Mitchell v Latrobe Regional Hospital
[2016] VSCA 342
•21 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0137
| GARY MITCHELL | Applicant |
| v | |
| LATROBE REGIONAL HOSPITAL | Respondent |
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| JUDGES: | OSBORN and BEACH JJA, J FORREST AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2016 |
| DATE OF JUDGMENT: | 21 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 342 |
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TORTS – Statutory construction – Significant injury threshold – Threshold level – Psychiatric injury – Amendment to definition of ‘threshold level’ – Psychiatric injury impairment of 10 per cent or more – Applicability of new definition of ‘threshold level’ to proceedings on foot at time of amendment – Wrongs Act 1958 pt VBA.
STATUTES – Statutory construction – Amendment – Amendment of statute – Transitional provision – Whether amendment had retrospective operation – Whether any right acquired or accrued under an earlier version of the statute – Whether amendment had any affect upon previous operation of the statute or anything duly done under earlier statutory provision – Whether contrary intention expressly appeared – Wrongs Act 1958 ss 28LB, 28LF, 28LZH and 28LZS – Interpretation of Legislation Act 1984 s 14(2).
WORDS AND PHRASES – Meaning of ‘unless the contrary intention expressly appears’ – Meaning of ‘expressly’ – Interpretation of Legislation Act 1984 s 14(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M F Wheelahan QC with Mr J A G McComish | Nowicke Carbone |
| For the Respondent | Mr S A O’Meara QC with Mr S E Gladman | DLA Piper Australia |
OSBORN JA
BEACH JA
J FORREST AJA:
Introduction
This referral from a County Court judge raises an important point about the application of the significant injury provisions contained in pt VBA of the Wrongs Act 1958 (‘the Act’).
Enacted in 2003, pt VBA established a ‘significant injury’ threshold (based on the Australian Medical Association (‘AMA’) Guides) for claims for non-economic loss. In October 2015, Parliament, acting upon the recommendations contained in a report of the Victorian Competition & Efficiency Commission (‘VCEC’), amended the Act and relaxed the threshold. In particular, and relevant to this application, it altered the threshold for psychiatric injury from ‘more than 10 per cent’ to ’10 per cent or more’.[1]
[1]Wrongs Amendment Act 2015 s 4 (‘the Amending Act’).
The point raised by the referral is whether a certificate of determination issued prior to the amendment by a medical panel which stated that a claimant did not meet the threshold, is effective in barring a claim for non-economic loss in a proceeding that will be heard and determined subsequent to the amendment.
For the reasons set out below, we think it is not.
Facts
The following was either agreed or not in issue:
(a)Mr Gary Mitchell was a patient at Latrobe Regional Hospital (‘Latrobe’) in April 2013.
(b)In Mr Mitchell’s County Court proceeding issued in June 2015, he alleges that he suffered injury as a result of his negligent treatment at Latrobe and claims damages for non-economic loss as well as medical and like expenses.
(c)Latrobe denies liability to Mr Mitchell.
(d)In June 2015, Mr Mitchell served on Latrobe a certificate of assessment of Mr Mitchell’s degree of impairment issued by Dr Gregory White (dated 27 November 2014), which stated that Mr Mitchell’s degree of impairment resulting from psychiatric injury would be more than 10 per cent once the injury had stabilised.
(e)On 14 July 2015, Latrobe referred ‘the medical question’ — ‘does the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim satisfy the threshold level’ — to the convenor of medical panels for determination by a medical panel pursuant to s 28LWE of the Act.
(f)On 14 September 2015, a medical panel comprising Drs Edmond van Ammers and Gianni Ortenzio (‘the Panel’) examined Mr Mitchell.[2]
(g)On 19 October 2015, the Panel issued a certificate of determination (‘the certificate’) to the effect that Mr Mitchell’s psychiatric injury ‘does not satisfy the threshold level’, which is to be understood to mean ‘not more than 10 per cent’. The certificate was accompanied by reasons for determination (‘the reasons’).
