Bennett v State of Tasmania
[2005] TASSC 44
•26 May 2005
[2005] TASSC 44
CITATION: Bennett v State of Tasmania [2005] TASSC 44
PARTIES: BENNETT, Gregory Colin
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 18/2005
DELIVERED ON: 26 May 2005
DELIVERED AT: Hobart
HEARING DATE: 9 May 2005
JUDGMENT OF: Evans J
CATCHWORDS:
Procedure – Judgments and orders – Amending, varying and setting aside – Correction under "slip" rule – Powers of Tribunal implied – Correction takes effect from date of original order – Notice of order as corrected given when notice of the correction provided.
DJL v The Central Authority (2000) 201 CLR 226; John Fairfax & Sons Ltd v Police Tribunal of New South Wales& Anor (1986) 5 NSWLR 465; Grassby v R (1989) 168 CLR 1; John Fairfax Group Pty Ltd (Receivers and Managers Appointed) and Anor v Local Court of New South Wales and Ors (1992) 26 NSWLR 131, referred to.
L Shaddock & Associates Pty Ltd and Anor v Parramatta City Council (1983) 151 CLR 590 at 597; Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446; Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, applied.
Workers Rehabilitation and Compensation Act1988 (Tas), s62.
Workers Rehabilitation and Compensation Regulations2001 (Tas), reg16(1).
Aust Dig Procedure [487]
REPRESENTATION:
Counsel:
Appellant: J Jovanovic
Respondent: P Turner
Solicitors:
Appellant: J Jovanovic & Associates
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 44
Number of paragraphs: 11
Serial No 44/2005
File No LCA 18/2005
GREGORY COLIN BENNETT v STATE OF TASMANIA
REASONS FOR JUDGMENT EVANS J
26 May 2005
The appellant worker is the subject of an order for costs made against him in favour of the respondent employer by the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). Consistent with that order, the employer's costs were assessed by the Registrar of the Tribunal pursuant to the Workers Rehabilitation and Compensation Regulations 2001 ("the Regulations"), regs13, 14 and 15, and following the assessment, as required by reg15(4), the Registrar issued a certificate of assessment on 26 October 2004. The substantive portion of that certificate ("the initial certificate") is as follows:
"CERTIFICATE OF ASSESSMENT
[Regulation 15(4)]
GREGORY COLIN BENNETT
- V -
THE STATE OF TASMANIA(DEPT OF HEALTH & HUMAN SERVICES)
1 In accordance with Regulation 15(2) of the Workers Rehabilitation and Compensation Regulations 2001 (the Regulations), the worker's costs are assessed in the sum of $42,101.57.
2 Pursuant to Regulation 15(5)(b) the employer is awarded costs of the assessment in the sum of $588.00.
(signed)
REGISTRAR"
As par1 of the initial certificate was erroneous insofar as it described the costs as being the worker's, rather than the employer's, an amended certificate was issued by the Registrar on 28 October 2004. The substantive portion of that certificate ("the amended certificate") is as follows:
"AMENDED CERTIFICATE OF ASSESSMENT
[Regulation 15(4)]
GREGORY COLIN BENNETT
- V -
THE STATE OF TASMANIA(DEPT OF HEALTH & HUMAN SERVICES)
1
In accordance with Regulation 15(2) of the Workers Rehabilitation and Compensation Regulations 2001 (the Regulations), the employer's costs is are assessed in the sum of -
$42,101.57
2 Pursuant to Regulation 15(5)(b) the employer is awarded costs of the assessment in the sum of - $588.00
Total Amount
$42,689.57
(signed)
REGISTRAR"
After the certificates had issued, each party applied for a review of the assessment. As to such applications, reg16(1) provides that: "A party may apply for a review of assessment within seven days after receipt of the certificate of assessment." The employer's application for review was made within seven days after receipt of the initial certificate. However, it was common ground before me that whilst the worker's application was made within seven days after receipt of the amended certificate, it was not made within seven days after receipt of the initial certificate.
