Jugovac v D Group Employment Pty Ltd
[2016] ACTSC 66
•8 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jugovac v D Group Employment Pty Ltd |
Citation: | [2016] ACTSC 66 |
Hearing Date: | 11 December 2015 |
DecisionDate: | 8 April 2016 |
Before: | Burns J |
Decision: | See [44] |
Catchwords: | WORKERS COMPENSATION – Other Matters – appeals from and control over magistrates – right to appeal an award – whether award made when formal award document signed – whether award made when orally pronounced by the magistrate – award made when orally pronounced – notice of appeal struck out as incompetent. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 3964, 5103 Court of Petty Sessions Ordinance 1930 (ACT) s 209 Workmen’s Compensation Rules 1938 (ACT) r 32 |
Cases Cited: | C&S Insulation Services Pty Ltd v Copley (1997) 136 FLR 317 David Jones (Aust) Pty Ltd v Arauner (1980) 36 ACTR 8 Moore & White Pty Ltd v Mitojevic (1980) 49 FLR 325 |
Parties: | D Group Employment Pty Ltd (Applicant) Agostino Jugovac (Respondent) |
Representation: | Counsel Mr R Crowe SC (Applicant) Mr G Stretton SC (Respondent) |
| Solicitors Sparke Helmore (Applicant) Colquhoun Murphy (Respondent) | |
File Number: | SCA 75 of 2015 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Chief Magistrate Walker Date of Decision: 4 March 2014 Case Title: Jugovac v D Group Employment Pty Ltd Court File Number: WC 153 of 2013 |
BURNS J:
On 4 March 2014 the Chief Magistrate, hearing proceedings under the Workers Compensation Act 1951 (ACT) (the WCA) made an order that there be an award in favour of the respondent employer, D Group Employment Pty Ltd. By a notice of appeal filed on 4 September 2015, the appellant worker, Agostino Jugovac, purported to appeal from the order made by the Chief Magistrate.
By an application dated 7 October 2015, the respondent employer sought orders that the notice of appeal be struck out as incompetent and that the appellant pay its costs of the application and the proceeding generally. These orders were sought on the grounds that the purported appeal lodged by the appellant was lodged outside the time allowed for lodging an appeal as of right, and in circumstances where the appellant had not sought, or been granted, further time in which to lodge the appeal.
Background
The background to the current proceedings is found in the affidavits of James Ronald sworn on 2 December 2015 and of Nikolas Kai Willing affirmed on 7 October 2015. Mr Ronald is the appellant’s current lawyer (although he was not the solicitor who represented the appellant in the proceeding before the Chief Magistrate), and Mr Willing is a lawyer representing the respondent. In his affidavit Mr Ronald deposed to the following facts:
(a)as at 15 July 2011 the appellant was employed by the respondent as a truck driver;
(b)on 15 July 2011 the appellant was instructed by the respondent to deliver the contents of the articulated tip-truck to specified premises;
(c)in the course of emptying the contents of the tip-tuck, and while the appellant was inside the vehicle, the truck bed hit electrical power lines and the truck was electrified;
(d)the appellant jumped from the vehicle, and subsequently fell to the ground; and
(e)the appellant suffered injuries as a consequence of the electric shock and jumping from the truck.
On 12 July 2013, the appellant filed an Application for Arbitration by Injured Worker claiming weekly compensation and medical expenses under the WCA. This Application proceeded to arbitration before the Chief Magistrate. On 4 March 2014, the Chief Magistrate ordered that there be an award for the respondent, effectively dismissing the appellant’s application, and gave reasons for her decision. Unfortunately, the audio recording equipment in the courtroom where her Honour gave her reasons failed, and her reasons were not recorded.
