Tam v Worksafe Victoria

[2023] NSWSC 173

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tam v Worksafe Victoria [2023] NSWSC 173

Hearing dates:

10 February 2023

Date of orders:

2 March 2023

Decision date:

02 March 2023

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1 The summons is dismissed.

2 The plaintiff is to pay the second defendant’s costs.

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision made by Victorian WorkCover Authority – jurisdiction to undertake judicial review matter of Victorian official – Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) – decision under s 337(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – decision not to consent to commencement of proceedings for damages out of time – whether administrative law error in Authority not finding absence of fault or omission of worker or legal representative – summons dismissed

Legislation Cited:

Administrative Law Act 1978 (Vic)

Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)

Corporations Act 2001 (Cth)

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)

Work Health and Safety Act 2011 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Category:

Principal judgment

Parties:

Ching Tam (plaintiff)
Worksafe Victoria (first defendant)
Victorian Workcover Authority (second defendant)

Representation:

Counsel:
RS Sheldon SC (plaintiff)
PJ Hayes KC with G Jegatheesan (defendant)

Solicitors:
Shanahan Tudhope Lawyers (plaintfiff)
Lander & Rogers (defendants)

File Number(s):

2022/14892

Publication restriction:

No

JUDGMENT

1. HIS HONOUR: By summons filed on 21 October 2022 the plaintiff seeks judicial review of a decision made by the Victorian WorkCover Authority (“the Authority”). The decision was made on 11 October 2022 under s 337(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). Under that provision the Authority decided to refuse consent for the plaintiff to commence proceedings outside a time limit prescribed by the Act.

2. On 13 July 2017 the plaintiff was injured when he fell from a ladder in the course of his employment as a fruit picker in an orchard at Hillston, a locality approximately 110 km north of Griffith in the New South Wales Riverina. The injury sustained was catastrophic, involving spinal damage at the C4-C5 level that has rendered the plaintiff quadriplegic. He alleges that his fall resulted from, inter-alia, negligence of both the operator of the orchard, Super Seasons Pty Ltd, and the plaintiff’s direct employer, a labour hire company named Mr Handy Professor Pty Ltd (“MHP”). Under a contract between the two companies, MHP had supplied the plaintiff’s labour to Super Seasons Pty Ltd.

3. The plaintiff wishes to prosecute in this Court a claim against the Authority, as insurer of MHP, for common law damages for his workplace injury. In circumstances described below, the plaintiff has already joined the Authority as a defendant to a common law action that he commenced in this Court but the Authority contends that that proceeding is a nullity as against it by reason of the joinder having taken place before the plaintiff had obtained a certificate of serious injury, as required by the Act. Since the issue of a serious injury certificate, post joinder, the authority acknowledges that he has fulfilled some of the pre-action steps that are required for commencement of a fresh, valid proceeding but that he has not commenced such a proceeding and that he is now outside a strict statutory limitation period. As earlier mentioned, the decision under review is the Authority’s refusal of consent for the plaintiff to commence now that the time-limi has expired t.

4. It is necessary to consider the applicable provisions of the Act and to recount the procedural history to date, in order to provide context for the Authority’s decision and to assess the grounds upon which judicial review is sought.

Workers’ actions for damages under Victorian legislation

5. The Authority was established pursuant to s 18 of the Accident Compensation Act 1985 (Vic) (Rep). It has continued in existence from 1 January 2014 by force of s 491(1) of the Act. The Authority’s objectives, functions and powers pursuant to ss 492, 493 and 494 of the Act include the following: to manage the compensation scheme for workplace accidents that is established under the Act, to assess and determine claims for compensation and generally to administer the Act and to conduct and defend court proceedings. The Authority collects premiums from employers in Victoria and maintains a fund from which compensation may be paid to injured workers, in the form of weekly benefits, payment of medical expenses and compensation for non-economic loss.

6. Part 7 of the Act, comprising ss 318-371 inclusive, governs the bringing of actions by injured workers to recover damages. Division 2 of Pt 7 includes ss 326-328, 330 and 335, as follows (extracted so far as presently relevant):

326   Actions for damages

A worker who is […] or may be, entitled to compensation in respect of an injury arising out of, or in the course of, or due to the nature of, employment must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except—

[…]

(c)   as permitted by and in accordance with this Division, Division 3 or section 366.

327   Actions for damages—serious injury

Subject to this Division, a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury.

328   Proceedings under this Division

(1)   Subject to subsection (3), a worker may not bring proceedings in accordance with this Division unless—

[…]

(b)   subject to any directions given by the Minister under section 352, the worker elects to make an application under subsection (2) on the ground that the worker has a serious injury.

(2)   Subject to subsection (3), a worker may make an application under this subsection—

[…]

(b)   if subsection (1)(b) applies, only after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred.

330 Authority or self-insurer to respond to application

(1)   The Authority […] must, within 120 days (or such other period as may be specified in directions given under section 352) of receiving the application, advise the worker in writing -

(a)   that the worker is deemed to have a serious injury; or

(b) if the worker is not deemed to have a serious injury, whether or not the Authority […] will issue a certificate under section 335(2)(c).

335   Proceedings for damages for serious injury

(2)   If—

(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or

(b) the worker makes an application under section 328(2)(b)—

the worker may not bring proceedings for the recovery of damages in respect of the injury unless—

(c)   the Authority […]—

(i)   is satisfied that the injury is a serious injury; and

(ii)   issues to the worker a certificate in writing consenting to the bringing of the proceedings; or

(d)   a court, other than the Magistrates' Court, gives leave to bring the proceedings on the application of the worker made—

(i) within 30 days after the worker received advice under section 330(1); or

(ii) after that period, with the consent of the Authority under section 337(1).

7. Section 366, referred to in s 326(c), relates to actions for damages by dependants of a deceased worker pursuant to the Wrongs Act 1958 (Vic). It is not relevant to this case. Division 3, also referred to in s 326(c), is not directly relevant. It contains, in s 357, a procedure for validating actions for damages that have been commenced, without the issue of a serious injury certificate, by workers who are terminally ill or have an asbestos-related condition. Section 357 is extracted at [29] below, where consideration is given to its significance for the interpretation of other provisions of the Act that are directly relevant to the issue now before the Court.

Criterion of application of the Act: employment connected with Victoria

8. Section 37 limits eligibility for compensation under the Act to workers whose employment is connected with Victoria. The relevant parts of the section are as follows:

37   Entitlement to compensation only if employment connected with Victoria

(1)   There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.

(2)   The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.

(3)   A worker's employment is connected with -

(a)   the State in which the worker usually works in that employment; or

(b)   if no State or no one State is identified under paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c)   if no State or no one State is identified under paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located.

