiff’s argument is flatly contradicted by the provisions of s 28LO(3)(d) and by the corresponding provisions of s 28LW(2)(d) (to each of which I have just referred). Under those provisions, if the respondent believes that the respondent is not a proper respondent to the claim, the respondent must give the reasons for the belief and give any information that may help the claimant to identify the proper respondent. These provisions show that a proper respondent is one who has been properly identified (as a “respondent to the claim”) and, moreover, they assume that it is a matter for the claimant, not a matter for the respondent, to identify the proper respondent.
The plaintiff’s counsel placed reliance on the terms of s 28LW(3), which provides that the respondent must state that the respondent is a proper respondent to a claim if the respondent has already stated under s 28LO or 28LP that the respondent is a proper respondent to the claim. Superficially, s 28LW(3) may seem to help the plaintiff by its repeated references to requirements to “state” that the respondent is a proper respondent to the claim. However, if it were correct (as the plaintiff submits) that “proper respondent” means a respondent who is satisfied at a particular stage that the claimant’s information-giving obligations as at that stage have been fulfilled, then there would be absolutely no rhyme, reason or sense to s 28LW(3). It would require a respondent to admit that a certain set of information-giving obligations had been discharged by the claimant, merely because the respondent had previously admitted that an earlier, different set of information-giving obligations had been discharged by the claimant. Counsel was compelled to acknowledge that this would involve “legislative overkill”.[13]
[13]Transcript p 96. .
Next the plaintiff submitted that the Club’s interpretation of “proper respondent” was inconsistent with s 28LWB, and especially subsection (3) thereof. Under that subsection, a respondent can be compelled by a notice from the claimant to make one of two responses, in both of which the respondent is required to “state that the respondent is a proper respondent to the claim”. It is true that s 28LWB(3) is a very odd subsection. But it is not inconsistent with the Club’s interpretation of “proper respondent”, and it gives little or no support to the plaintiff’s contrary interpretation thereof. Indeed the heading of the section (“What if the respondent disputes responsibility?”), which, under Victorian law, is a part of the Act and not merely an extrinsic guide to interpretation, is fully consistent with the Club’s interpretation but hardly consistent with the plaintiff’s interpretation.[14]
[14]Interpretation of Legislation Act 1984 s 36(2A); Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, 2006 at [1.35], [4.43], [4.49].
Section 28LWB is clumsily and awkwardly expressed, but it is tolerably clear that it merely represents the last stage in a process designed to give respondents opportunities to persuade claimants to release them from the impairment assessment regime on the basis that they have been wrongly identified as responsible for the injury. However, it gives the claimant the power, in the end, to reject such a plea and to force the person concerned either to accept the medical assessment or to refer the question of impairment to a medical panel, at the respondent’s own expense.
It is worth noting that Part VBA lays down no consequences whatsoever for a statement that a respondent is a “proper respondent to the claim” except where such a statement is accompanied by a waiver of an assessment, a request for an assessment or advice that the respondent has referred or intends to refer a medical question to a medical panel.[15] Even then, any consequences will follow from the combined acts, not from the statement alone; and the consequences are restricted to advancing the processes of the statutory regime for determining “significant injury”. Otherwise, the substantive rights of the parties are not affected. In particular, a respondent who states, whether voluntarily or compulsorily, that the respondent is a proper respondent to the claim remains free in court to deny that he, she or it has been properly identified as being responsible for the injury; and the statement cannot be used in court as an admission against the respondent.
[15]Even a statement picked up by s 28LW(3) will not have been made independently of such a waiver, request or advice.
I do not accept the plaintiff’s contention that a statement under s 28LW(2)(b) that a respondent is a proper respondent must be made expressly and punctiliously in order to provide clarity and certainty for claimants in relation to the scheme generally and in relation to the commencement and expiration of relevant time periods in particular. The plaintiff’s counsel made repeated assertions along these lines but was unable to point to any real examples. Counsel submitted that, absent a precise, express statement that the respondent was a proper respondent, the respondent would be free to withdraw from a response that otherwise appeared to be made under s 28LW(2)(b), thereby causing confusion and uncertainty for the claimant. However any such opportunity would be very limited, and, if it existed at all, would not necessarily be in conflict with the statutory intention. If a respondent has referred a medical question in relation to an assessment to a medical panel and is content to go ahead with it, then going ahead with it would seem to be fully in line with the policy of ss 28LW(2)(b) and 28LWE, even if there were no statement by the respondent that it was a proper respondent to the claim. It seems that there is no power in a respondent unilaterally to withdraw a valid referral. In cases where the respondent has not actually referred a medical question, the respondent will remain at risk of a deemed assessment and the claimant’s interest will thereby be fully protected in accordance with the statutory intention (see s 28LWE(3)).
Sub-section 28LW(2)(b) expressly contemplates that a referral may occur even before the response is sent.
As far as I can tell, no statutory time period that affects the claimant’s position is commenced or reduced or brought to an end by a mere statement by a respondent under s 28LW(2)(b) that it is a proper respondent to a claim or by an omission by a respondent to make such a statement.
Presumably the reason why the plaintiff’s counsel shifted his ground and advanced his new interpretation of “proper respondent to the claim” was because he felt that it would give him some scope to argue that the Club had not stated that it was a “proper respondent to the claim” in the sense involved in his new interpretation, whereas he believed (and if so correctly in my opinion) that it would be much harder to argue that the Club had not made it crystal clear that it accepted that it was a proper respondent in the sense that had virtually been common ground originally. Indeed, the combination of the terms of the Club’s defence, the terms of the plaintiff’s own schedule of information, and the terms of the Club’s solicitors’ correspondence of 19 February 2010 would have made any such argument near to impossible, in my view. And, if it were possible to have regard also to the (unanswered) letter from the Deputy Convenor of Medical Panels of 22 February 2010 (which, however, may not have been received within the 60 day period), the task would have become completely and obviously impossible, in my view.
No doubt it is true that neither the Club nor its solicitors had understood the expression in the sense now advanced by the plaintiff. Indeed it seems clear that, at the time, neither the plaintiff nor her solicitors understood it in that sense either. I do not need to decide finally whether, had the plaintiff’s new interpretation been correct, the Club would have been precluded because of its own contrary (uncommunicated) understanding, from relying on the bare terms of its solicitors’ letter of 19 February 2010 as constituting an unequivocal adoption of the option in s 28LW(2)(b). My present strong inclination is to think that the Club would not have been so precluded. However, the question is moot because I am quite satisfied that the plaintiff’s new interpretation of the expression in question is incorrect.
Conclusion and orders
It follows that there should be an order in the nature of certiorari to quash the certified opinion of the medical panel on ground (b), but not on ground (a).
Counsel for the plaintiff told me that if I were to arrive at that view he would seek also an order in the nature of mandamus so as to make it clear that the referred medical question will need to be reconsidered and redetermined in accordance with law. The Club was content with that approach.
I will hear the parties on the question whether there should be a direction that the medical panel be reconstituted[16] and on the question of costs.
[16]See Davidson v Fish [2008] VSC 32 (Pagone J) at [14]-[22]; cf Clarchet Pty Ltd v Demediuk [2011] VSC 22 (Macaulay J) at [69].
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