Medical panel determination outside of time is not an error of law

11 September 2020

The plaintiff brought proceedings in the Victorian Court of Appeal seeking judicial review of the Certificate of Determination by the Medical Panel. The Determination was made outside the time limit prescribed by section 28LZG(3)(a) of the Wrongs Act 1958.

In Issue

  • Whether the time limit prescribed by section 28LZG(3) is a condition of the jurisdiction of the Panel.
  • Whether consent can be given by a claimant and respondent, after time has otherwise expired, to permit a Medical Panel to subsequently give its Certificate or Determination within jurisdiction.

The background

In 2017, the plaintiff commenced a proceeding in the Supreme Court Trial Division claiming damages for both physical and psychological injuries suffered as a result of the negligence of a surgeon. Whether the plaintiff’s physical injuries satisfied the threshold level was referred to a Medical Panel in November 2018. The plaintiff was examined by the Medical Panel on 8 March 2019. According to section 28LZG(3)(a), the medical panel was due to give its determination by 7 April 2019. On 16 May 2019, an extension of time for the Medical Panel to make a determination was agreed to by the plaintiff and defendant. On 20 May 2019, the Medical Panel issued a ‘Certificate of Determination’ that the degree of whole person impairment to the plaintiff did not satisfy the threshold level.

On 18 July 2019, the plaintiff commenced a second proceeding seeking judicial review of the Medical Panel’s determination. The ground on which the plaintiff sought to impeach the determination was that the Panel made the determination outside of the time period specified in section 28LZG(3)(a)-(b) of the Wrongs Act 1958 (Vic). The decision was reserved by the Trial Division to be heard in the Court of Appeal.

Under section 28LZG(3) the Medical Panel is required to give its Determination or Certificate in respect of the medical question referred to it:

  1. within 30 days after the last of the following to occur –
  • the last date on which the claimant complies with a request under section 28LZC;
  • the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or
  1. within such longer period as is agreed by the claimant and the respondent.

The plaintiff argued that as she had complied with section 28LZC and the Panel did not make any requests under section 28LZE, in accordance with section 28LZG(3) the Panel was required to give its determination by 7 April 2019 or within an agreed period. However, the Panel did not provide a Determination until the 20 May 2019.

Central to the arguments was the case of Mikhman v Royal Victoria Aero Club [2012] VSC 42. In Mikhman, Kaye J concluded that the time limit prescribed at section 28LZG(3)(a) of the Act was a condition of the jurisdiction of the Panel making a determination.

It was argued that the agreement given by the parties on 16 May 2019 to an extension of time meant that the Panel’s Certificate of Determination issued on 20 May 2019 was within jurisdiction.

The plaintiff argued that Mikhman was decided correctly and that the agreement given on 16 May 2019, did not have the effect of making the certificate of determination one that was issued within jurisdiction as time expired on 22 April 2019.

The decision at trial

At trial, Maxwell P and Beach JA noted two key issues:

  1. Whether section 28LZG(3) permits the parties to agree an extension even after time has otherwise expired; and
  2. Whether non-compliance with the time limit in the section caused a determination to be invalid.

Regarding the first issue, Maxwell P and Beach JA held that this was a matter of statutory interpretation. They saw no reason to limit the wording of section 28LZG(3)(b) so that parties are unable to agree on an extension of time once time has expired.

Regarding the second issue, Maxwell P and Beach JA held that the Court must determine whether the purpose of the legislation requires strict compliance with time in accordance with the test in Project Blue Sky (1998) 194 CLR 355. They commented that it is improbable that Parliament intended the Panel to forfeit its jurisdiction if it runs slightly over the 30-day limit. This is in contrast to the decision in Mikhman where the Court found that timing in statutory schemes are intended by parliament to be ‘rigorously adhered to’.

McLeish JA agreed with the majority with regards to the first issue that the parties are able to agree to a determination being made longer than the 30 day period. However, his Honour disagreed with the opinions of the majority on the second issue. His Honour held that if a Panel fails to give its determination within the period required by section 28LZG(3), it is outside its jurisdiction to give its determination afterwards.

Implications for you

An error of law no longer exists where the Panel makes a delayed determination under section 27LZG(3) where the parties have provided consent to an extension of time for the determination.

Ko (by her litigation guardian Leli Ko) v Hall and Ors [2020] VSCA 224

Mandy Tisler
Ashlee Sherman

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation