Plaintiff v Defendants

1 On 4 June 2010 I published reasons for judgment in this matter, reserving liberty to the parties to make further submissions on certain outstanding issues and deferring the making of any substantive orders.[1]

2 Having heard the parties further on 4, 10 and 16 June 2010, I made orders on 16 June 2010 dismissing the proceeding and requiring the plaintiff employer (Chubb Security Australia Pty Ltd) to pay the costs of the fourth defendant worker (Mr Adrian Andrighetto). I gave brief oral reasons for those orders and indicated that I would publish written reasons in due course. I now do so.

3 This proceeding was commenced by originating motion, accompanied by a summons on originating motion. The employer's principal claim in the originating motion was for an order in the nature of certiorari quashing the Medical Panel's opinion on the ground of jurisdictional error or error of law on the face of the record, together with an order in the nature of mandamus remitting the medical questions in respect of which the certified opinion was given to a differently constituted panel to be reconsidered in accordance with law. To this extent, at least, the proceeding was necessarily brought pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. The originating motion also included, in the alternative, a claim for "an order pursuant to ss 8(4) of the Administrative Law Act 1978 that the Medical Panel furnish a further statement of its reasons".

4 In my reasons for judgment of 4 June 2010 I rejected the employer's principal claim. As to the alternative claim, I raised the question (among others) whether the employer had any right to seek an order for further reasons under s 8(4) of the Administrative Law Act 1978 ("the ALA") in circumstances where the employer had apparently not made any request for reasons before the issuing of the decision nor within the subsequent period of 30 days referred to in s 8(2) of the ALA. The employer confirmed in due course that it wished to press its claim for an order for a further statement of reasons; and the worker indicated that he would oppose that claim on the basis (among others) that the employer had failed to make a request for such a statement within time.

5 Ultimately I upheld the worker's submissions on this point, and the proceeding fell to be dismissed accordingly. It was unnecessary to arrive at any final conclusions on the other issues and points raised, and I did not do so.

6 Section 8 of the ALA reads:

"8 Reasons for decision to be furnished by tribunal on request by party concerned

(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.

(3) The statement of reasons shall be in writing and furnished within a reasonable time.

(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.

(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned.

(6) Nothing in this section applies to the Victorian Civil and Administrative Tribunal or the Business Licensing Authority."

7 The terms "decision", "person affected" and "tribunal" are all defined in s 2 of the Act, to wit:

"decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;

person affected in relation to a decision, means a person whether or not a party to proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal;

tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice."

8 Sections 3, 4(1) and 10 of the ALA should be noted as well:

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

(1) An application for review shall be made ex parte not later than thirty days after the giving of notification of the decision or the reasons therefore (whichever is the later) supported by evidence on affidavit showing a prima facie case for relief under section 7.

...

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record."

9 In paragraph 12 of my reasons for judgment of 4 June 2010 I observed that the operations of the medical panel were governed by the current provisions set out in Division 3 of Part III of the Accident Compensation Act 1985 ("the ACA"). By way of clarification, the relevant provisions were the provisions in force at the time of the panel's involvement, namely in the period beginning with the referral to the panel on 15 December 2008 and ending with the unanswered letter from the panel to the employer's solicitors dated 5 May 2009. Certain amendments to those provisions were made, as from 5 April 2010, by the Accident Compensation Amendment Act 2010 (No 9 of 2010). Included were amendments to ss 68(2) and (3) of the ACA whereby each panel is now required to give with its opinion "a written statement of reasons for that opinion". However it was common ground that none of the amendments made by the amending Act of 2010 was applicable in this case.[2]

10 It was also common ground that the employer did not make any request for reasons, either pursuant to s 8 of the ALA or otherwise, either before the giving or notification of the panel's opinion or within the period of 30 days after the opinion came to the employer's knowledge: compare s 8(2) of the ALA. This was common ground despite faint references by the employer's counsel to the proposition that at the relevant time medical panels routinely or at least frequently produced contemporaneous statements of reasons without being requested by anyone to do so.

11 On the other hand the employer did argue that the fact that the panel had voluntarily given to the employer a written statement of reasons (together with its certified opinion) made all the difference in this case.

12 The employer argued that it was not confined by the time limits in s 8(2) because it was not seeking an initial statement of reasons but rather a further statement of reasons, in circumstances where it had alleged (and the Court had found) that the initial (voluntary) statement of reasons was "not adequate to enable a Court to see whether the decision does or does not involve any error of law". According to the employer, this opened the way directly to s 8(4), bypassing s 8(2). Subsection 8(4) should be read, the employer argued, in a "broad and enabling way" in order to provide a remedy in a case like the present, ie where an initial, but inadequate, statement of reasons has been provided voluntarily. According to the employer, the only time limit in such a case is that the application to the Court should be made within a reasonable time. A construction along these lines should be adopted, the employer argued, because otherwise a tribunal could frustrate the general intention of s 8: the tribunal could issue a voluntary but inadequate statement of reasons for a decision and thereby prevent anyone from ever making a request under ss 8(1) and (2) or an application under s 8(4) in respect of the decision.

