Sodexho Australia Pty Ltd v Rowe & Ors
[2008] VSC 570
•17 December 2008
s
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8282 of 2008
| SODEXHO AUSTRALIA PTY LTD (ACN 001 890 651) | Plaintiff |
| v | |
| KAREN ROWE, DAVID KOTZMAN, LORRAINE DENNERSTEIN, PETER LOWTHIAN AND JOHN BRENAN | Defendants |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2008 | |
DATE OF JUDGMENT: | 17 December 2008 | |
CASE MAY BE CITED AS: | Sodexho Australia Pty Ltd v Rowe and Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 570 | |
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ACCIDENT COMPENSATION – Application for extension of time for commencement of proceeding - Medical Questions referred under s 45(1)(b) Accident Compensation Act 1985 – Information given to Medical Panel in course of examination of worker – Proceeding commenced within 60 days of receipt of Medical Panel’s Certificate of Opinion and Reasons for Determination – Solicitors acted upon advice of counsel – Short period of delay – Whether “special circumstances” under r 56.02(3) Supreme Court (General Civil Procedure) Rules 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming with Mr A Pillay | Wisewoulds Lawyers |
| For the First Defendant | Mr J O’Brien | Ryan, Carlisle Thomas |
| For the Second, Third, Fourth and Fifth defendants | No appearance |
HER HONOUR:
The application
The plaintiff (“Sodexho”) seeks an extension of time for the commencement of a proceeding under O 56.01 for leave in the nature of certiorari quashing a decision of the second to fifth defendants sitting as a Medical Panel. Its application is brought under r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”).
Rule 56.02
Rule 56.02 is in the following form:
56.02Time for commencement of proceeding
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
Background
The first defendant, Ms Rowe, was employed by the plaintiff as a kitchen hand at the Ford canteen at Lara, when she developed dermatitis in about April 2001. Her claim for compensation under the Accident Compensation Act 1985 was accepted and she had been receiving weekly payments of compensation since about August 2001 when they were terminated by Sodexho by notice dated 17 March 2004. Sodexho terminated Ms Rowe’s employment on 8 July 2004.
Ms Rowe commenced a proceeding in the Magistrates’ Court to overturn the termination decision. That proceeding was uplifted to the County Court and questions relating to her medical condition, current work capacity and the nature of any suitable employment for her were referred to the Medical Panel on about 8 May 2008. The statement of agreed facts provided to the Medical Panel under s 65(6A) of the Accident Compensation Act 1985 relevantly included the facts that her employment had been terminated in July 2004 and that she had been referred to an occupational rehabilitation provider “to assist with return to work and for job seeking activities”. It was also an agreed fact that she was then in receipt of a Centrelink Disability Support Pension.
The Medical Panel provided its opinion in answer to medical questions on 4 July 2008. It concluded that Ms Rowe suffered from fluctuating eczema dermatitis of the hands constituting persistent occupational dermatitis and from an adjustment disorder, then in remission with treatment and (significantly) a return to work. The Medical Panel was of the opinion that she had no current work capacity, notwithstanding that she was then employed for up to seven hours a week. It also concluded that it was likely that she would have no current work capacity indefinitely and that, in the circumstances, the question as to suitable employment was not applicable.
It is not disputed that Sodexho’s solicitors received the Medical Panel’s Certificate of Opinion and its Reasons for Opinion, both dated 4 July 2008, by ordinary mail on 15 July 2008. It would appear common ground that the documents were posted on about 11 July.
Mr Robert Shepherd of Sodexho’s solicitors swore an affidavit in support of the application on 23 September 2008. He deposes that the Reasons indicate to him that Dr Brennan examined Ms Rowe on 16 June 2008 and Drs Kotzman, Dennerstein and Lowthian examined her on 25 June 2008. Before he read the Opinion and the Reasons, Mr Shepherd had been unaware that Ms Rowe had been working since Sodexho terminated her employment on 8 July 2004.
Mr Shepherd maintains that, had he known about her subsequent work, he would have made enquiries of her new employer as to the terms of her employment and the tasks she was engaged to perform. He says that he would also have obtained information from her treating doctor as to what clearance she had obtained for work, as to what restrictions there were on her working and as to whether she could work longer hours if they were available. He would also have attempted to find out how she came to have the job. Mr Shepherd says that he would also have obtained a further opinion from a specialist occupational physician as to how Ms Rowe would cope in such employment and whether it would affect their opinion as to the range of employments she could perform. He would also have sought another opinion from a vocational assessor as to how the performance of that work might affect their expert opinion as to what tasks she might be able to perform in other types of employment. Having received all that information, he would have used it to make submissions to the Medical Panel before they formed their opinion in relation to each of the medical questions. He would have submitted that this evidence should satisfy the panel that Ms Rowe had a current work capacity. Mr Shepherd said that he believed that if he had been able to obtain such further material, given the importance of the information as to Ms Rowe’s subsequent work, the Medical Panel might have reached a different conclusion in answer to the medical questions.
