Griffin Coal Mining Co Pty Ltd v Smith

[2000] WASCA 366

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   GRIFFIN COAL MINING CO PTY LTD -v- SMITH [2000] WASCA 366

CORAM:   KENNEDY J

MURRAY J
PARKER J

HEARD:   15 JUNE 2000

DELIVERED          :   22 NOVEMBER 2000

FILE NO/S:   CIV 1515 of 2000

BETWEEN:   GRIFFIN COAL MINING CO PTY LTD

Applicant

AND

EDWARD CHARLES SMITH
Respondent

Catchwords:

Leave to appeal - Original hearing in absence of applicant - Procedural irregularities as to notice of hearing - Whether denial of procedural fairness - Whether decision a nullity

Legislation:

Workers' Compensation and Rehabilitation Amendment Act 1999, s 32(7)

Result:

Leave to appeal refused

Representation:

Counsel:

Applicant:     Mr M L Greenland

Respondent:     Mr A S Stavrianou

Solicitors:

Applicant:     Greenland Brooksby

Respondent:     Max Owens & Co

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

Cameron v Cole (1944) 68 CLR 571

Craig v Kanssen (1943) 1 KB 256

Macksville and District Hospital v Mayze (1987) 10 NSWLR 708

Norman v Norman (1992) 6 WAR 372

Palamara v City of Perth (1996) 16 WAR 235

Taylor v Taylor (1979) 143 CLR 1

The State of Western Australia & Anor v Bond Corporation Holding Ltd & Ors (1991) 5 WAR 40

Twist v Randwick Municipal Council (1976) 136 CLR 106

Wilson v Metaxas [1989] WAR 285

Case(s) also cited:

Hughes v Gales (1995) 14 WAR 434

1. KENNEDY J:  I have had the advantage of reading in draft the reasons to be published by Parker J.  For those reasons I would refuse the applicant leave to appeal.

2. MURRAY J:  I have had the considerable advantage of perusing in draft the reasons to be published by Parker J.  I have nothing to add.  I agree that leave to appeal should be refused.

3. PARKER J:  The applicant seeks leave to appeal from a decision of his Honour Judge Williams delivered in the District Court at Bunbury on 20 April 2000 by which an appeal from a Registrar of the District Court was dismissed.

4. In these reasons it will be more convenient to refer to the applicant as the defendant and to the respondent as the plaintiff.

5. The decision of the Registrar was that the plaintiff should have leave to commence proceedings against the defendant seeking damages at common law in respect of personal injuries which the plaintiff claims to have suffered in the course of employment with the applicant.

6. Leave of the District Court for the commencement of proceedings was required by virtue of s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") as it was until 5 October 1999.  On that date the Royal Assent was given to the Workers' Compensation and Rehabilitation Amendment Act 1999 ("the 1999 Amendment") which came into force immediately. Section 93D was repealed and a new and different scheme substituted. It is the effect of s 32(7) of the 1999 Amendment that the newly enacted scheme did not affect the awarding of damages in proceedings commenced before 5 October 1999 "or for the commencement of which leave had been given by the District Court before 5 October 1999". In other words there was a statutory cut-off on the day the 1999 Amendment received Assent. Relevantly, if leave to commence common law proceedings had not been obtained before 5 October 1999 damages could no longer be awarded in accordance with the former provisions and the new scheme applied. It is the effect of the new scheme, in the submission of the plaintiff, that he will be precluded from recovering damages at common law given the circumstances of his case.

7. The introduction and passage through Parliament of the Bill for the 1999 Amendment was, at the time, a matter which was quite widely known in affected circles.  It was in the shadow of the Bill that the

plaintiff's solicitors, along with those acting for many others in the same position, sought to obtain from the District Court leave for the commencement of common law proceedings before the Bill was passed and came into effect.

1. By originating summons issued out of the Bunbury Registry of the District Court dated 26 August 1999 the plaintiff sought leave pursuant to s 93D of the Act to commence proceedings against the defendant claiming damages for personal injuries. An affidavit in support was filed on 30 August 1999. On 2 September 1999 the summons, the affidavit, a certificate of readiness, and a notice of appointment for a hearing of the summons on 1 October 1999 were served on the defendant. An appearance was entered for the defendant by the Bunbury agents of its solicitors on 9 September 1999.

