Richards v VCAT and TAC
[2000] VSC 148
•13 April 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 9568 of 2000
| JASON RICHARDS | Plaintiff |
| v | |
| VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL and | First Defendant |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2000 | |
DATE OF JUDGMENT: | 13 April 2000 | |
CASE MAY BE CITED AS: | Richards v VCAT and TAC | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 148 | |
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Application for leave to appeal against decision of VCAT – question of law – no errors of law demonstrated.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff was not represented by counsel | ||
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr D. Beach | TAC LAw |
HIS HONOUR:
In this proceeding, there are two different and separate matters. The first is a proceeding pursuant to O.56 of the Rules of Court seeking a judicial review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The second matter in the proceeding is an application pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"). To better understand the issues that are before me on this present application it is necessary to go back in time.
The plaintiff, Jason Richards, was injured in a transport accident on 25 May 1996. He made a claim for loss of earnings. The second defendant, Transport Accident Commission (TAC), determined that he was entitled to loss of earning capacity and calculated his loss on a weekly sum of $252.60 for a period from the date of the accident, namely 25 May 1996 to 28 November 1997, that is, a period of 18 months.
The plaintiff was unhappy with this determination and made an application for review to the VCAT pursuant to s.77(1) of the Transport Accident Act 1986.
This application was issued on 15 June 1999.
It came on for hearing before Galvin, D.P. In November and, after a two and a half day hearing, he reserved his decision, one, to allow further submissions that were to be placed before him, and to consider his decision.
He published his reasons on 21 January 2000 and he dismissed the application for review made by the plaintiff.
The plaintiff was aggrieved by the decision and sought to come to this court to appeal or review the decision.
He first of all issued a proceeding under the Administrative Law Act seeking an order to review the decision of VCAT. It appears that, although the affidavit in support was filed within time, it was not brought on for hearing before a Master within the 30 day period as required by s.5(2) of that Act. As the Master did not have any power to extend time, the application was dismissed.
The plaintiff issued an originating motion in this court on 8 March 2000 seeking a review under O.56 of the Rules of Court. This is seeking a judicial review of the decision based upon the well established common law jurisdiction to review decisions. The motion came on before Master Wheeler and he suggested to the plaintiff that he should amend his application to also seek an order under s.148 of the VCAT Act for leave to appeal the decision of Galvin, D.P. to this court.
The plaintiff accepted that advice and amended his originating motion and filed it on 17 March 2000. He was out of time to bring his application which must be made no later than 28 days after the day of the order of the Tribunal - see s.138(2). The matter came back before Master Wheeler and the question arose whether or not he had the power to extend time to enable the application to be made - see s.148(5). He formed the view that, although he had the power under Rule 4.08 of Chapter II of the Rules to grant leave, nevertheless, he was of the view that he did not have any power to extend time. So the matter was referred to the Practice Court this morning and I heard the application.
As I say, the application is for an order for leave to appeal the decision of Galvin, D.P.. S.148 of the VCAT Act relevantly provides -
"(1)A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –
(a) ...; or
(b) to the Trial Division of the Supreme Court in any other case –
if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal."
It is necessary to seek leave to the Court of Appeal where the tribunal is constituted by the President or a Vice President.
It is observed that the right to appeal is limited to a question of law and, secondly, that the trial division gives leave to appeal.
Mr D Beach of counsel, who appears for the second defendant, TAC, drew my attention to what was said by Phillips, J.A. in the Court of Appeal decision of the Department of Premier and Cabinet v. Hulls (1999) VSCA 117 at paragraph (9) -
"As the leave is sought under s.148 that section must be the starting point for any consideration of what has to be shown by an applicant seeking leave. Because an appeal under s.148 lies only on a question of law, it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal succeeding or failing."
The plaintiff, Mr Richards, who appears for himself, was obliged by the Rules of this court to place before the court a draft of a proposed notice of appeal setting out the grounds. He has failed to do that, but he and Mr Beach have agreed that the grounds which are set out in his amended originating motion commencing at paragraph (12) are the grounds of appeal upon which he relies.
It follows that he must establish to my satisfaction that there is a question of law and that he ought to be given leave. The court would not give leave unless it was demonstrated that there was an error of law made by the tribunal and, of course, as a general proposition a finding of fact cannot constitute an error of law.
It can constitute an error of law if the finding is made in circumstances where there is no evidence to support it and no reasonable tribunal could possibly have arrived at that decision.
