Vukovic v Transport Accident Commission
[2009] VSC 497
•9 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4340 of 2009
| NAMIR VUKOVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 June 2009. Last written submission filed 15 June 2009 | |
DATE OF JUDGMENT: | 9 November 2009 | |
CASE MAY BE CITED AS: | Vukovic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 497 | |
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ACCIDENT COMPENSATION – Transport accident – Judicial review – Mandamus – Conditions for an effective and timely application by an injured person to the Transport Accident Commission for an impairment determination – Commission alleging that plaintiff out of time – Held that plaintiff made an effective application within time – No sufficient discretionary basis to refuse relief – Order in the nature of mandamus granted – Transport Accident Act 1986 ss 46A(1), (1AB), (1A), (1B), (2A).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Kennan SC and Mr A S Pillay | Maurice Blackburn & Co |
| For the Defendant | Mr Jason Pizer | The Solicitor to the Transport Accident Commission |
HIS HONOUR:
Overview
The main question in this case is whether the plaintiff (through his solicitors) has made an effective application, within time, to the defendant, the Transport Accident Commission (“the TAC”), pursuant to s 46A(1A) of the Transport Accident Act 1986 (“the Act”)[1] for a determination of the degree of the plaintiff’s impairment resulting from a transport accident. If he has done so, the TAC admits that it would be obliged to determine the degree of his impairment. Otherwise, the TAC may not be so obliged. Without an impairment determination by the TAC, a person injured in a transport accident cannot be paid impairment benefits and cannot bring common law proceedings.
[1]As that provision stood at the relevant time, namely between 29 November 2000 and 28 February 2005.
I would answer the question in the affirmative. It is therefore unnecessary to rule on the plaintiff’s alternative contention that the TAC is under an obligation[2] to at least consider whether to make a determination of the degree of his impairment.
[2]Pursuant to the original version of s 46A, as enacted in 1988, which corresponds to s 46A(1) as presently in force.
I do not accept the submission by the TAC that, as a matter of discretion, the Court should refuse the plaintiff prerogative relief on the basis that he could have made an application for review to the Victorian Civil and Administrative Tribunal (VCAT) instead of applying to this Court for judicial review.
It follows that the plaintiff’s application for an order in the nature of mandamus requiring the TAC to make a determination of his degree of impairment succeeds.
The background facts
The plaintiff was born on 22 September 1982. He was involved in a transport accident on 11 March 1989 when he was six years of age. He was sitting between his parents in the back seat of a vehicle being driven by his cousin on a country road. The car ran off the road into a tree. The driver and the front seat passenger (the driver’s mother) were killed. The plaintiff was found by the ambulance crew lying on the roadside.[3]
[3]See exhibits NV 7 and NV 22 to the plaintiff’s affidavit sworn 16 February 2009 (“the affidavit”).
The plaintiff suffered a closed head injury, including loss of consciousness, fractures to both femurs, a fracture to the neck of his right femur, scarring and dental injuries. He missed about six months of schooling due to the accident.[4]
[4]See para 5 of the affidavit, and exhibit NV 22 thereto.
Shortly after the accident a claim was made on the plaintiff’s behalf to the TAC for benefits under the Act. Although the claim itself is not in evidence, it may be inferred that it was in the prescribed form under s 67 of the Act and thus covered all available benefits. The TAC apparently paid the plaintiff’s medical expenses. However on 9 May 1991 the TAC determined that his level of impairment in relation to his entitlement to minor’s additional benefits under s 54 of the Act was 0%.[5]
[5]See exhibit NV 31 to the affidavit.
A psychiatric report[6] sent by the plaintiff to the TAC indicates that in the years following the transport accident the plaintiff’s father became a very angry person. Ultimately he shot his general practitioner and then himself. Both survived and the father was sentenced to 4 years’ jail. The plaintiff was then 14 years old. He was taken out of school to stay at a cousin’s place. He did not ever go back to school as he found the situation too embarrassing. He suffers from personality problems, developmental problems and mild intermittent anxiety and depression, although the existence or nature of any causal connection between those features and the accident may eventually be in issue.
[6]See defendant’s file note dated 3 April 2006 (defendant’s exhibit 2).
In 2005 Maurice Blackburn Cashman, a firm of solicitors, commenced to act for the plaintiff in relation to his (existing) claim under the Act. Relevant correspondence passed between the solicitors and the TAC between 29 April 2005 and 9 January 2009. The precise language of that correspondence is important, especially in relation to the main dispute between the parties, namely as to whether the plaintiff applied within time under s 46A(1A) of the Act for an impairment determination. I will come back to the correspondence in detail. First, though, it is desirable to notice the relevant provisions of the Act, as amended from time to time over the relevant period.
The legislative provisions
The stated purpose of the Act is and always has been “to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents”.[7] From the outset, provision has been made for the payment of benefits of varying kinds, including for loss of earnings, for loss of earning capacity and for medical expenses and, of particular present relevance, impairment benefits. Section 46A of the Act was introduced in 1988. Since then, eligibility for impairment benefits[8] and eligibility to bring a common law proceeding in respect of a transport accident[9] have depended on the making by the TAC of a determination under that section of the injured person’s degree of impairment.[10] Section 46A began as a relatively brief section. It is now quite a lengthy one. It is common ground that, by virtue of various transitional provisions, most of the provisions now contained in s 46A are not directly applicable to the present case. However the legislative history is significant. Initially s 46A read as follows:
[7]The Act, s 1.
[8]See s 47 of the Act.
[9]See s 93 of the Act.
[10]See Swannell v Farmer [1999] 1 VR 299.
“46A Degree of impairment
The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at —
(a)if the person is not a minor when the accident occurred —
(i)eighteen months after the accident; or
(ii)when the injury stabilises —
whichever last occurs; or
(b)if the person was a minor when the accident occurred —
(i)eighteen months after the accident; or
(ii)when the injury stabilises; or
(iii)when the person attains the age of 18 years —
whichever last occurs.”
Section 46A was expanded and divided into subsections by the Transport Accident (Amendment) Act 1998.[11] The provisions of s 46A as set out above were retained for the time being as subsection (1) of the expanded section. Subsections (2)-(9) were added. But the added subsections did not apply for the purpose of determining the degree of impairment in respect of an injury resulting from a transport accident that occurred before 19 May 1998 (the date of commencement of the amending Act).[12] For that purpose, s 46A as in force immediately before 19 May 1998 (ie the original version of s 46A) and the Transport Accident (Impairment) Regulations 1988 as in force immediately before 19 May 1998 were to continue to apply as if the regulations formed part of s 46A.[13]
[11]Act No 34 of 1998.
[12]See s 177(1) of the Act.
[13]See s 177(2) of the Act.
By s 13 of the Transport Accident Amendment Act 2000,[14] which commenced on 29 November 2000, subsections (1A) and (1B) of s 46A were inserted into the Act. Subsection 46A(1A) originally provided:
[14]Act No 84 of 2000.
“(1A) If the Commission has not made a determination of the degree of impairment of a person injured as a result of a transport accident as at eighteen months after a transport accident because it does not appear to the Commission that the person is or is likely to be entitled to an impairment benefit, the person may, before the expiry of the period of six years after an injury resulting from the transport accident first manifests itself, apply to the Commission for a determination of the degree of impairment as at the date of the application.”
Subsection 46A(1B) provided (and still provides):
“(1B) The period of 6 years referred to in subsection (1A) applies—
(a)in respect of a transport accident that occurred before the commencement of section 13 of the Transport Accident (Amendment) Act 2000, from the commencement of that section; and
(b)in respect of a transport accident that occurs on or after the commencement of section 13 of the Transport Accident (Amendment) Act 2000, from the time that the transport accident occurs.
