Michael v The Medical Panel
[2013] VSC 532
•8 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
SCI 2012 02976
BETWEEN
| COLIN MICHAEL | Plaintiff |
| and | |
| THE MEDICAL PANEL | First Defendant |
| and | |
| THE VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2013 | |
DATE OF JUDGMENT: | 8 October 2013 | |
CASE MAY BE CITED AS: | Michael v The Medical Panel & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 532 | |
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ACCIDENT COMPENSATION — Review of decision of medical panel — Whether breach of procedural fairness — Judgment entered in Magistrates’ Court on basis of certificate of panel — Plaintiff did not appeal judgment of Magistrates’ Court — Whether discretionary basis to refuse relief — Abuse of process — Futility.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C B Thomson | Ian G Hone |
| For the First Defendant | No appearance | Moray & Agnew Lawyers |
| For the Second Defendant | Mr M Fleming SC and Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
The plaintiff brings this proceeding, by originating motion under Rule 56.01 of the Supreme Court Rules, seeking to set aside the certificate of opinion of a medical panel issued on 28 March 2012.
The background facts
The plaintiff commenced employment as a truck driver with Food Life Inventory Holdings Pty Ltd on 6 September 1999. On 13 October 2000, in the course of his employment, he suffered an injury to his left foot and heel while alighting from a truck which he was unloading. Initially his injury was treated with anti-inflammatory medication and cortisone injections, but it failed to improve. On 16 February 2001, he submitted to CGU Workers Compensation (“CGU”), the agent for the second defendant, a claim for compensation in respect of the injury pursuant to the Accident Compensation Act 1985 (“the Act”). In the claim form he alleged that he had sustained an injury which he described as “torn ligament left heel”. Liability for the claim was accepted by CGU, and weekly payments were made to the plaintiff from 28 May 2001 to 2 November 2001.
In May 2001, the plaintiff was referred to Mr Martin Richardson, an orthopaedic surgeon. Mr Richardson formed the view that the plaintiff required a left foot plantar fasciotomy. On 24 July 2001, the plaintiff underwent that procedure, which involved fascia release and excision of the calcaneal plantar spur.
In his report, Mr Richardson stated that he had noted that, two weeks after surgery, the heel wound looked a bit moist, but that there were no signs of infection. On 10 September, Mr Richardson had noted that the wound was healing slowly, but that there was good granulation tissue in the base. On review on 29 October, Mr Richardson observed that the plaintiff’s wound had healed. The plaintiff was then keen to return to work, and Mr Richardson cautioned him that he should do so on a graduated basis.
As a result, in December 2001, a WorkCover Certificate of Capacity dated 19 November 2001 was submitted to the WorkCover agent, certifying that the plaintiff was fit for normal duties as of 12 November 2001.
Following his return to work, the plaintiff commenced to suffer from a rash, which, in time, became quite severe, and which has radically affected his life. He was reviewed by Mr Richardson on 7 January 2002, who recorded that the plaintiff had pain in the region of the healed wound, and that he had a rash on the “medial aspect of his left foot wound, adjacent to his Achilles tendon in the medial malleolar region”. Mr Richardson formed the view that the rash was fungal, and he prescribed topical steroid and anti-fungul creams. An MRI scan excluded the existence of deep infection or an abscess.
By mid-2002, the plaintiff had developed a rash which affected his left leg, buttocks and arms. He sought the opinion of Professor Sinclair, a dermatologist. Professor Sinclair stated that he was uncertain, at that time, of the cause of the dermatitis, but he considered that the diagnosis might be discoid eczema of the buttocks and arms, and venous eczema or possibly tinea over the left leg.
The plaintiff then improved with topical treatment, but, during the next year or so, the rash again flared. By 2004, it was generalised and distressing. As a consequence, the plaintiff’s general practitioner commenced him on a course of oral Prednisolone, which was effective. However, the rash would recur whenever the plaintiff reduced the dosage of that medication. The plaintiff was referred back to Professor Sinclair, who diagnosed “late onset atopic eczema/dermatitis”.