9. The principal place of business of MHP was in Victoria. Prior to the accident on 13 October 2017 that company had supplied the plaintiff’s labour to businesses in Victoria. The plaintiff was transported by bus from Victoria, across the border and up to Hillston, on the day of the accident. That was the first day during his employment with MHP on which he had worked in New South Wales. The plaintiff is a Malaysian national, presumably working in Australia under a temporary visa. Both the plaintiff and the Authority now agree that the plaintiff’s employment was connected with Victoria within the meaning of s 37 and that he is entitled to compensation under the Act. It follows that recovery of damages for injuries said to have been caused to the plaintiff by MHP’s negligence is limited to a proceeding brought in accordance with Pt 7 Div 2 of the Act, comprising ss 324-356F.

Legal basis for claiming damages directly against the Authority

10. By force of ss 70 and 71 of the Act, both the employer, MHP, and the Authority are liable to an injured worker to whom the Act applies, to pay compensation and damages. Those sections, omitting irrelevant parts, are in the following terms:

70   Liability of Authority and employer

(1)   The Authority, as well as the employer, is directly liable to a worker […] to pay compensation and damages in accordance with this Act […] for which the employer is liable as an employer of the worker in respect of injuries arising out of, or in the course of, or due to the nature of, employment.

(2)   Without derogating from the generality of subsection (1), the Authority is bound by, and subject to, any judgment, order, decision, award or determination given or made against the employer of a worker in respect of the injury or death for which compensation or damages is payable.

71   Authority to indemnify employer

(1)   The Authority is liable to indemnify an employer in respect of the employer's liability as an employer of a worker to pay compensation and damages in accordance with this Act or […] a corresponding provision of an Act of […] another State […], for injuries suffered by the worker arising out of, or in the course of, or due to the nature of employment by the employer.

Plaintiff’s non-compliant joinder of the Authority in 2020

11. On 21 February 2020 the plaintiff filed a statement of claim in this Court naming Super Season Pty Ltd as the only defendant, alleging negligent breach of a common law duty of care and breach of statutory duty of care said to arise under the Work Health and Safety Act 2011 (NSW) and associated Regulations: Common Law Division File No 2020/56877. On 8 July 2020 Super Season Pty Ltd filed a defence denying breach of duty and admitting that the plaintiff was an employee of MHP, which Super Season Pty Ltd had engaged “at all material times to provide individuals to work as fruit pickers in the orchard”.

12. On 2 November 2020 the plaintiff filed an amended statement of claim joining the Authority as second defendant. In that pleading the plaintiff alleged that at the time of the accident he had been employed by MHP and that his injuries had been caused by MHP’s negligent breach of a non-delegable common law duty of care owed to him. Breach of statutory duty was also pleaded. The plaintiff further alleged that MHP “held a workers compensation insurance policy […] whereby the [Authority] was to indemnify MHP for compensation and damages for injury to [its] employees, including the plaintiff, during the period of the policy”. The plaintiff alleged, as appears to be the fact, that MHP was deregistered on 9 June 2019. By the amended statement of claim the plaintiff alleged that he was entitled to join and recover against the Authority, as MHP’s insurer, pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).

13. On 17 March 2021 the Authority filed a defence to the plaintiffs amended statement of claim denying the alleged breaches of common law and statutory duties. More importantly for present purposes, the Authority denied that it had issued to MHP a workers compensation insurance policy and, while admitting that MHP had been deregistered, it denied that the plaintiff was entitled to bring his action against the Authority pursuant to ss 4 and 5 of the Civil Liability (Third Party Claims Against Insurers) Act. It is not clear that the plaintiff needs to rely upon those provisions, or upon s 601G of the Corporations Act 2001 (Cth) in view of ss 70 and 71 of the Workplace Injury Rehabilitation and Compensation Act.

The Authority’s defence to the plaintiff’s action for damages

14. By 2 November 2020 when the Authority was joined as a defendant to the plaintiff’s common law action in this Court, more than 18 months had passed since the plaintiff’s accident. He was therefore eligible, in accordance with s 328(2)(b) of the Act, to apply for certification by the Authority that his injury was serious. However, he had not made such an application or received a certificate. The Authority’s defence of 17 March 2021 to the plaintiff’s amended statement of claim included the following paragraphs, which have assumed significance in the present application for judicial review:

27   The [Authority] is not liable to indemnify MHP in respect of any liability to the plaintiff because the plaintiff is not a person entitled to compensation in Victoria under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”).

28 The plaintiff is not a person entitled to compensation in Victoria by reason of s 37 of the WIRC Act because his employment is not connected with the State of Victoria.

29   The plaintiff is a person entitled to compensation in New South Wales, who has made a claim and received compensation in New South Wales.

30 Further, and in the alternative, if the plaintiff is a person entitled to compensation in Victoria, which is denied, he is not entitled to recover damages for the injury because the plaintiff has not complied with Division 2 of Part 7 of the WIRC Act. The Authority has not issued to the plaintiff a serious injury certificate nor has he obtained leave of the Court to proceed with a claim for damages.

15. The reference in par 30 to the alternative of obtaining “leave of the Court to proceed with a claim for damages” is, no doubt, a reference to s 335(2)(d) of the Act [see [6] above]. Under that provision, if the Authority declines an application for certification that a worker’s injury is serious, a Victorian court other than the Magistrates Court may grant leave for the commencement of a damages action. That alternative is not engaged on the facts of the present proceeding.

16. Paragraph 29 of the Authority’s defence refers to the circumstance that from about 16 October 2017 until 10 August 2022, workers compensation benefits were paid to the plaintiff by the New South Wales Nominal Insurer under s 20(1) of the Workers Compensation Act 1987 (NSW), which provides as follows:

20   Principal liable to pay compensation to workers employed by contractors in certain cases

(1)   If any person (in this section referred to as the principal) in the course of or for the purposes of the person’s trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.

17. Initially the Nominal Insurer regarded Super Season Pty Ltd as the “principal” for the purposes of s 20(1), because MHP was not insured under the New South Wales Act. On 17 June 2022 the Nominal Insurer notified the plaintiff that it now disputed his claim to compensation under the New South Wales scheme upon the basis that his employment was not connected with this State. Payments from the Nominal insurer continued for approximately a further six weeks but, from 6 August 2022, the Authority has paid workers compensation under the Victorian scheme.

