Tam v Worksafe Victoria

1. [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. [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. [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. [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

1. [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.

2. [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):

3. [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

1. [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:

2. [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

1. [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:

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

1. [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”.

2. [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).

3. [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

1. [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:

2. [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.

3. [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:

4. [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

1. [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:

2. [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

1. [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.

2. [21]

   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. (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. (2)

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

   3. (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. (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. (5)

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

   6. (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. (7)

      the plaintiff had not sought or obtained the requisite consent.

3. [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

1. [23]

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

2. [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.

3. [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):

Retrospective validation of proceedings

1. [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:

2. [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.

3. [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.

4. [29]

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

5. [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.

6. [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.

7. [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

1. [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:

2. [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):

3. [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

1. [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.

2. [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.

3. [38]

   Grounds 4 and 12 are in the following terms:

4. [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:

5. [40]

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

6. [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.

7. [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.

8. [43]

   Ground 5 is as follows:

9. [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;

10. [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.

11. [46]

    Grounds 6 and 9 are as follows:

12. [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):

13. [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.

14. [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:

15. [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.

16. [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:

17. [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.

18. [53]

    The plaintiff further submitted:

19. [54]

    Grounds 7 and 8 are as follows:

20. [55]

    In support of these grounds the plaintiff submits the following:

21. [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.

22. [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.

23. [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:

24. [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.

25. [60]

    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.

26. [61]

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

27. [62]

    In support of ground 13 the plaintiff baldly submits that:

28. [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:

29. [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.

30. [65]

    Ground 14 is in the following terms:

31. [66]

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

32. [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:

33. [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

1. [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.

2. [70]

   The orders of the Court are:

   1. (1)

      The summons is dismissed.

   2. (2)

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