Richards v VCAT (No 2)

[2000] VSC 154

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No.  of

JASON RICHARDS	Plaintiff
v
THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL AND ANOR	Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2000
DATE OF JUDGMENT:	18 April 2000
CASE MAY BE CITED AS:	Richards v VCAT and Anor (No. 2)
MEDIUM NEUTRAL CITATION:	[2000] VSC 154

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Judicial Review – Dismissal disclosing no proper grounds for relief – Judicial review open despite presence of Section 148 of the Victorian Civil and Administrative Tribunal Act providing avenue of appeal.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared on his own behalf
For the Defendant	Mr D.F.R. Beach

HIS HONOUR:

1. This is the continuation of the hearing of the plaintiff's originating motion.  The plaintiff Jason Richards's originating motion contains two different claims for relief. 

1. The first is an application for leave to appeal against an order made by the Victorian Civil and Administrative Tribunal (VCAT) in a matter under the Transport Accident Act. The right to appeal is subject to leave being granted pursuant to s.148 of the VCAT Act.  I dealt with that application on 13 April.  The plaintiff was out of time and needed an extension of time.  I found no basis for leave to appeal and stated that I would dismiss the application for an extension of time in so far as it sought leave to appeal.  Reference to my reasons for judgment will reveal the history of this proceeding and the reasons refusing the application for extension of time for leave to appeal.

1. The second part of the originating motion is a claim for judicial review of the same decision of the Tribunal. 

1. I should say that Mr Beach of counsel, who appears on behalf of the second defendant, the Transport Accident Commission (TAC), has raised the question of jurisdiction on the ground that s.148 of the VCAT Act is an exclusive code in respect to challenging orders of the Tribunal and the common law jurisdiction of this court is excluded by implication.  He referred in support of his application to the reasons for judgment of McHugh, J. in Waters & Anor. v. The Public Transport Corporation (1992) 173 CLR 349 at pp.414-416. I will refer to this submission later.

1. It is important at the outset to emphasise the limitations of the common law jurisdiction to review decisions of statutory tribunals.  The jurisdiction is supervisory and does not entitle one to canvass matters that one would on an appeal.  In a judicial review the court is exercising its common law jurisdiction, a procedure which is subject to the Rules of Court:  see O.56.  The jurisdiction is different to an appeal. 

1. The judicial review procedure is concerned with the legality of what was done by the Tribunal, and is not concerned with the merits of the decision under review.  This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law. 

1. As I have said, O.56 is concerned with procedure.  It does in fact abolish the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders.  It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

1. The scope of the jurisdiction was recently discussed by the High Court in Craig v. South Australia (1994) 184 CLR 163 at 175-76. In a joint judgment the court said:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal.  It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made.  Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds:  most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and the error of law on the face of the record.  Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.  In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

The above summary identification of grounds upon which the prerogative writ of certiorari may properly issue glosses over a number of difficulties about the contents of the grounds.  Two of those difficulties are of direct relevance in the present case, where it is argued that the alleged error on the part of the trial judge was either jurisdictional error or error of law on the face of the record for the purposes of certiorari.  The first relates to what relevantly constitutes jurisdictional error and the second is what constitutes the record for the purpose of determining whether there is an error on the face of the record."

1. Sometimes there is a controversy about what constitutes a record, because the Rules do require, as did the old common law, the production of the record.  Here there is a formal order by VCAT dismissing the plaintiff's review.  There is no difficulty in determining what the order is which is the subject of the review. 

1. I refer to what the High Court said in Craig's Case, and I do emphasise the jurisdiction is not appellate, nor does it enable this court to substitute for the decision made a decision which this court thinks should have been made. 

1. Rule 56.01(4) of the Rules of Court obliges the plaintiff to state the grounds upon which the relief is sought.  The amended originating motion does set out grounds.  I have considered them in the context of his application for extension of time for leave to appeal, which failed. 

1. It is now necessary to consider the grounds to determine whether or not the plaintiff is entitled to any form of relief by way of judicial review.  The second defendant, TAC, has filed a summons seeking an order that the proceeding be dismissed "on the grounds that the originating motion discloses no cause of action and/or that there are no grounds upon which the relief sought pursuant to Order 56 of the Supreme Court Rules could be granted".

1. I invited TAC to file the summons because it seemed to me that the judicial review application raised much the same issues as the application for leave to appeal, which is also concerned with a prima facie error on a question of law. 

1. During the hearing of the application for leave to appeal it became apparent that the plaintiff's real complaint was concerned with decisions of fact which were adverse to his claim.  I held that he had not demonstrated any error of law justifying leave to appeal and hence his application to extend time failed.

