Grafton v ABB Service Pty Limited

[2005] WADC 199

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GRAFTON -v- ABB SERVICE PTY LIMITED [2005] WADC 199

CORAM:   REGISTRAR KINGSLEY

HEARD:   11 AUGUST 2005

DELIVERED          :   18 OCTOBER 2005

FILE NO/S:   CIV 1779 of 2004

BETWEEN:   ALAN GRAFTON

Plaintiff

AND

ABB SERVICE PTY LIMITED
Defendant

Catchwords:

Practice - Application to amend defence - Amendment to plead error of law on part of tribunal

Legislation:

Nil

Result:

Allowed in part

Representation:

Counsel:

Plaintiff:     Mr S Melville

Defendant:     Ms G L Stabler

Solicitors:

Plaintiff:     Chapmans

Defendant:     Phillips Fox

Case(s) referred to in judgment(s):

Craig v South Australia (1995) 184 CLR 163

Dossett v TJK Nominees Pty Ltd (2003) 218 CLR 1

Mosman Park Town Council v Walker, unreported; FCt SCt of WA; Library No 8838; 26 April 1991

Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549

Case(s) also cited:

Atkinson v Fitzwalter [1987] 1 All ER 483

Hooker Corporation Ltd v Commonwealth (1986) 65 ACTR 32

Re Anastas & Ors; Ex Parte Welsby [2001] WASC 178

1. REGISTRAR KINGSLEY:  The defendant seeks leave to amend its defence in terms of a Minute of Proposed Amended Defence dated 30 May 2005.  The substance of the amendment is contained in par 13 of the minute.  In essence, the defendant seeks to plead that the plaintiff has not satisfied the statutory threshold for an award of damages imposed by s 93D (1) of the Workers' Compensation & Rehabilitation Act 1981 (WA) ("the Act").

2. The defendant particularises this plea by stating that, at par 13.1, the purported determination of the plaintiff's degree of disability by the medical assessment panel was of no effect because the panel was not constituted in accordance with s 145 C of the Act.  As the medical assessment panel was not constituted in accordance with the Act it therefore has no jurisdiction.  At par 13.1.3 the defendant further particularises that the purported determination of the medical assessment panel was not made in accordance with s 93D of the Act as it was not made by reference to the second schedule, the AMA guides or the regulations.  The defendant also particularises at par 13.2 that the plaintiff's pecuniary loss resulting from the disability is not an amount that is at least equal to the prescribed amount.

3. Section 5 of the Act defines a medical assessment panel as one constituted under part 7 of the Act.  Part VII of the Act deals with medical assessment panels.  Between 1993 and 1999, s 145C(2) provided that, of the members of the medical assessment panel, at least one is to be a general practitioner.  In October 1999, Part VII of the Act was amended to delete the requirement that membership of the medical assessment panel comprised at least one general practitioner.

4. It is common ground that the medical assessment panel, when it made its determination in March 2005, did not have a general medical practitioner as a member of the panel.

Defendant's submissions

1. The defendant submits that pursuant to the Act as it then was, it was an essential condition of the existence of jurisdiction that the membership of the medical assessment panel comprise at least one general medical practitioner.  In purporting to act when this condition was not satisfied the defendant submits that panel fell into jurisdictional error.  The defendant also submits that the medical assessment panel fell into jurisdictional error in failing to determine the plaintiff’s degree of disability in accordance with the provisions of s 93A of the Act.

2. The defendants rely on Craig v South Australia (1995) 184 CLR 163 where at p 179 the High Court stated:

   "if such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunals exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it".

3. The defendant submits that the Act which conferred jurisdiction on a properly convened medical panel requires the panel to be properly constituted at least with one general practitioner.  Further the panel is to assess the workers degree of disability by reference to s 93D of the Act.

4. The defendant goes on to submit that the only issue for the Court, at this time, is whether leave to amend the pleading should be granted.  Whilst consideration of the arguments presented in relation to the proposed amendment are required, no final determination of the merits of those arguments is necessary.

Plaintiff's submissions

1. The plaintiff firstly refers to the history of the legislation since 1993.  The plaintiff submits that in 1993 an injured workers rights in relation to recovery of damages were to be considered under Part IV Division 2 of the Act.  In 1999 Part IV 4 Division 2 of the Act was amended to require leave of the Court by an injured worker.  It was in 1999 that s 145 C was amended to remove the requirement that a medical assessment panel have one general medical practitioner as a member.

2. The plaintiff's solicitor submits that the action is brought under the former provisions, that is the 1993 provisions of Part IV Division 2 by virtue of the Dossett v TJK Nominees Pty Ltd (2003) 218 CLR 1. Thus the plaintiff's solicitor submits that the plaintiff can look to the former provisions in relation to the bringing of the action but can rely on the subsequent amendments in relation to the constitution of the medical assessment panel.

3. The plaintiffs counsel then goes on to submit that what the defendant seeks to do is challenge the determination of the panel and that this is a collateral attack.  In that regard I am referred to the reasons of Rowland J in Mosman Park Town Council v Walker, unreported; FCt SCt of WA; Library No 8838; 26 April 1991.

4. The plaintiff's counsel further submits that the proposed changes at par 13 of the minute are bad because they lack particularity and, at par 13.1.3 constitutes an allegation that there is an error on the face of the record.

The Law

1. The starting point, in this state, is Craig v South Australia. The primary focus of discussion of the High Court in that case was what constituted jurisdictional error on the part of an inferior court, since the District Court of South Australia was undoubtedly a court. However at p 179, the High Court identifies various matters which affect the tribunals exercise or purported exercise of power. The High Court commented that an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

2. In Mosman Park Town Council v Walker the issue was whether on an enquiry, the enquirer could award costs.  Rowland J at p 8 stated a plea by way of defence which tries to go behind order where there is no appeal, and the order can only be attacked by way of the prerogative writs, cannot be other than a collateral attack on a final decision authorised by statute:

3. In Mosman Park Town Council v Walker the authority of the enquirer was established and hence Rowland J went on to say:

   "Once the authority of the enquirer and his order is proved an attack other than one authorised by law must be an abuse of process."

4. In Re Lawrence; Ex Parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 at 560 Malcolm CJ commented, in matters of this nature, the starting point as a general rule is that a court will allow the issue of invalidity to be raised at any proceedings where it is relevant.

Conclusion

1. In this matter the authority of the medical assessment panel has not been proved and there is an argument that the panel lacked jurisdiction as it was not properly constituted.  Accordingly in my opinion par 13.1.1 and 13.1.2 of the minute do not constitute a collateral attack.  These paragraphs fall within a plea that has been a jurisdictional error which invalidated the order of the panel.

2. However, par 13.1.3 is in my opinion an impermissible collateral attack.  In my opinion this paragraph does not relate to an issue of jurisdictional error.

3. In my opinion the proposed pleading other than par 13.1.3 is not an abuse of process and one which has a prospect of success.  I will allow the pleading in other than par 13.1.3 and will hear counsel as to the form of orders and costs.