Goodenough v State of Victoria
[2016] VSC 733
•5 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 00529
| CLIVE BELMONT GOODENOUGH | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 October 2016 |
DATE OF JUDGMENT: | 5 December 2016 |
CASE MAY BE CITED AS: | Goodenough v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2016] VSC 733 |
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PRACTICE AND PROCEDURE – Application for an extension of time pursuant to the Limitation of Actions Act 1958 section 27K – Referral to an Associate Judge under Supreme Court (General Civil Procedure) Rules 2015 Rule 77.05 – Whether matter was ‘before a Judge of the Court’ – Whether referral order validly made – Extent of authority of an Associate Judge – Amendments contained within Courts Legislation Amendment (Associate Judges) Act 2008 – Constitution Act 1975 section 75A – Supreme Court Act 1986 sections 17(1A), 25(1)(b) – Supreme Court (General Civil Procedure) Rules 2015 Rules 77.01, 77.02 – Whether referral order should be set aside – Supreme Court (General Civil Procedure) Rules 2015 Rule 2.01(2)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Robertson QC with Mr A Coote | Mahons with Yuncken & Yuncken |
| For the Defendant | Ms R Kaye | Victorian Government Solicitor’s Office |
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HIS HONOUR:
Introduction
In this proceeding the plaintiff claims that he suffered injury as a consequence of being the victim of two assaults during a period of imprisonment in 1993. He alleges that there was negligence on the part of the defendant’s administrators, prison governors, and prison officers at the prisons at which he was held which was a cause of the assaults and of his injuries. The defendant does not admit the assaults, and denies negligence on the part of its administrators, prison governors and prison officers. In addition, the defendant pleads that the plaintiff’s alleged cause of action is barred by operation of s 5 of the Limitation of Actions Act 1958 (‘the LAA’).
By summons filed 29 July 2016, the plaintiff makes application pursuant to s 27K of the LAA for an extension of the period within which to bring this proceeding to the date on which the writ was issued (‘the limitations application’). The limitations application was listed for hearing on 4 October. On the morning of the hearing I made an order pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) referring the hearing of the limitations application to Ierodiaconou AsJ. That order was made in chambers on the court’s own motion.
The hearing of the limitations application proceeded before her Honour on 4 and 5 October. During the hearing of the limitations application, counsel for the plaintiff submitted that the referral order was irregular and should be set aside pursuant to r 2.01(2)(b) of the Rules. It was agreed that her Honour should proceed to hear the limitations application, but that delivery of judgment would be delayed pending an application to me by the plaintiff to set aside the referral order.
Referral order
The application of the plaintiff to set aside the referral order was heard by me on 27 October.
The referral order made by me on 4 October 2016 provides:
The application on summons filed by the Plaintiff on 29 July 2016 is referred to Associate Justice Ierodiaconou for hearing and determination pursuant to Rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2015.
Rule 77.05(1) reads:
If a matter before a Judge of the Court, which matter would not otherwise be within the authority of an Associate Judge, appears to the Judge to be proper for the determination of an Associate Judge, the Judge of the Court, by order, may refer the matter to an Associate Judge.
Counsel for the plaintiff argue that the order is irregular within the meaning of r 2.01 for two reasons. First, it is submitted that the limitations application was not before me on 4 October 2016, and accordingly the first precondition of r 77.05(1) had not been met. Second, it was submitted that the limitations application was a matter within the authority of an Associate Judge so that the second precondition of r 77.05(1) was not met.
Counsel for the defendant agreed that the limitations application was within the authority of an Associate Judge and submitted, on that basis, that the referral orders should be set aside.
‘Before a Judge of the Court’
Counsel for the plaintiff noted that the extension of time application was fixed for hearing before Ierodiaconou AsJ in accordance with the ordinary practice of the court; that the parties had had no notice that a referral order might be made; and that the order was made without the attendance of the parties. It was submitted that on that basis the limitations application was never before me, and that the first precondition of r 77.05 had not been met.
Counsel for the defendant submitted that it did not follow that the application for the extension of time was not ‘before a Judge of the Court’ simply because the application had been listed for hearing before Ierodiaconou AsJ. The content of the referral order itself reflected the fact that the matter was before me for the purpose of making that order.
I agree with the submissions of counsel for the defendant. The limitations application was before me on 4 October for the purpose of making the referral order.
Legislative provisions
At this point, it is convenient to set out the relevant statutory provisions. Section 75A of the Constitution Act 1975 (‘Constitution Act’) reads:
(1) The Court is divided into—
(a) the Court of Appeal; and
(b) the Trial Division.
…
(4)The Trial Division may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules of court for the Court or the Trial Division to be so constituted.
Section 17(1A) of the Supreme Court Act 1986 (‘SCA’) reads:
The Trial Division constituted by an Associate Judge may hear and determine all matters, whether civil or criminal, not required by or under this Act or any other Act or the Rules to be heard and determined—
(a) by the Court of Appeal; or
(b) by the Trial Division constituted by a Judge of the Court.
