Pham v Toyota Motor Corporation Australia Limited (Ruling)
[2016] VCC 132
•25 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01084
| THI HONG THU PHAM | Respondent/Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Applicant/Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2016 | |
DATE OF RULING: | 25 February 2016 | |
CASE MAY BE CITED AS: | Pham v Toyota Motor Corporation Australia Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 132 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to refer medical questions to Medical Panel – previous application on the same grounds – whether an abuse of process
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985
Cases Cited:Skordos v His Honour Magistrate Garnett & Ors [2009] VSC 512; DA Christie Pty Ltd v Baker (1996) 2 VR 582; Philip Morris Ltd v Attorney-General for the State of Victoria & Anor (2006) 14 VR 538; Bajramovic v Calubaquib [2015] NSWCA 139; Nominal Defendant v Manning (2000) 50 NSWLR 139; Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170
Ruling: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Defendant | Mr R Kumar | Minter Ellison |
| For the Respondent/Plaintiff | Mr D Nguyen | Shine Lawyers |
HIS HONOUR:
1 This is an application by the applicant/defendant, Toyota Motor Corporation Australia Limited (“Toyota”), pursuant to s274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) that various questions, said to be “medical questions” as defined by the Act, be referred to a Medical Panel for determination. For the reasons which follow, the application should be allowed.
2 The principal proceeding is an application by the plaintiff, Ms Thi Hong Thu Pham (“Ms Pham”), by Originating Motion seeking leave to bring common law proceedings pursuant to s134AB of the Accident Compensation Act 1985, for injuries suffered in the course of her employment with Toyota. The injuries alleged to have been suffered are to the lower back, neck, shoulders, right hand and psychiatric injury.
3 The application is for both pain and suffering and economic loss.
4 These injuries are said to have occurred throughout the course of Ms Pham’s employment with Toyota.
5 There are five medical questions, said to comply with the definition of “medical question” contained in s3 of the Act which are sought to be referred to a Medical Panel. Those questions are set forth in a document entitled “Notice of Request Pursuant to Section 274 of the Workplace Injury Rehabilitation and Compensation Act 2013”, provided in the course of submissions.
6 The Originating Motion was issued on 6 March 2015, and on 18 March 2015, timetabling and administrative Orders were made, including that the proceeding be set down for hearing for 17 November 2015.
7 On 29 October 2015, the Court was informed by letter that the defendant intended to refer certain questions to the Medical Panel and requested a directions hearing. The referral was opposed, and the matter came on for hearing before her Honour Judge Campton of this Court on 11 November 2015. Both counsel who appeared before me in this application, also appeared before her Honour. The application concerned the same five questions as are before me.
8 Although there were no written reasons provided by her Honour, and the application was not transcribed, I was informed by counsel that her Honour refused the application on the following grounds:
(i) As the defendant had not notified the Court within fourteen days of the hearing date, there was no basis upon which the Court “must” refer the matter to a Medical Panel as contemplated by s274(1)(b) of the Act;
(ii) In those circumstances, counsel for the defendant submitted that the Court should refer the medical question to a Medical Panel, of its own motion, pursuant to s274(1)(a);
(iii) Her Honour considered that as the referral to a Medical Panel would require the hearing date to be vacated, and another date fixed some considerable time away, the plaintiff would suffer significant delay and thus be prejudiced;
(iv) Toyota had delayed in the bringing of the application until shortly prior to the hearing date, whereas it could have been brought at an earlier time without jeopardising the trial date;
(v) The vacation of the trial date stood in contrast to the provisions of the Civil Procedure Act 2010 requiring proceedings to be determined in a timely manner and without delay;
(vi) Her Honour found it unnecessary to determine whether the application was an abuse of process (as contemplated in s274(3) of the Act);
(vii) The medical questions provided were the subject of some discussion in the application, but no part of her Honour’s Ruling determined whether the referral was appropriate or otherwise.
9 I was advised in the course of the application, the Court was informed the matter listed for 17 November 2015 was ready to proceed.
