Robertson v Victorian WorkCover Authority
[2006] VSC 54
•22 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6645of 2004
| ELAINE LORRAINE FRANCES ROBERTSON | Plaintiff |
| v | |
| VICTORIA WORKCOVER AUTHORITY & STATE OF VICTORIA | Defendant |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2005 | |
DATE OF JUDGMENT: | 22 February 2006 | |
CASE MAY BE CITED AS: | Robertson v VWA & State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2020] VSC 54 | |
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Judicial review – Victorian WorkCover Authority – application for consent to commencement of common law proceedings – failure to consider relevant matters.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. M. Scarfo | Warren Graham & Murphy |
| For Victorian WorkCover | Mr. R. Tracey QC and Mr. M Fleming | Mills Oakley Lawyers |
| For the State of Victoria | Mr. M. Corrigan | Minter Ellison |
HIS HONOUR:
The application
The Plaintiff seeks the following relief or remedy:
“1. A declaration that:
. . .
(b)the refusal by the Defendant to consent to the Plaintiff commencing proceedings outside the time limit provided for in s 135A(2DE) of the Act is invalid;
(c)the refusal by the Defendant to consent pursuant to s 135A (6B) of the Act to the plaintiff commencing proceedings (“the application”) is invalid.
2.Relief in the nature of certiorari to quash the refusal by the Defendant dated 21 April 2004 to consent to the Plaintiff commencing proceedings outside the time limits provided by s 135A(2DE) of the Act.
3.Such further or other relief as this Honourable Court may think fit.” that it did not occur within the prescribed period.
The Victorian Workcover Authority (Authority) was represented but chose not to make any submissions given the presence of a contradictor, in the State of Victoria.
Background to Application
On 1 January 1996, the plaintiff suffered injury when she fell down a flight of stairs in the course of her employment with a company, W. B and E. Robertson Pty. Ltd[1] at school premises at Orbost occupied by the State of Victoria. She applied to the WorkCover Authority which, on 17 November 1997, issued a serious injury certificate pursuant to section 135 A. (3) of the Accident Compensation Act 1985 (the Act).
[1]The plaintiff and her husband were equal shareholders in the company. The plaintiff was also a director and secretary. The company was de-registered on 27 February 1998 as a result of an application to de-register a defunct company filed with ASIC on 26 September 1997.
As the law stood at that date, the certificate was all that the plaintiff required under section 135 A. as a pre-requisite to bringing common law proceedings for the recovery of damages. On 12 December 1997 the plaintiff commenced common law proceedings in the County Court seeking damages from her employer.
On 23 December 1997 Royal Assent was received to amending legislation. The legislation expressly provided that it was to be deemed to have come into operation on 12 November 1997[2] -- a month prior to the plaintiff commencing her common law proceedings. The amending legislation was intended to further limit the right to bring claims at common law for damages. In particular, it introduced into s 135A a new sub-section (2DE.) which prohibited the commencement of such proceedings other than with the consent of the Authority under a new sub-s (6 A) unless various conferences had been held and offers made. Sub-section (6 A) empowered the authority to consent to the commencement of proceedings where it was satisfied that the worker was unable to commence proceedings because of the operation of sub-section (2DE) and the failure to comply with that sub-section was not due to any fault or omission of the worker or the worker's legal representative.
[2]See State of Victoria v Robertson and another (2000) 1 VR 465
The new sub-sections were in the following terms:
“(2DE)The worker must not commence proceedings in accordance with this section, other than an application under sub-section (4)(b) or the commencement of proceedings with the consent of the Authority under sub-section (6A), unless –
(a)the worker and the Authority, authorised insurer or self-insurer hold, or begin, a conference within 21 days after the response date; and
(b)the Authority, authorised insurer or self-insurer makes a statutory offer in writing in settlement or compromise of the claim at that conference, or after the conference begins but no later than 60 days after the response date; and
(c)if the worker does not accept that statutory offer within 21 days after it is made, the worker, before the expiration of that period, makes a statutory counter offer in writing in settlement or compromise of the claim; and
(d)the Authority, authorised insurer or self-insurer does not accept that counter offer within 21 days after it is made; and
(e)the proceedings are commenced not earlier than 21 days, and not more than 51 days, after the counter offer is made or, if a counter offer is deemed to have been made under sub-section (2DG), not more than 30 days after the day on which the counter offer is deemed to have been made.