Section 25(1)(b) of the SCA reads:
The Judges of the Court (not including any reserve Judge) may make Rules of Court for or with respect to the following:
…
(b)The prescription of the proceedings or class of proceedings which may be dealt with by the Court constituted by an Associate Judge;
The relevant parts of Order 77 of the Rules read as follows:
77.01 Authority
(1)Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may, in any proceeding to which these Rules apply, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court.
(2)Subject to this Order, an Associate Judge, in addition to exercising the powers and authorities conferred by any other provision of these Rules, may hear and determine—
(a)any application and exercise any powers and authorities under the following statutory provisions—
…
(b)an application under any Act for payment or transfer to any person of any money or securities in Court, including any interest;
(c)an application for or relating to the sale of property by auction or private contract, and for payment into court and investment of the purchase money;
(d) an application—
(i)for the appointment of a receiver by way of equitable execution;
(ii)for an injunction ancillary or incidental to equitable execution;
(iii)made under Rule 21.04(1) for judgment for an injunction;
(e) any proceeding for the recovery of land under Order 53;
(f) a trial of an undefended civil proceeding;
(g)any application to stay or dismiss a proceeding commenced by a law practice to recover legal costs where the application is brought on the ground that the proceeding has been commenced in contravention of section 194 of the Legal Profession Uniform Law (Victoria).
77.02 Limitations on authority
(1)Subject to paragraph (2) and Rules 12.12, 22.08(1)(d), 22.22(c), 32.08(3) and 77.01(2)(b), (c), (d), (e) and (f)—
(a)the trial of a proceeding shall not be held before an Associate Judge; and
(b)an Associate Judge shall not give any judgment or make any order at the trial of a proceeding.
(2)Except as provided by paragraph (3)(a), (c), (d) or (e), an Associate Judge may at the trial of a proceeding give judgment or make an order by consent of all parties.
(3) An Associate Judge shall not have authority to hear and determine—
(a)any application which by these Rules or any Act is required to be heard only by a Judge of the Court or the Court of Appeal, as the case requires;
(b)subject to this Order, any application for an injunction or other order under section 37 of the Supreme Court Act 1986;
(c)subject to paragraph (d), any proceeding relating to the liberty of the subject;
(d)any criminal proceeding, other than an appeal or an application for leave to appeal to which Order 3A of Chapter VI applies;
(e)any application under section 28 or 54 of the Vexatious Proceedings Act 2014;
(f)any application or proceeding under Part 2 or Part 2A of the Confiscation Act 1997.
Submissions of the parties — s 17(1A) of the SCA
Counsel for the plaintiff commenced by drawing attention to s 75A of the Constitution Act, which provides that the Trial Division of the Court may be constituted by an Associate Judge where provision is made by an Act or by the Rules of the Court. Counsel submitted that it is s 17(1A) of the SCA which makes the provision contemplated by s 75A of the Constitution Act for an Associate Judge to hear and determine all matters not required by that Act or any other Act or the Rules to be heard and determined by a Judge of the Court. It was submitted that there was nothing in the SCA, any other Act or the Rules which limits the authority granted by s 17(1A) to an Associate Judge to hear and determine an application such as the limitations application. Therefore, Ierodiaconou AsJ had authority to hear and determine the limitations application.
Counsel for the plaintiff submitted that the Rules will only restrict the authority of an Associate Judge to hear and determine matters before the Court to the extent that a positive requirement exists in the Rules that a matter be dealt with by the Trial Division constituted by a Judge of the Court. It was submitted that r 77.01 was a permissive rather than a restrictive Rule, and did not therefore impose any restriction on the authority of an Associate Judge conferred by s 17(1A) of the SCA. Limitations on authority were dealt with in r 77.02. It was submitted, first, that an application for an extension of time under the LAA is specifically interlocutory, and does not involve the final determination of rights between the parties. The hearing and determination of such an application is not, therefore, the trial of a proceeding. Second, none of the particular restrictions listed in r 77.02(3), imposing the requirement that certain matters be heard by a Judge of the Court, were relevant to an application of this nature.
Counsel for the defendant noted that the authority conferred on an Associate Judge to hear and determine the limitations application was not limited by any provision of the LAA. Counsel queried whether an application of this nature could be considered to be a trial of a proceeding, so that authority was removed from an Associate Judge pursuant to r 77.02(1). However, counsel for the defendant ultimately agreed that this was not the case, and that authority was conferred on an Associate Judge to hear and determine an application of this nature by s 17(1A) of the SCA. In support of that construction, attention was drawn to s 17AA of the SCA, which has the consequence that a Judicial Registrar may only hear and determine a matter before the Court where authority to do so is provided by the Rules. It was submitted that the contrast between the two sections established a context which supports the conclusion that the source of power of an Associate Judge to hear and determine matters was s 17(1A) of the SCA.
