Goldsmith Pty Ltd v GPT Re Ltd
[2020] NTSC 30
•19 June 2020
CITATION: Goldsmith Pty Ltd v GPT RE Ltd & Ors [2020] NTSC 30
PARTIES: GOLDSMITH PTY LTD
(ACN 006 870 051)
v
GPT RE LTD
(ACN 107 426 504)
and
GPT FUNDS MANAGEMENT
(ACN 115 026 545)
and
JUDGE JOHN NEILL
and
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:33 of 2019 (21914523)
DELIVERED: 19 June 2020
HEARING DATES: 22 May and 14 June 2019
JUDGMENT OF: Grant CJ
CATCHWORDS:
ADMINISTRATIVE LAW – Jurisdictional error – Non-jurisdictional error on face of the record
Whether on application for transfer of proceedings Local Court’s jurisdiction was limited to making an order pursuant to ss 15 and 18 of the Local Court (Civil Procedure) Act 1989 unless satisfied plaintiff’s claim would not exceed the jurisdictional limit – Whether order joining worker as a defendant to indemnity proceedings made on the basis of irrelevant considerations and/or in breach of the rules of procedural fairness – Whether order joining worker as a defendant constituted error on the face of the record – Application dismissed.
Local Court Act 2015 (NT) s 12, s 13, s 15, s 16
Local Court (Civil Procedure) Act 1989 (NT) s 15, s 18, s 19
Return to Work Act 1986 (NT) s 54, s 176
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, Breavington v Godleman (1988) 169 CLR 41, Collins v Deflaw Pty Ltd [2000] NTSC 64, Craig v South Australia (1995) 184 CLR 163, Flaherty v Girgis (1987) 162 CLR 574, Grech v Heffey (1991) 44 FCR 93, Hockey v Yelland (1984) 157 CLR 124, ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248, Katter v Melhem (2015) 90 NSWLR 164, Kirk v Industrial Court (NSW) (2010) 239 CLR 531, Lamb v Moss (1983) 76 FLR 296, Laurie v Carroll (1958) 98 CLR 310, Lipohar v The Queen (1999) 168 ALR 8, Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599, Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, Parsons v Martin (1984) 5 FCR 235, Police & The State of South Australia v Lymberopoulos & Ors [2007] SASC 247, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, Public Service Board (NSW) v Osmond (1986) 159 CLR 656, R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488, Re Sarina; Ex parte Wollondilly Shire Council (1980) 48 FLR 372, Richards v Cornford (2010) 76 NSWLR 572, Thompson v The Queen (1989) 169 CLR 1, Tummers v Robert [1961] Qd R 580, Williams v Chief Executive Officer, Housing (2013) 33 NTLR 88, Woodward v Loadman (No 2) (2008) 22 NTLR 27, Woodward Pty Ltd v Kelleher [1989] NSWCA 82, referred to.
REPRESENTATION:
Counsel:
Plaintiff:D McConnel
First and Second Defendants: P Cheong
Third Defendant: Submitting Appearance
Intervenor:SL Brownhill SC, Solicitor-General for the Northern Territory, with T Moses
Solicitors:
Plaintiff:Minter Ellison
First and Second Defendants: Hunt & Hunt
Third Defendant: Submitting Appearance
Intervenor:Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: GRA2005
Number of pages: 26
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINGoldsmith Pty Ltd v GPT RE Ltd & Ors [2020] NTSC 30
No. 33 of 2019 (21914523)
BETWEEN:
GOLDSMITH PTY LTD
(ACN 107 426 504)
Plaintiff
AND:
GPT RE LTD
(ACN 107 426 504)
First Defendant
GPT FUNDS MANAGEMENT
(ACN 115 026 545)
Second Defendant
JUDGE JOHN NEILL
Third Defendant
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
Intervenor
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 19 June 2020)
This is an application for judicial review of interlocutory orders made by the Local Court on 5 April 2019. Those orders were made in the context of an application by the plaintiff for an order transferring proceedings for indemnity against the first and second defendants to the Supreme Court. The basis for the application for transfer was the plaintiff’s apprehension that its claim for indemnity against the first and second defendants would exceed the Local Court’s civil jurisdictional limit of $250,000.[1]
Background
On or about 11 August 2017, a worker sustained physical injury to her lower back, right hip and knees in the course of her employment with the plaintiff. The circumstances of the injury were that the worker slipped in the public area of the shopping centre owned by one or other of the first and second defendants, in which the plaintiff’s business was located.
