HER HONOUR: On 24 February 2015, I handed down judgment in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101.
On 24 February 2015, I made orders that this matter be remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law and ordered that Mr Dickinson pay the Trustees costs as agreed or assessed. Mr Hanrahan, councself for Mr Dicksinson, sought an order that Mr Dickinson be granted a certificate under s 6(1) of the Suitors' Fund Act 1951 (NSW). I ordered that he provide written submission on this topic only. I now have those submissions. However these submissions address the costs issue between the plaintiff and first defendant. I have also received short submissions in reply from the solicitor for the plaintiff.
To appreciate why the first defendant has applied for a Suitors' Fund Act certificate it is necessary to briefly refer to the Appeal Panel's reasons. At [21] to [25] it states as follows:
"21. We note with some concern that the claimant in this matter had been a patient of the AMS, having been referred by Dr Thin Chen. The CT scan taken on 5 June 2013 was done so at the AMS's behest when he was treating the claimant.
22. This fact was not adverted to by either the appellant employer or the claimant and we infer that both parties were content nonetheless for the AMS to continue to sit as the AMS.
23. Notwithstanding the lack of objection from either side, the Panel would note that by doing so the AMS has created the perception of bias. It would seem that this fact escaped both the AMS and the parties involved. The failure by the AMS to disqualify himself constitutes a demonstrable error. Although an AMS is not in a curial position, his/her opinion is conclusively presumed to be correct by virtue of s326(1) of the 1998 [WIM] Act and will inevitably become the basis for an order within the Commission, which does follow a curial procedure.
24. It is not enough that a person in the position of an AMS is impartial, he must be seen to be impartial. (Livesey v Bar Association NSW [1983] HCA 17) The test is whether one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment. In these circumstances we feel such a reasonable apprehension might well be entertained.
25. The only alternative is to re-examine the claimant to dispel this perception. …"
[My emphasis added.]
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 190 | Case summary | Zoe
In other words, the Appeal Panel made its decision to reexamine Mr Dickinson based on a factual error, namely that Dr Ryan, the approved medical specialist, treated Mr Dickinson. Neither party made any submissions to the effect that Dr Ryan treated Mr Dickinson. This is because he never did so.
In my reasons for decision at [41] and [42] I concluded:
"41 In my view the Appeal Panel misdirected itself by ordering a re-examination of Mr Dickinson.
…
42 Even if the Appeal Panel's finding that Dr Ryan had treated Mr Dickinson was correct, it is debatable whether it could determine that Dr Ryan had made a demonstrable error because that issue had not been raised in the submissions by either party. Nor were they given an opportunity to address this issue."
[2]
The Suitors' Fund Act
So far as costs are concerned, costs usually follow the event. I ordered the first defendant to pay the plaintiff's costs as agreed or assessed (at [45]). I have read both parties' submissions on this topic and have come to the conclusion that there is no reason to vary this decision. The plaintiff submitted that it does not concede that a Suitor's Fund certificate is available in the circumstances of this case but does not give any reason for this stance.
Relevantly, sections 2 and 6 of the Suitor's Fund Act read:
"2 Definitions
(1) In this Act, unless the context or subject matter otherwise indicates or requires:
Appeal includes any motion for a new trial and any proceeding in the nature of an appeal.
…
Court includes such tribunals or other bodies as are prescribed.
6 Costs of certain appeals
(1) If an appeal against the decision of a court:
(a) to the Supreme Court on a question of law or fact, or
…
succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.
6C Payments not otherwise authorised by this Act
(1) If:
(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings,
(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and
(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,
the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.
(2) A payment under this section shall not exceed $10,000."
The provision of indemnity for costs to a party who has been brought to court by the other party, and lost an appeal for error of law, still remains the chief purpose of the Suitors' Fund Act.
Counsel for Mr Dickinson submitted that these proceedings are virtually identical to an "Appeal against the decision of a court … to the Supreme Court on a question of Law" as described in s 6 of the Suitors' Fund Act.
