Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dariverenli v South Eastern Sydney Local Health District [2019] NSWCA 129 Hearing dates: On the papers Date of orders: 31 May 2019 Decision date: 31 May 2019 Before: Bell P and Leeming JA Decision: Application for leave to appeal dismissed with costs. Catchwords: APPEALS – application for leave to appeal from decisions of practice and procedure – no error of principle identified in primary judge's exercise of discretion Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Workers Compensation Act 1987 (NSW), s 66 Workers Compensation Regulations 2016 (NSW), reg 44 Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 In the matter of the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 Category: Principal judgment Parties: Mehmet Dariverenli (Applicant) South Eastern Sydney Local Health District (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: D Stanton (First Respondent) Solicitors: Benefit Legal Lawyers (Applicant) HWL Ebsworth Lawyers (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2019/102344 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 6 March 2019; 14 March 2019 Before: Weber DCJ File Number(s): 2017/278514 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: By summons filed on 2 April 2019, the Applicant seeks leave to appeal from two interlocutory decisions of Weber SC DCJ made in the course of a hearing which commenced in the District Court in early March of this year in which the Applicant seeks damages for personal injury, alleging that his employer breached its common law duty to provide a safe system of work. The Applicant had previously obtained compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) in an arbitration award delivered in 2015. 2. The two relevant orders which, by reference to the Applicant's summary of argument, are challenged both pertain to matters which are quintessentially matters of practice and procedure. These are: 1. the primary judge's refusal to sever the trial by ordering as a separate question a preliminary issue as to whether or not an issue estoppel arose from the 2015 arbitration award; and 2. the primary judge's decision to order that the Applicant attend a medical examination. 1. Neither the summons seeking leave to appeal nor the draft notice of appeal is in particularly satisfactory form. The appeal grounds are stated in the form of submissions and at least one of the orders sought in the draft notice of appeal seeks relief in a final form despite the fact, as already noted, that the orders of Weber DCJ which are the subject of challenge were interlocutory in nature and were delivered in the course of a trial that was underway at the time they were made, and which currently stands adjourned. Separate trial 1. As to the application for a separate trial, Weber DCJ referred to the well-known observations of Kirby and Callinan JJ in their joint judgment in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 (Tepko) at [168]-[170] and expressed the conclusion – which was open to him and fully supported by detailed written submissions filed on behalf of the First Respondent in opposition to the proposed separate question – that he was far from satisfied that it was "beyond question" (the language used in Tepko) that there would be utility, economy and fairness in making an order for a separate question. 2. In his reply submissions in this Court, the Applicant notes that Tepko involved an application to separate liability and damages. That fact does not confine the significance of what was said in that case about the risks and potential inefficiency of separate questions to such cases. 3. The Applicant also submits that Tepko was decided prior to the commencement of the Civil Procedure Act 2005 (NSW) and s 56 of that Act, in particular. To the extent that the Applicant submits that Tepko is in some way qualified by the need to consider what is "just, quick and cheap", the central point of the reasoning of Kirby and Callinan JJ in Tepko was that ordering a separate trial will often result in an entirely false economy, and be productive of greater cost and a less efficient disposition of proceedings. Their Honours said at [168]: "The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap." 1. The Applicant accepts that the primary judge's decision whether or not to order a separate question was discretionary. He points to no error of principle in the primary judge's exercise of discretion in respect of his decision. 2. In addition, the decision was one of practice and procedure and this Court's approach to the grant of leave to appeal in respect of such matters is necessarily informed by the observations of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39. There the Court (at 177) remarked upon the caution required of appellate courts in reviewing decisions pertaining to practice and procedure, and endorsed Sir Frederick Jordan's concern in In the matter of the Will of F.B. Gilbert (dec) (1946) 46 SR (NSW) 318 (at 323) to keep a "tight rein" upon interference with first instance exercises of discretion on points of practice and procedure. 