The worker made a claim for compensation under the Return to Work Act 1986 (NT) which was accepted by the plaintiff, and workers compensation entitlements were paid.
On 3 May 2018, the plaintiff commenced proceedings against the defendants in the Local Court for indemnity pursuant to s 176 of the Return to Work Act on the basis that one or other of the first and second defendants bore liability for the injury (the indemnity proceedings). That section provides relevantly that where a worker has received workers compensation from the employer but has made no recovery from any other person liable to pay damages in respect of the injury, the person liable to pay the damages shall indemnify the employer against so much of the compensation paid to the worker as does not exceed the damages for which the person is liable.
At the time the indemnity proceedings were filed the worker’s claim was limited to the physical injuries, and the plaintiff took the view that the level of indemnity sought would fall within the jurisdictional limit of the Local Court.
On 4 June 2018, the plaintiff cancelled benefits pursuant to s 69 of the Return to Work Act. The worker challenged that decision, and then on 20 August 2018 lodged a claim for compensation in respect of a psychological injury alleged to have been sustained, presumably as a consequence of or a sequela to the physical injury. By Notice of Decision dated 23 October 2018 the plaintiff disputed liability for the psychological injury claimed. The worker subsequently commenced proceedings in the Local Court challenging the decision to dispute the claim.
As a result of the subsequent claim for psychological injury, the plaintiff took the view that its potential liability to pay workers compensation entitlements to the worker was significantly increased, with the consequence that the potential liability of the first and second defendants to indemnify the plaintiff also increased significantly. That increased exposure derived from the fact that the worker now claimed a loss of earning capacity after the date of cancellation on 4 June 2018 on the basis of partial or total incapacity for work, potentially over a period of some 14 years to the worker’s normal retirement age. In that event, the plaintiff’s claim for indemnity would exceed the Local Court’s jurisdictional limit. However, the pecuniary value of the claim for indemnity is contingent on the determination of the worker’s claim for compensation and, if successful, the period of her incapacity.
The application for transfer of the indemnity proceedings was heard on 5 April 2019. The Local Court declined to make the order for transfer on the basis that there was only an assertion by the plaintiff that the claim for indemnity might exceed the jurisdictional limit. The Local Court also found that any recovery by the plaintiff against the defendant might arguably deprive the worker of an entitlement to compensation by operation of s 54(2) of the Return to Work Act; and ordered in consequence that the worker be joined as a third defendant to the indemnity proceedings, that the pleadings and the application for transfer and affidavit in support be served on the worker within seven days, and that the worker file an appearance within 14 days.
The grounds for judicial review
Section 18 of the Local Court (Civil Procedure) Act 1989 (NT) provides for transfer in the following terms:
Transfer of proceedings to Supreme Court
(1) A party to proceedings (other than an appeal) may apply to the Court for an order that the proceedings be transferred to the Supreme Court.
(2) An application may be made under subsection (1) even if the claim the subject of the proceedings is wholly or partly beyond the jurisdiction of the Court.
(3) On an application under subsection (1), the Court may, if it considers it appropriate to do so, order that the proceedings be transferred to the Supreme Court.
(4) Where an order is made under this section:
(a) the proceedings in the Local Court are discontinued;
(b) the record and all documents relating to the proceedings must be transmitted by the principal registrar to the Supreme Court; and
(c) the Supreme Court has power to regulate the procedure in the transferred proceedings.
Section 15 of the Local Court (Civil Procedure) Act provides:
Claim beyond jurisdiction
(1) Where a claim is wholly or partly beyond the jurisdiction of the Court, the Court may:
(a) amend the claim for the purpose of bringing it within jurisdiction;
(b) order that the proceedings be stayed pending the making of an application under section 18; or
(c) order that the claim be struck out and award costs as if it had jurisdiction and the claim were dismissed.
