JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SEDDON -v- MEDICAL ASSESSMENT PANEL [2011] WASC 237
CORAM: EDELMAN J
HEARD: 9 & 31 AUGUST 2011
DELIVERED : 8 SEPTEMBER 2011
FILE NO/S: CIV 2010 of 2011
MATTER :In the matter of an application for a writ of certiorari against Dr Alexeeff, Dr La Bianca and Dr Brown, members of a Medical Assessment Panel under the Workers' Compensation and Injury Management Act 1981 (WA)
BETWEEN: RAOUL THOMAS SEDDON
Applicant
AND
MEDICAL ASSESSMENT PANEL
First RespondentSHANE MELVILLE, ACTING DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE
Second Respondent
Catchwords:
Administrative law - Application for order to show cause - Jurisdictional error - Whether there is an arguable case that jurisdictional errors arise from reasons given by the Medical Assessment Panel - Whether there is an arguable case that there was no evidence for part of the determination by the Panel - Whether there is an arguable case that the Panel acted beyond jurisdiction - Whether there is an arguable case that the Panel failed to satisfy a jurisdictional fact by giving inadequate reasons for decision
Constitutional law - Privative clause - Section 145E of the Workers' Compensation and Injury Management Act 1981 (WA) provides that a decision of a medical assessment panel 'is not amenable to judicial review' - Whether arguable case that s 145E has retrospective operation - Whether arguable case that s 145E does not exclude judicial review for jurisdictional error - Whether arguable case that s 145E is beyond the legislative competence of the Parliament of Western Australia
Legislation:
Interpretation Act 1984 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Order nisi granted
Category: A
Representation:
Counsel:
Applicant: Mr R E Lindsay
First Respondent : No appearance
Second Respondent : No appearance
Solicitors:
Applicant: S C Nigam & Co
First Respondent : No appearance
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Andreassen v Rural West Pty Ltd [2007] WASCA 265
Attorney‑General (Vic) v Commonwealth (1945) 71 CLR 237
Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88
Bloomfield v Liebherr Australia Pty Ltd [2007] WASCA 154
Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1
Colley v Futurebrand FHA Pty Ltd [2005] NSWCA 223; (2005) 63 NSWLR 291
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Donges v Ratcliffe [1975] 1 NSWLR 501
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360
Fisher v Madden [2002] NSWCA 28; (2002) 54 NSWLR 179
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
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- Case
- [2011] WASC 237
- Decision Date
CaseChat Overview and Summary
The court had to determine several legal issues, including whether there was an arguable case that the Panel made jurisdictional errors in its decision-making process. These errors allegedly arose from the reasons given by the Panel, the lack of evidence for part of the determination, the Panel acting beyond its jurisdiction, and the Panel's failure to satisfy a jurisdictional fact by providing inadequate reasons. Additionally, the court examined whether the privative clause effectively precluded judicial review for jurisdictional error and whether such a clause would be beyond State legislative power if it did so.
The court concluded that it was arguable that the privative clause should be construed to exclude only non-jurisdictional errors from judicial review. This interpretation was deemed necessary for the clause to be constitutional and consistent with established legal principles. The court also found that it was arguable that if the clause were construed to exclude judicial review for jurisdictional error, it would be beyond State legislative power. These arguments had reasonable prospects of success, leading the court to allow the application for an order to show cause.
The final orders were that the application was allowed, and an order to show cause was issued. This required the Panel to demonstrate why the decision should not be quashed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There are two reasons why it is arguable that 'not amenable to judicial review' should be confined to judicial review for non‑jurisdictional errors. The first is, as I explain below, that this construction may be necessary for the law to be constitutional. Other things remaining equal, a construction of legislation which produces the result that the legislation is constitutional should be preferred to one that would not: Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, 14 (Mason CJ); Attorney‑General (Vic) v Commonwealth (1945) 71 CLR 237, 267 (Dixon J). The second reason why 'not amenable to judicial review' might be confined to review for non‑jurisdictional error is because that construction would be consistent with the well established approach which is taken to the words discussed above in (1) and (2). In R v Nat Bell Liquors Ltd [1922] 2 AC 128, 162, Lord Sumner, delivering the advice of the Privy Council, said that clauses limiting the power of a court to grant certiorari and quash a decision should be read in that way only if 'explicit language is used' so that if certiorari were to be taken away it is done 'explicitly and unmistakeably'. I consider that it is also arguable that the construction discussed above would not render the provision meaningless. There is a clear conceptual distinction between judicial review of a decision for a non‑jurisdictional error of law, and judicial review of a decision for jurisdictional error: Kirk v Industrial Relations Commission of New South Wales (576, 581) [80], [100]; Plaintiff S157/2002 v Commonwealth of Australia (506) [76] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ). If 'judicial review' means 'judicial review for non‑jurisdictional error' then the privative clause will still operate in relation to non‑jurisdictional errors of law. Even if this conclusion on construction were not arguably correct, counsel for Mr Seddon had a third submission. When this application first came before me, I asked counsel if he was raising any constitutional issues. The matter was adjourned for unrelated reasons, but during the adjournment counsel issued notices under s 78B of the Judiciary Act 1903 (Cth) indicating that an alternative submission would be made in the proceedings concerning an issue arising under the Constitution. That issue is that if s 145E(9) were construed to exclude judicial review for jurisdictional error then the subsection would be beyond State legislative power. None of the Attorneys‑General sought to intervene at this stage of the proceedings. I consider that it is arguable that if s 145E(9) were construed to exclude judicial review for jurisdictional error then it would be beyond State legislative power. I consider that such an argument would have reasonable prospects of success. In a considered obiter dictum in Kirk v Industrial Relations Commission of New South Wales (581) [100], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that the distinction between jurisdictional and non‑jurisdictional error marks the relevant limit on State legislative power:Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.