Bluescope Limited v Clare Burford - [2011] VSC 64

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2010 of 5349

BLUESCOPE STEEL LIMITED	Plaintiff
v
CLARE BURFORD (AS CONCILIATION OFFICER, MEMBER OF ACCIDENT COMPENSATION CONCILIATION SERVICE)	First Defendant
WENDY BOYD	Second Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2011
DATE OF JUDGMENT:	7 March 2011
CASE MAY BE CITED AS:	Bluescope Limited v Clare Burford & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 64

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ADMINISTRATIVE LAW – judicial review – Accident Compensation Act 1985 (Vic) s 56(6) – proposed referral by a conciliation officer of medical questions to a medical panel – whether relief in the nature of prohibition should be granted – whether conciliation officer would fall into jurisdictional error – whether, in the circumstances, referral involves a denial of procedural fairness – unnecessary to decide whether a conciliator’s discretion under s 56(6) is amenable to court’s supervisory jurisdiction

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Wallace	Sparke Helmore
For the first Defendant	No appearance
For the second Defendant	Mr A Keogh SC	Shine Lawyers
Mr B Anderson

HIS HONOUR:

Introduction

This is an application for an order in the nature of prohibition seeking to prohibit a conciliation officer appointed under the Accident Compensation Act 1985 (Vic) (“the Act”) referring medical questions to a medical panel to be convened under Division 3, Part III of the Act.

The question of substance is whether the relevant conciliation officer will act in excess of jurisdiction if she refers the medical questions which she proposes to refer. An antecedent question was also argued before me, namely whether the decision of a conciliation officer who makes, or proposes to make, such a referral under the Act is amenable to judicial review. For reasons which will become apparent I find it unnecessary to express any definitive conclusion on that issue.

The plaintiff (“Bluescope”) is the former employer of the second defendant (“Boyd”). Clare Burford, the first defendant, is the conciliation officer appointed to conciliate a dispute between Bluescope and Boyd who proposes to refer medical questions to a medical panel. Because of objections which Bluescope raised with Burford with respect to that referral, Burford has refrained from making the referral pending the outcome of this proceeding.

Bluescope and Boyd were represented in the proceeding before me. Burford, through the Victorian Government Solicitor’s Office, announced that she did not intend to take an active role in the proceeding[1] but would merely abide the decision of the Court.
[1]Relying upon R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13, 35.

Background facts

Boyd was employed by Bluescope between 1983 and 1998 as a Cold Mill operator at the BHP Steel Mill at Hastings. On 6 October 1998, Boyd lodged a claim for weekly payments and medical expenses under the Act alleging injuries to her shoulders, neck and wrist (“the shoulders claim”) alleged to have occurred in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 64
Decision Date: 7 March 2011

CaseChat Overview and Summary

Bluescope Limited sought judicial review of a decision by a conciliation officer under the Accident Compensation Act 1985 (Vic). The dispute centred around the conciliation officer's proposed referral of medical questions to a medical panel. The High Court of Australia was asked to determine whether the relief in the form of prohibition should be granted to Bluescope Limited. The company argued that the conciliation officer's decision to refer the medical questions would lead to a jurisdictional error and a denial of procedural fairness.

The primary legal issues before the court were whether the conciliation officer would fall into a jurisdictional error by proposing the referral of medical questions to a medical panel, and if such a referral would involve a denial of procedural fairness. The court needed to ascertain whether the conciliation officer's discretion under section 56(6) of the Act was amenable to the court’s supervisory jurisdiction. The company further contended that the conciliation officer had not afforded it procedural fairness by not allowing it to make submissions regarding the referral.

The court found that the conciliation officer's decision to refer medical questions to a medical panel did not constitute a jurisdictional error. However, the court did not need to decide on the ambit of the conciliator's discretion under section 56(6). The court held that there was no denial of procedural fairness as the conciliation officer had adequately exercised their discretion. The court also found that the conciliation officer's decision was not so flawed as to warrant prohibition. Consequently, Bluescope Limited's application for judicial review was dismissed.

Orders