Parlane v Victorian WorkCover Authority (Ruling)
[2023] VCC 448
•28 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-05478
| KALE PARLANE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | JUDICIAL REGISTRAR J B GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2023 | |
DATE OF RULING: | 28 March 2023 | |
CASE MAY BE CITED AS: | Parlane v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 448 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Application by plaintiff to attend independent medical examinations arranged by defendant by audio-visual means and for serious injury trial to be conducted by audio-visual means
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, Div 2, Part 7, s335; Civil Procedure Act 2010, s49, s65H; County Court Civil Procedure Rules 2018, r44A
Ruling: Order that the plaintiff is required to attend the two independent medical examinations arranged by the defendant in person on the dates given and that the plaintiff is to attend in person to give evidence on the trial date.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Phelps | Arnold Thomas & Becker |
| For the Defendant | Mr T Storey | TG Legal & Technology Pty Ltd |
HIS HONOUR:
Summary
1On 8 February 2023, the plaintiff solicitors filed with the Court, a request for a directions hearing. The application form stated:
“The Defendant had mandated that the Plaintiff, who is living overseas has to come back to Melbourne for his SI hearing listed for 15 May 2023. … .”
2The form further stated that –
“The Defendant has also mandated that the Plaintiff come back to Melbourne for in person IMEs, short of which its position is that the matter cannot run. … .”
3In the form, it was explained that the plaintiff’s wife did not have a visa to return to Australia and that it was impractical for a foreigner to come back to Australia for independent medical examinations (“IMEs”) in the weeks to months before a hearing when matters can be dealt with virtually.
4Therefore, this is an application by the plaintiff to attend IMEs arranged by the defendant by audio-visual means, and for his serious injury trial to be conducted by audio-visual means.
5The application is opposed.
6The serious injury application is listed for trial on 15 May 2023, with an estimate of one day. No arrangements were made at the time of listing by the parties for the trial to be conducted by audio-visual means or for it to be listed as a special fixture.
7The defendant has arranged in-person examinations for the plaintiff with Doctors Barton and Menz on 1 and 2 May 2023.
8I heard submissions from counsel at the directions hearing on 23 February 2023. I was not satisfied with the material before the Court and, had concerns with respect to inconsistencies regarding evidence of the plaintiff’s travel from Australia and inability to attend in person.
9I made Orders that the directions hearing be adjourned sine die subject to the parties providing further affidavit material and written submissions. I informed counsel that, upon receipt of this material, I would provide my ruling.
10It is important to set out the history of these proceedings before the Court:
(a) The Originating Motion was issued on 22 December 2021. The plaintiff seeks a declaration that he has a “serious injury” within the meaning of Division 2, Part 7, of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Further, for an order that he have leave pursuant to s335 of the Act to institute proceedings for damages against the defendant in respect to injuries sustained in the course of his employment with Hotel Staff Pty Ltd;
(b) The Particulars of Injury filed on 14 February 2022 refer to injuries to the right shoulder, a spinal injury, lower back injury, neck injury and consequential psychiatric injury;
(c) The first timetabling orders were made on 11 February 2022, listing the proceeding for trial on 3 August 2022;
(d) On 1 August 2022, the plaintiff solicitor emailed the Court, including in the defendant solicitor, confirming that the matter was proceeding on the trial date on both heads and for (a) and (c). It was also stated:
“I note that the Plaintiff is currently overseas and will have to attend via zoom. He is married to a Chinese national who has since been deported from Australia approximately a week ago. Please let me know if the Court is amenable to this.”
(e) The defendant solicitor emailed the Court on the same day in reply to the plaintiff solicitor’s email, stating that before this date, the defendant was not notified the plaintiff was overseas and unavailable to appear in person for the hearing. The defendant had not been asked, and did not consent, to the plaintiff giving evidence remotely;
(f) The Court received Minutes of Proposed Consent Orders seeking for the vacation of the trial date of 3 August 2022 and for the matter to be listed for an administrative mention, not before 3 November 2022. A further order sought was that the plaintiff pay the defendant’s costs.
As required by the Court Orders, the plaintiff solicitors provided an affidavit sworn on 2 August 2022 with the proposed consent orders. In that affidavit, more information was provided on the plaintiffs’ departure from Australia. It was said that the plaintiff and his spouse were New Zealand residents, but the plaintiff’s spouse was a Chinese national. Further, the plaintiff’s wife’s Australian visa was recently and unexpectedly not renewed. The solicitor was notified by the plaintiff that the plaintiff’s wife was required to leave Australia and, naturally, the plaintiff also left to be with his wife. The plaintiff advised he and his wife would depart Australia and head home to New Zealand.