As indicated above, the provision referred to in s 46A(1B), namely s 13 of the Transport Accident (Amendment) Act 2000, commenced on 29 November 2000. Apart from s 46A(1B), no special transitional provisions accompanied the introduction of s 46A(1A). It is evident from s 46A(1B) that Parliament intended that applications could be made under s 46A(1A) in respect of injuries resulting from transport accidents occurring both before and after 29 November 2000. Beyond that, it is very difficult to reconcile the two subsections. From what point does the period of 6 years begin? Subsection (1A) refers (only) to the point at which “an injury resulting from a transport accident first manifests itself”. In relation to injuries resulting from pre-29 November 2000 accidents, paragraph (a) of subsection (1B) seems to do away with that starting point altogether, and to replace it with the date 29 November 2000 regardless of any other circumstances (including the period of time since the accident). The TAC now submits that that is indeed the correct interpretation of s 46A(1B)(a), notwithstanding that in its prior correspondence with the plaintiff (set out below) the TAC asserted - sometimes outright, sometimes as an alternative - that time commenced running in the plaintiff’s case from the date of his 18th birthday, 22 September 2000.[15] The plaintiff agrees with the TAC’s current interpretation. In other words, he accepts that the 6 year period began to run on 29 November 2000 in his case. I will therefore proceed on the agreed basis that in this case the time limited by s 46A(1A) expired on 29 November 2006.[16]
[15]Cf sub-para (b)(iii) of s 46A as originally enacted.
[16]As it happens, on the facts of this case it would make no difference whether the time expired on 22 September 2006 or 29 November 2006.
It is unnecessary to undertake the formidable task of trying to understand s 46A(1B)(b) and to reconcile it with s 46A(1A) in respect of injuries resulting from transport accidents on or after 29 November 2000.
New versions of paragraphs (a) and (b) of s 46A(1) were substituted by s 10(1) of the Transport Accident (Amendment) Act 2004,[17] which commenced on 1 March 2005. Further, by s 10(3) of the amending Act, the words “as at eighteen months after a transport accident” were omitted from subsection (1A) of s 46A. However, the same amending Act[18] inserted s 188 into the Act, and it reads (so far as relevant):
“Section 46A, as amended by s 10 of the amending Act, … applies with respect to all transport accidents that occurred on or after the day that is eighteen months before the date of commencement of s 10.”
Since the plaintiff’s transport accident had occurred in 1989, neither the substituted provisions of paragraphs (a) and (b) of s 46A(1) nor the amendment to s 46A(1A) became applicable in his case. Rather, the provisions of the original version of s 46A (as thereafter contained in the first version of s 46A(1)), together with the provisions of the original version of s 46A(1A), continued to apply in the plaintiff’s case.
[17]Act No 94 of 2004.
[18]By s 36 thereof.
It is common ground that the further amendments to s 46A made recently by the Compensation and Superannuation Legislation Amendment Act 2008 (No 65 of 2008) have no significance for the present case.[19]
[19]They were enacted in response to my decision in Byrne v Transport Accident Commission [2008] VSC 92. They expressly insert a requirement (which I had found did not previously exist) that a person must have made a timely claim for benefits before being eligible to make an application under s 46A(1A). Although this amendment operates retrospectively (except in Byrne’s case itself), it has no significance for the present case, for two reasons. First, Mr Vukovic did make a timely claim, shortly after the accident (and the claim remains on foot). Second, neither party suggests that the retrospectivity of the specific 2008 amendment affects the operation of the earlier general transitional provisions to which I have referred: see s 198 of the Act.
The chain of correspondence
The plaintiff’s solicitors first advised the TAC that they acted on his behalf with respect to his transport accident claim by a letter dated 29 April 2005. In that letter they also sought copies of various documents relating to the claim, including a copy of the claim itself.[20]
[20]As mentioned above, the evidence before this Court does not include a copy of the claim.
By a letter dated 12 May 2005 to the TAC, the plaintiff’s solicitors relevantly said this:
“We are uncertain as to whether a determination of impairment has been made with respect to our client. If so, please advise of details of same. If not, please advise as to whether you will now arrange medical examinations to assess impairment.”
The subject heading on each of these first two letters was the rather generic “Compensation Claim – Namir Vukovic”, together with a claim number.
The TAC responded by a letter dated 17 May 2005. The main heading was “Impairment benefits for Namir Vukovic”. So far as relevant, the body of the letter read:
“I refer to your letter dated 12 May 2005.
I confirm that the TAC has not made a determination regarding your client’s entitlement to an impairment benefit.
Please find enclosed, for your information, a copy of a letter that has been sent to your client today.
If you have received or are in the process of obtaining reports or other information which you believe would clearly indicate a likelihood that your client has a degree of impairment of more than 10%, please send us a copy of such material or indicate when you expect to receive the information.”
The TAC’s letter to the plaintiff himself of the same date was entitled “Impairment Benefits”. Relevantly it contained the following:
“I am writing to you about your possible entitlement to compensation as a result of your transport accident injuries. Your solicitors, Maurice Blackburn Cashman, have recently written to the TAC requesting we assess your entitlement to an impairment benefit.
What the TAC can do
The TAC can pay an impairment benefit to you if you have a permanent impairment that is greater than 10%.
What is an impairment benefit
An impairment benefit is a lump sum payment which is equal to about $880 for each percentage point over 10%.
An impairment lump sum benefit will not prevent you from claiming your ongoing medical and treatment services.
A brochure is enclosed explaining what impairment benefit means and how it is assessed.
The TAC requires more information
The TAC will request reports from the health care professionals who have treated you for your transport accident injuries to clarify whether you are likely to have an impairment of more than 10%.
If it then appears likely that you will have an entitlement to an impairment benefit the TAC will arrange medical examinations with appropriate specialists to assess your level of impairment. The TAC is only required to arrange medical examinations to assess your level of impairment if it appears likely that you will have an impairment of more than 10%.”
The letter also enclosed an authority designed to enable the TAC to obtain reports from the plaintiff’s health care professionals, together with another form designed to bring forth details of the names and addresses of all health care professionals who had treated the plaintiff for his transport accident injuries.
By letter dated 1 June 2005 (again headed “Impairment benefits for Namir Vukovic”), the TAC advised Maurice Blackburn Cashman that the plaintiff had returned the forms to the TAC but had failed to list the health care professionals who had treated him. The letter continued:
“In order to establish your client’s entitlements to impairment benefits, the TAC requires information as to who has treated your client for the injuries he sustained in the transport accident, in particular those who have seen your client recently.
Please provide this information to enable the TAC to obtain the reports necessary to further establish your client’s entitlement to an impairment benefit.”
On 1 August 2005 the solicitors sent to the TAC a report from the Royal Children’s Hospital. It referred to the treatment of the plaintiff’s injuries at the Hospital in 1989, to a medical review of his legs and hip at the Hospital in 2002 and to the ongoing review of his dental injuries by the dentistry team at the Hospital. The solicitors’ covering letter once again bore the generic title “Compensation Claim – Namir Vucovic”, together with the relevant claim number. The wording of the letter followed what appears to be a standard form used by Maurice Blackburn Cashman at or around that time, viz:
“We enclose report of [name of provider] obtained for the purposes of advising regarding our client’s entitlements, including whether our client is receiving the appropriate treatment, how the injuries are progressing and what other assistance may be available, and other entitlements pursuant to s 60 of the Transport Accident Act.
We also enclose copy of receipt for [$]. We request reimbursement within 29 days; failing which we shall presume the failure to pay to be a refusal. We still then seek instructions to make application to the Victorian Civil and Administrative Tribunal.”
By letter dated 18 August 2005 to the plaintiff’s solicitors entitled “Impairment benefits for Master Namir Vukovic”, the TAC relevantly said:
“I refer to your letter dated 1 August 2005 and acknowledge receipt of the enclosed medical report.
What the TAC can do
The TAC is required to determine the degree of impairment of a person who appears to the TAC to be, or to be likely to be, entitled to an impairment benefit.
Consideration of your client’s entitlement to an impairment benefit
We have reviewed the following report provided by your office:
• Royal Children’s Hospital dated 2 July 2005
The TAC notes that your client’s entitlement to Minor’s Additional Benefits was determined at 0% on 9 May 1991.