(2DF)If the authority, authorised insurer or self-insurer does not make a statutory offer under section (2DE), the authority, authorised insurer or self-insurer is deemed, for the purposes of that sub-section, to have made on the 60th day after the response date, a statutory offer of nothing.
(2DG)If the Authority, authorised insurer or self-insurer makes a statutory offer under sub-section (2DE) and the worker does not make a statutory counter offer under that sub-section, the worker is deemed, for the purposes of that sub-section, to have made, on the 21st day after the statutory offer was made, a statutory counter offer of the maximum amount that may be awarded as damages under sub-section (7)(a) and (b).
. . .
(6A)If, on the application of a worker, the Authority is satisfied that –
(a) the worker is unable to commence proceedings in accordance with this section because of the operation of sub-section (2DE) or (4) (b); and
(b)the failure to comply with sub-section (2DE) or (4)(b) was not due to any fault or omission of the worker or the worker’s legal representative –
the Authority may consent to the commencement of the proceedings or bringing of an application under sub-section (4)(b).”
The consequence of the retrospective amendment was that the plaintiff was obliged to satisfy the additional requirements before she could recover damages at common law against the Victoria WorkCover Authority and anyone else -- in this case the State of Victoria which was later joined as a party to the proceedings (in October 1998).
Under the new regime, the plaintiff and Authority were required to hold or begin a conference within 21 days of the “response date”, that date being the date 28 days after the determination date (the date on which it was determined that the injury was serious).[3] In this instance the response date was 15 December 1997. The obligation to hold or begin a conference within 21 days required that a conference occur by 5 January 1998. A statutory conference was discussed over the ensuing months but did not occur until 10 August 1998, well after the prescribed period had expired.
[3]S 135A(19).
Following its joinder in October 1998, the State of Victoria applied to have the plaintiff's proceedings against it dismissed on the grounds that no cause of action was disclosed - relying on alleged non-compliance with the provisions. The application was dismissed at first instance on the basis that the amendments did not operate retrospectively. The State of Victoria took the matter to the Court of Appeal which, on 23 June 2000, upheld the appeal and dismissed the plaintiff's proceedings as against the State of Victoria.[4] The State of Victoria successfully argued that the amendments operated retrospectively and it had the right to rely on non-compliance with s 135A (6A) - namely, that the consent required by the amended legislation had not been granted by the Authority. It should be noted that the Authority had indicated that it did not intend to raise any issue as to the validity of the County Court action.[5] The Authority had confirmed its position in an affidavit, sworn by its solicitors that it did not intend to raise any issue as to the validity of the proceedings because it believed that the proceedings had been validly issued in accordance with the law pertaining at the time it was issued.[6] By letter dated 16 August, 1999, the Authority’s solicitors had also advised the solicitor for the State of Victoria that it:
“has considered that it is not the plaintiff’s fault that s 135A(2DE) was not complied with and has exercised its powers to allow the plaintiff to continue with the proceedings.”[7]
No formal consent, however, had been given and the Authority’s solicitors had not had instructions to formally consent.[8]
[4]For history and details see State of Victoria v Robertson, above.
[5][13] – [15].
[6]GDE2, p 4.
[7]GDE2.
[8]GDE2.
Subsequently, on 30 October 2000, the County Court proceeding against the Victorian WorkCover Authority was struck out by Judge Harbison by consent.
