Electrolytic Zinc Company of Australasia Limited v Fisher

[1989] TASSC 35

Serial No 31/1989
List 'A'

CITATION:              Electrolytic Zinc Company of Australasia Limited v Fisher [1989] TASSC 35; A31/1989

PARTIES:  ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED
  v
  FISHER, Arthur

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 38/1989
DELIVERED ON:  21 August 1989
JUDGMENT OF:  Underwood J

Judgment Number:  A31/1989
Number of paragraphs:  23

Serial No 31/1989

List "A"

File No LCA 38/1989

THE ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED v ARTHUR FISHER

REASONS FOR JUDGMENT  UNDERWOOD J

21 August 1989

1. Pursuant to the provisions of the Workers Compensation Act 1988, s61(1), the Workers Compensation Commissioner ordered that the appellant (employer) pay to the respondent (worker) $12,107.53 and that such payment be made within 30 days from 31 March 1989. The order was made consequential upon the Commissioner's determination that the respondent's industrial deafness, being a disability of gradual onset over a period of many years, was an injury which occurred after the commencement of the Act. See s4(3).

1. On 12 April 1989 the appellant filed a notice of appeal from that order. The sum of $12,107.53 was paid into this Court pending determination of the appeal.

1. The hearing of the appeal commenced before me on 23 May 1989. I was informed from the bar table that this was the first appeal from an order of the Workers Compensation Commissioner and that the question of law raised by the notice of appeal was involved in a significant number of other Workers compensation cases to be determined by the Commissioner. At the commencement of the hearing I raised the question of the jurisdiction of this Court on an appeal under the Workers Compensation Act, s63 which provides:

"(1)   If any party to a proceeding before the Commissioner is aggrieved by any determination, order, ruling, or direction of the Commissioner in point of law, that party may appeal to the Supreme Court.

(2)    An appeal under this section shall be instituted, heard, and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court made under that Act."

1. Counsel agreed to consider this matter during the overnight adjournment. The following morning, counsel for the applicant conceded that it appeared to him that, in the absence of a statutory power in the Workers Compensation Act, this Court had no jurisdiction to make any consequential order upon the determination of an appeal. Reference was made to the Rules of Court O76, rr54 and 55 but it was assumed that, in the absence of a legislative power to invest jurisdiction in the court by subordinate legislation, O76, rr54 and 55 would be ultra vires.

1. An application for an adjournment was made. The basis of the application was that during the adjournment Parliament could pass some amendments to the Act, presumably with retrospective effect. The application was opposed and I refused to grant it. Counsel for the applicant indicated that he would not proceed further with the appeal and on the application of counsel for the respondent I made an order dismissing it.

1. On 2 June 1989 the applicant applied to have the matter relisted for an order that the order of dismissal be recalled. The order of dismissal made on 24 May 1989 has not been taken out and entered in accordance with the provisions of O.46. The application came on for hearing on 11 August 1989. It was opposed. The basis of the application was that on the proceedings on 23 and 24 May, counsel for the applicant overlooked a material legislative provision, which he submitted, gives this Court jurisdiction to make all such orders as may be necessary to finally determine the rights of the parties to this appeal.

1. Counsel for the respondent conceded, correctly in my view, that I have a discretion to recall the order made on 24 May 1989 as it has not been perfected by its entry into the record of this Court. In Re Harrison's Share Under a Settlement [1955] 1 All ER 185 Jenkins LJ, delivering the judgment of the court said at p192:

"When a judge has pronounced judgment he retains control over the case until the order giving effect to his judgment is formally completed. This control must be used in accordance with his discretion exercised judicially and not capriciously."

1. There was ample authority to support that statement. See for example, Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717; In re Suffield and Watts; ex parte Brown (1888) 20 QBD 693; Re St Nazaire Co (1879) 12 Ch.D. 88 at p91. It has since been accepted as a correct statement of the law. See for example, Carroll v Price [1960] VR 651; R v Billington [1980] VR 625 at p628; Bailey v Marinoff (1971) 45 ALJR 598 at p602.

1. In Re Barrell Enterprises and Anor [1972] 3 All ER 631, Russell LJ said at p636:

"When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one."

1. He continued at p637:

"It is clearly not permissible for a party to ask for a further hearing merely because he has thought of a possible ground of appeal that he originally overlooked. The discovery of fresh evidence has never been suggested as a ground for re–opening the argument before the Court of Appeal. If fresh evidence comes to light, of such a character as to call for further consideration of the issues, the right way to deal with the situation is by applying for leave to appeal to the House of Lords."

1. No authority was relied upon for the asserted restriction on the exercise on an unfettered discretion being part of the inherent jurisdiction of the court. Further, in my view, the statement first cited above must be read in conjunction with the second and in the light of the facts of that case. In Pittalis and Ors v Sherefettin [1986] 2 All ER 227 Dillon LJ acknowledged at p237 that, "it is indeed exceptional for a judge who has pronounced an order in court to be completely satisfied, before the order has been drawn up, registered or perfected, that the order was wrong." Fox LJ referred to Barrell Enterprises and said at p234 that the exercise of the discretion was "a matter of the sensible administration of justice and fairness between the parties."

1. Each case must be decided on its own facts and a determination made whether a recall of the order would be fair and just between the parties. Although it would be unusual to recall an order pronounced in court there is a discretion to do so and no reason to suppose that there are any restraints on the exercise of that discretion in cases where it would be just and fair between the parties to recall the order.

