Monteiro v Tiago Enterprises Pty Ltd

[2012] VCC 362

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-01203

JOSE MONTEIRO	Plaintiff
v
TIAGO ENTERPRISES PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 26 March 2012
DATE OF RULING:	26 March 2012
CASE MAY BE CITED AS:	Monteiro v Tiago Enterprises Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2012] VCC 362

RULING

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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury

LEGISLATION CITED – Accident Compensation Act 1985; Civil Procedure Act 2010

CASES CITED – Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcasle City Council (2006) 80 ALJR; Walton v Gardiner (1993) 177 CLR 378; Cardona v Bacchus Marsh Mega Fresh Pty Ltd [2011] VCC 1483; Isikli v Surville Pty Ltd & Anor [2004] VSC 236

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R P Gorton QC with Ms K A Galpin	Patrick Robinson & Co
For the Defendant	Mr N B Chamings	Herbert Geer

HIS HONOUR:

1 In this proceeding, the defendant makes an application that the trial listed to commence today be adjourned to a date to be fixed to allow the matter to be referred to a Medical Panel pursuant to s45 of the Accident Compensation Act 1985 (as amended) (“the Act”). 

2 Notification of the defendant's application was given to the Court and to the plaintiff on 6 March 2012. It follows that the defendant has complied with its obligation under s45(1) of the Act and that the matter must be referred to a Medical Panel, unless I am satisfied that the referral is in all the circumstances an abuse of process.

3       In deciding the matter, I am satisfied that the approach that I should take is as follows:

·        Firstly, the test as to what amounts to an abuse of process is insusceptible of a formulation comprising closed categories;

·        Secondly, that the process to be employed is that the Court should prevent a misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute amongst right-thinking people;

·        Thirdly, although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories, namely; firstly, the court's procedures are invoked for an illegitimate purpose; secondly, the use of the Court's procedures is unjustifiably oppressive to one of the parties; thirdly, the use of the Court's procedures would bring the administration of justice into disrepute.

·        Finally, I am satisfied that a finding that a application gives rise to an abuse of process is one which should not be made lightly and that the threshold which must be satisfied before such a finding is made is a high one.

4       In making these statements, I refer to and apply the decisions of the High Court in Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council[1] and Walton v Gardiner.[2]

[1](2006) 80 ALJR at 1100

[2](1993) 177 CLR 378

5       Further, in this application, I am satisfied that I should follow the approach taken by his Honour Judge Misso in the matter of Cardona v Bacchus Marsh Mega Fresh Pty Ltd,[3] in which his Honour commented that the method which he should employ to determine whether an abuse of process arose was one in which he was to examine the processes of the Court and determine whether they had been used fairly in order to avoid the erosion of public confidence in those processes.

[3][2011] VCC 1483

6       The chronology relevant to the present application is as follows.

(i)    A serious injury application was served by the plaintiff's solicitors enclosing medical reports and supporting material on 25 October 2010.

(ii)   A response was delivered by the defendants, including the response material, on 22 February 2011.

(iii)   An Originating Motion was filed on 18 March 2011.

(iv)   A Notice of Appearance was filed on behalf of the defendant on 13 April 2011.

(v)   On 6 July 2011, the Court made a series of orders, including the following:  “Any application to vacate the trial date was to be made at least 28 days prior to the trial date to the judge in charge of the Serious Injury Division List.” 

7       These orders also fixed a timetable with respect to the service by the plaintiff of particulars of injury, which was to be effected by 31 August 2011; the exchange of medical reports; the preparation of court books; and date by which notification was to be given with respect to cross‑examination of medical witnesses, namely 23 February 2012.

8       The present application was made to me on the day the matter had been fixed for trial, namely, 23 March 2012.   It follows that the orders made previously by the Court on 6 July 2011 had been complied with and that the parties had, up until the service of the notice by the defendant of its intention to refer the matter to the Medical Board, acted on the basis that the matter was to be dealt with by the Court in a trial to commence on 23 March 2012.

9       It is the defendant's position that the referral:

· Firstly, complies with the provisions of s45(1)(b)(ii) of the Act with respect to time; and

·        Secondly, complies with the practice note issued in this list dated 29 November 2011;

and, accordingly, that there is no good reason why the referral should not be made.