The report from the Royal Children’s Hospital advises that your client was last seen on 27 July 2002 by Mr Carey. At this time your client complained of left leg pain with prolonged sitting. On examination he had a full range of movement, no gait abnormality and no leg length discrepancy. An x-ray of the right hip also demonstrated that the bony fragments were in alignment.
Based on the information listed above, your client does not appear likely to be entitled to an impairment benefit. Therefore, the TAC will not arrange impairment examinations at this stage.
We enclose a copy of the letter sent to your client.
Your client’s possible entitlement to an impairment benefit remains open. If there is additional information you have in your possession or are in the process of obtaining that may indicate your client is likely to be entitled to an impairment benefit please provide this to the TAC. This information will enable us to give further consideration to your client’s entitlement to an impairment benefit.”
On the same day (18 August 2005) the TAC also wrote direct to Mr Vukovic. The heading was “Impairment benefits”. The letter commenced: “I am writing to you about your claim for an impairment benefit”. It said that the TAC could pay an impairment benefit “if you have a permanent impairment that is greater than 10%”. It said that the TAC had reviewed his claim form and the medical report provided by his solicitors, namely the report from the Royal Children’s Hospital. It continued:
“Based on the information outlined in the enclosed letter to your solicitors, you do not appear likely to be entitled to an impairment benefit at this stage.”
Under the heading “What you need to do” the letter said:
“You may wish to discuss with your solicitors whether there is additional information that could be provided to the TAC to enable us to further consider your entitlement to an impairment benefit.”
In November 2005 the solicitors sent the plaintiff to a specialist dental surgeon, Dr Gerschman, for examination and a medico-legal report.
On 6 March 2006, the solicitors sent two of their standard form letters to the TAC. The first enclosed a report from Dr Bruce Kinloch. The second enclosed a report from Dr Nigel Strauss. These reports were the subject of a file note by the TAC officer who had been handling the matter, Jenna Reid, of the “Impairment Group” of the TAC, dated 3 April 2006.[21] The file note reads:
[21]Defendant’s exhibit 2.
“Impairment review – not likely maintained
Sols have sent in 2 impairment reports but have not specifically requested imps.
Mr Bruce Kinloch (report dated 8/2/06): found one and a half cm of shortening of the right femur with degree of external rotation in gait, 2cm quadriceps wasting and reduced right hip range of motion. He states that client probably has 10% whole person because of malrotation of the right femur (Table 64). However Mr Kinloch has used the 4th Edition but as MVA is prior to 19 May 1998 the 2nd Edition should be used. Under 2nd Edition malrotation does not rate, the range of motion noted would equal 14% LE and the leg shortening 10% LE. This would equal 9% whole person impairment.
Dr Nigel Strauss (report dated 15/2/06): client’s father, who was involved in same MVA, became very angry in the years after and shot his GP and then himself. Both survived and the father was sentenced to 4 years jail. Client missed 6 months of school due to MVA then stayed at school until age 14 which was when his father went to jail. He was then taken out of school to stay at a cousin’s place and never went back as he found the situation too embarrassing. Dr Strauss cannot say that client has PTSD but suffers from personality problems, developmental problems and mild intermittent anxiety and depression. Client needs to move away from his family, be less protected and should be offered counselling. He suffers from a 15% accident related secondary psychiatric impairment under 2nd Edition Guides and has no primary or direct psychiatric impairment.
Comments
Client is still not likely to rate over 10%.
As sols have not directly requested impairments there is no need to write to them at this stage.”
On 7 April 2006, under cover of another of their standard form letters, the solicitors sent to the TAC a medical report from Mr Murray Stapleton. According to an internal TAC file note dated 2 May 2006 by Jenna Reid, the medical report related to scarring on the plaintiff’s thigh to which Mr Stapleton had attached an impairment rating of 1%. Ms Reid commented that the 1% did not seem warranted and that, based on the medical reports sent in by the solicitors, the plaintiff’s impairment would be 10% and he would still be unlikely to be entitled to an impairment benefit. Again, she concluded by noting that as the solicitors “have not directly requested impairments there is no need to write to them at this stage”.
Between 21 March 2006 and September 2008 the solicitors wrote numerous letters to Dr Gerschman seeking his medico-legal report for the purposes of the impairment claim. It was only after the solicitors (hereafter “Maurice Blackburn”[22]) lodged a complaint with the Dental Board in 2008 that a report was delivered to them. The report was dated 29 January 2006 but had gone astray in the meantime. Apparently Dr Gerschman’s staff had confused the plaintiff with another individual with a similar name. Once the report was in hand, Maurice Blackburn wrote a letter dated 25 September 2008 to the TAC. It was headed “Impairment Assessment Protocols Request – Namir Vukovic”. It quoted the original claim number. The letter relevantly said:
[22]Being the name to which by February 2008 the name of the firm had been changed.
“We advise that we act on behalf of the above named with respect to injuries suffered in a transport accident.
We are of the view that our client will be entitled to an assessment of impairment and request the TAC commence the impairment assessment in accordance with the Impairment Assessment Protocols.
We enclose copies of the following material obtained today with respect to our client’s entitlements.
(1)Applicant’s statement in support dated 23 September 2008;
(2)Medical report of Jack Gerschman dated 29 January 2006;
(3)Medical report of Kevin King dated 23 February 2006 and 2 March 2006.
We confirm we have already served reports from the Royal Children’s Hospital, Dr Nigel Strauss, Bruce Kinloch and Murray Stapleton. We will not provide further copies of these reports unless requested by you.
We request your written acknowledgement of receipt of this letter and the provision of the material held on the TAC’s file in accordance with clause 5.1 of the impairment protocols.”
During the hearing I inquired of counsel whether the Impairment Assessment Protocols referred to in the letter were significant. Initially I received a negative reply from both sides. In the course of his reply,[23] senior counsel for the plaintiff did seek, albeit faintly, to draw some comfort from paragraphs 1.2, 4.1 and 4.2 of the Protocols (but see below).
[23]Transcript 158-159.
On 26 September 2008 the TAC sent a letter to Maurice Blackburn entitled “Impairment Benefits for Mr Namir Vukovic”, saying:
“I acknowledge receipt of your request for the TAC to consider your client’s entitlement to an impairment benefit in accordance with the Transport Accident Act Impairment Assessment Protocols (“the Protocols”), received on 26 September 2008.
The TAC will provide your office with all the information and documents we have used, or are intending to use, in the impairment process within 28 days of receipt of your letter.
If you have obtained or intend to obtain material from treating practitioners or hospitals please advised (sic) the TAC accordingly, or await receipt of our 5.1 material to avoid duplication of report costs.”
That letter was signed by Richard Newth of the Impairment Group of the TAC.
Three days later, on 29 September 2008, a letter headed “Impairment benefit for Namir Vukovic” signed by Jenna Reid was sent by the TAC to Maurice Blackburn. So far as relevant it read:
“I refer to your letter dated 25 September 2008 in regard to your client’s entitlement to an impairment benefit.
What the TAC can do
The TAC is required to determine the degree of impairment of a person who appears to the TAC to be, or to be likely to be, entitled to an impairment benefit if the application for the impairment benefit is made within six years from when an injury resulting from a transport accident first manifests itself.
In the case of a minor, similar to the common law limitation, the six year time frame begins at age 18.
Consideration of your client’s entitlement to an impairment benefit
On 18 August 2005 the TAC wrote to you and your client advising that your client did not appear likely to be entitled to an impairment benefit.
The TAC has not received any subsequent requests for a determination of your client’s impairment until your letter of 25 September 2008.
We note your client turned 18 years of age on 22 September 2000 and it has now been over six years since that date. It has also been more than six years since section 46A(1A) commenced on 29 November 2000.
We have not made a determination of your client’s level of impairment as it appeared he was unlikely to be entitled to an impairment benefit. The recent application for an impairment determination has not been received within six years from the date of your client turning 18 years of age (or since the commencement of the Section) and we are unable to accept the application pursuant to Section 46A(1A) of the Transport Accident Act (1986).
We enclose a copy of the letter sent to your client.”
On the same day the TAC wrote a letter along the same lines addressed to the plaintiff himself.
