Bluescope Limited v Clare Burford

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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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

Background facts

  1. 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…

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Details
Case
[2011] VSC 64
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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