On 17 November 2000, the plaintiff lodged a written application with the Authority seeking the consent of the Authority to the commencement of proceedings pursuant to section 135 A (6A) of the Act against WB & E Robertson Pty Ltd and the State of Victoria. That sub-section required that the worker satisfy the Authority that she was unable to commence proceedings in accordance with section 135A because of the operation of sub-sections (2 DE) or (4) (b) and that that failure was not due to any fault or omission on her part or that of the legal representative. If those matters were established, the authority had a discretion to consent to the commencement of the proceedings.
By letter dated 23 May 2002, the Authority advised the plaintiff that it was
" not satisfied that the failure to comply with Section 135 A (2DE) [was] not due to fault or omission on the part of the worker or the worker’s legal representative"
and that, therefore, it was unable to consent to the request. The letter did not state why the Authority had changed its position or differed with its solicitors.
In the meantime[9] by Act number 82 of 2001, the Act has been further amended. By section 23 of the amending Act:
[9]Commencement date 12 December 2001.
●section 135 A (2DE) was amended by inserting in it a reference to a new sub-section, (6 B);
● new sub-sections (6B) and (6C) were inserted; and
●the references in sub-section (6A) to sub-section (2DE.) were deleted together with the words "commencement of the proceedings or". As a result sub-section (6A) read as follows:
“(6A) If, on the application of a worker, the Authority is satisfied that-
(a) the worker is unable to commence proceedings in accordance with this section because of the operation of sub-section (4)(b); and
(b) the failure to comply with sub-section (4)(b) was not due to any fault or omission of the worker or the worker's legal representative-
the Authority may consent to the bringing of an application under sub-section.”
The new sub-sections (6B) and (6C) were in the following terms.
“(6B)If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this section because of the operation of sub-section (2DE), on the application of the worker the Authority may consent to the commencement of proceedings –
(a)either –
(i)earlier than 21 days after the date the counter offer is made; or
(ii)later than 51 days, but no later than 81 days, after that date –
if the Authority is satisfied that the defence of the proceedings will not be prejudiced; or
(b)later than 81 days after the date the counter offer is made if the Authority is satisfied that the failure to comply with sub-section (2(DE) was not due to any fault or omission of the worker or the worker’s legal representative.
(6C)The Authority may consent to the commencement of proceedings under sub-section (6B) even though the relevant time limit expired before the date of commencement of section 23 of the Accident Compensation (Amendment) Act 2001.”
Thus the sub-section authorised the Authority,[10] where the worker is unable to commence proceedings because of the operation of sub-section (2DE), to consent, on the application of the worker, to the commencement of the proceedings, within the time frame stated, if satisfied that the defence of the proceedings will not be prejudiced. It also authorised the Authority[11] to give such consent to the commencement of proceedings "later than 81 days after the date the counter offer is made" if satisfied that failure to comply with the sub-section (2DE) " was not due to any fault or omission of the worker or the worker's legal representative".
In explaining the legislation, the Minister commented
"The Bill also extends the discretion of VWA to permit a common-law action for damages to be commenced outside the time limits under the Act, thereby enabling some cases to proceed to a damages hearing when previously they could not. This provision will relieve the hardship suffered by those cases whom VWA previously had no power to help. The exercise of this discretion rests with VWA alone. I can assure the house that this provision will not enable cupboards full of long-delayed actions to be revived."[12]
Relying on this change of legislation, the plaintiff lodged with the Authority on 25 October 2002 another detailed written application[13] under s 135A (6B) seeking permission “to commence proceedings”. The application set out the following history – a history, some of which had been put to the Authority in the earlier s 135A (6A) application.
[10]Para (a).
[11]Para (b).
[12]Second Reading Speech Legislative Assembly, Hansard on November 2001, 1512.
[13]Exhibit WCJ1
It stated that permission to commence proceedings was sought because the sub-section prevented that occurring in that Ms Robertson had commenced her proceeding “without first holding or beginning a conference within 21 days of the response date”. She referred to details of the County Court proceeding commenced on 12 December 1997. She stated among other things that:
●in October 1998, an amended statement of claim was filed by the plaintiff joining the State of Victoria as a second defendant.
