Kowalski v Cole; Kowalski v Bourne

[2015] SASCFC 169

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

KOWALSKI v COLE & ORS; KOWALSKI v BOURNE

[2015] SASCFC 169

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)

20 November 2015

INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL RELATIONS COURT

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - AS OF RIGHT

The appellant appeals or alternatively seeks permission to appeal against judgments of the Full Court of the Industrial Relations Court permanently staying applications by the appellant against legal practitioners. 

A preliminary issue arises whether the appellant requires permission to appeal.

The appellant’s applications in the Industrial Relations Court were issued pursuant to section 41 of the Workers Compensation Act 1971 (SA).  Section 47 confers a right of appeal to this Court from decisions of the Full Court of the Industrial Relations Court  under that Act without any requirement for permission but confined to a question of law.

Section 191(1)(b) of the Fair Work Act 1994 (SA) confers a general right of appeal to this Court against decisions of the Full Court of the Industrial Relations Court on questions of law or fact but only with the permission of this Court.

The preliminary issue is whether the appellant’s right of appeal is governed by section 47 of the Workers Compensation Act or section 191 of the Fair Work Act.

Held by the Court:

1. On its proper construction, clause 2(1) of the First Schedule to the Workers Rehabilitation and Compensation Act 1986 (SA), which continued the operation of the 1971 Act in respect of pre October 1987 traumas, preserves the right of appeal conferred by section 47 of the 1971 Act in relation to all proceedings relating to traumas continued to be governed by the 1971 Act (at [20], [29]-[30]).

2. Section 16(1) of the Acts Interpretation Act 1915 (SA) does not otherwise provide. It preserves both substantive and enforcement or ancillary rights under a repealed Act notwithstanding the repeal (at [23]-[25], [29]-[30]).

3.       The appellant does not require permission to appeal (at [32]).

Acts Interpretation Act 1915 (SA) s16; Fair Work Act 1994 (SA) s 8, s 11, s 15, s 92, s 191; Industrial Relations Act 1972 (SA); Workers Compensation Act 1971 (SA) s 21, s 39, s 41, s 47; Workers Rehabilitation and Compensation Act 1986 (SA); First Schedule Cl 2.1, referred to.
Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, discussed.
Harrington v Lowe (1996) 190 CLR 311; Maxwell v Murphy (1957) 96 CLR 261; Smith Kline & French Laboratories v The Commonwealth (1991) 194 CLR 194, considered.

KOWALSKI v COLE & ORS; KOWALSKI v BOURNE
[2015] SASCFC 169

Full Court:      Kourakis CJ, Blue and Nicholson JJ

THE COURT:  

1. Mr Kowalski has filed notices of appeal against orders of the Full Court of the Industrial Relations Court. That Court dismissed each of Mr Kowalski’s appeals against decisions of a single Judge summarily dismissing his summons against Russell Jon Cole, William Andrew Sim and RJ Cole & Partners Pty Ltd and his summons against Tim Bourne save that the Full Court changed the form of the orders from dismissals of the applications to orders staying them. The Full Court also ordered that Mr Kowalski pay the respondents’ costs of each appeal.

2. Mr Kowalski contends that an appeal to this Court (on a matter of law) lies as of right against the orders of the Full Court of the Industrial Relations Court pursuant to section 47 of the Workers Compensation Act 1971 (SA) (the 1971 Compensation Act). Alternatively, if permission to appeal is required, Mr Kowalski seeks permission to appeal.

3. The respondents contend that an appeal to this Court lies against the orders of the Full Court of the Industrial Relations Court only with the permission of this Court pursuant to section 191(1)(b) of the Fair Work Act 1994 (SA).

4. The Court directed that the question whether permission to appeal is required be determined as a preliminary issue on the basis of written submissions from the parties.

   Background

5. Between 1988 and 1991, Mr Bourne, then a partner of Stanley and Partners, acted for Mr Kowalski in relation to common law and workers compensation claims in respect of an eye injury suffered by Mr Kowalski in 1986 governed by the 1971 Compensation Act. In 1991, RJ Cole & Partners took over the conduct of those matters. RJ Cole & Partners also acted for Mr Kowalski in relation to common law and workers compensation claims in respect of a back injury suffered by Mr Kowalski governed by the Workers Rehabilitation and Compensation Act 1986 (SA) (the 1986 Compensation Act).

6. In March 2011, Mr Kowalski filed separate summonses in the Industrial Relations Court of South Australia seeking declarations that RJ Cole & Partners and Mr Bourne respectively breached section 41(2) of the 1971 Compensation Act and seeking orders for repayment by them of monies paid by way of costs charged and recovered without the authority of the Court under section 41(3) of the 1971 Compensation Act.