14 Subsection 8(4) does not stand alone. It is part of an integrated set of subsections, which in turn use the defined expressions referred to above. It builds on what goes before it.

15 Thus, under s 8(1), any "person affected" by a "decision" of a "tribunal" may request the tribunal to "furnish" him with a statement of reasons for the decision. Important conditions are imposed by s 8(2). The request "must" be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of "the person making the request" (and in any event not later than ninety days after the giving or notification of the decision). The reference to "the person making the request" is plainly a reference to the particular "person affected" who has made a request pursuant to s 8(1). Subsection 8(3) provides that "the" statement of reasons shall be in writing and "furnished" within a reasonable time. Then, s 8(4) provides that the Supreme Court, upon being satisfied by "the person making the request" that a reasonable time has elapsed without any "such" statement of reasons for the decision having been "furnished" or that the only statement "furnished" is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to "furnish" a statement or further statement of its reasons.

16 An application to the Supreme Court under s 8(4) can only be made by "the person making the request". In context, that must mean a "person affected" who has made to a "tribunal" a request pursuant to s 8(1) that complies with s 8(2), in respect of a "decision" of the tribunal. Otherwise the specific limitations imposed by s 8(1) and (2) would count for nothing. Further, the definite article ("The") is used in s 8(3), indicating an intention to refer to the requested statement of reasons. Further again, in using the word "furnished", s 8(3) refers back to the obligation of the tribunal under s 8(1) to "furnish" a statement of reasons upon proper request. Correspondingly, the reference in s 8(4) to any "such" statement of reasons must be a reference to a statement which by virtue of ss 8(1), (2) and (3) was required to be furnished in writing within a reasonable time to "the person making the request". This is confirmed by the repeated use of the word "furnished" in s 8(4) itself.

17 The requirements of s 8(2) are mandatory.[3] Accordingly, compliance with them is a pre-condition for a person to have standing to apply to the Supreme Court under s 8(4).

18 The position is the same whether or not the tribunal has issued a voluntary statement of reasons. An application under s 8(4) is an application for the enforcement of a statutory obligation; and, in a case like the present, no relevant statutory obligation arises unless and until a valid, timely request is made pursuant to ss 8(1) and (2). The clear distinction between a statement produced voluntarily and a statement produced in response to a request under s 8 is recognised in the language of s 10 (see above).

19 It is not the case that a tribunal could (deliberately or otherwise) frustrate the general intention of s 8 by issuing a voluntary but inadequate statement of reasons. The issuing of a voluntary statement of reasons (whether oral or written, adequate or inadequate) has no impact on the ability of a "person affected" by the tribunal's decision to make an effective request pursuant to ss 8(1) and (2) of the ALA for a statement of reasons. Such a request would still give rise (for the first time) to a statutory obligation on the tribunal to furnish a (written) statement of reasons (and to do so within a reasonable time).[4] If the tribunal believed that a voluntary written statement of reasons previously furnished by it to the person now making the request was adequate in all respects, the tribunal might legitimately indicate its view in that regard to the person and invite the person to accept the prior statement as satisfying the person's request. But the tribunal could not simply ignore the request. Nor would the person in question be obliged to accept the prior voluntary statement in lieu of a fresh statement. He or she could insist on a fresh statement, whether or not the person considered the prior voluntary statement of reasons to be adequate as a statement of the tribunal's reasons. Of course, if the person considered the prior voluntary statement to be inadequate, the person might be expected to say so and to insist all the more on a fresh statement of reasons. The fresh statement of reasons might prove to be nothing more than a photocopy of the original, voluntary statement of reasons, adopted by the tribunal as its response to the request. But the fact remains that, as long as the applicable time limit in s 8(2) has not expired, an effective request can be made under ss 8(1) and (2) even if the tribunal has already issued a voluntary statement of reasons. Contrary to a tentative submission made by the employer, I can see nothing in paragraph 23 of the judgment of Kyrou J in Sherlock v Lloyd[5] to indicate that his Honour took a different view on this point.

