Forestry Tasmania v Halton

[2000] TASSC 90

[2000] TASSC 90

CITATION:              Forestry Tasmania v Halton [2000] TASSC 90

PARTIES:  FORESTRY TASMANIA
  v
  HALTON, Robin Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 23/2000
DELIVERED ON:  14 July 2000
DELIVERED AT:  Hobart
HEARING DATES:  5 July 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Costs - Generally - Determination of Tribunal that it had no jurisdiction to make orders sought - Whether has jurisdiction to order costs.

Workers Rehabilitation and Compensation Act1988 (Tas), s59(1).
Tubemakers of Australia Limited v Kurz 4/1998; Unilever Australia Limited v Gunn & Anor 143/1998, followed.
Aust Dig Workers Compensation [155]

REPRESENTATION:

Counsel:
           Appellant:  J R McDonald
           Respondent:  C J Bartlett
Solicitors:
           Appellant:  John McDonald
           Respondent:  Bartletts

Judgment Number:  [2000] TASSC 90
Number of Paragraphs:  15

Serial No 90/2000
File No LCA 23/2000

FORESTRY TASMANIA v ROBIN CHARLES HALTON

REASONS FOR JUDGMENT  UNDERWOOD J

14 July 2000

1. The respondent obtained a medical certificate.  It is headed "Workers Compensation Medical Certificate".  It discloses that:

·a provisional diagnosis of recurrence of lower back strain was made;

·the respondent presented with symptoms of pain and suffering;

·the respondent stated that the injury or disease occurred under the following circumstances, viz, "possibly due to extra strain on back [?] driving long distance";

·the injury or disease was a recurrence of a previously compensable condition ¾ "original injury 23/3/87".

1. The respondent gave the medical certificate to the appellant.  The appellant referred the matter to the Tribunal pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s81A, by referral dated 9 November 1999. The matter came on for hearing before the Tribunal on 16 February 2000.

1. At the outset of the proceedings before the Chief Commissioner, then counsel for the appellant submitted that notwithstanding its referral of the matter, the Tribunal did not have jurisdiction to make any order on the referral. The Act, s4(3) provides that the Act does not apply in respect of an injury that occurred before the day fixed for the commencement of the Act pursuant to s2(2). That day was 15 November 1988, (Statutory Rule 203/1988). The medical certificate asserted that the incapacity for work resulted from an injury suffered before the Act came into operation, no doubt something that was overlooked by the appellant when it referred the matter to the Tribunal pursuant to s81A.

1. Counsel for the respondent agreed that the Tribunal had no jurisdiction and said, "We've been unnecessarily dragged here today to argue about it".  Counsel for the respondent then sought an order for costs.  Submissions were made with respect to the making of such an order and the Tribunal's decision was reserved.  That decision was handed down on 2 March 2000.  It was that the appellant pay the respondent's costs of the appearance before the Tribunal at Ulverstone on 16 February 2000.  From that decision, this appeal is brought.  There are two grounds of appeal, namely:

"1The learned Chief Commissioner erred in law in determining, after having found on 16th February 2000 that the Tribunal had no jurisdiction to hear the Employer's / Appellant's application made pursuant to Section 81A of the Workers Rehabilitation and Compensation Act 1988, that costs be awarded against the Employer / Appellant. In so doing the learned Chief Commissioner impliedly asserted that the Tribunal had jurisdiction to award costs, when in law by reason of his decision of 16th February 2000 it did not.

2The learned Chief Commissioner erred in the exercise of his discretion in ordering the Employer / Appellant to pay the Respondent's costs."

1. Mr McDonald, who appeared for the appellant, made some interesting submissions concerning what he called the common law rule; "no jurisdiction: no costs".  His researches into this rule took him as far back as Peacock v Bell & Kendal (1666) 1 WMS Saund 69; 85 ER 81.

1. I accept Mr McDonald's submission that the jurisdiction of the courts of common law to award costs depended upon statute, although the position was different at equity for the courts of Chancery asserted an inherent jurisdiction to award costs.  See Andrews v Barnes (1888) 39 Ch D 133 at 138. This distinction between a power to award costs at common law and a power to award costs at equity has, of course, lost its significance since the enactment of the Judicature Acts.  Although this might be an interesting excursion into the history of the power to award costs, it is all academic for present purposes as there is no doubt that the Tribunal is entirely a creature of statute and therefore its powers, including a power to award costs, are confined to those conferred by the statute. The Act, s59(1), provides:

"59 ¾ (1)   Except as provided in subsection (2), the Tribunal may make such order as to costs as it considers appropriate in any proceedings before it."

1. Did this subsection confer the power to make the impugned order? Mr McDonald submitted that it did not. It is clear that upon the filing of the s81A referral and upon it being brought on for hearing, the Tribunal would, but for counsel's concession, have been obliged to firstly determine whether or not it had jurisdiction. See R v Marsham [1892] 1 QB 371. Having discharged that obligation, did s59(1) confer a power to award costs?