In paragraph 5, it was deposed that attempts were made by counsel for the plaintiff, on numerous occasions of the week commencing 24 July 2022, to communicate with the plaintiff as to his whereabouts. Those attempts failed.
At paragraph 6, it was deposed that the solicitor made contact with the plaintiff on 1 August 2022, when the plaintiff advised he departed Australia on 22 July 2022 and arrived in Mexico the following day via Dubai, travelling with his wife and two children. The plaintiff advised he would be in Mexico for three months.
The affidavit explained, given the plaintiff was not an Australian citizen and his wife did not have a visa to enter Australia, any evidence he gave in future would most likely be via videolink. However, it was conceded the plaintiff’s location, at present, “may not be able to accommodate a hearing undertaken in the appropriate manner”;
(g) I made an Order on 2 August 2022 vacating the trial and listing it for administrative mention on 15 November 2022, when the parties were to provide what further orders they sought by consent for the relisting of proceedings;
(h) On 22 November 2022, the plaintiff solicitor informed the Court that the parties were still attempting to negotiate orders and would provide the same “ASAP”;
(i) On 14 December 2022, the defendant solicitor provided proposed signed consent orders seeking that the proceeding be refixed for hearing at the earliest available date not before 1 May 2023, and for the parties to be given a date to exchange any further affidavits or medical reports, and the plaintiff to serve income tax documents;
(j) On 21 December 2022, the Court relisted the proceeding for hearing on 15 May 2023, together with other ancillary Orders.
Plaintiff’s affidavit
11The only evidence from the plaintiff I have is his affidavit of 1 March 2023. In that affidavit, at paragraph 5, he deposed he was aware the proceeding was listed for hearing on 3 August 2022, but it had to be adjourned due to his wife’s visa being cancelled in June 2022. He further deposed his wife’s father who was living in China had passed away in March 2022. The plaintiff and his family did not leave Australia to travel to China at that time due to worldwide restrictions because of COVID.
12Regarding his wife’s visa, he deposed, at paragraph 8, that it was cancelled in mid-June 2022 and his wife was given thirty days to leave Australia. Given that, at paragraph 9, he said that they had decided to attempt to travel to China on humanitarian grounds for his wife to visit her family and her father’s resting place; however, they had been denied entry due to the COVID-19 restrictions. He said that, at that point, he was “tossing up” between trying to enter New Zealand or go to another country which did not have significant travel restrictions or strict visa requirements that applied to his wife.
13At paragraph 11, he said he had decided to move to Mexico, as it did not have any entry restrictions or visa requirements for his wife. Upon entering Mexico, they were granted entry for three months. After that period expired, they moved to Ecuador for three months and then re-entered Mexico and have remained living there since. He and his family have been granted appropriate visas to remain in Mexico for the next twelve months.
14The plaintiff says that he is resident in Tlaxcala city, and he is undertaking some employment. Further, the internet connection was reliable, and he refers to being able to teach online without interruption. In April 2023, he is to commence a twelve-month contract working as a schoolteacher at a different town to where he is now. That town is 880 kilometres from Mexico City, whereas he is currently only 120 kilometres from Mexico City.
15Finally, the plaintiff deposed to the financial burden which would be placed upon him if he was required to travel to Australia to attend medical examinations and for the trial. He further deposed that long-haul travel was difficult because it exacerbated his physical injuries. He was available to be examined by any doctor online, similarly he would also be available online to give evidence if required, but noted that, where he currently lives, is seventeen hours behind Melbourne time.
Plaintiff’s submissions
16The plaintiff’s submissions refer to s49(1) of the Civil Procedure Act 2010 (“the CPA”) regarding any direction or order of the Court to further the overarching purpose, and to s49(3)(i), in respect to the place, time and mode of hearing. Reference is also made to the just determination of the proceeding, minimising any delay and to any prejudice suffered by a party.
17The submissions reference matters within the plaintiff’s affidavit and that the decision of the plaintiff to move to Mexico was being largely forced upon him and his family.
18An audio-visual hearing and IMEs undertaken was not considered to be prejudicial to the defendant. Little weight should be placed upon communication from Dr Anthony Menz, and Dr David Barton had already examined the plaintiff in person on 2 June 2022, when a full examination was undertaken.