(2) Where:
(a) under subsection (1)(b), the Court orders that proceedings be stayed pending the making of an application under section 18; and
(b) within a reasonable time after the making of that order the proceedings have not been transferred to the Supreme Court,
the Court may exercise the power conferred by subsection (1)(c).
The grounds for judicial review pleaded in the Amended Originating Motion may be summarised as follows:
(a)Although the Local Court has jurisdiction to hear an application for the transfer of proceedings beyond the monetary jurisdiction of the Court, once the application for transfer was made, the Court’s jurisdiction was limited to making an order for the transfer of proceedings pursuant to s 18 of the Local Court (Civil Procedure) Act 1989 (NT), or an order under s 15 of that legislation, unless it was satisfied that the plaintiff’s claim would not exceed the jurisdictional limit of $250,000.
(b)The order joining the worker as a defendant to the indemnity proceedings was made on the basis of irrelevant considerations and/or in breach of the rules of procedural fairness.
(c)The order joining the worker as a defendant to the indemnity proceedings (together with the ancillary orders requiring service of process on her and the filing of an Appearance), constituted error on the face of the record.
The principal thrust of the plaintiff’s contention is that the Local Court was required to transfer the proceeding unless satisfied it was not appropriate to do so. Put another way, the argument is that the Local Court’s jurisdiction is limited to making an order for transfer unless positively satisfied that the claim will not exceed the civil jurisdictional limit. On that argument, the Local Court was required to exercise jurisdiction to transfer the proceeding to this Court, and did not have jurisdiction to make orders for the joinder of the worker as a defendant to the proceeding. A number of matters should be noted at the outset.
First, it is common ground that if the psychological injury claimed by the worker is found to be compensable under the Return to Work Act, the quantum of the plaintiff’s claim for indemnity will be greater than $250,000. However, at the time the application for transfer was considered by the Local Court, the worker’s claim for psychological injury had not been pleaded or particularised. It was also the case that the plaintiff’s claim for indemnity against the first and second defendants was at that time limited to compensation paid to the worker between 11 August 2017 and 20 December 2018, and was for an amount less than $250,000. The contention that the ultimate quantum of the claim for indemnity was greater than $250,000 was both contingent and prospective.
Second, it is common ground that the Local Court was in error to order the joinder of the worker to the proceedings.
In procedural terms, that order was made on the basis that the worker would not otherwise have an entitlement to be heard on any issue arising in the indemnity proceedings which bore on her interests. That is not the case. A non-party may be given leave to make submissions on matters affecting its interests[2], although it may be accepted that the joinder of the worker would operate to ensure she had notice of the matters in issue in the indemnity proceedings.
In substantive terms, the order for joinder was made on the basis that s 54(2) of the Return to Work Act might operate to limit the worker’s entitlement to compensation under the Act in the event the employer was successful in its claim for indemnity. The order for joinder on that basis was misconceived. Section 54 of the Return to Work Act is concerned exclusively with circumstances in which a worker or his or her dependants is paid, recovers or is awarded compensation or damages under another law. However, the joinder order was interlocutory in nature and the avenue of appeal from the Local Court to this Court is limited to a “final order … in the proceedings”.[3]
Judicial review is the only form of action by which the determination may be challenged at this stage of proceedings. Subject to the availability of certiorari for error of law on the face of a record (which is discussed further below), it is necessary to show that the error constituted a jurisdictional defect rather than error of law within jurisdiction.
Limitation on jurisdiction of the Local Court
As described above, the first ground of review is that the Local Court’s jurisdiction was limited in the circumstances to a consideration of the application for transfer. The plaintiff’s argument in this respect is based on its propounded construction of ss 15 and 18 of the Local Court (Civil Procedure) Act, and also in large part on the decision of this Court in Collins v Deflaw Pty Ltd[4]. That was a matter involving a counterclaim for misleading and deceptive conduct giving rise to damages in the nature of economic loss. Some time after the lodgement of that counterclaim, and during the course of a case management conference, the defendant advised that it was for an amount in excess of $300,000. No particulars of that loss had been provided. The plaintiff asserted that the defendant should institute separate proceedings in the Supreme Court in respect of that claim, and that the Local Court should proceed to hear the plaintiff’s claim separately. The defendant then made an application to transfer the proceedings to the Supreme Court. The magistrate declined to make an order for transfer, apparently on the basis that the application was an attempt by the defendant to delay the hearing of the plaintiff’s claim, and that the damages sought by counterclaim had not been properly particularised. The defendant brought an appeal from that refusal.