Issue of a serious injury certificate after joining the Authority

18. After the plaintiff had been alerted, by par 30 of the Authority’s defence, to the need for him to obtain a serious injury certificate as a prerequisite to the commencement of damages proceedings, on 21 May 2021 the plaintiff made an application to the Authority pursuant to s 328(2)(b) of the Act. The Authority was bound by s 333 Act to respond within 120 days, which would have expired on 19 September 2021. On 14 September 2021 the Authority issued a certificate, under a heading that referred to s 328 of the Act and to the plaintiff and to MHP. It stated the following:

For the purposes of section 328 of the Workplace Injury Rehabilitation and Compensation Act 2013, WorkSafe Victoria certifies in respect of Ching Tam that:

1 the Authority is satisfied that the injury alleged to have been sustained on 13 July 2017 is a serious injury within the meaning of Section 325(2)(b)(i) and (ii) of the Act; and

2 subject to compliance with section 333 of the Act, consent is given pursuant to s 335(2)(c) of the Act for Ching Tam to bring proceedings for the recovery of pain and suffering and pecuniary loss damages as a result of that injury.

Dated: 14 September 2021

(Sgd)

Lander & Rogers

Solicitors for WorkSafe Victoria

19. The Court has been informed by counsel for the Authority that “WorkSafe Victoria” is simply another name under which it operates. I will accept that for the purposes of this proceeding although I am unable to find statutory authority for the use of the name.

Amendment of the Authority’s defence to the plaintiff’s damages claim

20. On 6 May 2022 the plaintiff’s action against Super Season Pty Ltd and the Authority was set down for hearing for 10 days, to commence on 10 October 2022. On 15 July 2022 consent orders were made for, inter alia, finalisation of cross claims, service of evidence and mediation. By consent orders of 29 July 2022 further adjustments were made to those pre-trial directions. On 6 October 2022 the Authority consented to pars 27-29 of its defence being struck out. That had the effect that it henceforth conceded that the Act applied to the plaintiff and governed the Authority’s liability to indemnify MHP. Paragraph 30 of the defence has been maintained, alleging that the plaintiff is not entitled to recover damages in the proceedings in this Court to which he joined the Authority on 2 November 2020 because he has “not complied with Division 2 Part 7 of the WIRC Act”. The Authority can, of course, no longer maintain the assertion in the second sentence of par 30 of its defence that it has “not issued to the plaintiff a serious injury certificate” but it remains true that no certificate had been issued prior to the joinder of the Authority on 2 November 2020, contrary to the requirement of ss 328, 330 and 335 of the Act.

20. On the morning of 10 October 2022, when the hearing of the plaintiff’s action was to commence, the Authority delivered to the plaintiff’s legal representatives written submissions to the following effect:

1. the proceedings for damages that were commenced against the Authority when the plaintiff joined it as a defendant on 2 November 2020 are a nullity, because the plaintiff did not at the time hold a serious injury certificate;

2. obtaining the serious injury certificate on 14 September 2021, 10 months later, did not retrospectively validate the proceedings;

3. the plaintiff could only pursue a claim for damages against the Authority by commencing a fresh proceeding now that a serious injury certificate has been issued;

4. a pre-action exchange of offers had to be undertaken, pursuant to ss 333 and 334 of the Act, after the issue of the certificate and before commencing a fresh proceeding;

5. a statutory limitation period, running from when the prescribed exchange of offers had taken place, expired on 30 January 2022;

6. the plaintiff was out of time to commence a fresh proceeding and could only do so if he should obtain the consent of the Authority, which could be given in limited circumstances under s 337(2) of the Act; and

7. the plaintiff had not sought or obtained the requisite consent.

22. In the face of those submissions the hearing of the plaintiff’s action did not immediately proceed on 10 October 2022 but was adjourned until the next day, to enable the plaintiff to apply to the Authority for the requisite consent pursuant to s 337(2) of the Act. An application was immediately made and resulted in the decision of the Authority the next day, 11 October 2022, refusing consent. That is the decision in respect of which judicial review is now sought. It is necessary to refer to the provisions of the Act upon which the submissions paraphrased at [21(4)-(6)] above were based.

Statutory prerequisites to be fulfilled after serious injury certification

23. Further provisions of Div 2 of Pt 7 of the Act, extracted so far as material for present purposes, are as follows:

333 Conference before proceedings commence

The worker must not commence proceedings in accordance with this Division, other than […] the commencement of proceedings with the consent of the Authority under section 337, unless -

(a)   the worker and the Authority […] hold, or begin, a conference within 21 days after the response date; and

(b)   the Authority […] 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 […] does not accept that statutory counter offer within 21 days after it is made; and

(e)   the proceedings are commenced -

(i)   not earlier than 21 days, and not more than 51 days, after the statutory counter offer is made; or

(ii) if a statutory counter offer is deemed to have been made under section 334(2), not more than 30 days after the day on which the statutory counter offer is deemed to have been made.

334 Statutory offer and counter offer

(2)   If -

(a) the Authority […] makes a statutory offer under section 333; and

(b)   the worker does not make a statutory counter offer under that section -

the worker is deemed, for the purposes of that section, to have made, on the 21st day after the statutory offer was made, a statutory counter offer of the maximum amounts that may be awarded as damages under section 340(a) and (b).

24. By the combined operation of ss 328 and 330, the “response date” for the purposes of the above sections is 28 days after the date of the serious injury certificate. In this case the response date was 12 October 2021. It is not apparent from the evidence in the present proceedings whether a conference was held pursuant to s 333(a) but neither party has taken issue about that. Pursuant to s 333(b) the 60 days within which the Authority was required to make an offer expired on 17 December 2021. Within that time, on 10 December 2021 the Authority made an offer of nil. Section 333(c) required that the plaintiff’s counter offer should be made within 21 days, by 1 January 2022. The plaintiff did not make a counter offer. Therefore, by force of s 334(2), on 1 January 2022 he was deemed to have offered to accept the maximum amounts for pecuniary loss and for pain and suffering that could be awarded in accordance with s 340(a) and (b). The Authority did not accept the deemed counter offer within 21 days, as provided for in s 333(d), or at all.

25. Those circumstances engaged s 333(e)(ii). The plaintiff was required to commence his proceedings against the Authority for recovery of damages not more than 30 days after 1 January 2022, that is, by 31 January 2022. The introductory words of s 333 prohibit the plaintiff from commencing proceedings at any later date “other than […] with the consent of the Authority under section 337”. Section 337 is as follows (emphasis added):

337   Authority may consent to bringing of proceedings

(1)   If, on the application of a worker, the Authority is satisfied that—

(a) the worker is unable to commence proceedings in accordance with this Division because of the operation of section 335(2)(d); and

(b) the failure to comply with section 335(2)(d) 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 section 335(2)(d).

