Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson (No 2)

1. [1]

   HER HONOUR: On 24 February 2015, I handed down judgment in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101.

2. [2]

   On 24 February 2015, I made orders that this matter be remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law and ordered that Mr Dickinson pay the Trustees costs as agreed or assessed. Mr Hanrahan, councself for Mr Dicksinson, sought an order that Mr Dickinson be granted a certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW). I ordered that he provide written submission on this topic only. I now have those submissions. However these submissions address the costs issue between the plaintiff and first defendant. I have also received short submissions in reply from the solicitor for the plaintiff.

3. [3]

   To appreciate why the first defendant has applied for a Suitors’ Fund Act certificate it is necessary to briefly refer to the Appeal Panel’s reasons. At [21] to [25] it states as follows:

4. [4]

   In other words, the Appeal Panel made its decision to reexamine Mr Dickinson based on a factual error, namely that Dr Ryan, the approved medical specialist, treated Mr Dickinson. Neither party made any submissions to the effect that Dr Ryan treated Mr Dickinson. This is because he never did so.

5. [5]

   In my reasons for decision at [41] and [42] I concluded:

The Suitors’ Fund Act

1. [6]

   So far as costs are concerned, costs usually follow the event. I ordered the first defendant to pay the plaintiff’s costs as agreed or assessed (at [45]). I have read both parties’ submissions on this topic and have come to the conclusion that there is no reason to vary this decision. The plaintiff submitted that it does not concede that a Suitor’s Fund certificate is available in the circumstances of this case but does not give any reason for this stance.

2. [7]

   Relevantly, sections 2 and 6 of the Suitor’s Fund Act read:

3. [8]

   The provision of indemnity for costs to a party who has been brought to court by the other party, and lost an appeal for error of law, still remains the chief purpose of the Suitors’ Fund Act.

4. [9]

   Counsel for Mr Dickinson submitted that these proceedings are virtually identical to an “Appeal against the decision of a court … to the Supreme Court on a question of Law” as described in s 6 of the Suitors’ Fund Act.

5. [10]

   A “court” is defined in s 2 of the Suitor’s Fund Act to include “such tribunals or other bodies as are prescribed”. Counsel for Mr Dickinson says that as far as he can ascertain, a Medical Appeal Panel of the Workers Compensation Commission, nor any other body, has been so “prescribed”.

The Suitor’s Fund Act

1. [11]

   The requirements of s 6 of the Suitor’s Fund Act have been discussed by the Court of Appeal in Robinson v Zhang [2005] NSWCA 439, which was an appeal from the Local Court in which a certificate was granted. In Robinson v Zhang, Basten JA (with whom Barr and Hall JJ agreed) stated at [38]:

2. [12]

   In Reid v Sydney City Council (1995) 35 NSWLR 719, Kirby P referred to his earlier decision in Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 stated in relation to appeals to that Court from the Government and Related Employees Tribunal. At 512-513 Kirby P stated:

3. [13]

   In Reid, the Court of Appeal considered that the history and purpose of the section were more relevant and that the trend of recent authority was towards “broadening the class of tribunals which may qualify as court.”

4. [14]

   In Allianz Australia Insurance Ltd v Gonzalez (No 2) [2013] NSWSC 544, Adams J declined to grant a certificate under the Suitor’s Fund Act for reasons including the fact that all members of the panel were doctors, said that “the better view having regard to the nature and functions of the (Equal Opportunity) Tribunal is that it is a ‘court’ for the Suitors’ Fund Act purposes.”

5. [15]

   In Jenkins v Ambulance Service of NSW [2015] NSWSC 633, Garling J was not persuaded to issue a certificate with respect to a failed attempt by Mr Jenkins to impugn a decision of a Workers Compensation Medical Appeal Panel because the circumstances did not fall within ss 6, 6A and 6B of the Suitor’s Fund Act. However, Garling J (at [80]) appeared to accept that the word “court” should be “given a liberal and beneficial construction.”

