Dalton v The State of South Australia (in the Right of the Department for Families & Communities) (No 2) - [2010] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DALTON v THE STATE OF SOUTH AUSTRALIA (IN THE RIGHT OF THE DEPARTMENT FOR FAMILIES & COMMUNITIES) (No 2)
[2010] SASC 54
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Nyland)
16 March 2010
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - COSTS - GENERALLY
Cross-appeal by State – single Judge of Workers Compensation Tribunal ordered that worker pay the State’s costs of trial – after successful appeal the State applied for an order that the worker repay costs paid to her after trial – Full Bench of Workers Compensation Tribunal held that it had no power to make an order directing the worker to repay costs paid to her subsequent to trial – whether Full Bench had jurisdiction to order the repayment of costs.
HELD: cross-appeal dismissed – Full Bench does not have jurisdiction to order repayment of costs paid to the worker.
Workers Rehabilitation & Compensation Act 1986 (SA) s 32, s 88F, s 50H, s 32A; District Court Act 1973 (NSW), referred to.
Dalton v The State of South Australia (in the right of the Department of Families & Communities) [2010] SASC 45; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, considered.

DALTON v THE STATE OF SOUTH AUSTRALIA (IN THE RIGHT OF THE DEPARTMENT FOR FAMILIES & COMMUNITIES) (No 2)
[2010] SASC 54
Full Court: Doyle CJ, Duggan and Nyland JJ

DOYLE CJ: I would dismiss the cross-appeal, for the reasons given by Duggan J.
DUGGAN J: The history of this matter is set out in the judgment of this Court in Dalton v The State of South Australia (in the right of the Department of Families & Communities).[1]
[1] [2010] SASC 45 (unreported, Supreme Court of South Australia, Full Court, Doyle CJ, Duggan and Nyland JJ, 1 March 2010).
The appellant was a social worker employed by the State of South Australia (“the State”) in the Department of Families & Communities (“the Department”). In May 2003 she was served with a notice by the Department alleging that she had misappropriated funds and had been negligent in the performance of her duties. She resigned on 12 May 2003.
Subsequently the appellant lodged a claim for workers compensation alleging that she had suffered psychological injury while working in the Department. The claim was rejected and the appellant filed a Notice of Dispute challenging the conclusions reached in the determination. The disputed claim was heard by the Workers Compensation Tribunal constituted of a single Judge. The single Judge set aside the determination and held that the appellant was entitled to weekly payments of compensation. He ordered that the State pay the appellant arrears of income maintenance, future weekly payments of compensation, and expenses pursuant to s 32 of the Workers Rehabilitation & Compensation Act 1986 (SA) (“the Act”). He also ordered that the State pay the appellant her costs of the trial before him. The State made various payments to the appellant in accordance with these orders.
The State appealed to the Full Bench of the Tribunal against the declaration and orders of the single Judge. The appeal was allowed, the orders made by the trial Judge were set aside and the matter was remitted for trial before another Deputy President. The Full Bench ordered that the issue of the costs of the initial trial be adjudicated by the Deputy President who heard the retrial. An application by the State for an order directing the appellant to repay the amounts paid to her pursuant to the trial Judge’s orders was rejected by a majority of the Full Bench.
The appellant appealed to this Court against the judgment and orders of the Full Bench. The appeal was dismissed as incompetent on the ground that there was no right of appeal from the Full Bench to this Court at the time the relevant decision and order were made. However, the State cross‑appealed against the order of the Full Bench that it had no power to make an order directing the appellant to repay amounts paid to her pursuant to the orders of the trial Judge. At the hearing of the appeal before this Court counsel for the State indicated that the cross-appeal was confined to the decision of the Full Bench that it had no jurisdiction to order the repayment of costs.
Mr Peek QC, for the State, conceded that there was no specific power in the Act to make an order for recovery of costs paid to a party. However, he drew attention to s 88F of the Act which provides for a general power to make orders for costs in proceedings before the Tribunal. He submitted that this section gave rise to an implied or incidental power to make an order for repayment of costs already paid.
The powers of the Tribunal are those conferred by the Act. It has no inherent jurisdiction. The issue raised by the cross-appeal is whether the power to award costs implies a power to order recovery of costs paid after a successful appeal in relation to the substantive issues in the matter.
In Pelechowski v Registrar, Court of Appeal (NSW),[2] the question arose whether the New South Wales District Court had jurisdiction to make a post‑judgment asset preservation order. There was no specific power in the District Court Act 1973 (NSW) (“the District Court Act”) to make such an order. It was held that such a power could not be implied from provisions in the District Court Act. In their joint judgment, Gaudron, Gummow and Callinan JJ described the circumstances in which a power might be implied from provisions in an Act which creates a Court or Tribunal. Their Honours said:[3]
[2] (1999) 198 CLR 435.
[3] (1999) 198 CLR 435 at [50]-[51].
Some guidance in the matter is provided by the decision of this Court in Grassby v The Queen. It was there held that specific provision upon the subject made in the Justices Act 1902 (NSW) left no room for the implication of a discretionary power to terminate proceedings in a manner other than that provided. The result was that a magistrate had no power to order a stay of committal proceedings as an abuse of process. The leading judgment was given by Dawson J. After referring to the proposition that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power, his Honour continued:
“It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. 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. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.”
Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:
“whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provisions conferring particular jurisdiction’.”
The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness”.
(Footnotes omitted)
I would reject the argument that the jurisdiction to order the repayment of costs in circumstances such as the present can be implied from the nature of the power invested in the Tribunal to make costs orders. Section 88F of the Act provides as follows:
88F—Costs of proceedings
Subject to this Act, the costs of proceedings before the Tribunal are in the discretion of the Tribunal.
Section 88F is typical of provisions enabling a Court or Tribunal to award costs. It does no more than confer a discretion on the Tribunal to make orders with respect to the costs of proceedings.
The question whether amounts paid by way of costs should be repaid raises an issue which is separate and distinct from an award of costs. It cannot be said that a power to order the repayment of costs is in any way required for the effective exercise of the power to award costs or that it is an obvious concomitant of that power.
Mr Peek did not identify any other provisions in the Act from which the implication might be drawn that the Court had the power to direct repayment of costs. In fact there are some indications to the contrary. Section 50H of the Act provides that if it is subsequently discovered that weekly payments were made to a worker who was not entitled to compensation and who acted dishonestly in applying for compensation, the amounts may be recovered as a debt from the worker. Section 32A of the Act provides for a right of recovery of amounts paid for medical expenses in similar circumstances. These amounts also may be recovered as a debt due by the worker.[4]
[4] See also the observations of Doyle CJ when dealing with similar provisions under previous legislation in Della Flora v Workers Rehabilitation & Compensation Corporation of South Australia [1998] SASC 6691 (unreported, Supreme Court of South Australia, Full Court, Doyle CJ, Millhouse and Nyland JJ, 26 March 1998).
The fact that specific provision is made for recovery in these circumstances and not for the repayment of costs supports the argument that a power to order repayment of costs should not be implied. It is also relevant to note that, even in the sections referred to, the Tribunal is not given the power to direct repayment by way of a Court order. Although the process is assisted by enabling recovery as a debt, it remains necessary to take action in a Court of competent jurisdiction to recover the monies paid.
For these reasons I am of the view that the Full Bench does not have jurisdiction to order the repayment of the costs paid to the appellant.
I would dismiss the cross-appeal.
NYLAND J: I agree that the cross-appeal should be dismissed for the reasons expressed by Duggan J.