(2) If the Authority is satisfied that a worker is unable to commence proceedings in accordance with this Division because of the operation of section 333, 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 statutory 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 statutory counter offer is made if the Authority is satisfied that the failure to comply with section 333 was not due to any fault or omission of the worker or the worker's legal representative.

Retrospective validation of proceedings

26. It has been held that consent under s 337(2) for proceedings to be commenced after expiry of the statutory limit in s 333 may be given after the commencement and will retrospectively validate proceedings that were brought out of time: Felsctynski v Victorian WorkCover Authority [2022] VSC 257]. In that case Tsalamandris J held:

[84] […] It is clear that s 337(2) is intended to ameliorate the invalidity arising from non-compliance with s 333 and as such the reference in it to the commencement of proceedings, must necessarily refer to those invalid proceedings, which are rendered valid upon the granting of the Authority’s consent.

[90] Accepting that the proceedings are invalid without the Authority’s consent, when ss 333 and 337(2) are read together, I am satisfied that s 337(2) was intended to revive proceedings which were otherwise invalid. That is, and for the reasons referred to above, consent given by the Authority after the commencement of the proceedings, is sufficient to have those proceedings “spring to life”.

27. It would follow that sub-s (1) of s 337 should be construed in the same way. Under s 335(2)(d) (reproduced at [6] above), if the Authority “advises”, in response to a worker’s request for a serious injury certificate, that it will not issue such certificate nor a consent to the bringing of proceedings, then within 30 days the worker may apply to the Court for leave to bring the proceedings regardless. If the worker should commence that leave application out of time – that is, more than 30 days after receiving the Authority’s negative “advice” – then consent subsequently granted by the Authority upon being satisfied that the delay was “not due to any fault or omission of the worker or the worker’s legal representative” would retrospectively validate the leave application already on foot.

28. However, no aspect of s 337 makes provision for the Authority to consent, retrospectively or prospectively, to the commencement of proceedings for damages in the absence of a serious injury certificate under ss 328(2) and 330(1). Subection (1) of s 337 is only concerned with the Authority giving consent to overcome breaches of s 335(2)(d) and sub-s (2) is confined to consent that would overcome breaches s 333. Nor does any other provision of the Act empower the Authority to consent to the commencement of proceedings without a serious injury certificate or to the continuance of proceedings that have already been commenced without such a certificate – such as the joinder of the Authority as a defendant to the plaintiff’s common law action in this Court. The only provision for prospective authorisation of commencement of proceedings without a certificate is s 335(2)(d), which confers the power upon a court. The only provision for retrospective validation of proceedings commenced without a certificate is limited to the case of workers who are terminally ill or who suffer from an asbestos-related condition. That is s 357, referred to earlier in these reasons.

29. Section 357, in Div 3, is in these terms (omitting portions not presently relevant):

357   Actions by terminally ill workers or workers with asbestos-related conditions

(1) This section applies if a worker who may have an entitlement to recover damages in accordance with Division 2—

(a)   in respect of an injury arising out of or in the course of, or due to the nature of, employment believes that that injury or an unrelated medical condition or injury gives rise to an imminent risk of death; or

(b)   in respect of an injury that is an asbestos related condition arising out of, or in the course of, or due to the nature of, employment.

(2) If this section applies, the worker may, subject to compliance with the requirements of this section, bring proceedings in accordance with Division 2 without complying with the requirements of sections 325(2), 326 to 338 and 344(1) and (2).

(3) If a worker commences proceedings under Division 2 on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to an Associate Judge of the Supreme Court—

(a)   for an order allowing leave for the worker to proceed nunc pro tunc; and

(b)   for an order allowing an expedited hearing of the proceedings if the injury or an unrelated medical condition or injury gives rise to an imminent risk of death of the worker.

Note: An order allowing leave to proceed nunc pro tunc deems proceedings to have commenced before the order was made.

[…]

(5) If the Associate Judge of the Supreme Court does not grant the orders referred to in subsection (3), the Associate Judge of the Supreme Court must make an order that the proceedings be struck out on the grounds that this section does not apply and that the proceedings have not been brought in accordance with Division 2.

(6) If the Associate Judge of the Supreme Court does grant the orders referred to in subsection (3), the worker can only recover damages in accordance with Division 2 if the worker establishes that the worker has a serious injury within the meaning of section 325(2).

[…]

30. The enactment of this provision supports the interpretation of Pt 7 generally that, short of obtaining a nunc pro tunc order, which may only be made in the limited class of cases to which s 357 applies, a plaintiff who has commenced proceedings without a certificate is left with an irremediable nullity. If any other provisions of the Act were intended to have the effect that a post-commencement certificate of serious injury could retrospectively validate proceedings, s 357 would be redundant.

31. Further, it would be surprising if the belated grant of a serious injury certificate could retrospectively validate proceedings commenced without it. That would permit circumvention of the statutory requirements of pre-action negotiations, statutory offers and time limits that are prescribed in s 333. Those steps are to follow the issue of the certificate but to precede commencement. Retrospective validation by a post-commencement certificate would dispense with s 333, without the control mechanism of the Authority being required to be satisfied of the s 337 criteria of absence of prejudice to the defence or fault or omission of the worker or the worker’s legal representative.

32. I have not been made aware of any judicial authority to the contrary of the above interpretation of the Act. The only recourse available to a worker who has commenced without a certificate is to apply for one and, if it is granted, to take the pre-action steps in s 333 and then commence fresh proceedings. The plaintiff’s existing proceedings against the Authority are incurably invalid.

The plaintiff’s application for consent to commence out of time

33. As the plaintiff’s statutory counter offer was deemed to have been made on 1 January 2022, more than 81 days had passed when, on 10 October 2022, the plaintiff sought the Authority’s consent to commence a fresh proceeding. To obtain that consent he had to satisfy the Authority in terms of s 337(2)(b). The plaintiff’s application was made by letter from his solicitor dated 10 October 2022, addressed to the Authority’s Senior Manager, Mr Greg Brown. The relevant parts of the letter are as follows, referring to the Authority as “VWA”. Paragraph numbers have been added for ease of reference:

[1] Please note that it remains the plaintiff’s position that it is not out of time to bring proceedings. The time limits set out pursuant to section 337 of the WIRC Act do not start to run until leave has been granted for VWA to amend its Defence. The plaintiff reserves its position in that regard.

[2]   The plaintiff is also concerned that you have the role of both providing instructions on behalf of VWA in relation to the defence of the plaintiff’s claim, and also as the decision maker in relation to whether VWA consents to the plaintiff carrying on or commencing new proceedings against it, particularly to the extent that this application may involve the disclosure of otherwise privileged information. We note [the evidence of Mr Whiting, the Authority’s solicitor] today as to the extent of your involvement in the proceedings to date and your providing instructions to him in relation to their defence.

