By Stuart Eustice, Partner and Jon Gillard, Senior Associate

The Victorian Court of Appeal recently considered when ‘service’ of Certificates of Assessment and Prescribed Information (s.28LT documents) are effected on a named respondent under Part VBA of the Wrongs Act 1958 (the Act).

This judgment concerns whether the solicitors of Ms Nichols effected service on Dermatology & Cosmetic Surgery Services Pty Ltd (DCSS) of s.28LT documents by serving those documents by email on the solicitors of DCSS, who had filed a Notice of Appearance in Ms Nichols’ County Court proceeding.

Section 28LT of the Act provides that a claimant must serve on a respondent a copy of a certificate of assessment (if any) obtained under this Part on which the claimant intends to rely.

Section 28LWE of the Act provides that a respondent on whom a copy of the certificate of assessment is served may refer a medical question in relation to the assessment to a medical panel for determination under Part VBA. The referral must occur within 60 days after receiving the certificate and the required information under section 28LT.

Background

On 12 January 2024, Ms Nichols commenced a proceeding in the County Court of Victoria against Dr Lanzer and DCSS. On 25 July 2024, a Further Amended Writ was filed, correctly naming DCSS. Subsequently on 25 July 2024, the solicitors of DCSS filed a Notice of Appearance.

On 2 August 2024, Ms Nichols’ solicitors emailed the solicitors of DCSS, serving the s.28LT documents. On 5 August 2024, the s.28LT documents came to the attention of the Director of DCSS.

On 3 October 2024, DCSS purportedly made a referral to the Medical Panel. Ms Nichols’ solicitors responded that the referral was invalid because it was not made within 60 days of receipt of the s.28LT documents. DCSS responded that service of the s.28LT documents had been effected only when they actually came to the attention of the Director of DCSS on 5 August 2024, with the result that the referral to the Medical Panel was made within time.

There was no communication between the solicitors who filed a Notice of Appearance for DCSS in the proceeding and Ms Nichols’ solicitors, as to whether the solicitors for DCSS were authorised to accept service of the s.28LT documents.

Primary Decision

Ms Nichols sought from the County Court a declaration that she had suffered a significant injury within ss.28LW and 28LWE(2) of the Act and that the Medical Panel referral was invalid.

On 13 February 2024, a Judge of the County Court heard and granted the application by way of ex tempore judgment. The Primary Judge did not accept that having filed a notice of appearance, the solicitors of DCSS were not retained for the purposes of accepting service of the s.28LT documents.  The Primary Judge held that by a solicitor filing a Notice of Appearance on behalf of DCSS, is notice that the solicitor can accept service for all purposes of all documents in the proceeding.

Court of Appeal Decision

DCSS sought leave to appeal the County Court decision. DCSS contended that the Primary Judge erred in determining that:

1. DCSS had been served by Ms Nichols’ solicitors email of 2 August 2024 to the address for service specified in the Notice of Appearance of DCSS (ground 1);
2. The s.28LT documents were a ‘document required or permitted to be served in a proceeding’ for the purposes of r 6.01 of the County Court Civil Procedure Rules 2018(Rules)(ground 2); and
3. By the solicitors of DCSS filing and serving a Notice of Appearance, its solicitors were retained for the purpose of accepting service of the s.28LT documents (ground 3).

Ms Nichols relied upon r 6.01 to say that ordinary service under the Rules was sufficient service of the s.28LT documents – r 6.01 provides, “any document required or permitted to be served in a proceeding may be served personally but, unless personal service is required by these Rules or by order, need not be served personally”.

The argument was that if the documents fell within r 6.01, the rule applied with the effect that ‘ordinary service’ under the Rules would suffice because there was no court order or rule requiring that they must be served personally.

DCSS submitted that the fact that a claimant may choose to serve documents under s.28LT after the commencement of a proceeding does not make the s.28LT documents, documents ‘in a proceeding’.

The Court of Appeal concluded:

1. The requirement to ‘serve’ the requisite documents under s.28LT, requires those documents to brought to the attention of the recipient, in accordance with authorities cited. Section 28LT is not concerned with service under the Rules.
2. Further, that the service of a Notice of Appearance did not have the effect in the circumstances that service of the s.28LT documents on the solicitors of DCSS, was service on DCSS.

The Court of Appeal granted DCSS leave to appeal and the appeal itself was allowed. The Orders of the Primary Judge were set aside.

Key Takeaways

This judgment maintains the distinction between the usual service of documents in a proceeding on the one hand, and service as required by the Wrongs Act in respect of specific documents which commences a process governed by statute. The Court Rules concerning service do not impact or regulate the requirements for service under s.28LT