2. An appearance having been entered for the defendant, the plaintiff's solicitors wrote on 9 September 1999 to the Associate to a Registrar of the District Court (a copy being sent that day to the defendant's solicitors) asking whether the summons could be dealt with by the Registrar during his scheduled list of hearings in Bunbury on 17 September 1999.  On the same day the plaintiff's solicitors also sent by facsimile a letter to the defendant's solicitors advising that enquiries had revealed that a Judge of the District Court would be sitting in Bunbury for two weeks from 13 September 1999 and the Judge was willing to fit in a hearing of the summons depending on the availability of counsel and the estimated hearing time; the defendant's solicitors were requested to discuss "getting this matter on earlier".  The letter set out the reason for the urgency as "the forthcoming amendments to the Workers' Compensation legislation".

3. Telephone calls and facsimiles passed between the plaintiff's solicitors and the Court and the defendant's solicitors in the days that followed.  On 15 September 1999 the plaintiff's solicitors were advised by the District Court that the Registrar would hear the summons on Friday 17 September 1999 at Bunbury at 10.30 am.  The plaintiff's solicitors immediately on 15 September sent a letter by facsimile to the defendant's solicitors advising them of the listing of the hearing.

4. The following day, Thursday 16 September 1999, a letter was sent by facsimile from the defendant's solicitors to the Associate to the Registrar, with a copy to the plaintiff's solicitors, which included the following:

   "We advise that we are unable to arrange an appearance on 17 September 1999 at such short notice but our agents are able to attend before Judge Blaxell on 22 September 1999.  In any event our instructions are to defend the application and we would wish to treat the return date as a directions hearing.

   We enclose an affidavit sworn by the writer outlining the basis upon which we will seek an adjournment of the summons to a special appointment.

   Please confirm to us that the matter will not be listed on 17 September 1999."

5. No such confirmation was given and the summons came on before the Registrar on Friday 17 September 1999 at Bunbury.  There was no appearance for the defendant.  The Registrar had before him the letter of the defendant's solicitors which has just been mentioned and a copy of the affidavit referred to in it, although the original had not then been filed.  That affidavit included the following:

   "9.I am instructed to defend this application on the basis that the plaintiff will not attain the threshold imposed by s 93D of the Workers Compensation and Rehabilitation Act (WA) 1981, to commence common law proceedings against the defendant.

   10.I seek orders that the originating summons be adjourned to a special appointment, which I am advised and verily believe could be listed on 12 November 1999.

   11.I also seek directions to programme the filing of affidavits in opposition and reply, within 28 and 14 days, respectively if necessary."

6. There was no recording of the proceedings before the Registrar on 17 September.  The affidavit evidence before this Court about the proceedings that morning discloses that the Registrar determined to proceed with the hearing of the summons.  In reaching that decision he had regard inter alia to what had been written by the defendant's solicitors in their letter of 16 September and to the affidavit.  The position taken by the plaintiff at the hearing was that the defendant was endeavouring to delay the hearing of the application until after the new legislation came into effect, it being noted that a practitioner from the Bunbury agents of the defendant's solicitors was appearing before the Registrar that day.

7. The Registrar proceeded to hear and determine the summons. He was persuaded that leave to commence proceedings in accordance with s 93D of the Act was warranted and he granted leave. It is not contended that this decision was other than justified on the materials before him. Because the applicant had not appeared, the Registrar took the unusual step of ordering that the order granting leave should not be extracted without further order, and he adjourned the application until 12 November 1999 with procedural directions which allowed the defendant to file further affidavit evidence should it wish to do so before that date.

8. On 5 October 1999 the 1999 Amendment came into force. On 12 November 1999 the summons was relisted before the Registrar. Further affidavits had been filed pursuant to the procedural directions. On that date, however, the defendant sought and was granted a further adjournment to 17 December 1999, apparently pending the decision in another s 93D case. On 17 December 1999 yet a further adjournment was sought by the defendant. This was refused and the Registrar heard the parties that day.

