Bloomfield v Liebherr-Australia Pty Ltd - [2005] WADC 113

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BLOOMFIELD -v- LIEBHERR-AUSTRALIA PTY LTD [2005] WADC 113

CORAM: COMMISSIONER SCHOOMBEE

HEARD: 2 MAY 2005

DELIVERED : 16 JUNE 2005

FILE NO/S: CIVO 174 of 2004

MATTER :IN THE MATTER of an application by Eric Wayne Bloomfield for leave to commence action against Liebherr-Australia Pty Ltd in the matter of s 93D(4) and (5)(c) of the Workers' Compensation and Rehabilitation Act 1981 (as amended)

BETWEEN: ERIC WAYNE BLOOMFIELD
Plaintiff
AND
LIEBHERR-AUSTRALIA PTY LTD
Defendant

Catchwords:

Review of taxation - O 66 r 5 of the Rules of the Supreme Court - Jurisdiction to set aside certificate of taxation - Incidental jurisdiction of District Court - Workers' Compensation (Common Law Proceedings) Act 2004, s 7 - Construction of "former provisions matters" - Appeal from Registrar's refusal to grant leave to commence common law proceedings to Judge in chambers - Whether former provisions matter - Construction of "determined" - Whether application for leave to proceed with common law proceedings "determined" - Whether a nullity - Whether costs order made deemed to be no order as to costs - Certificate of taxation signed by Registrar without jurisdiction

Legislation:

District Court of Western Australia Act 1969, s 6, s 55

Interpretation Act 1984, s 37(2)
Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Rehabilitation Amendment Act 1999
Workers' Compensation (Common Law Proceedings) Act 2004, s 5, s 7(1), s 7(3)

Rules of the Supreme Court (1971), O 66 r 55(1), O 66 r 55(2)

Result:

Review of certificate of taxation allowed
Certificate set aside

Representation:

Counsel:

Plaintiff: Mr M E Herron
Defendant: Mr M J Civitella

Solicitors:

Plaintiff: Chris Phillips
Defendant: Crisp Civitella Smith

Case(s) referred to in judgment(s):

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Bird v The Commonwealth (1988) 165 CLR 1
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Bull v Attorney‑General for New South Wales (1913) 17 CLR 370
Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Grassby v R (1989) 168 CLR 1
Harris v Caladine (1991) 172 CLR 84
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hewitt v Lewis [1986] 1 WLR 444
Hunt v Knabe (No 2) (1992) 8 WAR 96
Maccarron v Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets & Ors [2001] WASCA 61
Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997
Murcia & Associates (a firm) v Grey and Ors (2001) 25 WAR 209
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178
Thorne v Thorne (1979) 1 WLR 659
Transfield Pty Ltd v Rawstron [2005] WASCA 78

Case(s) also cited:

Farmer v AOC Australia Pty Ltd [2002] WASCA 340
Henderson v WMC Resources [2004] WADC 13
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998

COMMISSIONER SCHOOMBEE: This matter concerns an application by the plaintiff to have the certificate of taxation of costs issued by Deputy Registrar Harman in respect of the costs payable by the plaintiff to the defendant set aside. The plaintiff also asks for an order that pursuant to the provisions of s 7(3) of the Workers' Compensation (Common Law Proceedings) Act 2004 (hereinafter "the Act") the defendant is precluded from taxing its costs against the plaintiff. In the alternative the plaintiff makes application for a review of the taxation as to items 10 – 16 of the defendant's bill of costs.
At the hearing of this application it was agreed between the parties that the application for the alternative order be adjourned to a date to be fixed until the Court has ruled on the application regarding the validity of the certificate of taxation of costs.
The plaintiff argues that the certificate of costs issued by Deputy Registrar Harman is to be set aside because the Deputy Registrar had no jurisdiction to issue a certificate of taxation in respect of an earlier costs order that the plaintiff pay the defendant's cost made by Deputy Registrar Hewitt on 26 August 2004. The plaintiff argues that the costs order made by Deputy Registrar Hewitt on 26 August 2004 has been replaced with a ruling that there will be "no order for costs" pursuant to s 7(3) of the Act. The costs order made by Deputy Registrar Hewitt followed upon an order dismissing the plaintiff's application for leave to commence common law proceedings against the defendant for damages for disability sustained by the plaintiff whilst in the employment of the defendant. The plaintiff says that his application by originating summons for leave to commence common law proceedings against the defendant is now a nullity pursuant to s 7(3) of the Act. As the plaintiff's original application for leave to commence proceedings against the defendant has become a nullity and the costs order made by Deputy Registrar Hewitt has been replaced pursuant to s 7(3) of the Act with a ruling that there will be "no order for costs", the plaintiff says that Deputy Registrar Harman had no jurisdiction to issue a certificate of taxation.
The plaintiff raised the argument regarding the absence of jurisdiction in submissions filed in support of objections lodged in respect of Deputy Registrar Harman's taxation of the defendant's bill of costs pursuant to O 66 r 53(1) of the Rules of the Supreme Court. Deputy Registrar Harman considered the objections filed by the plaintiff in a judgment delivered on 7 February 2005 but came to the conclusion that the role of the taxing officer was simply to give effect to the earlier costs order made by Deputy Registrar Hewitt. Deputy Registrar Harman expressed the view that until the plaintiff obtained an order precluding the defendant from taxing its costs, it would be inappropriate for the taxing officer to refuse to act. Accordingly, the plaintiff has now made this application to set aside the certificate of taxation of costs and for an order that the defendant is precluded from taxing its costs in respect of the original application by the plaintiff for leave to commence common law proceedings against the defendant.