Application for Consent pursuant to section 337 of the WIRC Act

[3]   You are familiar with the facts and circumstances of the accident, having been providing instructions to Mr David Whiting in this matter for some years. […]

Relevant Background

[4]   As you are aware, VWA was joined to these proceeding by way of Amended Statement of Claim, filed in the Supreme Court of NSW on 2 November 2020. VWA filed its Defence on 17 March 2021.

[5] In its Defence VWA alleged, amongst other things, that the Victorian workers compensation regime did not apply to the plaintiff. As an alternative pleading VWA alleged that that the plaintiff was not entitled to recover damages from VWA as he had not complied with Division 2 Part 7 of the WIRC Act, and the Authority had not issued the plaintiff a Serious Injury Certificate.

[6]   Despite VWA maintaining that the Victorian legal regime did not apply to him, the plaintiff sought to remedy the issue raised in the VWA’s Defence, by applying for, and obtaining from the VWA, a Serious Injury Certificate dated 14 September 2021.

[7]   VWA then served this certificate under cover of a letter dated 14 September 2021, which stated, amongst other things: “Accordingly, subject to compliance with s 333 of the WIRC Act, our client consents to the bringing of proceedings for pain and suffering and pecuniary loss damages.”

[8] The VWA then issued a Statutory Offer, dated 10 December 2021, in the amount of $0. We understand this was based on the non-applicability of the WIRC Act.

[9] At the return of the plaintiff’s motion on 4 October 2022, VWA first raised its intention to file an amended Defence, conceding that the plaintiff did fall under the Victorian workers compensation regime, and seeking to particularise breaches of section 333 that it says now prevent the plaintiff from maintaining its claim against the VWA.

[10]   However, VWA did not make an application to amend its Defence, with this application first being made during the course of the hearing, today.

[11]   At no stage between Defence being filed on 17 March 2021 and the submissions made by VWA in the Supreme Court of NSW on 4 October 2022, was there any communication or indication made to the worker or our office, that VWA:

1.   Considered the plaintiff’s claim to be void, and that the plaintiff required VWA’s consent to commence proceedings in the circumstances; and

2. Would agitate compliance with section 333 of the WIRC Act in defence of the plaintiff’s claim currently before the Supreme Court.

[12]   Again, Mr Whiting’s evidence today was to the effect that it could be inferred that given the amended Defence was not flied at or following the Notice of Motion on 4 October 2022, it could be inferred that the limitation point was not being raised by VWA [sic].

Test pursuant to Section 337

[13]   Given VWA has filed a Defence and has been an active participant in the proceedings (including consenting to the matter being listed for hearing) there can be no serious claim that VWA’s defence of the proceedings will be prejudiced if consent is given.

[13] Similarly, noting his Honour’s comments during the course of today’s hearing and the general way that VWA has conducted its defence of these proceedings, there can be no serious claim that any failure to comply with section 333 was due to any fault or omission of the worker or the worker’s legal representative.

[14] On the position adopted by VWA in these proceedings, on your instructions, the WIRC Act did not apply to our client’s claim until 4 October 2022. How then could the Plaintiff have been expected to comply with provisions having no application on the position adopted by VWA?

[15] Indeed, it is the plaintiff’s contention that only once the amended Defence has been filed, withdrawing paras 27-29, does the relevant period under section 333(e) of the WIRC Act actually commence.

[16]   We maintain that view, but given what occurred today, and without any admission as to the merits of VWA’s limitation point generally, consider the above is a legitimate basis for not commencing these proceedings within the requisite time periods now alleged.

[17]   In light of the above and his Honour’s directions earlier today, we seek VWA’s consent to maintain the proceeding currently before the Court, or to bring fresh proceedings which will then be joined to the current proceedings.

[18]   We understand that you can provide this consent retrospectively, such that proceedings do not have to be reinstituted, noting the decision in Felsctynski v Victorian WorkCover Authority [2022] VSC 257.

[19] We understand that you will be able to confirm the VWA’s position under section 337 before Court resumes tomorrow at 11am.

34. The Authority’s decision to refuse consent was made by Mr Brown and was conveyed in a letter dated 11 October 2022. Mr Brown recited the date of the plaintiff’s application for a serious injury certificate and the date of the Authority’s issue of that certificate. He then set out the pre-action steps required to be taken under s 333 and referred to the statutory time limit for commencing proceedings. His decision continued as follows (numbers added for ease of reference):

[1] In this case a proceeding was required to be commenced prior to 1 February 2022. No proceeding has been commenced within the prescribed time limits of the Act. [Section 337(2) is then quoted].

[2]   The case has reached this point following the joinder of [the Authority] as insurer of [MHP] due to MHP being deregistered.

[3] It is the view of the Authority that for a worker to issue proceedings to claim damages from an employer the worker must comply with the provisions of the Act.

[4] A defence reflecting this position was served on the worker’s legal representative who then proceeded to lodge an application to the Authority [referring to the application for a serious injury certificate] to comply with the Act.

[5]   The common law scheme with its stringent timeframes and penalties has operated for more than 2 decades. Once an application [for a serious injury certificate] is commenced there are timeframes governing the process with harsh penalties if there is failure to comply.

[6] It is noted that the worker’s legal representative acknowledges that when the Authority’s determination was provided issuing a certificate [of serious injury] and consenting to the bringing of the proceedings it also said “subject to compliance with s 333 of the WIRC Act”. The mandatory nature of s 333 of the Act has been outlined above.

[7] The worker’s legal representative was clearly put on notice about the requirements of s 333 of the Act and the language is clear that aspects are mandatory and significant penalties await those who do not comply. There is in the view of the Authority no mitigation for the non-compliance. There was only what at best appears to be a misunderstanding of the requirements of the Act.

[8]   The worker’s legal representatives have raised a recent decision of Felsctynski v Victorian WorkCover Authority [2022] VSC 257. It is the Authority’s view that this case has no impact on the test that controls this case. In Felsctynski the case was about whether the case fell into s 337(2)(a) or (b). The test in (a) offers a small window for a less severe test than is to be adopted under (b). It is about when the application is to be considered made to the Authority.

[9] In this case there had been no proceeding commenced after the lodgement of the section 328(2) [that is, the application for a serious injury certificate] and it is the Authority’s view that the Authority cannot consent to the commencement of the proceedings unless it is satisfied that the failure to comply with section 333 of the Act “was not due to any fault or omission of the worker or the worker’s legal representative”.

[10] in this case there clearly [was] no “fault or omission” on the part of the worker, however the worker’s legal representatives have not followed the procedures set out in the Act in particular section 333 of the Act so as to complete the application they commenced.