3. It is also pertinent that the decision under challenge does not deprive the Applicant of his issue estoppel argument. It simply means that it will fall to be decided in the course of the trial. 4. No case for leave on this ground has been made out. Medical examination 1. In relation to the challenge to the primary judge's order directing the Applicant to attend a further medical appointment, again this was quintessentially a matter of practice and procedure falling within the primary judge's discretion. Significant hurdles lie in the Applicant's way in challenging such a decision. 2. It was submitted on the Applicant's behalf that he has been seen by two psychiatrists and three psychologists at the direction of the First Respondent and that it is now proposed that the Applicant be examined by a further medical specialist in the same area of expertise. The Applicant submits that compelling him to attend a further medical specialist in the same area of specialty as doctors who have previously qualified is contrary to reg 44 of the Workers Compensation Regulations 2016 (NSW) (Workers Compensation Regulations). 3. Regulation 44(1) of the Workers Compensation Regulations relevantly provides: "In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings." 1. In response to the Applicant's submission in relation to reg 44 (and which is more correctly described as an assertion than a submission because it was not supported by any written argument), the First Respondent submitted that the primary judge did not act contrary to reg 44 for the following reasons: "(a) A review of the final regulations within Part 9 reveal that they are all directed at proceedings in the Worker's Compensation Commission and not at a Common Law claim for damages. Accordingly, the regulations within Part 9 should properly be considered not to apply to a claim for damages in the District Court. (b) Regulation 43 defines a claim to mean a claim for compensation payable or claim to be payable under the 1987 Act. Such a reference is a reference to a claim for worker's compensation benefits under the 1987 Act. The Worker's Compensation Legislation makes a distinction between a claim for compensation under the 1987 Act and Common Law remedies; (c) Regulation 44(1) limits its operation to a specific type of claim, namely: - (i) a claim for statutory compensation benefits under the 1987 Act (by reason of the definition in Regulation 43); or (ii) a work injury damages threshold dispute (defined by Regulation 43 to have the same meaning under s 314 of the 1998 Act - This section defines a threshold dispute as to whether the degree of permanent impairment of an injured worker resulting from the injury is at least 15% or whether the degree of permanent impairment is fully ascertainable); (d) The proceedings brought by the Applicant in the District Court do not fall within either of the above types of claims referred to by Regulation 44(1). (e) The restriction on one forensic medical report referred to in Regulation 44(1) is by Regulation 44(4)(a) limited to a medical report in respect of 'the claim or dispute'. That is a reference to a claim for compensation (or a work injury damages threshold dispute). By Regulation 44(4)(c), the restriction in 44(1) does not apply 'in respect of another claim or dispute'. The inclusion of Regulation 44(4) contemplates the right to seek a report from a different specialist medical practitioner in respect of a different claim or dispute to the first. The claim advanced by the Applicant in the District Court represents a claim for Common Law damages and is properly considered another claim or dispute (in the event that contrary to these submissions, the phrase 'claim' is determined to include a claim for Common Law damages). (f) Regulation 45(1)(d) permits a further medical report if it is obtained for the purpose of addressing an opinion in the other party's case. That is certainly the case here. Furthermore, Regulation 45(3) contemplates that a medical report from another medical practitioner of the same specialty may be obtained when the medical practitioner has ceased (permanently or temporarily) to practice in the specialty concerned. Both Mr McMahon and Ms Moodley have temporarily ceased to practice in the specialty concerned in terms of their refusal to re-examine the Applicant." (Footnote omitted) 1. Although the Applicant filed detailed reply submissions, none of them related to the medical examination issues or sought to reply to the Respondent's submissions in relation to reg 44. 2. Regulation 44 of the Workers Compensation Regulations does not, in our opinion, have any operation on the facts of the present case so as to preclude or stand in the way of the order of the kind made by the primary judge. That order involved a matter of practice and procedure and we do not think it appropriate to interfere with it. Conclusion 1. The application for leave to appeal involves no question of principle or of public importance, and no error of law has been exposed. Both decisions involved an exercise of discretion on procedural rulings and no cogent reason has been advanced to suggest that the learned primary judge's discretion miscarried. 2. The application for leave should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2019