At [9], [10] and [11] of his reasons for decision allowing the appeal, Martin (BF) CJ made the following observations:
… If there was an obligation on the learned Magistrate to transfer the proceedings, then that should have been done whatever the stage of the proceedings or the state of the pleadings. Insistence upon perfect pleadings and particulars was an irrelevant consideration which pervaded much of what followed as disclosed through a further 200 pages of transcript. His Worship was also acting outside the jurisdiction of the Local Court.
The concentration of all concerned should have been directed to the law regarding the jurisdictional limit of the Local Court, which jurisdiction is limited by the Local Courts Act. Where the cause of action is for damages, it has jurisdiction if the amount claimed is within that jurisdictional limit of $100,000 [as it then was]. The Act contemplates the proceedings may be wholly or partly beyond the jurisdiction of the Court and s 15 provides the remedy. The claim may be amended so as to bring it within jurisdiction (no doubt the claimant could apply for an order or consent to such an amendment), or the claim may be struck out. But the Court also has jurisdiction to order that the proceedings be stayed pending the making of an application under s 18 for an order that the proceedings be transferred to this Court. The Local Court has jurisdiction where proceedings are wholly or partly beyond its jurisdiction only to the extent provided for in the statute.
There is no barrier to the institution of proceedings in the Local Court, whether by way of claim or counterclaim, in which a remedy or an amount is sought which is beyond that Court’s jurisdiction. It has no jurisdiction to entertain such proceedings, but it has jurisdiction to exercise the powers contained in s 15 and s 18. I do not accept the respondent’s argument based upon s 14 that the Local Court has jurisdiction in respect of a claim beyond the limit until just prior to the hearing. Just because the Court has power to hear and determine a claim within its jurisdictional limit, does not mean that it has jurisdiction to hear and determine all interlocutory matters up until the hearing of a claim beyond its jurisdictional limit. In my opinion the Local Court has no discretion when it is faced with a claim beyond its jurisdiction where there is no amendment to bring it within jurisdiction, and it is not a proper case for the claim to be struck out (see for example s 15(2)).
His Honour then said at [13]:
I do not think it was appropriate for the appellant to be put to proof of the amount of his claim (an exercise undertaken at one stage) nor that he should have been obliged to provide particulars. Once it was made clear that the amount claimed was in excess of the jurisdictional limit, the application for transfer should have been dealt with on that basis alone (Sunderland v Glover (1914) 1 KB 393 is distinguishable on the legislation there under consideration). His Worship’s reasons for refusing the application to transfer the proceedings are based upon discretionary considerations which I do not think were relevant in these circumstances.
The plaintiff relies in particular on the passage in Collins v Deflaw (at [9]) to the effect that the Local Court was acting outside its jurisdiction in refusing to make the order for transfer and purporting to deal with interlocutory matters involving the adequacy of pleadings and particulars. The principle expressed in Collins v Deflaw is that once it is established that the claim is for an amount in excess of the jurisdictional limit, the application for transfer should have been dealt with on that basis alone. In those circumstances, it would constitute error to take into account matters going to the claimant’s possible motivations and an absence of particulars. The principle is not that the Local Court’s jurisdiction is limited to making an order for transfer unless positively satisfied that the claim will not exceed the civil jurisdictional limit. Rather, s 15(1) of the Local Court (Civil Procedure) Act requires a satisfaction that the claim as it presents is beyond the jurisdiction of the Court, and s 18(3) requires a satisfaction that an order for transfer to the Supreme Court would be “appropriate”.
