Ivanhoe Gold Corporation Ltd v Symonds
[1906] HCA 71
•13 November 1906
642 HIGH COURT
[1906.
[H IG H C O U R T OF
A U ST R A L IA .]
IVANHOE GOLD CORPORATION LTD.
Atj'ELL.ants ;
Defendants,
SYMONDS
Respondent.
Plaintiff,
ON A P P E A L FR O H T H E S U P R E M E COU RT
OF
W E S T E R N
A U ST R A L IA .
H. C. OF A. Workers’ Compensation Act ( IT.A.), (1902, N o. 5), sec. 9— D uty to as,sess Compensa
1906. tion under Act on fa ilu re o f action not under A c t— Tim e when assessment m ay
| be dem anded—Election o f remedy fo r in ju ry— Am endm ent o f judgm ent. |
P e r t h ,
To an action in th e Suprem e C ourt of W estern A ustra lia
by a w orkm an
Non. I, 2, 13.
against his employers, owners of a m ine, for dam ages under th e E m ployers’
Griffith C. J.,
Barton and L iability A ct 1894, and the Mines Uegulation A c t 1895, and a t common law ,
Ilij^gins J.J.for in juries sustained by him in the mine, the defendants pleaded by w ay of
estoppel th a t the p lain tiff had made a claim for com pensation under the Workers’ Compensation A ct 1902, and th a t an agreem ent had been m ade be tw een the p lain tiff and the defendants for paym ent of certa in com pensation, which agreem ent had so far been carried out. A t th e tr ia l th e Ju d g e held
th a t th is
plea was proved, and gave judgm ent th a t th e p la in tiff recover
nothing from the defendants.
T his judgm ent was duly passed and entered ,
and an appeal against i t to the F u ll C ourt was dismissed. No application was m ade a t the tr ia l or on the appeal th a t the ju risd iction under sec. 9 of the ll'orkers’ Compensation A c t should be exercised. Subsequently to the appeal
th e defendants moved the Ju d g e of first instance to assess com pensation
and
as to costs, and he made an order accordingly. A n appeal to th e F u ll C ourt
from th is order was allowed.
On appeal to th e H igh C ourt :
Held, (1) th a t sec. 9 of th e Workers' Compensation A c t 1902 applies to all cases in w hich th e p lain tiff’s action fails, provided th a t he is otherw ise en titled to the benefit of th e A ct, and therefore applies to a case w here the successful defence is a confession and avoidance :
4 G.L.U.] OF AUSTRALIA.
643
H . C. OF A.
(2) The motion made for assessm ent of compensation m ight, if necessarj', be trea ted as an application to the C ourt by originating motion to exercise
1906.
its s ta tu to ry jurisdiction by way of supplem ent to its original order which
was incom plete, in which case the C ourt could order the costs aw arded in the IV A S H O K
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original action to be set off against the compensation when assessed :
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L td .
(.3) E very action to which sec. 9 applies includes, in effect, a claim for com pensation under the A ct as an a lternative claim which the C ourt is bound to
V.
S y m o sd s .
dispose of in the action, and, if the original claim fails, the whole action is not
disposed of until th a t a lte rnative claim is disposed of ;
(4) If a t a tr ia l in tlie Suprem e C ourt of an action in which tw o claims are joined, one only is tried , and, w ithou t the fau lt of e ither pa rty , judgm ent is entered on the whole case, the judgm ent can be amended both under O rder X X V riJ ., r. 11, and under the inherent jurisd iction of the Court.
Held, therefore (Higr/im J . dis.senting as to (4)), th a t the order for assess m ent of damages and as to costs was properly made.
Per Higgiiis .1. :—(«) The C ourt has no jurisdiction to a lter a final judgm ent which is not under appeal, a fter it has been passed and entered, unless there has been an accidental slip in the judgm ent as draw n up, or unless the ju d g m ent as drawn up iloes not correctly sta te w hat the C ourt actually decided.
(b) “ A ccidental ” slip does no t include an error w hich is the resu lt of a rle- liberate finding.
Such an error is m a tte r for appeal.
(c) The judgm ent of M cM illan J . was final, and m eant to be final, not in te r locutory ; i t was affirmed, w ithout variation, by the Full C ourt ; i t decided th a t the plaintiff could recover nothing in the action, w hether under the Workers’ Compensation A ct or otherw ise ; and the application to assess dam ages was therefore, wrong.
.ludgm ent of Full C ourt (Symonds v. Icanhoe Gobi Corporation L td ., S W .A .L .R ., 103), reversed.
Ai’I’EAL from tlie Supreme Court of Western Australia.
An accident witliin the meaning of the Workent’ Compensation Act (W.A.) (1!)02, No. 5), happened to tlie plaintiff; notice of injury tvas given under sec. 11 (1) («) of the Act in proper time ; and a claim for compensation served under sec. 11 (1) (6). The appellants admitted their liability, and paid compensation accrued since the date of the injury at the maximum rate fixed by the Act, and continued to pay compensation for some weeks, until a writ was taken out by plaintiff for damages under the Mines Regula tion Act (1895, No. 87), and the Employers’ L iability Act (1894, No. 8), and at common law. A verdict was found for defendants in the action, the Judge holding that the plaintitf had agreed to accept comjiensation under the IFoi’/tei's’ Compensation A c t; and
644 HIGH COURT
[1906.
H. C. OF A. the Full Court upheld the nonsuit on the ground, not of agree-
mint, hut of election (1). For the purposes of the appeal to the
IVANHOK
Full Court the Judge entered formal judgment for the defend
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ants, and gi’anted a stay of proceedings, but did not then assess
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V. compensation under sec. 9 of the iror/reivs’ Compensation Act.
S ym onds.After the Full Court’s decision the defendants moved the Judge
to assess compensation and deduct therefrom the costs of the plaintiff’s abortive action, which he proceeded to do, holding that the application fell within sec. 9. This order was dischai-ged b}' the Full Court on the grounds that the case did not fall within sec. 9, because the Judge did not find that the defendants would have been liable to pay comjjensation under the Workers’ Com pensation Act, and, further, that the application should have been made at the trial and was too late after judgment had been entered and the Judge became functus officio. [^Aymonds v. Ivanhoe Gold Corporation Ltd. (2).]
Villene^ive-Smith and Phillips, for the appellants. The Judge at the trial found that the injury was not one for which the emploj'er was liable in such action, and that there was an agree ment under which the defendants would be liable to pay com- pen.sation under the Act. This finding completely satisfied the requirements of sec. 9, and gave him jurisdiction to assess com pensation. But as an appeal was contemplated to the Full Court the Judge entered up formal judgment, and stayed proceedings pending the appeal. The proceedings having been stayed, the matter of assessment was still penes curiam. It was not necessaiA' that application should at once be made for assessment as soon as the Judge dismi.ssed the action. The cases on the English Act, which decide to that effect, turn upon very different words to those of sec. 9; see CO & 61 Viet. c. 37, sec. 1 (4); Minton- Senhouse and Emery on Accidents to Workmen, pp. 114-115. Sec. 9 was intended to protect the defendants’ claim against the plaintiff for costs of the abortive action; yet if the plaintiff’.s contention is right, the defendants cannot get their costs if the Judge is not allowed to assess compensation when the action is finally defeated, because condition 9 of Schedule II. of the Act
(1) 7 W .A .L .P ., 69.
(2) 8 W .A .L .R ., 103.
4 C.L.R.] OF AUSTRALIA.
645
provides tliat no compensation paid under tlie Act shall be
H. C. OF A.
assigned, taken in execution or attached, nor any set-off allowed
1906.
against it. Unless the defendants’ costs are deducted from the
I v anhoe
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compensation assessed under sec. 9, they cannot be used as a
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.set-off against the plaintiff’s claim by separate action under the
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Act after his action apart from the Act has been defeated.