Later on the day the decision was given, 4 March 2014, the parties were told that the recording equipment had failed and that a transcript of her Honour’s reasons could not be provided. The appellant’s lawyers then requested that the Chief Magistrate provide a written summary of her reasons. On 11 March 2014, the Chief Magistrate’s Associate provided the parties with a copy of the Chief Magistrate’s “draft findings”, and said “Her Honour cannot confirm that this is entirely consistent with what was said on the day, however formed the basis of her oral decision”. The draft findings comprised of 15 typewritten pages, with some handwritten additions, covering the nature of the application, the evidence given by the appellant, the evidence of a co-worker, the medical evidence and the contents of medical records. After setting out the evidence, the draft findings considered the chronology of events, especially concerning the appellant’s complaints of injury, before concluding “I cannot be satisfied on the balance of probabilities that any of the injuries now complained of by the [appellant] relate to the accident of 15 July 2011”.
The next action taken in the matter appears to have been on 22 September 2014 when the respondent’s lawyers wrote to the appellant’s then lawyers by email asking whether the parties could agree that the draft findings reflected the findings made by the Chief Magistrate on 4 March 2014. The appellant’s then lawyers responded that they would “look at this”, check with counsel and get back to the respondent’s lawyers. It then appears that there was no further correspondence.
The appellant’s present lawyers received the file from the former lawyers in the week ending on 13 March 2015. On 19 March 2015, the appellant’s present lawyers (who for convenience I will now simply refer to as his lawyers) wrote to the respondent’s lawyers requesting a copy of “the award executed by the parties in accordance with [r] 3964 of the Court Procedures Rules 2006 (ACT)”. On 20 March 2015, the respondent’s lawyers replied by email to the effect that no formal award had been filed. By letter dated 13 April 2015, the appellant’s lawyers invited the respondent “to take out the Award”. The respondent’s lawyers replied by email to the effect that they did not accept that the Chief Magistrate’s finding that the appellant’s claim for compensation failed constituted an award in favour of the respondent. The appellant’s lawyers replied by letter dated 15 April 2015, joining issue with the respondent’s lawyers assertion that the failure of the appellant’s claim for compensation did not constitute an award, and asserting that “an award would include any order or decision of the court in the arbitration”, citing the decision of Higgins J (as his Honour then was) in C&S Insulation Services Pty Ltd v Copley (1997) 136 FLR 317.
By letter dated 1 May 2015, the respondent’s lawyers advised the appellant that, in their opinion, the appellant’s right of appeal from the decision of the Chief Magistrate expired 28 days after she gave her decision on 4 March 2014. The respondent’s lawyers enclosed with this letter a draft award for the appellant’s lawyers to sign and return. The draft award was in the following form:
Having duly considered the matters submitted, the Court on 4 March 2014 found as follows:
(A)At all material times the Applicant was a worker employed by the Respondent.
(B)On 15 July 2011, in the course of his employment the Applicant jumped from a truck, landing heavily on his legs.
(C)The Applicant suffered a graze to his left knee in the process of jumping from the truck.
(D)That injury led to no incapacity or need for medical treatment.
(E)The other injuries complained of by the Applicant were not caused by the incident on 15 July 2015.
(F)There was no compensable injury suffered in the incident on 15 July 2011.
THE COURT THEREFORE ORDERS AND AWARDS:
1That there be an Award in favour of the Respondent.
The appellant’s lawyers replied by letter dated 29 May 2015, advising they would not consent to the proposed award because, “As you are aware, the reasons for the decision, and therefore the Court’s finding, were not recorded”. The appellant’s lawyers enclosed a draft award for endorsement by the respondent, which unfortunately stated that there would be an award for the appellant. This was, of course, entirely contrary to the decision of the Chief Magistrate. Unsurprisingly, the respondent’s lawyers declined to endorse their consent to the appellant’s draft award, and in their letter of 4 June 2015 they requested the appellant to relist the matter before the Chief Magistrate. The respondent’s lawyers also asserted that their draft award forwarded to the appellant on 1 May 2015 was consistent with the written notes used by the Chief Magistrate in giving her decision and reasons, and provided to the parties on 11 March 2014.
The matter was relisted before the Chief Magistrate on 14 August 2015 and, after hearing argument, her Honour signed an award in the terms proposed by the appellant. It is not necessary to consider whether the form of the award signed by her Honour complied with the requirement of r 3964(1) of the Court Procedure Rules 2006 (ACT) (the CPR).