Both provisions allow that the Court “may” make the relevant orders. Although the term is prima facie discretionary in operation, when used in relation to the investment of power in a court it may oblige the exercise of the power when the conditions for that exercise are satisfied. That is particularly so where the provision in question vests jurisdiction in a court.[5] Different considerations may apply where the provision empowers the court to grant a type of relief.[6] The provisions here under consideration do not invest the Local Court with jurisdiction, but they are concerned with the limits of the Court’s jurisdiction. The better view is that the powers are facultative, even though it would be rare for them not to be exercised in the event the Court positively formed the view that a claim exceeded its monetary jurisdictional limit.[7]
There is an obvious point of distinction between the circumstances considered in Collins v Deflaw and the present matter. In Collins v Deflaw the counterclaimant’s loss had crystallised and was positively asserted to be in an amount in excess of the jurisdictional limit. In the present matter, the amount of the plaintiff’s claim for indemnity had not yet crystallised, and would not do so until the resolution of the workers compensation proceedings. On the basis of the payments made to the point of the application for transfer, the claim for indemnity was below the civil jurisdictional limit. However, and dependent upon the outcome of the workers compensation proceedings and the nature and duration of the worker’s incapacity, the claim for indemnity might exceed the jurisdictional limit by a substantial margin. That feature of the plaintiff’s claim for indemnity is enough in itself to deny the proposition that the Local Court was limited to making an order for transfer in the circumstances, and obliged to do so.
Collins v Deflaw is also not authority for the proposition that a refusal to order the transfer of proceedings is necessarily a jurisdictional defect rather than an error of law within jurisdiction. It should be noted that the issue in that matter came before the Supreme Court by way of appeal rather than application for judicial review, at a time when interlocutory orders remained susceptible to appeal.
In Craig v South Australia[8] the High Court drew a distinction between inferior courts and administrative tribunals in considering what constitutes jurisdictional error. The Court stated:[9]
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. … [An] inferior court will fall into jurisdictional error … where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
The Court went on to give a non-exhaustive exposition of examples of that type of error.[10] Those examples included:
(a)Where an inferior court entertains a matter or makes a decision or order of a kind which wholly or partly lies outside the limits of its functions and powers; such as purporting to hear and determine a criminal charge where its jurisdiction is strictly limited to civil matters.
(b)Where an inferior court makes an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers are strictly limited to awarding damages for breach.
(c)Where an inferior court does something which it lacks authority to, such as exercising jurisdiction where an essential condition of the existence of jurisdiction is the occurrence of a certain event or the satisfaction of a certain requirement.
(d)Where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case (although the line between jurisdictional error and mere error in the exercise of jurisdiction may be difficult to discern in such cases).
The civil jurisdiction of the Local Court is conferred by Division 2, Part 3 of the Local Court Act 2015 (NT). The monetary jurisdictional limit is $250,000.[11] The Court has jurisdiction to deal with a claim for damages, debt or liquidated demand within that limit, but not otherwise.[12] The Court may also deal with a claim for equitable relief or the ownership or possession of property where the value of the right or relief sought does not exceed the jurisdictional limit.[13] There are other limitations on the Court’s jurisdiction which are not monetary in nature. For example, the Court does not have jurisdiction to issue the prerogative writs, and could not entertain proceedings seeking relief of that kind.[14] Similarly, the Court does not have jurisdiction to deal with a matter unless a material part of the claim arose in the Territory or the defendant resided in the Territory at the time of being served with the claim.[15]
The content of the conferral demonstrates that the term "jurisdiction" is used in a variety of senses. It may be used to describe the amenability of a defendant to the court's writ and the geographical reach of that writ; to identify the subject matter of those actions which may be entertained by a particular court; or to identify the form of relief which may be granted.[16] So it may be seen that the reference in s 15 of the Local Court (Civil Procedure) Act to “a claim … wholly or partly beyond the jurisdiction of the Court” is not limited in its operation to claims beyond the monetary jurisdictional limit. The Court’s approach to the claim and the range of powers available to it will depend upon the manner in which the claim is beyond jurisdiction.