The plaintiff’s condition continued to be severe, and debilitating. He suffered numerous bouts of dermatitis after 2004, which necessitated consultations with Professor Sinclair. By about late 2006, the plaintiff became dependent on daily oral doses of Prednisolone. As a result of his long standing use of that medication, he has suffered a number of typical side effects, to which I shall shortly refer.
In January 2008, the plaintiff sought reinstatement of his entitlement to weekly payments and medical and like expenses. By a letter dated 29 February 2008, CGU rejected the plaintiff’s claim for reinstatement of those entitlements, on the grounds that the plaintiff’s current incapacity was due to constitutional atopic eczema, and that it was not directly related to the injury sustained on 13 October 2000. On 18 August 2009, the plaintiff submitted a worker’s claim for impairment benefits dated 29 July 2009, seeking compensation pursuant to s 98C of the Act in respect of the injury to the left heel, together with the ongoing infection and side effects, which had resulted from that infection. On 4 January 2010, CGU accepted liability for the s 98C claim in respect of the left heel injury, but rejected liability for the other components of the plaintiff’s claim.
On 28 January 2011, the plaintiff issued proceedings in the Magistrates’ Court seeking an order that his employer pay weekly payments and medical and like expenses in accordance with the Act, and a declaration of liability in respect of the injuries which had been rejected by CGU pursuant to s 98C of the Act. The plaintiff alleged that his operation on 24 July 2011 had resulted in an infection at and around the operation site, with the subsequent development of generalised severe dermatitis, which had been treated over time with oral steroid medication. He claimed that, as a result of the use of that medication, he had suffered damage to his eyesight, skin, hip, bone density, teeth and psychological state.
By its defence to the proceeding, the second defendant denied that the operative treatment had resulted in the infection, and the subsequent development of generalised dermatitis. Before the trial of the proceedings, the second defendant sought a referral of certain medical questions to the Medical Panel pursuant to s 45(1)(b) of the Act.
Those medical questions were:
“(1)What is the nature of the plaintiff’s medical condition relevant to any injury to the plaintiff’s:
(a)skin;
(b)hips;
(c)bone density;
(d)teeth;
(e)psychological state; and
(f)eyesight
(2)What is the extent to which the plaintiff’s skin condition (as found in answer to question (1a)) results from or is materially contributed to by the injury to the plaintiff’s left foot (and, in particular, the treatment received for the foot injury)?
(3)What is the extent to which the following medical conditions of the plaintiff resulted from or were materially contributed to by the injury to the plaintiff’s skin (and, in particular, the treatment for this injury):
(a)hips;
(b)bone density;
(c)teeth;
(d)psychological state; and
(e)eyesight?”
On 28 April 2012, the Medical Panel, to which the medical questions had been referred, signed a certificate of opinion, by which it answered those questions as follows:
“Question 1:
…
Answer:
The panel is of the opinion that the plaintiff suffers from the following medical conditions:
(a)late onset atopic dermatitis (eczema); and
(b) (c) and (f) Corticosteroid-related Cushing’s syndrome characterised by weight gain and the metabolic syndrome including insulin requiring diabetes mellitus type II, proximal myopathy, osteoporosis, osteonecrosis of the hips, skin fragility, bilateral cataracts (surgically treated); and
(d)dental caries and periodontal disease; and
(e)partially resolved Adjustment Disorder with Depressed and Anxious Mood.
Question 2:
…
Answer:
The panel is of the opinion that the plaintiff’s skin condition of late onset atopic dermatitis (eczema) does not result from nor is it materially contributed to by the injury to the plaintiff’s left foot or any treatment received from the foot injury.
Question 3:
…
Answer:
The panel is of the opinion that none of the plaintiff’s conditions, namely corticosteroid-related Cushing’s syndrome (characterised by weight gain and the metabolic syndrome including insulin requiring diabetes mellitus type II, proximal myopathy, osteoporosis, osteonecrosis of the hips and skin fragility), or, bilateral cataracts (surgically treated), or, dental caries and periodontal disease; or a partially resolved Adjustment Disorder with Depressed and Anxious Mood, result from nor are they materially contributed to by any alleged injury to the plaintiff’s skin or any treatment received from any skin injury.”