By letter dated 6 October 2008, Maurice Blackburn protested at the TAC’s stance as expressed in the letter of 29 September 2008. The solicitors noted that the TAC’s letter of 18 August 2005 had stated: “Your client’s entitlement to an impairment benefit remains open”. They proceeded:
“We confirm that our client’s application for an assessment of impairment was made within the six year period. Further medical material has now been provided.
We request you immediately consider same pursuant to the protocol.”
The TAC sent a holding response to Maurice Blackburn on 8 October 2008. It sent another holding response on 7 November 2008.
On 21 November 2008 Nick Cicer, the Team Manager, Impairment and Serious Injury, of the TAC, wrote to Maurice Blackburn. The letter was in the following terms, so far as relevant:
“I refer to previous correspondence. In our view your client is out of time to request that his impairment be determined in accordance with section 46A(1A) of the Transport Accident Act (TA Act). This letter sets out the chronology and the reasons why he is out of time.
Relevant chronology
Your client’s transport accident occurred on 11 March 1989. On 9 March 1991 the TAC determined that your client’s level of impairment in relation to his entitlement to minor’s additional benefits under section 54 of the TA Act was 0%.
Your client attained the age of 18 years on 22 September 2000. For the purposes of section 46A(1A) of the TA Act, the six year period in which he was able to request an impairment determination in accordance with Sec 46A of the TA Act commenced on that date and ended on 22 September 2006.
We acknowledge that your office first requested an impairment determination on 12 May 2005, which fell within the six year period. In response to that letter, the TAC considered your client’s request. The TAC advised you by way of a letter dated 18 August 2005 that your client did not appear likely to be entitled to an impairment benefit.
We further informed you in that letter that your client’s possible entitlement to an impairment benefit remained open and we invited your office to provide any information that may indicate an entitlement.
We observe that whilst your office has provided various reports to the TAC since our letter of 18 August 2005, the reports of Kevin King (23/2/06 and 02/03/06) and Jack Gerschman (29/06/06 [sic]) were not provided to the TAC until 25 September 2008.
Your letter of 6 October 2008
We agree with the statement made in your letter of 6 October 2008 that your client’s application for an assessment of impairment was made within the six year period by your request of 12 May 2005. However, the TAC responded to that request within the six year period.
The TAC in its letter of 18 August 2005 fairly advised your office that your client did not appear likely to be entitled to an impairment benefit. Although you were invited to provide further supporting material the key medical evidence was not provided until September 2008, well after the sixth anniversary of the accident.
Given that no other subsequent request for an impairment assessment was received on or before 22 September 2006 (the six year mark), it is our view that your client is now out of time to request an impairment assessment.”
By letter dated 11 December 2008, Maurice Blackburn responded to Mr Cicer’s letter. Maurice Blackburn said that they completely disagreed with the suggestion that the plaintiff was out of time for seeking a determination of impairment. They continued:
“The request for a determination was made within six years of the date of the accident. The TAC advised they did not believe our client would be above 10% of the whole person but specifically stated that our client’s possible entitlement remained open.
You did not specify any time period in which such material would have to be provided. The material has been provided.
We request your determination of our client’s impairment.”
By letter dated 9 January 2009 Mr Cicer replied on behalf of the TAC to Maurice Blackburn simply reiterating the view that the plaintiff was out of time to request that his impairment be determined in accordance with s 46A(1A) of the Act. Mr Cicer did not suggest that the reasoning of the TAC in support of that view had changed in any way since his previous letter of 21 November 2008.
Extension of time to commence this proceeding
The plaintiff commenced this proceeding on 21 January 2009. The TAC says that this was more than 60 days after the plaintiff received its letter dated 29 September 2008 and that it follows that the plaintiff has not commenced this proceeding within the time specified in r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2005. It may be doubted whether grounds for the grant of the relief or remedy which is now claimed first arose as a result of the letter of 29 September 2008. Arguably, at least, the TAC did not finalise its position until its confirmatory letter of 9 January 2009. Since then the TAC has again shifted ground markedly (see below). In any event, the TAC consents to the plaintiff being given an extension of time to commence the proceeding. In the circumstances I need not consider whether the plaintiff actually needs an extension or not. I am in any event satisfied that the matters just mentioned constitute “special circumstances” within the meaning of r 56.02(3). To the extent that any extension is required, it will be granted.
The plaintiff’s case as originally pleaded
Unsurprisingly, the basis on which mandamus was sought in the originating motion reflected the terms of the TAC’s letters to Maurice Blackburn of 29 September 2008, 21 November 2008 and 9 January 2009. Each of those letters had acknowledged, expressly or impliedly, that the plaintiff had made an application under s 46A(1A) for a determination of the degree of his impairment before the expiry of the 6 year time limit. For example, the letter to the solicitors of 21 November 2008 included the following:
“We agree with the statement made in your letter of 6 October 2008 that your client’s application for an assessment of impairment was made within the six year period by your request of 12 May 2005.”
In the letters, the TAC’s refusal to carry out an impairment determination was defended only by reference to the fact that “key medical evidence” was not provided by the plaintiff until after the 6 year period had expired. According to the grounds set out in the originating motion, that circumstance was not a proper basis for refusing to determine the degree of the plaintiff’s impairment. The timely lodgement of the application was said to be enough to require the TAC to make the determination.
Had matters stood there, the TAC would have had no arguable defence to the proceeding in my view. It seems that the TAC’s advisers later arrived at a similar view.
The parties’ written submissions and the TAC’s change of position
The parties were directed by the Court to file and serve written submissions in advance of the trial. The plaintiff’s submissions were filed first. They were dated 25 May 2009 and were filed on 26 May 2009. They made the same simple point as had been made in the originating motion. I infer that the TAC had not advised the plaintiff of any change in its position prior to that time. The TAC’s submissions were dated 28 May 2009 and were filed on 29 May 2009. The TAC made no reference to the plaintiff’s written submissions. In effect, the TAC purported to withdraw the acknowledgment in its prior letters that the plaintiff had made an application under s 46A(1A) within the 6 year period. It resiled completely from the reasoning contained in the letters. It advanced elaborate new arguments to the effect that neither by the solicitors’ letter of 12 May 2005 nor otherwise had the plaintiff in truth made any or any effective application for a determination of the degree of his impairment prior to the expiry of the 6 year period. In particular, the TAC asserted that no such application could have been made until the TAC had decided whether or not the plaintiff was, or was likely to be, entitled to an impairment benefit; and that that had not happened until the TAC sent its two letters of 18 August 2005; and that no application under s 46A(1A) had been made thereafter. Finally, the TAC asserted that relief should be refused on discretionary grounds, on the basis that the plaintiff could have challenged the TAC’s decision by applying to VCAT for review instead of seeking judicial review in this Court. I will return to the detail of those arguments, which in large part were repeated orally at the hearing.
Shortly before the hearing, the plaintiff filed and served supplementary written submissions in response to the TAC’s new arguments. In essence, the plaintiff’s supplementary submissions asserted that the letter of 12 May 2005 did constitute an application under s 46A(1A); further or alternatively, that the TAC had treated the letter as such an application in all subsequent correspondence, including the TAC’s letters of 18 August 2005 and its later letters; that the TAC could not depart from that position now; and that the plaintiff’s application remained on foot. The plaintiff asserted that this was an important case legally and that it was not inappropriate to come to this Court seeking judicial review rather than apply to VCAT for merits review.
The amendment to the originating motion
At the hearing, by leave given without opposition, the plaintiff amended his originating motion so as to claim, in the alternative, an order requiring the TAC to consider whether or not to make an impairment determination in respect of the plaintiff under s 46A(1) of the Act, as distinct from s 46A(1A). Although the TAC did not oppose leave to amend, it submits that, in all the circumstances it is no longer obliged nor even empowered to consider whether to make a determination under s 46A(1) in the plaintiff’s case. As indicated above, ultimately this point does not need to be decided, but I will say something more about it in due course.
