Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal
[2016] TASFC 6
•21 September 2016
[2016] TASFC 6
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Motor Accidents Insurance Board
v Motor Accidents Compensation Tribunal [2016] TASFC 6
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
MOTOR ACCIDENTS COMPENSATION TRIBUNAL
SHARMAN, Andrew Ian
FILE NO: 2683/2015
DELIVERED ON: 21 September 2016
DELIVERED AT: Hobart
HEARING DATE: 6 April 2016
JUDGMENT OF: Blow CJ, Wood and Pearce JJ
CATCHWORDS:
Traffic Law – Statutory restrictions or compensation in respect of motor vehicle accidents – Tasmania – Tribunal, Board, etc – Motor Accidents Compensation Tribunal – Procedure – Discontinuance and dismissal of reference – Whether power to revoke dismissal.
Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s 28.
Motor Accidents Compensation Tribunal Regulations 2009 (Tas), reg 13.
Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Lower v Comcare [2002] FCA 1394, 124 FCR 498; Consolaro v Consolaro [2002] WASC 92, referred to.
Aust Dig Traffic Law [1318]
REPRESENTATION:
Counsel:
Appellant: B R McTaggart SC
Respondent: S G Wright
Solicitors:
Appellant: Page Seager
Respondent: Stephen G Wright
Judgment Number: [2016] TASFC 6
Number of paragraphs: 19
Serial No 6/2016
File No 2683/2015
MOTOR ACCIDENTS INSURANCE BOARD v MOTOR ACCIDENTS COMPENSATION TRIBUNAL and ANDREW IAN SHARMAN
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
WOOD J
PEARCE J
21 September 2016
Order of the Court
Appeal dismissed.
Serial No 6/2016
File No 2683/2015
MOTOR ACCIDENTS INSURANCE BOARD v MOTOR ACCIDENTS COMPENSATION TRIBUNAL and ANDREW IAN SHARMAN
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
21 September 2016
This appeal concerns the nature and extent of the powers of the Motor Accidents Compensation Tribunal in relation to the dismissal and discontinuance of proceedings before it, and in relation to the reinstatement of dismissed or discontinued proceedings.
The background to the appeal can be summarised as follows:
· On 1 July 2012 the second respondent to the appeal, Andrew Sharman, was injured in a motorcycle accident.
· On 5 July 2012 Mr Sharman applied to the Motor Accidents Insurance Board, the appellant, for scheduled benefits to be paid to him pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act").
· Shortly thereafter, the Board commenced to pay Mr Sharman a disability allowance. A disability allowance is one of the types of scheduled benefits available under the Act.
· On 29 July 2013 the Board decided to cease paying Mr Sharman a disability allowance, with effect from 31 July 2013. The Board wrote a letter notifying him of its decision.
· During August 2013 Mr Sharman referred the matter to the Motor Accidents Compensation Tribunal pursuant to s 28(2) of the Act.
· On 14 January 2014 the Tribunal, constituted by Mr R E Chandler, conducted a telephone conference. Mr Sharman was not represented by a lawyer. The Board was represented by a legal practitioner, Ms Stockford. Mr Sharman told the Tribunal that he could not afford legal representation and said words to the effect that he therefore wanted to abandon the proceedings. Ms Stockford said words to the effect that she had no objection to Mr Sharman's application being dismissed, but that there should be an order that the Board should have its costs. The learned tribunal member made orders that the reference be dismissed, and that costs be reserved.
· In or about March 2014 the Board requested the relisting of the matter so that it could seek an order for costs.
· On 20 March 2014 the matter was listed before the Tribunal, which was again constituted by Mr Chandler. Mr Sharman appeared, and applied for the proceedings to be reinstated.
· On 9 July 2014 Mr Chandler heard the reinstatement application.
· On 21 July 2014 he made, or purported to make, a determination, "That the Tribunal's order of 14 January 2014 be revoked."
· On 1 August 2014 the Board appealed from that determination, or purported to. A notice of appeal was filed in the Registry of this Court.