On 15 May 2012, the Magistrates’ Court, in the proceeding before it, made an order by which it adopted and applied the opinion of the medical panel pursuant to s 68(4) of the Act and dismissed the proceeding. The Magistrates’ Court also ordered that the plaintiff pay the defendants’ costs of the proceeding.
Grounds of judicial review
Until shortly before the hearing of the proceeding, the plaintiff was unrepresented. In his amended originating motion, the plaintiff sought an order that the certificate of opinion of the medical panel “be corrected” pursuant to r 56.01 to certify that the plaintiff’s condition resulted from the workplace injury to his foot, and a substantive insult to the plaintiff’s immune response arising from surgery to treat that injury. The originating motion stated two grounds of review, namely:
(1)The medical panel failed to take into account the fact that, before the surgery to the plaintiff’s foot, the plaintiff had not suffered any of the conditions from which he now suffers or, in the matter of eczema, that he had not suffered from that condition since childhood.
(2)The medical panel failed to take into account that but for the workplace injury to his foot, the plaintiff would not have been required to undergo surgery, and that, if not for that surgery, the plaintiff’s immune system would not have received injury through the prescription of medicine that materially destroyed his immune system.
In his written outline of submissions, the plaintiff did not address those grounds. Rather, he contended that the medical panel erred in its consideration of the evidence on the following grounds:
(a)The questions for consideration by the medical panel were outside the range of the experience and learning of the respective members of the panel.
(b)The evidence before the medical panel did not support the conclusions of the panel that “upon the balance of probabilities” the medical conditions, that the plaintiff had developed since undergoing surgery on his heel in 2001, were not caused by the plaintiff’s immune system response to the surgery for his workplace injury.
(c)The evidence before the medical panel did not support the conclusions of the panel that “upon the balance of probabilities” the medical conditions, that the plaintiff had developed since undergoing surgery in 2001, were not caused by the long standing drug treatment necessitated by the plaintiff being required to manage his immune system reactions to the surgery.
When the case first came before me on 19 September 2013, the plaintiff was still unrepresented. I acceded to an application by the plaintiff that he be granted an adjournment in order that he be able to obtain legal representation. On the adjourned hearing of the case, he was represented by Mr C B Thomson of counsel. On an application by Mr Thomson, I gave the plaintiff leave to add the following ground of review:
“1A The Panel, in breach of the rules of natural justice and of its duty to accord the plaintiff procedural fairness, as indicated by the provisions of the Convenor’s directions as to the arrangement of business and as to the procedures of medical panels 2012 paragraph 28, failed to accord the plaintiff an opportunity to present other medical material that he requested be considered: affidavit of Colin Michael paragraph 87(k).”
The reasons of the medical panel
The ground of review, ultimately relied on by the plaintiff, makes it necessary to set out, in a little detail, the reasons for opinion of the medical panel.
The panel commenced its reasons by reciting the circumstances of the plaintiff’s original injury, his treatment by Mr Richardson, the subsequent development by him of a rash, and his treatment for that rash. In reciting that history, the panel noted, from the contemporaneous medical reports of Mr Richardson, that although the surgical wound took at least twelve weeks to heal, there was no documentation of any positive bacterial logical swab. Further, the plaintiff told the panel that he did not recall being told that staphylococcus was isolated from the infected wound, but he did recall being treated with “a couple of courses of antibiotics”.
In reciting the history, the panel also set out the side effects suffered by the plaintiff from the extensive use by him of oral Prednisolone to treat the rash. The panel’s reasons set out the description given by the plaintiff of his current symptoms.
The panel then recorded matters relating to the plaintiff’s family history, and his own medical history. In particular, the panel recorded that the plaintiff confirmed that until the age of about 12 years, he had suffered from eczema affecting the flexural skin over his elbows and knees. The plaintiff stated that after that age he had been free of rashes until 2002, but that he had suffered from asthma since childhood. The plaintiff described a history of seasonal allergic rhinitis, which he managed using antihistamines. The plaintiff also stated that he had been treated with desensitisation injections in the late 1980s, in order to alleviate his symptoms of hay fever.