Further new matters raised at the hearing
At the hearing the TAC submitted for the first time that the solicitors’ letter of 12 May 2005 could be characterised as an application under a provision to which I have not yet referred, namely s 46A(1AB) of the Act, rather than as an application under s 46A(1A). Subsection 46A(1AB) was inserted as from 1 March 2005 by s 10 of the Transport Accident (Amendment) Act 2004.[24] Applications under s 46A(1AB) do not give rise to a duty on the part of TAC to carry out an impairment determination unless and until the TAC forms the opinion that the person “is, or is likely to be, entitled to an impairment benefit”.[25] To date, the TAC has not formed such an opinion in the plaintiff’s case. However, questions arose at the hearing about the applicability of s 46A(1AB) in the light of the transitional provisions to which I have referred. The parties were given leave to make written submissions on that point and on certain related and other points that arose at the hearing.
[24]As to which, see under “The legislative provisions” above.
[25]See s 46A(1AB).
The TAC’s supplementary written submissions were filed first, on 10 June 2009. In them the TAC formally withdrew its submission that the letter of 12 May 2005 could be characterised as an application under s 46A(1AB). It did so in recognition of the fact that s 46A(1AB) had not been available to the plaintiff to found an application under it, because the plaintiff’s transport accident had occurred before 1 September 2003. As mentioned above, by virtue of s 188 of the Act[26] the amendments made by s 10 of the 2004 amending Act only apply in respect of transport accidents that occurred “on or after the day that is 18 months before the date of commencement of section 10”. That day was 1 September 2003.
[26]Inserted by s 36 of the 2004 amending Act.
Undaunted, the TAC proceeded in its supplementary written submissions to reiterate submissions that it had made orally[27] at the hearing, to the effect that s 46A(1AB), though enacted some six years after s 46A(1A), could be taken into account as an aid to the interpretation of s 46A(1A).[28] In essence, the TAC’s point was that s 46A(1AB) proceeds on the hypothesis that a certain interpretation (favourable to its case) should be placed on s 46A(1A) and that a certain competing interpretation should not be placed on it.
[27]Though not included or foreshadowed in its written outline.
[28]Citing Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 85-86; Commissioner of Taxation v Energy Resources of Australia Ltd (2003) 204 ALR 487 at [19] and other cases.
The plaintiff’s supplementary written submissions in reply filed on 15 June 2009 deny that s 46A(1AB) proceeds on the suggested hypothesis. I am inclined to agree with the plaintiff’s submission that s 46A(1AB) does not throw any light on the true meaning of s 46A(1A), but it is not necessary to determine the matter, because I consider that the particular interpretation of s 46A(1A) for which the TAC contends (to which I will shortly come) is in any event the correct interpretation.[29] Nevertheless, for reasons to be explained, I consider that the TAC is under a duty[30] to make an impairment determination in respect of the plaintiff.
[29]Hence I will not further burden this judgment by setting out the terms of s 46A (1AB).
[30]Enforceable by mandamus.
Nothing else contained in the supplementary written submissions requires further mention at this stage.
Interpretation of s 46A(1A): conditions for an effective application for an impairment benefit
The abovementioned interpretation of s 46A(1A) for which the TAC contends – and which I consider to be correct – is as follows. There are conditions of the effectiveness of any application by a person for an impairment determination under s 46A(1A) that:
•the TAC[31] must have actually addressed the case of the relevant person under s 46A(1) (or its predecessor, s 46A as originally enacted);
•it must have actually appeared to the TAC that the person is not, or is not likely to be, entitled to an impairment benefit; and
•the TAC must have declined, on that basis, to make an impairment determination in respect of the person.
[31]By its board of management or by a duly authorised delegate or agent. In the present case and in the related case of Sorrell v Transport Accident Commission which was heard at the same time, I asked whether any question arose about the authority (delegated or otherwise) of the makers of the decisions conveyed by the TAC’s letters, and I was told, ultimately, that I should assume that all concerned were duly authorised (transcript 165-167). I accept this.
The competing view, for which the plaintiff contends, is that a mere state of “non-appearance” or absence of appearance (of entitlement) is sufficient for the purposes of s 46A(1A). In other words, the plaintiff submits that, whether or not the TAC has turned its attention to the matter at all, it is enough if it has not (yet) appeared to the TAC under s 46A(1) that the person is or is likely to be entitled to an impairment benefit, provided (of course) that the TAC has not (yet) actually made an impairment determination in respect of the person under s 46A(1).
This competing view was previously put to me on behalf of the applicant in Byrne v Transport Accident Commission.[32] I declined to accept it, for the reasons set out in paragraph 30 of my judgment in that case. However the holding was obiter: it was not essential to my ultimate decision. In the present case, the plaintiff urges me to depart from the holding in Byrne. In addition to the arguments that did not prevail in this regard in Byrne, the plaintiff submits that the holding would allow the TAC, by mere inaction (intentional or otherwise), to frustrate the exercise by injured persons of the right which Parliament really intended to give them to obtain an impairment determination under s 46A(1A) on mere application within 6 years. The plaintiff asserts that the TAC has sought to do that very thing in the present case.
[32][2008] VSC 92.
I remain unpersuaded. As I said in Byrne,[33] the drafting of s 46A(1A) is inelegant. It gives rise to many puzzles. However, in my view, its language does not admit of the plaintiff’s competing interpretation. Subsection 46A(1A), in its original form, was apparently intended to operate by reference to decision-making by the TAC under s 46A(1) in its original form. Certain parts of s 46A(1) in its original form referred to the point of time being 18 months after the transport accident. Subsection 46A(1A) apparently assumed, albeit perhaps somewhat inaccurately, that the TAC was required by s 46A(1) to consider each case “as at eighteen months after a transport accident”. That expression was later removed from s 46A(1A), probably in recognition of the fact that s 46A(1) contemplated cases where the injury would not have stabilised as at 18 months after the accident and probably also because s 46A(1) provided, in relation to minors, that the relevant point of time would not arrive until, at least, the person reached 18 years of age. On the other hand, it is significant that s 46A(1A) was originally tied to the 18 months point. Although not directly in issue in the present case, the amended version of s 46A(1A) should similarly be regarded as operating by reference to decision-making by the TAC under s 46A(1) “as at” the relevant statutorily designated point of time in each case. Before me, the TAC acknowledges that it has an implied duty under s 46A(1) to consider whether the injured person is or is likely to be entitled to an impairment benefit as at the relevant date.[34] Ordinarily it will be obligatory for the TAC to actually make its decisions as soon as practicable after the point of time “as at” which the relevant person’s condition falls for consideration. Accordingly, if the TAC were to engage in unjustifiable delay, injured persons could generally compel the TAC to make a prompt decision by seeking mandamus in this Court or perhaps by applying for relief at VCAT.[35] It is true that gaps may remain. For example, an injury might not have stabilised within the 6 year period applicable under s 46A(1A). Similarly, in the case of a minor the TAC will not be called upon to consider the likelihood of his or her entitlement to an impairment benefit until he or she reaches at least 18 years of age. How such situations might be reconciled with the 6 year limitation referred to in s 46A(1B)(b) in relation to accidents occurring on and after 29 November 2000 is problematic, to say the least.[36] On the other hand, the plaintiff’s competing interpretation effectively ignores the whole of the conditional clause in s 46A(1A). It would enable injured persons to compel the TAC to make impairment determinations, immediately, at any time within the 6 year period, thereby setting at nought the various time-related provisions in s 46A(1). It is unacceptable accordingly.
[33]At [31].
[34]Outline, para 18.1.
[35]But as to the jurisdiction of VCAT in such circumstances see Shah v Transport Accident Commission [2007] VCAT 1724 and cases there cited.
[36]See above under “The legislative provisions”.
