Colac Otway Workforce Pty Ltd v Dwyer
[2005] VSCA 230
•15 September 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3736 of 2005
| COLAC OTWAY WORKFORCE PTY LTD | |
| Appellant | |
| v. | |
| JULIE DWYER | Respondent |
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JUDGES: | EAMES, NETTLE and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 September 2005 | |
DATE OF JUDGMENT: | 15 September 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 230 | |
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ACCIDENT COMPENSATION - Costs – Whether costs awarded to plaintiff in County Court proceedings limited by s.50 of the Accident Compensation Act 1985 (“the Act”) to costs on the Magistrates’ Court scale – Whether judgment or decision of County Court could have been made by the Magistrates’ Court – Jurisdiction of the Magistrates’ Court under s.43 of the Act – Interrelationship of ss.43 and 50 of the Act – Accident Compensation Act 1985, ss.43 and 50.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J.J. Noonan, S.C. with Mr M.F. Fleming | Wisewoulds |
| For the Respondent | Mr M. O'Loghlen, Q.C. with Mr J.A. O'Brien | Slater & Gordon (Geelong) |
EAMES, J.A.:
I will call on Nettle, J.A. to give the first judgment.
NETTLE, J.A.:
This is an appeal from a judgment of a judge of the County Court as to the scale upon which the appellant (the defendant below) should be ordered to pay the respondent's (plaintiff's below) costs of the proceeding.
The respondent's claim was for compensation in weekly payments pursuant to s.93 of the Accident Compensation Act 1985, (“the Act”), compensation for medical and like services pursuant to s.99 of the Act, and compensation for non-economic loss pursuant to s.98C of the Act. The claim was settled on the basis of consent orders that:
(1) the claim pursuant to s.93 be dismissed;
(2)the appellant pay the respondent's reasonable medical and like expenses (amount reserved) to date and to continue in accordance with law;
(3)the appellant be liable to pay compensation pursuant to s.98C for post-Q Fever syndrome with associated symptoms;
(4) the appellant pay the respondent's costs; and
(5) there be liberty to the parties to apply.
The issue for the judge was whether s.50 of the Act limited the costs recoverable by the respondent to the Magistrates' Court scale.
The judgment below
As the judge held, it is plain that s.50 of the Act confines a plaintiff's costs to the Magistrates' Court scale where the outcome of the proceeding could have been achieved within the jurisdiction of the Magistrates' Court, and that is so regardless
of whether the outcome is achieved by way of judgment or decision or settlement or compromise. The only question was whether the result of the consent orders could
have been achieved by a judgment or decision made by the Magistrates' Court if the proceeding had been brought in that court. The judge held that they could not.
The judge noted that s.43 of the Act confers a jurisdiction on the Magistrates' Court which is limited to questions or matters for or in respect of a sum or matter in value not exceeding $40,000, or in respect of weekly payments and hence that, if the respondent's claim were in respect of a sum or matter not exceeding $40,000, the respondent's costs would have been limited to the Magistrates' Court scale. But the judge was not satisfied that the matters in respect of which the consent orders were made were matters for or in respect of a sum or matter in value not exceeding $40,000 or in respect of weekly payments. As her Honour put it, although the settlement involved payment to the respondent of less than 104 weeks of weekly compensation, which was something which could have been achieved in the Magistrates' Court, the position concerning the order for reasonable medical and like expenses was not so clear. Expenses up to trial amounted to only $1,000 or $2,000 and it was unlikely that they would in future exceed $40,000. But, as her Honour said, there was an obvious lack of certainty concerning that matter, and moreover, inasmuch as the order relating to the s.98C application for non-economic loss was in the form of a declaration of liability only, no quantum was expressed and none could have been. It remained to be assessed pursuant to s.104B. In that state of uncertainty, the judge reasoned that it had to be concluded that the Magistrates' Court did not have jurisdiction to entertain the claim. As her Honour put it:
"… subsection (1) of s.43 does not give jurisdiction to the Magistrates' Court in respect of matters other [than] weekly payments where it cannot be ascertained that the amount or value of the ‘matter’ does not exceed $40,000."