[11] Accordingly, the Authority does not consent to the commencement of the proceedings outside the time limit prescribed by the Act.

35. The decision-maker understood, in my respectful view correctly, that the question was whether he should consent to the commencement of a fresh proceeding, for which ss 328, 330 and 335 the Act were satisfied by the serious injury certificate issued on 14 September 2021. The question concerned excusing non-compliance with the time limit for commencement of that fresh proceeding, specified in s 333.

Jurisdiction; grounds of review

36. The Victorian Supreme Court would have jurisdiction to undertake judicial review of the Authority’s decision of 11 October 2022: see ss 3 and 7 of the Administrative Law Act 1978 (Vic) and the definition of “tribunal” in s 2 of that Act. Both parties to the present proceeding agreed that this Court therefore has jurisdiction by force of s 4(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). Neither party sought to transfer the proceedings to the Supreme Court of Victoria pursuant to s 5 of the Jurisdiction of Courts (Cross Vesting) Act. For the purposes of judicial review, s 10 of the Administrative Law Act provides that the reasons of the decision-maker are part of the record.

37. The plaintiff relies upon 10 grounds of review, numbered 4 to 14 in his summons but omitting 11, which was not pressed. Those grounds are considered under the following subheadings, in the order in which the plaintiff’s counsel addressed on them.

4 – Misconstruction of “fault” in s 337

12 – Failure to exercise jurisdiction

38. Grounds 4 and 12 are in the following terms:

4 The decision maker misconstrued the meaning of "fault" in s 337 of the Workplace lnjury Rehabilitation and Compensation Act 2013 (Vic).

12   The decision maker wrongly failed to exercise the jurisdiction given to him in the case of improper commencement.

39. Those grounds are directed to the last two sentences of [7] in Mr Brown’s letter. In earlier paragraphs Mr Brown referred to the “stringent timeframes” under s 333 that apply after the issue of a serious injury certificate, the long-standing of those provisions and the fact that the need to comply with s 333 was expressly drawn to the attention of the plaintiff and his solicitor in the certificate itself. The impugned part of the decision maker’s reasons, as follows, appeared in that context:

There is in the view of the Authority no mitigation for the non-compliance. There was only what at best appears to be a misunderstanding of the requirements of the Act.

40. With respect to those two sentences the plaintiff submitted that Mr Brown had misconstrued s 337(2)(b) in the following respect:

He failed to recognise and adhere to the purpose for which the power is conferred having not found fault or omission, rather finding “misunderstanding” and, as a result, an absence of fault or omission. He was obliged by the section to consent having reached that conclusion.

41. That submission itself misconstrues both the test under s 337(2)(b) and Mr Brown’s conclusion. The decision-maker was not bound to grant consent if he failed to find “fault or omission” He could only grant consent if affirmatively “satisfied that the failure to comply with section 333 was not due to any fault or omission of the worker or the worker's legal representative”. Mr Brown asked himself the correct question and was entitled to be unsatisfied of an absence of fault or omission. He did not make a positive finding that there had been, on the part of the worker’s legal representative, “a misunderstanding”. He found that that appeared “at best” to be the position, which is merely a statement of an uncertain possible explanation for the time limit having been missed. It falls well short of a positive satisfaction that the delay was “not due to any fault or omission of the worker or the worker's legal representative”. A misunderstanding of these long-standing time limits, that had been clearly brought to the attention of the worker’s legal representative, would not be inconsistent with nor displace “fault or omission”. On the contrary, to misunderstand the requirements and to delay commencement of proceedings upon the basis of the misunderstanding would constitute “fault or omission” and would preclude the decision-maker from being satisfied that “fault or omission” had been negatived. Mr Brown’s reasons are, correctly, consistent with that analysis.

42. Contrary to the plaintiff’s submissions, consideration of the statutory purpose of s 337(2) does not alter the interpretation and application of the test in sub-s (2)(b), as outlined above. The purpose of the section is to enable the Authority to ameliorate the strictness of the time limits fixed under s 333. However, a criterion for the discretionary exercise of that amelioration is prescribed in sub-s (2)(b). The purpose of the section does not dictate that the criterion should be interpreted or applied other than according to its terms, as elaborated above.

5 – Irrelevant considerations taken into account

43. Ground 5 is as follows:

5   The decision maker took into account irrelevant considerations.

44. That ground is directed to [6] and [7] of Mr Brown’s reasons, wherein he noted that the requirements of s 333 of the Act are clear and mandatory, that they have been in force for two decades and that they were brought to the attention of the plaintiff and his solicitor in the serious injury certificate. The plaintiff made the following submissions in support of ground 5;

By virtue of the structure of the provision conferring the power to consent it was irrelevant to its exercise that the provisions of [the Act] were clear (if they were/are) or that the operation of the Act was adverted to in the certificate as to serious injury.

That the provisions were “mandatory” […] was also irrelevant because the extent to which the requirements were, ultimately in any given case, mandatory would depend on the exercise of the power to excuse non-compliance conferred by s 337.

45. Mr Brown’s conclusions that the time limit provisions of s 333 were clear, mandatory and of long-standing and that they were brought to the attention of the plaintiff were open to him. The relevance and significance of those circumstances was that it was also open to Mr Brown to regard them as telling against the proposition of which he was asked to be satisfied; namely, that failure to observe the time limit for commencing proceedings “was not due to any fault or omission of the worker or the worker's legal representative”. The decision-maker did not err in taking these matters into account.

6 – Relevant considerations disregarded;

9 – Clear argument not considered

46. Grounds 6 and 9 are as follows:

6   The decision maker failed to have regard to relevant considerations.

9   The decision maker failed to deal with a clearly articulated argument of the Plaintiff concerning the Defendant’s pleading the [Act] was not applicable to the circumstances of the Plaintiff's case

47. The plaintiff submits that the decision-maker was provided with the history of the plaintiff’s proceedings in this Court and with the transcript of the hearing before Garling J on 10 October 2022. He submits that from that material there arose the following considerations relevant to the decision whether to grant consent under s 337(2):

a The [Authority’s denial in its defence] until days prior to the [plaintiff’s application for consent on 10 October 2022] of the applicability of the Act.

b   The [Authority’s] inconsistent pleading of the non-application of [the Act] with reliance on its requirements.

c   The failure of [the Authority] to deal with the issue of asserted non-compliance at any point after the serious injury certificate had been obtained, creating (as Garling J thought) the appearance of the [Authority] being satisfied as to compliance.