●Notwithstanding that the Victorian WorkCover authority in its pleading had raised the issue of non-compliance with the sub-section (para 9), the case had proceeded on the basis that the authority had in fact allowed the plaintiff to commence the proceedings pursuant to section 135A (6A) of the Act.
●By paragraph 9 of its defence dated 23 March 1999, the State of Victoria had raised the issue of the operation of the sub-section.
●By a letter dated 16 August 1999 from the solicitors for the Authority to the solicitors for the State of Victoria, the Authority confirmed that it had allowed the applicant to commence proceedings and that it considered that the plaintiff’s non-compliance with the Act was not her fault.
●The State of Victoria, however, commenced proceedings by summons seeking orders dismissing the plaintiff's proceedings on the basis of the failure to comply with the sub-section.
●The Authority joined the plaintiff in contesting the application and sought leave to amend its defence to strike out paragraph 9 of its defence.
●The State of Victoria was ultimately successful in the Court of Appeal on 23 June 2000.
To that extent, the application had repeated what had been put to the Authority in support of the application made in November 2000 under sub-section (6A). The submissions to the Authority went on to state, however, that on 11 July 2000, Mr Brett Waites on behalf of the Authority had informed the solicitors for the plaintiff that he expected instructions within the next three weeks consenting to the plaintiff re-issuing her proceedings.[14] It also stated that on 30 October 2000, at the request of the Authority, the proceedings still in existence between the plaintiff and the Authority was struck out by Judge Harbison of the County Court by consent. The submission then referred to the November 2001 amendment to the Act which, it was submitted, widened “the ability of the Authority to consent to the commencement of action for damages out of time” and indicated “a more liberal approach” was to be taken by the Authority to applications for consent and that the granting of the application would be in accord with the spirit of the amending provision. It concluded stating that consent of the Authority was sought "pursuant to section 135A(6B) to commence proceedings”.
[14]Para 5.
Eighteen months elapsed before written submissions were lodged by the State of Victoria dated 28 November 2002. The submissions addressed the application on the basis that it was made pursuant to both sub-section (6B) (a) and (6B) (b).
After a further delay of 18 months, by letter dated 20 April 2004, the Authority rejected the application. It referred to the application as one made pursuant to section 135A(6B). In considering the application, however, it confined itself to the matters referred to in paragraph (a) of the sub-section. It then stated that it was accepted that the plaintiff was deemed to have a serious injury on 17 November 1997 and a writ for damages was issued out of the County Court on 12 December 1997. It also stated that it accepted that the procedural requirements of section 135A took effect from 12 November 1997 (relying upon the Court of Appeal decision). It then referred to the offer and counter offer regime contained in section 135A (2DE) and commented that the writ having been issued prior to the response date, section 135 A (6B) (a) (i) had no application because the writ had been issued prior to any statutory counter-offer “being made or deemed to have been made”. The letter concluded stating that the Authority rejected the application because it did not satisfy the preconditions of sub-section (6B) (a) (i)
Grounds relied upon by the plaintiff
The plaintiffs relied on the following amended grounds.
“1.The defendant failed to accord the Plaintiff natural justice in that:
(a)the Defendant failed to provide the Plaintiff with any or any sufficient particulars of reasons for refusing the application, in particular as to why it had no regard for the provisions of s 125A(6B)(b) of the Accident Compensation Act 1985 (“the Act”);
(b)the Defendant failed to deal properly with the questions remitted to it in that it failed to apply the provisions of s 135A(6B)(b) of the Act; and
(c)the Defendant failed to take into account something which it was required to take into account, namely, that it had the power to consent to the Plaintiff’s application in the circumstances provided by s 135A(6B)(b) of the Act.