Relevant legislation
Section 197 of the WCA provides:
(1)If a committee or the Magistrates Court gives a decision or makes an order or award in relation to any matter that may be or is required to be settled by arbitration under this Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court.
(2)The Magistrates Court Act 1930, part 4.5 (Civil appeals) applies in relation to an appeal under subsection (1) as if-
(a)it were an appeal from a judgment or order of a kind mentioned in that Act, section 274(2) (Cases in which appeal may be brought); and ...
(b)any necessary changes, and any changes prescribed by regulation, were made.
The reference to s 274(2) of the Magistrates Court Act 1930 (ACT) operated to provide a right of appeal, without the necessity for leave to the granted.
The time in which such an appeal must be made is governed by r 5103 of the CPR, which relevantly states:
The notice of appeal must be filed in the Supreme Court–
...
(d) if no time is provided by the relevant law and leave to appeal under division 5.3.2 (Appeals to Supreme Court–leave to appeal) is not necessary–not later than 28 days after the day the order appealed from was made, or not later than any further time the Supreme Court allows an application filed in the Court before the end of the 28-day period.
The term “made” is defined in the Dictionary to the CPR as meaning “given”.
Rule 3964 of the CPR, which is found within “Part 3.13 – Workers compensation”, provides:
3964Arbitration–award
(1)If the court makes findings in support of an award in favour of a party on an arbitration, the party must prepare draft terms of the award for making by the court.
(2)The party preparing draft terms of the award must, not later than 7 days after the day the court makes the findings, give a copy of the draft terms to each other party to the arbitration.
(3)Each other party to the arbitration must, not later than 7 days after the day the party received a copy of the draft terms–
(a)endorse the party’s agreement on the draft terms; or
(b)object to the draft terms.
(4)If the draft terms of the award are agreed, the draft terms must be given to the registrar for making by the court.
(5)A party objecting to the terms must ask the registrar to list the matter before the court.
(6)After the award is made by the court, the registrar must serve a sealed copy of the award on each party to the arbitration.
(7)The court may at any time correct a clerical error in an award made on an arbitration.
The issue
The effect of these provisions is that the appellant had a right to appeal the award of the Chief Magistrate within 28 days of the award being made. Both parties agree that the Chief Magistrate made an award, but they differ as to when she made the award. The appellant submits that there was no award until the Chief Magistrate signed the formal award document as drafted by the appellant on 14 August 2015. If that is correct, then the appeal was lodged within time. The respondent submits that the Chief Magistrate made the award on the date she gave her decision and oral reasons, being 4 March 2014. If the respondent is correct, then the appeal was lodged out of time.
The parties’ submissions
The respondent relied upon the decisions of Kelly J in Moore & White Pty Ltd v Mitojevic (1980), and of Gallop J in David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6 in asserting that the award was made by the Chief Magistrate on 4 March 2014. The appellant relied upon comments made by Higgins J in C&S Insulation Services Pty Ltd v Copley (1997) in submitting that award was not made until 14 August 2015. The respondent submitted that if the comments of Higgins J relied upon by the appellant were contrary to the decisions of Kelly and Gallop JJ, the comments of Higgins J were dicta, were incorrect and should not be followed. I will consider those decisions below, but I am satisfied that there is no inconsistency between the comments of Higgins J and the decisions of Kelly and Gallop JJ.
The appellant also submitted that the provisions of the CPR set out above have the effect that the signing of the award document by the Chief Magistrate on 14 August 2015 constituted the commencement of the appeal period “particularly in circumstances where there cannot be any certainty of the orders or decision made by the Chief Magistrate on 4 March 2014”.
