Ford Motor Company of Australia Ltd v Magistrates' Court of Victoria
[2002] VSC 250
•19 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8594 of 2001
| FORD MOTOR COMPANY OF AUSTRALIA LTD | Plaintiff |
| v | |
| THE MAGISTRATES' COURT OF VICTORIA AND MAGDA MIKHAIL | Defendants |
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JUDGE: | ASHLEY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 AND 19 JUNE 2002 | |
DATE OF JUDGMENT: | 19 JUNE 2002 | |
CASE MAY BE CITED AS: | FORD MOTOR COMPANY OF AUSTRALIA LTD v | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 250 | |
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CATCHWORDS: Judicial review – Order in nature of certiorari – Error on the face of the record – Incomplete and uncertain record – Doubt as to order made – Uncertainty as to reasons given – Error not disclosed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Parrish | Herbert Geer & Rundle |
| For the Second Defendant | Mr M. O'Loghlen QC with Mr P. Coish | Maurice Blackburn Cashman |
| For the First Defendant | No Appearance |
HIS HONOUR:
Before me is an originating motion, filed 5 December 2001, by which the Ford Motor Company of Australia Ltd (Ford) seeks relief in a proceeding brought pursuant to O.56 of Ch.1 of the Rules.
The relief sought by the plaintiff is principally as follows:
"(1)An order quashing the ruling of his Worship Mr O'Dwyer M made 9 October 2001 in the Magistrates Court proceeding P 01252578, wherein the Second Defendant herein is the Plaintiff and the Plaintiff herein is the Defendant ('The Magistrates' Court proceeding') that the Plaintiff's oral application made on 9 October 2001 to strike out the Magistrates' Court proceeding P 01252578 be dismissed.
(2)Further, or alternatively, relief in the nature of mandamus directing the Magistrates' Court proceeding P 01252578 be struck out."
In order to understand the substance of this proceeding it is necessary to understand that the second defendant, Magda Mikhail,[1] brought a claim for compensation pursuant to the provisions of the Accident Compensation Act 1985 (the Act) against Ford. Her Complaint, filed on 6 June 2001, alleged that she had suffered injury arising out of or in the course of her employment with Ford. The injury was said to have been sustained throughout the course of her employment by reason of the general nature and physical and mental stress and strain of her employment. This was alleged to have caused the production, aggravation, acceleration and/or recurrence of injury. The Statement of Claim described the injury as follows:
"Injury to the back involving dissection and collapse of the L4/5 disc space with disc protrusion compressing the left L4 and L5 nerve root and involving referred pain to the neck; anxiety and depression".
[1]The first Defendant is the Magistrates' Court of Victoria. As might be expected, it did not appear before me.
The worker claimed, relevantly, weekly payments from 18 January 2001, together with, in effect, a declaration that Ford was liable to pay the costs of surgery to decompress the L4/L5 neural foramen in the lumbar spine.
By Notice of Defence dated 3 July 2001 Ford denied that Mrs Mikhail had suffered injury and denied compensable incapacity. It admitted that she had been paid weekly compensation for most of the period between October 1998 and January 2001, and that certain medical and like expenses also had been paid. It denied that the plaintiff had any further entitlement to compensation. It called in aid, by paragraph 17 of the Notice of Defence, the opinion of a Medical Panel provided on 3 May 2000 which, I interpolate, was an opinion given in the course of an earlier Magistrates' Court proceeding between Mrs Mikhail and Ford. According to paragraph 18 of the Notice of Defence, by virtue of s.68(4) of the Act, the Magistrates' Court had no jurisdiction to enquire into, hear or determine the questions or matters raised by the Complaint. Apart from reliance upon the opinion of the Medical Panel and s.68(4), Ford otherwise asserted that Mrs Mikhail had no entitlement to relief.
It is next necessary to understand that the proceedings came on before a Magistrate on 9 October 2001 and that what is described in the papers before me as a "preliminary point" was agitated. The point which, at least by intention, was then debated was whether the opinion of the Medical Panel, having regard to the claim made, necessarily provided a complete answer to that claim, in consequence of which the claim must either be dismissed or struck out.
Just what occurred on 9 October 2001 is not altogether clear. To say that is an understatement. It is apparently the case that some documentary material was placed before the Learned Magistrate, the documents including the opinion of the Panel and medical reports both pre‑dating and post‑dating the giving of the opinion. The basis upon which the documents were placed before the Magistrate is quite uncertain ‑ that is, whether they went in as evidence or were received on some other and unstated basis. Be that as it may, it was contended by Mr Parrish of counsel for Ford before me that after receiving the documentary material and after hearing the submissions of counsel, the Learned Magistrate made a ruling which had the effect that the submission made for Ford was rejected.
Mr Parrish frankly and fairly conceded that the course of events below, including the ruling which he contended was made, was not clear. But he submitted that by reference to the affidavit of Nola Maree Gundry sworn 25 February 2002 in support of this proceeding, in particular, paragraphs 23 and 24, and by reference to the affidavit of Malcolm Grey sworn 21 March 2002 in opposition, in particular paragraph 17, it was possible to discern the ruling made and the reasons for which it was made. That is a submission to which I will return in a few moments.
