IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
GENERAL List		

   Case No. CI-22-03959

dimche talevski 	Plaintiff	
		
v		
		
mighty moonee ponds pty ltd 	Defendant	

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JUDGE:	HER HONOUR JUDGE ENGLISH	
WHERE HELD:	Melbourne	
DATE OF HEARING:	7 February 2023	
DATE OF RULING:	9 February 2023	
CASE MAY BE CITED AS:	Dimche Talevski v Mighty Moonee Ponds Pty Ltd (Ruling)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 112		

RULING
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Legislation Cited:		Wrongs Act 1958 (Vic); Civil Procedure Act 2010 (Vic); County Court Civil Procedure Rules 2018 
Cases Cited:		Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Ko v Hall [2020] VSCA 224; Ceri v Secure Parking Management No.2 Pty Ltd & Anor [2019] VCC 640; McGrath v Estar Lighting Pty Ltd & Anor (Ruling) [2022] VCC 2247. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr P Czarnota	Maurice Blackburn	
			
For the Defendant	Mr R Kumar	Lander & Rogers 	

HER HONOUR:
Introduction
1	The plaintiff seeks a declaration pursuant to rule 23.05 of the Rules of Court that the plaintiff has a deemed significant injury within the sections 28LW(4), 28LWE(2) and 28LWE(3) of the Wrongs Act 1958 (Vic) (‘Act’). The plaintiff also seeks a declaration that the defendant’s referral to the medical panel is invalid. The plaintiff further seeks a declaration that the plaintiff is entitled to pursue a claim for damages for noneconomic loss, having satisfied the requirements of part VBA of the Act in respect of significant injury.
2	There are two narrow issues in dispute in this application. The first is whether the defendant has complied with the 60 day time limit to refer a medical question in relation to the assessment to a medical panel. The second issue is whether rule 23.05 enables the court to grant the declarative relief sought.
3	The plaintiff contends he has a deemed significant injury as the defendant failed to refer a medical question to the assessment of a medical panel within the required time being 60 days pursuant to section 28LWE (3) of the Act. 
4	The defendant contends, firstly, that rule 23.05 is not the proper process by which to seek the declaration. 
5	Secondly the defendant argues it referred a medical question to the assessment of a medical panel within the time required because it’s intention and action of sending the email, albeit to the incorrect address, was sufficient to constitute a ‘referral’ consistent with the language in section 28LWE of the Act.
Legislative provisions
6	Section 28LW of the Act provides that the respondent on whom a copy of a certificate of assessment is served must respond in writing to the claimant within 60 days after receiving the certificate and the required information.  Section 28LW (2)(b) requires the respondent to advise the claimant it intends to refer or has referred medical question in relation to the assessment to a medical panel for determination and (4) provides if the respondent fails to respond in writing under this section within 60 days, the respondent is deemed to have accepted the assessment.
7	Section 28LWE(1) of the Act provides the respondent may refer a medical question in relation to the assessment to a medical panel within 60 days. 
8	Section 28LWE(3) provides: 
‘If the respondent advises the claimant under section 28 LW, 28 LWA or 28 LWB that the respondent intends to refer a medical question in relation to the assessment to a medical panel and does not refer the question within the required time under this section, the respondent is deemed to have accepted the assessment under this division at the expiration of that required time.’
Chronology of events
9	The relevant facts do not appear to be in dispute.
10	The defendant had until 31 July 2022 to refer a medical question to a medical panel.
11	On 29 July 2022 the defendant wrote to the plaintiff confirming its intention to refer question to a medical panel and enclosed a copy of its letter of referral.
12	On 29 July 2022 at 10:53 AM and 11:52 AM two emails were sent by Ms Keely Hodgett from the defendant’s solicitors to an email address for the medical panel enclosing referral documents. The emails were sent to the incorrect email address as the letter ‘s’ had been omitted from the address.
13	After calling the medical panel on 5 August 2022, a subsequent email was sent on 5 August 2022 by Ms Hodgett to the medical panel using the correct email address. With that email Ms Hodgett forwarded the original email dated 29 July 2022 to the medical panel however the email address was altered to reflect the correct email address by adding the missing ‘s’.
14	The medical panel accepted it had received the referral on 29 July 2022.
15	Consequently there have been attempts by the defendant to require the plaintiff to attend for examination by the Medical Panel.
The plaintiff’s submissions
16	The plaintiff accepts the defendant advised him it intended to refer a medical question to the panel, so it complied with the requirement that it provided a response in accordance with Section 28LW (2)(b) of the Act.