A "court" is defined in s 2 of the Suitor's Fund Act to include "such tribunals or other bodies as are prescribed". Counsel for Mr Dickinson says that as far as he can ascertain, a Medical Appeal Panel of the Workers Compensation Commission, nor any other body, has been so "prescribed".
[3]
The Suitor's Fund Act
The requirements of s 6 of the Suitor's Fund Act have been discussed by the Court of Appeal in Robinson v Zhang [2005] NSWCA 439, which was an appeal from the Local Court in which a certificate was granted. In Robinson v Zhang, Basten JA (with whom Barr and Hall JJ agreed) stated at [38]:
"38 Where the power is available, a certificate is usually granted as a matter of course, in the absence of particular considerations which would warrant withholding a certificate in the exercise of the Court's discretion. …"
In Reid v Sydney City Council (1995) 35 NSWLR 719, Kirby P referred to his earlier decision in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 stated in relation to appeals to that Court from the Government and Related Employees Tribunal. At 512-513 Kirby P stated:
"It is important to confine the determination of whether the tribunal is a 'court' to the question here in issue under the Suitors' Fund Act. It is unnecessary, and it would be unfortunate, to determine in this costs application the large question of whether the Tribunal is a court for the purposes of the constitution and Federal legislation. Though those questions necessarily overlap with the issue involved here, the sole consideration before the Court is whether the Tribunal is a 'court' for the rather special and limited purposes of the Suitors' Fund Act. The Court was informed that in at least three cases certificates have been granted in respect of appeals from the Tribunal and, presumably, paid under the Act. It seems that it was done (although not recorded in the reported judgment) in Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13 and Tullamore Bowling & Citizens Club Ltd v Lander (1984) 2 NSWLR 32. The issue of a certificate is formally recorded in the decision of the court in Director-General of Education v Breen (1982) 2 IR 93 at 109. However, it was conceded that in none of these cases was the question argued. In none were authorities placed before the Court.
A number of reported cases demonstrate that bodies not designated as or titled 'courts' have been held to be such for the purposes of the Suitors' Fund Act, s 6(1). Thus, in Qidwai v Brown [1984] 1 NSWLR 100 at 102, Hutley JA in respect of an appeal from a decision of the Medical Disciplinary Tribunal held that the unsuccessful respondent to an appeal was entitled to a certificate under the Suitors' Fund Act. Samuels JA and Priestley JA agreed with his Honour's orders, although the issue would not seem to have been specifically argued. On the other hand, in Gosford Shire Council v Anthony George Pty Ltd (1969) 89 WN (Pt 1) (NSW) 350 at 358, Hardie J held that the Board of Subdivision Appeals was not a 'court' for the purposes of the Suitors' Fund Act. He considered that the board, functioning as an arbitral body to determine disputes between councils and landowners seeking subdivisional approval, was not a 'court' for the purposes of the section. …"
In Reid, the Court of Appeal considered that the history and purpose of the section were more relevant and that the trend of recent authority was towards "broadening the class of tribunals which may qualify as court."
In Allianz Australia Insurance Ltd v Gonzalez (No 2) [2013] NSWSC 544, Adams J declined to grant a certificate under the Suitor's Fund Act for reasons including the fact that all members of the panel were doctors, said that "the better view having regard to the nature and functions of the (Equal Opportunity) Tribunal is that it is a 'court' for the Suitors' Fund Act purposes."
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633, Garling J was not persuaded to issue a certificate with respect to a failed attempt by Mr Jenkins to impugn a decision of a Workers Compensation Medical Appeal Panel because the circumstances did not fall within ss 6, 6A and 6B of the Suitor's Fund Act. However, Garling J (at [80]) appeared to accept that the word "court" should be "given a liberal and beneficial construction."
In AAI Ltd v Fitzpatrick (No 2) [2015] NSWSC 1272 ("Fitzpatrick"), Schmidt J had some doubt in respect of the Motor Accidents Compensation Act 1999 (NSW), that a Medical Review Panel of three doctors under that legislation would qualify as a court, even on the liberal interpretation of the kind adopted in Dao. Nevertheless, in the absence of any other body prescribed for the purposes of the definition in s 2 of a court in s 6 of the Suitor's Fund Act, Schmidt J at [28] observed:
"…it must be concluded that the Court's judicial review powers … under s 69 involve proceedings 'in the nature of an appeal'."
In Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC 720, Hidden J found that an assessment of damages by a CARS assessor exercising the jurisdiction under the Motor Accidents Act constituted a decision by a court and that the review of that decision which concluded with a necessary remittal for further determination, was an appeal proceeding, entitling the unsuccessful defendant to a certificate.
In GIO General Ltd v Smith (No 2) [2011] NSWSC 998 at [9], Hoeben J came to a similar decision in relation to a decision of a medical review panel.
In my view, the decision of the medical appeal panel fulfils the definition of a "Court" for the purposes of s 6 of the Suitors' Fund Act.
However, does an application for judicial review fall within the definition of "Appeal". The Act's definition "includes any motion for a new trial and any proceedings in the nature of an appeal": s 2(1) Suitors' Fund Act. In a recent ex tempore decision of Beech-Jones J in Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870, his Honour dealt with an application by Mr Habib for a certificate under s 6 of the Suitors' Fund Act. Beech-Jones J, in Allianz Australia Insurance Ltd v Habib [2015] NSWSC 1719, had ordered a certificate purportedly issued by the Claims Assessment and Resolution Service ("CARS") under s 94(4) of the Motor Accidents Compensation Act concerning a claim for personal injury damages made by Mr Habib be set aside and his claim be determined according to law. Mr Habib had been ordered to pay the costs of the proceedings. Relevantly, at [15]ff, his Honour observed:
"There are two potential issues of construction that arise in relation to this application, namely whether a decision of a CARS assessor is a decision of a "court" for the purposes of s 6(1). I will pass over that issue, although in my view, given the nature of the functions performed by a CARS assessor, they appear to answer that description (see Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 512, per Kirby P).
However, there are problems with characterising these proceedings as being by way of "an appeal". In Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480 ("Henderson") at [57] Beazley P stated as follows:
"There is a further problem with the application of s 6 in the circumstances of this case, in that the proceedings before the primary judge were not by way of an appeal, but were by way of judicial review pursuant to the Supreme Court Act, s 69. Judicial review proceedings would, however, fall within the meaning of 'other proceedings' within the meaning of s 6C."
The proceedings in Henderson concerned judicial review of a determination of a proper officer of the Motor Accidents Authority pursuant to s 62 of the Motor Accidents Compensation Act 1999. In Henderson Beazley P declined to make an order under the Suitors' Fund Act, partly for the reason notified above, and otherwise because her Honour was not satisfied that a proper officer constituted a "Court" for the purposes of s 6 (at [55] to [56]). Tobias AJA agreed with Beazley P, and in particular agreed with the orders that her Honour proposed (at [108] to [109]).
In AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272 Schmidt J (at [27]) pointed out that in Ex parte Parsons; Re Suitors' Fund Act (1952) 69 WN (NSW) 380 ("Parsons") Street CJ, with whom Owen and Herron JJ agreed, stated at p 381 that there was jurisdiction to issue a certificate under s 6 of the Suitors' Fund Act in proceedings that sought prohibition and certiorari against an inferior court because:
"These proceedings were proceedings which were instituted for the purpose of correcting an error which had been made in the court below. It was a court which was adjudicating upon a matter properly brought before it and it was to a court the writ was directed. In the result, this Court came to the conclusion that the proceedings below needed correction to the extent of quashing the same, and the applicant succeeded, therefore, in having an erroneous decision set aside. On every view of the language of the Act, I think it is clear that this is a 'proceeding in the nature of an appeal' and therefore is included in the word 'appeal' as it is used in the Act."
Having set out this passage, Schmidt J then continued in Fitzpatrick (No 2) at [28] to state:
"Nevertheless, it seems to me that notwithstanding the views expressed by Beazley P in Henderson v QBE Insurance (Australia) LTDD, given what was decided in Ex Parte Parsons; Re Suitors' Fund Act, it must be concluded that the Court's judicial review powers, now under S 69, involve proceedings 'in the nature of an appeal'." (emphasis added)
However, with respect to her Honour, I do not consider that the statements by Beazley P in Henderson v QBE can be merely described as "views". As I have stated, Tobias AJA agreed with Beazley P. It is true that Henderson did not consider the above passage from Ex parte Parsons, but that criticism, if it is a valid one, is not one for judges at first instance to act upon.