S ym onds.
If it was a case in which a,ssessnient should have been made, the Judge, if compensation must be at once assessed, should have incorporated an assessment finding in the formal judgment that he then drew up. The appellants are entitled to have that judg ment amended into the proper form, and the application for this purpose cannot be too late ; it has been made in reasonable time, and nothing has intervened to make it unfair. The agreement made between the plaintiff and the defendants did not ou.st the operation of the Act; on the contrary, it brought them within the provisions of the A ct; Jones v. Great Central Raihuay Co. (1); 'Thompson & Sons v. North Eastern Marine Enrjineeriny Co. Ltd. (2); Oliver v. Nautilus Steam Shipping Co. (3). The worker had an option as to how he should proceed in respect of his injuries, and he exercised his option decisivelj' ̂ to proceed under the Worktrs Compensation Act. [They referred to 'Tong v. Great Northern Railway Go. (4); Rouse v. Dixon (5 ) ; Campbell V. Caledonian Railway Go. (0); Isaacson v. New Grand {Clap-
ham Junction), Ltd. (7) ; Neale v. Electric and Ordnance Accessm'ies Co. Ltd. (8).] The Full Court relied upon Edwards V. Godfrey (9), which decided that the application for assessment
must be made at once. But that decision was di.ssented from by the Irish Court of Appeal in Beckley v. Scott cfc Co. (10), and the general opinion of English text-writers is that the reasoning of the latter case is unanswerable.
The judgment entered under sec. 9 is the judgment of assess ment which is to be considered afterwards in the Local Court when it is sought to review or alter or make a lump sum of the compensation assessed. It was not the appellants’ fault that
(1) 3 W.C.C., 50.(6) 36 Sc. L .R ., 699.
(2) 5 W.C.C., 71.(7) (1903), 1 K.B.,539.
(3) (1903), 2 K .B ., 639.(8) 22 T .L .R ., 732.
(4) 86 L.T.. 802.(9) (1899), 2 Q.B., 333.
(5) (1904), 2 K .B ., 628.
(10) (1902), 2 I.R ., 504.
646 HIGH COUKT
[1906.
H.C. OF A. juclo'inent was drawn up in an incomplete form ; that was only a
| 1906. | formality for the purposes of the appeal ; and tlie Judge retained |
I v a n h o e
seisin of the proceedings by ordering a stay. It is therefore tlie
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appellants’ right to demand that the judgment should be com
I.TD.
V. pleted, now that the question of liabilitj’ has been finally decided
S ym onds.
bj’ the Supreme Court.
Northmore and Penny, for the respondent. This is not a case that falls within the ambit of sec. 9. To apply that section, the Judge must find, not that the employer e.scapes liability on an}' ground of defence he may establish, but that the injury by reason of its quality and its surrounding circumstances did not render the employer liable. In the present case the Judge did not make any such finding; he found that the workman’s action was defeated, not by a defence of traverse, but by a defence of confession and avoidance: that is to say, that the employer was liable on causes of action apart from the Worker: ’̂ Compensation Act, but the workman was estojiped from proceed ing thereon by reason of an agreement or election to take com pensation under that Act. An analogous case would arise where the workman’s action, apart from the Act̂ was defeated by defective notices under the Employers’ Liability Act, or by some Statute of Limitations, or by release, or accord and satisfaction. No assessment could under such circumstances be made under sec. 9 ; it must tir.st be found that there was no right of action upon any grounds except those under this Act.
The findings required by sec. 9 must be satisfied before com- pen.sation may be assessed. The words of sec. 9 are clear that “ the employer is not liable in such action ” means “ in that class of action,” and not “ in that particular action”—e.g., a plaintifi under the Employers’ Liability Act must prove negligence of the employer and notice of injury as of the essence of his cause of action. A defence of confession and avoidance is common to all classes of actions ; sec. 9 refers on the other hand to defences peculiar to the quality of the injury sued upon. Further, the assessment mu.st be made at the time of the trial; the Judge was functus officio when he gave his judgment which was upheld on appeal.
4 C.L.U.]
647
OF AUSTRALIA.
The Courts below decided that the plaintiff could not succeed
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1906.
in hi.s action because his election to follow a certain reined}’
estopped liim from any other remedy.
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[Gkiffitu C.J.—Can we go behind the Judge’s finding that it
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was determined in the action that the injury was one for which
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the emplo}'ers were not liable, but that they would have been
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liable to pay compensation under the Act, and seek to discover
the real reasons for which the action failed ?]
Yes, the Court can open up all facts and proceedings: Flitters
attacked by the appellants: Maharajah Molteshur Sing v. Bevgai (jovernment (2); English Judicature Rales 1883, Order XXVIII., r. 11: Errors arising in judgments from accidental omission may at any time be corrected.]
V.
AlLfvey (1).
[Ghikfith C.J.—Then the whole of the proceedings are open
The .same rule is in force here. But the Judge’s omission could not have been in any way accidental. It never was his duty to make an assessment, d'he order as it stands was what he intended to make, witliout any mi.stake, and such an order cannot be altered : Preston Banking Co. v. Allsup & Sons (3).
Tlie resjiondent’s right to recover compen.sation in the local Court is not barred by his not having asked for an assessment under sec. i); that assessment is not a substituted remedy, it is only a protection to the defendants if the action is misconceived; there is no duty on the respondent to resort to sec. !), and if the defendants did not do so they are in no wor.se po.sition than any other per.son who cannot get his costs out of the plaintiff.
V ’dleneave-Smith in reply. If sec. 9 means that an assess ment can only be made if the workman is defeated on a defence of traverse, not of confession and avoidance, the purpose of the Act, to protect the workman from losing all reined} ̂ when beaten in an action wrongly brought, would be nullified. If the respondent’s interpretation of sec. 9 is correct, then this absurd result follows:—If a workman sued on causes of action
(1) L .R . lO C .P ., 29. (2)
7 Moo. Ind . A pp ., 283, a t p. 302.
(3) (1895) 1 Ch., 141.
648 HIGH COUJIT
[1906.
H.C. OF Aapart from the Workers’ Oovqoenstition Act, and did not put
| 1906. | in Ins claim for compensation under that Act in due time, |
IVASHOKand was defeated by a defence not of traverse but of confession
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po r a tio n
and avoidance, he would lose all remedy, because the einplo3’er
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V. w’as not liable in such action. Sec. 9 was really intended to
S ym onds.remedy such a case, where, but for its assessment provisions, the
workman would lose all remedj^
If Edwards v. Godfrey (1) is good law, then its decision that an unsuccessful plaintiff’ under the Employers’ Liability Act cannot revert to the Workers’ Compensation Act, is binding on the respondent, and he must take the compen.sation a.ssessed under sec. 9, or nothing.
It is impossible to require of parties that on judgment being given an assessment should be immediately demanded ; for this would estop the party demanding assessment from any appeal against the judgment, as it would be held to be an election of assessment.
It was not obligatory to ask for assessment until the ^A'oceed- ings pending the appeal were definitely decided. Upon the decision of the Full Court, the requirements of sec. 9 were satisfied, and the Judge was the proper person to make the asse.ssment.
Car. adv. vidt.
The following judgments were read ;—
November 13th. GRIFFITH C.J. This is an appeal from an order of the Full
Court discharging an order made by McMillan J. dated 9th December 1904. By this order, which purports to be made in an action. No. 82 of 1903, between the respondent as plaintiff and the appellants as defendants, it was ordered that the compensa tion due to the plaintiff under the Wcrrkers’ Comjiensation Act 1902 should be assessed as therein specified, and that the defend ants’ costs occasioned by the plaintiff's bringing the action in the Supreme Court instead of taking proceedings under the Act should be deducted from the amount of such assessment.