Having elicited those matters relating to the plaintiff’s history and his symptoms, the panel conducted a physical examination, and a mental status examination, of the plaintiff. The panel’s reasons for opinion set out the findings by the panel on those examinations. The panel concluded that, on the basis of the history given to it, and its own examination of the plaintiff, he suffered from the medical conditions described in its answer, to question 1 in its certificate of opinion, and to which I have earlier referred.[1]
[1]Above paragraph 14.
The panel then set out its findings concerning the question of the cause of the plaintiff’s atopic eczema. The relevant passages of its reasons are as follows:
“The Panel considers that constitutional atopic eczema usually first manifests in infancy (when it may not necessarily be accompanied by allergy), but also childhood and some adolescents and that up to one in six persons with eczema occurring in infancy or childhood suffer from atopic dermatitis as adults.
The Panel considers that the skin in 90 percent of persons with atopic dermatitis is eventually colonised by Staphylococcus aureus and enteroxins derived from this bacterium are recognised to contribute to chronic inflammation, itching and auto-sensitisation. The Panel recognises that atopic dermatitis (eczema) is a constitutional condition and that Staphylococcal infection may exacerbate, but does not cause, the condition.
The Panel considers that skin adjacent to discharging wounds or ulcers may develop a form of dermatitis known as ‘post infectious eczematoid dermatitis’ which presents as advancing redness and sometimes micro-vesicles. The Panel considers that post infectious eczematoid dermatitis is a localised process, entirely separate to atopic eczema, and for which there is no diagnostic test. …
The Panel took into account the history it had obtained from the plaintiff and the evidence available from the accompanying contemporaneous medical records and documents accompanying the referral, and concluded that the Plaintiff most likely did suffer from a mild post-operative wound infection (but without any definitive bacterial isolate) and which delayed healing of the Plaintiff’s surgical wound.
The Panel notes from the history that it obtained and contemporaneous medical observations of treating surgeon Mr Martin Richardson and independent medical examiner Mr Kudelka, that the plaintiff’s surgical wounds were healed by the end of October 2001. The Panel draws attention to the fact that the Plaintiff did not suffer any rash at the time that the surgical wound was discharging but an advancing red rash did occur adjacent to the wound within two or three months of healing. The Panel therefore concluded from this information that that (sic) the Plaintiff most likely suffered from a localised post-infectious eczematoid dermatitis (of his leg only) occurring in the immediate period following healing of the discharging wound.
The Panel considered the history from the Plaintiff and information contained in the contemporaneous medical records including the views of Professor Sinclair and concluded that the Plaintiff’s atopic dermatitis/eczema re-emerged much later after surgical operation; the precise timing is unclear but the panel considered its own history and the narrative according to the contemporaneous medical records of the treating surgeon and Professor Sinclair, that atopic dermatitis did not recur within the first year of the Plaintiff’s surgery. The Plaintiff also concluded on the basis of its history, that the Plaintiff’s atopic eczema became severe and generalised only five or more years after the surgery.”
The panel then stated that it drew a distinction between the condition of transient and localised “post infectious eczematoid dermatitis” and “chronic atopic eczema”, and that it did not consider that those two skin conditions were related, or that atopic dermatitis was ever triggered by infection. The panel also noted that the plaintiff suffered from an adjustment disorder about five years after his operation, in the context of his fiancé leaving him, and the decline of his business. The panel observed that psychological stress has been linked to flares of atopic eczema.
The panel concluded:
“On the basis of its collective experience and expertise and having regard to the examination findings and information in the referral, the Panel does not accept there is any nexus between the probable post-operative wound infection suffered by the Plaintiff, the probable post-infectious eczematoid dermatitis and the subsequent re-emergence (beginning at least twelve months, or more, post-surgery) of the plaintiff’s generalised atopic eczema/dermatitis which is constitutional in origin and nature.”
The panel, in conclusion, noted the submission by the plaintiff that there was no valid or alternative explanation for his skin condition, other than that it was caused by the surgery to his heel. The panel rejected that submission on the basis that the panel considered that the condition, suffered by the plaintiff initially after surgery, was a “self limited, localised” post-infectious eczematoid dermatitis, and that the plaintiff’s atopic dermatitis was due, not to that condition, but rather to the re-emergence of a constitutional atopic dermatitis which first manifested itself during the plaintiff’s childhood.
