IN THE MAGISTRATES COURT OF VICTORIA

AT melbourne

WORKCOVER DIVISION

Case No. E10465993

SHIRRELL BARYLA / Plaintiff
v
ADECCO INDUSTRIAL PTY LTD / Defendant

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MAGISTRATE: / S GARNETT
WHERE HELD: / MELBOURNE
DATE OF HEARING: / 1 OCTOBER 2014
DATE OF DECISION: / 7 OCTOBER 2014
CASE MAY BE CITED AS: / BARYLA v ADECCO

REASONS FOR RULING

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Catchwords: Application by Defendant to Court to refer medical questions to a Medical Panel pursuant to s 274 (1)(b) Workplace Injury Rehabilitation and Compensation Act 2013 after matter was listed for Hearing – Civil Procedure Act 2010 – Practice Direction No. 1 of 2012 – Skordos v Magistrate Garnett & Ors [2009] VSC 512 – Aon Risk v ANU [2009] HCA 27 – Expense Reduction v Armstrong [2013] HCA 46 – Yara Australia v Oswal & Ors [2013] VSCA 337: Application Refused – Abuse of Process – s 274 (3).

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APPEARANCES: / Counsel / Solicitors
For the Plaintiff / Mr Horner / Maurice Blackburn
For the Defendant / Mr Gray / Lander & Rogers
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HIS HONOUR:

1  On 1 October 2014, the defendant made application to the court to adjourn the Hearing listed on 15 October for a period of four weeks to enable the parties to prepare the necessary documentation in order for it to make application to the court for the court to refer medical questions to a Medical Panel for an opinion pursuant to s 274 (1)(b) of the Act. The plaintiff opposed the application to adjourn the scheduled hearing and the application pursuant to s 274 (1)(b).

2  I refused the applications and indicated that I would provide written reasons for my decision which I now provide.

3  Mr Baryla issued proceedings on 6 February 2014 after obtaining a Conciliation Outcome Certificate dated 21 December 2012. The defendant filed a Defence to the claim on 18 March 2014. The parties filed amended pleadings after obtaining leave from the court on 9 July 2014.

4  Mr Baryla, by way of an Amended Statement of Claim, alleges that he sustained injuries to his lumbar spine and a consequential anxiety and depressive condition as a result of being required to repetitively lift items and bend during the course of his employment as a store person and packer with the defendant. The pleadings indicate that he submitted a workcover claim for which liability was accepted and received weekly payments of compensation from 3 March 2011 for periods until 25 August 2011 when they were terminated by the defendant on the grounds that he was no longer incapacitated for employment. A second claim was lodged by him on 7 April 2014 seeking payment of medical expenses for which liability was rejected by the defendant on 30 June 2014.

5  After the issue of proceedings, the matter was listed before this court on;

a. 28 May 2014 – Directions Hearing: By consent adjourned for Mention to 11 June 2014;

b. 11 June 2014 – By consent adjourned to 9 July 2014 as Mr Baryla had apparently recently lodged a further claim for which liability was pending;

c. 9 July 2014 – By consent matter adjourned to 20 August 2014 with leave given to the parties to file and serve amended pleadings;

d. 20 August 2014 – By consent matter listed for Hearing on 15 October 2014 with the court noting that neither party was making an application to the court to refer medical questions to a Medical Panel.

6  On 22 September 2014, the defendant notified the court, in accordance with s 274 (1)(b) of its intention “to refer the matter to a Medical Panel for determination” and requested that the matter be listed for Mention.

7  On 29 September, the matter was listed before the court as requested and Mr Horner, who appeared for Mr Baryla, informed the court that he opposed the application by the defendant. He also sought and obtained leave pursuant to s 273 (2) to include a recent disputed claim in the proceedings. Mr Horner also informed the court that there were factual issues in dispute relating to the nature of Mr Baryla’s duties with the defendant. The matter was adjourned to 1 October to allow counsel to appear on behalf of the defendant.

8  On 1 October, Mr Gray who appeared as Counsel for the defendant, submitted that the court must refer medical questions to a Medical Panel for an opinion on application by a party, subject to s 274 (3), where appropriate notice has been given to the court in accordance with s 274 (1)(b). He also submitted that any factual issues in dispute can be determined by the court after hearing evidence and making findings of fact and then referring the appropriate medical questions to a Medical Panel in accordance with s 275 (2). Mr Horner confirmed his opposition to the application principally on the grounds of the late notice of the application.

Reasons

9  The first issue to raise is the misunderstanding by practitioners in the workcover jurisdiction, as reflected in the defendant’s letter to the court dated 22 September, that “the parties” refer medical questions to a Medical Panel for an opinion. S 274 makes it abundantly clear that the court may, on its own motion, and must, subject to ss (3), (4) & (5) refer medical questions to a Medical Panel for an opinion. Ultimately, it is the court, not the parties that refer medical questions to a Medical Panel. It also appears to be a misunderstanding by practitioners that the court will automatically refer medical questions to a Medical Panel on application without the court inquiring whether the issues in dispute are appropriate for the court to obtain a Medical Panel opinion and whether that opinion will resolve all issues in dispute.