9. When the matter was argued before us there was some uncertainty on the materials then available whether a fresh grant of leave was made by the Registrar following the hearing on 17 December 1999.  Because of the uncertainty the parties have since obtained and placed before us on affidavit a transcript of the proceedings on 17 December 1999.  It reveals that the Registrar then considered all the affidavit evidence and full submissions on the merits of the plaintiff's application from both parties.  He was not persuaded that the additional evidence displaced the satisfaction he had reached on 17 September 1999, on the affidavit evidence which he then had before him, that a grant of leave was warranted.  As a consequence, on 17 December 1999, the Registrar granted leave to extract the order he had made on 17 September 1999.  He did not make a fresh grant of leave.

10. An appeal was commenced by the defendant on 21 December 1999 to a Judge of the District Court from the decision of the Registrar to grant leave.  That appeal was dismissed on 20 April 2000.  The Judge concluded there had been procedural irregularity on 17 September 1999 but that the effects of this had been overcome by what followed.  It is from that dismissal that this application for leave to appeal to the Full Court is brought. 

11. The essence of the defendant's case for leave is that the order of 17 September 1999 should not have been made in the absence of the defendant. It is submitted there was denial of procedural fairness because the defendant was unrepresented and had not filed its affidavits in opposition; further the order was made without due notice to the defendant. It is further submitted that this procedural unfairness could not be cured retrospectively by the hearing on 17 December 1999 so that the order made on 17 September should be set aside. It is acknowledged that if this submission is upheld the effect would be that the plaintiff could not now obtain a grant of leave to commence proceedings pursuant to s 93D because of the repeal of that provision on 5 October 1999.

12. These submissions give rise to questions of some complexity.

13. Pursuant to the Consolidated Practice Directions of the District Court applications for leave to commence proceedings pursuant to s 93D were required to be made by originating summons in accordance with O 58 of the Rules of the Supreme Court.  By O 58 r 20 the plaintiff was required to serve a copy of the notice fixing the day and time for the hearing of the summons.  That notice is required to be in a prescribed form and by O 58 r 19(1) to be sealed by the Court.  In the present case such service was effected, but it gave notice of the original hearing date which was 1 October 1999.  No such notice was given of a hearing on 17 September 1999.

14. By informal facsimile letter the defendant was given notice on Wednesday 15 September of the hearing at 9.30 am on Friday 17 September.  That was well less than "at least 10 days" as required by the Rule.  The time specified by the Rule could be abridged under the general power, but no summons to abridge time was served, nor was there notice of such an application, and there is no suggestion in the papers that the Registrar ordered any abridgment.  Clearly there was no consent to an abridgement or waiver of the short notice.  The observations of the Full Court in Palamara v City of Perth (1996) 16 WAR 235 at 236 and 238 are pertinent that the agreement by a judge to an informal request to hear an application at short notice does not indicate that the judge has made an order allowing a shorter period of service and that the onus remains on the party seeking a hearing at short notice to secure an abridgment of time.

15. Hence, while the defendant had been informed that the Registrar proposed a hearing on 17 September 1999 there had not been due notice according to the Rules of that hearing and the hearing appears to have proceeded without an order abridging the period of notice required by the Rules.

16. The hearing conducted on that day and the orders made by the Registrar were thus affected by irregularity.  The solicitors for the defendant would, no doubt, have been far better advised to ensure there was an attendance before the Registrar on 17 September, at least to move for an adjournment because of the inadequate notice.  Were there no other considerations, there is no doubt that the order made by the Registrar on 17 September 1999 would have been set aside for procedural irregularity had the defendant sought such an order.  That, however, was not done.

17. There is a question whether, in the circumstances, the decision and order of the Registrar is a nullity.  If it is a nullity then, for the purposes of the 1999 Amendment, leave would not have been given by the District Court before 5 October 1999 and the plaintiff would not be able to pursue a claim for damages at common law.

18. It is fair to say that, despite the many decisions which have examined whether and in what circumstances the decision of a Court, rather than a tribunal, is a nullity or merely liable to be set aside for procedural irregularity, there remains a lack of certainty as to the principles governing this issue.