(h)On 19 November 2015, the amendment to the Act commenced, and the threshold for psychiatric injury altered from ‘more than 10 per cent’ to ’10 per cent or more’.[3]
(i)On 22 December 2015, Mr Mitchell served on Latrobe a certificate of assessment of his degree of impairment issued by Dr Gregor Schutz (dated 22 October 2015), which certified that Mr Mitchell’s degree of impairment resulting from psychiatric injury was more than 10 per cent.
[2] Ref No M115/2680.
[3]See paragraphs [22]–[23] below.
The reserved question
On 23 September 2016, her Honour Judge Tsalamandris heard an application to challenge Mr Mitchell’s entitlement to general damages (non-economic loss). Her Honour reserved a question for the opinion of the Court of Appeal pursuant to s 76 of the County Court Act 1958 in the following terms:
On the basis of the agreed facts and issues set out in the schedule hereto, is the plaintiff’s claim for damages for non-economic loss precluded as a consequence of the Certificate of Determination of the Medical Panel dated 19 October 2015?
Part VBA of the Act
In 2001, the Commonwealth and the States appointed a panel, chaired by the Honourable David Ipp (at the time, a Judge of Appeal of the Supreme Court of New South Wales). Its report (‘the Ipp Report’), delivered to the Government in 2002, made a series of extensive and far-reaching recommendations concerning the law of negligence.[4]
[4]Panel for the Review of the Law of Negligence, Review of the Law of Negligence: Final Report (2002) (‘The Ipp Report’).
Relevant to this question, the Ipp Report recommended there be a threshold for the recovery of damages for non-economic loss (or general damages). The threshold proposed was 15 per cent of the most serious case, which was the extant threshold in New South Wales at that time.[5] The Victorian Parliament did not adopt the New South Wales model. Rather, the ‘significant injury’ threshold in this State for claims for non-economic loss under pt VBA utilises the AMA Guides as to whole person impairment as part of the threshold processes. It has similarities to the statutory serious injury thresholds in the Accident Compensation Act 1985 and the Transport Accident Act 1986.
[5]Ibid 192.
It should be noted here that the scheme set up by pt VBA does not apply to all tort-based claims: claims arising out of asbestos exposure, transport accidents and industrial accidents are excluded and are governed by specific pieces of legislation and/or the common law.[6]
[6]Section 28LC.
Part VBA was the second of three tranches of the State Government’s legislative response to an alleged crisis ‘in the affordability and availability of several key insurance products’.[7] Section 4 of the Wrongs and Limitation of Actions (Insurance Reform) Act 2003 inserted pt VBA into the Act. The operative provision in relation to the introduction of the threshold is s 28LE, which provides:
A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of any injury to a person caused by the fault of another person unless the person has suffered significant injury.
[7]Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1421–1429 (John Brumby, Treasurer).
Significant injury in respect of psychiatric injury is defined by reference to a threshold level of impairment.[8]
[8]Section 28LF(2).
We will return to the terms of the threshold level and the 2015 amendments to it in a moment.
Further, determination of whether an injury is significant turns upon an assessment of an impairment under either the AMA Guides or methods prescribed under the Part, specifically s 28LH.
Division 4 sets out the procedure to be adopted by a claimant seeking to pursue a claim for non-economic loss. The starting point is the service by a claimant on a respondent of a copy of the certificate of assessment on which the claimant intended to rely.[9] That certificate, completed by a medical practitioner, is required to state whether the degree of impairment resulting from the injury satisfies the threshold level ‘but must not state the specific degree of impairment’.[10]
[9]Section 28LT.
[10]Section 28LN(2).
Once the certificate is served on a respondent, the respondent is obliged to respond in writing to the claimant within 60 days. The response to the claimant must, if the respondent accepts that it is the proper respondent, state whether the respondent accepts the assessment for the purpose of pt VBA or that it intends to refer (or has referred) ‘a medical question in relation to the assessment to a medical panel for determination under this Part’.[11] A respondent thus has 60 days in which to determine whether to accept the assessment contained in the certificate or to seek the opinion of a medical panel.[12] In other words, absent a referral within 60 days, the certificate of the medical practitioner stands.
