Plaintiff v Defendants

2 In essence, (and here I shall borrow directly from the allegations in the originating motion) the plaintiff was born on 25 January 2000 and was diagnosed with moderate to severe autism spectrum disorder in March 2003. From October 2007 to April 2008 the plaintiff ingested lead-based paint while a primary school student at Seaford Primary School. He was picking at paint on a school building and eating the peelings. He was diagnosed with lead poisoning and successfully completed chelation therapy in 2008 to reduce his blood lead levels. After a statutory examination of the plaintiff on a referral by the State, the panel determined that the degree of whole person impairment resulting from the physical injury and psychiatric injury did not satisfy the threshold level.

3 As originally composed, the originating motion sought relief in the nature of certiorari to quash the decision of the Panel on the ground that the plaintiff was denied natural justice. The plaintiff contended that findings that were critical to the opinion were made without giving his parents, Rosemary and Darren Vinton, an opportunity to comment or provide information concerning his behavioural issues, sleep disorders and the development of a stutter.

4 The motion was subsequently amended by leave of the Court in September this year. The plaintiff added a primary contention that the Panel failed to comply with a 30 day time limit under s 28LZG (3) of the Wrongs Act. I shall avoid reference to that provision. It is enough to say that the time limit prescribed by that section of the Act has been held by this Court to be a condition of the panel's jurisdiction to give a determination: see Mikhman v Royal Victorian Aero Club.[1] There is no dispute that the 30 day time limit had expired, and there had been no agreement by the parties for a longer period.

5 The matter was fixed for trial for 10 November 2014. On 13 October 2014, the parties submitted a Joint Memorandum seeking a consent order to set aside the panel's determination on the ground that the non-compliance with the time limit under the Act meant the determination was beyond the power of the panel and therefore should be set aside. On 3 November 2014, I made orders by consent to that effect, and an ancillary order requiring the State to pay the plaintiff's costs of the proceeding. Subsequently, the State sought an order for an indemnity certificate in respect of its costs under s 4 of the Appeal Costs Act. Under that section, "If an appeal against a decision of a court...succeeds, a respondent to that appeal may apply to the Supreme Court for...an indemnity certificate...". Section 3 defines appeal to include "any proceeding in the nature of an appeal" and court is defined to include "any tribunal or other body... from whose decision there is an appeal to a superior court on a question of law...".

6 The Court invited the State's submissions on two questions. First, is an application for judicial review under Order 56 an appeal within the meaning of the Act? Secondly, is the Panel a "court" as defined?

7 Applications for judicial review of a Medical Panel determination are not uncommon. With the assistance of Mr Knowles of counsel for the State, the Court is able to conclude that an adherence to the few decisions on the matter means yes to both questions. I have made an order granting a certificate. There is hesitation in one authority about the question ― which I have had too ― and it is just as well I survey the cases if it may be of assistance in practice in future applications.

8 Whilst they may overlap, an appeal is distinguishable from judicial review.[2] But the definition of appeal in the Act includes any proceeding in the nature of an appeal. To my mind that suggests something that might not strictly be regarded as an appeal; that is, a procedure for the correction of error. In Ozkan v Leitch,[3] the question appears to have been alive in a case involving the Medical Panel. Kaye J said he was persuaded that an appeal from a panel's opinion was an appeal for the purposes of s 4 of the Act and also persuaded that the panel was a "court" as defined. In that case, the facts of which do not matter, the Court had its express hesitations about another question whether a consent order meant that the appeal had "succeeded", which I shall return to ultimately.

9 A search for the existence of authoritative support for the view in Ozkan has produced three decisions. In R v Marshall; ex parte Baronor Nominees Pty Ltd,[4] Fullagar J considered the definition of court under the earlier Appeal Costs Fund Act (which also had the words "in the nature of an appeal") and concluded that the word "appeal" in the Act should be given a wide construction and construed faithfully to the purposes of the Act which was to indemnify persons who lost the case on appeal when the error below was an error of law.