Sec. 4 of the Workers’ Compensation Act provides that the Act shall apply only to injuries of workers emjiloyed by employers
(1) (1S99)2Q .B ., 33. .̂
4 C.L.R.] OF AUSTRALIA.
649
in certain specified employments. Sec. 5 excepts certain injuries,
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but no (jue.stion now arises upon it.
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Secs. 6' and 7 are as f o l l o w s (6) If, in am̂ employment as
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afore.said, personal injury by accident arising out of and in the
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course of the employment is caused to a worker, his employer
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sliall, subject as hereinafter mentioned, be liable to pay com
.Symonds.
pensation in accordance with the Second Schedule hereto. (7) (1) Nothing herein shall affect any civil liability ot the employer independently of this Act where the injury is caused by the negligence of the employer or of some per.son for whose act or default the employer is responsible. (2) The worker may claim compen.sation under this Act or take the same proceedings as are open to him independently of this Act, but the employer shall not be liable to pay compensation independently of and also under the Act.”
The first paragraph of sec. 8 provides th at:—“ If any question arises as to liability to pay compen.sation under this Act, or as to the amount or duration of such compensation, the (question, if not settled by agreement, shall, subject to the provi.sion of the Second Schedule hereto, be heard and determined by the Local Court of the district within whicli the injuiy happens; and for all such purposes jurisdiction is hereby conferred on such Court.” Sec. 9 is as follows :—“ If, within the time limited by section eleven, an action is brought to recover compensation, independ ently of this Act, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to ]>ay compeirsation under this Act, the Court in which the action is tried shall assess such compensation, and shall deduct therefrom all the costs which have been caused by the plaintiff bringing the action instead of taking proceedings under this Act, and shall enter judgment accordingly.” Sec. 11 provides that proceedings under the Act shall not be maintainable unle.ss notice of the accident is given as soon as practicable after it happens, nor unless the claim for compensa tion is made within six months fi'om the accident, or, in the case of death, within six months from tlie death.
The action was brought in the Supreme Court for damages for negligence, the claim being based (1) on negligence for
650 HIGH COUKT
[1906.
H . C. OF A.
wilieli tlie defendants were liable at common law ; (2) on negli
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gence of a person for whose default they were liable under I v an h oe the Employers Liability Act 1894; and (3) on negligence
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po ra tio n
alleged to be established by non-compliance with the statutory
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V. rules prescribed bj’ sec. 23 of the Mines Reyidation Act 1895.
S y m o n ds .The defendants, besides other defences, pleaded by way of estoppel Griffith C..T.that the plaintiff had made a claim against the defendants under
the Workers’ Compensation Act, and that in pursuance of such claim the plaintiff and defendants had entered into an agi'eement by which the defendants agreed to paĵ a stipulated sum to the plaintiff by waj" of compen.sation under the Act during his incapacity for work, and that the plaintiff had received jiayments under the agreement, which the defendants had always been ready and willing to cany out. At the trial before McMillan J. with a jury in November 1903, the learned Judge at the close of the plaintiffs case directed judgment to be entered for the de fendants on the ground that this plea was proved. He also expressed an opinion, obiter, that tiie action would not lie under the Employers’ Liability Act from want of duo notice of injury under that Act. It was intimated that an appeal would bo made from his decision, and he stayed proceedings on the judgment for the purpose of facilitating the appeal. No application was then made by either party to the learned Judge to exercise the ,juris- diction conferred upon him by sec. 9 of the Act, and it is clear, in my opinion, that he did not apply his mind to the question of the exerci.se of that jurisdiction. The appeal to the Supreme Court came on for hearing in the following August, and by an order, dated 10th October 1904, it was dismissed with costs. The learned Judges who heard the appeal {Parker Acting C.J., and Burnside J.) were of opinion that the defence of estoppel was made out, the plaintiff having elected to take advantage of the li'o?’/i;e?’s’ Compensation Act, and received compensation under it. This, they thought, brought the case within the prohibition of sec. 7, sub-sec. 2, whether there was or was not a binding agree ment between the parties as alleged. No application was then made to the Court to remit the case foi- assessment of compensa tion under sec. 9, but four days afterwards, on 14th October, the defendants gave notice of a motion before McMillan J. to assess
i C.L.R.J OF AUSTRALIA.
651
sucli compensation, T]ie motion was heard on tlie 9tli December,
t!- or A.
when tlie learned Judge made the order of that date already quoted. An appeal to the Full Court from tliis order was allowed
I
vanhoe
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on the ground that the application to asse.ss comjiensation should
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have been made at tlie trial, tliat the judgment of 2nd November
r.
1908 was final, and that the learned Judge had no authority to
S ymonds.
re-open it or supplement it (1).
Burnside J. was also of opinion
Griffith C.J.
that the learned Judge had not decided at the trial that the injury
was one for which the plaintiff could not recover in the action.
Workers Gunvpensation Act, because it was not de termined, within the meaning of that section, that the injury was “ one for which the employer is not liable in such action but that he would have been liable to pay compensation under this Act.” (2) 'I’hat the application was made too late, i.e., after final judgment in the action.
This appeal is from that order. namely :—(1) That the case does not fall within the terms of sec. 9 of the
It is clear that the Supreme Court, before as.sessing compen sation under sec. 9, is bound to ascertain whether the nece.ssary statutory conditions preliminai-y to the exercise of that jurisdic tion exist. And, if the second objection is not fatal, the decision of McMilhni J., who must be taken to have held that they did exist, and that of the Full Court, whether they agreed with that view or not, are both open to review on this appeal. For on an appeal from a final judgment any previous judgment or order of an interlocutoiy nature, %.e., as 1 understand it, a judgment or order which does not finally dispose of the questions raised for decision in the action is o]ien to review by a Court of final appeal : Maharajah Moheshar Sing v. Bengal Government (2).
For the respondent it is contended that the necessary con ditions do not exist unless it has been formally determined in the action that the action does not lie by reason of the nature of the injury itself or the circumstances under which it happened ; that is, that the words “ one for which ” &c. refer to the nature and (piality of the cause of action, and that, if the defendants succeed on a defence by way of confession and avoidance, the section has
(1) 8 W .A .L .R ., lO.S.
(-2) 7 Moo. Iiid. A pp., 288.
652 HIGH COURT
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H.0. OF A.no application. Thi.s construction involve.s two conscfpience.s of
| 1906. | a remarkable character :—(1) That, althong-li the plaintitf fails on |
I v anhoe a defence by way of confession and avoidance, it is necessary
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nevertheless for the Court to proceed to determine whether, hut
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V. for that defence, he would liave succeeded in tlie fiction, and (2)
S y jio n d s .that if a plaintitf is defeated by such a defence, and has failed to
make a claim within the time prescribed by sec. 11, he is
Griffith C.J.
absolutely without remedy.
The appellants contended, on the otlier hand, that tlie m e a n in g of sec. 9 is that, if the jilaintitf fails, for whatever cause, to main tain his action, he shall nevertheless be entitled to compensation under the Act provided that he has brouglit his action ivithin six months, the time limited for making a claim under the A ct; and that on the other hand the employer shall be iiidemnitied against the costs to which he has been put by the plaintiff’s mistake. I think the words to be supplied in the elliptical phrase “ would have been liable to pay compensation ” are “ if proper notice and claim had been givmn and made under sec. 11.”
In my opinion, the latter con.struction is the more natural one, and gives a fuller effect to the apparent intention of the legisla ture that a claim shall not be defeated by a mere error in pro cedure. It further avoids the extraordinary anomaly of requir ing a Court to determine a question which has become immaterial except for the purpose of ascertaining whether compensation (the .scale of which is fixed by the Act itself) is to be computed in one Court or another. The determination of such an abstract point might involve difficult questions of law and lead to protracted litigation, which it is certainly not likely that the legislature intended to require for so idle a purpose. I am therefore of opinion that sec. 9 applies in all cases in whicli the plaintiff’s action fails, provided that he is otherwise entitled to the benefits of the Act.