17	The plaintiff submits that does not complete the referral process.
18	The plaintiff submitted that by reason of the errors in the email address to which the defendant purported to send the referral the defendant did not refer the medical question to the panel within time and so is deemed to have accepted the assessment pursuant to section 28LWE(1) - (3) of the Act.
19	The plaintiff referred me to Ko v Hall [2020] VSCA 224, and the majority at paragraph [48].
20	The plaintiff disputed the defendant’s position that ‘a referral was dispatched to the medical panel by email on 29 July 2022’ because it was an unsuccessful attempt to dispatch owing to the typographical error in the email address.
21	The plaintiff further submitted the defendant was on notice as the defendant’s solicitors received internal email messages that the emails sent on 29 July 2022 at 10:53 AM and 11:52 AM “couldn’t be delivered yet” and that “recipient email address is possibly incorrect”.
Rule 23.05
22	The plaintiff submitted the County Court routinely deals with relief sought under Rule 23.05 by making declarations and referred me to Her Honour Tsalamandris’ ruling in Ceri v Secure Parking Management No.2 Pty Ltd & Anor, where Her Honour made a declaration as the respondent had not responded within the 60 day time frame that the plaintiff had a significant injury and could claim for non-economic loss against the first defendant. 
23	In Edward McGrath v Estar Lighting Pty Ltd & Anor (Ruling),  Her Honour Judge Clayton found pursuant to section 28LW(4) the respondent failed to make the referral within 60 days and was deemed to have accepted the assessment.
24	In Salihbegovic v TFKM Pty Ltd (Ruling), Judge Bowman found the defendant did not take the necessary step to respond within a 14 day time period and made a finding the result was the defendant is deemed to have accepted the assessment. 
25	The plaintiff urged the issue be decided. As the defendant asserted the matter was validly referred to the Medical Panel, the referral could cause a delay which in turn could jeopardise the trial date.
26	The plaintiff also submitted the defendant had breached the overarching obligations in the Civil Procedure Act 2010 (Vic). 
The defendant’s submissions
27	The defendant submitted the deeming provision in section 28LWE (3) makes no reference to any requirement for the Medical Panel to have received the referral within the specified time. Although the referral was not received, ‘it is clear that the referral process has been commenced and therefore provisions of section 28LWE satisfied.’
28	The defendant’s submissions noted the term ‘refer’ is not defined in the Act. It submits ‘the referral was commenced and/or effected on 29 July 2022, when (paraphrased):
a)	The defendant’s solicitors prepared and signed the Referral Letter, addressed to the Convenor of Medical Panel;
b)	The Referral Letter was provided the plaintiff on 29 July 2022;
c)	The defendant’s solicitor sought, and made a bona fide attempt, to send the Referral Letter by email to the Medical Panel.
29	The defendant submitted by its intention, and actions taken in accordance with that intention, were sufficient to commence and/or effect the referral process, notwithstanding the email address to the Medical Panel contained a typographical error.
30	The defendant cited the High Court’s approval in Project Blue Sky v Australian Broadcasting Authority, of the purposive approach to statutory interpretation. It pointed to the fact there was nothing in the Act indicating a typographical error would invalidate a referral, particularly whether Part VBA does not include scope to extend the timelines. Further the word ‘refer’ in section 28LWE should not be assumed to mean service or receipt.
Rule 23.05
31	In relation to Rule 23.05, the defendant noted a declaration is a final remedy only to be made in ‘rare or special circumstances...other than at a final hearing.’ It submits the ‘controversy’ was not raised on the pleadings. 
32	Further, the determination of the relief sought will not end the litigation. An order is ‘generally only appropriate where the determination will be likely to end the litigation or substantially narrow the issues in dispute or where there is a clear demarcation between the issue and other issues in the trial.’
33	Finally, the defendant pointed to the Convenor’s Directions as to the Procedures of Medical Panels, which provide ‘Notwithstanding a respondent’s entitlement to make a referral is disputed by the claimant…the Convenor may procced to convene a Panel to determine the medical question.’
Analysis
The first question is did the referral take place within the 60 day time limit? 
34	There is agreement between the parties that the respondent complied with section 28LW(2)(b) and advised the claimant the respondent intends to refer or has referred a medical question in relation to the assessment to a Medical Panel for determination under this Part. The defendant complied with section 28LW(2)(b) in respect of responding to the claimant. That email was successfully sent at 10.47 on 29 July 2022. 
