Maroney v Qantas Airways Limited [2012] QDC 68

Issue:

The applicant/plaintiff sought to vary the terms of an order previously made under s.282 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) for a medical examination.

The variation was sought by way of oral application (UCPR 287) under the “liberty to apply” provision of the order. There was some contest as to what this included and whether it could include an order that:

(i) the defendant supply the name of another spinal surgeon to replace the one already engaged and allow the plaintiff to make a new selection; and

(ii) the letter of instruction should follow a draft supplied by the plaintiff.

Devereaux SC DCJ

 

[7] In Fylas, McPherson SPJ[2], discussing the rule that a final judgment given after a contested hearing cannot be set aside or varied except in strictly prescribed circumstances,[3] said,

‘”Liberty to apply” is sometimes said to be a further exception. It is, however, not a true exception at all, because a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by “working out” the terms of an order is considered in some of the cases on the point.’

[8] One such case demonstrated the distinction between “working out” the order and varying an order. In Cristel v Cristel [1951] 2 KB 725, an order, made by consent, that a husband obtain alternative accommodation for his wife and children in the form of “a house or bungalow” could not be varied, under the provision for liberty to apply, by adding the words “or flat”. On the other hand, an application under the provision for liberty to apply would enable the court to consider a dispute about whether particular accommodation offered was suitable. It seems to me that the orders sought by the plaintiff are more like the latter than the former. The review of the instructing letter to the surgeon and the making of orders required to put the earlier orders into effect were contemplated by the provision for liberty to apply.

[9] In any case, McPherson SPJ distinguished the position of orders “that are truly interlocutory”[4] but his Honour concluded the order under consideration in Fylas was not susceptible to variation because it embodied the agreement of the parties. Indeed, it was ‘little more than a public record of an agreement reached out of court by parties to it.’[5]

[10] The majority in Alford v Ebbage [2002] QCA 194 did not agree with this part of the reasons of McPherson SPJ. Fryberg and Wilson JJ in Alford, and Chesterman J in Milglade Pty Ltd & Anor v Harrison & Ors [2008] QSC 359, all expressed the view that when an order is interlocutory in nature there is power to vary it even if it embodied undertakings of the parties.

[11] Martin J, in Perpetual Trustees Queensland Ltd v Thompson [2011] QSC 48, drawing principles from the analysis of authorities undertaken by Campbell JA in Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201, said at [29],

“….What can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made.”

[12] Martin J also noticed the remarks of Campbell JA that a reservation of liberty to apply ‘needs to be understood in the context of the particular practices and procedures that this court has now.’ In Queensland, this prompts one to consider the present application with reference to r 5 of the UCPR.[6]

[13] I am satisfied there is power to hear the application under the provision for liberty to apply. The earlier orders, including that the parties have liberty to apply, contemplated the potential need for further supervision of the carrying out of the orders. As things eventuated, supervision was required, the application being based on the assertion that the letter written to the proposed examining doctor went outside the terms of the orders. The application made was within the contemplation of the orders.

[17] The defendant, by the letter sent to the selected doctor, sought a wider investigation than was permitted under the earlier orders, namely to ascertain the level of impairment if any of the plaintiff’s spine and symptoms related thereto and any restrictions on future employment therefrom. It invited the doctor to comment on “not only what the claimant discloses to you … but also upon the records that have been provided to you demonstrating the prior and subsequent history of neck complaints.” The defendant also asks the doctor to consider whether the (asserted) cervical spine condition is “a more significant cause of symptoms, impairment or occupational restriction than the shoulder condition”.

[18] There are other problems with the letter. It asserts that the plaintiff suffers from a cervical spine condition, which is the fact in dispute. For example, the doctor is asked to give an opinion addressing whether “the extent of the pre-existing cervical spine condition [is] such that the claimant is likely to have future symptoms from that condition”.

[19] The letter is also designed to cast the complainant as an unreliable historian. It includes several statements like the following:

“Your examination has become necessary because previous medical assessments were compromised by the claimant’s failure to tell the doctors about the motor vehicle accident.”

“Please comment not only on what the claimant discloses to you (as it is now in her interests to minimize these symptoms)…”

[20] Because the letter also contained strong statements critical of the plaintiff’s credibility, it is not sufficient that the same doctor be simply recommissioned with a new letter of instruction. It will be ultimately more efficient, given the combative attitudes of the parties, to start again with a new doctor.

[21] Without purporting to “supervise the defendant’s preparation for trial”, I suggest it would be unproductive to include any evaluative statements regarding the plaintiff’s reliability as a historian in a letter instructing the expert, whether by reference to the statements of other doctors, my reasons for the earlier orders or the defendant’s solicitors’ own views of the plaintiff. The plaintiff argues that the defendant should not include certain reports of other doctors in materials to be sent to the spinal surgeon. The plaintiff presents a draft letter for the defendant’s use. There is, with respect, much to commend the letter but it is unnecessary for me to attempt to regulate the correspondence further. The earlier orders set the parameters for the further investigation. Anything short of great care and precision in the crafting of instructions to the expert will surely create the material for more, not less, dispute between the parties. That would not conform to the philosophy of the UCPR.

[22] The order will be the defendant is to supply the name of another spinal surgeon to replace that of Dr Licina and the plaintiff is allowed to make a new selection from the list.

Brisbane Barrister – David Cormack

 

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