Mallee Transport Logistics Pty Ltd v VWA (No 2)

[2014] VSC 618

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 4452, 4453 & 4472

MALLEE TRANSPORT LOGISTICS PTY LTD MENINDEE PTY LTD SWAN HILL ACCOUNTING SERVICES PTY LTD	Plaintiffs
v
THE VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 DECEMBER 2014
DATE OF RULING:	16 DECEMBER 2014
CASE MAY BE CITED AS:	MALLEE TRANSPORT LOGISTICS PTY LTD & ORS v VWA (NO 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 618

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PRACTICE AND PROCEDURE – Appeal under s 36J of the Accident Compensation (WorkCover Insurance) Act 1993 – Dispute defined by claims for relief in an originating motion and statements of case - Application to amend –Whether application to extend time to seek judicial review under O 56 may be added.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in 4452 & 4453 of 2012.	Mr T. Murphy QC with Ms C.E. Currie of counsel	MST Lawyers
For the Plaintiff in 4472 of 2012.	Mr F O’Loughlin of counsel	Sofra Solicitors
For the Defendant	Mr J.J. Gleeson QC with Ms R.L. Enbom of counsel	Corrs Chambers Westgarth

HIS HONOUR:

1. Following on a ruling that I earlier gave in this proceeding[1] the plaintiffs applied to amend their originating motions and statement of case.  The defendant opposed one aspect of the proposed amendments but otherwise consented to the plaintiffs’ applications.

   [1]Mallee Transport Logistics Pty Ltd & Ors v VWA [2014] VSC 572.

1. The opposed amendment is in the following terms.

Pursuant to section 36JK of the Accident Compensation (WorkCover Insurance) Act 1993 (‘the Act’) or in the alternative, pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (‘the Rules’), the plaintiff seeks in respect of each of the year subject of the premium review determination made by the defendant by notice dated 6 June 2012 reference 12/01279 (‘the Determination’):

1.An order that the time required by order 56.02 of the Rules for the alternative basis for the applications contemplated herein be extended to 18 November 2014.

2.A declaration that the Determination and Notice of Adjusted Premium for the policy period ending on 30 June 2010 are of no effect and an order setting aside the Notice of Adjusted Premium and the Determination in respect of that period.

1. The plaintiffs made amendments in response to preliminary issues raised by the VWA on 12 November 2014 that:

(a)the court had no jurisdiction to hear the plaintiffs’ appeals in relation to the 2009/2010 premium year;  and

(b)the cases set out by the plaintiffs in their statements of case depart from the endorsements on the originating motion.

1. The first objection was lost by the VWA, which has not yet determined whether to seek leave to appeal my ruling of 13 November 2014.  The plaintiffs seek leave to amend their endorsement to protect their position in relation to the 2009/2010 premium period should the VWA successfully appeal my ruling, or alternatively should the court rule against them on the assumptions on which the jurisdiction issue was determined.

1. The plaintiffs contended that if the VWA succeeded on appeal or the court found that the 2009/2010 premium period was not then, or should not now be, reviewed under s 36F, the only avenue for review of the decision in respect of the 2009/2010 premium period would be judicial review. The argument would be that the statute as it stood before the 2010 amendments provided no statutory mechanism for resolution of an employer’s premium dispute by an appeal by hearing de novo to this court and disputes were resolved by the courts in common law actions or, in limited circumstances, by way of judicial review.

1. The VWA contended that the proposed amendment was futile. It asserted that the correct characterisation of my earlier ruling was that jurisdictional facts that empowered the court to entertain the appeal in respect of the 2009/2010 premium period were assumed and remained an open question at trial.

1. The preliminary jurisdiction question was decided on the basis that there had been a determination under s 36F of the Act that was a review of an application under s 33 that included the 2009/2010 premium period and it was not suggested to me that those facts might be in issue. If either party now contends that there was never an application to the Authority for review of the 2009/2010 premium period under s 33 and that there has not been a determination under s 36F in respect of that period, my earlier ruling proceeded on a false premise. Further, if the proper characterisation of what occurred in respect of the 2009/2010 premium period premium review is contested, it was premature to rule on jurisdiction before the facts were established and the court ought to have been so informed.

1. Once the court is satisfied that it has jurisdiction, as I was, the appeal is a hearing de novo. The court was persuaded that it has jurisdiction because the Authority’s determination confirmed or adjusted the premium for the relevant period under s 36F. As Osborn J (as he then was) said in United Petroleum,[2] the question raised by the application which is the subject of the determination by the Authority defines the fundamental question for appeal. The de novo hearing will, prima facie, be in respect of the policy periods that were the subject of determination by the VWA under s 36F and it may be necessary in the appeal to identify both the precise scope and nature of the s 33 application and the s 36F review that followed and the contentions that remain open to the parties in respect of those processes under the circumstances. Whether the 2009/2010 premium period was properly the subject of the review application and determination becomes an issue on the appeal, but not a jurisdictional issue. It was in that context that I made the concluding remarks in my earlier ruling. The parties’ contentions about the characterisation of the review application and determination that are the subject of the appeal must now be more clearly articulated.

   [2][2011] VSC 570, [72].

1. The VWA contended that the issue affecting leave to amend is whether the jurisdictional fact - that there was a s 36F determination of the premium for the 2009/2010 premium period - was correctly assumed or remains in issue. It contended for the latter. This contention is pregnant with the notion that 2009/2010 premium period was not part of the review application and determination or, if it was, that the Authority need not take for itself on the s 36F review the jurisdictional point that it takes on the appeal.

1. The plaintiffs contend that if it later is decided against them that 2009/2010 premium period was not the subject of the s 33 application that is centrally in issue, but was the subject of a s 27 review and a s 28 adjustment, whether actual or inferred, then there was no power to investigate or adjust the plaintiffs’ premiums in that policy period under those sections and the premium review for that period was a nullity. That there could not have been a determination made under s 36F in respect of which the court has jurisdiction on an appeal under s 36J and the plaintiffs could only establish an entitlement to relief by seeking leave to seek judicial review out of time. I accept that is one contention that might be put. Possibly other contentions would leave no scope for alternative proceedings, but the issues to be litigated are a matter for the parties. The question of whether there ought be an application for leave to seek judicial review by the court in respect of the 2009/2010 premium period may be premature, but is to be pleaded as an alternative to the s 36J appeal.

1. I consider the VWA’s position that the amendment is futile to be unduly narrow. Although the issues on the appeal cannot be expanded to include an issue that was not sought on a s 33 review or determined under s 36F, the proceeding can be expanded to include the alternative basis for relief under O 56 in respect of the 2009/2010 premium period, should it become relevant. It is desirable that all of the issues that the parties seek to raise in respect of premium review following the corporate restructure should be resolved in the proceeding if possible.

1. I require that the parties, particularly the VWA, now identify their contentions in respect of the 2009/2010 premium period; whether it was, or was not, part of the s 33 review and the s 36F determination of the review, and if so in what way and with what outcome, and whether it now ought, or ought not, be part of the review and determination on the rehearing. The plaintiffs’ need for judicial review in relation to the 2009/2010 premium period depends on the contentions of the parties raised on the appeal and their resolution. The amendment may prove unnecessary as many pleading alternatives do, but I am not persuaded that they are futile.

1. I will allow the amendments proposed to the originating motions. I will direct that the plaintiffs file an amended statement of case by 2 February 2015 and the defendant file its amended statement of case by 16 February 2015. The proceeding is referred to Daly As J for re-fixing for trial and any further trial directions on 17 February 2015 at 9:30am. Costs are reserved.

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