[11]Section 28LW(2)(b).
[12]Ibid.
The procedure to be adopted by a medical panel is set out in div 5 of pt VBA. It is not necessary to set out the process by which a medical panel operates save for the following. The determination of the medical panel must be given in writing and certified by the medical panel.[13] The requirement for the wording of the determination is similar to that applicable to a medical practitioner’s certificate: ‘the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment’.[14]
[13]Section 28LZG(5)–(6), (9).
[14]Section 28LZG(4).
Section 28LZH is important as it deals with the effect of the determination as to the threshold level. It reads:
(1)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.
(2)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.
Division 6, headed ‘Proceedings on Claim’, sets out the steps to be taken by a claimant in relation to the provision of information of the assessment to the court. A certificate of assessment by a medical practitioner (under s 28LN or s 28LNA) which the claimant proposes to rely upon must be filed in court ‘before the determination of the claim’.[15] Similarly, in respect of a medical panel determination (whatever it may be), the claimant must file in court a copy of the certificate of assessment of the medical panel.[16]
[15]Section 28LZM(2).
[16]Section 28LZM(3).
The 2015 amendment
In February 2014, VCEC published, ‘Adjusting the Balance’, a report into aspects of the Act (‘the Report’).[17] It recommended a package of changes to limitations on personal injury damages including recommendation 7.1 which suggested that the Government amend the Act to, among other things:
(a) provide that spinal injuries assessed at greater than or equal to 5 per cent impairment are eligible to access damages for non-economic loss; and
(b)adjust the psychiatric injury impairment threshold for eligibility to access damages for non-economic loss to greater than or equal to 10 per cent.
[17]Victorian Competition and Efficiency Commission, Adjusting the Balance, Inquiry into Aspects of the Wrongs Act 1958, Final Report, (February 2014) (‘the Report’).
The Explanatory Memorandum to the Wrongs Amendment Bill 2015 (‘the Bill’) draws on the Report which identified that the significant injury threshold for spinal injuries operated unfairly for a particular class of plaintiffs due to the fact that spinal injuries are assessed by the AMA in increments of 5 per cent. The Memorandum also identified the anomalous results that using a more than 10 per cent threshold can lead to in psychiatric injury cases. This was attributed to the scale contained in the Guide to Evaluation of Psychiatric Impairment for Clinicians used by medical practitioners in assessing patients’ psychiatric impairment.
In September 2015, the Attorney-General, Mr Pakula, delivered the second reading speech of the Bill. He noted that the significant tort reforms in 2002 and 2003 to Victoria’s personal injury laws may have ‘disproportionately affected the rights of claimants to access damages’. On the threshold point, the Attorney-General said:
The bill will lower this threshold for claimants with spinal injuries to ‘5 per cent or more’, which recognises that spinal injury impairments are only assessed in increments of 5 per cent. This will mean that some claimants who suffer from spinal injuries who are presently unable to access compensation for non-economic loss will be able to do so, reflecting the fact that spinal injuries often have a major impact on a claimant’s overall quality of life.
The bill will also lower the impairment threshold for claimants with psychiatric injuries from ‘greater than 10 per cent’ to ’10 per cent or more’, which will slightly increase the pool of claimants who are eligible for compensation for psychiatric injuries.[18]
[18]Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2015, 3281 (Martin Pakula, Attorney-General).
The definition of ‘threshold level’, amended by s 11 of the Wrongs Amendment Act 2015 (‘the Amending Act’), now reads:
(a)in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent;
(b) in the case of psychiatric injury, impairment of 10 per cent or more;
(c) in the case of spinal injury, impairment of 5 per cent or more.[19]
[19]Emphasis added.