I pass to the second objection, the validity of which, in my opinion, depends upon the construction to be placed on the language of sec. 9 regarded from a different point of view from that with which I have been dealing. The words of the section are imperative; “ the Court in which the action is tried shall assess such compensation,” i.e., that Court, and not the Local
4 C.L.KJ OF AUSTRALIA.
e.'iS
Coui’t, 8hall do so. The ettect is tliat the jurisdiction of the Local
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Court in such cases is ousted, and, unless the Court first selected
liy the plaintiff can give relief, he is without remedy (.see Pasmore
I VAN HOF. G old Co k -
V. Osu'uldtvjistle Urban District Council (1)), I think that it was
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probably contemplated that the application to assess compensa
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tion should he made in the same action, but I do not think this
Sym ond .s.
an e,ssential condition. When a Supreme Court is required to
CritfiOi C.J.
exercise a new jurisdiction, the obligation to do so cannot be avoided by mere technical rules of practice devised alio intuitu. I think, therefore, that, if neces.sary, the order of 9th December should he treated as made on an application to the Court b}' originating motion to exercise its statutory jurisdiction by way of supplement to its original judgment which was incomplete. There would be no difficulty in such a case in ordering the costs payable under one judgment to be set off against a sum payable under another judgment in the .same Court. The Rules of this Court make expre.ss provision for such a case ; Order XLYI.,r. 8. As, however, the point has been elaborately argued on the narrower view' that the application must be made in the original action, I will deal with it on that basi.s. So regarded, it follows that in all cases to w'hich sec. 9 applies the Court is expressl}' directed {i.e., at the instance of any party entitled to invoke its jurisdiction) to proceed to assess compensation.
It also follow's that every such action includes in eti'ect, or carries in (jremio, a claiiit for compen.sation under the Act as an alternative claim wdiich the Court is reijuired to dispose of in the action, and further, that, if the original claim fails, the whole action is not disposed of until the alternative claim has been dealt with.
If the Court chosen by the plaintiff is an inferior Court and inadvertently gives judgment, in form final, without disposing of the alternative claim, and persists in its error, it is clear that a niandamns would lie to it to enter an adjournment and to pro ceed to assess compensation. In the Supreme Court the remedy is not by mandamus. Yet there must be some remedy, which must be either by way of appeal or by application to the Court itself to correct its error, under the inherent power which every
(1) {18!)8), A.C., 3S7.
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H. C. OF A.
Court has to control and correct its records, or else under the
1906. express provisions of Order XXYIIL, r. 11. If, on the otlier hand,
I vanHOF
the Court having proceeded to entertain the implied claim for
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compensation has dismissed it, the remedy is by way of appeal.
Lt d .What then are the facts in this case ? Did McMillan J. at the SVMONDS.
V.
original trial in fact entertain and dismiss the im|jlied claim to
have the compensation asse.ssed I And if he did .so, did the Full Court on appeal affirm that dismissal ? To my mind it is clear beyond controversy that McMillan J. did not apply his mind to this aspect of the matter at all. It is true that he seems to have thought that the plaintitf had obtained from the defendants a valid agreement which would give him eipiivalent benefits, in which view he may have been right or wi'ong. But I think that his order of 2nd November 1908 ought to be regarded, and indeed coirstrued, if the law will allow us to do so, as what it was in fact, i.e. a dismissal of the plaintiff’s claim as set out in his pleadings.
Griffith C.J.
If, on the other hand, we are at liberty to regard the truth as to the judgment of the Full Court, which in form merely dis missed the appeal, butAvhich was in law a rehearing, it is abund antly clear that they did not apply their minds to the (piestion.
The motion to MciMillan J. following on their decision should, perhaps, have formally included an application to amend the judgment in the action by limiting it to the causes of action set out in the statement of claim, with a reservation of the (pie.stion of a.sse.ssment of compensation under the Statute. But this is a mere formal omission. In .substance the point was involved in the motion actually made, which was based on the assumption that the order was incomplete.
I agree, as I have said, that, if McMillan J. or the Full Court have applied their minds to the point and decided it, the only remedy is by way of appeal. Fictions of law have in their time done good work. But I am not di.sposed to invent a new one, and to hold that a Court is bound to pretend to believe that something happened in the course of proceedings before it, when it knows that it did not happen. Is there, then, any authority to compel us to take this course, and to invent a fiction not for the purpo.se of doing but of denying justice ?
4 C.L.U.] OF AUSTRALIA.
655
In Fritz v. Hobson (1) an application was made to F'rj/ J- to
H. C. OF A.
1906.
amend a final judginent, after it had been formally passed and
entered, by including a direction as to the costs of an inter-
Iv a n h o e G old C o r -
locutoiy motion which had been adjourned to the trial. It was
FOKATIO.N
L td .
objected that the application was too late. The learned Judge
V.
thought that he had jurisdiction to make the order asked for,
•SV.MONDS.
either under the liberty to apply reserved by implication in the
Gritfith C.J.
order on the motion, or under the liberty expressly reserved in the judgment. He added (2);—“ There is another ground on which, in my opinion, I have juri.sdiction to make the order asked for, viz., under Order 41a.* In my view the error in the present case has arisen from the accidental omi.s.sion of counsel to call my attention to the adjourned motion when I pronounced my judg ment, an omission very natural at a time when counsel’s attention was directed to matters of greater importance.”
In 7uy opinion, if, at the trial of an action in which two claims are joined, one only is tried, and without the fault of either party judgment is entered on the whole case, it can be amended both under this rule and i;nder the inherent power of the Court. This doctrine applies a fortiori when a Statute expressly requires both causes of action to be disposed of. But, apart from this ex press rule, the point is, in my opinion, concluded by decisions of the highest authority.
In In rcSvnre; Mellov v. Sivire (3) an a])plication was made to the Court of Appeal to vary a judgment which had been pa.ssed and entered. Cotton L.J. said (4):—“ What we intended to decide, and did decide, was simply the construction of the will, which, of cour.se, would apply to that which the testator had at the time of his death, and anything which is to be treated as if it had been his at the time of his death. If there is any question as to what is to be so treated we did not decide it. I doubt whether tlm order as passed and entered could be construed as deciding any of those questions, but as it is considered to be doubtful whether it does not, we ought not, in mj' opinion, to allow this recoi'd to stand in such a form as that it may be contended that
(1) 14 Ch. D., 542.(.1) 30 O). D ., 2.39.
(2) 14 Ch. D ., 542, a t p. 561.
(4) 30 Cli. U., 239, a t p. 244.
656 HIGH COURT
[1906,
H. C. OF A. it; has decided (juestions wliich wei'e never before us,
and which
we never meant to decide.”
I vanhoe
Lindley L.J. said (1);—“ This case has raised a discussion of
Gold Cor
pora iiox
some importance, because it was contended that wlien once the
Ltd.
V. order of the Court wa,s passed and entered it could not be put
Symonds,right, even although as drawn it did not express the order as
intended to be made. I protest against any such notion.
There
Griffith C.J.
is no such magic in passing’ and entering an order as to deprive the Coui't of jurisdiction to make its own records tine, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say tliat the party aggrieved cannot come here to have the records set right, but must go to the House of Lords by way of appeal. According to the old practice there was no difficulty, because the ordinary practice in the Chancery Division was, that after a decree or order had been passed and entered, any error could be put right by an application to rehear, unless the order had been inrolled. After inrolment the Court had no power over its decree. But even then there was power to vacate the inrolment on proper grounds, and when that had been done the Court again had power over its own decree. Now, rehearing has been abolished, and inrolment has become obsolete, but does it follow from that that the Coui’t cannot correct a blunder of the kind I have assumed ? I maintain that it has such a power, and I am glad to find that Lord Penzance and the House of Lords have asserted it. It appears to me, therefore, that if it is once made out that the order, whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.”