Review of certificate of taxation

It is not clear on what basis the plaintiff brings the present application. In the submissions filed by the plaintiff in respect of this application it is said that the application is "either a review of the Deputy Registrar's taxation of costs or an appeal from the Registrar's decision that he had jurisdiction to tax costs, to a Judge." I have to satisfy myself that I have the necessary jurisdiction to decide this application: Murcia & Associates (a firm) v Grey and Ors (2001) 25 WAR 209 at 213. I have taken the view that this application may be dealt with as a review of the taxation by a Judge in chambers pursuant to O 66 r 55(1) of the Rules of the Supreme Court. The Rules of the District Court do not deal with a review of a certificate of taxation. However, pursuant to s 87 of the District Court of Western Australia Act 1969 the Rules of Court of the Supreme Court apply where no special provision has been made in the Rules of the District Court (WA).
Order 66 r 55(1) and (2) of the Supreme Court Rules (WA) provide as follows:
"(1)If a party is dissatisfied with the certificate of the Taxing Officer as to any item or part of an item objected to under R 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the Taxing Officer at the time he signs his certificate, allows, apply to a Judge in chambers for an order to review the taxation as to that item or part of an item.
(2)The Judge, if of opinion that the Taxing Officer has made an error in principle, may thereupon make such order to rectify the error as the Judge thinks just."
The above Rule requires that a party applying for a review to a Judge in chambers must have previously objected to "any item or part of an item" under O 66 r 53, which deals with the objection to be made to the taxing officer before the certificate of taxation is finally signed. The plaintiff complied with this requirement as it did file objections with Deputy Registrar Harman.
It could be argued that an objection regarding the Deputy Registrar's jurisdiction to issue a certificate of taxation is not an objection "as to any item or part of an item". However, I am of the view that the objection is directed at the Deputy Registrar's power to tax costs in respect of "any item" and that a review challenging the validity of the whole of the certificate of taxation is allowed under this Rule.
If I am wrong in the interpretation of O 66 r 55(1) of the Supreme Court Rules, I am of the view that this Court nevertheless has "incidental jurisdiction" to set aside a certificate of taxation on the basis of the following case law. A superior court such as the Supreme Court of Western Australia has inherent jurisdiction to set aside a certificate of taxation. In Thorne v Thorne (1979) 1 WLR 659 Comyn CJ held that the Family Division of the High Court in England had inherent jurisdiction to set aside a certificate of taxation "in proper circumstances". One such circumstance provided as an example was where the certificate had been granted without jurisdiction or where a mistake had been made with regard to a vital detail (at 664). The reference to the "inherent jurisdiction" of the court was presumably made because the Rules of the Court provided that no application for review of a decision in respect of any item taxed could be made after the signing of the taxing officer's certificate dealing finally with that item.
In Mossensons (A Firm) v Coastline Associates, unreported; FCt SCt of WA; Library No 970661; 2 December 1997, Ipp J referred to the case of Thorne v Thorne and held that:
"Plainly, the exercise of the Court's inherent jurisdiction on this basis was regarded by Comyn J as a matter of discretion, and his Lordship outlined the matters that were, in the particular circumstances of that case, relevant to the exercise of that discretion."
The Full Court held that a taxation certificate could be set aside when this was "proper", but in exercising its discretion a court would have regard to the applicant's prospects of success on a review under O 66 r 55 and there had to be an "error in principle" before a Judge would carry out a review.
The District Court does not have inherent jurisdiction but it does have so-called "incidental jurisdiction" or "jurisdiction by implication" which arises from s 6 of the District Court of Western Australia Act 1969. This section defines the word "jurisdiction" as inclusive of "all powers and authorities incidental to the exercise of jurisdiction". This incidental jurisdiction allows a Court the "power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies" provided for in the enabling statute: Pelechowski v Registrar, Court of Appeal(1999) 198 CLR 435 at [51].
The specific power granted to the District Court is dealt with in s 50 of the District Court of Western Australia Act 1969 which provides that this Court has "the same jurisdiction to hear and determine and may exercise all the powers and authority that the Supreme Court has and may exercise from time to time" in relation to particular matters. Pursuant to s 55 of the District Court of Western Australia Act 1969 a District Court has, as regards any matter within its jurisdiction for the time being, power to grant such relief, redress or remedy as might be done in the like case by the Supreme Court.
In Grassby v R (1989) 168 CLR 1, Dawson J said the following with regard to the incidental jurisdiction of a Magistrates Court (at [16]-[17]):
"However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise… those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent."
In my view it is necessary for the proper exercise of the power of this Court in applying O 66 r 55(1) and (2) of the Rules of the Supreme Court(WA) that this Court also has the power to set aside a certificate of taxation on the basis that it was issued by the Registrar without jurisdiction. It would be quite inconvenient if the plaintiff had to institute proceeding in the Supreme Court in order to obtain a review of the certificate of taxation on the basis that it was issued without jurisdiction.
I am therefore satisfied, on the basis of the above decisions that a Judge of this Court has the incidental jurisdiction to set aside a certificate of taxation under O 66 r 55(1) of the Rules of the Supreme Court (WA), if such a certificate was granted without jurisdiction or, put differently, on the basis of the wrong costs order.
It has also been held in Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 by Jordan CJ, with the concurrence of Harvey CJ in Eq and Street J, that a court will always review a decision of a taxing officer where it is contended that he has proceeded upon a wrong principle (at 183). The summary of the law on the review of a decision by the taxing master in Schweppes' Ltd v Archer, including this statement, was adopted by the High Court, per Kitto J in Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 628.
The plaintiff's objections to the jurisdiction of Deputy Registrar Harman in issuing a certificate of taxation on the basis of the provisions of s 7(3) of the Act were already raised by the plaintiff at the hearing for the taxation of the bill of costs. In proceeding to sign the bill of costs the Deputy Registrar must have made a decision that he did have jurisdiction to do so and that he was entitled to rely on the costs order made by Deputy Registrar Hewitt. Accordingly, if the plaintiff is correct in its interpretation of s 7(3) of the Act, the Deputy Registrar acted without jurisdiction or made an error in principle when he signed the bill of costs and in so doing rejected the objections made by the plaintiff pursuant to O 66 r 53.