2. The Defendant in making the determination:
(a)did not have any regard for the provisions of s 135A(6B)(b) of the Act; or
(b)if it did have regard for s 135A(6B)(b) of the Act, it failed to have any or any sufficient regard for the material that it had before it, namely;
(i)that at the time the Plaintiff purported to commence the proceedings, the provisions of s 135A(2DE) of the Act had not been enacted;
(ii)that by way of a letter dated 16 August 1999 the Defendant through its solicitors, Mills Oakley, asserted that:
“You will be aware that the Plaintiff issued these proceedings prior to the legislation being enacted and a conference was not held. You will also note that the Authority has powers pursuant to s 135A(6A) to allow the Plaintiff to bring proceedings where the workers has failed to comply with sub-section (2DE).
In this instance, the authority has considered that it is not the Plaintiff’s fault that s 135A(2DE) was not complied with and has exercised its powers to allow the Plaintiff to continue with the proceedings.”
(iii)that the Defendant argued in the County Court and Supreme Court that the Plaintiff’s proceedings were competent and should be allowed to stand;
(iv)that the Defendant had consented to and/or had not taken objection to proceedings commenced similarly to those of the Plaintiff by other workers.
3.The Defendant took into account extraneous and irrelevant matters.
4. The Defendant erred in law and misdirected itself in determining that the Plaintiff’s application does not satisfy the pre-conditions of s 135A(6B)(a)(i).”
Submissions of the parties
Counsel for the plaintiff did not press the issue of alleged breach of natural justice for failure to provide reasons. Rather counsel argued that the failure to make any reference to section 135 A (6B) (b) in the reasons revealed that the Authority had failed to consider that aspect of the sub-section in the application and its operation in relation to the latest application. It was put that it had, therefore, failed to have regard to relevant matters. Counsel for the plaintiff submitted that this constituted jurisdictional error and the error was also revealed on the face of the record.[15]
[15]Craig v South Australia (1995) 184 CLR 163, 179.
The second defendant challenged the analysis of the reasons for the decision of the first defendant. It did not argue that if the plaintiff’s analysis was correct jurisdictional error and error on the face of the record were not made out. Rather it relied upon discretionary matters which are discussed below.
The second defendant submitted in response to the principal submission of the plaintiff that on a proper analysis, the Authority did consider the operation of s 135A(6B)(b) and had rejected it. Alternatively, if it did not consider the operation of that provision, it was entitled to proceed in that way because
● no application was in fact being made under sub-s (6B) (b) or
●it was entitled to proceed on the basis that such an application had already been determined in the earlier application under sub-s (6A)
It further submitted that, if in fact the Authority had considered sub-s (6B)(b), the result would have been the same because no counter offer had been made or could properly be deemed to have been made and the operation of the sub-section was conditional on the existence of a counter offer. It further submitted that the application could not succeed due to lack of evidence put to the Authority in support of the application.
In support of its argument that no application was made under sub-s(6B)(b) and that the Authority was entitled to proceed on that basis, the State of Victoria submitted that the plaintiff did not refer to sub-s(6B)(b) and did not attempt to justify the failure to comply with sub-s(2DE) other than
●to refer to the matters raised in the earlier submission, in particular the assertion by the solicitor representing the company and the Authority that it was not the plaintiff’s fault sub-s (2DE) had not been complied with, and
●to advance submissions that were almost identical with the submission in support of the first application under sub-s (6A) except that the second submission argued for a more liberal approach.
Further, it was argued that an application under the original version of sub-s (6A) having been refused, any application under sub-s (6B)(b) on the same material would have been an abuse of process.
Assuming the application was made under sub-s (6B)(a), it was put for the second defendant that it was apparent from the letter that the Authority had categorized the application as seeking consent nunc pro tunc to the commencement of the County Court proceeding filed 12 December 1997 and that the authority was entitled to characterize the application in that way. Based on that categorisation the Authority had correctly construed s 135(a)(6B)(a) as having no application to a proceeding commenced prior to the commencement of the process of statutory offer and counter offer.