This is contrasted to the previous provision which read:
(a)in the case of injury (other than psychiatric injury), impairment of more than 5 per cent;
(b)in the case of psychiatric injury, impairment of more than 10 per cent.[20]
[20]Ibid.
Of significance to the issues raised by this referral is the transitional provision: s 28LZS of the Act, inserted by s 13 of the Amending Act:
(1)The definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person, and in relation to which a claim for the recovery of damages for non-economic loss to which this Part applies may be made, irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred.
(2)Without limiting subsection (1), the definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Amendment Act 2015, applies in respect of an injury suffered by a person and in relation to which a proceeding for a claim for the recovery of damages for non‑economic loss to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section.
(3)Section 28LZMA, as inserted by section 12 of the Wrongs Amendment Act 2015, applies to a proceeding for a claim for the recovery of damages for non-economic loss to which this Part applies that has been commenced before the commencement of section 12 of that Act but has not been finally settled or determined before the commencement of that section.
The certificate of the Panel and its reasons
The certificate held that Mr Mitchell’s psychiatric impairment ‘does not satisfy the threshold level’. In its reasons, the Panel gave the following explanation:
After disregarding unrelated impairment, the Panel concluded that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim is permanent but is not more than 10%.
The Panel noted that, by operation of section 28LZG(4) of the Act, the Panel must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
Analysis
We compliment counsel on their assistance both in written and oral submissions — the arguments were concise and directed squarely to the points in issue. We hope that we do no disservice to counsels’ arguments by reducing them to the following.
Counsel for Mr Mitchell argued that the certificate of the Panel only had force under the pre-amendment provisions of pt VBA. This, it was said, flowed from the terms of the certificate, the nature of the scheme under pt VBA and the provisions of the Amending Act. The certificate, so it was argued, did no more than enable Latrobe to deploy it at trial to defeat Mr Mitchell’s claim for non-economic loss. But it could only do so within its own terms, which was that Mr Mitchell had not satisfied the provisions of the Act at the time it was issued, prior to amendment of the Act. If there was any doubt about the matter, counsel argued that it was resolved by the terms of the transitional provision, which made clear that the new threshold applies to any proceeding whether issued before or after the amendment.
Counsel for Latrobe contended that, once the Panel produced its certificate, Latrobe acquired, in effect, an indefeasible right to defeat Mr Mitchell’s claim for non-economic loss. Once it was certified that Mr Mitchell had not attained the threshold, it was immaterial that there was a subsequent amendment to the threshold — Latrobe had taken an appropriate step or acquired a right that meant that Mr Mitchell’s failure to meet the threshold entitled it to rely upon the certificate in any proceeding determined after the amendment. It was said that s 14(2) of the Interpretation of Legislation Act 1984 (‘ILA’) made it clear that, absent an express provision to the contrary (which Latrobe says is not present), that right or the step taken in obtaining the certificate, remained intact and precluded Mr Mitchell from recovering damages for non-economic loss for all time.
There are several features of the scheme of pt VBA which merit mention at this point.
First, unlike the statutory scheme set up under the Accident Compensation Act and the Transport Accident Act, s 28LE does not provide a jurisdictional condition for the maintenance of a claim for non-economic loss. Rather, it precludes recovery of damages under this head. To put it another way, it is not a precondition to the commencement of a proceeding governed by this Part that a significant injury be established — as is the case with a transport accident in which jurisdiction is not enlivened unless one of the gateways to serious injury has been accessed by the claimant.[21]
[21]Swannell v Farmer [1998] VSCA 104 [19]–[28].
It follows that a proceeding under pt VBA of the Act can be issued for non-economic loss without a certificate (as was done in this case). This is clearly contemplated by ss 28LZM(2) and (3), which require filing a copy of the certificate of a medical practitioner and, where applicable, a copy of the medical panel certificate with the Court before the determination of the claim.[22]
[22]Section 28LZMA, which enables a Court to grant a stay where a medical certificate has not been served by a claimant, is also consistent with this understanding of the scheme of this Act.
