Nichols v Lanzer
[2025] VCC 231
•13 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No.CI-24-00118
| Chloe Nichols | |
| Plaintiff | |
| V | |
| Daniel Lanzer & Dermatology & Cosmetic Surgery Services Pty Ltd (ACN 055 927 618) as Trustee for the D & V Lanzer Family Trust ABN:645 751 61 | First Defendant |
| Second Defendant |
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JUDGE: | JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2025 | |
DATE OF RULING: | 13 February 2025 | |
CASE MAY BE CITED AS: | Nichols v Lanzer & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 231 | |
RULING - EX TEMPORE
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Subject:PRACTICE AND PROCEDURE
Catchwords: Deemed significant Injury – Wrongs Act – whether prescribed information and certificate of assessment are “documents in a proceeding” – whether service on solicitor constitutes service for the purposes of the Wrongs Act - whether medical panel referral invalid
Legislation Cited: Civil Procedure Act 2010
County Court Civil Procedure Rules 2018
Wrongs Act1958
Cases Cited:Scamante v Dr Lanzer & Ors [2024] VSC 664
Emhill Pty Ltd v Bonsoc Pty Ltd [2005] VSCA 239
Ruling:Plaintiff has a deemed significant injury pursuant to Part 5BA of the Wrongs Act
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Wallis | Shine Lawyers |
| For the Defendant | Mr L Warren (Solicitor) | L A Warren Lawyers |
HER HONOUR:
1This is an application by the plaintiff for orders that the plaintiff has a deemed significant injury in her claim against the second defendant within the meaning of s28LW and 28LWE(2) of the Wrongs Act1958 (“the Act”), and an order that the second defendant's referral to the medical panel is invalid. Section 28LE of the Act provides that 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, unless the person injured has suffered a significant injury.
2Section 28LF defines what, for the purposes of this part of the Act, constitutes a significant injury. In summary, a significant injury is an injury that has been assessed by an approved medical practitioner as satisfying the relevant threshold. Under s28 LN, an approved medical practitioner who makes an assessment of an impairment must provide to the person seeking the assessment a certificate of assessment. This certificate must state whether the degree of impairment satisfies the threshold level.
3Division 4 of the Act then provides the procedure by which a claimant can claim non-economic loss. The claimant must serve the certificate of assessment on the respondent. The claimant must also serve the prescribed information in the prescribed form. Once served with both the certificate of assessment and the prescribed information, the respondent has 60 days in which to respond to the claimant.
4The respondent can, relevantly, either accept the assessment or refer the claimant to the medical panel for assessment. Medical panel assessment of impairment is binding on all parties and the court.
5If a respondent does not refer the claimant within 60 days, the respondent is deemed to have accepted the assessment, and the claimant is deemed to have a significant injury for the purposes of recovering damages for non-economic loss. In terms of calculating time, order 3.01 of the County Court Civil Procedure Rules 2018 (“the Rules”) provides that the day upon which time is to be calculated from is excluded.
6The plaintiff served the certificate of assessment and the prescribed information on 2 August 2024 at about 1 pm by email on the lawyer for the second defendant. Calculating the passage of days in accordance with Order 3, the plaintiff says that the last day for the second defendant to respond was 1 October 2024. On 3 October 2024, the second defendant notified the plaintiff that he intended to refer the plaintiff to the medical panel.
7The plaintiff seeks a declaration that the referral by the second defendant to the medical panel is invalid, and an order that the second defendant is deemed to have accepted the assessment under the provisions of 28LW(4). This raises the question, as to whether service on the lawyer or the second defendant was service for the purposes of s28LT of the Act. Rule 8.06(1) of the Rules , which deals with the address for service of a defendant, provides that the notice of appearance must state, if the defendant appears by solicitor: the address of the defendant, the name or firm and business address within Victoria of the solicitors, if the solicitor is an agent for another, the name or firm and business address of the principal, and an email address for the service of the defendant. Rule 8.06(2)(a) provides that the address for service of the defendant shall be, where the defendant appears by solicitor, the business address of the solicitor stated in the notice of appearance.
8The notice of appearance which was filed for the second defendant by L A Warren Lawyers on 17 July 2024, provided that the email address for service of the second defendant is [email protected].
The second defendant’s submissions
9The second defendant says the notice of appearance was appearance in the proceeding and authorised the plaintiff to serve the lawyer for the second defendant with all documents in the proceeding. However, the second defendant says the certificate of assessment and prescribed information were not documents in the proceeding.