· On 5 December 2014 Estcourt J dismissed that appeal as incompetent. He provided the parties with written reasons for his order, but did not make those reasons available to the public. In substance he held that the right of appeal conferred by s 28(6) of the Act did not apply to a decision to revoke an earlier decision to dismiss a reference, but only to a determination as to the right of a person to a scheduled benefit, or as to the amount of a scheduled benefit. He was correct.
· On 30 January 2015 the Board applied to the Court, by originating application, for a declaration that the determination of 21 July 2014 was unlawful, invalid and ineffectual.
· On 26 November 2015 Estcourt J dismissed that application. Once again, his Honour provided the parties with written reasons for the order he made, but did not make those reasons available to the public.
· This is an appeal from the order of 26 November 2015 dismissing the originating application.
Various provisions relating to scheduled benefits, eligibility for different types of benefits, the determination by the Board of claims for scheduled benefits, references to the Tribunal, and procedures of the Tribunal are to be found in the Act, the Motor Accidents (Liabilities and Compensation) Regulations 2010 ("the MALC regulations"), the Motor Accidents Compensation Tribunal Regulations 2009 ("the MACT regulations"), and the Supreme Court Rules 2000. The relevant provisions include the following:
· Under s 23(1)(a) of the Act, the Board must pay the benefits prescribed by the MALC regulations if a resident of Tasmania suffers personal injury resulting directly from a motor accident that occurs in Tasmania. Such benefits are referred to as "scheduled benefits".
· Regulation 9 of the MALC regulations provides that the benefits payable under s 23(1) are as specified in Sch 1 to those regulations.
· That schedule provides for the payment of medical benefits, funeral benefits, death benefits, disability allowances, disability benefits, and counselling services benefits. Under Pt 5 of that schedule, disability allowances are payable, under certain circumstances, to individuals who are disabled from working.
· Under s 28(1), the Board is required to make determinations as to the rights of persons to be paid scheduled benefits, and the amounts of such benefits.
· Section 28(2) provides that a person aggrieved by a determination under s 28(1), or by a refusal or failure of the Board to make a payment by way of a scheduled benefit, may "refer the matter to the Tribunal".
· Regulation 4(1) of the MACT regulations requires a person referring a matter to the Tribunal under s 28(2) to do so by giving the secretary to the Tribunal written notice of the reference in a form determined by the Board. Regulation 4(3)(a) of those regulations requires that to be done within 14 days after the person is notified of a determination or refusal by the Board, or becomes aware of the failure of the Board to make a payment by way of a scheduled benefit. Regulation 4(3)(b) empowers the Tribunal to extend time, but only if an application for the extension of time is made before the 14 days expire. If the time limit expires without the claimant having referred the matter to the Tribunal, nothing prohibits the making of a fresh claim to the Board for the payment of scheduled benefits.
· Section 28(4) provides, "The Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances."
· Section 28(5) provides that a determination under s 28(4) binds the Board and any other party to the reference to the Board. In my view s 28(4) requires merits-based determinations, and s 28(5) therefore applies only to merits-based determinations by the Tribunal.
· Section 28(6) provides that a person aggrieved by a determination made by the Tribunal under s 28(5) "may appeal to the Supreme Court which may confirm, vary or rescind the determination".
· By virtue of s 28(8)(a), regulations may "prescribe the manner in which any determination by the Board or the Tribunal is to be made".
· By virtue of s 28(8)(c)(iv), regulations may be made with respect to "the discontinuance or dismissal of a reference to the Tribunal for want of prosecution".
· Regulation 8 of the MACT regulations requires the secretary to the Tribunal, on the determination of a reference, to serve on each party to the reference a sealed copy of the Tribunal's determination and "the reasons for that determination".
· Regulation 13 of the MACT regulations provides that, subject to the Act and those regulations, the Tribunal may regulate its own procedure.
· Regulation 15 of the MACT regulations provides, "A reference may be discontinued or dismissed for want of prosecution in accordance with the practice applicable in the Supreme Court for the discontinuance or dismissal for want of prosecution of an action."