Second, the Court’s ability to determine an application by a respondent based upon the determination of a medical panel — presumably for summary dismissal of a claim for non-economic loss — is dependent upon the filing of the certificate. That is a necessary procedural step.
Turning now to Latrobe’s argument (the lynchpin of which is contained in s 14(2) of the ILA) the relevant parts (with emphasis added and irrelevant parts removed) read:
(2) Where an Act or a provision of an Act—
(a) is … amended; …
…
the … amendment … of that Act or provision shall not, unless the contrary intention expressly appears—
…
(d)affect the previous operation of that Act or provision or anything duly done under that Act or provision;
(e)affect any right acquired, accrued or incurred under that Act or provision;
…
and any such … legal proceeding … may be … continued … as if that Act or provision had not been amended or otherwise ceased to have effect.
Latrobe contends that the provision of the certificate by the medical panel, in light of the terms of s 28LZH,[23] results in two consequences which trigger the operation of s 14(2). It says that it acquired a right (indefeasible and permanent — so the argument goes) under s 14(2)(e) to defeat a claim for non-economic loss by Mr Mitchell, whatever the terms of the Act or Amending Act. Alternatively, the obtaining of the certificate constituted something ‘duly done’ under s 14(2)(d). By either route, Latrobe says that the Amending Act does not affect the previous operation of the Act and thus the certificate denying significant injury remains efficacious to defeat the claim for non-economic loss.
[23]See [17] above.
It is a necessary component of Latrobe’s argument that there are no express words in the Amending Act that negate the statutory presumption — we shall return to this contention in due course.
We do not think that either of Latrobe’s arguments can be sustained.
As to s 14(2)(e), we do not accept that Latrobe was provided with an indefeasible right that Mr Mitchell did not suffer a significant injury. The terms of the certificate make that clear. It entitled Latrobe to contend that ‘the degree of psychiatric impairment resulting from a psychiatric injury to the claimant alleged in the claim as permanent but not more than 10 per cent’. Further, the wording in the certificate, ‘does not satisfy the threshold level’, must be read in light of the reasons and the relevant provisions of the Act at that time. The certificate did not, either in terms or implicitly, state that Mr Mitchell had not suffered a significant injury. Instead, it certified that Mr Mitchell had not satisfied the threshold level — at that time — of more than 10 per cent. It did no more and no less. The distinction is critical and, we think, determinative.
Latrobe’s reliance on s 28LZH(2) as creating a right capable of being enforced is also misplaced. The section itself does no such thing.[24] It does not confer a right upon a party to a proceeding; rather, as its terms demonstrate, it obliges a court to act on the certificate which must be filed in the manner we have described. There is no conferral of a right upon a respondent or, alternatively, a correlative liability created on the part of a claimant.
[24]Ibid.
The language used in s 28LZH(2) and the suggestion that these words confer an enforceable right stand in stark contrast to the terminology used in cases in which courts in this State have held that a statute creates a substantive right. For example, s 138 of the Accident Compensation Act confers upon the Victorian WorkCover Authority an entitlement to be indemnified by negligent third parties in relation to payments of compensation. After considering the wording of this section, the Court in Victorian WorkCover Authority v Kenman Candy Pty Ltd[25] held that the entitlements in the indemnity constituted a substantive right:
Section 138(1) confers an enforceable right, of definite and calculable extent, which arises upon the happening of the death or injury concerned and determines the position for each of the affected parties.[26]
[25](2002) 6 VR 666 (‘Kenman Candy’).
[26]Ibid 672–3 [15].
As the Court in Kenman Candy pointed out, the question as to the creation of an enforceable right is one of statutory construction and can only be answered by reference to the terms and intent of the particular piece of legislation.[27] Unlike Kenman Candy, in this case we repeat that it cannot be discerned from either pt VBA as a whole or s 28LZH itself, that the legislature intended to confer a substantive right upon either a claimant or a respondent in a proceeding under that Part.