It can be said that if the Magistrate did make a ruling it was not disclosed by any order brought to this Court. The only order made on 9 October 2001 and brought up to this Court was an order that the proceeding in the Magistrates' Court be adjourned for later mention.
The thrust of the submissions made by Mr Parrish was that the Magistrate had erred on 9 October in not concluding that the worker's claim was necessarily and fatally wounded by the opinion of the Medical Panel, this wrong conclusion being founded upon a misconception as to the effect of s.68(4) of the Act. It was this error which, according to the argument pursued by Mr Parrish, should lead to the quashing, not of the order adjourning the matter, but rather, the ruling which he contended had been made. That this was what Ford sought to have quashed is made the more clear by paragraph 1 of the relief sought by the originating motion, to which paragraph I have earlier referred.
It is, in my opinion, very clear that the error which Mr Parrish submitted the Magistrate had made should be characterised, for purposes of a proceeding seeking relief in the nature of certiorari, as an error of law on the face of the record. There is no warrant for saying that it should be characterised as an instance of jurisdictional error. Mr Parrish submitted (but without his usual force) that the alleged error might be characterised as one of jurisdictional error. In substance, however, he conceded that the alleged error was one on the face of the record. Upon the characterisation of the alleged error, I refer to Craig v. The State of South Australia[2] and to the judgment of J.D. Phillips, JA, in Returned Services League of Australia (Victoria Branch Inc) v. Liquor Licensing Commission[3].
[2](1995) 184 CLR 163 at 175‑182
[3][1999] 2 VR 203 at 208‑215
In the case of alleged error of law on the face of the record, the only material to which the court can refer, taking into account s.10 of the Administrative Law Act 1978, is, in the present case, the Statement of Claim and Notice of Defence to which I have already referred, the order which is brought up to be quashed and the reasons for the making of the order. That creates what I consider to be an insuperable difficulty for the plaintiff.
In the first place, the order which the plaintiff seeks to be quashed is not before the court.
In the second place, there is, unfortunately, no material before the court which can be relied upon to disclose what order, if any, was made; or which can be said to constitute the reasons of the Learned Magistrate for any ruling that was made. It is not to be critical of either Ms Gundry or Mr Grey to say that whilst there are points of connection between the paragraphs of their respective affidavits to which I earlier referred, there are also major points of distinction, and that there are also portions of those paragraphs which are not an attempt to state only what the learned Magistrate said.
In the third place, the restriction upon the material to which I can legitimately refer means that almost none of the material that was in some fashion placed before the Magistrate could be relied upon by Ford in this proceeding. That includes the opinion of the Panel, the material of which the Panel was seised in May 2000, and later medical reports. It is true that the Notice of Defence sets out, in paragraph 16, a paraphrase of portion of the opinion of the Panel; but it does not set out the questions that must have been asked in order to produce the opinion, a matter of considerable potential importance.
I have heard, over the last day and a half, sophisticated argument from both Mr Parrish and Mr O'Loghlen of Queen's Counsel, who with Mr Coish appeared for Mrs Mikhail. Argument ranged over a number of matters, including the proper interpretation of s.68(4), whether an opinion of a Medical Panel is for all time conclusive and, to the extent that an opinion may not be of that character, then the circumstances in which that may not be the case; as to the particular significance of the questions asked of and answered by the Medical Panel in May 2000; and as to the inevitable presence (as it was said) of a residue of claim given the broadest application of the Panel's opinion. Some of those matters, at least so far as I can understand it, were never raised before the Magistrate, though they might have been of considerable importance in the resolution of the issue that was intendedly raised for his consideration.
The fact that this proceeding must be dismissed because, by reason of deficiency of material, no basis for its success has been established relieves me of the need to attempt to resolve those arguments. That is to the good because it would not have been satisfactory to make that attempt upon the incomplete and sometimes contradictory material to which I could legitimately have referred.
It is a corollary to what I have just said that Ford's difficulties in this proceeding are likely to be of significant benefit to the parties in the long run. They will be able to fully agitate all of the arguments below in circumstances where, I apprehend, all the evidence upon which either party seeks to rely will have been properly placed before the court. The learned Magistrate, being fully seised of the evidence and all the arguments, will then be able to resolve the matter and in doing so provide reasons in a form that will enable Mrs Mikhail or Ford, as the case may be, to bring an appeal under s.109 of the Magistrates' Court Act 1989. Some at least of the matters debated before me seem likely to involve questions of law giving rise to right of appeal under that section.
From this Court's standpoint, I should add, in the event that an appeal does eventuate it will have the very great advantage that it can be brought against a background of full evidence, full argument and adequate reasons.
The proceeding must be dismissed.
MR PARRISH: If Your Honour pleases.
MR O'LOGHLEN: If Your Honour pleases. I apply for costs, Your Honour.
MR PARRISH: I say nothing, Your Honour.
HIS HONOUR: The proceeding is dismissed with costs.
MR O'LOGHLEN: If Your Honour pleases.
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