O'Neill v Holmes
[2018] VSC 292
•30 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS
S CI 2018 00345
| CYPRIAN O’NEILL | Plaintiff |
| v | |
| PROFESSOR ALEXANDER HOLMES and DR BRENDAN HAYMAN (MEDICAL PANEL) | First Defendants |
| RANDSTAD PTY LTD | Second Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May 2018 |
DATE OF JUDGMENT: | 30 May 2018 |
DATE OF WRITTEN REASONS: | 31 May 2018 |
CASE MAY BE CITED AS: | O’Neill v Holmes & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 292 |
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JUDICIAL REVIEW – Application for extension of time to seek judicial review of opinion of a medical panel – Lengthy delay – Only broad and general assertions to explain the delay – No arguable case for judicial review if the extension granted – Extension refused – Supreme Court (General Civil Procedure) Rules 2015 r 56.02.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| No appearance for the First Defendants | ||
| For the Second Defendant | Ms S Gold | Hall & Wilcox Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Legal principles.................................................................................................................................. 2
Extension of time........................................................................................................................... 2
Nature of judicial review............................................................................................................. 3
Consideration...................................................................................................................................... 5
Delay and explanation for delay................................................................................................ 5
Nature of the incident................................................................................................................... 5
Merits of the plaintiff’s case......................................................................................................... 6
Matters that could not ground judicial review even if proved.................................... 6
Matters that could ground judicial review if proved.................................................... 8
Other matters relevant to extension of time............................................................................ 11
Conclusion......................................................................................................................................... 11
HER HONOUR:
Introduction
These reasons concern an application to extend time for the commencement of a proceeding for judicial review. The decision sought to be reviewed is that of a medical panel, constituted by the first defendants (Panel). The first defendants have filed a Notice of Appearance but in accordance with usual custom do not appear at the hearing of the application and take a Hardiman approach to the Court’s determination. The application for extension of time is opposed by the second defendant, the plaintiff’s former employer.
The plaintiff was employed by the second defendant as a nurse. The referral to the Panel arose from his application for impairment benefits pursuant to s 98C of the Accident Compensation Act 1985 (the Act) for a psychological injury described as anxiety/depression/Post Traumatic Stress Disorder arising from an incident at the Austin Hospital in May 2008. The employer initially rejected liability, but subsequently accepted liability for this injury. The Panel determined that the plaintiff’s degree of permanent whole person impairment resulting from the accepted psychiatric injury (anxiety/depression/Post Traumatic Stress Disorder) was 25%. The minimum degree of impairment for the receipt of impairment benefits pursuant to s 98C of the Act for a psychological injury is 30%.
I refused leave for the extension of time on the day of the hearing of the application and gave oral reasons at that time. What follows are those reasons, essentially in the form I gave them orally, with limited corrections and some references added. In the course of the oral reasons there were exchanges with Mr O’Neill which I have noted in brackets, because they help to explain the course of what I then said.
As the reasons were originally given on the same day as the hearing at a time when the background facts were both familiar to the parties and recently canvassed, and the determination of the application does not involve any new principle or application of law, I did not orally, and do not now in writing, set out the background in any detail. Further, as I wished to make the reasoning as clear as possible to the self-represented plaintiff, I have sought to avoid technical language where possible and explain it if used.
Legal principles
Extension of time
The decision of the medical panel which is sought to be reviewed is dated 18 May 2015. Rule 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) provides that a proceeding for judicial review is to be commenced within 60 days after the impugned decision, and so here within 60 days after 18 May 2015. The originating motion that commenced this proceeding for judicial review was filed on 31 January 2018, so the proceeding is approximately two and a half years out of time. The Court does have power to extend the time for the commencement of a proceeding for judicial review pursuant to r 56.02 (3) of the Rules, but that power can only be exercised in special circumstances.
I now turn to the meaning of special circumstances and how that test is to be applied.
The existence of special circumstances is to be determined by reference to all the circumstances of the case.[1] It is not correct, as counsel for the second defendant submits, that special circumstances must relate to the period of the delay or the explanation for the delay.[2] It is to be determined having regard to all the circumstances of the case. However, the period of delay and the reason for that delay are factors that are to be taken into account, together with whether the plaintiff has an arguable case and, if necessary, the strength of that case,[3] questions of justice to both parties, which includes any prejudice to the defendants occasioned by delay, and the general public interest in the finality of litigation.[4] These factors are not exhaustive, but they are the factors that are generally applicable and that I have considered.
[1]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, cited in multiple cases including Sarikaya v Swinburne University of Technology [2018] VSC 17 per Derham AsJ [18].
[2]Wilson v Building Commission of Victoria [2015] VSC 629 (Wilson) per John Dixon J [54].
[3]Glass (a pseudonym) v The Chief Examiner and Ors [2015] VSCA 127 [71], [77].