1. I accept Mr McDonald's submission that upon the construction of a statute, the following general principle of law prevails:

"If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred:  Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475, at p 487. See also Hamilton v Oades (1989) 166 CLR 486, at p 494; Potter v Minahan (1908) 7 CLR 277, at p 304; Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177; Baker v Campbell (1983) 153 CLR 52, at p 123." [Per Balog v Independent Commission Against Corruption (1990) 93 ALR 469 at 477.]

1. However, that proposition need not be invoked in this case. The issue here is simply whether the s81A referral, in respect of which it was determined that the Tribunal had no jurisdiction to make an order, was a proceeding within the meaning of the Act, s59(1). I had occasion to consider the meaning of the word "proceeding" as enacted in that subsection in Unilever Australia Limited v Gunn & Anor 143/1998.  I venture to repeat what I said in that case at 7:

"The meaning of the word 'proceeding' is to be ascertained from the statutory context in which it is enacted. See Cheney v Spooner (1928-1929) 41 CLR 532 at 536-537; Victorian Workcover Authority v CE Heath Underwriting & Insurance (Australia) Pty Ltd, unreported, Court of Appeal (Vic) No 5171 of 1996. The whole tenor of the Act, in particular s49(1), indicates that a liberal construction should be given to the expression 'any proceedings' as enacted in s59."

1. In Tubemakers of Australia Limited v Kurz 4/1998, Crawford J held that the Tribunal had jurisdiction to make an order for costs.  In that case, it was contended firstly that the order made on a referral was null and void, as it was made without jurisdiction and secondly, it followed that the Tribunal had no jurisdiction to make an order with respect to costs.  Although Crawford J held that the Tribunal did have jurisdiction to make the primary order, he said, at 3:

"The power to make an order for costs is in s59(1) and it is a power to "make such order as to costs as it considers appropriate in any proceedings before it". The order for costs which was made concerned the costs of and incidental to the reference. Clearly the Tribunal had the power to make the order for costs regardless of whether it had or had not made any other form of order or determination when dealing with the reference."

1. Mr McDonald submitted that Tubemakers could be distinguished from the present case because in that case the question of jurisdiction was argued, but in these proceedings lack of jurisdiction was conceded at the outset.  That is clearly no valid point of distinction.

1. Mr McDonald relied upon two decisions of the Workers Compensation Appeal Tribunal (SA).  The first of these was The Corporation (BP Food Plus) v Nixey [1995] SAWCAT 56.  In that case, a Mrs S was providing home help to the worker.  The Corporation wrote to Mrs S advising her that it would not accept liability for payment for those services as they were not reasonably incurred.  Mrs S applied to a review officer to review that decision.  It was common ground that the review officer had no jurisdiction to entertain the application for a review.  The officer so held and made an order for costs pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA), s92A which then provided (inter alia) that a "review officer is empowered to award costs".  It may be noted that this provision has been repealed by the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 (SA). The Appeal Tribunal held that Mrs S had no standing before the review officer. The Act conferred no power on her to refer anything at all. It did confer a power on the worker to refer certain matters to a review officer, but this power did not extend to her home help. Thus, the Appeal Tribunal reached the conclusion that there was no jurisdiction to make any order for costs as there were, in effect, no proceedings under the Act. The decision was followed by the Tribunal (differently constituted) in Workcover Corporation (SA Mushrooms Pty Ltd) v Spiel [1996] SAWCAT 113.

1. If rightly decided, these cases are distinguishable from the present case because in the latter the appellant/employer received from one of its workers a claim for compensation by way of medical certificate. The Act, s81A, conferred a right upon the employer to refer a claim for compensation to the Tribunal. Upon receipt of the claim, the employer referred it to the Tribunal. Thus, the appellant and the respondent had standing before the Tribunal. The filing and service of the s81A referral undoubtedly amounted to the institution of proceedings within the meaning of the Act. Accordingly, s59(1) conferred jurisdiction on the Tribunal to award costs, notwithstanding its determination that it had no jurisdiction to make any other order upon the referral. Ground 1 is not made out.

1. Ground 2 relies upon the proposition that no tribunal, properly instructed as to the law and acting reasonably, could have made the order for costs that is the subject matter of this appeal. In its reasons for making that order, the Tribunal found that one week prior to the commencement of the hearing, the appellant concluded that the Tribunal had no jurisdiction to determine its referral, but made no approach to the respondent or his solicitor to discuss the matter. The Tribunal went on to find that upon receipt of the medical certificate, it was not unreasonable of the appellant to refer the matter pursuant to s81A, but once it had determined that the Tribunal had no jurisdiction, its solicitor should have spoken to the respondent's solicitor for, had he done so, it was likely that the hearing would not have taken place. The Tribunal concluded that the appellant's inaction necessitated the appearance and "accordingly I consider that it is appropriate in those circumstances that it bare [sic] the costs of that unnecessary appearance".

1. Not only can no fault be found with the reasoning of the Tribunal and the order it made, but it might be said that such order was the only one that could have been made in the circumstances  of the case.  Ground 2 fails.  The appeal is dismissed.