10The second defendant acknowledges that there is no general definition of document and says that the Rules provide guidance as to what might constitute a document. Rule 36.01 provides that the court may order that any document in a proceeding be amended, and provides that, in this order, “document” includes originating process, an endorsement of claim, and a pleading.
11The second defendant submits that the medical panel process stands apart from any other proceeding. It can occur without legal proceedings on foot, as was the case in Scamante v Lanzer & Ors (“Scamante”)[1], and is not dependent on the existence of legal proceedings. It is not part of any other proceeding, and therefore any documents relating to the medical panel are not documents “in the proceeding” - the proceeding being, for present purposes, Nichols v Lanzer & Anor.
[1] [2024] VSC 664
12The second defendant says service was therefore never effected on the second defendant by the plaintiff, but nevertheless accepts that it was served pursuant to the principles enunciated in EmhillPty Ltd v Bonsoc Pty Ltd (“Emhill”)[2] when the certificate and prescribed information came to the attention of Daniel Lanzer, the director of the second defendant, on the 5th or 6th of August 2024. The uncertainty about whether that date was the 5th or 6th arises because Mr Lanzer was overseas at the time.
[2] [2005] VSCA 239
13As a result, the second defendant says the time for it to respond to the prescribed information expired on 4 or 5 October. It made its referral on 3 October, within time. Therefore, there is no basis upon which to assert that the plaintiff is deemed to have a significant injury.
The plaintiff’s submissions
14The plaintiff says, by the notice of appearance, the lawyer for the second defendant accepts service of all documents, and there was no suggestion by the lawyer for the second defendant of any limitation on his authority.
15The plaintiff submits that the lawyer had filed a defence on behalf of the second defendant specifically pleading that it reserved its rights in relation to the failure to serve an impairment certificate, which demonstrates that the lawyer was engaging with the subject matter. The plaintiff says the second defendant’s lawyer did not notify the plaintiff that he did not have instructions to accept the certificate of assessment and prescribed information, and the plaintiff says the certificate and prescribed information are clearly documents in the proceeding.
My Findings
16The definition of document under rule 36.01 is not exhaustive. Further, by the words contained in rule 36.01, it applies to that order and does not purport to apply elsewhere. Plainly enough, the definition of 'document' that would include a document in a proceeding must extend beyond pleadings and originating processes. Documents “in a proceeding” could include, at least, letters and other correspondence, offers of settlement, subpoenas, material produced pursuant to subpoenas, discoverable material, applications, expert reports and medical records.
17There is nothing in the rules that suggests to me that a certificate of assessment and prescribed information cannot be considered documents in the proceeding. In Scamante, the plaintiff sued Lanzer, Dermatology and Cosmetic Surgery Services Pty Ltd (“DCSS”), and another entity, DVF. His Honour Justice Watson found that the documents were never served on Lanzer. Documents containing the certificate of assessment and the prescribed information were served on the other two defendants, DCSS and DVF.
18The documents served on DCSS came to the attention of Lanzer's lawyers, and those documents named Lanzer as an additional respondent. But Lanzer himself was not served. Being aware that he was named as an additional respondent in documents served on another party did not satisfy the requirements of service under s28LP of the Act. Had the documents been served, Watson J was satisfied that Lanzer would have been deemed to have accepted the assessment, as he did not respond within 60 days. Lanzer made a referral to the medical panel, but he did not respond to the plaintiff as is required. Therefore, the referral to the medical panel was also found to be invalid and the medical panel determination was quashed.
19Importantly, in Scamante, there were no proceedings on foot. The medical panel process can, as the second defendant noted, be triggered prior to litigation. Having been triggered, there is no requirement that litigation follow.
20This does not, in my view, mean that once proceedings are on foot, documents relevant to the medical panel process cannot be “documents in the proceeding”. Importantly, in Scamante, Watson J was not satisfied that service could be affected by a certificate of assessment, and the prescribed information relevant to another entity, DCSS, coming to the attention of Lanzer, nor could Lanzer's purported referral to a medical panel be valid as he had not responded as required under the Act.
21I accept the second defendant's submission that the lawyer's failure to notify the plaintiff that he was not authorised to accept the certificate and prescribed information on behalf of the second defendant is not a relevant matter in this case. If the second defendant is correct that those documents are not “documents in the proceeding”, there is no legal obligation to so advise under the rules, although the requirement under the Civil Procedure Act 2010 to ensure cooperation and the timely and cost-effective disposal of the issues in dispute might arguably impose such an obligation.