1. This part of the application is concerned with issues of law and raises very similar issues.  In approaching this part of the application it must be steadily borne in mind that the court must not dismiss an application in a summary way unless it is clear that the claim has no chance of succeeding. 

1. Mr Beach of counsel, who appeared for TAC, submitted that, on the face of the grounds, the only possible ground which may be open to the plaintiff on the judicial review was that there may have been some error on the face of the record.  He submitted, however, that when one looked at the record it did not disclose any error on the face of the record.  I did request the plaintiff, Mr Richards, to articulate any ground upon which he relied to satisfy the requirements that must be established in order to obtain an order on a judicial review.  He was unable to do so;  so it is appropriate that I should very briefly go back over the well established grounds for judicial review to see whether or not there is any basis for his claim.

1. The first raises the question of whether there has been any jurisdictional error.  I am quite satisfied on all the material that VCAT clearly had the jurisdiction to entertain the review, that Deputy President Galvin properly considered all the matters and I am satisfied that he was acting at all times within jurisdiction.  More importantly, I am satisfied that Mr Richards has not identified any jurisdictional error.

1. The second possible ground is whether or not there has been a failure to accord procedural fairness, i.e. a denial of natural justice.  Again, Mr Richards was unable to point to anything - indeed, looking at his material, there is nothing - to suggest that he was denied procedural fairness. 

1. There is no question of any fraud.  That brings the court to the question whether there is an error of law on the face of the record.  Looking at the record, which is an order by VCAT dismissing the review by the plaintiff, I am satisfied that there is no error on the face of the record. 

1. So, bearing in mind that it is only in extreme cases that one should dismiss an application, it seems to me, bearing in mind the reasons I gave on the application for leave to appeal, that there are no grounds for judicial review, and in my view it would be an abuse of process to permit this proceeding to continue.     Accordingly, I am of the opinion that it should be dismissed.

1. Before finishing, I should just say a few words about the submission that was raised by Mr Beach as to the jurisdiction of this court to exercise its common law jurisdiction in the face of s.148 of the VCAT Act.  As I have said, Mr Beach submits that the section sets out an exclusive code and it impliedly excludes any common law jurisdiction of this court to judicially review any decision.  He relies very heavily upon what McHugh, J. said in the Waters Case (supra) and he submits that I should follow what his Honour said. 

1. In a case that I heard some years ago I took the view, in relation to an appeal from the Magistrates' Court, that the judicial review procedure was still available.  My reasoning was fairly simple, and that is that, unless the Legislature makes it very clear, one should not imply into legislation that it is excluding a well established common law right;  and it was on that ground that I was of the view that it was open, in an appeal against a magistrate's finding, to also go down the path of judicial review.

1. The substance of what Mr Beach puts to me is based upon the fact that he says that one could read in to the VCAT Act, namely s.148 and other provisions, that the Legislature has evinced an intention to exclude the common law jurisdiction. I refer to what Byrne, J. said in State Electricity Commission of Victoria v. Wright [1997] 12 V.A.R.354. He held in that case, and I quote from the headnote:

"The existence of a right of appeal to the Supreme Court under s.52(1) of the AAT Act against final decisions of the AAT does not prevent that court entertaining proceedings under the Administrative Law Act 1978 or by way of prerogative relief against other orders of the AAT."

I may say that the provisions that his Honour was dealing with were very similar to the present provisions.  That is some authority against Mr Beach's submission, but one then sees what the Legislature did in response to that decision.  The Legislature amended the Administrative Law Act and substituted s.4(4) in that Act.  If one looks at that, one immediately sees that the Legislature has recognised that the Administrative Law Act can apply to a decision of VCAT, and accordingly one would be hard pressed to submit that the Legislature excluded all other avenues other than that provided by s.148. However, it is unnecessary for me to finally decide whether or not the appeal is the only available means. I must say that, based upon the simple proposition that one would have to see an express statement excluding the common law the court should not exclude a well established common law jurisdiction in the absence of a clear intention. I would not at this stage - and this is only a provisional view - accept that the other avenues are not open. That is not essential to my decision.

1. In the end, I make an order that the plaintiff's originating motion be dismissed.  The general rule in most litigation is that the losing party should pay he successful party's costs unless special circumstances are demonstrated.  Mr Richards has not referred to any special circumstances, and quite frankly I cannot think of any.  Accordingly it would be appropriate that Mr Richards pay the second defendant's costs of the proceeding.

1. I order:

1.That the plaintiff's proceeding be dismissed.

2.That the plaintiff pay the second defendant's costs of the proceeding.

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