Interpretation of s 7(3) of the Act

The next question is whether the plaintiff's interpretation of s 7(3) of the Act is correct and whether the plaintiff's application for leave to commence common law proceedings against the defendant is indeed a nullity and the costs order made by Deputy Registrar Hewitt has been replaced with a ruling that there will be no order for costs. According to the Second Reading Speech in respect of the bill preceding the Act, the Act was introduced to reverse the effect of the High Court decision of Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428, and to restore the intent of the common law transitional provisions in the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the Amendment Act") "as it was commonly understood prior to the Dossett decision".
The background to the Act is briefly the following. Pursuant to the provisions of s 93D(4) of the Workers' Compensation and Rehabilitation Act 1981 as it stood prior to the Amendment Act ("the 1981 Act") a plaintiff wishing to make a common law claim against his/her employer had to obtain the leave of the District Court. On 25 October 1999 the Amendment Act came into operation. This Act abolished the regime of requiring the plaintiff to obtain leave from the District Court and instead imposed more restrictive conditions on the awarding of common law damages. Section 37(7) of the Amendment Act contains transitional provisions to the effect that the provisions of the Amendment Act will not affect the awarding of damages in proceedings which had been commenced or for the commencement of which the District Court had given leave before 25 October 1999. Pursuant to the Second Reading Speech of the Act, the Amendment Act had been understood and applied to the effect that the 1981 Act only had application to a matter where leave to issue proceedings had been given by the District Court or which had already been commenced before 5 October 1999.
This understanding of the effect of the transitional provisions in the Amendment Act changed when the High Court delivered its decision in the Dossettcase. The High Court held that the transitional provisions in s 32(7) of the Amendment Act did not exhaustively deal with a plaintiff's entitlements and remedies under the provisions of the 1981 Act, because the Amendment Act did not expressly or impliedly exclude the operation of s 32(7) of the Interpretation Act 1984. Section 37 of the Interpretation Act 1984 essentially provides that where a statute repeals an enactment, the repeal does not, unless the contrary intention appears, affect any previous operation of the enactment or any right acquired prior to the repeal. Accordingly, the High Court held that since the plaintiff in the Dossett case had a pending application for leave to sue his employer pursuant to s 93D(4) of the 1981 Act at the time that the Amendment Act received Royal Assent, s 37(3) of the Interpretation Act 1984 entitled the plaintiff to proceed with his pending application for leave and that the application continued to be governed by the provisions of s 93D (4) of the 1981 Act (at [16] and [17] per McHugh J, [43] to [45] per Gummow, Hayne and Heydon JJ and [88] per Kirby J).
On 25 October 2004 the Act received Royal Assent. Section 5 of the Act provides as follow:
"5.Provisions applying to awarding of damages
(1)This section –
(a)is to be read in conjunction with section 32 of the 1999 Act as if this section were incorporated with and formed part of that section; and
(b) applies in addition to section 32(7) of the 1999 Act.
(2)Despite section 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in subsection (3) or in the amended provisions –
(a)the amended provisions apply to, and affect the awarding of damages in, a proceeding; and
(b)the former provisions do not apply to, or affect the awarding of damages in, a proceeding,
unless it is a proceeding –
(c) commenced before the assent day; or
(d)for the commencement of which a court gave leave under the former provisions before the assent day.
(3)Despite subsection (2), section 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in section 6(4) –
(a)the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and
(b)the former provisions apply to, and affect the awarding of damages in, a proceeding,
that is a proceeding –
(c)commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provisions; or
(d)for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent or on District Court file number WC 93D 1194/1998."
The "amended provisions" are defined as being s 93A to s 93G of the 1981 Act, as amended from time to time. The "former provisions" are defined as having the same meaning as in s 32(6) of the Amendment Act. This section defines "former provisions" as "Part IV Division 2 of the principal Act before it was amended by this section" (ie s 93A to s 93F of the 1981 Act).
The "assent day" referred to in s 5(2)(c) and s 5(2)(d) is defined as having the same meaning as in s 32(6) of the 1999 Act, which is the day on which the Amendment Act received Royal Assent (ie 5 October 1999).