Analysis — s 17(1A) of the SCA
The above provisions of the Constitution Act and the SCA were amended in December 2008 by the Courts Legislation Amendment (Associate Judges) Act 2008 (‘the amending Act’). Amendment of s 75A(4) of the Constitution Act and s 25(1)(b) of the SCA consisted simply of the substitution of ‘an Associate Judge’ for ‘a Master’, reflecting creation of the office of Associate Judge. Other amendments of the SCA by the amending Act were more significant.
Section 17 of the SCA governs which judicial officers may exercise the jurisdiction to hear and determine matters in the Trial Division. The insertion of subsection (1A) into s 17 of the SCA by the amending Act resulted in there being a difference between the source of power of an Associate Judge to hear and determine a matter before the Court and the source of power of a Master prior to the amending Act. Whereas prior to the amending Act the authority of a Master to hear and determine a matter was provided by rules made pursuant to s 25(1)(b) of the SCA, subsequent to the amending Act an Associate Judge was empowered by s 17(1A) of the SCA to hear and determine all matters subject to and in accordance with that section. The power and authority conferred on Associate Judges by s 17(1A) is limited only to the extent that the SCA and any other Act or the Rules require that a matter be heard and determined by the Court of Appeal or by the Trial Division constituted by a Judge of the Court.
Giving the words used in s 17(1A) their plain and ordinary meaning leads to the conclusion that an Associate Judge has the jurisdiction to hear and determine a matter such as the limitations application unless such an application is otherwise required to be heard by a Judge of the Court. I agree with Counsel for the defendant that such a construction is supported by the context provided by s 17AA of the SCA. Further, I note the second reading speech of the amending Act which reads, in part:
The bill gives associate judges the jurisdiction of the Trial Division of the Supreme Court …
In my view, the context discussed above and the second reading speech similarly support the construction of s 17(1A) for which the plaintiff contends.
The remaining question is whether there exists a statutory requirement that such an application be heard by a Judge of the Court. The parties agree that there is no such requirement in the SCA or the LAA; that r 77.01 purports to grant rather than restrict the authority of an Associate Judge; and that there is nothing in r 77.02 which relevantly limits the authority of an Associate Judge to hear and determine an application such as the limitations application.
During oral submissions, I raised with counsel for the plaintiff the question of what, if any, work remained for r 77.01 if the construction of s 17(1A) of the SCA for which the plaintiff contended was accepted. Counsel agreed that r 77.01 had little if any work to do other than to possibly provide clarification and certainty in relation to particular existing powers and existing approaches. It was submitted that r 77.01 had historical relevance in that, prior to the creation of the office of Associate Judge, it was a rule which conferred power and authority on a Master to exercise the jurisdiction of the Trial Division. It was submitted that the Rules are subordinate to the SCA and that it was preferable, particularly given the historical context in which the provisions sit, to adopt a construction which leaves the new and very widely expressed statutory provision as the source of power of an Associate Judge, rather than to rely on r 77.01 and leave s 17(1A) itself with no work to do. I agree that this is the preferable approach to take to the construction of the statute and the Rules.
Limitations on authority of an Associate Judge are dealt with in the Rules by r 77.02. I agree that an application for an extension of time pursuant to s 27K of the LAA is not a trial of a proceeding, and that therefore r 77.02(1) does not apply to the limitations application so as to require it to be heard by a Judge of the Court. Nor do any of the particular restrictions contained in r 77.02(3) apply to the limitations application. The authority of an Associate Judge provided by s 17(1A) of the SCA to hear and determine an application of this nature is not otherwise limited by the Rules.
Authority of an Associate Judge — r 77.01
Counsel for the plaintiff relied on a secondary argument that, even leaving aside s 17(1A) of the SCA, r 77.01(1) conferred on an Associate Judge authority to hear the limitations application. Given that the parties are agreed that the source of authority of an Associate Judge to hear the limitations application is s 17(1A) of the SCA, and that I have accepted the submissions of the parties in that regard, it is unnecessary that I consider the secondary submission advanced by counsel for the plaintiff.
Setting aside the order of 4 October 2016
Rule 2.01 provides:
(1) A failure to comply with these Rules is an irregularity and does not render a proceeding or any step taken, or any document, judgment or order in the proceeding, a nullity.
(2) Subject to Rules 2.02 and 2.03, where there has been a failure to comply with these Rules, the Court may—
…
(b)set aside any step taken in the proceeding, or any document, judgment or order in the proceeding;
I agree that it was a precondition to the exercise of the power in r 77.05(1) to refer the matter to Ierodiaconou AsJ that the limitations application was not otherwise within the authority of an Associate Judge. There was a failure to comply with the Rules in the making of that order.
I will grant the application of the plaintiff to set aside the referral order made by me on 4 October 2016. I will hear from the parties as to any consequential orders.
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