10 As matters transpired, after the hearing before her Honour, several medical reports were served by the plaintiff upon the defendant which had been in the plaintiff’s possession at the time of the application. Neither counsel could confirm that this was the reason why the trial date of the matter was vacated. It was re-relisted for hearing by consent for 27 September 2016.
11 Section 274 of the Act relevantly provides:
“(1) In exercising jurisdiction under this Part, a court—
(a)may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b) if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2)…
(3)If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4)…
(5)A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.”
12 At the outset, Mr Nguyen contested this application on the ground that the formation of the Medical Panel’s opinion would be based upon factual issues which could be better determined by a court. However, once the nature of the issues to be contested were disclosed in the course of submissions by Mr Kumar, Mr Nguyen withdrew his objection to the application on that ground.
13 The real issue of contest is whether the bringing of this application would constitute an abuse of process. Essentially, said Mr Nguyen, the matter had been heard and determined by her Honour Judge Campton on 11 November 2015 and ought not be re-agitated.
14 It should be noted that her Honour refused the application, substantially it seems to me, on the basis that to do so would mean that the trial date was lost with consequent delay, of particular concern to the plaintiff. Her Honour was not constrained by the imperative contained in ss(1)(b) as notice had been served within 14 days of the trial date. The situation is now different, in that the hearing date now being in September 2016, the referral process and the obtaining of the Medical Panel’s opinion could be completed well before that date, and within sufficient time to enable the parties to consider the answer to the questions and reflect upon the consequences for the serious injury application.
15 Section 274 is clear in its language. It provides a court must refer the matter to a Medical Panel at the request of one of the parties, providing that request is made within a time prescribed, and is not affected by the exemptions contained in ss(3) or ss(5). In the course of argument, it was not put to me that there had been any substantial change in the plaintiff’s medical condition or circumstances since the matter was before her Honour in November 2015, even although further medical material was served by the plaintiff. In other words, there had been no significant change of circumstances as would warrant a new referral to the Medical Panel. To some extent, that is evident given the same questions were before her Honour as are before me.
16 It was not argued before me that the decision of her Honour had created any estoppel. Her Honour specifically did not rule on whether the application was an abuse of process, nor, despite some discussion on the issue, was there any determination about the nature and content of the medical questions, or whether the Court was a better tribunal to determine the facts upon which an opinion could be based, rather than the Medical Panel.
17 I was referred to Skordos v His Honour Magistrate Garnett & Ors,[1] a decision of Cavanough J. That case concerned a review by the Supreme Court of two decisions of a magistrate for referral of the same questions to a Medical Panel by the plaintiff. Each of the applications was refused by the learned magistrate on the grounds that they were an abuse of process. Cavanough J refused to overturn the decisions. His Honour found the magistrate’s decisions were properly based in fact and law. He reviewed various authorities, including DA Christie Pty Ltd v Baker,[2] and Philip Morris Ltd v Attorney-General for the State of Victoria & Anor[3] and found there was no basis to overturn the determination.
[1][2009] VSC 512
[2](1996) 2 VR 582
[3](2006) 14 VR 538
18 There are distinct differences between the application before me, and the facts of Skordos:
· The first application before the magistrate was on 16 October 2008. Despite further adjournments, the hearing proper of the case was adjourned to a later date. The matter was back before the magistrate on six further occasions and was eventually adjourned to 28 January 2009.
· The magistrate on two occasions determined that the applications were an abuse of process. No such determination is made in this application.
· In the present application, the trial date of September 2016 is not jeopardised by the referral to the Medical Panel.
· When the present application came on before her Honour Judge Campton, the plaintiff indicated she was in a position to proceed. That turned out not to be the case.
· The magistrate was prepared to list the matter for further hearing within a week or two of 29 January 2009.
19 While it is correct to say there has been no significant change in the circumstances of her application, nonetheless it is clear that her Honour Judge Campton did not determine the application by the defendant on the merits, either as to whether it was an abuse of process, or whether the facts would be better determined by a court. Further, in Skordos, his Honour was called to determine whether the magistrate had failed to take relevant matters into account, or had taken irrelevant matters into account, and found that he had not. In fact he said there was no criticism of any substance to be taken in relation to his reasons.