Bowen L.J., said (2):—“ But .supjiose the proper practice has not been followed, is it a consequence of that that this Court has no jurisdiction over the matter to set wrong right ? I think the true view is, as stated by the Lord Justice Cotton, that every Court has inherent power over its own records as long as those records are within its power, and that it can set right any mis take in them. It seems to me that it would be perfectly shock ing if the Court could not rectify an error which is really the
(1) .30 Cl). D., 239, a t p. 246.
(2) .30 Cl). 1)., 239, a t p. 247.
i C.L.K.]
657
OF AUSTRALIA.
error of its own minister. An order, as it seems to me, even
H. C. OF A.
wlien passed and entered, may be amended by the Court so as to
1906.
carry out the intention and express the meaning of the Court at
I vanhoe U oLD C o r
the time wlien the order was made, provided the amendment be
poration
made without injustice or oii terms which preclude injustice.
L t d .
V.
The Lord Justice Lindley has pointed out that this power which
SvMONDS.
we are now asserting is a power which was always possessed by
Griffith C.J.
the Courts of Chancery under the old system. On that point I say nothing. But I venture to add this, that it is a power which has been exercised for hundreds of years by the Common Law Courts, and it would indeed be strange if the power were found to have disappeared when the Court of Appeal was created by the Judicature Act. Lord Penzance, speaking as a common law lawyer, was well justified, as one would expect from a Judge of his great distinction, in saying that at common law it was alwa^'s understood that the Court had the power to make these corrections. When there was any mistake which could be ascribed to the officers of the Court, judgments at common law could always be amended in the term, and in some cases after the term in which they were pronounced.
“ It seems to me that there is inherent power in this Court to do what is asked. I do not think it is necessary to fall back upon the rules, though I think rules might be discovered which would be found to assert the existence of this power in the Court.”
The case referred to by Lindley and Bowen L.JJ. is Laivrie v. Ijees (1) in which Lord Penzance, moving the judgment of the House of Lords, said :—“ The motion which I shall make to the House will be that the judgment of the Court below be affirmed with costs, and that that be done without prejudice to anj’ ajjplication which the appellant may be advised to make to the Court below to vary this order for the purpose of making its meaning more plain. 1 cannot doubt that under the original powers of the Court, cjuite independent of an}̂ order that is made undei' the Judicature Act, every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court—to vary them in such a way as to carry out
(1) 7 App. Ciis., 19, a t p. 34.
VOL. IV.
658 HIGH COUKT
[1906.
H. G. OF A. its own meaning, and where language has been used whicli is
doubtful to make it plain. I think that power is inherent in
IVASUOE every Court. Speaking of the Courts with which I have been
G old
Co r
po ra tio n
more familiar all my life, the Common Law Courts, I have no
L t d .
V. doubt that that can be done, and I should liave no doubt that
S ymonds.it could also be done by the Court of Chancery. Moreover,
Griffith C.J.having regard to the orders made under the Judicature Act, I
should myself have thought that it would very well have come under those orders. I recommend your Lordships not to make any variation of this order, but to alhrm it as it stands without prejudice to any such application to the Court below.” In Hatton V. H arris (1) an application was made to correct a decree pronounced in 1853. Lord Watson said (2):—“ I can hardly conceive that the learned Judge who made the decree could have had any one of these things in his contemplation. A perusal of the decree itself satisfies me that he never dealt or meant to deal with any question of extending interest, or of varying the rights of creditors, and that he intended his decree to be drawn up in conformity with the legal rights of the creditors as these appeared in the report of the Master and relative schedules.
“ When an error of that kind has been committed, it is always within the competency of the Court, if nothing has inter\'ened which would render it inexpedient or ineijuitable to do so, to cor rect the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce. The correction ought to be made upon motion to that effect, and is not matter either for appeal or for rehearing. The law upon this point was fully and satisfactorily discussed by the late Lord Justice Cotton in Mdlor v. Sivire (3), an authority which appears to me fully to bear out the proposition I have just stated.”
Finally, in Milson v. Carter (4), Lord Hohhouse, delivering the opinion of the Privy Council, said :—“ Their Lordships do not doubt that the Court has power at any time to correct an error in a decree or order arising from a slip or accidental omission, whether there is or is not a general order to that effect. A recent instance of the exercise of this power occurred in a case of
(1) (1892) A .C., 547.(3) 30 Ch. D ., 239.
(2) (1892) A .C., 547, a t p. 560.
(4) (1893) A.C., 638, a t p. 640.
4 C.L.R.] OF AUSTRALIA.
659
Hatton V. Harrits (1) before the House of Lords, where an error
H. C. OF A.
1906.
arising from an a’ccidental omission was corrected after the lapse
of forty years.
The House of Lords in that case approved the
I vanhoe Gold Cor
views expressed by the Court of Appeal in Mellov v. Sivire (2).”
poration'
Ltd.
I am, therefore, of opinion that the Supreme Court had power
V.
to correct the original judgment as drawn up, and that Me3Iillan
SvMONDS.
J. was therefore right in proceeding to assess the compensation.
Griffith C.J.
If, however, the objection were otherwise fatal, leave should be given to appeal from the order of the Full Coui-t affirming the judgment of November 1908. But the necessity as well as the propriety of this course was denied in Laivrie v. Lees (3) and in Hatton v. Harris (1).
The only answer that can be made to such an application is that the apj)licant had by conduct or by laches lo.st his right. No such suggestion can be made in this case. I am, therefore, of opinion that the order appealed from should be discharged, and the order of McMillan J. restored.
B a r t o n J.
I am of the same opinion, though on one point on
slightly different grounds. I will first discu.ss the argument that the words in sec. 9 ;—“ The injury is one for which the employer is not liable in such action,” apply solely to cases in which the kind of injury for which the action is brought is not actionable ; that where the plaintitf would be entitled to succeed if the matter rested solely upon tlie injury and the surrounding circumstances, >such as negligence, but there is a defence by way of confession and avoidance, founded on facts apart from the injury, and judgment is given for the defendant, the case does not come within the words of the section so as to entitle the Court after wards to assess compensation, if, in its opinion, the defendant would have been liable to pay compensation under the Woi'kers’ Compensation Act. I am not able to agree with that argument, and for this reason, as I put it during the progress of the case. It is true that the words;—“ The injury is one for which the employer is not liable in such action,” are open to two con- .structions. It is true also that the construction for which Mr.
(1) (1892) A.C., 547.
(2) 30 Ch. D ., 239.
(3) 7 App. C as., 19.
660 HIGH COURT
[1906.
H. C. OF A.
Nortliniore contended is one (juite within tlie words of tlie
1906. section. Whether it should be adopted or not, it seems to me,
I v an h oe
depends on the consideration, that, where you find an ambiguity
G old C ok-
PORATION
in an Act and have a difficulty in solvdng it by the context, you
L t d .
V. have to decide which of the constructions open to j’ou is the
S y m onds.more reasonable, and choose that one. I have not been able
to find any reason why the legislature should be held to have limited its gift in the way contended for. If the liability were thus restricted, then it seems to me that the remedial intention of the legislature, as evidenced in the whole purview of the Act, would not be fulfilled. It is an Act which (although it contains some sections of repeal) nevertheless very largely extends the rights and remedies of the worker. In proceedings taken under the Act a number of the defences which used to beset him, some technical, some substantial, are cut away, and, upon certain observances by way of notice and the time of bringing his suit, the Act enables him to claim those rights, subject to certain limits as to the scale of compensation. Looking at the whole scope of the Act, its purpose is to enable the worker, in spite of difficulties, to obtain those rights so long as he lias adopted the procedure laid down. Tlien we have sec. 0, designed, as I think, to secure him compensation assessed under the Act wliere he would have succeeded by taking advantage of it instead of mistakenly pursuing another remedy. If the con.struction were limited to the degree contended for by Mr. Northmore, we should have this result. Suppose a workman brings an action to recover compensation independently of the Act, thinking, rightly or wrongly, that he can do better by proceeding under the Employers’ Liability Act or by an action at common law for negligence. It is alleged against liim and proved that he has agreed with his employer, or lias elected—perhaps only in a technical sen.se—to take his amends under the Workers’ Compen sation Act instead of bĵ the independent action he has brought. Then he is to be precluded from claiming assessment under the Workers’ Compensation A ct; while if he had been defeated by the application of the maxim volenti non j i t injuria, or the doctrine of common emiiloyment, he would nevertheless have been entitled to claim under the Workers’ Compensation Act. I cannot think that
Barton J.