10 Next in time was a decision of Hedigan J in Musashi v Foody.[5] The Court there decided that an order 56 application for judicial review of an order of the Residential Tenancies Tribunal was a proceeding in the nature of an appeal for the purposes of the Appeal Costs Act 1964 as there was an error of law. His Honour repeated an earlier determination:

Clearly, this definition is considerably wider than the notion of an appeal stricto sensu, a matter which occasions no surprise in view of the legislative intention to protect against the hardship of bearing costs on individuals who become exposed to such costs where an inferior court or tribunal is found to have erred in law.

11 Finally, there is Moore v Barton.[6] That was an application for judicial review of a Medical Panel's opinion. Dixon J granted an indemnity certificate recognising that it was not an appeal strictly speaking. There seemed to be no issue that the Panel constituted a tribunal or other body.

12 For my part, in addition to that body of authorities, deference to the apparent purpose of the Act ought support the view that appeal should be construed to include judicial review because it is in the nature of an appeal. In Pickford v Incorporated Nominal Defendant,[7] Brooking J described the underlying policy that:

...an error of law occurring in a court may ordinarily be attributed to a fault in the administration of justice rather than of the parties, so that the costs of having the error rectified ought ordinarily not be borne by the unsuccessful respondent to the appeal but to be paid from a public fund established for that purpose.[8]

13 The relief sought, and already granted in this case, is the correction of jurisdictional error.

14 Debate could take place on whether the panel is a tribunal. By ordinary conceptions and judging by the process by which it comes to make determination, I take leave to doubt that it is. But the authorities assume, and for my part I think there should not be real doubt, that a Medical Panel constituted to perform a statutory function and exercise powers that determine a person's possible rights or entitlements arising out of a compensable injury, falls within the words of the definition that say "or other body". The question to my mind was whether it was a body "...from whose decision there is an appeal to a superior court on a question of law". That language brings to mind well known appeal provisions on a question of law from the Magistrates Court or VCAT to this Court. But they are also amenable to judicial review. There is no (statutory) right of appeal on a question of law from a determination of the Panel.

15 Both Ozkan and Moore were judicial review cases involving a medical panel. Indemnity certificates were granted in both cases. Ozkan stated a conclusion that the Panel was a "court" as specially defined under that Act. If appeal includes a judicial review, as all authorities say, then one is driven to the conclusion, on an untechnical construction, that judicial review concerns one way or another a question of law. Thus those decisions are to be followed.

16 Finally, I need to return to Pickford. That decision makes a point of saying that a certificate should not be granted unless the Court is of opinion that there was error of law in the decision, and an appeal on a question of law cannot be said to succeed if all that occurs is that the appeal is allowed by consent. Brooking J held that an appeal does not succeed unless the Court has adjudicated upon it and, in that case, since the appeal was allowed without any adjudication, there was no power to grant an indemnity certificate. And it was refused.

17 But Pickford acknowledges that if the respondent concedes that the court or tribunal below has erred then the appellate court may require little persuasion. That is, if counsel on both sides have agreed that there was an error of law, and the Court is informed of the suggested error of law, then in a proper case the Court might well act and allow the appeal without itself hearing full argument on it.

18 In this case, the Court has already made its order, by consent, acting on a joint memorandum submitted by both parties which identifies the jurisdictional error. The jurisdictional error so identified seems to have been unavoidably conceded because the effluxion of the time limit had to result in the panel losing its jurisdiction. Thus, it can be said that the Court's granting of the consent order on the faith of the joint memorandum is a demonstration that this appeal has succeeded.

19 For those reasons the Court granted an indemnity certificate.

[1] [2012] VSC 42 [39] (Kaye J).

[2] See Aronson and Groves, Judicial Review of Administrative Action (5th ed) [3.300].

[3] [2012] VSC 17 (Kaye J).

[4] [1984] VicRp 17; [1984] VR 211.

[5] [1999] VSC 82.

[6] [2014] VSC 78.

[7] [1981] VicRp 58; [1981] VR 583.