After receiving the Medical Panel’s opinion and reasons on 15 July 2008, Mr Shepherd sought counsel’s advice as to, amongst other things, the time by which any O 56 proceedings had to be brought. On 18 August 2008, he attended a conference with senior and junior counsel. He was told that time began to run upon the receipt of the Reasons from the Medical Panel and that it would expire on 13 September 2008.
Counsel informed Mr Shepherd that this principle was supported by Osborn J’s decision in Treacy v Newlands and ors.[1] Counsel’s advice was subsequently given in a written memorandum received by Mr Shepherd on 3 September 2008. That same day, Mr Shepherd instructed counsel to prepare the documents for the application under O 56. He received the originating motion seeking the quashing of the Medical Panel’s Certificate of Opinion from counsel on 8 September 2008 and it was filed on the same day. On 23 September 2008, Sodexho’s solicitors issued a summons seeking the relief sought in the originating motion.
[1][2007] VSC 224.
Ms Rowe filed a summons on 31 October 2008 seeking the dismissal of the application by originating motion on the grounds that it was issued out of time. Sodexho then filed its own summons on 7 November 2008, seeking leave to extend the time under r 56.02(3).
On 19 November 2008, Pagone J dealt with the challenge to Sodexho’s 23 September 2008 summons, ruling that the proceeding had been commenced out of time. At Sodexho’s request, Pagone J adjourned the application for an extension of time and it has now, ultimately, come before me.
Pagone J noted both the force of the view that time should begin to run from the date of service of reasons and his view that Osborn J did not decide Treacy v Newlands on the basis that fairness would dictate the conclusion that time did not expire until 60 days after the receipt of reasons. His Honour went on to hold that, in the exercise of its power under s 68 of the Accident Compensation Act 1985, the Medical Panel had formed its opinion on the medical questions on 4 July 2008 and that time ran from that day.
The issue
The decisive question in this application is as to whether or not the “special circumstance” in which the Court is permitted to extend the time for the commencement of the proceeding under O 56 have arisen.
Counsel for Ms Rowe argues that they have not. He acknowledges, nevertheless, in his written submissions that Sodexho’s arguments before Pagone J and the matters raised by Mr Shepherd’s affidavit may well support an arguable case for review of the Opinion and the Reasons of the Medical Panel. He says that there may be explanations for the failure to issue proceedings within time, but that none of the circumstances are properly characterised as “special”. Counsel contrasts the facts with those in which such circumstances were held to exist in Lednar v Magistrates’ Court[2] and Carra v Hamilton[3].
[2][2000] VSC 549.
[3](2001) 3 VR 114.
Counsel contrasts the position of his client with that of an experienced litigant of the substance of the Victorian WorkCover Authority, for which Sodexho’s claims agent describes itself as an agent. An experienced litigant, well acquainted with the rules of procedure, should be particularly alert to time requirements and should behave in an extra cautious fashion in terms of meeting them, in his submission. The application should have been issued well before the date which it was believed that time would expire, rather than just before it. The solicitors should have considered the “worst case scenario” in terms of time limits and made sure that their application was issued to meet its requirements.
Counsel for Ms Rowe referred to Prencipe v Nisselle[4] in which Balmford J reviewed the relevant authorities and refused to find that “the oversight of the solicitors for the plaintiff” constituted “special circumstances” under r 56.02(3). He says that there is no satisfactory explanation for the delay and that the relief sought should be denied.
[4][1998] VSC 137.
Counsel for Sodexho referred to the Hansen AJA’s conclusion in Mann v Medical Practitioners Board of Victoria[5] that “what is special is that which is not general in character”[6] and his Honour’s subsequent observation that it was hardly necessary, in light of the authorities, to resort to the dictionary meaning of “special”. Counsel noted that Hansen AJA, however, continued to say :
Nevertheless it may be seen that the understood sense [of the word in the authorities cited] accords with the first meaning of the word “special”, as an adjective, in the Oxford Dictionary, namely “Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree”.[7]
[5][2004] VSCA 148.
[6][2004] VSCA 148 at [68].
[7][2004] VSCA 148 at [70].
Counsel for Sodexho rely upon the following matters :
·The originating motion was issued within 60 days of receipt of the Opinion and the Reasons from which it first became aware of the possible grounds for review.