· The discontinuance of actions is governed by r 376 of the Supreme Court Rules. Depending on what steps have been taken in an action, the plaintiff may or may not need to obtain the leave of a judge before discontinuing. Rule 376(1) provides that a plaintiff may discontinue "at any time before delivery of a defence" or "after the delivery of a defence and before taking any other step in the action, other than making any interlocutory application". Since the procedure of the Tribunal does not involve the delivery of defences, it must follow that a party who has referred a matter to the Tribunal may discontinue the reference at any time without leave. But rr 376(1) and 379(3) require a discontinuance to be effected "by notice".
· Rule 376(2)(a) provides that the Court or a judge may grant a plaintiff leave to discontinue at any time before judgment. Rule 376(3) provides that leave may be granted on terms. Those provisions appear to be irrelevant to proceedings before the Tribunal since a referring party must always have the ability to discontinue the proceedings unilaterally, consistent with the practice governed by r 376(1).
· Rule 379(1) provides that a discontinuance "is not a defence or answer to any subsequent proceeding".
The reasons of the learned primary judge for dismissing the originating application can be summarised as follows:
· He concluded that the Tribunal did not have any express or implied power to "dismiss" a reference.
· He took the view that when a person no longer wishes to continue with a reference, the only appropriate mechanism to bring the proceedings to a conclusion is discontinuance pursuant to reg 15 of the MACT regulations.
· He took the view that Mr Sharman's request on 14 January 2014 should be characterised as a request to discontinue his reference, and that the Tribunal's order of that date should be characterised as an order permitting discontinuance.
· He concluded that the Tribunal had the power to reinstate discontinued proceedings by virtue of reg 15, and that the Tribunal had exercised that power.
· In the alternative, he took the view that, if his reasoning was wrong, the order of 14 January 2014 was a nullity.
· As a further alternative, he took the view that, if that conclusion was also wrong, then the order of 14 January 2014 was not final because s 20(a) of the Acts Interpretation Act 1931 permitted the Tribunal to vary its earlier decisions.
The Board's principal contentions are as follows:
· That the Tribunal has the power to dismiss a reference, even without a hearing on the merits.
· That the order of 14 January 2014 was therefore within power, and not a nullity.
· That that order was not an order for discontinuance.
· That that order was a final order, which the Tribunal had no power to revoke.
In the alternative, the Board contends that, if the order of 14 January 2014 was not within power, then:
· That order purported to be an order pursuant to s 28(4) of the Act.
· That order was not a nullity.
· It was open to Mr Sharman to appeal from that order, but he did not.
· That order remains effective unless and until set aside on appeal.
· There was no discontinuance.
· Even if there was a discontinuance, the Tribunal has no power to revoke a discontinuance, and the discontinuance therefore brought the proceedings to a final conclusion.
It is necessary to distinguish between three different ways in which a proceeding may be concluded – discontinuance, dismissal for want of prosecution, and a dismissal that precludes any further proceedings.
Discontinuance is an act performed by a party who has initiated a proceeding or claim. Discontinuance does not preclude the discontinuing party from instituting a fresh proceeding in relation to the same claim or matter: Supreme Court Rules, r 379(1).
Dismissal for want of prosecution is something ordered by a court or tribunal. An order dismissing an action or proceeding for want of prosecution does not preclude the plaintiff or claimant from instituting a fresh action or proceeding in respect of the same claim or matter: Birkett v James [1978] AC 297 per Lord Diplock at 320-321, Lord Salmon at 328-329, and Lord Edmund-Davies at 333-334; Madden v Kirkegard Elwood and Partners [1983] 1 Qd R 649 at 652-653.
The final judgment of a court of competent jurisdiction is conclusive as to the matters in controversy between the parties that are decided upon by the court, so that a party to the proceeding may not subsequently question the decision or the correctness of any matter decided upon in the judgment: Blair v Curran (1939) 62 CLR 464 at 531-532; Jackson v Goldsmith (1950) 81 CLR 446 at 466; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597, 611; Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502. That principle is known as the doctrine of res judicata. That principle also applies to statutory tribunals when they make decisions that are judicial in nature: Administration of the Territory of Papua and New Guinea v Daera Guba (1972) 130 CLR 353 at 402, 454; Lambidis v Police Commissioner (1995) 37 NSWLR 320 at 332; Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, Butterworths, 1996 at 13-15. In this case, the Tribunal did not make a decision on the merits. However the doctrine of res judicata also applies to judgments and decisions that are made with the consent of the parties to a proceeding: Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 at 594-596; Lower v Comcare [2002] FCA 1394, 124 FCR 498 at [11]; Consolaro v Consolaro [2002] WASC 92 at [71]-[73]. Thus, when a statutory tribunal has the power to make a decision that is judicial in nature, and makes a consent decision dismissing a claim, the claimant will be precluded from reviving that claim if that result is consistent with the applicable legislation.