[27]Ibid.
We do not accept, as argued by Latrobe, that s 28LD alters the characterisation of s 28LZH. Section 28LD reads as follows:
For the avoidance of doubt it is declared that all the provisions of this Part contain matters that are substantive law and are not procedural in nature.
Putting to one side the purpose of this provision, we consider that it simply establishes, as a matter of substantive law, that a court must accept the Panel’s determination. It does not, by either terms or implication, endeavour to confer a right upon Latrobe enforceable against Mr Mitchell.
Further, assuming (against our construction) that the certificate in some way provided Latrobe with some form of benefit or substantive right, then it follows that its efficacy was limited to the old threshold. It is not a determination under this Division (as amended) with respect to the threshold level which now governs the claim. This is clear from the terms of the transitional provision, which discarded the old test from the date of the introduction of the amendment.[28]
[28]See [24] above and [48] below.
The same analysis applies to the argument concerning s 14(2)(d) — that obtaining the certificate was something ‘duly done’ under the Act.
The ‘duly done’ action relied upon by Latrobe was to obtain a certificate which stated that Mr Mitchell did not have more than 10 per cent psychiatric incapacity. As we have just observed, that was no more than a statement by the Panel which has been rendered irrelevant by the Amending Act.
Further, the action of obtaining a certificate from a medical panel does not constitute something ‘duly done’ for the purpose of s 14(2)(d). All that occurred was that the Panel provided a certificate to the parties. Merely obtaining a certificate which could later require a court to act upon it in a proceeding was not something ‘duly done’.
To put it bluntly, Latrobe had a piece of paper which it could have deployed under the old threshold at a later point of time to bar Mr Mitchell’s claim for non-economic loss. The amendment to the Act rendered that piece of paper inoperative under the new regime and there is nothing in s 14(2) to preserve its efficacy.
If there was any doubt about our conclusion as to both points, we think it is fortified by two other matters.
First, the transitional provision of s 28LZS (set out at [24]) makes Parliament’s intention clear. The old threshold, which the legislature regarded as unfair, was to come to an end ‘irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred’ — thereafter the new threshold applies.[29]
[29]Section 28LZS(1).
Section 28LZS(2) then makes it patent that the new threshold applies to proceedings commenced before the Amending Act which have not been settled or determined. This demonstrates that the old threshold was a thing of the past: in any extant proceeding it was open to a claimant to rely upon the new threshold.
Second, the consequences of the conclusion urged by counsel for Latrobe leads to a capricious and manifestly unfair result. We have already mentioned the parliamentary intention and the clear words of the legislation. If Latrobe’s contention be correct then, notwithstanding that intention, a claimant who had been denied significant injury on the basis of a physical incapacity, not being more than five per cent, could not take advantage of the amended Act to assert that he or she had a spinal injury impairment of five per cent or more. A certificate under the old threshold would, on Latrobe’s argument, bar a claimant from seeking a fresh certificate (of a medical practitioner or, on referral, of a panel) notwithstanding the fact that no assessment of impairment from spinal injury had been made or, alternatively, that such assessment was made under the old threshold. This would defeat the clear intention of the transitional provision, which was to give claimants with psychiatric and physical injuries the benefit of a more relaxed threshold irrespective of when the injury might have occurred.
As we have said, neither ss 14(2)(d) or (e) of the ILA are engaged. Therefore, strictly speaking, it is unnecessary to deal with the alternative aspect of Latrobe’s argument on s 14(2) — the lack of any express legislative intent to the contrary which would displace the operation of s 14(2). However, in the hope that it assists the parties, we will now address this issue.
Section 14(2) of the ILA[30] applies unless ‘the contrary intention expressly appears’.
[30]The relevant parts are set out at [33].
Counsel for Mr Mitchell argued that an express contrary intention does not require the legislature to expressly identify each part of the Act which is the subject of amendment. Rather, as long as ‘a contrary intention expressly, or clearly, or plainly appears’ as, it was submitted, is clear from the wording of ss 28LZS(1) and (2) of the Act, then s 14(2) is not engaged.