The effect of s 5 has been described by Steytler P in Transfield Pty Ltd v Rawstron [2005] WASCA 78, 29 April 2005 at [47], as follows:
"While somewhat curiously worded, the effect of s 5(2) is to make clear what had seemingly previously been intended to be achieved by s 32(7) of the 1999 Act, namely that the former provisions apply to (and the amended provisions do not apply to) a proceeding commenced before 5 October 1999 or for the commencement of which leave had, by then, been given. The effect of s 5(3) is that, despite subs (2), the former provisions apply to (and the amended provisions do not apply to) a proceeding commenced on or before 25 October 2004 with the leave of a court given under the former provisions or for the commencement of which a court gave leave under those provisions on or before 25 October 2004."
Section 7 of the Act deals with matters that have been commenced pursuant to the "former provisions" and makes allowance for any worker who has incurred legal costs in commencing or continuing such a matter to recover reasonable costs from a General Fund. Section 7 provides as follows:
"7. Jurisdiction removed and workers' costs indemnified
(1)In this section –
"commencement day" means the day on which this Act receives the Royal Assent;
"former provisions matter" means –
(a)an application for leave to commence proceedings under the former provisions;
(b)an application for leave to appeal from a refusal to grant leave to commence proceedings under the former provisions;
(c)an appeal from a refusal to grant leave to commence proceedings under the former provisions; or
(d)a proceeding to which section 5(3) would have applied but for the operation of section 6(4), but does not include an application, appeal or proceeding on or relating to District Court file number WC 93D 1194/1998.
(2)On and after the commencement day no court may hear or determine a former provisions matter.
(3)Any former provisions matter that has been commenced but not determined before the commencement day is a nullity, and is taken to have been dismissed by operation of this subsection with no order for costs.
(4)A worker who, during the period commencing on 4 December 2003 and ending on the day on which this Act receives the Royal Assent, has incurred legal costs in commencing or continuing a former provisions matter that is taken to have been dismissed by operation of subsection (3), is entitled to be paid reasonable costs so incurred.
(5)The Executive Director may determine what are reasonable costs for the purposes of subsection (4).
(6)If the worker disputes the determination of the Executive Director, the Executive Director is to refer the matter to a registrar of the District Court or a taxing officer of the Supreme Court who may determine what are reasonable costs as if the determination were a taxation of costs.
(7)Costs that a person is entitled to be paid under this section are payable from the General Fund."
The plaintiff relies on s 7 for its argument that the application that it had brought for leave to commence proceedings against the defendant and which was refused by Deputy Registrar Hewitt with costs on 26 August 2004 is a nullity. It is essential for the success of the plaintiff's argument that the application for leave to commence proceedings had not been "determined" as at the commencement day of the Act, as pursuant to s 7(3) only former provisions matters which had been commenced but not determined prior to the commencement day of the Act are a nullity.
After the refusal of the application for leave to commence proceedings the plaintiff filed a notice of appeal against this decision on 31 August 2004 and also filed further affidavits to be admitted as additional evidence in respect of the appeal.
The appeal was an appeal from a decision of a Registrar to a Judge in chambers pursuant to O 6 r 11 of the Rules of the District Court (WA). The commentary in Seaman, Civil Procedure Western Australia at 15,410.1 regarding an appeal from a Registrar to a Judge in chambers reflects the accepted position:
"The appeal is a complete review de novo by the judge which is dealt with by way of an actual hearing of the application which led to the order under the appeal. The judge treats the matter as though it came before him or her for the first time although the party appealing must open. It is common practice for the judge to admit further or additional evidence by affidavit unless a party has taken his or her stand on the evidence as it stood. Admission of the further evidence is in the discretion of the court. The discretion is more a discretion to exclude than a discretion to admit additional evidence, and the practice of the court is to admit such evidence where it is relevant in the absence of some reason which would make it unjust to admit it; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26."
The plaintiff's appeal to a Judge in chambers was not heard by reason of the introduction of the Act which was given Royal Assent on 25 October 2004.
The plaintiff argues that its appeal from the decision of Deputy Registrar Hewitt to refuse it leave to commence common law proceedings against the defendant is a "former provisions matter" as it falls under s 7(1)(c) of the Act and is therefore a matter that no court may hear or determine after 25 October 2004 pursuant to the provisions of s 7(2) of the Act. The plaintiff further submits that its application for leave to commence common law proceedings against the defendant, which was refused by Deputy Registrar Hewitt, falls within s 7(1)(a), and that it also falls under s 7(3) of the Act in that it had been "commenced but not determined" before 25 October 2004. Pursuant to the provisions of s 7(3) any matter that has been commenced but not determined before the commencement day of the Act is a nullity, and is taken to have been dismissed by operation of this subsection with no order for costs.
If the plaintiff's submissions are correct, this would mean that the plaintiff's application to commence common law proceedings against the defendant is a nullity and that, despite the orders made by Deputy Registrar Hewitt, the Act provides that the application is taken to have been dismissed with no order for costs. If this argument was accepted, the plaintiff would still be unsuccessful with regard to the substance of his application, however, the plaintiff would no longer be liable for the defendant's costs of the application.