20 The employer's argument suffered from an additional flaw. The employer contended that a party in its position could bring an application under s 8(4) within a "reasonable" time. However, if applications under s 8(4) are not confined by reference to the provisions of ss 8(1) and (2), then they are not expressly confined as to time at all. The reference in s 8(4) to the elapsing of a "reasonable" time without any "such" statement of reasons having been furnished is plainly a reference to the elapsing of a reasonable time since the making of the request. It is not a reference to a reasonable time since the making of the decision or a reasonable time from any other starting point. Hence, for the employer's argument to succeed, a "reasonable time" limitation would have to be read into s 8(4), whilst the reference to "the person making the request" would have to be read out of it.

21 To accept the employer's arguments would be to re-write s 8, not to interpret it. Those arguments cannot be accepted.

22 In passing, I would record that at the hearing on 16 June 2010 the worker put forward a separate, procedural argument against the granting of relief to the employer under s 8(4). The worker contended that an application under s 8(4) could not be combined with a claim for relief in the nature of certiorari or mandamus in a proceeding brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. He contended that a claim for an order under s 8(4) could only be made as, or as part of, an "application" pursuant to ss 3 and 4(1) of the ALA.

23 Without finally deciding the matter, I indicated to counsel for the worker my strong inclination not to accept those contentions. It is true that in Keller v Bayside City Council[6] Batt J held that a proposed claim for a declaration under s 36 of the Supreme Court Act 1986 or r 23.05 of Chapter I of the Rules of Court could not be joined in the then existing order nisi for review under the ALA, because "the latter type of proceeding is quite special"; and Batt J further indicated that a proposed proceeding under Order 56 could only be brought separately and independently from the existing order nisi proceeding. However, Batt J was not dealing with a case like the present. His Honour was dealing with a proceeding commenced under the ALA for the substantive review of a decision of an alleged tribunal. By virtue of ss 3 and 4(1) of the ALA and rr 1.12(2), 77.01(2)(a)(ii) and 77.03 of Chapter I of the Rules of Court, such a proceeding must be commenced by the making, ex parte, of an oral application to an Associate Justice. However there seems to be nothing in the ALA or in the Rules of Court or in Keller to indicate that an application for an order under s 8(4) of the ALA for the furnishing of a statement or further statement of reasons must (or should) be brought in the same way as an application under the ALA for an order nisi to review. Rather, s 8(4) would appear to be just another example of a case within r 4.05(b) of Chapter I of the Rules of Court, namely a case "where by or under any Act an application is authorised to be made to the Court", such that the proceeding should be commenced by originating motion. The present case was indeed commenced by originating motion, albeit an originating motion brought under Order 56 of the Chapter I of the Rules, at least insofar as it sought substantive relief.[7]

24 However, because of my conclusion that the employer is out of time, I did not need to decide, and have not decided, the procedural point. If in future the same procedural path is taken in a case in which a request for reasons was duly made within time, a question may arise as to whether the challenge to the adequacy of the reasons should not be heard and determined first, before any attention is given to the substantive challenge. For, otherwise, the prospect will arise of a challenger being allowed two substantive attacks on the same decision, and even on the selfsame grounds each time. Again, however, I should not be taken to have arrived at any concluded view on that point.

25 Once I announced my conclusion on the time point, the employer did not resist an order that the proceeding be dismissed, with costs in favour of the worker. Orders to that effect were made accordingly.

[1] Chubb Security Australia Pty Ltd v Kotzman & Ors [2010] VSC 242. See especially at [52]-[56].

[2] These amendments were drawn to my attention by counsel for the employer at the hearing on 16 June 2010. Counsel observed in doing so that the amendments would presumably have the effect that hereafter opinions of medical panels could be attacked substantively for failure to give reasons or adequate reasons. In that regard counsel mentioned Campbelltown City Council v Vegas [2006] NSWCA 284; (2006) 67 NSWLR 372, a case distinguished by the Court of Appeal in Sherlock v Lloyd [2010] VSCA 122. However that is a matter that remains to be seen: cf _Re Minister for Immigration and Immigration and Multicultural and Indigenous Affairs v Palm_e [2003] HCA 56; [2003] 216 CLR 212, esp at [41], [48], [55]-[58].

[3] Keller v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356 (Batt J) at 370. The general tenor of the judgments of the members of the Court of Appeal in Kuek v Victorian Legal Aid [1999] VSCA 44; [1999] 2 VR 331 is at least consistent with this ruling of Batt J in Keller: see [1999] VSCA 44; [1999] 2 VR 331 at [1], [8]-[10], [13], [22], [23].

[4] See Vegco Pty Ltd v Gibbons [2008] VSC 363 (Kyrou J) at [15].

[5] [2008] VSC 450.

[6] [1996] VicRp 23; [1996] 1 VR 356 at 383.

[7] The observations in paragraphs [34] and [53] of my judgment in Chubb Security Australia Pty Ltd v Kotzman & Ors [2010] VSC 242 should be read subject to the observations in this paragraph.