Authorities relied on by the parties
In Moore & White Pty Ltd v Mitojevic (1980), the Court of Petty Sessions of the ACT (as the Magistrates Court was then designated) on 25 June 1980 ordered the appellant company to pay the respondent workers compensation under the Workmen’s Compensation Ordinance 1951 (ACT) (Workmen’s Compensation Ordinance). The appellant filed a notice of appeal in this Court on 18 July 1980. The respondent applied to have the notice of appeal struck out on the ground that it was filed out of time. The right of appeal was granted by s 26 of the Workmen’s Compensation Ordinance, which provided that where the Court of Petty Sessions gave a decision or made an order or award in respect of any matter required by the Ordinance to be settled by arbitration, any party could appeal from “the decision, order or award” to this Court. The time for filing such an appeal was governed by s 209 of the Court of Petty Sessions Ordinance 1930 (ACT). Section 26(2) of the Workmen’s Compensation Ordinance provided that the provisions of Division 2 of Part XI of the Court of Petty Sessions Ordinance applied to and in relation to an appeal from a “decision, order or award” made under the Workmen’s Compensation Ordinance as they apply to appeals from orders in civil matters in the Court of Petty Sessions. The provisions of s 209(1) fall within Division 2 of Part XI of the Court of Petty Sessions Ordinance, and provided that any such appeal was to be instituted within 21 days after the order was made.
On 25 June 1980, the Magistrate hearing the original proceeding made findings that the respondent was employed by the appellant at the relevant time, that he sustained personal injury by accident arising out of and in the course of his employment with the appellant, and that he had been totally incapacitated as a result of the accident. The Magistrate ordered that the appellant pay compensation to the respondent as provided by the Workmen’s Compensation Ordinance and Schedules thereto, and further ordered the appellant to pay the costs of the respondent.
Rule 32 of the Workmen’s Compensation Rules 1938 (ACT) (now repealed) provided that the award of the court on any arbitration was to be prepared and settled by the clerk of the Court of Petty Sessions, and signed by the Magistrate. At the time that the appellant company filed its notice of appeal no formal award had been taken out as contemplated by r 32. If the time for commencing the appeal started from the date the Magistrate made the orders on 25 June 1980, the appellant company’s appeal was out of time. If, however, as the appellant company submitted, the time for commencing the appeal commenced when the Magistrate signed the award then the appellant company was within time.
Kelly J found that in exercising its power of arbitration under the Workmen’s Compensation Ordinance, the Court of Petty Sessions was acting not as a court, but as an arbitrator. It followed from this determination that the award referred to in s 26 of the Workmen’s Compensation Ordinance must be the equivalent of an award handed down by an arbitrator. By reference to Jowitt’s Dictionary of English Law (2nd ed.) his Honour determined that such an award need not be in writing, but must be “final and conclusive” on all matters referred by the application for arbitration. His Honour then said at 330:
I think that such an award is to be equated to a final judgment, that is “such as at once put(s) an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for” (3 Blackstone’s Commentaries) ... It follows, in my opinion, that of the words “decision, order or award”, the word “award” has in the context the widest meaning as representing the achieving of finality by what may be called the judgment of the arbitrator (in this instance the Court of Petty Sessions).
Kelly J then considered the meaning of the word “decision” in the phrase “decision, order or award” as used in s 26 of the Workmen’s Compensation Ordinance, finding that each of the findings made by the Magistrate (as set out at [20] above) were “decisions” for the purposes of s 26. His Honour then briefly considered the meaning of the word “order”, but it is unnecessary to recite his Honour’s observations here.
Kelly J concluded that the Magistrate had not made an award on 25 June 1980, because while the Magistrate “made findings and orders which were intended to dispose of the whole matter as though an award had been handed down ... there still remained matters to be disposed of and the submission to arbitration could not be said to be complete until they were”. Among those matters to be resolved were the amount of medical and hospital expenses and the amount of compensation payable, as adjusted by the consumer price index, which would require evidence to be led before the Magistrate. His Honour concluded that as no award existed, the question of an appeal from an award simply did not arise.