But that is a rare case. I have read the detailed and careful reasons of Galvin, D.P. and it is apparent that he did consider disputed questions of fact and made decisions adverse to Mr Richards. It is clear to me from the grounds relied upon by Mr Richards and his submissions that he is unhappy with those findings of fact. Indeed, the reasons amply demonstrate that there were disputes in relation to a number of matters, that witnesses were called and cross-examined, and that in the end the tribunal had to make a finding. It seems to me that there is no basis for suggesting here that Galvin, D.P. Made any error of fact which would lead to the conclusion that he made a finding that was not supported by any evidence at all.
So the burden that rests upon Mr Richards is indeed a heavy one because he has not only got to demonstrate that what he seeks to question is a question of law, but he has also to persuade me that there is at least prima facie error.
It is now appropriate to go to his grounds and the first one is expressed in this
way -
"That the first named defendant erred in law, erred in failing to take into account relevant considerations, erred in taking into account irrelevant considerations of their decision (sic)) in deciding that an 'arrangement' did not take place between the plaintiff and Mr Stelmach/ builder pursuant to s.3(2)(b) of the Transport Accident Act 1986, also being unreasonable and that caused a denial of natural justice." (Sic)
If one goes to s.3(2)(b) of the Transport Accident Act we find that this is part of the definition provision of that Act and it is concerned with the definition of an earner for the purposes of the Act. Sub-section (2)(b) is concerned with a possible arrangement between an earner and an employer at a particular time and place, and Mr Richards argues that Galvin, D.P. did not properly take this matter into account.
It is clear from his reasons that he did consider this section and that it was raised by Mr Richards. First of all, I am satisfied that the section is irrelevant to any issue between the relevant parties because there is no doubt Mr Richards was an earner for the relevant period. The dispute so far as Mr Richards is concerned is the length of that period, he asserting that it should go beyond 18 months, and the second part of the dispute relates to the amount of the earnings.
But I am satisfied that s.3(2)(b) of that Act is irrelevant to any issue on the review. But, having said that, the matter was raised and it became a disputed question of fact. Indeed Mr Stelmach was called as a witness and Galvin, D.P. made findings which demonstrated that in his opinion the matters set out in s.3(2)(b) had not been made out. In my view, there is no demonstrable error and I cannot see any error of law raised by this ground. As I say, the point is irrelevant, but, secondly, it was considered as a factual matter and the decision was contrary to the contentions of the plaintiff.
That brings me to the second ground which is expressed in this way -
"That the first-named defendant erred in law, erred in failing to take into account relevant considerations, erred in taking into account irrelevant considerations, that the plaintiff's pre-accident weekly earnings was $252.60 per week, work pursuant to s.5,6,44 of the Transport Accident Act 1986, also being unreasonable and that caused a denial of natural justice." (Sic)
Mr Richards referred to s.5, and stated that there was a question of law in relation to this. He said that that section had been misunderstood, perhaps not even considered, by Galvin, D.P. He asserted that he wanted to argue what was meant by the word "during" in that section. That section refers to pre-accident weekly earnings and indicates what has to be done in determining the pre-accident weekly earnings.
There is no doubt at all that Galvin, D.P. had this section in mind and he did consider that section but, more importantly, he considered and reviewed the facts. This was one of the real disputes between the parties before him, and I am quite satisfied that there is no question of law arising out of his determination of s.5 and what it meant. It is quite clear that this was another factual issue that was ventilated before him, that he heard and observed the witnesses, there was a disputed question of fact and, in the end, he had to resolve it. In my view, there was evidence available to him to make the decision which he did and, on any view, there is no demonstrable error and, more importantly, there is no error of law. I do not accept that in his reasons he misunderstood what s.5 meant or that in any way he misapplied that section.
That brings me to the third ground which is stated as follows -
"That the first-named defendant erred in law, erred in failing to take into account relevant considerations, erred in taking into account irrelevant considerations, that the first-named defendant totally ignored the plaintiff's claim to s.46 to which the plaintiff is legitimately entitled to pursuant to s.46 of the Transport Accident Act 1986, also being unreasonable and that caused a denial of natural justice." (Sic)
S.46 of the Transport Accident Act is concerned with the review of eligibility at the end of 18 months, and the point that is made by Mr Richards is that, since the Commission did not consider his application within the 18 month period, he is entitled under sub-section (2) of that Act to compensation for a period after the 18 month period. It is made quite clear that, if the Commission was of a certain view and failed to carry out the review within the 18 month period, then the applicant would be entitled to further compensation.