An application for transfer under s 18 would not properly be available for a suit which did not have the requisite geographical nexus. The Court’s power and jurisdiction in those circumstances would be limited to making an order that the claim be struck out and awarding costs as if it had jurisdiction and the claim were dismissed; and to such interlocutory orders as might be necessary for the purposes of determining whether the geographical nexus did exist. A claim for prerogative relief brought wrongly in the Local Court might be either struck out or, possibly, transferred to the Supreme Court. A claim beyond the monetary jurisdictional limit might be amended, stayed pending an application for transfer or struck out, but the facultative provision which vests those powers in the Court does not itself operate to delimit its jurisdiction.
The intervenor correctly identifies that a monetary jurisdictional limit operates on a court’s authority to order judgment in excess of the limit, rather than to deprive the court of jurisdiction to hear the claim or otherwise to take any step in the matter.[17] That is recognised in those provisions of the conferral of jurisdiction which contemplate that the parties may give consent to the Local Court to deal with a claim in excess of the monetary jurisdictional limit[18], and that the Court may amend the claim for the purpose of bringing it within the jurisdictional limit[19]. On proper construction, s 15(1) of the Local Court (Civil Procedure) Act does not necessarily limit the Court to making only one or other of the orders specified and otherwise deprive it of jurisdiction; and s 18(3) of the Local Court (Civil Procedure) Act confers a discretion on the Court in determining whether or not it is appropriate to order the transfer of the proceedings[20].
There is no doubt in this case that the indemnity proceedings were properly commenced within the jurisdiction of the Local Court. The Court had subject matter jurisdiction, there was the requisite geographical nexus, and the Court was empowered to grant the relief sought. The proceedings as commenced did not lie outside the limits of the Court’s functions and powers. Having commenced the proceedings in regular fashion, the subsequent assertion by the plaintiff concerning the quantum of its claim did not operate of itself to deprive the Court of an essential condition of the existence of its jurisdiction or its authority to make orders. Nor did the Court’s determination that there was at that point inadequate information to determine the quantum of the worker’s claim constitute a misconstruction of either the provisions of the Local Court Act conferring jurisdiction or ss 15 and 18 of the Local Court (Civil Procedure) Act, or a misconception of the nature of the function which it was performing or the extent of its powers.
The Court accepted that transfer was “inevitable” in the event the claim for indemnity exceeded the monetary jurisdictional limit, but was unable at the time the application was pressed to find that it did. Even accepting that the order joining the worker to the proceedings was made in error, it was not such as to constitute a jurisdictional defect. It was to this type of error that the High Court was referring in Craig v South Australia when it stated:[21]
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
The Local Court has a general power to order the joinder of a party to proceedings.[22] For the reasons already described, the Court was not deprived of jurisdiction over the claim by reason of the monetary limit, and the determination by the Court not to transfer the proceedings to the Supreme Court at that stage did not constitute jurisdictional error. It follows that it remained open to the Court in the jurisdictional sense to order the joinder of a party. To the extent that order for joinder was premised on an error of law, or actuated by irrelevant considerations, it also did not involve jurisdictional error.
The decision of the High Court in Kirk v Industrial Court of New South Wales[23] does not require any different result. Although the Court indicated that the categories of jurisdictional error outlined in Craig v South Australia should not be “taken as marking the boundaries of the relevant field”, the jurisdictional errors found in Kirk were of an entirely different character to the errors asserted in the present matter. In Kirk the appellants had been convicted and sentenced of a crime on an invalid charge and on the basis of evidence received in breach of a statutorily entrenched privilege against self-incrimination. The defects in that case were essentially jurisdictional in nature, and the Industrial Court had no power to make the orders in question.
Irrelevant considerations and/or breach of procedural fairness
The second ground on which review is sought is that the order joining the worker as a defendant to the indemnity proceedings was made on the basis of an irrelevant consideration and/or in breach of the rules of procedural fairness.
The irrelevant consideration is said to have been the risk of prejudice to the worker arising from the indemnity proceedings. As already stated, it is common ground that on proper construction of s 54 of the Return to Work Act there was no such risk. It follows that the illusory risk might be characterised as an irrelevant consideration. However, for the reasons which have already been addressed in dealing with the first ground, taking that irrelevant consideration into account did not constitute a jurisdictional error in this context.