4 C.L.H.] OF AUSTRALIA.
661
tlie legislature intended such a limitation, nor can I see why we
H. C. OF A.
should say that such a circumstance as his having apparently
1906.
jjreferi'ed compensation under the Act debars the Court in which
I vanhoe G old C o r
he has proceeded from assessing such compensation, notwith
poration
standing the failure of the independent action. The section itself
L t d .
V.
certainly gives one no reason why the question should be settled
S ym onds.
by inquiring whether the defence is one of the old common law
Barton J.
defences, or whether it is one that arises under this Act in respect of the independent action, and I hnd no words in the rest of the Act which show that such a criterion ever presented itself to the legislature. Between the two constructions, then, I adopt that which appears to be the more reasonable, and on that part of the section I think that the argument of IMr. Northmore cannot succeed. As to the other (]uestion, that is to say, the (pie.stion whether McMillan J. was right in assessing compensation when he did so, I have carefully considered the rea.sons which His Honor gave for his judgment at the trial, and have come to the conclusion that in then deciding that there had been an agreement between the plaintitt (now respondent) and the defendant com pany (now appellants) that the former should receive compensa tion under the Worhertt Compenmtion Act, the learned Judge was expre.ssing (1) the opinion that the action did not lie, and (2) the further opinion that the appellant company would not have been liable to pay compensation under the Act, for the reason that the agreement had ousted the juri.sdiction of the Court under sec. 8, and also his own jurisdiction to assess compensation under sec. 9. If I am right in this conclusion, then the judgment entered is so far a correct record of the “ determination ” of the Court. On that determination and at that stage it was not for McMillan J. to assess compensation. The respondent then appealed to the Full Court by way of new trial motion, and his appeal was defeated; the Court ordering “that the judgment obtained in this action should stand and the said motion for a new trial should be dismissed.” But the Court upheld the decision on grounds different from those which had commended themselves to McMillan J. They did not think it nece.ssary to decide whether there had or had not been an agreement between the parties. Seeing that the respondent had, after due notice and
662 HIGH COURT
[1906.
| H. | C. OF A.within the pre.sci'ibed time, “ claimed compensation pajmble under | |
|
I v a n h oe personal injury sustained, and that he had received, and given
G old
C o r
po r a tio n
receipts for, a number of payments at the rate of half the weekly
L t d .
V. payments he should have earned,” being the maximum rate
S y m onds.recoverable under the Act, their Honors held that, being put to Barton J.an election by sec. 7, he had made his election to take compensa
tion under the Act, and that therefore “ the injmy was one for which the employer was not liable ” in an action independentlj'
of the Act.
•
But the decision that the respondent had made his election was a decision tliat tlie action for negligence must fail because the only liabilit}^ of the appellant companj ̂ was to pay compensation under the Act. If there was no agreement, and their Honors declined to say that there was one, then the claim under the Act was not barred. Consequently their order was in form obviously incorrect and defective. Either they did not apply their minds to .sec. 9 at all, which .should not be lightly inferred, or they mu.st have determined under that section (1) that “the injury was one for which the employer was not liable ” in the action, and (2) that he would have been liable to pay compensation under the Act. And as this was the necessary meaning of their determin ation, either they should have embodied it in their order or they should afterwards have held it to be their meaning.
Now I have already said that, in my view, McMilhm J. decided that there was an agreement which would bar both the action for negligence and the claim for compen.sation. Having come to tliat decision, how could lie possibly have a.ssessed com pen.sation at that stage—the close of the trial ? Up to then the Court had not determined that the employer “ would have been liable to paj’ compensation under the Act.” It was not entitled to assess such compensation until there was such a determination. Therefore it was only when the Full Court had decided that tlie re.spondent had elected his remedy, and that therefore his action for negligence mu.st fail, that it became apparent that there was no pos.sible defence to hi.s still subsisting claim for compen.sation under the Act, and it was not until then that it became the duty of “ the Court in which the action was tried ” to assess the com-
i C.L.U.l OF AUSTRALIA.
6 6 3
pensation.
Now, it is well to remember at this stage that this H . C. oe a .
judgment of the Full Court has not been appealed from by either party. The present appeal is from a subsequent decision of the
I
vanhoe
G old C o r
Full Court which arose thus :—In view of the words in sec. 9,
po ra tio n
" the Court in which the action is tried shall assess such compen
Lt d .
V.
sation,” which, as they occur in this Act, are not dependent on
SVMONDS.
the exercise by the plaintiff of an option, as in the English Act, it
Barton J.
was equally open to either party to apply for asses.sment after the judgment of the Full Court on the first appeal. The companj" applied to the Court in which the action was tried to assess that compensation. McMillan J., after hearing argument, interpreted the rea.soning of the Full Court correctly, and as.sessed compensa tion on the basis of the payments which the plaintiff had already received, the basis laid down by the Second Schedule of the Workers’ Compensation Act. From the compensation so arrived at His Honor deducted the company’s costs of the action in which Symonds had failed, and ordered judgment to be entered for the balance. Again there was an appeal to the Full Court, and the Full Court held that there could be only one judgment, that the application to assess was too late, and that at that stage of the proceedings, judgment having been entered up before the agreement, the appellant company were barred from having compen.sation asse.ssed. As so often happens in Courts of Justice, the present figlit really, though not outwardly, turns largely on a (luestion of costs, as a reference to the concluding -words of sec. 9 will suggest. But tlie question for this Court is much more important than that. A right is given to the plaintiff under sec. 9. If we decide that in such circumstances compensa tion may not be asse.ssed, we shall be going far to frustrate the efforts of tlie legislature to pi’event a circuity of action the continuance of wdiich may be very harassing to the class for whom the protection of this Act is designed. Now, the first thing that strikes one in relation to the judgment on the second appeal is, as I have put it, that the Full Court, upon the judg ment on tlie first appeal, either had not applied their minds to the operation of sec. 9, or must be taken to have decided, though they were determining an appeal wdiich applied .solely to the action for negligence, that the claim for compen.sation was still
G64 HIGH COURT
[1906.
H. C. of a . open. Whichever way we take that, it seems to me there is ec|ual
chance of justice being defeated. I shall not traverse the de
I v a n h o e cisions to which His Honor lias referred—which I liave carefully
G old
Co r
po ra tio n
considered—but I point to this, that the Court in which the
Lt d .