1. After the dismissal of this appeal on 24 May 1989 the monies paid into court were paid out of court to the respondent and he has had an opportunity to dispose of those monies although it is not claimed that he has done so. Counsel for the respondent submitted that it would not be fair and just between the parties to re–open this litigation simply because the applicant overlooked some material legislative provision at the time argument was presented and accordingly made concessions that he later considered he should not have made. An application to present further argument between the conclusion of a hearing and the handing down of judgment falls into a different category because, during that period, the litigation has not been concluded.

1. In the proper exercise of the discretion I think it is appropriate to consider the submissions which the applicant now wishes to make and the effect they would have had on the order made following the applicant's abandonment of the appeal had they been made during the hearing of the appeal.

1. The Rules of Court, O76, rr54 and 55 provide:

"54–(1) The Court or a judge, on the hearing of any appeal from an inferior court, shall have power to draw all inferences of fact which might have been drawn by the inferior court and to order a new trial or rehearing of the cause or matter, either before a judge of the Supreme Court, or in the inferior court, and to make all such orders and give all such directions for the purposes of, or with respect to, the new trial or rehearing as may be necessary, or the Court or judge may think proper, or to give or make by judgment which ought to have been given or made by the inferior court, and to set aside, reverse, alter, or vary any judgment given or made by the inferior court, and to make such further or other order as the case may require.

(2)    The powers aforesaid may be exercised by the Court or judge notwithstanding that the notice of appeal may be that part only of the decision appealed from may be reversed or varied, and such powers may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.

(3)    ...

(4)    ...

55      The Court or a judge shall have power to make any other order with respect to an appeal from an inferior court which the Court or judge thinks just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties, and any such order may be made on such terms as the Court or judge shall think just."

1. That those rules are intra vires is beyond doubt having regard to the provisions of the Supreme Court Civil Procedure Act s197(3) which provides:

"Notwithstanding the provisions of any statute, the Rules of Court may confer on the Supreme Court or a judge thereof, for the purpose of hearing and determining any appeal from an inferior court, or any statutory tribunal not being a court, all or any of the powers by this Act conferred on a Full Court by Pt.V, or any further or other powers which may be deemed necessary or convenient."

Counsel for the applicant overlooked the existence of this subsection at the time he decided not to proceed with the appeal and it is clear that had he not done so the substantive issues raised by the notice of appeal would have proceeded to a determination. It is contended that, in the circumstances of this case, it would be unjust to deny the applicant a judicial determination of those issues and not unfair to the respondent to permit this to be done. Counsel for the respondent conceded that O76, rr54 and 55 were intra vires by reason of s197(3) but submitted that the Workers Compensation Commissioner was neither a court nor a statutory tribunal and therefore those rules and rr67 and 68 of the same order had no application to the determination of an appeal from an order of the Workers Compensation Commissioner.

1. The word "court" can bear different meanings according to the context. See Friend v Wallman [1946] 1 KB 493 at pp498–499 but in O.76 the expression "inferior court" no doubt refers to a court of justice the proceedings and judgments of which must show that it acted within its jurisdiction and accordingly is amenable to control by a superior court by way of prerogative writ. See R. v Chancellor of St Edmundsburyand Ipswich Dioceseex parte White [1948] 1 KB 195; Supreme Court Civil Procedure Act PtVII. The Workers Compensation Act 1988, s16 provides for the establishment of a Workers Compensation division of each Court of Requests and, by s17, each such division shall be constituted by a Workers Compensation Commissioner appointed in accordance with that section. The effect of these provisions is not entirely clear in the absence of corresponding provisions in the Local Courts Act 1896 although s61(6) provides that an order for the payment of money shall be deemed to be a judgment of the Court of Requests and enforced as provided by the Local Courts Act 1896. The Commissioner has power to finally determine the rights of parties under the provisions of the Workers Compensation Act and prima facie appears to exercise a judicial power. See Huddart Parker & Co Pty Ltd v Moorehead (1910) 8 CLR 330; R. v Trade Practices Tribunal ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at pp374–375.

1. However, for the purpose of determining the present application it is unnecessary to consider this question and, in the absence of full argument, inappropriate to do so, because an order of the Workers Compensation Commissioner is clearly an order of an inferior court of "any other statutory tribunal" within the meaning of O76.

1. This Court's jurisdiction to make final orders determining the rights of parties to an appeal from a determination of the Workers Compensation Commissioner clearly exists by virtue of the Supreme Court Civil Procedure Act and the Rules of Court. The powers contained in the Rules of Court have been exercised in cases of appeals pursuant to statutory provisions similar to the Workers Compensation Act, s63. See for example, In re Gallahar [1979] Tas R 172; In re Goodwin [1986] Tas R p6.

1. If counsel for the applicant had made the application for recall of the order before the parties had acted on it by the payment to the respondent of the monies paid into court it would have been fair and just to grant it and proceed to a determination of the appeal on its merits. In those circumstances it would have been unjust to deny the applicant his right to a judicial determination on the merits by reason of the order of dismissal made on a concession which was based on an inadvertent failure to draw the court's attention to a statutory provision.

1. However, in the present case a period of 11 days passed between the pronouncement of the order in court and the making of the application to recall that order.

1. During that period the applicant acknowledged the efficacy of the order by permitting the monies paid into court, being the subject matter of the appeal, to be paid out to the respondent. The fact that the question of law for determination on the appeal is of general importance has little weight for the discretion must be exercised upon the basis of fairness and justice between the parties.

1. In the circumstances I decline to recall the order made and the application is dismissed.