It seems to me that the statements in Henderson and Parsons are difficult to reconcile. Nevertheless, there having been a recent statement by the majority of the Court of Appeal on a question which is much closer to the circumstances of this case than that considered in Parsons, I feel that I am obliged to give effect to the decision in Henderson. It seems to me that I must act on the position stated in Henderson and find that proceedings under s 69 of the Supreme Court Act are not proceedings that answer the description of an "appeal" for the purposes of s 6(1) of the Suitors' Fund Act.
Accordingly, I decline to grant a certificate under the Suitors' Fund Act. In case the matter goes elsewhere, I can indicate that, had I considered that the proceedings were by way of an "appeal" and finally determined that an assessment by a CARS assessor was a decision of a court, I would have granted such a certificate."
There is no doubt that there is a divergence of judicial opinion as to whether judicial review under the Motor Accidents Compensation Act and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) constitutes an "appeal" or is "in the nature of an appeal". In my view I consider myself bound by the decision of Beazley P in Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480 for the same reasons as Beech-Jones J in Allianz Australia Insurance Ltd v Habib (No 2). This Court has exercised the power under s 69 of the Supreme Court Act 1970 (NSW) in reviewing the decision of the medical appeal panel made purportedly pursuant to the Workplace Injury Management and Workers Compensation Act. Such proceedings are not in "in the nature of an appeal". I decline to grant a certificate under the Suitors' Fund Act.
Counsel for Mr Dickinson submitted that, if the Court declined to grant a certificate, it may declare itself as being of the view, without limiting the discretion of the Director General or the Attorney General, that any indemnity granted by the Director-General pursuant to s 6C of the Suitors' Fund Act would be "within the spirit and intent" of the sections authorising the provision of an indemnity certificate under the Act.
In Henderson, Beazley P stated (at [58]):
"However, s 6C is not a matter in respect of which the court may make an order. Its terms are clear, if the matters specified in s 6C(1)(a), (b) or (c) are satisfied, the Director General has a discretion whether to pay an amount from the Suitors' Fund. That discretion is to be exercised with the concurrence of the Attorney General. It is not a matter in respect of which the court may make an order, direction, or declaration. …"
As observed by Beazley P in Henderson (at [57]), these proceedings may fall within the meaning of "other proceedings" within s 6C. While a certificate may be granted under s 6C by the Director General, I decline to make a declaration to that effect. However it should be noted that it was through no fault of the plaintiff or the first defendant that the appeal panel misdirected itself and it seems unfair in these circumstances that the first defendant should have to bear the costs of the judicial review proceedings. If Mr Dickinson makes an application to the Director-General under s 6C it is my recommendation that these factors be taken into consideration in determining whether to make a payment towards the plaintiff's costs.
I would like to add a comment. As observed above, the approach to the interpretation of s 6 of the Suitor's Fund Act is subject to judicial divergence in two ways. Section 6 allows the Supreme Court to grant a certificate to the respondent to a successful appeal against the decision of a court. Section 2 defines the word "appeal" as including "any proceeding in the nature of an appeal". While a judicial review is not strictly an "appeal", it is "in the nature of an appeal", as observed by Schmidt J in Fitzpatrick (at [28]) and Street CJ in Parsons (at 381). The task a reviewing court, such as this Court, carries out is "in the nature of" the task a court of appeal might conduct in appeal proceedings, such as an appeal from the Local Court to the Supreme Court. This court has recognised an expansive definition of "court" contained in s 6 of the Suitors' Fund Act. It makes little sense to define the word "court" expansively and define "appeal" restrictively.
[4]
The Court orders that:
(1) I decline to issue a certificate to the first defendant pursuant to s 6 of the Suitors' Fund Act 1951 (NSW).
[5]
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: 07 March 2016
Parties
Applicant/Plaintiff:
Trustees of the Roman Catholic Church for the Diocese of Bathurst