The appellant’s contentions
The appellant contends that the judge was wrong in law. Whereas the judge construed s.43(1) of the Act as denying jurisdiction to the Magistrates' Court whenever the amount or value of a matter is unknown or unascertainable, the appellant contends that upon its correct construction (and putting aside the question of weekly payments) the provision only denies jurisdiction if the amount or value is shown to exceed $40,000. It follows in the appellant's submission that the Magistrates' Court has jurisdiction in any case where the amount is unknown or unascertainable and therefore that it would have had jurisdiction in this case.
The appellant further argues in support of that proposition that it would be the inevitable consequence of the judge's reasoning that a Magistrates' Court could never have jurisdiction to make a s.104B declaration of liability[1] - because at the time of declaration the amount of compensation would inevitably remain to be assessed - and that such an approach would be wholly inconsistent with the intention apparent in s.104B that the Magistrates' Court should have jurisdiction to make declarations of that kind. The appellant also says that the judge's reasoning would result in the conclusion that liability in relation even to the smallest s.98C claim could never be determined by the Magistrates' Court, and that that too would be inconsistent with the clear statutory intention of s.104B. Again, in the appellant's submission, it cannot be supposed that Parliament intended by the limitation of jurisdiction to matters not exceeding $40,000, to deny the Magistrates' Court of the ability to grant relief traditionally given in workers compensation cases which could not easily be characterised as referable to a currently known or ascertained sum, such as, for example, the jurisdiction to make an order for medical and like expenses; the jurisdiction to make a declaration of liability that a compensable injury has been sustained[2], and the jurisdiction to make a declaration as to the validity of a s.98 claim[3].
[1]Section 104B has since been amended. The substance of what was s.104B(4) is now contained in s.104B(7). But it makes no difference to the analysis.
[2]King v Port of London Authority [1920] A.C. 1 at 12-13; Telicki v Tennyson Textiles Pty Ltd (1960) 77 WN (NSW) 731; Hill and Bingeman, Principles of Workers’ Compensation (1981), at p.79.
[3]GIO v Helou, Unreported, CCV, Judge Lewis, 24 March 1995.
As the appellant would have it, however, all of those difficulties may properly be avoided by construing s.43 to mean that, in cases where the only claim is one made under s.98C, the Magistrates' Court has jurisdiction, no matter how serious the injuries or how likely that the quantum of the claim may exceed $40,000.
The respondent’s contentions
The respondent supports the judge's determination, although perhaps not all of her Honour's reasoning, and invokes the judgment of Byrne, J. in Victorian WorkCover Authority v Taylor[4] in support of its position. In that case, Byrne, J. held that the matter that was determinative of the jurisdiction of the Magistrates' Court was the value of the sum which is the subject matter of the decision or recommendation made under the Act; not the amount claimed. It followed, his Honour reasoned, that where the value of a matter does not appear from the terms of the decision or recommendation the subject of the claim, it is up to the plaintiff to make an assessment of it and choose the appropriate court. Consequently, if the Authority wishes to challenge that assessment, it may do so at the outset of the proceeding, although, if it delays its challenge until a later stage of the proceeding, the challenge is likely to be refused.
[4][1995] Vic ACR 73-412.
Although the question in Victorian WorkCover Authority v Taylor was whether the proceeding was beyond the jurisdiction of the Magistrates' Court, not whether it was within it, the respondent submits that Byrne, J.'s reasoning applies mutatis mutandis to the latter question.
Section 50 did not apply
In my opinion, the judge below came to the right conclusion, although not altogether for the right reasons. As I see it, her Honour was correct in concluding that s.50 of the Act ought not be taken to apply unless and until it is demonstrated that the amount or value of the “matter” does not exceed $40,000 but, with respect, I consider that her Honour was not correct in saying that the Magistrates' Court must be taken to lack jurisdiction under s.43 unless it can be ascertained with certainty that the amount or value of the matter does not exceed $40,000. Contrary to her Honour's approach, I do not see the two questions as being two sides of the one coin, or, to put it another way, that the answer to either question is dictated by the answer to the other.
To begin with the jurisdiction of the Magistrates' Court, it is trite that courts and tribunals, apart from courts of plenary jurisdiction, have only such jurisdiction as may be conferred upon them by statute. So, if the jurisdiction of a court or tribunal of limited jurisdiction is defined by statute in terms of the value of the subject matter of the dispute, there is by and large no jurisdiction to deal with the matter in which the value of the subject matter of the dispute is greater than the jurisdictional limit[5]. At the same time, however, the practical necessity of making the system work has resulted over some 150 years in acceptance of the proposition that, where it is not certain whether the value of the subject matter of the dispute is within the jurisdictional limit, the court or tribunal may continue to deal with the matter until such time as it is shown that the matter is beyond its jurisdiction[6].