Defendant’s submissions
19The defendant submitted if the plaintiff’s application was granted, it would impose an incurable unfairness upon the defendant and would not be in the interest of justice.
20From a review of the proceeding’s history, it was noted that, in June 2022, the plaintiff attended two in-person medico-legal examinations arranged by his solicitors. At those examinations, a variety of tests were undertaken by the examining doctors.
21Reference was made to the defendant solicitor’s affidavit of 2 March 2023 at paragraphs 8 to 10 which referred to arrangements made for the plaintiff to attend three medico-legal examinations in May and June of 2022. The plaintiff failed to attend all three. The reason given for one was as the plaintiff was not vaccinated for COVID-19, which had not been disclosed, and an examination was against existing protocols. For a further examination, the defendant solicitor received an email from the plaintiff solicitor’s office stating their client was “not comfortable with attending an appointment with Dr Rahgozar” and requesting it be rescheduled with a different occupational physician. The plaintiff failed to attend the third examination, with the explanation given by his solicitor that he had simply missed the appointment by accident.
22The defendant submits there was a clear advantage if the medical expert could conduct an in-person examination. In support, the defendant solicitor’s affidavit exhibited reports from Doctors Barton and Menz stating their reasons why the examinations should be in person.
23Reliance was also made to the Court’s Practice Note for serious injury applications, dated 1 July 2022, wherein it is stated that the starting point is that it is expected that all serious injury applications will be heard in person.
24Finally, the plaintiff’s travel since the first listed trial was noted and the defendant disputed the plaintiff’s allegation of difficulty being able to sit for long periods, given this travel.
Consideration and reasons
25The parties propose no compromise from their positions, which is that the plaintiff attends the IMEs and trial in person or remotely. Considering the plaintiff’s own evidence regarding what he says are the reasons why he should not attend in person, it would appear contradictory for the Court to make any compromise order such as attending the IMEs in person but not the trial.
26The plaintiff’s evidence against in-person attendances is the financial burden to him, the difficulties for his family due to any loss of income occasioned by his absence and an absence may jeopardise his recently obtained employment. Finally, he relies upon his alleged physical difficulties brought on by travel.
27The Common Law Division Practice Notes aid but do not solve the dispute between the parties.
28Practice Note PNCLD CL 1-2022 provides, at paragraph 12.11, that practitioners must advise the Common Law Registry as soon as they become aware of circumstances where a proceeding should be given priority on the listed trial date. Circumstances include the availability of an interstate or overseas witness when, if possible, the Court will allocate priority.
29Reference was made in submissions to paragraph 10 of the Serious Injury Applications Practice Note PNCLD SIA 1-2022. Paragraph 10.1 states:
“It is expected that all serious injury applications will be heard in person subject to the Court’s current Arrangements and expectations during coronavirus (COVID) protocol.”
30Paragraph 10.2 refers to the procedure where, by consent, no later than seven days prior to the trial, the parties are to inform the Court that the plaintiff is overseas or interstate, and a remote hearing of the serious injury application is sought by consent of the parties.
31However, paragraph 10.3 applies where there is no consent and, in those circumstances, the party seeking a remote hearing is required to make an urgent request for a directions hearing.
32The Common Law Division Response to Coronavirus (COVID-19) Practice Note of 7 February 2023, at paragraph 4.1(a), says that for proceedings listed in Melbourne, they are to be heard in court subject to the discretion of the presiding judge for all matters involving contested oral evidence.
33The start point therefore for the manner of the trial is for it to proceed in-person unless otherwise ordered by the Court.
34For the IMEs, there is no practice direction specifically addressing the issue. However, the Court should be guided by what the examining medical practitioner considers appropriate for the examination. Further, s65H of the CPA says, at ss(1):
“A court may give any directions it considers appropriate in relation to expert evidence in a proceeding.”
35Additionally, the expert witness is a witness for the Court and has obligations accordingly.
36Form 44A of the County Court Civil Procedure Rules 2018, being the Expert Witness Code of Conduct, at paragraph 2, sets out the general duties to the Court, and says:
“An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.”
37I have referred to the exhibits in the defendant solicitor’s affidavit from Doctors Barton and Menz. I note Dr Barton stated that there was a considerable amount of information that is obtained during an in-person examination that cannot be obtained by audio-visual means. Dr Menz responded, stating that, in his opinion, the only way to assess the plaintiff appropriately and fairly is to undertake a face-to-face examination.
38The parties have referred to the CPA. The overarching purpose of that Act in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 sets out the Court’s powers to further the overarching purpose.