V. action is tried is bound in my judgment to assess the compensa
S y m o n ds .tion whichever party applies for it. It is not, as in the case of Barton J.Edivards Y. Godfrey (1), neces.sary under this Act that the claim
for compensation should be made immediately after the decision in the action. That decision of Edivards v. Godfrey (1) was, I think, founded upon words which are not contained in this Act, “ shall proceed to assess such compensation.” Therefore, in my view, it is not necessary that the application to assess compensa tion should be made immediately upon the judgment in the Court of first instance. In fact, if it were necessary here, this curious result would follow, that where the Judge decides that an action fails, not only as an action independent of the Act, but also as a claim under the Act, then if he is right as to the first, but wrong as to the second, compensation cannot be assessed at all, even if he is set right on appeal; if it must be asses.sed at the trial or not at all, then the right given under sec. 9 is absolutely taken away in such a case. That was never the meaning of the legis lature. But if it is not ncces.sary in law to assess the compensa tion immediately upon the decision of the Court of first instance, then it is open to assess it later on. At what time then is the right to assess compensation barred ? Is it barred even when the Court of first instance—“ the Court in which the action was tried ”—has been applied to as soon as possible, after it has been set right on appeal ? I am clearly of opinion that it is not .so barred, and that the Act must be observed. But it is said there was a judgment standing in the way because the judgment of the Court of first instance (arrived at no doubt upon grounds which barred both the independent action and the claim for compensation) was allowed to stand by the Court of Apjieal on grounds which only applied to the written statement of claim and not to the right of recovery given (notwithstanding that statement of claim) by .sec. 9. Technically there was one judg ment; technically also—if we look at sec. 9—the time for enter-
(1) (1899) 2 Q.B., 3.33.
4 C.L.U.J OF AUSTRALIA.
665
ing final judgment is after the assessment of compensation and not
H. C. OF A.
1906.
before it.
A hyper-teclinical con.struction is likely to defeat the
Act in every way, but as the Court has a .statutory duty to assess
I v an h oe G old C o r
compensation, I am of opinion that any order drawn up which, in
poration
form, would prevent the performance of that statutory duty must
L td .
V.
not be allowed to .stand in the way of the doing of complete justice
S ym ond .s.
between the parties by a Court of final resort. AVhere the Act
Barton J.
•says that after a determination—-whether you call it a judgment or not, or whether you draw up a judgment at a stage when you ought not to have drawn it up in the Court of first resort—there is still nevertheless a right of compensation, then the proceedings in the whole action are not complete until assessment is made. It seems to me that the first judgment, even if drawn up, is in the position of an interlocutory order within the meaning of the decision in the case of Maluirojah Moheshur Sing v. Bengal Government (1), cited by His Honor, and therefore that that order could be corrected. Again, on the authorities cited, the Court, in my judgment, on the second appeal, ought itself to have cor rected its order made on the first appeal. It had ample authority to do so, if there is any meaning in the cases which His Honor has just cited. But if the Court ought to have .so corrected its order that, notwithstanding the fact of its having been drawn up, the obligation of the Court to a.ssess compensation would be dis charged, then this Court has a further right under sec. 37 of the Judiciary Act 1903, which enacts that “ The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance.” Now, “ in the first instance,” I take it, for the purpose of this section, means in the order appealed from. It was, in my opinion, the duty of the Full Court, on appeal, to correct its own prior order if that course became necessary for the purpose of seeing that justice was done, instead of allowing the second appeal upon what seem to me the highly technical grounds on which it was allowed. It was open to them to choose betAveen the allowance of that technicality and the making of a corrective order within an established jurisdic tion. If the latter ought to have been done—and I am of opinion
(1) 7 Moo. Iiul. A pp., 283.
666
[1906.
HIGH COURT
H. C. OF A. it ouo-ht—then under sec. 37 of ih& Judiciary Act 1903 it isopen to us now to give such judgment, and so correct the proceedings
I v an h oe that the technicality may fail, and that tlie record of tlie Court
G old
C o r
po ra tio n may so stand that final justice may be done by the Court of
L t d .
Appeal. For these reasons 1 agree with the learned Chief Justice.
V.
Symonds.
H iggins J.
I regret that I cannot see this matter in the light
Barton J.
in which my learned colleagues see it. My only satisfaction is in feeling that the circumstances are so complicated and ex ceptional that the same precise difficulty is not likely to occur again. This is an appeal from a decision of the Full Court on a motion by a defendant employer to assess compensation for an injury resulting to an employe from an accident. It is the irony of this unfortunate litigation that the employer seeks to have damages assessed against himself, and that the employe opposes the attempt. I understand that the employer’s object is to get a deduction from the compensation (by virtue of sec. 9 of the Workers Compensation Act 1902), of the extra costs caused by the employe bringing an ordinary action in the Supreme Court instead of instituting proceedings in the Local Court under sec. 8. Apparently, the employe believes that he can even now pro ceed in the Local Court under sec. 8, and that the costs of the action in which he has failed cannot be set off against the com pensation to be awarded. The struggle on this motion raises, to my mind, certain points of fundamental importance to the administration of justice ; and I am strongly opposed to any order being made tending to weaken that certainty and finality, as between litigants, which pertains to the written judgments of a Court, as passed and entered or otherwise completed, and as to Avhich neither party has appealed.
An ordinarj’ action was brought by Symonds against the Ivanhoe company, his employers, for injuries received in the course of his employment; and the trial took place before McMillam J. with a jury. On the close of the plaintiffs case, the learned Judge gave an ordinary judgment for the defendants with costs. This judgment was final in form: “ That the plaintiff recover nothing against the defendants and if one may look at the reasons given bĵ the Judge, it was meant to be final
4 C.L.R.] OF AUSTRALIA.
667
and conclusive for all purposes—subject to the usual right of H- C- or
appeal. He meant to finally dispose of the case, so far as he
■was concerned. McMillan J. found that the parties had made
IVANHOE OoLi) C o r
an agreement for an amount to be paid to the plaintiff, and that
po ra tio n
payments had been made under the agreement; and such an
Lto.
V.
agreement would be an effective answer to any claim which the
Symonds.
jjlaintiff might make, whether at common law, or under the Em
ITigffins J.
ployers’ Liability Act, or under the Workers’ Comjievsation Act. This judgment was duly drawn up, and passed and entered. If anything further ought to have been done, the decision was wrong, and the plaintiff had a right of appeal. The Judge had determined that the agreement rendered it unnecessary for him to inquire whether the conditions prescribed in sec. 9 of the Act had been fulfilled. If he was wrong in this determination, the remedy was appeal. The plaintiff moved the Full Court for a new trial; and the Full Court ordered that the judgment should stand, and that the motion for a new trial should be dismissed. 9’he order of the Full Court is dated the 10th October 1904; and no appeal has been made therefrom to the High Court. The judgment of McMillan J. is therefore binding on both parties, absolutely. I need hardly qualify this statement by referring to the possibility of getting special leave to appeal from the judgment to the High Court notwithstanding that the prescribed time for such an appeal has elapsed ; or to the possibility of an action of review, on the ground of a mistake or miscarriage. There has not been any application for special leave to appeal from the judgment; and we have not to deal with anj' action of review. Such an application, or such an action, if successful, could reopen the whole judgment on its merits, and would enable the plaintiff to impugn the adverse rulings of McMillan J., and of the Full Court. The defendant companj- prefers to stand upon its rights under sec. 9 of the Workers’ Compensation Act.
Before passing to the consideration of this section, I ought to say that according to the report of the application to the Full Court for a new trial (1), the Judges seem to have affirmed the judgment on the ground, not that an agreement for compensation had been proved, but that by giving notice of accident and
(1) 7 W .A. L.R ., 69.
668
[1906.
HIGH COURT
H.C. OF A.making a claim under sec. 11 of the TForfo/w’ GompeuKuiion Act,
| 1906. | and by receiving payments from the employer, the plaintiff had |
Iv a n HOE elected to take compensation under the Act, and was consecpiently
G old
Co r -
FOKATION
precluded from all other remedy. If we are on the present
L t d .
V. application to take these grounds, as well as the written order on
iSVMONDS.appeal, into consideration, I can only say that the Full Court lligffillS J.ought to have been asked to vary the judgment so as to meet their
view of the position, and so as to permit of compensation being assessed. But the judgment of McMillan J., was allowed to -stand without variation—“ that the plaintiff recover nothing against the defendants.” The order of the Full Court was duly passed and entered or otherwise completed ; but, although the defendants allowed the judgment and the order of the Full Court to stand, they promptly applied to McMillan J. to assess the compensation.