[4]These principles are established in many cases, including those cited by the second defendant in its written submissions Lazarevic v Victoria Police [2015] VSC 13 per J Forrest J [36] and Williams v Coles Supermarkets Australia Pty Ltd & Ors [2016] VSC 161 (Williams) per Ierodiaconou AsJ [26]-[29]. See also Wilson [55].
As to the meaning of special, it is not defined and the cases have deliberately not defined it. Whether circumstances are special depends on the context in which they occur. Those circumstances or that context do not need to be unique, but they must have, in the words of one judgment, the matter of Wilson v Building Commission of Victoria (Wilson),[5] ‘a particular quality of unusualness that permits them to be described as special’.[6] Whether circumstances are special or not is an objective test. It follows that it is not enough that the circumstances feel special to the plaintiff or are experienced by him or are in his view special. It is not a subjective test, it is an objective test.
[5][2015] VSC 629.
[6]Ibid [53].
Nature of judicial review
It is also important to bear in mind the nature of judicial review. This is the context within which I must assess the prospects of success in the plaintiff’s case, if the extension of time is granted.
Judicial review is not a mechanism for appeal on the merits on the decision about which the complaint is made. That is, as applied to this case, it is not an avenue to argue that the Panel should have reached a different conclusion as to the level of impairment. The enquiry for judicial review is directed to the process by which a decision has been arrived at, not the merits of its conclusion. For this reason, relief in the nature of certiorari, which is the traditional name for one of the major forms of relief pursuant to judicial review by which is the impugned decision is quashed or set aside, is only available in limited circumstances. Those circumstances are jurisdictional error, error of law on the face of the record – and in this state the record includes the reasons[7] – failure to observe procedural fairness, or fraud.[8]
[7]Administrative Law Act 1978 (Vic) s 10.
[8]Craig v South Australia (1995) 184 CLR 163.
The plaintiff does not here rely on jurisdictional error. What the plaintiff asserts is that there were errors in the conclusion reached by the Panel. He asserts fraud and he asserts breach of procedural fairness.
The type of fraud that can lead to judicial review is fraud that relates to the process by which the Panel reached its decision. It follows that even if there were, as the plaintiff alleges, incorrect, even deliberately incorrect, statements made at the time of the incident or in reports by the employer of the incident, or there were actions taken later that were false or even deliberately false, that is not relevant fraud. For judicial review, those matters could only be relevant if they infected the Panel’s decision. Similarly, breaches of procedural fairness by people involved in the chain of events before the matter came to the Panel are not relevant unless they related to the making of the Panel’s decision. In particular, matters that the plaintiff has described as breaches of procedural fairness at the time of the incident are not relevant unless they infected the Panel’s decision.
In relation to error in the conclusions reached by the decision maker, errors of that type are not reviewable unless they were errors of law disclosed in the reasons and they also materially affected the decision. For example, even if the Panel should have given a higher class rating for one or more of the six mental functions it was required to assess, that is not a basis for judicial review unless that error was caused or affected by an error of law. An error as to rating given is an error of fact and it does not make the decision reviewable unless it was caused or effected by an error of law.
It is also important to bear in mind that the decision sought to be reviewed here is that of the Panel, not a decision or actions by any other person such as Dr Duke, the employer, the insurer or the persons involved at the time of the incident, being Nurse Doig and Manager Cheshire, unless that person’s decision or action caused error of the necessary type by the Panel.
With those legal principles in mind, I now apply them to the facts of this case.
Consideration
Delay and explanation for delay
I first consider the length of the delay and the explanation given for it. It is a very lengthy delay, being in the order of two and a half years. I accept that that delay would cause prejudice to the second defendant employer if ultimately the Panel decision was overturned or quashed, as the second defendant may require an updated medical assessment of the plaintiff for submissions to any reconstituted panel.
The length of the delay also needs to be viewed in the context of the short period of time that the law affords for seeking judicial review and the desirability of finality of litigation. That principle of finality of litigation applies in numerous contexts. For example, to bring an action for breach of contract there is a period of limitation. It is much longer, it is six years, but that is because it is a first instance decision. Once you have a first instance decision, periods for seeking review or appeal are generally much shorter and here it is only 60 days.
As well as the period being long, there is also no specific explanation given by the plaintiff for any portion of it. The plaintiff only makes the broad and general assertion that delay was due to the severity of his mental condition and not being informed by the defendant of the time limit.
In relation to that latter matter, the defendant does not have an obligation to inform the plaintiff of the time limit and generally speaking, ignorance of the law is not an excuse, although some leniency is sometimes afforded in the case of a self‑represented person. Broad and general assertions are also insufficient.[9] What is required is specific explanation and that is the case even where the plaintiff has a mental illness, and that is here accepted, and is self-represented.
[9]Williams, [27] citing Lovejoy v Myer Stores Ltd [1999] VSC 271, [25].