Kelly J nevertheless went on to say at 331-332:
Much attention was devoted during the hearing to the question of whether it is necessary that a written award be delivered before the time for an appeal starts to run. I think that if the award is pronounced so as to be complete, time commences to run from the date of pronouncement even though the formal award is not signed for some time thereafter. There is not, in my opinion, any effective prescription that the award be in writing so that the time for an appeal runs from the date of its signing. I think the true position is completely comparable to that discussed in Ex parte Hooke; Re Risca Coal and Iron Co. where Lord Westbury L.C., said: “The principal which makes the order, whenever drawn up and entered, to bear date on the day when it is pronounced by the Court, I hold to be one in perfect conformity with the whole theory of judicial procedure. The theory of judicial procedure is that the cogent and binding effect of the order begins immediately from the time when the order is pronounced by the lips of the Judge, and if that could be done physically which legally is supposed to be done, and which one would desire to be done if it were possible, every order would be completed on the spot, written out by the judicial officer and in curia before the questionable theory of judicial procedure, and in conformity with that theory that is the time when the order is ‘made’, for the two words must be considered as equivalent and capable of being substituted the one for the other. The mere defining of the words of the Court by writing and reducing them into a form in which they can be evidence is a ministerial operation which, according to the true theory, succeeds the delivery of the order by the Judge, and must be in point of fact nothing in the world more than the physical embodiment on the spot by the Court of the words which the Judge has used.
[Footnotes omitted.]
As there had not been an award made by the Magistrate, the appeal before Kelly J could only be an appeal from a “decision or order” of the Magistrate. His Honour concluded that what was being appealed from were the three decisions (findings) and the two orders made by the Magistrate, as set out in [20] above. Adopting the rule expressed by Lord Wentbury LC in Ex Parte Hookey; Re Risca Coal and Iron Co. (1862) 45 E.R. 1261 (see [25] above). Kelly J said that “unless some enactment otherwise provides, “the cogent and binding effect of the order begins immediately from the time when the order is pronounced by the lips of the Judge’. His Honour then went on to say at 333:
It follows, in my opinion, that if the learned magistrate’s pronouncement on 25th June, 1980, had decided finally and fully the rights of the parties under the application, the time for filing an appeal would have run from the date of the pronouncement even though the formal award was not taken out until after the appeal period had expired.
As the appeal was one from decisions and orders made by the Magistrate, the effect of s 209 of the Court of Petty Sessions Ordinance 1930 (ACT) was that an appeal had to be instituted within 21 days of the decision or order being made. Those decisions and orders were made by the Magistrate on 25 June 1980, and consequently the appeal by the appellant company was lodged out of time and was struck out.
The decision of Kelly J in Moore & White v Mitojevic was given on 12 December 1980. On the same day his Honour also gave judgment in David Jones (Aust) Pty Ltd v Arauner (1980) 36 ACTR 8. Similar issues were raised, and Kelly J reiterated the principles he applied in Moore & White v Mitojevic in determining that no award had been made in the latter case, and that the time for appealing from the decisions or orders of the magistrate had expired before the appeal was commenced.
In both cases, Kelly J left open the possibility that an appeal could still be prosecuted if commenced within 21 days of the arbitration being finalised by an award.
The next decision to which I was taken to was that of Gallop J in David Jones (Canberra)Pty Ltd v Zapasnik. The head note to the reported decision set out the essential facts:
The appellant has employed the respondent as a shop assistant. In November 1975 the respondent suffered an injury by accident arising out of her employment by the appellant. She instituted proceedings in the Court of Petty Sessions for compensation.
On 3 June 1977 the court found that she has been totally incapacitated as the result of her injury from November 1975 till January 1976, and from February 1976 to February 1977. In his reasons for judgment the magistrate expressed the view that the respondent was fit for work from February 1977.
In June 1980 the respondent made a further application for compensation. In its final form, this application was in respect of incapacity from and after 4 June 1977, the day after the previous decision. The magistrate hearing this second application made a finding that the respondent was totally incapacitated, as the result of the original accident, from 4 June 1977 and to the date of his decision.
The magistrate delivered his decision, announcing his formal findings, on 5 June 1981. He intimated that he would deliver reasons later. The formal award was not signed and issued until 25 January 1982.
The applicant had filed and served a notice of appeal on 23 June 1981.
The respondent objected to the competency of the appeal.
The submission of the respondent in that case was that the appeal was not properly instituted because it was not filed “within 21 days of the award having been made”, i.e. 25 January 1982. Adopting what was said by Kelly J in Moore & White v Mitojevic, Gallop J agreed that an award need not be in writing, but it must be such as to bring an end to the matter referred for arbitration. Gallop J also cited with approval the decision of Lord Wesbury LC in Ex Parte Hookey; Re Risca Coal and Iron Co., quoted above, with the consequence that the decision or order of the magistrate was made at the time of pronouncement on 5 June 1981. As the notice of appeal was filed within the period of 21 days after the pronouncement of the decision and orders, the appeal was competent.