Now, sec. 9 is as follows. [His Honor read the section and continued.] The learned Judge did assess the compensation, on the motion of the defendants, but on appeal to the Full Court from his order, his order of assessment was discharged, on the grounds (l)th a t sec. 9 contemplates one judgment, and one only, and there is no power to assess damages on application after judgment; and (2) that it had not been determined in the action that the injury is one for which the employer is not liable in such actions, but that he would have been liable to pay compensation under the Act. If it were necessary to determine these points, I should be inclined to think tliat the Full Court is riglit. To my mind, it is perfectly clear that the legislature intended to permit one judgment only in such action, and to prevent the expense which would be occasioned by successive legal pro ceedings. The machinery provided by the legislature in the sec tion is definite and rigid ; and, as Burnside J. well says, it is much better in construing a piece of legislation of this kind to follow the strict wording of the Act tliau to follow a method of procedure which to one’s own mind may seem very desirable, but which the legislature has not thought fit to provide. But I prefer to base my decision on this ground—that the judg ment of the primary Judge dated the 2nd November 1903, and affirmed by the Full Court on the 10th October 1904, lias
4 C.L.K.] OF AUSTRALIA.
669
long .since become binding on tbe parties to the litigation, and no
H. C. OF A.
1906.
attempt is made now to impeach it.
The defendants know that,
if it were set aside, it must be set aside as a whole ; and this
I v anhoe G old C o r -
result the defendants probably do not desire. I take the
PORATIO-V
judgment to mean, on its face, that the plaintiff is not entitled to
L t d .
r.
I'ecover anything in the action, wliether by way of ordinary
H n w y v s .
damages for negligence, or by way of compensation under the
Hiy:ĝ ins J.
Workers Compensation Act. I cannot see what juri.sdiction this Court has, on an appeal from an order on a motion to assess compensation, to alter a previous judgment, as to which neither party has appealed to this Court. We are not, in my opinion, at liberty on the present application to que.stion the decision em bodied in the previous judgment; Attorney-General v. Tomline (1). This judgment of the 2nd November 1903 was not a mere interlocutory order, such as would bring tlie case within Order LVIIL, r. 14. The Supreme Court itself has inherent power to rectify the judgment, even tliougli it has been pa.ssed and entered, if it does not truly represent the decision which the Court pronounced. But it cannot be pretended tliat the Supreme Court, speaking through McMillan J., did not pronounce to the effect that the plaintiff was not entitled to recover anything in this action, or that the Full Court did not pronounce to the effect that the judgment should stand. The Supreme Court has power also, on motion or summons, to correct clerical mistakes in judgments, or errors arising therein from any accidental slip or omission (Order XXVIII., r. 11). But this rule does not, in my opinion, apply to this case. The learned Judge deliberate!}’ came to the conclusion that there was an agreement between tbe parties which deprived the 2)laintiff of all rights of action for the injury; and I do not think that this Court, wide as are its 2>owers, should take upon itself to say that there has been an error in tiie judgment arising from anj’ accidental slijj or omission. If there was an error, it was not accidental: it was the result of a deliberate finding; and the Judge intended the judgment to be in the form in which it now stands. In one sense, it is true that all mistakes of a Judge are “ accidental”; but that is not the sense in which the word is used in the rule.
(1) 5 Ch. D., 750; 15 Ch. I)., 1.50.
670 HIGH COURT
[1906.
H. C. OF A.
If it were, no one could feel any contidence in acting on the
1906. formal, written judgment of the Court. If the Judge has made
I vanhoe
a mistake in his decision, the remedy is appeal; and if no appeal
H old
Co r
poration
be brought, or if the appeal be dismis.sed, the litigants are bound
L t d .
V. by the decision, even though wrong. The authorities are well
SV.MONDS. considered by Homer J. in Ainsu'cn-th v. Wilding (1). In that
Higgins J.case, the learned Judge saj's :—“ The Court has no jurisdiction,
after the judgment at the trial has been passed and entered, to re-hear the case. That is clear. Formerly the Court of Chancery had power to re-hear cases which had been tried before it even after the decree had been entered ; but that is not so since the Judicature Acts. So far as I am aware, the only ca.ses in which the Court can interfere after the passing and entering of the judgment are these:—(1) Where there has been an accidental slip in the judgment as drawn up—in which case the Court has power to rectify it under Order XXVIII., r. 11 ; (2) When the Court itself finds that the judgment as drawn up does not cor rectly state what the Court actually decided and intended.” Probably also, he says, the Court can act by the consent of the parties : In re Swire; Mellur v. Stvire (2). The decision actually pronounced was as to the profits of collieries in which the testator was interested at his death, but the order as drawn up applied, or might be construed as applying, to the profits of new con cerns acquired after the death. In Hatton v. H arris (8) the whole difficulty arose “ from a mere slip of the registrar or the registrar’s clerk.” In Lawrie v. Lees (4) Lord Penzance merely said that “ ever3 ̂ Court has the power to vary its own orders which are drawn up mechanically' in the registry or in the office of the Court—to vary' them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain.” Milson v. Carter (5) was a mere case as to costs, which, in the circumstances of the case, had not been provided for. The order of the Supreme Court, in allowing an appeal to go to the Privy Council, had provided tliat the costs should abide the judgment of the Privy Council, but had not provided for the case, which happened, of the appeal being
(G (1896) 1 Ch., 673, a t p. 676.
Lord M am arjhUn,
(2) .30 Ch. D., 239.(4) 7 App. C as., 19, a t p. 35.
(3) (1892) A.C., 547, a t p. 563, in r
(5) (1893) A .C ., 6:18.
4 C.L.R.]
671
or AUSTRALIA.
dismissed for want of prosecution.
And see also Preston Banking H- C. of a .
Co. V. Allsup & Sons
l̂). If the learned Jud^e made an error in
^ 9^
Ills judgment, the remedy was by appeal to the Full Court; and
IVAXHOK
Gold t'oR-
if tlie Full Court made an error in affirming the judgment, or in
RORATION
affirming it without variation, the remedy was by appeal to the
Ltd.
V.
High Court; Clearies Bright & Co. Ltd. v. Sellar (2).
I can find
SlMOSDS.
no instance, after searching Daniell’s Chancery Practice, and the
Higgins J.
Annual Practice of 1906, of any case which goes so far as to allow a final judgment duly passed and entered, or otherwise completed, to he corrected as proposed by this motion. The judgment was given deliberately ; the written judgment duly expressed what the Judge meant to pronounce; the new order proposed to be added does not deal with items of costs or the computation of interest, or matters purely incidental to and within the scope of the judgment, as in Fritz v. Hobson (3), and otlier such cases; and McMillan J. himself, even if lie had been asked to alter his judgment on tire ground of error, would have had, in my opinion, no juri.sdiction to do so.
In such a case as this, I should be strongly inclined to give special leave to appeal from the judgment if either party desired it. I think that the High Court has power to give sucir leave, notwithstanding the lapse of so long a time, under sec. 35,(1.) (b), of i\\e Judiciary Act 1903. But this Court will not give such privilege if unsought. As for the present application, which is practically to correct a final judgment on the ground that the Judge ought to have given a judgment materiall}’’ and sub stantially dirt'erent, I cannot see the fairness of treating the judgment as binding on one litigant if it is not to be binding on the other. The judgment as it stands should be taken “ with all faults ” (if any).
For these reasons, I am compelled to differ from the opinion of my colleagues; and I concur with the opinion of the Full Court of this State, that the order made on the motion should be dis charged.
Appeal allowed] order of Fall Court discharged with costs. Appeal to Full Court dis-
(1) (I89J) i Ch., 141.
(2) (1904) 1 K .B ., 6.
(3) 14 Ch. D ., 542.
101
0
0