The plaintiff's argument turns on the meaning of "an application for leave to commence proceedings" under s 7(1)(a) of the Act and on the words "not determined" in s 7(3) of the Act. In essence, the question is whether an application for leave to commence proceedings has been determined when a Registrar has either granted or refused such an application or whether the application has only been determined once a Judge in chambers has granted or refused the application upon the review de novo, at least in those instances where the decision of the Registrar has been appealed prior to the commencement day of the Act.
Section 7(1) of the Act does not give any indication that an appeal from a Registrar's decision to a Judge in chambers has been specifically considered. Such an appeal could either fall within s 7(1)(a) in that it could be considered to be part of "an application for leave to commence proceedings". The other possibility is that the legislature intended an appeal from a Registrar to a Judge in chambers to fall under s 7(1)(c) in that it is "an appeal from a refusal to grant leave to commence proceedings". The three matters which are listed in s 7(1) of the Act as "former provisions matters" are relevantly, and in this order:
"(a)an application for leave to commence proceedings under the former provisions;
(b)an application for leave to appeal from a refusal to grant leave to commence proceedings under the former provisions;
(c)an appeal from a refusal to grant leave to commence proceedings under the former provisions;"
An application for leave to appeal from a refusal to grant leave to commence proceedings under the former provisions would only be necessary if an applicant wished to appeal to the Supreme Court from a refusal to grant leave to commence proceedings by a District Court Judge in chambers. Section 7(1)(b) does not refer to an application for leave to extend the time for the filing of an appeal, in which event s 7(1)(b) could have been relevant to the appeal from a Registrar to a District Court Judge in chambers. The fact that an appeal from a refusal to grant leave to commence proceedings is only mentioned in s 7(1)(c) and therefore after s 7(1)(b) which only deals with an application for leave to appeal from a refusal to grant leave to commence proceedings to the Court of Appeal may be an indication that "an appeal" as referred to in s 7(1)(c) was only intended to be an appeal to the Court of Appeal. If such an interpretation is adopted, any appeal from the decision of a Registrar to a District Court Judge in chambers has to fall under s 7(1)(a) which deals with "an application for leave to commence proceedings".
The third possibility is that the legislature intended that an appeal from a Registrar to a District Court Judge in chambers should not be a "former provisions matter" at all. If this was the case either party to the application for leave to commence proceedings heard by a Registrar could still today proceed with an appeal to a Judge in chambers which had already been filed or, with leave from the Court, file an appeal even after the commencement date of the Act. If an appeal from a Registrar to a Judge in chambers was not a "former provisions matter", it would not be subject to s 7(2) which provides that on or after the commencement day no court may hear or determine a former provisions matter.
I am of the view that the third interpretation, namely that an appeal from a Registrar to a Judge in chamber is not a "former provisions matter" is not an interpretation which accords with the intention of the legislature as expressed in the provision under consideration. Pursuant to s 19(1) and (2) of the Interpretation Act 1984 extrinsic material such as the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the bill containing the provision be read a second time in that House (ie a Second Reading Speech) may be given consideration to determine the meaning of a provision where that provision is ambiguous. The Minister who delivered the Second Reading Speech of the relevant Bill stated in his speech that:
"The Bill seeks to restore the intent of the 1999 common law transitional provisions as passed by Parliament so that the law as it was commonly understood by all parties in the system is retained. ... The intent of the 1999 amendments was understood to be that since 5 October 1999 the repealed provisions had a continuing application only when leave to issue proceedings had been given or proceedings had already commenced before the assent day. This was reinforced by a ministerial statement on 21 October 1999 by the then Minister for Labour Relations, who sought to clarify the transitional provisions in question by reiterating that only workers who had been granted leave to issue a writ or had issued a writ would be able to proceed with their common law action under the provisions that applied prior to 25 October 1999."
The Minister also referred to the Dossett case and said that the effect of the High Court decision in this case was that it entitled the worker to proceed with his pending application for leave to commence common law proceedings. The Minister stated further that:
"This is clearly not the intent of the 1999 amendments, which identify only two classes of proceedings that should be dealt with under the former provisions; that is, that court proceedings had commenced or leave had been given by the court for the commencement of proceedings."
On the basis of this speech it appears that the intent of the legislature was to capture all matters relating to an application for leave to bring common law proceedings under "former provisions matters," and that only matters in which a worker had already been granted leave to issue a writ in common law proceedings or had issued such a writ would be able to proceed.
This leaves the two possibilities that the legislature either intended that an appeal from a Registrar to a District Court Judge in chambers was meant to be part of an application for leave to commence proceedings under s 7(1)(a) or was meant to be "an appeal from a refusal to grant leave to commence proceedings" pursuant to s 7(1)(c) of the Act. If the latter position applies, this may not assist the plaintiff in this case, because, although the appeal commenced by the plaintiff from the decision of the Registrar would be a nullity pursuant to s 7(3) of the Act as it had been commenced but not determined before 25 October 2004, it could be argued that the application for leave to commence proceedings and the orders made by Deputy Registrar Hewitt in that application stand.