In the alternative, it was put that if the correct characterization of the second application of the plaintiff was that she was seeking consent to commence a new County Court proceeding, that application would have to fail. For while one of the preconditions to the operation of sub-s (6B) had been satisfied,[16] there was a second general pre-condition that a counter offer be first made. It had not been and could not be satisfied. It was put, on the basis of an analysis of the various steps, that s 135A(6B) has no application where a conference pursuant to sub-s 2(BE) has not been held within 21 days after the response date and the statutory offer and statutory counter offer have, therefore, not been made.
[16]Sub-section (2DE) prevented the commencement of the proceeding.
Scope of application under s 135A(6B)
It is clear on a fair reading of the application, that the applicant was applying under both paragraphs of s 135A(6B). Strong support for that view is to be found in the submission in opposition of the second defendant which construed it as such and addressed both aspects. There is, however, no reference in the Authority’s reasons to an application under sub-s (6B)(b). What conclusion should be drawn from that – was it ignored or was it rejected?
Did the Authority ignore or consider sub-section (6B) (b)
If the Authority had considered the paragraph (b) aspect and decided either that paragraph (b) was not applicable, or was applicable but had not been satisfied, one would have expected at least a brief statement with reasons to that effect. But there was none. In light of the fact that it gave reasons and those reasons were detailed, the absence of any reference suggests that the point was ignored. This conclusion is strengthened, I suggest, by the fact that the Authority took an erroneous view about the nature of the application in another significant respect. It is quite clear from the application that the plaintiff was seeking consent to commence new proceedings not consent for the original proceedings. Yet the Authority’s reasons make it quite clear that it considered that it was dealing with the application on the basis that it was an application seeking consent for the original proceedings – which at that point had been dismissed against the State of Victoria and otherwise struck out. In my view, the Authority was plainly wrong in categorizing the plaintiff’s application as seeking consent nunc pro tunc in respect of the original County Court proceeding. It would follow, therefore, that there was another error in that the Authority identified a wrong issue. As it was put in Craig v South Australia[17]
“The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into error 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 to reach a mistake in conclusion, and the tribunal’s exercise or purported exercise of powers is thereby affected, it exceeds it authority or powers, such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.”
[17](1994-1995) 184 CLR 163, 179.
Returning, however, to the point in issue, I have come to the conclusion that the Authority failed to consider the sub-section (6B) (b) aspect of the application and so failed to consider relevant matters. [18]
[18]If the VWA did consider sub-section (6B)(b) and reached a conclusion adversely to the applicant, it failed to give any reasons; Masters v McCubbery [1996] 1 VR 635
A different result under sub-section (6B) (b)?
I turn to the arguments advanced to support the decision on the basis that, even if consideration had been given to the application under sub-section (6B)(b), the result would have been the same.
The first argument put for the second defendant is that the availability of sub-s (6B) (b) is dependent upon a counter offer having been made. This argument appears to turn on the references in sub-s (6B) to the counter offer from which the various periods of time are specified. The argument, however, fails to take into account sub-s(2DF) and (2DG).
Sub-section (2DF) provides that if the Authority does not make the statutory offer under sub-s (2DE) the Authority is deemed for the purposes of sub-section (2DE) to have made a statutory offer of nothing on the 60th day after the response date. Sub-section (2DG) provides that if the Authority makes a statutory offer under sub-section (2DE) and the worker does not make a statutory counter offer under that sub-section, the worker is deemed for the purposes of sub-section (2DE) to have made a statutory counter offer of the maximum amount on the 21st day after the statutory offer.
Counsel for the second defendant also submitted that none of these provisions can operate in the absence of a conference within the prescribed 21 days because that is the starting point of the time table and the various events that must occur before proceedings can commence under sub-s (2DE). Counsel submitted that that time table was not triggered because such a conference had not been held.