6. [16]

   In AAI Ltd v Fitzpatrick (No 2) [2015] NSWSC 1272 (“Fitzpatrick”), Schmidt J had some doubt in respect of the Motor Accidents Compensation Act 1999 (NSW), that a Medical Review Panel of three doctors under that legislation would qualify as a court, even on the liberal interpretation of the kind adopted in Dao. Nevertheless, in the absence of any other body prescribed for the purposes of the definition in s 2 of a court in s 6 of the Suitor’s Fund Act, Schmidt J at [28] observed:

7. [17]

   In Allianz Australia Insurance Ltd v Roger Ward [2010] NSWSC 720, Hidden J found that an assessment of damages by a CARS assessor exercising the jurisdiction under the Motor Accidents Act constituted a decision by a court and that the review of that decision which concluded with a necessary remittal for further determination, was an appeal proceeding, entitling the unsuccessful defendant to a certificate.

8. [18]

   In GIO General Ltd v Smith (No 2) [2011] NSWSC 998 at [9], Hoeben J came to a similar decision in relation to a decision of a medical review panel.

9. [19]

   In my view, the decision of the medical appeal panel fulfils the definition of a “Court” for the purposes of s 6 of the Suitors’ Fund Act.

10. [20]

    However, does an application for judicial review fall within the definition of “Appeal”. The Act’s definition “includes any motion for a new trial and any proceedings in the nature of an appeal”: s 2(1) Suitors’ Fund Act. In a recent ex tempore decision of Beech-Jones J in Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870, his Honour dealt with an application by Mr Habib for a certificate under s 6 of the Suitors’ Fund Act. Beech-Jones J, in Allianz Australia Insurance Ltd v Habib [2015] NSWSC 1719, had ordered a certificate purportedly issued by the Claims Assessment and Resolution Service (“CARS”) under s 94(4) of the Motor Accidents Compensation Act concerning a claim for personal injury damages made by Mr Habib be set aside and his claim be determined according to law. Mr Habib had been ordered to pay the costs of the proceedings. Relevantly, at [15]ff, his Honour observed:

11. [21]

    There is no doubt that there is a divergence of judicial opinion as to whether judicial review under the Motor Accidents Compensation Act and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) constitutes an “appeal” or is “in the nature of an appeal”. In my view I consider myself bound by the decision of Beazley P in Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480 for the same reasons as Beech-Jones J in Allianz Australia Insurance Ltd v Habib (No 2). This Court has exercised the power under s 69 of the Supreme Court Act 1970 (NSW) in reviewing the decision of the medical appeal panel made purportedly pursuant to the Workplace Injury Management and Workers Compensation Act. Such proceedings are not in “in the nature of an appeal”. I decline to grant a certificate under the Suitors’ Fund Act.

12. [22]

    Counsel for Mr Dickinson submitted that, if the Court declined to grant a certificate, it may declare itself as being of the view, without limiting the discretion of the Director General or the Attorney General, that any indemnity granted by the Director-General pursuant to s 6C of the Suitors’ Fund Act would be “within the spirit and intent” of the sections authorising the provision of an indemnity certificate under the Act.

13. [23]

    In Henderson, Beazley P stated (at [58]):

14. [24]

    As observed by Beazley P in Henderson (at [57]), these proceedings may fall within the meaning of “other proceedings” within s 6C. While a certificate may be granted under s 6C by the Director General, I decline to make a declaration to that effect. However it should be noted that it was through no fault of the plaintiff or the first defendant that the appeal panel misdirected itself and it seems unfair in these circumstances that the first defendant should have to bear the costs of the judicial review proceedings. If Mr Dickinson makes an application to the Director-General under s 6C it is my recommendation that these factors be taken into consideration in determining whether to make a payment towards the plaintiff’s costs.

15. [25]

    I would like to add a comment. As observed above, the approach to the interpretation of s 6 of the Suitor’s Fund Act is subject to judicial divergence in two ways. Section 6 allows the Supreme Court to grant a certificate to the respondent to a successful appeal against the decision of a court. Section 2 defines the word “appeal” as including “any proceeding in the nature of an appeal”. While a judicial review is not strictly an “appeal”, it is “in the nature of an appeal”, as observed by Schmidt J in Fitzpatrick (at [28]) and Street CJ in Parsons (at 381). The task a reviewing court, such as this Court, carries out is “in the nature of” the task a court of appeal might conduct in appeal proceedings, such as an appeal from the Local Court to the Supreme Court. This court has recognised an expansive definition of “court” contained in s 6 of the Suitors’ Fund Act. It makes little sense to define the word “court” expansively and define “appeal” restrictively.