An answer to the problem: an application with deferred effect
There is a better answer to the problem of cases where the TAC would be justified in deferring the consideration of likely entitlement to an impairment benefit until a point of time close to or beyond the expiry of the 6 year limitation period applicable under s 46A(1A). In substance, the existence of the answer was acknowledged by counsel for the TAC during the hearing in this case. I asked counsel whether it was impossible to write an effective request or application under s 46A(1A) at a stage corresponding to the stage at which the solicitors’ letter of 12 May 2005 was written.[37] He replied that it was not impossible. He said that it was possible for a claimant to write to the TAC and say: “Please assess whether or not I’m likely to be entitled to an impairment benefit. If you determine that I’m not likely please treat this letter as a request as at that date to determine my degree of impairment under s 46A(1A)”.
[37]Transcript 35-36. See also at 45 (lines 5-10), 70-72, 140, 141.
Counsel for the TAC sought to distinguish a letter so expressed from a letter (or other form of request) that simply sought an impairment determination or that otherwise failed to recognise the alleged necessity for a prior decision by the TAC as to whether the claimant was or was not likely to be entitled to an impairment benefit. He submitted that unless the request was tied to the time of the making of the TAC’s “not likely decision”, one could not identify “the date of the application” within the meaning and for the purposes of s 46A(1A).
Counsel also submitted[38] that, whether made before or after the making of a “not likely decision”, any request or application under s 46A(1A) needed to make clear that a determination of the degree of impairment was being sought, although it did not need to be targeted or elaborate.
[38]At 45-46.
Finally, counsel for the TAC accepted[39] that an effective application could be spelled out of a chain of correspondence, as distinct from a single letter, even if the chain began with an inconclusive letter by the claimant. On the other hand, counsel submitted that, absent an express request by the claimant in an appropriate form, there would need to be an express acknowledgment by the TAC to the claimant that it was proposing to treat the claimant’s correspondence as including such a request.
[39]At 70-72.
However, it is difficult to accept that great rigidity is required. After all, the only thing that the claimant may be required to await is a “not likely decision” which, by virtue of s 46A(1A), the claimant is entitled to override completely if he or she merely applies in time. The “likelihood” process is not intended to operate as a filter in relation to the quality of applications under s 46A(1A) or in any other way to diminish the ultimate entitlement of every injured claimant to the making of an impairment determination by the TAC upon application within time.[40]
[40]Compare, generally, Emanuele v Australian Securities Commission (1997) 188 CLR 114, esp at 146-147, 153 per Kirby J; Booth v Ward (2007) 17 VR 195 at 212–215 [63]–[77].
Moreover, no particular form of application is prescribed by or under or for the purposes of s 46A(1A). Indeed, there is nothing in the Act to indicate even that the application should be in writing. Accordingly, it seems that a claimant could validly make an oral application. In these circumstances, strictness as to the form of the application is inappropriate[41]. At least, that is so if one puts aside any expectations derivable from any relevant prior course of dealing between the parties or their privies (none was suggested[42]) or from such a thing as the Impairment Assessment Protocols. The Protocols were very new in 2005. The TAC did not suggest that it could gain any comfort from them in this case. On the other hand, I do not accept the plaintiff’s belated, faint suggestion that his position is advanced by reference to paragraphs 1.2, 4.1 and 4.2 of the Protocols. Plainly, the Protocols cannot affect the true construction of the Act. Nor, in the present case, do the paragraphs referred to by the plaintiff throw any significant light on the interpretation of the correspondence between the parties.[43] However, at the relevant time, there were no obligatory “magic words” for an application under s 46A(1A). Accordingly, there is considerably greater scope for holding the present parties to the substance and the apparent implications of their correspondence than the TAC’s submissions would allow.
[41]See Thompson v Goold & Co [1910] AC 409 at 420; Byrne v Transport Accident Commission [2008] VSC 92 at [36].
[42]This was expressly confirmed by the TAC’s counsel: transcript 167.
[43]See the TAC’s rejoinder on this point at transcript 163-164.
Notwithstanding what he had said about the need to be able to identify “the date of the application”, counsel for the TAC did not suggest that a conditional, prospective application communicated within the 6 year period and otherwise properly expressed would nevertheless fail if the condition itself were not satisfied within the 6 year period. In any event, in order to achieve a sensible and coherent construction of s 46A(1A) that minimises the potential for injustice as a result of unintended gaps, I would not have been persuaded by any suggestion to the contrary.
Overall, in my view, it is enough that the communications between the parties include or amount to a sufficient indication by the claimant or a sufficient acknowledgment by the TAC that, even if the TAC ultimately decides that the claimant is not or is not likely to be entitled to an impairment benefit, the claimant desires that the TAC carry out an impairment determination. The indication or the acknowledgment must be completed within the 6 year period. Once that has occurred, it does not matter if the “not likely decision” is not made until after the 6 year period has expired. The claimant will have applied in time. The words “apply” and “application”, which appear in s 46A(1A), can be used in various senses. An application can be viewed as a continuous process or as something done at a discrete point of time. The latter may be the more likely interpretation here.[44] In any event, where the application is properly construed as conditional and prospective in nature, the date of the application within the meaning of s 46A(1A), being the date as at which the TAC is required to assess the degree of the applicant’s impairment, would appropriately be regarded as the first date on which the application became unconditional and thus effective, ie, generally, the date of the “not likely decision”. At that time, the claimant’s “title” to an impairment determination will have been “perfected”.[45] In other words, the application would then “spring into life”.[46]
[44]See Woods v Bennett [1972] 46 ALJR 294; Smith v Minister for Education [1978] 41 LGRA 347 at 352-353; Addicoat v Fox (No 2) [1979] VR 347, esp at 354; Australian Safeway Stores v Director of Liquor Licensing, unreported, VCAT (Judge Strong Acting Vice President and Ms Davis, Deputy President), 29 March 2001; cf James v Minister for Housing & Local Government (1968) AC 409 at 455-6; R(ex rel Lynch) v Canmore Coal Co (1920) 53 DLR 115 at 117; Robins v Young [1955] VLR 245 at 248, 252.
[45]See and compare Phipps v Australian Leisure and Hospitality Group [2007] QCA 130 at [22]-[23] per Keane JA; Booth v Ward (2007) 17 VR 195 at 215 [77].
[46]Compare Wilson v Nattrass (1995) 21 M.V.R. 41 at 51 per Hedigan J; Swannell v Farmer [1999] 1 VR 299 at 306 [19] per Batt and Buchanan JJA.
The effect of the correspondence in the present case
The TAC submits that the correspondence in the present case did not include or give rise to a timely, effective application under s 46A(1A). However I am satisfied that it did.
The plaintiff has had a general claim on foot with the TAC, including a claim for impairment benefits, since 1989. He turned 18 years of age on 22 September 2000. At or about that time, by virtue of s 46A(b)(iii) (as originally enacted), and apart from any request by the plaintiff, the TAC should have considered whether the plaintiff was or was likely to be entitled to an impairment benefit. The TAC failed to do so. The 6 year limitation period began to run under s 46A(1A) as from 29 November 2000. Apparently the TAC did nothing in relation to (adult) impairment benefits for the plaintiff during the ensuing four and a half years, notwithstanding its continuing duty under s 46A(1). The plaintiff’s solicitors then established contact with the TAC by their letter of 29 April 2005. By their important letter of 12 May 2005, the solicitors, on behalf of the plaintiff, inquired as to whether an impairment determination had been made. “If not”, they said, “please advise as to whether you will now arrange medical examinations to assess impairment”.
The TAC now submits that the letter of 12 May 2005 was a mere casual inquiry as to TAC’s position and did not amount to an application or request for an impairment determination at all. Further or alternatively, the TAC submits that the plaintiff was doing no more than calling upon the TAC to consider, under s 46A(1) of the Act, whether he was, or was likely to be, entitled to an impairment benefit. In any event, the TAC submits, the letter did not amount to a “staged” request of the kind said to be necessary where a “not likely decision” has not yet been made.
I disagree on all counts.