48. With respect to all of these matters, it was irrelevant to Mr Brown’s decision under s 337(2) that the Authority had maintained until 4 October 2022 a pleading in the plaintiff’s action to the effect that the Act did not apply. At all times the plaintiff asserted that the Act did apply. His claim for damages against the Authority, whether on the basis that it was directly liable under s 70 of the Act and/or liable to indemnify MHP under s 71 and/or liable under the Civil Liability (Third Party Claims Against Insurers) Act or s 601G of the Corporations Act, depended upon application of the Workplace Injury Rehabilitation and Compensation Act. Invoking that Act as the basis of the Authority’s liability to him for damages caused by the negligence of a Victorian employer, the plaintiff could not disregard those provisions of the Act that regulate such a claim. The question whether the plaintiff’s non-compliance with the s 333 time limit for commencing against the Authority was “not due to any fault or omission of the worker or the worker's legal representative” had to be assessed by Mr Brown on the basis that the plaintiff was at all times asserting the application of the Act and therefore needed to know its provisions and observe them.

49. Having referred to the Authority’s position in defence of the action, up until 6 October 2022, the plaintiff’s solicitor posed the following rhetorical question at [14] of his letter of 10 October:

How then could the Plaintiff have been expected to comply with provisions having no application on the position adopted by VWA?

The answer is that the plaintiff could be expected to comply with the Act because he asserted that it did apply to his situation and he was invoking it in order to hold the Authority liable.

50. In pars 27-29 of the Authority’s defence, as it stood until amended on 6 October 2022, the denial of application of the Act was on the basis that the plaintiff’s employment was not connected with Victoria and therefore did not engage s 37. This was not a denial of the operation of the machinery and time limit provisions of the Act, in the event that it did apply. There was no basis upon which the plaintiff could have inferred from the defence that if he should succeed in proving sufficient connection of his employment with Victoria, then the Authority, while having to accept that the Act was engaged, would deny that the procedural steps in s 333 had to be complied with.

51. There was no inconsistency between the Authority’s denial that the Act applied to the plaintiff at all and its assertion in par 30 that, if it does apply, then the prerequisites of a serious injury certificate and of the time limits in s 333 are engaged. Paragraph 30 is clearly expressed in the alternative, as follows:

30 Further, and in the alternative, if the plaintiff is a person entitled to compensation in Victoria, which is denied, he is not entitled to recover damages for the injury because the plaintiff has not complied with Division 2 of Part 7 of [the Act]. The Authority has not issued to the plaintiff a serious injury certificate, nor has he obtained leave of the Court to proceed with a claim for damages.

52. In the last sentence of that paragraph there was no occasion to refer to any non-compliance beyond the failure to obtain a serious injury certificate, because that invalidated the proceeding against the Authority and, without the certificate, no further requirements under s 333 came into play. I do not consider that par 30 created the appearance that the Authority was “satisfied as to compliance” with all prerequisites of s 333 once it had certified serious injury. For reasons given at [28]-[32] above, the certificate would only authorise the commencement of a fresh proceeding, not validate the existing one or attract the s 333 requirements of pre-action negotiation and time limits in relation to the existing proceeding. Plainly the requirements of s 333 had not been satisfied in relation to the action that had already been brought in this Court and, under the Act, they would only come into operation in respect of the commencement of a fresh proceeding, which would be necessary in order for there to be any valid proceeding at all.

53. The plaintiff further submitted:

[The decision-maker had] intimate involvement in the defence of the claim. In assessing fault (or for that matter, misunderstanding) the decision-maker was required to consider the extent to which his own conduct by provision of instructions had contributed to the non-compliance.

I reject the submission. I find that the terms of the defence as originally pleaded and the Authority’s subsequent conduct in the plaintiff’s proceedings in this Court, including after the serious injury certificate had been issued, were not matters capable of misleading the plaintiff as to his obligation to follow the Act. In particular, they were not capable of misleading the plaintiff as to the necessity to observe the time limit under s 333 for commencing a fresh action. The Authority’s pleading and other conduct in the plaintiff’s proceeding is irrelevant to the assessment of whether the plaintiff missing the time-limit was “not due to any fault or omission of the worker or the worker's legal representative”.

7 & 8 – Bias

54. Grounds 7 and 8 are as follows:

7   The decision maker failed to exercise an independent judgment in reaching the decision and followed the dictates of the Defendants.

8   The decision maker's decision was infected with bias.

55. In support of these grounds the plaintiff submits the following:

Where the legislation does not make it inevitable that the person considering an application under s 337 will be the same person as has conduct of the defence of the proceedings for [the] party in relation to which consent is being sought there is a fundamental denial of procedural fairness to have the same person make the decision. The failure to advert to [certain issues raised earlier in the submissions] is evidence [that] the potential bias became [an] actuality in this case. Even if actual bias is not made out there can be no doubt that a reasonable bystander would be more than somewhat concerned with the same person fulfilling both roles.

56. There is no indication in the Act that the Authority must divide its functions between officers so that an individual who may decide on behalf of the Authority whether consent should be given under s 337(2) would be different from the individual who would instruct solicitors in defence of the worker’s claim, if consent should be granted. In the absence of such an indication, the Authority must be treated as an undivided entity. The Act provides that that entity will be both decision-maker under s 337(2) and defendant to any proceeding brought by the worker. By not prescribing distribution of functions to discreet agents, the statute implicitly envisages that the Authority’s two roles may be executed by any authorised agent, including the same agent. To uphold the plaintiff’s submission on ground 8 would be to impose a distribution of functions between officers where the Act has not so provided. I do not consider that such a course is open to the Court.

57. The issues raised earlier in the plaintiff’s submissions, to which the above extract made reference, included a contention that Mr Brown’s reasons amount to “the exercise of an inflexible rule or policy of [the Authority]” rather than “a reasoned, principled approach to the matters entrusted to him for decision”. I reject that submission. Mr Brown’s reasons do not betray any pre-judgment on the basis of a policy of the Authority. They read as a rational examination of whether there was any basis upon which Mr Brown should feel satisfied that the failure to comply with the relevant time limit was “not due to any fault or omission of the worker or the worker's legal representative”. The issues raised earlier in the plaintiff’s submissions also included reiteration of the argument that Mr Brown erred in failing to compare “the conduct of [the Authority] and its representatives [in the plaintiff’s action] with the conduct of the plaintiff and his lawyers in order to discern whether there was fault on the part of the latter. […] [The] decision-maker did not recognise that [the Authority] and his behaviour was a, if not the, cause of the misunderstanding”. I have rejected that argument in dealing with ground 6.

