Dennis Weinel v Her Honour Helen Parsons and Franc Blazevic No. SCGRG 94/139 Judgment No. 4678 Number of Pages 5 Prerogative Writs Mandamus, Prohibition and Certiorari Writs and Orders

[1994] SASC 4678

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Prerogative writs - mandamus, prohibition and certiorari - writs and orders - Action for judicial review of decision of single judge of Industrial Court on appeal against conviction for of fence of obtaining Workers Compensation benefits by dishonest means - right of appeal to Full Industrial Court not exercised - discretion to refuse relief - action dismissed. Workers Rehabilitation and Compensation Act 1986s120. Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, applied. R v Hillington London Borough Council ex parte Royco Homes Ltd (1974) QB 720, discussed.

HRNG ADELAIDE, 7-8 June 1994 #DATE 9:8:1994

Counsel for plaintiff:             Mr D J Bleby QC with
   Mr D W Smith

Solicitors for plaintiff:            Finlaysons

Counsel for defendant Blazevic:     Mr S W Tilmouth QC with
   Mr C M Bailes

Solicitors for defendant Blazevic: Tindall Gash Bentley

Defendant Her Honour Helen Parsons: No appearance

ORDER
Judgment for the defendants dismissing the action.

JUDGE1 KING CJ This is an action for judicial review which has been referred to the Full Court. It seeks to quash a decision made by Judge Parsons in the Industrial Court allowing an appeal against a conviction in the Magistrates Court.

2. The defendant Blazevic was charged on a Complaint by the present plaintiff containing 42 counts. Forty of the counts alleged obtaining benefits under the Workers Rehabilitation and Compensation Act 1986 by dishonest means contrary to s.120 of the Act. There were two counts of making false and misleading statements to examining medical practitioners contrary to s.119a(1) of the Act. The defendant was convicted on counts 1 and 42. The charges in counts 2 to 32 both inclusive and 37 to 40 both inclusive were found proved but no conviction was recorded. Counts 33 to 36 both inclusive were withdrawn. On appeal Judge Parsons quashed the convictions on counts 1 and 42 and dismissed counts 2 to 32 and 37 to 40. The complainant appealed to the Full Industrial Court but sought and obtained a deferral pending the hearing and disposition of this action.

3. The grounds upon which judicial review are sought are set out in the affidavit made on behalf of the plaintiff. I set out the relevant paragraphs:
    "12.1 The first defendant erred in concluding, (see page 16
    line 19, page 18 line 34 of the reasons for decision in the
    Industrial Court) that the learned Special Magistrate
    wrongly inferred from a finding of capacity for work:
     (i) that the respondents representation of incapacity
     must necessarily be false; and
     (ii) that the benefits thereby so obtained by the
     respondent were obtained dishonestly when the findings of
     the learned Special Magistrate from, in particular, page
     37 to page 43 of the reasons for judgment in the Adelaide
     Magistrates Court show that after having correctly
     directed himself as to the applicable law, he satisfied
     himself as to the 'dishonesty' of the means by which the
     benefits were obtained, by assessing all the evidence,
     including the evidence as to the truth of the
     representation as to work capacity.

12.2 The first defendant erred in concluding at page 19
    line 12 that the issue of 'dishonest obtaining' should be
    determined as follows:
    '... by asking the question whether the appellant
    understood that what he was
    saying in asserting an ongoing incapacity
    for work as a result of the compensable disability was not
    true so that in maintaining such a stance he was obtaining
    the particularised benefits by dishonest means. To
    determine the appellant's understanding and thus his
    intention one has to look at his behaviour in the whole
    context.' but rather the test for 'dishonesty' in the
    context of the prosecution was not wholly subjective but
was that laid down in R. v. Gosh (1982) 3 WLR 110 which was
    followed and adopted by the learned Special Magistrate (see
    page 41.9 - 43.4 of the Reasons for Judgment in the
    Adelaide Magistrates Court).

12.3 The first defendant's re-analysis of the evidence
    commencing at page 19 line 19 and concluding at page 21
    line 10 and her resultant conclusion is in error in the
    following respects:
     (i) The re-assessment of the medical evidence as set out
     at page 19 line 19 onwards are an impermissible and
     erroneous interference by an Appellate Court with the
     learned Special Magistrate findings as to conflicting
     expert medical testimony;
     (ii) the 'finding' at line 2 on page 20 that the second
     defendant was 'probably no longer able to perform his
     pre-accident duties' by reason of his degenerative spine
     is a finding of primary fact which impermissibly involves
     an interference with the learned Special Magistrate's
     findings as to conflicting medical testimony contrary to
     the principles set out in, for instance, Gronow v Gronow
(1979) 144 CLR 513 and such a finding is inconsistent
     with the first defendant's earlier acceptance of the
     learned Special Magistrate's conclusion that the
     respondent was capable of work;
     (iii) The said 'finding' as particularised in
     sub-paragraph (ii) immediately above is also erroneous in
     that such a finding by an Appellate Court is a departure
     from the permissible role of an Appellate Court on
appeals from a Magistrate. (See Laurie v Nixon 162 LSJS 16;
Taylor v Hayes (1990) 53 SASR 282);
     (iv) The 'findings' at page 20 lines 4-17 to the effect
     that the second defendant was not in all the
     circumstances dishonest amounts to
     a reversal of the learned Special
     Magistrate's findings on credibility and as such
     constitutes an erroneous departure by the learned first
     defendant from her role as an Appellate Tribunal;
     (v) The 'findings' at page 20 line 18-33 are contrary to
     the specific and accepted evidence of Drs Jose and Ingman
     who specifically took into account the degenerative
     nature of the respondent's spine and again amounts to an
     erroneous interference with the learned Special
     Magistrate's discretion regarding the conflicting medical
     testimony;
     (vi) The 'finding' as set out on page 20 line 50 to page
     21 line 10 that the respondent's conduct was explicable
     not as 'deliberate falsehood' but rather as innocently
     convincing himself of disability, is an erroneous
     interference with the learn Special Magistrate's core
     finding on credibility and as such constitutes an error.