The polite, inquiring tone of the letter is explicable because the case was old, the plaintiff had been a young child at the time of the accident, he had a difficult family background, the solicitors had only just come into the matter, and they would probably not have known whether sufficient information was yet available to warrant a final determination, although, as the letter itself indicated, they thought it possible that the TAC may have already made an (adult) impairment determination in relation to the plaintiff. But the client’s desire was unmistakeable. He had engaged solicitors. He had on foot a claim for impairment benefits.[47] He was not merely making a casual inquiry. He wanted the degree of his impairment to be determined, if need be and when appropriate. As I have mentioned, the only way in which impairment benefits can be obtained or common law rights gained is through an impairment determination by the TAC. In terms, the plaintiff asked whether the TAC would “now arrange medical examinations to assess impairment”. This language was sufficient, in my view, to inform the TAC that the plaintiff wished to have his degree of impairment determined, not merely to have the TAC form a view as to whether he was, or was likely to be, entitled to an impairment benefit. The TAC was already under the s 46A(1) implied duty. No request from the plaintiff was needed to enliven it. Even if the letter should be read as including a superfluous request that the TAC perform its implied duty under s 46A(1), why should it not be read as including, also, the only kind of application that the statute provided for in relation to the prevailing situation? The letter effectively requested the TAC to arrange medical examinations to assess impairment. As the evidence in this case shows, the TAC itself only arranges medical examinations when it is under an obligation to make an impairment determination. From the claimant’s perspective, it matters little whether that obligation arises from a “likely” decision by the TAC under s 46A(1) or from the making of an effective application under s 46A(1A). Further, the letter asked whether the TAC would “now” arrange the medical examinations. By implication, the plaintiff was saying: “Please do it now or, if appropriate, later”. In my view, the language of the letter was sufficient to convey a “staged” application, at least as an alternative.
[47]This was acknowledged by counsel for the TAC: transcript 119.
It is true that, in the early period, the replies sent by the TAC to the plaintiff’s solicitors and to himself could possibly be read as treating the plaintiff as having done no more than remind the TAC of its implied obligation under s 46A(1). But that is not the only way, nor is it the fairest way, in which those letters may be read. In any event, due recognition by the TAC was not essential to an objective characterisation of the plaintiff’s correspondence as containing or including an application under s 46A(1A).
Naturally, the TAC’s letters concentrated on the first stage of the process, namely the discharge of the TAC’s implied duty under s 46A(1). But the letters did not expressly put the plaintiff on notice that the TAC did not regard him as having made an application under s 46A(1A). Indeed, there was no express reference to either subsection (1) or subsection (1A) of s 46A, much less any express reference to any distinction between them. The closest the TAC came was in its letter of 17 May 2005 addressed to the plaintiff himself (and copied to the solicitors). The letter said: “The TAC is only required to arrange medical examinations to assess your level of impairment if it appears likely that you will have an impairment of more than 10%”. That sentence contained an erroneous statement of the relevant law, bearing in mind the TAC’s obligation upon the making of any application under s 46A(1A), being an obligation that exists regardless of the likelihood that the injured person will be assessed at more than 10%. The error might indicate that the author had not recognised that an application under s 46A(1A) was on foot.[48] However, as the administering statutory authority, the TAC must be taken to have known that time had commenced to run under s 46A(1A) in November 2000. The original letter of 12 May 2005 had not been expressed as a mere request that the TAC carry out its implied duty under s 46A(1). Indeed it had been expressed in much broader language. In those circumstances, if the TAC wished to avoid a later finding that the plaintiff had made an application under s 46A(1A), it behoved the TAC to alert the plaintiff specifically and clearly to its position before the 6 year period expired. The TAC did no such thing, even when the plaintiff’s solicitors forwarded the “impairment” reports of Mr Kinloch and Mr Strauss in March 2006 and the report of Mr Stapleton in April 2006 (still within the 6 year period). Those reports indicated that the plaintiff was at least on the border of the 11% threshold for entitlement to impairment benefits, even without a contribution from his dental injuries of which the TAC had been advised in general terms and as to which an “impairment” report was to be expected in due course.
[48]It would be of significant concern if letters containing this erroneous statement of the law were routinely sent to lay persons, as this letter was. The statement might well mislead injured persons into thinking that they have no alternative if the TAC makes a “not likely decision” against them.
In addition, and quite importantly, if the TAC had really wished to confine the plaintiff and itself to the question of likely entitlement arising under the original version of s 46A (which later became s 46A(1)), and had not intended to acknowledge any application under s 46A(1A), then the TAC would presumably have directed the plaintiff’s attention, and its own attention, exclusively to the plaintiff’s medical condition as at the only date relevant under the original version of s 46A, being the date on which the plaintiff attained the age of 18 years, namely 22 September 2000.[49] The plaintiff’s condition thereafter was not significant for the purposes of s 46A (as originally enacted) because there is no suggestion that his condition had not stabilised by 22 September 2000. I note that the TAC’s supplementary written submission of 10 June 2009 contains the observation that “all the documentation in the Commission’s possession suggests that Mr Vukovic’s injuries had stabilised by the time the 12 May [2005] letter was sent”. The injuries were, of course, 11 years old by 22 September 2000. Far from harking back to 22 September 2000, the TAC’s letters urged the plaintiff to supply recent medical information. For example, the TAC’s letter to the solicitors of 1 June 2005 stated that the TAC required information as to who had treated the plaintiff for the injuries he sustained in the transport accident, “in particular those who have seen your client recently”. Indeed, by emphasising recent medical information, the TAC appeared to be directing the plaintiff and itself to the date that was, or would become, relevant under s 46A(1A), namely “the date of the application”. Nor can the TAC’s concentration in its letters on recent medical information be explained by s 46A(8) of the Act, which now provides that if the TAC is required to assess the degree of impairment of a person whose injury has not stabilised, the degree of impairment to be assessed is the degree of current impairment as at the date of the determination of the assessment. The plaintiff’s injuries had stabilised. Anyway, s 46A(8) was inapplicable in respect of transport accidents that happened before 1 September 2003.[50] Neither can the TAC’s concentration on recent medical information be explained by s 46A(2A) of the Act, which now provides that, despite anything to the contrary in the AMA Guides, “an assessment under subsection (1) of the degree of impairment resulting from an injury must be based on the person’s current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the person in respect of the injury”. That provision was not contained in the Act in 2005 or in 2006 when the relevant letters were written. Rather, it was inserted in 2007 by s 8 of the Transport Accident and Accident Compensation Acts Amendment Act 2007. So the authors of the TAC’s letters could not have had it in mind.[51]
[49]See s 46A(b)(iii) as originally enacted.
[50]See s 188 of the Act.
[51]Of course, for the purposes of deriving inferences of fact from the correspondence in 2005 and 2006, it matters not that the relevant transitional provision (s 193 of the Act) provides that the Act as amended by s 8 of the amending Act applies with respect to all transport accidents, regardless of when they occurred, and to all applications, regardless of when the applications were made. Subsection 46A(2A) was apparently introduced to overcome the decision of the Court of Appeal in Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146. However, it is fortunate that there is no need in the present case to try to reconcile s 46A(2A) with the requirement still stated in s 46A(1) that the TAC determine the degree of impairment “as at” one of various specified past points of time.
Further, the TAC’s case now[52] is that it made a final “not likely decision” under s 46A(1) as advised in its letters of 18 August 2005. If that is correct, nevertheless something must have remained on foot thereafter, because the TAC told the plaintiff in those very letters that it would not arrange impairment examinations “at this stage” and that his possible entitlement to an impairment benefit “remains open”. It sounds rather hollow to say that the thing which remained on foot was not a s 46A(1A) application but only the possibility that the TAC might revisit its s 46A(1) responsibilities.
[52]Transcript 46-47, 122. See further below.
Finally, as detailed above, the TAC itself has admitted, on numerous recent occasions, that the letter of 12 May 2005 represented an application for an assessment of impairment and that it was made within the relevant 6 year period. These admissions were made expressly and clearly by the TAC’s letter of 21 November 2008 written by a senior officer, namely the Team Manager, Impairment and Serious Injury, Nick Cicer, after the TAC had gained some two months for further consideration by writing two holding letters. The same admissions were made impliedly on several other occasions, including, at least, by the TAC’s abovementioned letter of 26 September 2008 (signed by another officer, Richard Newth), by the letter of 29 September 2008 signed by Jenna Reid (referring to the absence of “subsequent” requests after 18 August 2005), and by the letter of 9 January 2009 signed by Mr Cicer (effectively repeating the views he expressed in his prior letter of 21 November 2008). These admissions amount to an admission that the plaintiff had made a timely application pursuant to s 46A(1A). That admission, in turn, was impliedly confirmed by the TAC’s silence up until it changed its position in late May 2009.
