Non-compliance with timeframes does not invalidate Medical Panel's determination

Lee Mee Ko (by litigation guardian) v Dr Caroline Hall & Ors [2020] VCSA 224

On 4 September 2020, the Victorian Court of Appeal (CA) handed down its decision, with a majority of 2 to 1, which overturns the decision of Mikhman v Royal Victorian Aero Club [1] in relation to the timeframe within which a Medical Panel (Panel) must make its determination.

The CA determined, in the context of section 28LZG(3) of the Wrongs Act 1958 (Vic) (Act) as follows:

• Consent given by a claimant and respondent, even after time has otherwise expired, permits a Panel to subsequently make its determination within jurisdiction.
• A Panel's non-compliance with the 30-day timeframe set out in section 28LZG(3) of the Act (timeframe) does not result in invalidity of the Panel's determination.

Background

The Applicant commenced proceedings in the Supreme Court claiming general damages for personal injuries from a surgeon, one of the Respondents to this Appeal. The surgeon referred the Applicant's certificate of assessment to the Panel, with the Applicant examined on 8 March 2019.

On 5 April 2019, the Panel requested, and the parties agreed to, an extension of time until 22 April 2019 to issue its determination. The Panel did not meet that deadline.

On 16 May 2019, the Panel requested, and the parties agreed to, a further extension of time until 30 May 2019.

The Panel did not issue its determination until 20 May 2019. [2]

The Applicant claimed that the Panel committed an error of law on the face of the record and/or jurisdictional error when it made its determination outside the period specified in section 28LZG(3)(a)-(b) of the Act.

Key findings

1. Parties can agree to an extension of time under section 28LZG(3)(b), even after time has otherwise expired.

The Court applied fundamental principles of statutory interpretation in forming its view on this issue and was persuaded by the following matters:

• The legislature has stated expressly that a statutory power to extend time may be exercised at any time and/or notwithstanding the fact that time may have already expired. [3]
• While there are some sections in Part VBA of the Act that disclose an intention that the statutory requirements be dealt with expeditiously, and that there be certainty in respect of timeframes, the scheme has elements that lack certainty. For example:
  • the Panel can defer making a determination if an injury has not stabilised;
  • if the Panel requests [4] that a health practitioner meet with or provide documents to it, the parties may not even be aware of when the time period expires;
  • if the parties are not empowered to agree to an extension due to expiry of the timeframe, this would have the consequence of the parties having to commence the process afresh.

2. Non-compliance with the timeframe does not result in invalidity of the Panel's determination.

Central to the Court's decision was an analysis of the Mikhman decision, as well as consideration of whether a legislative purpose to invalidate a decision given by a Panel outside the timeframe could be discerned in the Act.

In deciding that non-compliance with the timeframe does not result in invalidity of the Panel's determination, the majority was persuaded by the following matters:

• The Act seeks to ensure strict compliance with various time periods by providing for automatic consequences for the respondent for non-compliance. [5] However, in relation to a Panel's compliance with time periods, the Act is silent. [6] As such, there is "a consistent – and apparently deliberate – difference between the provisions which impose time periods on a respondent and those which impose time periods on a panel."
• A Panel's jurisdiction is that its decisions will conclusively determine whether a plaintiff can recover general damages. As such, it may be thought improbable, given the interests at stake and the involvement of independent experts as adjudicators, that it would have been Parliament's intention that a Panel forfeit its jurisdiction even if it ran ever slightly over the timeframe.
• The Panel's loss of jurisdiction for non-compliance with the timeframe would result in an obvious inconvenience for all parties.
• The statutory scheme set out in Part VBA of the Act is similar in purpose to that considered by the Court in Ian Street Developer Pty Ltd v Arrow International Pty Ltd. [7] In Ian Street, the Court found that the interest of the parties/objects of the scheme would be adversely affected if "the time limit went to jurisdiction".
• It would be in the interests of all parties, and the public, that the Panel be able to complete its work, even if that means making its determination after the timeframe has expired, rather than the parties having to begin the process again.
• The fact that the parties can agree to extend the timeframe sits comfortably with the conclusion that the timeframe is "not jurisdictional".
• To have parties incur the costs and expenses of a referral and then to have those costs wasted because a third party, being the Panel, has failed to comply with the time period, is inherently unjust and could not have been reasonably intended by Parliament.

We do note, however, that McLeish JA disagreed with the decision of the majority (Maxwell P and Beach JA), finding that the Panel's non-compliance with the time period results in a forfeiture of its jurisdiction to make its determination.

His Honour's analysis focused on the purpose of section 28LZG(3)(b) [8] and that its "only conceivable purpose" is to enable an extension to time and that without the agreement of the parties to the extension, the intention must be that the Panel lacks the power to make its determination. It was noted by McLeish JA that in Mikhman, the Court did not have the benefit of submissions on section 28LZG(3)(b).

Conclusion

Given this decision fundamentally changes the well-established precedent set out in Mikhman and, that there was a minority decision, it may be that the decision will be appealed or that this issue will be the subject of further judicial consideration in due course.

However, for the moment, parties to a Panel referral will be unable to seek judicial review of a determination on the grounds that the Panel has:

• failed to make its determination within the timeframe; and/or
• sought the parties' consent to extend the time period, after the timeframe has expired.

We consider the decision to be a sensible one as it avoids the considerable cost to parties of a judicial review, brought about by the Panel, more often than not, providing its determination only a few days after the expiry of the recognised 30-day timeframe post-examination.

[1] [2012] VSC 42. Mikhman concluded that the timeframe as prescribed by section 28LZG(3) of the Act was a condition of the jurisdiction of the Panel to give a determination.

[2] Which was unfavourable to the Applicant.

[3] Binsaris v Northern Territory [2020] HCA 22, [54] (Gordon and Edelman JJ).

[4] Pursuant to section 28LZE of the Act.

[5] See Part VBA, Division 4 - Procedure for claim for non-economic loss.

[6] See Part VBA, Division 5 - Procedures of Medical Panel.

[7] [2018] VSCA 294.

[8] Permits the claimant and the respondent to agree to a longer period of time than the 30 days set out in section 28LZG(3)(a) for the Panel to give its determination.