10 – Failure to follow Felsctynski v Victorian WorkCover Authority

58. Ground 10 is directed to [8] and [9] of Mr Brown’s reasons, in which he considered Felsctynski v Victorian WorkCover Authority. The plaintiff’s submissions include the following:

[The] decision-maker was in error in thinking proceedings had not been commenced. They had been. This error infected the whole of his approach to his task and is an error of law because it involves a misconstruction of [the Act].

[The plaintiff] did not commence proceedings in compliance with [s 333] but he did commence proceedings. Felsctynski empowers the decision-maker to give consent for proceedings which have been commenced.

59. The decision-maker did not approach his task on the basis that “proceedings had not been commenced”. He said (emphasis added): “there had been no proceeding commenced after the lodgement of the section 328(2)”, that is, after the application for a serious injury certificate. The essential point of the decision in Felsctynski v Victorian WorkCover Authority has been considered at [26]-[28] above. As already stated, Mr Brown correctly considered that the joinder of the Authority to the plaintiff’s action prior to the issue of a serious injury certificate was a nullity, that the subsequent issue of the certificate did not enliven the proceedings against the Authority and that the application under s 337(2)(b) was directed to overcoming retrospectively the plaintiff’s non-compliance with s 333 so that a new proceeding could be commenced out of time.

59. Even if this view is wrong and if consent to overcome the s 333 time-limit would validate the existing proceeding, Mr Brown’s contrary understanding would not be a ground for quashing his decision. Whether the effect of granting consent would be to enliven an action that is already on foot or to authorise the commencement of a fresh action, the matter upon which Mr Brown had to be satisfied remained the same: absence of fault or omission in not complying with the time-limit that operated after the serious injury certificate had issued. Mr Brown was not so satisfied. Accordingly, the Authority’s consent was not forthcoming, whatever purpose it might have been put to if given – either validation of existing proceedings or commencement of fresh action.

60. The plaintiff’s submissions on this ground also include the following:

The decision-maker committed jurisdictional error in not considering himself to have the power to consent to the proceedings.

I reject that submission. It is clear on the face of Mr Brown’s reasons that he proceeded on the basis that he had power to grant consent. He made no jurisdictional error, because he embarked upon exercising the Authority’s discretion and in doing so he was not affected by the question of what use might be made of the consent, retrospective validation or authorisation for commencement of a fresh action.

13 – Legal unreasonableness

62. In support of ground 13 the plaintiff baldly submits that:

No decision-maker faced with the conduct of [the Authority] in the pleadings in question could have failed to consent to proceedings if not satisfied as to the presence of fault: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

63. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76], Hayne, Kiefel and Bell JJ explained the ground of legal unreasonableness in the following terms:

As to the inferences that may be drawn by an appellate court, it was said in House v The King (1936) 55 CLR 499; [1936] HCA 40 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

64. Ground 13 appears to be in substance merely another avenue for advancing the arguments under grounds 6 and 9. I find that there is an “evident and intelligible justification” for the Authority’s decision. So far as the contrary is argued by reference to the conduct of the Authority’s defence of the plaintiff’s action in this Court, including the terms of its pleading, I have identified the “evident and intelligible justification” at [48]-[53] above.

14 – Inadequate reasons

65. Ground 14 is in the following terms:

14   The decision maker failed to give adequate reasons for his decision in relation to:

a)   Fault;

b)   The Defendant’s defence in the damages proceedings entailing the WIRCA and the provisions in question could not apply to the claim;

c)   The evidence given by the Defendant’s solicitor before Garling J concerning the basis of the failure to plead the provision;

d)   The material contained in the Court Books and transcript served on the decision maker's legal representatives and referred to in the Application.

66. The plaintiff’s submissions under this ground impugn the following paragraphs of Mr Brown’s reasons:

[10] [The] worker’s legal representatives have not followed the procedures set out in the Act in particular section 333 of the Act so as to complete the application they commenced.

[11] Accordingly, the Authority does not consent to the commencement of the proceedings outside the time limit prescribed by the Act.

67. The plaintiff submits that this amounts to nothing more than a restatement that the legal representatives had not followed the procedures in the Act and that:

the existence or not of the fact (fault or omission) which enlivens the discretion […] rests, on the decision-maker’s approach, on:

a   Nothing more than mere non-compliance, or

b   The fair-minded reader has no inkling as to how the decision-maker got from mere non-compliance to refusal of consent.

68. These submissions fail to recognise that the matter of which the decision-maker had to be satisfied, in order to exercise his discretion in favour of the plaintiff, was the evaluative assessment that non-compliance with the time limit was “not due to any fault or omission of the worker or the worker's legal representative”. I find the decision-maker’s reasons plain and adequate on their face. He did not reach that satisfaction, with respect to the worker’s legal representative, because the time limit was clear in the statute, it had been in force for two decades and the need to comply with s 333 was drawn to the solicitor’s attention by the terms of the serious injury certificate. In those circumstances, which were expressly referred to more than once in the reasons, the decision-maker found nothing that would exclude or rebut “fault or omission” on the part of the solicitor.

Orders

69. For the above reasons, the plaintiff’s grounds are not made out. He is not entitled to the orders that he seeks, being the setting aside of the Authority’s decision and either substitution of a grant of consent under s 337(2) by the Court or remitter of the plaintiff’s application to the Authority to be determined according to law by a different officer.

70. The orders of the Court are:

1. The summons is dismissed.

2. The plaintiff is to pay the second defendant’s costs.

**********

Amendments

06 March 2023 - Coversheet - changes to the names of legal representation;

[4] – corrected to read “… in order to provide context for the Authority’s decision and in order to assess the grounds upon which judicial review is sought.”;

[5] – corrected heading;

[6] – corrected to read “… includes ss 326-328, 330 and 335, as follows …”;

[7] – last sentence: – inserted cross-reference to [29] and corrected to read “other provisions of the Act that are directly relevant to the issue now before the Court.”;

[15] – inserted cross reference to [6];

[27] – 2nd sentence: corrected to read “Under s 335(2)(d) …”;

[31] – 3rd sentence: corrected to read “Those steps are to follow the issue of the certificate but to precede commencement.”;

[31] – 4th sentence: corrected to read “… the s 337 criteria of absence of no prejudice to the defence or fault or omission of the worker …”;

[50] – 1st sentence: corrected to read “… as it stood until amended on 6 October 2022 …”;

[59] – removed “ that the subsequent issue of the certificate did not enliven the proceedings against the Authority”;;

[64] – 2nd sentence: corrected to read “… conduct of the Authority’s defence of the plaintiff’s action …”; and

[68] – 2nd sentence: corrected to read “I find the decision-maker’s reasons …”.

06 March 2023 - Coversheet - corrected representation

Decision last updated: 06 March 2023