The panel then considered the opinions expressed by various medical practitioners. It concluded:
“On the basis of its combined experience and expertise and having regard to the examination findings and information in the referral of the views expressed by the other practitioners who have examined or treated the plaintiff, the Panel concluded that the plaintiff’s skin condition of late onset atopic dermatitis (eczema) does not result from nor is it materially contributed to by the injury to the plaintiff’s left foot (and in particular, the treatment he received for the foot injury), in any way.”
Submissions
On the adjourned hearing before me, Mr Thomson conceded that none of the grounds contained in the amended originating motion, or in the outline of submissions filed by the plaintiff himself, could be supported as disclosing any relevant error of law by the medical panel. In my view that concession, by Mr Thomson, was plainly correct. Mr Thomson only sought to support the additional ground 1A, namely, that the panel had not accorded the plaintiff procedural fairness by giving him the opportunity to present additional medical material that he requested be considered.
That ground of review was based on paragraph 83(k) of an affidavit sworn by the plaintiff on 25 April 2013. In that affidavit, the plaintiff deposed:
“The Medical Panel made an error at law in the form of procedural unfairness or incorrect application of the relevant applicable administrative law, by refusing to accept some of my medical reports as evidence. I provided these reports to my solicitors …, who in turn should have supplied my additional evidence to the Medical Panel. For reasons unknown to me they were not included in the reports forwarded by my solicitors to the Medical Panel. I referred to the omitted reports verbally in the Medical Panel hearing, but the Panel members refused to accept the reports during the hearing.”
Mr Thomson recognised that there was some difficulty in relying on that paragraph alone, since it did not identify the reports which, the plaintiff claimed, the panel members refused to accept. Mr Thomson submitted that it could be inferred that those materials included documents referred to by the plaintiff, earlier in his affidavit, in paragraph 75, where he deposed:
“In reference to the statement (in the panel’s reasons) regarding Dr Martin Richardson’s opinion that my wound was healed on 29 October 2001, is absolutely untrue because three months after this date I have a record of a hernia operation showing that nurses were still dressing the open and infected wound of my left foot. This contradicts Dr Richardson’s statement.”
Mr Thomson submitted that the records, thus referred to by the plaintiff, were material to the consideration of the medical panel. In particular, he submitted that the panel based its conclusion, in part, on its finding that the infection to the plaintiff’s surgical wound had healed by the end of October 2001. He submitted that, by refusing the plaintiff’s request to tender such documents, the panel had deprived the plaintiff of procedural fairness, and had failed to take into account relevant material.
In response, Mr M Fleming SC, who appeared with Mr R Kumar for the second defendant, submitted, first, that the proceeding by the plaintiff was an abuse of the process of the court. In particular, he submitted that since the contested issues had been resolved by the final orders made by the magistrate on 15 May 2012, the findings by the medical panel had merged in the judgment, and now amounted to a res judicata binding on the parties. Mr Fleming submitted that the purpose of the originating motion was to impeach a finding of fact, on the basis of which the judgment was entered, by use of a collateral proceeding. Thus, he submitted that this proceeding is an abuse of the process.
Mr Fleming further submitted that, in any event, the application for relief in the nature of certiorari should be dismissed on the basis that it would be futile to grant the release sought by the plaintiff. In particular, the plaintiff had not appealed the final order of the magistrate under s 109 of the Magistrates’ Court Act 1989. Mr Fleming submitted that there is no basis upon which the decision of the magistrate could be impugned at law. He pointed out that, after the medical panel’s certificate had been provided to the parties, the magistrate granted the plaintiff two successive adjournments. It was only on the third occasion that the magistrate entered judgment against the plaintiff pursuant to s 68(4) of the Act. Mr Fleming therefore submitted that there is no basis upon which the plaintiff could appeal the decision of the magistrate to enter judgment against the plaintiff. He submitted that any such appeal would now be well out of time, and it was highly unlikely that the plaintiff would be granted an extension of time within which to bring such an appeal.