The final decision to which I was referred was the decision of Higgins J in C&S Insulation Services v Copley. That was an appeal by the appellant employer against a decision of a magistrate on 15 May 1996 making an “interim award” of compensation under the WCA in favour of the respondent worker. The notice of appeal was filed on 11 June 1996, which was outside the permitted period of 21 days from the date of the “decision, order or award”. Crucial to the outcome of the proceeding before Higgins J, however, was the fact that within the 21 days period the appellant applied for an extension of time to appeal as permitted by s 389 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) (subsequently repealed). Section 389(1) effectively gave this Court a wide discretion to grant an extension of the time for lodging a notice of appeal.
With respect to the competency of the appeal, Higgins J said at 320-321:
A right of appeal is conferred by s 26(1) of the Act. That provides:
“Where ... the Court gives a decision or makes an order or award with respect to any matter which may be or is required to be settled by arbitration under this Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court”.
In Moore & White Pty Ltd v Mitojevic (1980) 49 FLR 325, Kelly J held that the making of findings, whether as to facts or law did not amount to an “award” within the meaning of this subsection.
His Honour (at 330) accepted, however, that each of the findings which have been made was “a decision” in the sense of “... expressing a firm finding on a matter in issue, a finding from which, as I understand the position, he could not be expected to resile”.
His Honour considered that the term “order” connoted “matters which are ancillary to the hearing of the arbitration” (at 331). Even though no award was pronounced or made, there had, in that sense, been preliminary “decisions” and “orders” from which an appeal lay but the appellant was out of time to do so. Thus, to gain a right of appeal, the appellant had to await the making of an “award”. That, his Honour held, was the formal and complete document finalising the issues between the parties. A filing of draft minutes thereof was commended as a means of facilitating the process: See David Jones (Aust) Pty Ltd v Arauner (1980) 36 ACTR 8. However, until the final document was duly signed by the arbitrator, there was no “award”.
That decision was followed by Gallop J in David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6.
(Bolding added.)
His Honour went on to say that the interim award was clearly the result of a “decision”, and was an “order”, even if it was not an “award”, so that it was open to the appellant to appeal against the order within 21 days. The notice of appeal not having been filed within the 21 day period, Higgins J went on to consider the application for extension of time to lodge the appeal. After further considering the issue of the competency of the appeal, his Honour said “thus, subject to leave being granted to extend time for appeal, this appeal is competent”. Somewhat curiously, at no point in his decision did Higgins J clearly say that leave was granted, but his Honour’s subsequent consideration, and rejection, of the appeal on its merits leads to the inevitable inference that leave was granted.
Consideration
The combined effect of s 197 of the WCA, s 274(2) of the Magistrates Court Act and r 5103 of the CPR is that a party to an arbitration under the WCA has a right of appeal from a “decision, order or award” in the arbitration to this Court which must be commenced within 28 days after the decision, order or award is made. The only exception to the requirement that the appeal be commenced within 28 days of the decision, order or award being made is where, pursuant to r 5103, this Court grants an extension of time for the commencement of the appeal. However, such an order may only be made where an application for an extension is made before the expiration of the 28 day period.
The starting point is to characterise the decision of the Chief Magistrate, although based on the decision of Kelly J in Moore & White Pty Ltd v Mitojevic, it is probably unimportant to determine whether what her Honour did is properly characterised as a decision, an order or an award. I will, nevertheless, record my opinion that her Honour’s pronouncement constituted an award, as it achieved finality in the matter which was referred for arbitration, and effectively made her Honour functus officio.