Although Lord Reid’s speech in Anisminic Ltd v Foreign Compensation Commission[24] states that a tribunal has committed jurisdictional error if it “based its decision on some matter which, under the provision setting it up, it had no right to take into account”, that statement must be considered in light of the distinction subsequently drawn by the High Court in Craig v South Australia between administrative tribunals and inferior courts. Although an administrative tribunal will necessarily commit jurisdictional error if it takes into account irrelevant considerations, an inferior court will not. The misidentification of the issue by the Local Court involved an error of law within jurisdiction rather than a jurisdictional defect.
I turn then to consider the contention that there was some material breach of the rules of procedural fairness in the determination by the Local Court to make orders for the joinder of the worker. It is axiomatic that natural justice and procedural fairness lie at the heart of the judicial process. A breach of those rules, if not strictly a form of jurisdictional error, will attract a grant of prerogative relief in an appropriate case.[25] It may also be accepted that whatever the precise content of procedural fairness might be in a particular context, there will be a breach where a party is deprived of an adequate opportunity to prepare and/or present its case. However, the circumstances in which the order for joinder was made in this matter do not warrant a grant of relief in the exercise of the supervisory jurisdiction.
The decision on joinder was interlocutory in nature and made at an early stage of proceedings. It did not determine the ultimate and substantive issues in the case in a manner which bore on the interests of the plaintiff. In addition, the order for joinder was not itself final. If the joinder was shown to give rise to some real prejudice to the plaintiff’s position, it was always open to it to go back and make application for the removal of the worker as a party to the proceeding. The most that can be said is that the order for joinder of the worker may have been inconvenient for the plaintiff for practical, tactical and/or strategic reasons, and may have had costs ramifications.
In any event, it is by no means unusual for counsel to be required to deal “on the run” with programming and related orders proposed by a court during case management mentions and the hearing of interlocutory applications. Counsel for the plaintiff was before the Court at the time the order was made and, although there was an air of predetermination about the matter, an opportunity was afforded to make submissions on the issue.[26] Indeed, counsel for the plaintiff made submissions concerning the proper construction and operation of s 54 of the Return to Work Act which were entirely consistent with the parties’ agreement in this matter that the Local Court was in error in making the order for joinder.
Having received those submissions, the Court took the view that the operation of the provision could not be finally determined without first joining the worker to permit her some opportunity to address the issue. Properly analysed, the plaintiff’s complaint is not a failure to accord procedural fairness in relation to the proposed joinder of the worker, but the fact that the worker was joined as a precursor to the final determination of the proper construction and operation of s 54 of the Return to Work Act, or at all.
Even if it is accepted that there was a denial of procedural fairness in the present case, the breach was not one which gave rise to “practical injustice”.[27] The failure asserted was one of notice, but that did not result in a loss of the opportunity to make submissions in a manner which bore on the Court’s determination.
Error of law on the face of the record
The third ground on which review is sought is that the order joining the worker as a defendant to the indemnity proceedings (together with the ancillary orders requiring service of process on her and the filing of an Appearance), constituted error of law on the face of the record. Although, to be fair, this ground was added after I had raised the issue during the course of submissions, it may be dealt with briefly.
As already described, prerogative relief is generally only available in relation to the decisions of inferior courts in cases of jurisdictional defect. One exception is the availability of certiorari for non-jurisdictional errors of law appearing on the face of the record. Although the principles underpinning the availability of this remedy have been recently criticised[28], at least in their application to administrative decisions, it remains part of Australian law. However, the scope of the remedy is restricted to errors which form part of the “record”. The record will ordinarily include only the initiating process, the pleadings and the actual order or ruling made.[29] In the absence of some statutory provision to the contrary[30], the record of an inferior court for the purposes of certiorari does not include the transcript, the exhibits or the reasons for decision. [31]
The plaintiff’s contention on this ground is that: (a) Order 2 made on 5 April 2019 provided that the worker “is joined as Third Defendant to these proceedings”; (b) on a proper construction of the relevant provisions of the Local Court Act and the Local Court (Civil Procedure) Act, the Court could only make such orders as were necessary for the purpose of deciding the application for transfer of the proceedings; and (c) error was therefore manifest in the bare terms of the order for joinder.