Mr Fleming further submitted that, in any event, the amended ground of review, now relied on by the plaintiff, should fail. He pointed out that the plaintiff, in paragraph 80 of his affidavit, disagreed with the panel’s acceptance of the evidence of Dr Richardson and Mr Kudelka that his wound had healed by the end of October 2001, and in doing so the plaintiff referred to the “medical report” of Freemasons Hospital, which was exhibit 29 to the affidavit. Mr Fleming noted that the “medical report” in fact consisted of the nursing notes from the Freemasons Hospital, which the plaintiff referred to in paragraph 75 of the affidavit. Those notes, which related to the admission of the plaintiff to hospital for an inguinal hernia repair, recorded that the plaintiff was an inpatient at the hospital on 2 October and 3 October 2001. The notes contained one reference to the plaintiff’s wound, namely, that on 2 October at 10.05 pm a nurse “changed and dressed wound to L heel …”.
In those circumstances, Mr Fleming submitted that the plaintiff had not identified any material, which the plaintiff had endeavoured unsuccessfully to put before to the medical panel, and which would have had a material effect on the conclusions of the panel.
In reply, Mr Thomson submitted that, if the plaintiff’s application for relief succeeded, the plaintiff might have a basis upon which to make an appeal against the decision of the magistrate pursuant to s 109 of the Magistrates’ Court Act. He further submitted that, notwithstanding the matters referred to by Mr Fleming, the medical records of the Freemasons Hospital were material to the question of the duration of the infection of the surgical wound, and accordingly the plaintiff was denied procedural fairness by the refusal of the medical panel to receive those records.
Conclusions
It is preferable, and convenient, to consider, first, the ground of review now relied on by the plaintiff, namely, that the medical panel breached the principles of procedural fairness by refusing the plaintiff’s request to provide to it other medical material.
It is, of course, well established that a medical panel is obliged to comply with the requirements of procedural fairness.[2] In such circumstances, a refusal by a medical panel to receive and consider relevant material would, prima facie, constitute a breach of those requirements. In addition, in such a case, the panel’s decision might be impugned for failing to take into account relevant material.[3]
[2]Masters v McCubbery [1996] 1 VR 635.
[3]Craig v The State of South Australia (1995) 184 CLR 163, 175-6; Minister for Immigration and Multicultural Affairs v Yousuf (2001) 206 CLR 323, 351.
However, in this case, the plaintiff has not demonstrated such a breach of procedural fairness, or that the panel has failed to take into account relevant material.
Paragraph 83(k) of the plaintiff’s affidavit is couched in general terms. It does not indicate what medical reports were proffered by the plaintiff to the panel. In particular, that paragraph, standing alone, does not enable a conclusion to be made that the plaintiff attempted to place before the panel relevant material, which the panel refused to accept.
Recognising that difficulty, Mr Thomson relied on paragraph 75 and paragraph 80 of the plaintiff’s affidavit, to which I have earlier referred. Mr Thomson submitted that it might be inferred that, in paragraph 83(k) of the affidavit, the plaintiff was referring to the medical records of the Freemasons Hospital which were referred to in paragraphs 75 and 80 of the affidavit. It is not necessary for me to consider whether such an inference is open to the plaintiff. Assuming that such an inference might be drawn, nevertheless paragraphs 75 and 80 of the affidavit do not assist the plaintiff. As Mr Fleming pointed out, the medical records of the Freemasons Hospital, specifically referred to in those two paragraphs, only relate to the plaintiff’s condition at the beginning of October 2001. They do not, as claimed by the plaintiff (in paragraph 75 of the affidavit), contradict Mr Richardson’s observation that the plaintiff’s injury had healed some four weeks later, on 29 October.
Thus, it is has not been demonstrated that the medical panel failed, or refused, to consider relevant medical material which the plaintiff sought to put before it. The plaintiff bears the onus of establishing either a breach of procedural fairness, or a failure by the panel to take into account relevant material. The passages of the affidavit of the plaintiff, relied upon by Mr Thomson, do not, on a proper analysis, support a conclusion that the panel refused to receive, or to consider, material which was relevant to the conclusions made by it in its report.[4]
[4]Cf Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 40 (Mason J).
For those reasons, the plaintiff has failed to make out the additional ground of review 1A upon which he relied.
In those circumstances, it is not necessary for me to consider, at length, the other matters relied on by the second defendant, and, in particular, the submission that the proceeding, by originating motion, is an abuse of process, and that any grant of relief would be futile. It is sufficient for me to indicate, briefly, my reasons for concluding that, in the circumstances of this case, I consider that the second defendant’s submissions to that effect are correct.