19. A passage from the reasons of Rich J in Cameron v Cole (1944) 68 CLR 571 at 589 is cited for the proposition that an order of a court is a nullity if a party has been denied a reasonable opportunity to be heard. The actual words of his Honour were:

    "It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.  If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe a principle has inherent jurisdiction to set its determination aside (Craig v Kanssen (1943) 1 KB 256 at 258). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial (Crane v Director of Public Prosecutions (1921) 2 AC 299 at 332, 333)."

    It will be seen that his Honour did not use the word nullity, although the words "there has been no valid trial at all" could suggest such a view.  An order which is a nullity may be set aside ex debito justitiae but so may some other orders, so the reference to that principle does not require the conclusion that Rich J was of the view that such a decision must be a nullity.  The reference to Craig vKanssen (1943) 1 KB 256 is expressly in support of the proposition that a court has inherent jurisdiction to set aside the order in such a case. Craig v Kanssen (supra) is authority for that view.  Some of the discussion of Lord Greene in Craig v Kanssen refers to the notion of a nullity, but at 590 in Cameron v Cole (supra) Rich J expressly qualifies his acceptance of that discussion and says:

    " … The decision of a superior court, even if in excess of jurisdiction is at the worst voidable, and is valid unless and until it is set aside …"

20. It appears to be the view of Rich J, therefore, that the decision of least of a superior court cannot be a nullity, although it is liable to be set aside ex debito justitiae where the court has been led to purport to determine a matter where there has been a failure to observe the fundamental principle of natural justice or procedural fairness to which his Honour referred.  This is a view which is clearly supported by Cameron v Cole itself and other decisions such as Taylor v Taylor (1979) 143 CLR 1 cf 7, 16, 22. More direct authority for the nullity view appears in the reasons of Latham CJ in Cameron v Cole at 584, although at 585 the Chief Justice agreed with the view of Rich J as to the distinction between judgments and orders of a superior court and those of an inferior court. Against the view that in such a case the decision of a court is necessarily a nullity there may also be seen to be the views in Cameron v Cole of Starke J at 596, McTiernan J at 598 and Williams J at 605. I note also the discussion, although in the context of an administrative body rather than a court, by Kirby P in Macksville and District Hospital v Mayze (1987) 10 NSWLR 708 at 716 - 719.

21. Much of the reasoning in Cameron v Cole indicates that a distinction is to be drawn between a decision of an inferior court and of a superior court where a party has been denied a reasonable opportunity of appearing and presenting the party's case.  It may be accepted more readily that the decision of an inferior court in such a case is a nullity.  If it be assumed, therefore, (although in the absence of full argument I prefer to refrain from deciding the point, cf the discussion as to what is a superior court in this context in a number of the judgments in Cameron v Cole) that the District Court is an inferior court for these purposes, it would be necessary to consider whether this is a case within the principle to which Rich J referred.

22. This is not a case where a claim was brought and an adverse judgment was given without the knowledge of the defendant.  That would be a clear denial of the fundamental principle of natural justice or procedural fairness to which Rich J referred.  In this case the defendant was duly served with the originating process and the plaintiff's supporting materials, and it had entered an appearance by solicitors who were on the record.  Those solicitors were well aware of the attempts over some days to have the application listed for hearing on 17 September 1999 and were notified in writing on 15 September that it was so listed.  While, procedurally, there had not been due compliance with the rules in these matters, the defendant by its solicitors was well aware of the listing of the application for hearing and had communicated with the court concerning the listing.  In these circumstances it appears to me to be the preferable view that, while there was clear failure to observe the rules, a failure which could justify the decision being set aside, there should not be seen to have been such an absence of notice of hearing that there was also a failure to observe the fundamental principle of natural justice to which Rich J referred.  The view of Gibbs J of the circumstances in Taylor v Taylor (supra) at 8 are somewhat apposite:

    "Since service of the petition was properly effected upon the appellant, it is not possible to regard the order made by Woodward J as a nullity, whatever view was taken of the questions discussed in Cameron v Cole.  However, since the appellant in fact had no notice of a hearing, the court had inherent power to set the order aside."