·Its solicitors had sought and acted upon advice from both senior and junior counsel based upon a reasonable interpretation of the Court’s decision in Treacy v Newlands, where Osborn J said :
7In my view, insofar as is necessary, leave should be given to extend the time fixed by rule 56.02(1). I say "insofar as is necessary" because the first rule provides that the proceeding be commenced within 60 days after the date when the grounds for the grant of relief or remedy claim first arose. It seems to me that as a matter of fact, the grounds upon which the plaintiff relies could not be said to arise until receipt of the reasons. It further seems to me that commencement within 60 days of the giving of such grounds is the core requirement of rule 56.02.
8Having said this, I accept that sub-rule (2) is problematic from the plaintiff's point of view. As I have said, it states that:
Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
There may be room for doubt as to whether the Board’s opinion should be regarded as ejusdem generis with "any judgment, order, conviction, determination or proceeding" but I do not find it strictly necessary to decide this point and will assume for present purposes that it is to be so regarded.
9The problem which the sub-rule implicitly raises, is one which has arisen from time to time with respect to orders of a Court, in circumstances where an order is pronounced but written reasons do not issue for some time thereafter. It seems to me that, at least in cases where reasons are taken to be necessary to the completion of the Courts’ function, it is difficult to say that the Courts’ function is completed on the date that it is pronounced without reasons.
10This general proposition, however, may not assist in the case of an administrative decision where it is clear that a valid opinion may be expressed without the giving of reasons. In this sense, there is some real force in Mr Fleming's submission that the sequence of events that has occurred is not unusual and, further, that there is a need for leave in the present case.
11Nevertheless if leave is required, it seems to me that the basic principle stated in sub-rule (1) should be taken to inform the notion of special circumstances referred to in sub-rule (3), and that circumstances in which reasons forming the basis upon which relief is claimed were not received until a date within 60 days prior to the commencement of the proceeding are relatively easily characterisable as special in terms of the rule, because they demonstrate compliance with what I take to be the underlying philosophy of the rule. [8]
·The time which had elapsed after the expiration of the time for the commencement of proceedings was very short, as it was no more than seven days and probably six.
·The Reasons had disclosed a manifest or strongly arguable case of administrative or legal error in terms of the procedural unfairness caused by the Medical Panel’s failure to allow Sodexho the opportunity to respond to the additional fact of Ms Rowe’s subsequent employment. That fact was not listed amongst those in the statement of agreed facts provided by the parties and was obviously significant to the issues of her work capacity and suitable employment options.
·There was no prejudice to Ms Rowe apart, of course, from the risk that she might lose the benefit of the outcome at the Medical Panel which was clearly favourable to her.
[8][2007] VSC 224 at [7]-[11].
Conclusions
As Balmford J pointed out in Prencipe, r 56.01(3) does not require that there be special circumstances related to the reasons for the late commencement, but requires merely that special circumstances be present. In Lednar v Magistrates’ Court[9] Gillard J held that the factors relevant to the exercise of the discretion under r 56.02(3) included justice to both parties, the period of delay, prejudice to either party and whether the party applying had an arguable case.
[9](2000) 117 A Crim R 396; [2000] VSC 549.
I am not persuaded by counsel for Ms Rowe’s arguments contrasting the circumstances of this case with the facts in Lednar and Carr or those based upon Balmford J’s conclusion in relation to the facts in Prencipe. I note, in particular, that this situation is markedly different from the one involving inadvertence on the part of a solicitor in Prencipe.
I consider the present circumstances to be properly characterised as “special” within the meaning attributed to the adjective in the authorities to which I have referred. Information was given by Ms Rowe to the Medical Panel of obvious relevance to the issue before it as to her current work capacity. I accept that communication of that information would have led Sodexho’s solicitors to take the actions described by Mr Shepherd. The advice of both senior counsel and junior counsel was to the effect that the plaintiff had until 13 September 2008 to commence the proceeding which was started when the originating motion was issued on 8 September 2008. Further, it was not unreasonable for counsel to base that advice upon the views expressed by Osborn J before Pagone J had held that time ran from the date of the delivery of the Opinion.
The 60 day period from 4 July 2008 would have only expired on 2 September 2008, some six days before the proceeding was commenced on 8 September. The proceeding was commenced within 60 days from the receipt of the Opinion and the Reasons. There is no material establishing any prejudice by reason of the commencement of the proceeding some six days late apart from the fact that Ms Rowe would have lost the benefit of the Medical Panel’s decision if it were ultimately to be quashed.
I am not persuaded that any differences between the parties in terms of their respective experiences of litigation or in any other respect should have the effect for which counsel for Ms Rowe contends.
I will grant the application on the basis that the requisite special circumstances have been established.
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