After the medical panel provided its certified opinion dated 28 March 2012, a mention of the Magistrates’ Court proceeding was listed on 17 April. On that date, the plaintiff and the second defendant were each represented. By consent, the matter was adjourned to a further mention hearing on 1 May. On that date, the solicitor for the second defendant sought orders that the court adopt the medical panel opinion, dismiss the proceeding, and that the plaintiff pay the defendants’ costs. In response, the solicitor then acting for the plaintiff sought an adjournment for a period of two to three months. The magistrate ordered that the matter be adjourned to a further mention on 15 May.
On 15 May, the solicitor for the second defendant again sought the same orders, namely, that the court adopt the medical panel opinion, that the proceeding be dismissed and that the plaintiff pay the defendants’ costs. The solicitor then acting for the plaintiff sought a further adjournment to 25 May. The magistrate stood the matter down, and read the medical panel opinion. On returning to court, the magistrate refused the further application for an adjournment, and made the orders sought on behalf of the second defendant.
That sequence of events is relevant to the submissions made on behalf of the second defendant in this proceeding. It is clear that, after the medical panel opinion was provided to the parties, the plaintiff had adequate opportunity to commence proceedings, in this Court, to have that opinion set aside. The hearing before the Magistrates’ Court was adjourned on two separate occasions. It is not clear why the plaintiff sought those adjournments. Nevertheless, it is clear that the plaintiff, at that stage, had the opportunity to apply to this Court to have the opinion of the medical panel set aside, if he had wished to do so. Section 68(4) of the Act provides that the opinion of the medical panel is conclusive in respect of any question referred to the panel. It was thus the foundation for the orders made by the Magistrates’ Court on 15 May. There is no basis upon which to contend that the magistrate erred, at law, in relying on the report. Rather, he was obliged to do so. The finding by the medical panel has, as it were, merged into the judgment. The plaintiff has not sought to appeal the judgment of the Magistrates’ Court. The time for doing so is well past, although, in an exceptional case, a plaintiff may obtain an extension of time within which to do so.
In those circumstances, I consider that there are two discretionary bases upon which the application for prerogative relief, in this case, would be refused in any event. First, the plaintiff had a right to apply to set aside the opinion of the medical panel. He has provided no explanation as to why he refrained from extending that right. A final order of the Magistrates’ Court has now been made on the basis of that certificate. The plaintiff has not sought to exercise any right of appeal in respect to that decision under s 109 of the Act. He has not demonstrated any basis upon which such an appeal might be made. In those circumstances, the plaintiff is seeking, impermissibly, to use the process of an originating motion to make an ex post facto collateral attack on a factual finding, on the basis of which the second defendant obtained a valid judgment of a court. In the circumstances of this case, the use of this proceeding, for such a collateral purpose, is, in my view, an abuse of the process of the court.[5] Secondly, any relief granted by way of judicial review of the medical panel’s opinion would not affect the legal rights, or the position at law, of the plaintiff or the second defendant. On the facts of this case, it would be futile to grant such relief to the plaintiff. On that basis, I would have refused to grant him such relief, if, in any event, he had made out the ground now relied on by him.[6]
[5]Compare Williams v Spautz (1992) 174 CLR 509, 522.
[6]See for example R v Registrar-General, ex parte Lange [1950] VLR 45, 54 (Fullagar J); Ex parte Metropolitan Meat Industry Board [1972] 1 NSWLR 259, 263 (Asprey JA).
Summary of conclusions
For the reasons which I stated, I have reached the following conclusions:
(1)The plaintiff has failed to establish that there was any breach by the medical panel of procedural fairness in the manner alleged in the additional ground 1A of the originating motion.
(2)If the plaintiff had made out such a ground of review, in the exercise of the court’s discretion, I would refuse to grant the plaintiff the relief claimed by him, on the basis that the proceeding is an abuse of the process of the court, and also on the ground that it would be futile to grant that relief to the plaintiff.
For the foregoing reasons, the proceeding should be dismissed. I shall hear counsel on the question of costs.
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