At the outset of the hearing of the parties' respective applications for review of the assessment, the employer submitted to the Tribunal that the worker's application was out of time; it not having been made within seven days after receipt of the initial certificate. The worker submitted to the Tribunal that the initial certificate was invalid and of no effect because it purported to relate to "the worker's costs" and that the date of receipt of the amended certificate was the relevant date for the purposes of calculating the period prescribed by reg16(1). As to this issue, the Commissioner who constituted the Tribunal, said:
"9 I do not accept the submission made for the worker. It is incontrovertible that the initial Certificate issued after the Registrar undertook an assessment of a bill of costs presented on behalf of the employer, not the worker. The presentation of that bill followed an order made by the Tribunal that the worker pay the employer's costs, the employer having been the successful party upon the subject reference. In these circumstances the reference in the initial Certificate to 'worker' rather than employer was clearly a clerical error on the part of the Tribunal which must have been readily apparent to the parties and to their legal representatives. As such it was an error upon which no real difference of opinion could exist. Arnett v Holliday (1960) VR 22. Such an error does not, in my opinion, invalidate the Registrar's Certificate but rather permits its legitimate amendment. See Elyard Corporation Pty Limited v DDB Needham Sydney Pty Ltd No NG 606 of 1995 FED No 943/95.
10 As I have noted, when the error in the Certificate was pointed out the Tribunal issued its Amended Certificate. Although slightly different in form the substance of that document is identical to the initial Certificate save that it has purported to right the error by substituting the word 'employer' for the word 'worker'. By s62(2) the Tribunal is empowered to reconsider a claim for compensation and to vary or revoke an order previously made by it. This provision is wider than the 'slip rule' commonly found in other jurisdictions and in my opinion permits the Tribunal to legitimately remedy obvious errors made in its orders. In this instance the Amended Certificate may not strictly be an order of the Tribunal but it is a document created as a direct consequence of the Tribunal's cost order made in favour of the employer. In my view it would be nonsensical if the Tribunal was empowered to correct a clerical error made in one of its orders but was not empowered to remedy a similar error made in a document created by the Tribunal in its application of that order. In the result, it is my opinion that the Tribunal was empowered to amend the initial Certificate of assessment as the Registrar purported to do by issuing the Amended Certificate. By its issuing of that Certificate the Tribunal has properly corrected the initial Certificate. The initial Certificate now operates in the form of the Amended Certificate and is effective from 26 October 2004 being the date the initial Certificate issued. See Elyard Corporation (supra) at 6.
11 For the above reasons I do not accept the submission made for the worker that the initial certificate is invalid and can safely be ignored for the purposes of Reg 16(1)."
Having concluded that the worker's application was out of time, the Commissioner made orders that it be dismissed for want of jurisdiction. The employer's application for review, which related solely to the issue of whether costs for two counsel should have been allowed, was successful. The worker has appealed to this Court against both of these decisions.
The worker submits that the initial certificate was invalid by reason of the error contained in it. If the initial certificate was invalid and of no effect, I would have no hesitation in finding, consistent with the thrust of the worker's submission, that the amended certificate was valid and effective. The Registrar's power to issue the amended certificate would not have been fettered. The initial certificate being of no effect, it could not have been said that the Registrar was functus officio when he issued the amended certificate. A decision that the initial certificate was invalid and of no effect would carry with it the conclusion, as to that certificate, that the Registrar had not performed the functions he was authorised to carry out pursuant to regs14 and 15. See R v Resource Management and Planning Appeal Tribunal; Ex parte North West Rendering Pty Ltd [2005] TASSC 8 at [17] and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [53], [67], [149] and [163].
Regulation 15(4) provides:
"(4) Within 48 hours after making an assessment of costs, the Registrar is to –
(a) issue a certificate of assessment; and
(b) provide a copy of that certificate to the parties."