Nature of the incident
The plaintiff has laid considerable stress on what to him was the wrongful nature of the conduct of hospital staff towards him giving rise to his mental illness. As noted earlier, special circumstances include all of the relevant circumstances and are not limited to just the period of the delay and the explanation for the delay. For this reason I consider the nature of the incident as one of the circumstances on which the plaintiff relies.
The plaintiff submits that what occurred at the hospital was itself so unusual in a hospital setting that it constitutes special circumstances. He considers that he was wrongfully prevented by Nurse Doig from caring for his patients for an inordinate period of time and that he was subsequently treated badly by Manager Cheshire. Even if his submissions are correct that their actions were wrongful – and I am not making that finding, merely assuming for the purposes of argument that it could be established – I am not persuaded that those circumstances can be said to have a ‘particular quality of unusualness that permits them to be described as special’ as held to be required in Wilson.
I accept for the purposes of argument that in the plaintiff’s experience those circumstances were unusual but as I have indicated, what is required is not a subjective test but an objective test. An objective assessment would require objective evidence of usual hospital practice and there is no such evidence before me.
Merits of the plaintiff’s case
Matters that could not ground judicial review even if proved
I consider that most of the matters on which the plaintiff relies are not matters that could lead to judicial review, and accept the submission by the second defendant to that effect.
The first of these are the circumstances of the incident. I have touched on those circumstances already. I accept that Mr O’Neill feels very aggrieved at what occurred, but even if that grievance is justified because that the nurse and the manager were at fault, their faults were not matters that were relevant to the Panel’s determination. The Panel was only required to determine the level of permanent impairment, not to make any finding about the incident itself, and in particular not to make any finding of fault. In fact, the Panel in describing the incident used fairly neutral terms and accepted the plaintiff’s account of his response to it.
The next matter that the plaintiff relies on, but in my judgment is not a matter that could ground judicial review, is the severity of his injury. In so far as this is a complaint about the rating given by the Panel, it is a complaint about the merits of their conclusion, and so is not reviewable. The plaintiff also says the severity of his injury has been demonstrated by other medical reports. In particular, he has referred to it being supported by six of seven doctors, and by opinions by other agencies such as Centrelink in the granting of a disability pension. It is important to remember that it is not the job of a medical panel to evaluate other people’s opinions. So the fact that other people for other purposes have reached the conclusion that Mr O’Neill is severely impaired, if that is their conclusion, does not mean that the Panel had to reach that conclusion. The Panel’s job is to form their own conclusion in accordance with particular guidelines. On the face of their reasons, they did reach their own conclusion.
The next matter that Mr O’Neill relies upon that in my judgment cannot support a judicial review is his concern that Dr Duke changed his opinion at the direction or under the influence of the insurer, Allianz. Dr Duke’s opinion is referred to by the Panel but they had to reach their own conclusion and they explicitly state that they that did so. Their opinion did in fact accord with Dr Duke’s second opinion, or amended opinion, but the Panel arrived at that opinion on the basis of their own examination. Even if it is correct that Dr Duke changed his opinion improperly at the direction of the insurer, in my view Mr O’Neill has no real prospect of establishing that that action was relevant to the Panel’s determination.
(At this point in the oral reasons I paused as the plaintiff appeared to be about to leave, and a discussion with him followed. He did not leave and I continued with the oral reasons, as now follows.)
The fourth matter that Mr O’Neill has relied upon, that I do not consider a ground for judicial review, is his submission that the Panel should have rated his degree of dysfunction in some aspects of mental functioning at a higher level. I accept that that is Mr O’Neill’s view but it goes to the merits of the Panel’s decision and as I have sought to explain, this is not an appeal on the merits. It cannot be an appeal as to whether or not the Panel reached the right conclusions in assessing Mr O’Neill. It is only about whether they followed the correct process in reaching those conclusions.
Matters that could ground judicial review if proved
The first such matter is a breach of procedural fairness by the Panel. This has two limbs. The plaintiff initially asserted in his oral submissions (but may have later retracted) that the Panel did not read material that he had supplied. In the course of his submissions I sought to identify the material about which he spoke and directed the plaintiff’s attention to the portion of the reasons that list the material that was taken into account.[10] The plaintiff has not directed me to any other material that he supplied to the Panel other than what is listed in that Schedule. For that reason, I do not consider that to be a ground that is arguable.
[10]Enclosure B, Schedule of Attachments. The Enclosure acknowledges receipt of the listed material and that it was taken into account by the Panel in forming its opinion.
The other limb relates to the length of time that the Panel had to assess Mr O’Neill. Mr O’Neill says that the Panel was only allocated one hour, whereas Dr Duke had taken two and a half hours to assess him, and that in fact the period of assessment was less than an hour because he walked out. As he walked out, the period of time being less than an hour is not a matter of which Mr O’Neill can now complain. But in any event, there is nothing to show that one hour would not have been sufficient given that Mr O’Neill had been given the opportunity to provide additional information to the Panel and he did so.