When a dispute arises between an individual and the Board as to a claim for the payment of a scheduled benefit, and the individual refers that matter to the Tribunal but is unsuccessful, there is no legislative requirement as to the form that the Tribunal's determination should take. Under s 28(4) of the Act, it is simply required to "make such determination on a matter referred to it as it considers proper in the circumstances". Under reg 13 of the MACT regulations, it "may regulate its own procedure". A determination by the Tribunal in those circumstances could take a number of forms. It could affirm the Board's decision. It could determine that a particular benefit was not payable. There is no reason why it could not express its determination as a dismissal of the reference. I think it must follow that the Tribunal had the power to dismiss the reference in question if it made a finding on the merits that was adverse to Mr Sharman, or if both the Board and Mr Sharman consented to the dismissal. But there was no merits determination and, according to the evidence before the learned primary judge, Mr Sharman did not ask for or agree to an order that his proceedings be "dismissed". It would appear that neither Mr Sharman nor the learned tribunal member were conscious that discontinuance and dismissal might have different consequences. In the circumstances, the order of dismissal cannot be an order to which the doctrine of res judicata applies.
I have already referred to s 28(5) of the Act, which provides that a determination under s 28(4) binds the Board and any other party to the reference to the Tribunal. However the learned tribunal member did not make a determination on the merits as to Mr Sharman's eligibility for a disability benefit when he dismissed his reference on 14 January 2014. Since s 28(5) must be construed as applying only to merits-based determinations, it does not apply in this case.
Since neither the doctrine of res judicata nor s 28(5) is applicable, the order of dismissal did not, and does not, prevent Mr Sharman from pursuing in the Tribunal his claim for a disability allowance in respect of the period since the Board ceased to pay him such an allowance at the end of July 2013.
Since the Tribunal has the power to regulate its own procedure, and since Mr Sharman had the right to revive his claim, it was appropriate for the learned tribunal member simply to revoke his earlier order of dismissal. That is what he did on 21 July 2014. There was nothing in the Act or any regulations that precluded him from taking that course.
Section 20(a) of the Acts Interpretation Act 1931 provides:
Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed —
(a) from time to time as occasion may require ...".
By virtue of s 20(a), a statutory authority or decision-maker must be regarded as having the power to vary or reverse a statutory decision unless the relevant legislation expressly or impliedly indicates that there is no such power: Purton v Jackson [2012] TASFC 2, 21 Tas R 310 at [3] and [21]. Section 28(5) provides that a determination under s 28(4) is binding, as I have said. I am inclined to think that the relevant legislation impliedly indicates that there is no power for the Tribunal to reverse a decision as to eligibility for scheduled benefits when there has been a determination on the merits or by consent. But this is not such a case. In substance, the Tribunal decided to conclude the proceedings instigated by Mr Sharman without making a determination on the merits. There is nothing in the relevant legislation that expressly or impliedly indicates that there is no power to reverse such a decision.
It follows that the Tribunal's revocation of its dismissal order was entirely appropriate, and that dismissing the Board's originating application was the only course that the learned primary judge could properly have taken. I would therefore dismiss the appeal.
File No 2683/2015
MOTOR ACCIDENTS INSURANCE BOARD v MOTOR ACCIDENTS COMPENSATION TRIBUNAL and ANDREW IAN SHARMAN
REASONS FOR JUDGMENT FULL COURT
WOOD J
21 September 2016
I agree with Blow CJ.
File No 2683/2015
MOTOR ACCIDENTS INSURANCE BOARD v MOTOR ACCIDENTS COMPENSATION TRIBUNAL and ANDREW IAN SHARMAN
REASONS FOR JUDGMENT FULL COURT
PEARCE J
21 September 2016
I agree with Blow CJ.
2
11
2