The amended certificate was not issued within 48 hours of the assessment. If the initial certificate was invalid and of no effect, the amended certificate stood alone. The fact that the amended certificate was not issued within the time required by reg15(4) would be of no consequence.
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. This principle has been applied to provisions for holding sessions at particular times and places (2 Hale, P C, p 50, Rex v Leicester Justices (1827) 7 B & C 6, and Parke B in Gwynne v Burnell (1835) 2 Bing N C 7, 39; …" (Montreal Street Railway Company v Normandin [1917] AC 170 at 175).
This principle is well recognised although the use of the terms directory and mandatory when distinguishing between statutory requirements that when breached result in invalidity is now discouraged. The favoured test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid, Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. See also R v Resource Management and Planning Appeal Tribunal; ex parte Gary James Wilson [2000] TASSC 101. It is clear that the intent behind reg15(4) was not to deprive the Registrar of the capacity to issue a valid certificate more than 48 hours after an assessment. The parties to a taxation have no control over the time within which the Registrar issues a certificate. Besides inadvertence, any number of matters could disrupt the issuing of a certificate within such a short period of an assessment. To hold that a valid certificate could not be issued more than 48 hours after an assessment would work serious general inconvenience and injustice. I cannot discern any intent from the provisions of the Act and the Regulations to support such an outcome.
I turn to the issue of whether the initial certificate is invalid and of no effect. As to this issue, I consider it to be significant that there is no suggestion that the Registrar lacked jurisdiction to assess costs or to issue a certificate as to that assessment. All that needed to be done in order to found the Registrar's jurisdiction to issue a certificate had been done. The only basis for attacking the initial certificate as issued is its mistaken reference to the worker instead of the employer. Because of this mistake, on its face, the certificate is indicative of a jurisdictional error. The Registrar is only authorised to assess the costs of a party to whom costs have been awarded. No award of costs had been made in favour of the worker. Where, as here, it is established that the jurisdictional error apparent on the face of the certificate is the result of a typographical mistake, the issue for determination is whether in those circumstances the certificate is invalid. That issue is to be determined by a consideration of the applicable legislation and the power to address errors. The absence of any capacity to address the error would be a strong indication that the erroneous certificate was invalid. The contrary is the case if there is a power to address the error. The existence of such a power is recognition that an erroneous certificate or the like is not necessarily invalid in the sense that it is of no effect and may be made good.
The Workers Rehabilitation and Compensation Act 1988 ("the Act") establishes the Tribunal, s16, which is constituted by the Chief Commissioner, a Commissioner or a part-time Commissioner, s17. The Tribunal's functions include the determination of all claims for compensation and other matters referred to the Tribunal under the Act, s20. The Tribunal has jurisdiction to perform the functions imposed, and exercise the powers conferred, on it under the Act, s23(1). Section 23A(1) provides for the appointment of a Registrar of the Tribunal who "has and may exercise such functions and powers as are imposed or conferred under this Act", s23A(2). The reference to the Act includes the Regulations, which were made under the Act, Acts Interpretation Act 1931, s5(2). The functions and powers conferred on the Registrar by the Regulations include the assessment of costs and the issuing of a certificate of assessment of costs, reg15.
The Tribunal can have no power or authority other than those authorised by the Act. A statutory tribunal, like a statutory court, does not have the inherent powers of the courts of the common law. A statutory tribunal has the powers expressly or by implication conferred by the legislation which governs it, as well as such powers as are incidental to the exercise of its jurisdiction and in referring to these powers, the term "inherent powers" should be avoided, DJL v The Central Authority (2000) 201 CLR 226 at 242 – 247, John Fairfax & Sons Ltd v Police Tribunal of New South Wales& Anor (1986) 5 NSWLR 465 at 476, Grassby v R (1989) 168 CLR 1 at 16 – 17 and John Fairfax Group Pty Ltd (Receivers and Managers Appointed) and Anor v Local Court of New South Wales and Ors (1992) 26 NSWLR 131 at 160. In the absence of any contrary indication in the applicable legislation, it is to be anticipated that a statutory court or tribunal would have the power to prevent a misuse of its procedure that would result in manifest unfairness, or would otherwise bring the administration of justice into disrepute and that power would encompass the slip rule, see Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 and Westsub Discounts Pty Ltd v Idaps Australia Ltd (No 2) (1990) 94 ALR 310 at 314. The slip rule refers to the power of a court at any time to correct an error arising from a slip or accidental omission. I have no hesitation in concluding the Tribunal has such a power. The Act, s62, relevantly provides that:
"62 (1) Subject to section 63, an order made by the Tribunal is final and binding on all parties to the proceeding to which the order relates.