On the other hand, counsel for Latrobe argued that any contrary intention must ‘expressly displace’ the specific provisions relating to the old threshold. Latrobe argued that there is no discernible intention within the Amending Act to render invalid a certificate issued by a medical panel which it contends would be operative in negating a finding of significant injury. It went on to contend that legislation cannot be displaced at large — it must provide for a sufficiently detailed contrary intention so as to displace a specific provision. Latrobe says that ‘expressly’ should be construed to mean ‘by express words’ as that interpretation ‘best accords with the ordinary and natural meaning of the word’. Further, other provisions in the ILA use the expression ‘unless the contrary intention appears’. The word ‘expressly’, when added to that phrase, must give it a more demanding meaning. Finally, it says that this construction is supported by extrinsic material, namely the Report on the Interpretation Bill 1982 which ultimately became the ILA.
Neither counsel suggested that it was necessary to have regard to the common law principle of legality enshrined in cases such as Maxwell v Murphy,[31] and more recently in ADCO Constructions Pty Ltd v Goudappel.[32]
[31](1957) 96 CLR 261.
[32](2014) 254 CLR 1.
We were, however, referred to many authorities both predating the introduction of the ILA and subsequent to its enactment. For instance, in the old English case of Chorlton v Lings,[33] Willes J explained:
It is not easy to conceive that the framer of that Act [13 & 14 Vict, c 21], when he used the word ‘expressly’, meant to suggest that what is necessarily or properly implied by language is not expressed by such language. It is quite clear that whatever the language used necessarily or even naturally implies is expressed thereby.
[33](1868) LR 4 CP 374, 387 (emphasis added).
Byles J in that case also rejected the idea that ‘expressly’ necessarily means ‘expressly excluded by words’:
The difficulty, if any, is created by the use of the word ‘expressly.’ But that word does not necessarily mean ‘expressly excluded by words.’ On the contrary, where that is meant by the statute, the statute says so; as in the next sentence, where it is enacted that the word ‘county’ shall include county of a city or town, unless the extended meaning is expressly excluded by words. And, accordingly, it is so excluded by s 61 of the last Reform Act. The word ‘expressly’ often means no more than plainly, clearly, or the like; as will appear on reference to any English dictionary.[34]
[34]Ibid 393 (emphasis added).
A century later in this State in Healey v Hambrook[35] the Full Court of this Court said:
We have recently in Healey v Festini, [1958] VR 225, had to consider the effect of similar words ‘Except where otherwise expressly enacted’ in s 71 of the Justices Act 1928, and we held that such words did not require a reference to the general provision in order to exclude it.[36]
[35][1958] VR 232.
[36]Ibid 234.
The ILA was introduced in 1984. The words ‘unless the contrary intention expressly appears’ provoked almost instantaneous judicial consideration. In J &P Lemming Holdings Pty Ltd v O’Keefe,[37] Brooking J undertook a scholarly and detailed analysis of the phrase including the following:
When judges have said that nothing less than express words will repel the presumption it is, at least on occasions, not clear whether by ‘express’ they mean something that is clear or something that is not implied. On principle, there is no reason why the presumption should not be rebutted by necessary implication. In all statutory interpretation the search is for what is, or must be regarded as, the intention of the legislature. Presumptions are there to guide us in that search. Perhaps a given presumption will be strong and so yield only to a contrary intention which can be discerned with some confidence; that is another matter. What does seem to me to be contrary to principle is the suggestion that in determining whether ‘retrospective’ operation was intended regard may not be had to what appears only by necessary implication.[38]
[37][1984] VR 1005.
[38]Ibid 1010–11 (emphasis added).