10      As to these submissions:

(i)    Firstly, with respect to the practice note, which provides:

“Where a s134AB application has yet to be heard by the Court and the parties consent to the referral of medical questions to the Medical Panel pursuant to s45 of the Accident Compensation Act the application may be made to Judge Davis.  Where, however, a s134AB application has already been allocated to a particular judge for hearing, any application for referral of a medical question to the Medical Panel is to be made before the trial judge.”

it is wrong, in my opinion, to interpret this practice note as condoning a breach of a specific order of the Court as to the time by which an application must be made for an order adjourning the trial or as condoning undue delay in the referral of a matter to a Medical Panel. 

(ii) Secondly, whilst the provisions of s45(1)(b)(ii) of the Act have been complied with in this application, the compliance by the defendant in this respect in my opinion must not be considered in a vacuum.

11      Having regard to the chronology of the medical evidence as set out by the parties in their respective court books, I am satisfied that with the service of the plaintiff's particulars of injury in August 2011 the state of the medical evidence in the matter was such that the defendant was in a position to make an informed decision as to whether a referral to the Medical Panel should be made in this matter.

12      Had an application for a referral been made forthwith at around that time the matter would have been adjourned out of the list.  It would then have been refixed for hearing most probably in the first half of this calendar year.

13      The effect of this application being made as at the trial date will be that the matter will be adjourned to facilitate the referral. If it is refixed with priority, it will be allocated a date perhaps at the end of this year. If it is refixed without priority, it will be allocated a date early next year.  Obviously a significant delay will occur in either circumstance.

14      The pressure involved in the listing of matters of this type and the delays associated with listing of matters are well known to those charged with the management of this litigation on behalf of the defendant and should have been considered when arriving at a decision as to the timing of the application which has been made in this case.

15 That no reason for the delay in the referral was proffered by the defendant and further, that the questions to be considered by the Medical Panel were not prepared prior to this application, at which time they were provided to me in a handwritten form by reason of what was described by Mr Chamings, who appeared on behalf of the defendant, as “time issues”, in my opinion, calls into question the thought processes applied by the defendant in this application and suggests that the whole of the defendant's thought process was governed by the timing limits set out by s45 of the Act. This in turn, in my opinion, raises issues as to whether the referral was the result of a reasoned thought process designed to assist the parties and the court in resolving the issues which arise in the matter.

16      As to the questions now proposed, I accept that it cannot be said that the proposed questions are such that the opinion of the Medical Panel which is being sought, would not be or might not be capable of assisting the Court in resolving the dispute before it, and, accordingly, that the broad definition of relevance to be applied in matters of this nature is made out.[4]  I am far from satisfied however, that the answers to the questions proposed would provide the Court with significant assistance in deciding the issues which arise in this application notwithstanding the technical relevance of those questions.

[4]See Isikli v Surville Pty Ltd & Anor [2004] VSC 236

17      In my opinion, the application in this case, delayed effectively until the trial date, gives rise to an abuse of process for the following reasons:

(i)    Firstly, it involves the breach of a specific order of this Court made for the purpose of govern the orderly preparation and conduct of this proceeding, namely, that any application for adjournment of the matter was to be made no later than 28 days prior to the trial date.

(ii)   Secondly, the delay in the application will lead to a very significant delay in the refixing and the hearing of this matter and accordingly its final determination which could have been avoided had a timely application been made.

(iii)   Thirdly, the delay has necessitated the need for the parties to prepare for the trial.  In accordance with the orders made on 6 July 2011 in this matter notification has been given to medical witnesses that their attendance is required at the trial of this matter.  Those witnesses have had to make arrangements to attend Court if called upon to do so. Counsel have been briefed by both parties including Senior Counsel on behalf of the plaintiff; conferences must have been undertaken and accordingly considerable expense and time must have  been applied to the process of preparation for trial, the utility of which would be stymied if the application by the defendant is given effect to.

(iv)   Fourthly, the plaintiff  has been exposed to the pressure of preparing for a trial in the matter.  The emotional toll of that process is, in my opinion, not to be underestimated.

18      In my opinion, should the defendant’s application be allowed, the presence of all of these factors would give rise to a breach of the overarching purpose which is identified by the Civil Procedure Act, namely, that the Court is to ensure that civil proceedings are conducted in a manner which facilitates the just, efficient, timely and cost-effective resolution of real issues in the dispute.

19      For these reasons, I am satisfied that it is not appropriate that the matter be referred to the Medical Panel by reason of the fact that the application constitutes an abuse of process and, accordingly, I refuse the application on behalf of the defendant.

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