The plaintiff submits that the former position applies and that an application for leave to commence common law proceeding has not been "determined" until the appeal has been decided. By reason of the Registrar exercising a delegated power which is subject to review or appeal, the plaintiff has "a right" to have its application for leave to commence proceedings reviewed by a Judge in chambers and this means, so it is submitted, that an application for leave to commence proceedings has not been "determined" until the appeal to a Judge has been heard, at least in a case such as this where an appeal had already been filed prior to the commencement day of the Act.
The plaintiff's counsel relied on the judgment of Malcolm CJ in Briggs v Glentham Pty Ltd (1992) 8 WAR 339. The issue under consideration in this case was whether an appeal lies direct to the Full Court of the Supreme Court from a summary judgment granted by a Registrar of the District Court. Malcolm CJ held, with Pidgeon J and Rowland J concurring, that the summary judgment in that case had not been a final judgment because it had been subject to "further damages to be assessed". However, Malcolm CJ also examined, on an obiter basis, the question whether normally a summary judgment granted by a Registrar would be a "final" judgment and could therefore be the subject of an appeal directly to the Full Court of the Supreme Court, or whether a summary judgment granted by a Registrar was always subject to an appeal or review by a Judge of the District Court. His Honour referred to the principles of the delegation of judicial power set out in Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 and Harris v Caladine (1991) 172 CLR 84. Two conditions for the exercise of Federal judicial power by Registrars were laid down in these cases and Malcolm CJ held that the second condition was applicable to the delegation of judicial power by any court, including the District Court (at 349). The second condition was described by Mason CJ and Deane J in Harris v Caladine as follows:
"The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the Court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the Court. For present purposes it is sufficient for us to say that, if the exercise of delegation jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the Court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration."
On the basis of the principles set out in Harris v Caladine Malcolm CJ came to the conclusion that there was no right to an appeal directly from the decision of a Registrar granting a summary judgment as this would amount to "an unconditional delegation of jurisdiction to make a final judgment or order free of review" (at 350).
Although the findings made by Malcolm CJ in Briggs v Glentham Pty Ltd (1992) 8 WAR 339 regarding the invalidity of an unconditional delegation of jurisdiction to a Registrar were obiter, these conclusions were adopted by the Full Court of the Supreme Court of Western Australia, per Malcolm CJ, Murray and White JJ in Hunt v Knabe (No 2) (1992) 8 WAR 96. The court held in a joint judgment that in Briggs v Glentham the Full Court had concluded that it was an essential condition of the validity of delegation by the Judges of the District Court of jurisdiction to a Registrar of the Court that there be provision for a complete review de novo and that to the extent that an order of the District Court Rules affected an unconditional delegation of jurisdiction to a Registrar to make a final judgment or order free of review or appeal, that rule was beyond power (at 109). The Full Court expressed its agreement with the findings made by Malcolm CJ in the Briggs v Glentham case. These findings were again confirmed by Malcolm CJ in Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
Counsel for the plaintiff did not argue that by reason of the promulgation of s 7(3) of the Act the decision by Deputy Registrar Hewitt had been made without jurisdiction on the basis that the validity of the delegation by the Judges of the District Court to the Registrar had fallen away once s 7 had taken away a worker's right to have a decision by a Registrar taken on appeal or review by a Judge of the District Court. It is an interesting question whether the fact that the legislature has taken away the worker's "right" to an appeal from or a review of a decision made by a Registrar in respect of an application for leave to commence common law proceedings means that the delegated jurisdiction pursuant to which the Registrar made the decision has retrospectively fallen away. However, this was not argued before me and by reason of the findings made by me below does not have to be decided in this matter.
The plaintiff's counsel relied on Briggs v Glentham Pty Ltd (supra) in support of his argument that the application for leave to commence proceedings had not been "determined" until the decision made by Deputy Registrar Hewitt had been reviewed by a Judge on appeal, particularly in light of the fact that the plaintiff had filed an appeal in respect of this decision prior to 25 October 2004. In Briggs v Glentham Pty Ltd Malcolm CJ held that a summary judgment granted by a Registrar was not a "final judgment" pursuant to s 79(1) of the District Court of Western Australia Act 1969, as the decision by the Registrar was subject to review or appeal by a Judge (at 350). However, these findings were made in the context of whether a judgment is "final" rather than interlocutory, so that an appeal will lie directly to the Full Court (now the Court of Appeal). The issue for determination in Briggs v Glentham Pty Ltd was the interpretation of s 79(1) of the District Court of Western Australia Act 1969, which provided as follows at that time:
"1.A party to an action or matter who is dissatisfied with –
(a)a final judgment may appeal from that judgment to the Full Court constituted under the Supreme Court Act 1935;
(b)a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may be leave of the Supreme Court or a Judge thereof, appeal to such Full Court,
notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act."