10  There is an obligation on the parties to explain to the court why the matter is appropriate for a Medical Panel opinion to be obtained rather than the court determining the issue(s). The dispute may involve purely medical issues which may be more efficiently resolved by obtaining an opinion by an expert specialist body. Other issues such as factual disputes or credit issues may be more properly resolved by the court.[1] There may be cases where the factual issues can be determined by the court after hearing evidence and the court may then decide to refer medical questions to a Medical Panel in accordance with s 275.

11  There is also an obligation on the party making the application to do so in a timely manner and in accordance with the obligations imposed by the Civil Procedure Act 2010 and Practice Direction issued by the Chief Magistrate. The importance of ensuring that proceedings are conducted in an efficient and timely manner was discussed by the High Court in Aon Risk Services v ANU[2] where it was said that case management considerations, including the availability of court resources, were not irrelevant, but that the paramount consideration was that justice between the parties had been done. In addition, the overarching purpose of the Civil Procedure Act 2010 is to “facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute” (s 7 (1)). It is the duty of the court to ensure this occurs and the obligation of the parties to act promptly and minimise delay (s 25). As stated by the Court of Appeal in the Oswal proceedings[3]; “The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account”.[4]

12  Turning to the present case, if the defendant’s application is granted and assuming the factual issues between the parties are resolved, the matter will need to be adjourned for a period of 4 weeks to allow the parties time to prepare the necessary documentation pursuant to s 307 and frame the suggested medical questions for the court’s consideration. If the matter is referred by the court it will be a number of weeks before the Convenor arranges for the appropriate examinations to occur. The Panel must then form its opinion within 60 days of receiving the documents (s 313). The Panel then has 7 days after forming its opinion to provide the court with its opinion in writing in accordance with s 313 (3). Once received, the court will list the matter for mention for the appropriate orders to be made consistent with the Medical Panel opinion in accordance with s 313 (4). Therefore, the delay between an application being made and the receipt of a Medical Panel opinion is usually in the order of 3-4 months.

13  In my opinion, the defendant’s delay in making the application constitutes an abuse of process pursuant to s 274 (3) of the Act. In reaching this conclusion, I have had regard to the decision of Cavanough J in Skordos v Magistrate Garnett & Ors. [5], the obligations imposed by the Civil Procedure Act and the Court of Appeal’s decision in the Oswal proceedings. I have also noted the recent comments made by the High Court in Expense Reduction v Armstrong [6] when considering the NSW Civil Procedure Act 2005 where the court said; “Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose”.

14  The defendant had prior opportunity to seek a Medical Panel referral, either at Conciliation in 2012 or to the court prior to 1 October 2014. The proceeding was listed on 4 separate occasions without an application being made or indeed notice being given that an application would be made. No explanation was given for this failure. In fact, on 20 August 2014, Magistrate Wright made a notation on the court file that neither party was intending to make an application to the court for medical questions to be referred to a Medical Panel.

15  In addition, the defendant has failed to comply with Practice Direction No.1 of 2012 which directs the party who wishes to make application to the court to refer medical questions to a Medical Panel to do so prior to the initial Directions Hearing which is listed 10 weeks after a Notice of Defence is filed. The late application is also contrary to the overriding objective of the Magistrates’ Court General Civil Procedure Rules 2010.

16  It should also be noted that in May 2014, the court allocated significant resources to establish a second daily Hearing list for the purpose of reducing delays in the determination of workcover proceedings. It is therefore incumbent on practitioners experienced in this jurisdiction to avoid unnecessary delay by making a forensic decision at an early stage as to whether the issues in dispute are properly resolved by a Medical Panel, and if so, to make application to the court at an early stage of the proceedings. An application at a late stage as occurred in the present case, not only causes undue delay in this proceeding but causes delay in other matters being allocated a Hearing date. In my opinion, this practice erodes confidence in the timely and efficient administration of justice by this court. It is unfair to Mr Baryla who seeks to have his entitlement to compensation determined without further delay and for which his lawyers have prepared his case for a contested Hearing on 15 October.

17  The defendant’s application to adjourn the proceeding and for the court to refer medical questions to a Medical Panel is refused and the matter will remain in the Hearing list on 15 October.

6 / DECISION

[1] See Beitseen v Insurance Australia Group Magistrate Garnett 24 May 2011 & Steele v Lyon Forklift Magistrate Garnett 12 June 2012.

[2] (2009) 239 CLR 175.

[3] Yara Australia Pty Ltd v Oswal & Ors [2013] VSCA 337.

[4] Para 26.

[5] [2009] VSC 512.

[6] [2013] HCA 46.