39The overarching obligations apply not only to a legal practitioner but to a person who is a party. Section 41 of the CPA requires each party to personally certify that they have read and understood the overarching obligations and the paramount duty.
40The plaintiff has created a difficult position for the Court and the defendant. While he has deposed to the difficulties he faces, I am not satisfied there has been full co-operation for an effective resolution of this dispute. I say so for a number of reasons.
41The first is that on the evidence before me, the plaintiff appears to have provided little notice or warning to his own practitioners, and ultimately to the Court, about the circumstances he was faced with in June of 2022. The plaintiff, in his affidavit, said his wife’s visa was cancelled in mid-June 2022. He is not specific on when or as to what notice or warning he had of this occurring.
42However, his solicitor, in his affidavit of 2 August 2022, deposed that there were many attempts to communicate with the plaintiff which were unsuccessful in the weeks leading up to the first trial date. The plaintiff deposed he was aware of the first trial date. It was only on 1 August 2022 that his solicitor was able to speak to him, when he informed, he had left Australia on 22 July 2022 and had arrived in Mexico.
43A further inconsistency is the actual movements of the plaintiff during these relevant periods and, importantly, what the Court was told when the first trial date was vacated.
44Particularly relevant is the contents of an email from the plaintiff solicitor to the defendant solicitor dated 20 January 2023 exhibited to the defendant solicitor’s affidavit. In response to an email of that date when the defendant enquired about whether the plaintiff intended to return to Melbourne so they could arrange IMEs in preparation for the hearing, the plaintiff solicitor said:
“Our client has not confirmed any plans yet but will be in Australia for the Trial. He has a limited capacity to stay for an extended amount of time due to his family living overseas. Can you please confirm if you can arrange an appointment relatively close to the trial? I understand you will need time to get the report back before the hearing. Can you confirm how many medical examinations you are planning on arranging? Once I hear back from you I will let our client know.”
45What followed were further emails between the practitioners regarding the arranged examination. However, the plaintiff instructed he would attend in person, and a request was then made to arrange the IMEs close to the trial date.
46The plaintiff, in his affidavit, has not provided any explanation why he did not attend the IMEs arranged by the defendant. However, I note he was prepared to attend examinations arranged by his own solicitors in person which were scheduled on 1 and 23 June 2022. This was around the time the defendant’s examinations were arranged and when he may have had knowledge of the visa position.
47There is a balance I must seek to ensure there is a fair and just trial for both parties.
48For the plaintiff, there are the issues from a financial perspective and upon him and his family. For the defendant, it is whether they can properly prepare the proceeding for trial.
49The expense of the plaintiff attending in person is not an issue of great financial burden to the defendant. It would only become an expense if the plaintiff is successful and seeks to recover his travel, accommodation and associated expenses as part of his recoverable costs and disbursements. The initial expense, however, will be significant to the plaintiff.
50Time should not be a significant issue, as both the plaintiff and defendant have indicated their preparedness to work within a two to three-week timeframe for the IMEs and the trial date. If the plaintiff attends in person, the trial should be listed with priority.
51I have identified matters that were very much within the control of the plaintiff and the problems which have arisen and not been fully explained by inconsistent instructions and unresponsiveness. Had the plaintiff attended the IME’s as arranged in May and June 2022, the decision of the Court would have been so much simpler. An order for him to give evidence remotely would not cause such prejudice to the defendant.
52The plaintiff has obligations upon bringing these proceedings and there is no blame that could be attached to the defendant in what has happened to date. They have, by the arrangement of the proposed IMEs within fourteen days of trial, accommodated the demands of the plaintiff.
53It appears to me that underlying much of what may be the defence to this application, and whilst specifically not said, may be issues of credit. In-person examinations by the medical practitioners are crucial for the defendant’s case, as is giving evidence in person where there are issues of credit and or causation.
54While experience from COVID-19 has meant that many proceedings can successfully be conducted remotely, there are some where only the interests of justice dictate can properly proceed in person. Therefore, it follows that if I find that the IMEs should be in person, so should the trial be in person. That is particularly the position given that the trial can be conducted approximately fourteen days after the IMEs.
55For those reasons, I will make an Order that the plaintiff is required to attend the two independent medical examinations arranged by the defendant in person on the dates given and that the plaintiff is to attend in person to give evidence on the trial date. I will arrange with Listings to ensure that the trial is listed with priority on the trial date and make an Order for priority.
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