(2) Subject to subsection (3), nothing in subsection (1) prevents the Tribunal from reconsidering any claim for compensation that has been determined by it, or from varying or revoking an order previously made by it.
(3) The Tribunal shall not vary or revoke an order previously made by it if that variation or revocation will affect any amount paid, or any action taken, in accordance with that order."
These provisions recognise that the Tribunal has power to revoke or vary its orders save when an amount has been paid, or an action has been taken, in accordance with that order. A power of the nature of the slip rule is entirely consistent with these provisions. That powers such as these are conferred on the Tribunal does not necessarily mean that the exercise of the powers is confined to the Chief Commissioner, Commissioner or a part-time Commissioner. Although the Registrar is not a component part of the Tribunal, he constitutes the Tribunal in the exercise of the relevant powers conferred on him, see The Commonwealth of Australia v The Hospital Contribution Fund of Australia and Ors (1982) 150 CLR 49 at 59, 64, 66 and 72 and Letts v Commonwealth of Australia and Ors (1985) 62 ALR 517.
I accordingly conclude that the initial certificate was not invalid in the sense that it was of no effect and that the Registrar had the power to resort to the slip rule to rectify the error in that certificate, an error which was eminently suited for correction by the application of that rule. Notice of the correction was communicated to the worker via the amended certificate. The correction having been made, it operated from the day of the initial certificate; L Shaddock & Associates Pty Ltd and Anor v Parramatta City Council (1983) 151 CLR 590 at 597, Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453 and Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 211 and 219. To say the correction operated from the date of the initial certificate says nothing of when notice was provided to the worker of the initial certificate as amended. Regulation 16(1) provides, "A party may apply for a review of assessment within 7 days after receipt of the certificate of assessment." Implicit in the imposition of this time limit is an expectation that the certificate of assessment received by the party provides notice of the matter for review. The initial certificate provided no such notice to the worker. It erroneously purported to relate to an assessment of costs in favour of the worker. The worker had no reason to be concerned about that assessment or to seek a review of it. The worker's only concern related to the assessment of the employer's costs as detailed in par1 of the amended certificate and the worker did not receive notice of that assessment until he received the amended certificate. I construe reg16(1) as imposing a time limit that runs from the time that a party receives a certificate of assessment that provides notice of the matter for review. In this case, that notice was first provided by the amended certificate and it was from the occasion of the worker's receipt of that certificate that time began to run. Accordingly, the worker's application for review was made within time. In my view the construction I have given to reg16(1) accords with the intention of that regulation and sits well with the application of the slip rule in this instance; the purpose of the exercise of the power that encompasses that rule being to avoid injustice; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 407, Monaco and Anor v Arnedo Pty Ltd and Anor (1994) 13 WAR 522 at 524 and Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (supra) at 211. It would not be appropriate to apply the slip rule so as to avoid an injustice to one party but at the same time create a situation that caused significant injustice to another party.
The appeal will be allowed insofar as it challenges the Tribunal's dismissal of the worker's application for review of the assessment of the employer's costs for want of jurisdiction. The appeal is dismissed insofar as it challenges the Tribunal's decision to allow the employer's claim for the costs of engaging two counsel. Nothing has been put before me to suggest that this decision was wrong in law. To successfully challenge this decision, the worker must establish an error "in point of law", the Act, s63(1).
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