By Stuart Eustice, Partner

Does a medical panel’s determination issued out of time make it invalid? Not anymore

On 4 September 2020, the Victorian Court of Appeal handed down its decision in Lee Mee Ko v Dr Hall & Ors [2020] VSCA 224 which considers two issues:

• whether the time limit prescribed by s 28LZG(3) of the Wrongs Act 1958 (Vic) (the Act) for a medical panel to give its determination or certificate is a condition of its jurisdiction; and
• whether parties to the proceeding can give consent to extend the medical panel’s deadline after that time period has already expired.

Factual Background

In 2017 Lee Mee Ko commenced proceedings against Mr Dean White for personal injuries suffered as a result of alleged negligent surgery. Ms Ko was referred to a medical panel to determine whether her injuries satisfied the threshold level under Part VBA the Act being a permanent whole person impairment of more than 5 per cent.

Section 28LZG(3) of the Act required the medical panel to provide its certificate or determination within 30 days or a longer period as agreed by the parties. Ms Ko was examined on 8 March 2019 and the determination was originally due on 7 April 2019.

On 5 April 2019, the medical panel requested, and the parties agreed, to an extension of time to 22 April 2019. The medical panel did not meet this deadline.

On 16 May 2019, the medical panel requested, and the parties agree to, a further extension of time until 30 May 2019. The Certificate of Determination was subsequently issued on 20 May 2019.

Lee Mee Ko v Dr Caroline Hall & Ors [2020] VSCA 224

Ms Ko commenced proceedings against the medical panel and Dr White for judicial review of the medical panel’s decision on the basis that the panel committed an error of law on the fact of the record, and/or jurisdictional error by failing to comply with the time period specified in section 28LZG(3) of the Act. Ms Ko argued that proper interpretation of section 28LZG(3) made the panel’s decision invalid.

Central to the parties’ arguments was whether Mikham v Royal Victorian Aero Club [2012] VSC 42 had to be followed. In Mikham, Kaye J found that the time limit prescribed under section 28LZG(3)(a) was a condition of the jurisdiction of a medical panel to give a determination. His honour’s decision had stood unchallenged until this case.

The majority in this case (Maxwell P, Beach JA) rejected Kaye J’s reasoning in Mikham, preferring to find there was no legislative intention that missing the deadline would invalidate a panel’s determination. Importantly, the majority pointed to a number of factors to support their finding:

1. There are specific consequences for missing deadlines in other parts of the Act, for example, if a respondent fails to provide documents within 30 days of a request under section 28LZA(1), the respondent is deemed to have accepted the assessment. Section 28LZG however, provides no consequences if the time limit is not met.
2. The fact that the deadline was easily varied (by consent of the parties).
3. Obvious public inconvenience if failure to comply with a time limit invalidated all the previous steps taken.
4. After a time limit has expired, an application can be made to compel the panel to give its determination.
5. Whether the panel complies with the time limit is outside the control of the parties affected by the decision. It would be unjust for the parties to incur costs due to the failure by a third party (the panel) to meet its obligations.

The majority therefore also concluded the parties could consent to an extension regardless of whether a deadline had been missed.

McLeish JA, dissenting, agreed with the majority that the parties could consent to an extension however preferred to find that if a medical panel failed to comply with the time period prescribed by s 28LZG(3), it lost its jurisdiction to do so. McLeish JA agreed with the principles of statutory interpretation applied by the majority however concluded the inclusion of s 28LZG(3)(b) (allowing the parties to consent to an extension) showed the legislature’s intention that missing the deadline would invalidate a panel’s determination.

Conclusion

The decision in Lee Mee Ko v Dr Hall & Ors [2020] VSCA 224 confirms that parties are free to consent to extensions of time for medical panel determinations, regardless of whether a deadline has been missed.

The decision overturns Mikhman to conclude that missing a deadline will not automatically invalidate a panel’s determination/certificate.