The second category of matters that Mr O’Neill advances that in my view could constitute a ground of judicial review relate to a failure to take into account relevant matters. If that is proved and it is evident from the reasons, it is an error of law on the record. If it is material, it could be a ground for judicial review. My task is to assess whether the claimed errors in this respect are arguable, and to the extent required, the plaintiff’s prospects of success.
The plaintiff asserts that the Panel failed to ask him questions relating to four topics that he identifies: suicidal ideation; any impact on his interpersonal capacities, including libido and capacity to form intimate relationships; his desire to return to work; and whether the circumstances as reported of the incident were accurate.
The Panel was required to apply The Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC). I accept the submission by the second defendant that the GEPIC does not require any specific questions to be put to a person who is being assessed. The GEPIC requires a clinical assessment in relation to six identified aspects of mental function and it gives examples of the sorts of matters or symptoms that might be said to evidence impairment in each of those categories of mental function. The matters listed are examples. The GEPIC makes it clear that they are not intended to be exhaustive.
It is apparent from those example symptoms, that suicidal ideation and an impact on interpersonal relationships are matters that may be relevant to assessment of a number of aspects of mental function. The second defendant identified some aspects of mental function where they are referred to and Mr O’Neill has identified others. A desire to return to work is not specifically given as an example of a symptom or matter that may be relevant, but the GEPIC identifies motivation generally as to be considered. Circumstances of the injury are not identified as matters to be considered, although the history of the illness is.
My conclusion is that it is not arguable that there was an error by the Panel in not asking Mr O’Neill specific questions about these topics, if it is correct that they did not ask him such specific questions. I say if it is correct because the reasons show that in fact most of those matters were considered by the Panel. There is a number of references to suicidal ideation. There is also references to impact on interpersonal relationships.
(At this point in the oral reasons, Mr O’Neill interjected to express his concern that he should have been scored more highly given the references to suicidal ideation. I then continued as follows.)
There are indications in the opinion that these matters were considered. There are references to suicidal ideation. There are references to impact on interpersonal relationships. There is a reference to what occurred when Mr O’Neill sought to return to work. In relation to the circumstances of the incident, the Panel accepted Mr O’Neill’s view.
The plaintiff is concerned that the Panel, although it considered those matters, reached too low an assessment of their severity. Now that may be correct. It is not my job to determine that because under judicial review I cannot determine that. All I can look at is the process, including any error of law on the record. I cannot look at the conclusion. It may be that the Panel was wrong. It may be that the Panel should have given Mr O’Neill a higher rating in relation to matters such as suicidal ideation and so a higher level of impairment, but that is not something that I can consider because it is an error of fact, not an error of law. I understand that is very hard to accept but that is what the law says.
The third aspect or ground that Mr O’Neill has relied upon that could be a ground for judicial review if accepted is his assertion that the Panel took irrelevant considerations into account. He is concerned in particular that they were given reports relating to an earlier workplace injury which he considers irrelevant.
The second defendant is correct that the Panel does have to consider earlier injuries because they have to form a view as to whether those earlier injuries had an impact on impairment. So I accept the second defendant’s submission that those medical reports were relevant and indeed the Panel was required to consider them. In any event, the Panel accepted Mr O’Neill’s assertion that he was no longer affected by that earlier injury. Even if Mr O’Neill was correct that the medical reports relating to the earlier injury were irrelevant – and he is not – but even if he were, the Panel said they were not relevant. It was not an error that affected their conclusion. So that ground is not arguable.
Having regard to that whole analysis, my conclusion is that Mr O’Neill does not have a real prospect of success in his application for judicial review if an extension of time to bring the application was granted. He does not have a real prospect of success in the ultimate case.
(Mr O’Neill again interjected at this point in the oral reasons, and I did not continue with the balance of the reasons I had prepared. I now set out the remaining portion.)
Other matters relevant to extension of time
I referred earlier to the desirability of finality in litigation as tending against the grant of an extension of time, and the prejudice that may flow to the second defendant if the extension was granted.
I also accept the second defendant’s submissions that the extension should not be granted because the impact on the Court’s resources and on other litigants if the proceeding continues to a full hearing is not justified given that the plaintiff has no real prospect of success.
I have considered the cases to which the plaintiff referred me, where an extension of time was granted. Each case must be considered on its own facts, having regard to the legal principles that I have set out. It does not follow that because an extension was granted in one case, it should be granted here on different facts.
Conclusion
For these reasons, I will refuse the application for extension of time and dismiss the proceeding.
(The second defendant then sought an order for costs on the basis of success in the proceeding, which I granted after hearing from the plaintiff.)
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