As I have noted above, the right of appeal enjoyed by the applicant was to appeal within 28 days of the decision, order or award being made. When was the award “made” by the Chief Magistrate? An award is made when it is “given”: see the Dictionary to the CPR. Applying the principles expressed by Kelly J in Moore & White Pty Ltd v Mitojevic, and by Gallop J in David Jones (Canberra) Pty Ltd v Zapasnik, unless some enactment otherwise provides, the award was made on the date of the pronouncement by the Chief Magistrate on 4 March 2014. Two issues arise from this: (a) are the principles expressed by Kelly and Gallop JJ still good law, particularly in light of the decision of Higgins J in C&S Insulation Services Pty Ltd v Copley, and, if so, (b) is there some enactment that required this Court to conclude that those principles are not to be applied, and that the award was not to have effect until the formal document recording the award was signed by the Chief Magistrate?
The appellant sought to reply upon the statement by Higgins J that “until the final document was duly signed by the arbitrator, there was no ‘award’” as support for the proposition that no award existed until the Chief Magistrate signed the formal award document on 14 August 2015. The decision of Higgins J, in fact, does not support that proposition. It is important to consider the context in which Higgins J made this statement. His Honour was explaining the decision of Kelly Jin Moore & White Pty Ltd v Mitojevic, and noted that in that case Kelly J had found that the pronouncement of the magistrate did not constitute an award. What Higgins J was saying, in my opinion, was that in the circumstances that existed in Moore & White Pty Ltd v Mitojevic, there would be no “award” until the formal award document was signed by the arbitrator. When approached in this way the decision of Higgins J is not only internally consistent, but it is also consistent with the decisions of Kelly and Gallop JJ.
I am satisfied that, subject to identifying an enactment that requires a different approach, the principles set out by Kelly J in Moore & White Pty Ltd v Mitojevic remain applicable in the Australian Capital Territory, and to the present matter.
The appellant submitted that the provisions of r 3964 of the CPR were such as to make inapplicable the principles referred to by Kelly and Gallop JJ. The appellant submitted that r 3964 contemplates the magistrate making a finding in the arbitration, or, in other words, decisions or orders, which support an award in favour of one party or the other. The rules then set out a process for the formalisation of those findings in an award, whether by agreement or by the court. The appellant submitted that this provision evidenced a legislative intention that the award was not “made” until it was made by the court pursuant to r 3964.
This submission is open on a reading of r 3964, but ultimately I think that it is incorrect. The terms of r 3964 are ambiguous. They are capable of being interpreted such that an award is not made until the formal document is signed, but they may also be interpreted as simply setting out the procedure for formalising the award in a settled document, similar to a settled judgment. In my opinion the latter interpretation is to be preferred. The principles referred to by Kelly and Gallop JJ are long-standing, and are, as Lord Westbury LC observed, consistent with fundamental principles of judicial procedure. If the legislative intention had been to deviate from those principles with regard to awards under the WCA, for reasons that are unclear, then it would be expected that this would have been made clear in the legislation.
Two final matters remain to be considered. While the appellant did not have a transcript of the precise words spoken by the Chief Magistrate in giving her reasons during the 28 day period following the making of the award by the Chief Magistrate, he was clearly aware of the order made by her, and by 11 March 2014 he had access to the comprehensively typed notes used by the Chief Magistrate in giving her reasons. The appellant therefore had ample material upon which to decide whether to appeal the decision of the Chief Magistrate. It is interesting to note that Gallop J in David Jones (Canberra) Pty Ltd v Zapasnik concluded that the time for commencing an appeal in that case ran from the date when the decision was orally pronounced, even though the magistrate gave no reasons at the time indicating that he would give reasons at a later date.
Finally, in his written submission, the appellant submitted that if it were determined that his notice of appeal was lodged out of time, this Court should extend the time for appeal to the date on which the notice was filed, namely 4 September 2015. To my knowledge, the only provision allowing this Court to extend the time for filing a notice of appeal in a matter such as this is r 5103 of the CPR, but the Court is only empowered to grant an extension where an application for an extension was filed within the 28 day appeal period. That simply did not occur in this case, so this Court has no power to extend the period for the filing of a notice of appeal.
Conclusion
The notice of appeal was filed outside of the permitted period and is a nullity. The notice of appeal is struck out as incompetent. The appellant is to pay the respondent’s costs of proceeding SCA 75 of 2015.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: D Scuteri Date: 8 April 2016 |
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