The plaintiff did not raise any estoppel argument and, generally speaking, there can be no estoppel against a statute.[53] However, on the facts of this case, in seeking to place a fair, reasonable and proper interpretation on the chain of correspondence, this Court is entitled to give weight to the admissions previously made by the TAC itself.[54] I would have arrived at the same conclusion without the admissions, but they confirm that the plaintiff did duly “apply” to the TAC for a determination of his degree of impairment.
[53]Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-107 (Davies and Branson JJ).
[54]See and compare Ansett v Taylor [2006] VSCA 171, esp at [39] (Ashley JA); Husson v Keppel Prince Engineering Pty Ltd [2006] VSC 412 at [30] (Osborn J); Grech v Orica (2006) 14 VR 602 at 612 [41] (Ashley JA); Jovanovski v Betta Foods Pty Ltd [2009] VSCA 98 at [124] (Ashley JA).
The date of the application
The TAC argued, as I have mentioned, that it had made and conveyed a final “not likely decision” on 18 August 2005. Its counsel insisted on this.[55] He may have had the plaintiff’s alternative case (under s 46A(1)) principally in mind, but he did not limit the purposes for which the submission was made. Accordingly, for the purposes of the plaintiff’s principal case (under s 46A(1A)), it is appropriate to treat the submission as a concession by the TAC. I should do so notwithstanding what to my mind is the equivocal and indefinite language used in the TAC’s letters to the solicitors of 18 August 2005 (“the TAC will not arrange impairment examinations ‘at this stage’. … Your client’s possible entitlement to an impairment benefit ‘remains open’)”. Therefore, on the basis that the TAC made a final “not likely decision” on 18 August 2005, the plaintiff’s application under s 46A(1A) was “perfected” or “sprang into life” on that day. It follows that 18 August 2005 should be regarded as “the date of the application” within the meaning and for the purposes of s 46A(1A) in the present case.
[55]Transcript 46-47, 122.
Conclusion on main question
I am satisfied that the plaintiff duly made an application for an impairment determination under s 46A(1A), with an effective date of 18 August 2005. Therefore, subject to any discretionary considerations, the plaintiff is entitled to an order in the nature of mandamus requiring the TAC to determine the degree of his impairment as at 18 August 2005.
The plaintiff’s alternative claim: a duty to consider making an impairment determination
There is no occasion to refer in detail to the various arguments that were advanced in relation to the plaintiff’s alternative proposition, to the effect that the TAC would be required in any event under the original version of s 46A (now s 46A(1)) to examine the medical material now available and to consider whether or not to make an impairment determination under that provision. The TAC denies that it remained under any such obligation. It says that the insertion of s 46A(1A) has had the (implied) effect that as long as the TAC turns its mind to the “likelihood” question under s 46A(1) on at least one occasion and makes a final “not likely” decision before the expiry of the 6 year period under s 46A(1A), it has no further duty to perform under s 46A(1). The TAC says that it did this in the present case. I note in passing that the TAC’s submission has to confront s 40(a) of the Interpretation of Legislation Act 1984 which provides that a statutory duty must be performed “from time to time as occasion requires” unless the contrary intention appears. In contending that a contrary intention does appear, the TAC’s submission might be thought to read a very great deal into s 46A(1A). Contrary to the TAC’s submission, I do not think that there is much, if any, support for its position in the extrinsic Parliamentary material. As to the facts, if it were not appropriate to treat the TAC’s submission that it made a final “not likely decision” as a concession for the purposes of the plaintiff’s principal case, then there would be something to be said for the plaintiff’s alternative case, namely, that the TAC has still not discharged its duty under s 46A(1), even once.
However there is no need to pursue these issues any further and I do not do so.
Discretion: alternative remedy
The TAC submits that, in any event, relief should be refused in the exercise of the Court’s discretion. It points out that mandamus is a discretionary remedy and may be refused if a more convenient and satisfactory remedy exists.[56] The TAC says that the plaintiff could have “exercised his right to apply to the Victorian Civil and Administrative Tribunal for a review on the merits of the Commission’s decision that the Plaintiff’s application for an impairment assessment was out of time”.[57] It submits that a review on the merits would have been a more convenient and satisfactory remedy.
[56]R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Garde-Wilson v Legal Services Board (2008) 19 VR 398 at [2], [8]-[9] and [99].
[57]Written submissions, para 43.
It is true that in Garde-Wilson v Legal Services Board[58], Nettle JA said that “the existence and, a fortiori, the exercise of a statutory right of appeal or review before a tribunal with jurisdiction to determine all questions of fact and law within the remit of the original decision-maker is a powerful discretionary consideration against the grant of prerogative relief”. And it may well be that VCAT would have had the requisite jurisdiction, although some uncertainty about that might have been warranted and in any event it might have been at least awkward to identify the appropriate “decision” to be reviewed at VCAT[59]
[58](2008) 19 VR 398 at 400 [8].
[59]See and compare Transport Accident Commission v Clarke and Smith [1994] 1 VR 117; Byrne v Transport Accident Commission [2008] VSC 92 at [57]-[71]; Kerrigan v Transport Accident Commission [2001] VCAT 1942; Shah v Transport Accident Commission [2007] VCAT 1724; Pizer, Victorian Administrative Law Service [VCAT 4.60].
Unlike in Garde-Wilson, in the present case the plaintiff has not actually commenced a parallel proceeding in VCAT.
Moreover, as Dodds-Streeton JA said in Garde-Wilson,[60] the opponent bears the burden of persuading the court to exercise the discretion against the applicant for relief. The existence of an adequate alternative remedy is an established ground on which the discretion might be exercised, but it is not necessarily determinative. Circumstances might nevertheless indicate that judicial review should proceed.
[60]At 415 [99]-[100].
Dodds-Streeton JA proceeded to say:[61]
“One such factor is the involvement of an important legal question, which can only be determined finally by the court.”
[61]At 415 [100].
The plaintiff submits that the questions of construction raised in this case and in the similar case of Sorrell v Transport Accident Commission which, by agreement, was heard together with this case, are important questions. The plaintiff also submits that it has not been shown that a VCAT proceeding would have been quicker or cheaper, given that a decision either way was likely to be the subject of an appeal in any event.
Counsel for the TAC responded that each of the two proceedings might have been heard by a judicial member of VCAT. He then submitted “with some hesitation”[62] that the likelihood of an appeal from VCAT was similar to the likelihood of an appeal from the Trial Division of this Court to the Court of Appeal.
[62]Transcript 132.
There was no guarantee that this matter or Sorrell would have been heard by the President or a Vice President of VCAT, especially as the cases would have initially presented themselves. So there was an apparent potential saving in time and costs by coming direct to this Court. Further, the cases have not involved any contested issues of primary fact. They have turned on questions of construction of the Act and of interpretation of the correspondence between the parties. I asked counsel for the TAC whether his client agreed that these were important cases. After noting, in effect, that the cases had changed and developed from their initial state, counsel took instructions and announced that the TAC did regard these cases as important ones.[63]
[63]Transcript 134.
The TAC has not shown that relief should be withheld in the exercise of the Court’s discretion.
Orders
Subject to any submissions as to the appropriate form of order or as to costs, I propose to make orders as follows:
(1)Time be extended so far as necessary to authorise the commencement of this proceeding.
(2) There be an order in the nature of mandamus requiring the defendant to determine the degree of impairment of the plaintiff, pursuant to s 46A(1A) of the Transport Accident Act 1986 as in force immediately after 29 November 2000, on the basis that the date of the application within the meaning of that subsection is 18 August 2005.
(3)The defendant pay the plaintiff’s costs of this proceeding including reserved costs.
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