A very useful summary of his Honour’s reasoning is contained in Secretary to the Department of Justice v Fletcher[39] in which Bongiorno JA said:
Brooking J undertook a thorough analysis of s 14(2), particularly with respect to the effect of the phrase ‘unless the contrary intention expressly appears’. His Honour pointed out that the predecessor of s 14(2) of the ILA, s 7(2) of the Acts Interpretation Act 1958 did not contain the word ‘expressly’, nor did the Bill on which the 1984 Act was based. That word was evidently inserted on the recommendation of the Legal and Constitutional Committee to avoid the possibility of the relevant intent being implied into an Act which was otherwise affected by s 14(2). His Honour referred to decisions in which the word ‘express’ or ‘expressly’ had been construed as meaning no more than ‘plainly’ or ‘clearly’: Chorlton v Lings; Beresford-Hope v Sandhurst; DeSouza v Cobden and Healey v Festini. He also referred to Shanmugam v Commissioner for Registration of Indian and Pakistani Residents, in which the Privy Council had held that an ‘express provision’ is a provision the applicability of which does not arise by inference. In the event, Brooking J found it unnecessary to express any opinion as to the effect of the words ‘unless the contrary intention expressly appears’ in s 14(2). Even on the widest possible view of the effect of those words, no contrary intention appeared in the legislation with which he was concerned.[40]
[39][2010] VSC 170.
[40]Ibid [30] (citations omitted).
There are two other decisions of this Court to which we should briefly refer. In Nicholas v Commissioner of Corporate Affairs,[41] Fullagar J (sitting in the Full Court) said of ‘expressly’ within s 14(2):
Although I do not find it necessary to decide the point, I would, as at presently advised, if s 14(2) applied to the Code, adopt the simple solution dictated by the common sense proposition that whatever a section says by necessary implication it says ‘expressly’, as Isaacs J more than once remarked. [42]
[41][1988] VR 289 (‘Nicholas’).
[42]Ibid 306.
And Habersberger J, in the trial division, in Helmer v State Coroner of Victoria[43] held, after consideration of several of the authorities we have referred to, that it is sufficient for the purpose of s 14(2) that the contrary intention appears ‘clearly’ or ‘plainly’ rejecting the narrow interpretation requiring express words to amend or revoke a provision.[44]
[43][2011] VSC 25.
[44]Ibid [41].
Finally, we do not accept as Latrobe contended that Phillips JA in Transport Accident Commission v Lanson[45] was doing any more than noting the distinction between the common law and the statute when referring to the meaning of the expression.
[45](2001) 3 VR 250, 272–3.
We would adopt the approach of Fullagar J and Habersberger J in determining this question. In our view, the authorities stretching over many decades and the application of common sense support the interpretation of the word ‘expressly’ which requires that s 14(2) not be read narrowly: ‘expressly’ means ‘plainly’, ‘clearly’, or ‘by necessary implication’ and, as such, does not require a line by line reference to every part of a piece of existing legislation.
In our view, Parliament, by ss 28LZS(1) and (2), expressed its clear and plain intention that the threshold to be applied to any extant proceeding after the Amending Act came into force was that contained in the Amending Act. The wording of sub-s (2), which adds greater specificity to sub-s (1) by its reference to existing proceedings, make that conclusion unarguable. The legislature has therefore expressly said that the new threshold applies to proceedings for the recovery of damages for non-economic loss commenced before s 11 of the Amending Act — as Mr Mitchell’s claim was — but which have not been finally settled or determined before the commencement of that section — as in the case of Mr Mitchell’s claim.
It was unnecessary for Parliament to descend into the detail as Latrobe argues. It follows that if we are wrong in our interpretation of the effect of ss 14(2)(d) and (e) in relation to the efficacy of the certificate, then the express terms of the amending provisions negate the operation of the subsections.
Conclusion
We would answer the question posed by the County Court judge as follows:
Q:On the basis of the agreed facts and issues set out in the schedule hereto, is the plaintiff’s claim for damages for non-economic loss precluded as a consequence of the Certificate of Determination of the Medical Panel dated 19 October 2015?
A: No.
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