But one must go back to the opening words of s.46(1) which are -
"If it appears to the Commission that a person injured as a result of a transport accident will suffer a loss of earning capacity as a result of the injury 18 months after the accident ... ."
(Emphasis added.)
It is apparent that s.46 cannot apply until the Commission arrives at what is described as an appearance and that that appearance, which must translate into a form of decision, is that the applicant will suffer a loss of earning capacity for a period after the 18 month period.
Now, there is no evidence at all to suggest that the Commission ever reached that point of satisfaction, and I am satisfied that s.46 has nothing whatsoever to do with the claim made by the applicant.
The plaintiff has added as an alternative ground the following -
"That the first-named defendant erred in law, erred in failing to take into account relevant considerations, erred in taking into account irrelevant considerations of the evidence given by Dr King and Professor McDermott and the plaintiff pursuant to s.7,49 of the Transport Accident Act 1986, also being unreasonable and that caused a denial of natural justice." (Sic)
The complaint made here was that Galvin, D.P., as did the Commission, relied upon the evidence of Dr King as to the date when the plaintiff was in a position to return to work. The Commission had considered the evidence and come to the view that the period was at the end of the 18 month period and that was a matter that was under review before Galvin, D.P.. Evidence was called in relation to this issue and the medical witnesses were cross-examined. In the end it was a matter for Galvin, D.P. to make up his mind as to what evidence should be accepted. It is clear to me that he did accept the evidence of Dr King, as is clear from his reasons, and, in my view, the evidence was there for him to rely upon that. One cannot say that, having resolved it in this way, that there is any error of law, let alone any error at all.
So it seems to me that the grounds that have been set out in the amended originating motion do not disclose any errors of law. I go further and say I am of the view that Galvin, D.P. did not make any errors of law and that the findings he ultimately made were as in relation to disputed questions of fact. That was his task, to resolve those disputed questions of fact.
So, in my view, the plaintiff has not established any errors of law which would entitle him to have leave.
As I have said that his application for leave had to be made no later than 28 days after the day of the order of the tribunal; see s.148(2) of the VCAT Act, but there is power to extend time under s.148(5), and, as I have indicated, Master Wheeler took the view that he did not have power to extend time. That is why the matter was referred to me.
In the circumstances, because I am of the view that, if I were to extend time it would be a futile exercise, I accordingly refuse to extend the time.
That brings me to his other proceeding, which is a judicial review proceeding under O.56 of the Rules of Court. That proceeding seeks to invoke the common law jurisdiction of this court. There are well-known grounds upon which one can attack a decision but they are confined and they are confined to lack of jurisdiction, error of law, error on the face of the record or a denial of natural justice. And it seems to me that the grounds upon which Mr Richards has set out his originating motion would not be any basis for an order under O.56 much for the same reasons I have refused to extend time.
However, I have not heard Mr Richards in relation to that part of the application, and I think it would be appropriate he be given an opportunity to place submissions before me.
(Discussion ensued.)
Perhaps I should also just add this to my reasons; that Mr Beach did raise the question whether or not it was still open to a person who had sought to appeal against a VCAT decision under the VCAT Act to utilize the judicial review procedure pursuant to 0.56 of the Rules. The argument is that s.148 is an exclusive code as to the means by which an order of the VCAT can be challenged, and, accordingly, that excludes the judicial review authority of this court.
There is some support for that argument, and I refer to the case of Waters & ors v. The Public Transport Corporation (1992) 173 CLR 349, especially at pp.414-416. That is not the only authority that supports that argument. There are other cases in other areas where courts have ruled that, where there is a statutory appeal given, that that is an exclusive avenue and that all other avenues are excluded.
There are a number of cases in relation to this. The argument has not been amplified today and it raises some very difficult questions and it seems to me that it would be appropriate that, if that is wished to be pressed, then it will have to be argued at a later time.
I should also say that Ashley, J., relying upon that High Court case, has decided that judicial review procedure is not available on an appeal from a Magistrates' Court to this court. Eames, J. and I disagreed with that approach, but in the end it will be a question of discerning the legislative intent which resulted in s.148 of the VCAT Act.
(Discussion ensued.)
I will adjourn the further hearing of the proceeding to 18 April 2000 and I reserve the costs.
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