[5]Leader v Rhys (1861) 10 CBNS 369 at 373, 142 E.R. 495 at 496.
[6]Taylor v Addyman (1853) 13 CB 309 at 322-3; 138 E.R. 1218 at 1224; Donelan v Incorporated Nominal Defendant [1973] V.R. 490 at 495, per Smith, A.C.J.
To put it in the sort of terms that were used by Byrne, J. in WorkCover Authority v Taylor, where a plaintiff brings a proceeding in a particular court of limited jurisdiction, the plaintiff thereby expresses an assessment that the matter is within the jurisdiction, and the court may ordinarily assume that the plaintiff's assessment is accurate, unless and until the assessment is successfully challenged.
It follows that, if the plaintiff in this case had brought her claim in the Magistrates' Court rather than the County Court, the plaintiff would have been taken to have made an assessment that the matter was within the jurisdiction conferred on the Magistrates' Court by s.43, and it is possible that the Magistrates' Court would have proceeded on that basis, until and unless that assumption were successfully challenged.
Turning then to the application of s.50 in County Court proceedings, it does not follow from the fact that the Magistrates' Court may be entitled to make assumptions about its s.43 jurisdiction in Magistrates' Court proceedings that a judge of the County Court is bound to conclude that s.50 applies in County Court proceedings. To the contrary, as I see it, where as here a plaintiff brings his or her proceeding in the higher court, the plaintiff is seen to have made an assessment that the matter is properly to be dealt with by the higher court, and the higher court may ordinarily assume that the plaintiff's assessment is accurate unless and until that assessment is successfully challenged.
In accordance with ordinary principles, once a plaintiff regularly invokes the jurisdiction of the higher court and the defendant seeks to avail itself of a provision as to costs like s.50, the defendant bears the burden of establishing that the section has been engaged. Hence, unless and until the defendant discharges the burden of demonstrating that the plaintiff could have brought the proceeding within the limited jurisdiction of the lower court, it is neither possible nor appropriate for the higher court to rule that s.50 applies.
As it happened in this case, the appellant failed to discharge the burden of satisfying the County Court judge that the matter was within the jurisdiction conferred on the Magistrates' Court by s.43. On the facts as found the judge was not persuaded that the value of the subject matter of the claim was less than $40,000. The question fell to be decided on the balance of probabilities and, as far as appears, there was no evidence as to the likely quantum of the claim, let alone enough to demonstrate that it was less than $40,000. No attack is made on her Honour's finding of fact and, given the way in which the matter has developed, such an attack could not now be made.
It follows that it has not been shown that the judge erred in her conclusion that s.50 had not been proved to apply.
The Magistrates’ Court’s jurisdiction
I add in order to avoid any doubt that nothing which I have said thus far is intended to reflect adversely on the extent of the Magistrates' Court jurisdiction under s.43, particularly the Magistrates' Court jurisdiction to make a declaration in relation to s.98C liability, or to reflect on the Magistrates' Court jurisdiction to grant relief of any other kind of the sort traditionally given in workers compensation matters. Consistently with what has already been said about assumptions to be made concerning a plaintiff's assessment of jurisdiction, I consider that where a proceeding for such a declaration or other relief is instituted in the Magistrates' Court, that court will ordinarily be entitled to proceed with the claim until and unless it is demonstrated that the amount of the liability would exceed the $40,000 figure. Evidently that is the way in which such matters have long been approached, and certainly they have been so approached since Byrne, J.'s judgment in WorkCover Authority v Taylor. It in no way detracts from the efficacy of that practice that questions about the application of s.50 in County Court proceedings are to be determined on a different basis.
Conclusion
It is for these reasons that I would dismiss the appeal.
EAMES, J.A.:
I agree that the appeal should be dismissed and I do so for the reasons given by Nettle, J.A.
ASHLEY, J.A.:
I agree with Nettle, J.A.
EAMES, J.A.:
The order of the Court is that the appeal is dismissed with costs.
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