22But in any event, it is not a matter that troubles me here, because I am not persuaded that the certificate and the prescribed information are not documents in the proceeding. By her statement of claim, the plaintiff pleads that she has sustained a significant injury pursuant to s28LF, and she seeks damages, interest and costs. She also says she makes no claim for loss of earnings or loss of earning capacity, but she does claim attendant care and medical expenses. She outlines her injury, loss and damage at paragraph 15. The injuries she claims are bilateral leg injuries and a psychiatric injury. These are personal injuries.
23To be entitled to recover damages for those personal injuries, she must establish she has a significant injury pursuant to the provisions of the Act. There is no doubt that the plaintiff is making a claim for damages for personal injury and no dispute, as acknowledged in the defence, that in order to recover those damages she will need to satisfy the requirement of the Act as to the existence of a significant injury.
24I accept that a medical panel procedure can exist without legal proceedings. However, once legal proceedings are on foot, if documents relating to the medical panel procedure are not documents in the proceeding, the result would be that a solicitor who files a notice of appearance in a proceeding is not authorised to accept the outcome of the medical panel assessment.
25This would be a perverse result, particularly as s28LZM requires the claimants to file the medical panel determination with the court. It is hard to understand why the plaintiff would be required to file a document with the court that was not a document “in the proceeding”. Under s28LZMA, the court has the power to stay any proceedings for the recovery of damages for non-economic loss until a plaintiff serves a certificate of assessment and the prescribed information.
26The power of the court to stay the proceeding, pending the service of that documentation, supports the proposition that those are documents “in the proceeding”. Once legal proceedings for damages are on foot, the only purpose of the medical panel procedure is for the recovery of damages. The recovery of damages is part of the proceeding. Documents relating to the recovery of damages are documents in the proceeding. I am therefore satisfied that the certificate of assessment and the prescribed information are documents in the proceeding.
27I do not accept that, having filed a notice of appearance, L A Warren Lawyers were not retained for the purpose of accepting service of the certificate of assessment and the prescribed information. A notice of appearance by a solicitor in litigation is notice that the solicitor can accept service for all purposes of all documents in the proceeding. The prospect that a notice of appearance delineates between categories of documents in the litigation and applies to some but not all, and that a plaintiff should somehow be able to divine which documents the solicitor is authorised to accept, and which must be served personally on their client, would render litigation unworkable.
28I doubt that even a clear indication by L A Warren Lawyers that it was not authorised to accept all documents in the litigation, and that the plaintiff should check before serving any particular document would suffice to establish that the solicitor was not authorised to accept those documents. I note here that Mr Warren did not make this submission. The argument propounded focused on whether the certificate of assessment and prescribed information documents were “in the proceeding”. However, for the avoidance of doubt, if a solicitor is not authorised to accept all documents in a proceeding in which they have filed a notice of appearance, the solicitor should file a notice of ceasing to act.
29This is, plainly enough, different from a situation in which a solicitor has notified another party that they are instructed to act but has not filed a notice of appearance. In such a case it would be prudent, and likely required, to check whether the instructions to act encompass accepting service of court documents. Often enough, in practice, they do not.
30The efficient conduct of litigation relies on parties cooperating, and the point of a notice of appearance being required is so that plaintiffs know where to serve documents in the proceeding once the proceedings are on foot. Once that notice is filed, the solicitor on the record must accept service of all documents in the proceeding.
31I make the following findings. The certificate of assessment and prescribed information are documents in the proceeding. The plaintiff served the certificate of assessment and the prescribed information on the second defendant on 2 August 2024. The defendant did not respond by 1 October 2024, 60 days from the date of service. The second defendant is deemed to have accepted the certificate of assessment.
32As a consequence of the deemed acceptance, the second defendant cannot refer the plaintiff to the medical panel and a purported referral is invalid. Pursuant to s28LF of the Act, the plaintiff has a significant injury in her claim against the second defendant, as she has been assessed by an approved medical practitioner in accordance with this part as satisfying the threshold level.
33This enlivens the plaintiff's ability to recover damages in the proceeding from the second defendant. I make the following order:
(i)In relation to the plaintiff's claim against the second defendant, the plaintiff has a significant injury pursuant to Part VBA of the Act.
34I will hear the parties on the question of costs and any other order.
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