    It seems to me that while relevantly the Rules of the Court are a means of ensuring that a party is given due opportunity to be heard, it need not follow that every failure to observe the Rules as to service and notice has the consequence that there has been a fundamental denial of natural justice or procedural fairness.  The actual knowledge of the solicitors for the defendant of the listed time and date for the hearing is sufficient, in my view, to preclude this being a case where there was a denial of the fundamental principle that a party should have due opportunity to appear and to present its case.  If that be so, the hearing by the Registrar could not be a nullity by virtue of the fundamental principle to which Rich J referred.  Nevertheless, the failure to comply with the Rules as to notice left the decision liable to be set aside for irregularity.

1. Hence the position appears to be that on 5 October 1999, when the 1999 Amendment came into force, there was in existence an order of the District Court granting leave to the plaintiff to commence proceedings for damages at common law.  At that time no steps had been taken to have the order set aside.  It has not since been set aside.  Unless set aside as a consequence of this application for leave to appeal, the order remains in existence.

2. The question then arises whether the proceedings before the Registrar that followed the hearing on 17 September 1999 have adequately "cured" (to borrow the language of Mason J in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116) the procedural irregularity and its consequence that the defendant was not in fact heard in opposition to the plaintiff's application on 17 September 1999. It is relevant that the defendant, which received notification of the order forthwith after it was made on 17 September 1999, did not seek to have it set aside. Instead, the defendant took advantage of the orders made by the Registrar, by which the defendant had leave to file answering affidavits, and appeared and argued the merits of its case in opposition to the grant of leave when the matter was further considered by the Registrar on 17 December 1999. It was not until 21 December 1999 that the defendant took any step to challenge the decision of the Registrar, and this was only by way of appeal to a Judge of the District Court from the orders of the Registrar made on 17 September 1999 and 17 December 1999.

3. Thus the defendant availed itself fully of the opportunity to present its case against the grant of leave and, had it been successful on the merits, the Registrar could have recalled the order of 17 September 1999 as it had not been perfected: Norman v Norman (1992) 6 WAR 372 cf 375 - 376. The defendant chose to participate in the procedure adopted by the Registrar in the hope securing a decision in its favour on the merits. It failed. Indeed, I note that on the appeal to the Judge of the District Court the defendant did not even seek to contest the merits of the plaintiff's case for leave, and the Judge described the plaintiff as having a "walk-up case" on the merits. The decision on the merits was not challenged or disputed by the defendant on this application for leave.

4. Leave is sought to appeal.  The foundation for the proposed appeal is the correctness of an interlocutory order.  As was said by Malcolm CJ, Brinsden and Smith JJ concurring, in Wilson v Metaxas [1989] WAR 285 at 294 -

   "The grant of leave lies in the discretion of the court.  In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed …  The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave.  What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd ([1985] VR 756) at 759, per Fullagar J."

   That expression of the correct approach to the question whether leave should be granted to appeal in a case such as this was not intended to be a rigid or exhaustive statement, however, and the discretion to grant leave remains a broad one; The State of Western Australia & Anor v Bond Corporation Holding Ltd & Ors (1991) 5 WAR 40 at 56 - 57, 74.

5. In the most unusual circumstances of this case it seems to me that the failure to hear the defendant on 17 September 1999 has been consciously corrected with the full and informed participation of the defendant.  The merits of its case were considered before the order made on 17 September 1999 was perfected.  While the procedure on and following 17 September 1999 was not regular, and is not to be encouraged, in the outcome there has been a full consideration of the merits of the defendant's case.  In the particular circumstances, the effects of the procedural irregularities have been overcome and the decision reached is not affected by them.  The decision itself is not questioned on the merits.

6. Further, in my view, having regard to the matters canvassed above, no substantial injustice would be done by leaving the decision unreversed.  In this last respect, I would also note, quite apart from the matters already canvassed, the likely procedural and factual outcome had the plaintiff's application for leave to commence proceedings followed a more procedurally regular course.  It seems to me that a speedy hearing of the merits of the application could have been secured after regular notice of an application for an abridgment of the time for the notice of hearing.  By this means the application could have been duly ready for a hearing of the merits while a Judge who was prepared to hear the application was in Bunbury, ie before 25 September.  It is now clear that on a hearing of the merits the plaintiff would have succeeded.  Hence, the procedural irregularity has not been shown to have enabled the plaintiff to secure a decision that could not have been secured regularly.

7. For these reasons I would refuse leave to appeal.