In my view the question whether an application has been "determined" is not the same as whether a judgment has been "final" for purposes of an appeal. An interlocutory judgment may be said to have been "determined" even though it is not "final" for purposes of an appeal to the Full Court (now the Court of Appeal).
The Oxford English Dictionary, 2^nded relevantly defines the word "determined" as:
"1.Terminated, ended.
2.…
3.Decided, settled, fixed; decided or resolved upon."
I do not derive much assistance from this definition in the context of the issues raised in this matter. Counsel for the defendant argued that the application for leave to commence proceedings before Deputy Registrar Hewitt had been "determined", as it had been completed and the Deputy Registrar had made a decision upon it. However, this argument assumes that "an application for leave to commence proceedings" pursuant to s 7(1)(a) of the Act does not include an appeal to a Judge of the District Court which is an essential condition to the validity of the delegation of jurisdiction by the Judges of the District Court to the Registrar and which the plaintiff had already filed before the commencement day of the Act.
Although the cases discussed above are not directly applicable to the present matter and the question when a matter has been "determined", they are helpful in explaining the delegated jurisdiction pursuant to which a Registrar of this Court makes a ruling. Some more specific assistance regarding the issue when a matter has been "determined" may be obtained from the judgment of the Full Court of the Supreme Court of Western Australia in Maccarron v Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets & Ors [2001] WASCA 61. This case dealt with the dismissal by a Magistrate of complaints made under the Occupational Safety and Health Act1984 by reason of the lack of jurisdiction of the then current Commissioner. In order to rectify the problems which had resulted in the Commissioner not having been duly appointed and therefore having acted without jurisdiction, State Parliament passed the Occupational Safety and Health (Validation) Act1998. An appeal was brought to the Full Court of the Supreme Court pursuant to s 184 of the Justices Act1902 against the Magistrate's dismissal of the complaints. The Full Court of the Supreme Court was entitled to receive further evidence and the appeal was by way of a re‑hearing. Further, the Occupational Safety and Health (Validation) Act1998 provided that it had retrospective effect. However, the question was whether there was a limitation upon its retrospectivity in that it could not apply to complaints in respect of which the Magistrate had already given a decision. Kennedy J referred to Hewitt v Lewis [1986] 1 WLR 444 in which a similar question arose, namely whether the Rent‑Amendment Act 1985 (UK) could be relied upon on an appeal from a decision by the County Court where this legislation had not been enacted at the time that the County Court made its decision. Fox LJ said at 447:
"The question is whether the Act of 1985 was intended to apply to pending actions. I do not think that, in this case, the fact that the hearing at first instance was before the passing of the statute determines the matter. This appeal is by way of re‑hearing."
Kennedy J in Maccarron v Coles Supermarkets referred to this statement by Fox J and came to the conclusion that the Occupational Safety and Health (Validation) Act 1998 did apply to the delegation purportedly made to the Commissioner, thereby validating it retrospectively. He further held that "in this case, the proceedings have not been concluded by the exhaustion of the appeal process" [13]. Murray J concurred with the statements made by Kennedy J on this issue [146]. The decision in Maccarron v Coles Supermarkets gives some support to the plaintiff's argument that a matter which is subject to a re‑hearing has not been "determined" until the appeal or review by way of re‑hearing has taken place.
Further, the remainder of s 7 of the Act may shed some light on the intention of the legislature regarding the interpretation of "an application for leave to commence proceedings" and the word "determined". Section 7(3) of the Act provides that any former provisions matter that has been commenced, but not determined before the commencement day, is a nullity, and is taken to have been dismissed with no order for costs. Sections 7(4) to 7 (7) then set out a regime pursuant to which a worker who, during the period 4 December 2003 (the date of the judgment in Dossett v TKJ Nominees Pty Ltd, (supra)) and 25 October 2004 (the commencement day of the Act) has incurred legal costs in commencing or continuing a former provisions matter that is taken to have been dismissed, is entitled to be paid reasonable costs so incurred. The Executive Director may determine what are reasonable costs and such costs are to be payable from the General Fund.
It is not clear whether "costs so incurred" as referred to in s 7(4) of the Act are only costs which a worker has incurred by instructing his/her own solicitors or whether they also include costs payable by a worker to the defendant pursuant to a costs order. I see no reason why the words "costs so incurred" were not intended to also include costs payable by a worker to the defendant. On the basis that s 7(4) is clearly a provision which is for the benefit of a worker, this provision should be interpreted to be as beneficial to the worker as the ordinary meaning of the words under scrutiny allows.
Pearce, Statutory Interpretation in Australia, 5^th ed (2001), at 9.2 refers to the minority judgment by Isaacs J in Bull v Attorney‑General for New South Wales (1913) 17 CLR 370 as the orthodox view of the approach to be adopted in relation to the interpretation of beneficial provisions in legislation. Isaacs J said in respect of a case concerning the interpretation of a section of the Crown Lands Act 1895 validating certain transactions:
"In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially … . This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow."
"The fullest relief" which the words "reasonable costs so incurred" allow is that a worker is not only entitled to recover any costs that he/she incurred by instructing his/her own solicitors, but also costs incurred in having to meet a costs order made against the worker. The reference in s 7(6) to the Executive Director having to refer a disputed determination of the reasonable costs to a Registrar of the District Court or a taxing officer of the Supreme Court who may determine the reasonable costs as if the determination were a taxation of costs, does not in any way detract from this interpretation.
The next question is whether s 7 of the Act as a whole is a beneficial provision or a provision restricting the rights of the worker. In my view it is both. Section 7(1) to s7(3) clearly restrict the rights of a worker as they prevent a worker from continuing any application for leave to commence common law proceedings brought pursuant to s 93D(4) of the 1981 Act in reliance on s 37 of the Interpretation Act 1984 (WA) and Dossett v TKJ Nominees (supra). On the other hand, s 7(4) to s 7(7) are clearly beneficial provisions in that they allow a worker to recover from the General Fund any legal costs incurred by him/her in commencing or continuing a "former provisions matter". The provision in s 7(3) that any former provisions matter that has been commenced but not determined is deemed to have been decided with no order for costs is also beneficial to the worker in that he/she is not exposed to any order for the defendant's costs.
The plaintiff's counsel relied on Bird v The Commonwealth (1988) 165 CLR 1 in support of his submission that the whole Act concerned employee's compensation legislation, was remedial in its character and should therefore be construed beneficially. However, as indicated above, the Act is not remedial in respect of all its provisions. Insofar as s 7(3) to s 7(7) of the Act are remedial and for the benefit of the worker, I accept that it is a well-established principle that where a remedial provision is ambiguous, the construction favourable to the worker should be preferred. This principle was summarised in the minority judgment by Deane and Gaudron JJ in Bird v The Commonwealth (supra) as follows (at p 9):