12.4 The first defendant erred in concluding that, in
    respect to Count 42, it was not established that the
    respondent made the false and misleading statement 'in
    relation to' a claim under the Workers Rehabilitation and
    Compensation Act, 1986 as amended.

12.5 The first defendant erred in inferring from primary
    facts, conclusions which were contrary to the findings of
    the learned Special Magistrate when she could not have been
    satisfied that the inferences and/or findings drawn by the
    Senior Magistrate were 'plainly wrong'.

12.6 The first defendant erred in reversing the decision of
    the learned Special Magistrate on grounds relating to a
    degenerative condition of the respondent's spine which were
    neither the subject of any specific argument and also was
    in error in not calling upon the appellant to make submissions
    in relation thereto.

12.7 That the first defendant erred in basing her decision
    on evidence relating to a degenerative condition of the
    second defendant in that:
     (i) it amounted to an interference with the learned
     Special Magistrate's findings as to the expert medical
     testimony on the significance of the normally
     degenerative spine.
     (ii) to so interfere required such a fundamental
     reassessment of the evidence on this topic that the first
     defendant ought to have called or recalled evidence on
     this topic or alternatively invited the parties to do so
     on appeal (see Section 42(4) (Magistrates Court Act,
     1991)).
     (iii) to not do so, amounted to a denial of due processes
     of justice from the plaintiff's point of view (see Taylor
     v Hayes sub-paragraph PP289-290 and Hunter v Walsh (1928)
SASR 336 Gray v Jones (1948) SASR 201 (sic)."

4. I have set out the grounds in full because a perusal of them indicates that they are grounds which can be dealt with appropriately and as to some of them more appropriately by a court having the full powers and functions of an appellate court.

5. An appeal lies from the decision of Judge Parsons to the Full Industrial Court pursuant to s.93 of the Industrial Relations Act. It is a full appeal on facts and law.

6. Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy; R v Hillingdon London Borough Council ex parte Royco Homes Ltd (1974) 1 QB 720 per Lord Widgery at p.728. Judicial Review should not be used as an alternative to the exercise of a right of appeal and the discretion may be exercised to discourage the procedure from being so used; R v Ross Jones ex parte Green (1984) 156 CLR 185 per Wilson and Dawson JJ at p.214. The authorities were considered by the judges of the Court of Appeal of New South Wales in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. The judgments in that case make it unnecessary for me to examine the cases further in this judgment. The Court of Appeal had to consider proceedings for prerogative relief to prohibit the Industrial Court from proceeding with the hearing of prosecutions for breaches of the Occupational Health and Safety Act of New South Wales following a decision by the judge of the Court dismissing objections to the summonses based upon duplicity and lack of particularity. An appeal lay from that decision to the Full Industrial Court. Prerogative relief was refused, in the exercise of the Court's discretion, on the ground that the applicant had not exhausted his rights of appeal. That decision is highly persuasive in relation to the present proceedings.

7. There is a distinction between the legal position in New South Wales and that existing in this State which requires consideration. Section 92(3) of the Industrial Relations Act of this State provides that "no order, decision or proceedings of any kind of the Full (Industrial) Court can be challenged, appealed against, reviewed, quashed or called in question except in proceedings before the Full Court of the Supreme Court founded on alleged excess or want of jurisdiction. (emphasis mine)" There is a similar privative section in the New South Wales Act but it is not restricted to proceedings of the Full Industrial Court but is applicable to review of decisions of the Industrial Court generally. It was argued in this case that the exclusion of this Court's capacity to review decisions of the Full Industrial Court for non-jurisdictional error should incline this Court to exercise its discretion by way of reviewing the single judge's decision to which the privative provision does not apply. It was stressed that the ability of this Court to correct errors of law in relation to criminal matters was of special importance.

8. I acknowledge the force of the argument especially in relation to criminal law. This Court could not condone the development of two bodies of law, especially criminal law, in the State. The same principles of the criminal law should apply to citizens on trial for an alleged offence whether or not the trial is for an alleged industrial offence. I envisage that if this Court felt that an erroneous decision in the Industrial Court on an important question of principle, not being in excess or want of jurisdiction, required correction, it might be inclined to review the decision notwithstanding that appellate rights within the Industrial Court had not been exhausted. Such an exercise of discretion would be more likely if previous decisions of the Full Industrial Court were to indicate that correction of the error was unlikely in that Court.

9. Considerations of that kind do not apply in the present case. The grounds urged in support of judicial review are eminently suited to resolution by the appeal process. There is no reason to suppose that the Full Industrial Court would not deal adequately with any error demonstrated on the appeal. I think that resort to this Court is unnecessary.

10. I would give judgment for the defendants dismissing the action.

JUDGE2 PRIOR J I agree with the reasons published by the Chief Justice. The proceedings should be dismissed in the manner proposed.

JUDGE3 PERRY J I agree that the proceedings should be dismissed for the reasons given by the Chief Justice.

2. I would wish to emphasise the discretionary nature of proceedings for judicial review, and the need to ensure that the supervisory jurisdiction exercised by this Court over inferior courts and tribunals is not prematurely invoked. The fact that there are unexercised or unexhausted rights of appeal will ordinarily be fatal to an application for judicial review. With respect, I agree entirely with the decision of the Court of Appeal of New South Wales in Boral Gas (NSW) Pty Ltd v Magill and Anor (1993) 32 NSWLR 501, and in particular the judgment of Kirby P in that case, as to that aspect of the matter.