That contention cannot be accepted for a number of reasons. First, for the reasons already described in the context of the first ground, the Local Court’s jurisdiction and power was not constrained in that fashion. Second, even accepting that the Court was obliged to order transfer if satisfied that the claim was in excess of the monetary jurisdictional limit, there is nothing appearing on the face of the initiating process, the pleadings or the order which establishes that claim was in excess of that limit. Third, even if it is accepted that the plaintiff’s Application for transfer formed part of the initiating process and pleadings, the Court was not limited to making the orders sought in an interlocutory application, either generally or in the particular circumstances of this case. Fourth, the errors of law involving the construction of s 54 of the Return to Work Act and the necessity for the worker’s joinder are not apparent on the face of the order. Finally, the Court had an express power under the Rules to order the joinder of a party, and the terms of the order do not disclose any error on that account.
Disposition
The application is dismissed. I will hear the parties in relation to costs if need be.
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[1] See Local Court Act 2015 (NT), s 12.
[2] A distinction is properly drawn in that respect between a non-party whose interests may be affected by the grant of relief in the proceedings, and a party who has not filed an Appearance.
[3] See Local Court (Civil Procedure) Act, s 19(1).
[4] Collins v Deflaw Pty Ltd [2000] NTSC 64.
[5] See, for example, Lamb v Moss (1983) 76 FLR 296 at 311.
[6] Grech v Heffey (1991) 44 FCR 93 at 97; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 257.
[7] See Re Sarina; Ex parte Wollondilly Shire Council (1980) 48 FLR 372; Williams v Chief Executive Officer, Housing (2013) 33 NTLR 88 at [10]. It is possible, for example, that the Court might decline to order transfer under s 18(3) if the claim is obviously frivolous or colourable.
[8] Craig v South Australia (1995) 184 CLR 163; cf Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]-[70].
[9] Craig v South Australia (1995) 184 CLR 163 at 177.
[10] Craig v South Australia (1995) 184 CLR 163 at 177-8.
[11] Local Court Act, s 12.
[12] Local Court Act, s 13(1).
[13] Local Court Act, s 13(2), (3).
[14] Local Court Act, s 15(3).
[15] Local Court Act, s 16.
[16] See Lipohar v The Queen (1999) 168 ALR 8 at [79]; Laurie v Carroll (1958) 98 CLR 310 at 331; Breavington v Godleman (1988) 169 CLR 41 at 77, 87, 97, 107; Flaherty v Girgis (1987) 162 CLR 574 at 598; Parsons v Martin (1984) 5 FCR 235 at 240; Thompson v The Queen (1989) 169 CLR 1 at 11-12.
[17] Richards v Cornford (2010) 76 NSWLR 572; Woodward Pty Ltd v Kelleher [1989] NSWCA 82; Katter v Melhem (2015) 90 NSWLR 164.
[18] Local Court Act, ss 13(1), (2) and (3).
[19] Local Court (Civil Procedure) Act, s 15(1)(a).
[20] Tummers v Robert [1961] Qd R 580 at 582.
[21] Craig v South Australia (1995) 184 CLR 163 at 179-180.
[22] Local Court (Civil Jurisdiction) Rules, r 12.05.
[23] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
[24] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171.
[25] Craig v South Australia (1995) 184 CLR 163 at 175-176; Police & The State of South Australia v Lymberopoulos & Ors [2007] SASC 247; Woodward v Loadman (No 2) (2008) 22 NTLR 27.
[26] Transcript of Proceedings, 5 April 2019, pp 8-17.
[27] Transcript of Proceedings, 5 April 2019, pp 8-17. Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [38]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37].
[28] In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [77]-[78], Gageler J observed that the rule should be regarded as "a failed mid-twentieth century experiment of the common law".
[29] Craig v South Australia (1995) 184 CLR 163 at 182.
[30] See Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [88]-[90].
[31] Craig v South Australia (1995) 184 CLR 163 at 181; citing R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 at 495-496, 501-502; Hockey v Yelland (1984) 157 CLR 124 at 131, 142-143; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667.
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