"The 'established principle' was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson's Tile Works Pty. Ltd. [1960] 104 CLR 328 at 335): 'where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred.' If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretation, the courts ought not to construe the Act as to exclude that person or case: cf. Pearce, Statutory Interpretation in Australia, 2^nd ed (1981), pp.137‑138."
The Minister stated in the Second Reading Speech in respect of the Bill preceding the Act the following:
"A worker who has incurred legal costs after 4 December 2003 and before 23 June 2004 (this was the day after the second reading speech, although the Act was only given Royal Assent on 25 October 2004) in applying for leave to commence proceedings or an appeal that has not been determined and cannot be continued as a result of the enactment of this Bill will be entitled to be paid reasonable costs incurred."
The second reading speech gives no indication that the worker's entitlement to costs does not arise where a particular step in the process of "applying for leave to commence proceedings" has been completed. On the contrary, the implication is that a worker should be reimbursed the legal costs incurred in taking any step "in applying for leave to commence proceeding or an appeal that has not been determined".
In my view s 7 of the Act should be interpreted, insofar as it is ambiguous, as beneficially as possible for the worker as regards the determination of the worker's rights to be paid his/her reasonable legal costs incurred. Section 7(1)(a) of the Act is ambiguous in that it is not clear whether an appeal to a Judge of this Court from the Registrar's decision forms part of "an application for leave to commence proceedings" or not. Section 7(3) is also ambiguous in that it is not clear whether an application for leave to commence common law proceedings ruled upon by a Registrar, but appealed to a Judge of this Court has been "determined". I am of the view that these ambiguities should be resolved by way of a construction beneficial to the worker. Such a construction requires that the words "an application for leave to commence proceedings" in s 7(1)(a) of the Act be interpreted to include an appeal to a District Court Judge in chambers in respect of a decision by a Registrar to refuse leave to a worker to commence common law proceedings, at least in those cases where the appeal was lodged prior to 25 October 2004. Further, a beneficial interpretation of s 7(3) leads to the result that such an application has not been "determined" unless a Judge of the District Court had ruled on it before 25 October 2004.
This construction of s 7 also accords with the views expressed in Briggs v Glentham Pty Ltd (supra), Hunt v Knabe (No 2) (supra), Hazart Pty Ltd v Rademaker (supra) and Transfield Pty Ltd v Rawstron (supra) regarding the nature of a decision made by a Registrar of the District Court under delegated powers and the lack of finality of such a decision, at least where an appeal to a Judge in chambers has been lodged.
On this interpretation of s 7 of the Act, the plaintiff's application for leave to commence common law proceedings against the defendant was not determined before 25 October 2004 by reason of the fact that the plaintiff had lodged a Notice of Appeal on 31 August 2004. Pursuant to s 7(3) of the Act this means that the plaintiff's application for leave to commence common law proceedings, insofar as it had progressed and including the decision made by Deputy Registrar Hewitt dismissing the application, is a nullity and is now deemed to have been dismissed (by operation of s 7(3) of the Act) with no order for costs.
If I am wrong in making the finding that the words "an application for leave to commence proceedings" in s 7(1)(a) of the Act include an appeal from a Registrar of the District Court to a District Judge in chambers, at least where a notice of appeal has been filed prior to the commencement day of the Act, I am of the view that such an appeal would still fall within s 7(1)(c) of the Act. As indicated earlier, I am of the view that the intention of the legislature was to include an appeal from a Registrar to a District Court in chambers under "former provisions matters" so that this would have to fall either under s 7(1)(a) or s 7(1)(c). Accordingly, if an appeal to the Judge of this Court is not part of "an application for leave to commence proceedings" it is "an appeal from a refusal to grant leave to commence proceedings".
The question then arises whether, since the appeal to the Judge in chambers is a nullity, because it has been commenced but not determined pursuant to s 7(3) of the Act, the decision made by Deputy Registrar Hewitt under delegated powers can stand. On the basis of the decisions referred to above regarding the nature and validity of a decision made by a Registrar under delegated powers, I am of the view that if an appeal from a decision of the Registrar becomes a nullity the intention of the legislature must have been that the decision appealed from also becomes a nullity, in light of the fact that it has always been subject to the appeal or review of a Judge in chambers. Further, such an interpretation accords with a beneficial construction of the provisions of s 7 regarding the worker's entitlement to be paid his/her reasonable legal costs incurred.
It is not necessary in this case to make a finding what the situation would be where a worker's application for leave to commence common law proceedings had been dismissed by a Registrar of the District Court prior to 25 October 2004, but no notice of appeal had been filed prior to 25 October 2004.
Accordingly, at the time that Deputy Registrar Harman issued the certificate of taxation, the decision by Deputy Registrar Hewitt had already been turned into a nullity by reason of the operation of s 7 of the Act and the costs order made by him in favour of the defendant had been deemed to be a ruling for no order as to costs. This means that Deputy Registrar Harman based his taxation on a costs order which was no longer in existence and had been replaced with a different costs order. Submissions had been made by the plaintiff's counsel to Deputy Registrar Harman regarding the effect of s 7 of the Act and, although Deputy Registrar Harman said in his reasons for dismissing the objections that he thought it was not for the taxing officer to make a decision as to whether a costs order granted by a Deputy Registrar was valid or not, Deputy Registrar Harman clearly made an implied decision to proceed on the costs order issued by Deputy Registrar Hewitt in issuing the certificate of taxation.
In Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 the issue for decision was whether a review officer had made an error of law when he determined the level of disability of a worker on the basis of a direction from the Director of the Conciliation and Review Directorate which was determined to have been invalid. Anderson J, with the concurrence of Wallwork J and Templeman J concurring, said the following at [43]:
"In my opinion, a question concerning the validity of the Director's referral of the dispute to the review officer is a question of law within the meaning of s 84ZE(b). Furthermore, although the matter may not have been raised in argument before the review officer, and the review officer did not positively state that he had jurisdiction, the review officer must be taken to have formed the opinion that the matter was properly referred to him and that he did have jurisdiction to proceed with a review hearing and determine the dispute and, in that sense, he must be taken to have decided that he had the power to do so: Clisdell v Commissioner of Police (1993) 31 NSWLR 555 per Scheller JA at 560."
In the present case plaintiff's counsel did present an argument regarding the lack of jurisdiction to issue a certificate of taxation to Deputy Registrar Harman and the Registrar must therefore be taken to have decided that he had power to issue the certificate of taxation. Accordingly, in that respect there was an error of principle and the certificate of taxation is to be set aside.
In light of these findings the plaintiff’s alternative application for a review of the taxation as to items 10 – 16 of the defendant's bill of costs falls away and requires no further decision.
I therefore make an order that the certificate of taxation of costs relating to costs payable by the plaintiff to the defendant issued by Deputy Registrar Harman be set aside.
Subject to hearing the parties' counsel on this issue, I propose to grant the plaintiff the costs of this application.