I am satisfied that a conference was held but it occurred on 10 August 1998 after the prescribed 21 days. In my view nothing turns on that fact. Sub-section (6B) operates where the worker is unable to commence proceeding in accordance with s 135A because of the operation of sub-section (2DE). That sub-section operates to deny the right to commence proceedings for a variety of reasons. They include the failure to hold a conference within the prescribed 21 days. The alternatives set out in sub-section (6B) (a) and (b) do not, however, turn on the conference requirements. The critical event is the counter-offer. Under sub-section (2DF) and (2DG) that is deemed to have been made for the purpose of the operation of sub-section (2DE) if the terms of those provisions are satisfied. As to the deeming provisions the critical date is the response date. That date is defined in sub-s (19) as the date on which the period of 28 days after the determination date expires. The determination date is defined to include the date on which there was a determination that the injury is serious – a determination that was given in this case. Thus the deeming provisions apply and sub-section (6B)(b) is applicable on the basis of a deemed counter offer.
Other issues
It was also argued that the second application was an abuse of process. In my view it was not. It was a new application brought under new and different provisions which were intended to “relieve the hardship” caused in cases where the Authority could not help under the previous legislation. Further, additional material was placed before the Authority.
As to the final matter, the material supplied to the Authority provided support for the application. It cannot be demonstrated that it could not succeed.
Discretionary factors[19]
[19]Victoria Legal Aid v The County Court of Victoria & Anor [2004] VSCA 113 [9]; Mann v Medical Practitioners Board of Victoria [2004] VCA 148 [17].
The first discretionary matter raised by the State of Victoria is the fact that, the employer company having been deregistered, the State will be unable to obtain indemnity from that company pursuant to an agreement entered into with the company on 1 February 1995 through the Orbost Primary School Council. Secondly, the State of Victoria submitted that what was being sought was consent to commence a proceeding in respect of which the limitation period had expired on 1 January 2002. Finally, reference was made to prejudice to be inferred from the lapse of years from 1 January 1996 until the likely trial of a new fresh proceeding – a period likely to be of the order of 10 years.
Each of these issues needs to be considered on the assumption that, the matter is returned to the Authority and it gives consent to the issuing of proceedings against the State of Victoria.
Turning to the concerns raised, the first relates to the inability to enforce the indemnity because of the deregistration of the company. There was no evidence admitted on behalf of the State of Victoria, however, showing that the indemnity would in fact have been of any value.[20] Further the deregistration occurred on 27 February 1998. It is, therefore, a circumstance that would have existed and operated if the statutory procedure had been followed by the Authority in the first place to allow the action to proceed, as was its then intent.
[20]Counsel for the second defendant referred in argument to material contained in its submissions which, if correct demonstrated that the company was deregistered at the request of Mr Robertson and had no assets at the time of deregistration.
As to the limitation period issue, assuming a common law claim against the State of Victoria became statute barred by 1 January 2002, it would be a matter for the State of Victoria whether to raise that defence or not in the proceeding. I consider the possibility that it would not raise the defence to be a real one because;
●the legislative history shows that the executive and the parliament realised that the original retrospective legislation was operating harshly and that the amendments made prior to 2001 had not adequately addressed the issues,
●the plaintiff issued a valid common law proceeding in December 1997, then had her rights retrospectively taken away by the executive and the parliament through legislation but could have continued with the proceeding if the Authority had dealt with her case in accordance with the procedure laid down in that legislation,
●the plaintiff was led to believe, as late at July 2000, by those acting for the Authority that consent would be available, following which she consented to her existing proceeding against the Authority being struck out,
●on the evidence before me there has been inordinate delay by the Authority and the State of Victoria in relation to the applications made in November 2000 and October 2002.
If the limitation period were to be relied upon by the State of Victoria in any action, it could in any event be dealt with then.
As to the alleged prejudice inferred from the lapse of years, I note that there is nothing specific alleged to point to any particular prejudice that may have been suffered. Further, as already noted, the State of Victoria and the Authority appear to have been the major contributors to the delay because of their long delays in responding to and dealing with each of the applications.
In my view, the discretionary considerations raised do not warrant denial of the relief sought.
Conclusion
The situation is one, in my view, where the Authority has misdirected itself by failing to consider relevant matters. The decision should be quashed. The plaintiff is entitled to have the Authority reconsider the matter and do so according to law.
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