Chubb Security Pty Ltd v Kotzman (No 2) - [2010] VSC 281

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6299 of 2009

CHUBB SECURITY AUSTRALIA PTY LTD	Plaintiff
v
DR DAVID KOTZMAN & ORS	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 10, 16 June 2010
DATE OF ORDER:	16 June 2010
DATE OF PUBLICATION OF REASONS:	21 June 2010
CASE MAY BE CITED AS:	Chubb Security Pty Ltd v Kotzman & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 281

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ADMINISTRATIVE LAW – Administrative Law Act 1978 (“Act”) – Reasons for administrative decisions - Act requiring tribunal to furnish written statement of reasons for decision where request for reasons made by person affected within 30 days of decision coming to knowledge – Power in Supreme Court to order furnishing of statement or further statement of reasons on application by “the person making the request” – Medical Panel – Opinion – Contemporaneous statement of reasons given to person affected – Given voluntarily and without prior request – Person affected makes no request for reasons or further reasons within 30 day period – Statement given inadequate to enable Court to see whether decision involves error of law - Whether person affected entitled to apply for order for further statement of reasons – No such entitlement – Application for such order refused – Observations as to procedural issues - Administrative Law Act 1978 ss 2, 3, 4, 8, 10 - Supreme Court (General Civil Procedure) Rules 2005, Chapter I, rr 1.12, 4.05, 77.01(2)(a)(ii), 77.03.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Fleming	Wisewould Mahoney
For the Fourth Defendant	Mr M. O’Loghlen QC (On 10 and 16 June 2010) Mr B. Anderson (On 4 June 2010) Mr G. Wicks (On 10 and 16 June 2010)	Shine Lawyers

HIS HONOUR:

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

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.

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…

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.

Continue reading Chubb Security Pty Ltd v Kotzman (No 2)

Details

AGLC: Chubb Security Pty Ltd v Kotzman (No 2) [2010] VSC 281
Case: [2010] VSC 281
Decision Date: 21 June 2010

CaseChat Overview and Summary

Chubb Security Pty Ltd sought to challenge a decision of a Medical Panel under the provisions of the Administrative Law Act 1978. The applicant, Mr Kotzman, argued that the Panel's decision lacked adequate reasons, and that this constituted an error of law. The dispute came before the Supreme Court, which was asked to determine whether the applicant had the right to apply for a statement of reasons or further reasons beyond those already provided. The court needed to decide if the applicant's voluntary receipt of reasons from the Panel precluded a request for additional reasons under the Act.

The court examined the relevant statutory provisions, particularly sections 2, 3, 4, 8, and 10 of the Administrative Law Act 1978. It also considered the Supreme Court (General Civil Procedure) Rules 2005, including rules 1.12, 4.05, 77.01(2)(a)(ii), and 77.03. The court held that the Act's requirement for a written statement of reasons applied only when a request was made by the person affected within 30 days of becoming aware of the decision. Given that the Panel had provided a contemporaneous statement of reasons voluntarily, and the applicant had not made a request within the statutory timeframe, the applicant did not have the right to seek further reasons. The court noted that the provided reasons, while not exhaustive, were sufficient to enable it to review the Panel's decision for errors of law.

The court further observed that the applicant's application was procedurally flawed, as it was made outside the timeframe prescribed by the Act and rules. The court concluded that the applicant was not entitled to apply for a further statement of reasons, and dismissed the application. The court emphasised that the provision of a voluntary, contemporaneous statement of reasons did not trigger the statutory requirement for a formal written statement upon request. The applicant's application for an order for further reasons was accordingly refused.

Orders