20 In my view, the decision in Skordos is of limited assistance in determining the matters in this application.
21 The abuse of process, as outlined by Mr Nguyen, is that the matter has been heard and determined and the only recourse to the defendant was an appeal against her Honour’s ruling.
22 DA Christie Pty Ltd v Baker[4] concerned a second application for an extension of time to bring proceedings for personal injury, where the limitation period had expired and where the second application was made in circumstances where new material relied upon had been available at the time of the first application. There was no sufficient explanation as to why that new material was not put forward in the first application. It was submitted the second application should be stayed as an abuse of process notwithstanding that the dismissal of the first application was not a final determination and did not create an estoppel precluding the making of the second application. The Court held that the making of the second application did constitute an abuse of the Court’s process.
[4]Supra
23 However, in Bajramovic v Calubaquib,[5] Foster AJA rejected the reasoning in Christie and contrasted “a genuine endeavour to repair the deficiencies in the first application” with a “case of hawking the application from judge to judge in search for a successful outcome”.
[5][2015] NSWCA 139
24 In Nominal Defendant v Manning,[6] Mason P said:
“There will be cases in which the attempt to revisit a contested interlocutory application without change of circumstances or genuinely fresh evidence will not amount to an abuse of process. For example, the opposition to an application for an interlocutory injunction on the first return of the motion may be of such a perfunctory nature on both sides that an attempt to revisit the issue at the interlocutory stage would not be an abuse of process even if the evidence were accessible to the defendant on the first occasion. One can also conceive of situations where the revisiting of a legal proposition adopted or assumed in an earlier interlocutory hearing would not constitute an abuse of process. For example, new and unexpected appellate authority may have arrived on the scene.”
[6](2000) 50 NSWLR 139 at paragraph [17]
25 In Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd,[7] Hargrave J helpfully collected a number of relevant authorities. In granting a second application to reinstate a proceeding, his Honour said:[8]
[7][2006] VSC 170
[8]At paragraphs [41] – [46]
“My review of the authorities has led me to the conclusion that I am not bound, in considering the second reinstatement application in this case, to apply Guss and Stragan, with the effect that I am limited to considering any ‘new evidence’ which was not available on the hearing of the first reinstatement application. I am of this view for the following reasons.
In the first place, although the second reinstatement application is of a similar kind to an application to set aside a default judgment, it is a different application.
…
Thirdly, and most importantly, both Brooking and Hayne JJA in Christie clearly stated that they were not purporting to lay down any general rules to be applied in determining whether any interlocutory application constitutes an abuse of process.
Fourthly, the variety of interlocutory applications and of the circumstances pertaining to each individual application dictate, in my view, that it is undesirable that there be a set of rigid rules to be applied to every case where a second interlocutory application is made after the refusal of a first application for the same relief. In this regard, I respectfully adopt the passage from the judgment of Heydon JA in Manning quoted above which was referred to with apparent approval by Maxwell P in Philip Morris.
As a result, it is my view that the correct approach to apply to second or subsequent interlocutory applications is that stated in Manning and Pierson that ‘the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case’. As I have said, this statement was referred to with apparent approval by Maxwell P in Philip Morris. Further, this approach is consistent with the statement of Brooking JA in Christie quoted above in respect of interlocutory applications concerning questions of practice and procedure that:
‘… it is, generally speaking at all events, open to the court to exercise a wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may none the less succeed on a second application.’”
26 Taking into account these authorities and the matters to which I have referred, in my view, it is appropriate that the application be allowed, and the medical questions be referred to the Medical Panel. I say that for the following reasons:
27 It is significant that the legislation provides that a court must refer a matter to a Medical Panel unless one of the exemptions is met. That mandate did not apply when the matter was considered by her Honour.
28 Secondly, although there has been no particular change of circumstances between the two applications, nonetheless the earlier application before her Honour Judge Campton was determined very much on the basis that the trial date would be lost with consequent significant delay were the application to be granted. That is not the case in the present application.
29 Thirdly, there is a wide discretion to courts to entertain a second interlocutory application in the interests of justice.
30 I shall hear from the parties further as to costs, and to the content of the medical questions.
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