35	Both parties agreed the referral of the question to the Medical Panel was required by 31 July 2022.
36	The Medical Panel did not receive the email referring the question until 5 August 2022.
37	The defendant argues that by having the intention to refer, combined with the act of emailing, on 29 July 2022, albeit to the incorrect email address, the referral was commenced and/or effected.
38	The most recent relevant authority on this subject is the Court of Appeal in Ko v Hall and the majority stated at [48]: 
‘The provision for the referral of a medical question likewise imposes a limit on the respondent, with specified consequences for non-compliance…If, having advised the claimant that it intends to refer such a question, the respondent does not make the referral in the specified time, it is deemed to have accepted the assessment at the expiration of that time.’
39	And at [49]: 
‘The legislative purpose expressed in these provisions is clear. Delay by a respondent in the completion of the various procedural steps will not be allowed to prejudice a claimant. The statute seeks to ensure strict compliance with the various time limits by providing for automatic consequences for non-compliance.’
40	In distinguishing between the effect of times limits on respondents and time limits for the Medical Panel, the Court stated at [57]: 
‘The time limit provisions applicable to a respondent demonstrates in the clearest terms that, where the legislature intended that there should be automatic consequences of non-compliance with a time limit, those consequences were specified.’
41	Whilst there is no dispute between the parties about the time limit of 60 days, the issue is whether there has been non-compliance, given the defendant’s submissions on what the word ‘refer’ means.
42	I reject the defendant’s argument regarding the meaning of ‘refer’ for the following reasons.
43	Firstly, although the word ‘refer’ is not defined, the submission urged by the defendant  seeks to impose an interpretation of ‘refer’ whereby if the respondent has the intention and an action, ie, emailing, takes place, then the matter is referred, regardless of the effect of the action. I am not of the view that intention and action regardless of consequence satisfies the meaning of ‘refer.’
44	Secondly it submits the intention and action has the result of commencing and/or effecting the referral. This imports a sequence to the act of referral that it can be effected by being commenced.
45	The logical conclusion of both these arguments is to import doubt and uncertainty as to when a question is referred. To refer is to send it to the recipient and responsibility is with the respondent to send it, in this case, to the correct address. ‘Refer’ is a verb and in this legislative context requires both the act and the effect.
46	The Court of Appeal has made it clear the legislation imposes automatic consequences for non-compliance with a time limit. To have a referral effected but not received by the medical panel or effected by commencing the process is contrary to the clear and ordinary meaning of the word and the intention of the legislation.
47	I am satisfied the defendant did not refer the question within the required time under section 28LWE.
48	I propose to grant the declaratory relief sought by the plaintiff.
Rule 23.05
49	The declaration power gives the court wide discretion to grant relief. I am satisfied it  has been used by other judges of this court in similar cases, such as Ceri. This is a clear case, it is not a case involving a hypothetical question, and in my view I accept there are circumstances which call for its making.
50	I do not accept the defendant’s submission the controversy was not raised in pleadings when the plaintiff has claimed for non-economic loss. Nor that a decision should be delayed and be the subject of a separate trial of question.
51	This issue has been fully ventilated now following the defendant’s successful application for adjournment from 14 December 2022 and dealing with the matter avoids duplication of argument. The matter to be decided is here and now before the court.
52	The declaration will clarify the issues in dispute at trial and save time and cost.
53	I am also satisfied given the history of attempts to require the plaintiff to attend the Medical Panel, justice to the plaintiff requires this declaration.
54	Further the declaration clarifies for the Medical Panel the plaintiff has a deemed significant injury within the meaning of section 28LW(4), section 28LWE(2) and section 28LWE(3) of the Act.
Orders
55	The plaintiff has set out the orders sought.
56	In the interests of economy and clarity I intend to make a declaration to give effect to 1(a) and (b) of the plaintiff’s summons. I am of the view the proposed (c) is redundant given (a).
57	I do not propose to make an order under section 29 Civil Procedure Act 2010 (Vic). Needless to say the facts as I have outlined them in this Ruling reflect the actions of the defendant’s solicitors.
58	I order costs for the plaintiff.
59	If the parties could provide a written draft of orders.