7. The respondents each filed an application seeking summary dismissal of the summons or an order striking out the summons as an abuse of process.

8. In August 2011, a Judge at first instance summarily dismissed each summons on the ground that the Court had no jurisdiction to hear the claims or they were untenable or out of time or an abuse of process.[1]

   [1]    Kowalski v Cole and Sim and RJ Cole & Partners Pty Ltd [2011] SAIRC 61; Kowalski v Bourne [2011] SAIRC 62.

9. Mr Kowalski appealed to the Full Court of the Industrial Relations Court. In May 2015, the Full Court delivered reasons for judgment, holding that the Judge erred in concluding that the Court had no jurisdiction to hear the claims or they were untenable or out of time, but upholding the Judge’s conclusion that the claims were an abuse of process.[2] The Full Court allowed each appeal for the limited purpose of changing the form of the order from one dismissing the application to an order staying it and otherwise dismissed each appeal.

   The legislation

   [2]    Kowalski v Bourne and RJ Cole & Partners Pty Ltd [2015] SAIRC 17.

   1971 to 1987

10. The 1971 Compensation Act came into operation on 1 July 1971 and was repealed by the 1986 Compensation Act with effect on 30 September 1987.

11. Subsections 41(2) and (3) of the 1971 Compensation Act relevantly provided:

    (2) No legal practitioner acting for a workman shall be entitled to recover from that workman any costs in respect of any proceedings under this Act or to claim a lien in respect of such costs on or to deduct such costs from  any sum awarded as compensation unless those costs have been awarded by the Court.

    (3) No agreement by a person claiming compensation to pay any amount by way of costs greater than the amount awarded by the Court shall be binding on that person and any amount paid by that person by way of costs in excess of the amount so awarded shall be recoverable by that person as a debt due to him.

12. Section 21 conferred jurisdiction on the Industrial Court to hear and determine questions and disputes concerning matters arising under the Act. It provided:

    The Industrial Court of South Australia shall have jurisdiction to hear and determine any question or dispute concerning any matter or thing arising out of or connected with the liability to pay, or the amount of compensation under this Act and all matters and things ancillary thereto.

13. Section 39 governed the hearing and determination of applications by a party. Section 41 governed costs in proceedings under the Act. Section 45 conferred a right of appeal against any order or decision of the Court to the Full Industrial Court. Section 47 conferred a right of appeal against any order or decision of the Full Industrial Court on a matter of law to this Court.

14. The Industrial Relations Act 1972 (SA) (the 1972 Industrial Relations Act) came into operation on 4 January 1973[3] and was repealed by the Fair Work Act 1994 (SA)[4] with effect on 8 August 1986. It continued the existence of the Industrial Court.[5] Section 15 conferred jurisdiction on the Industrial Court to hear and determine money claims between employers and employees and harsh, unjust or unreasonable dismissal claims; the interpretation of awards or industrial agreements; and questions referred by or relating to the validity of awards or orders of the Commission or a Committee.

    [3]    Originally called the Industrial Conciliation and Arbitration Act 1972.

    [4]    Originally called the Industrial and Employee Relations Act 1994.

    [5]    Originally constituted by the Industrial Arbitration Act 1912 (SA).

15. Section 92(3) of the 1972 Industrial Relations Act precluded any appeal against or challenge to an order or decision of the Full Court except on the ground of excess or want of jurisdiction (which would ordinarily be by way of judicial review). Section 92(3) provided:

    No order or decision or proceedings of any kind of the Full Court shall be challenged, appealed against, reviewed, quashed or called in question save on the ground of excess or want of jurisdiction before the Full Court as defined for the purposes of the Supreme Court Act, 1935, as amended.

16. It is clear that section 92(3) related to the industrial jurisdiction of the Industrial Court conferred by the 1972 Industrial Relations Act and did not apply to its workers compensation jurisdiction conferred by the 1971 Compensation Act. Otherwise, section 92(3) would have rendered nugatory the provisions of section 47 of the 1971 Compensation Act contrary to the manifest intention of the legislature. There were two parallel and quite different and distinct appeal regimes relating to industrial matters under the 1972 Industrial Relations Act and workers compensation matters under the 1971 Compensation Act.

    1987 to 1994

17. The 1971 Compensation Act was repealed with effect on 30 September 1987 by the 1986 Compensation Act. However, clause 2(1) of the First Schedule to the 1986 Compensation Act relevantly provided:

    … the repealed Act continues to apply in respect of a disability that is attributable to a trauma that occurred before 30 September 1987.

18. Clause 2(1) of the First Schedule did not confine the continuing operation of the 1971 Compensation Act in respect of pre-October 1987 traumas to the substantive provisions governing the substantive rights and obligations of workers and employers but applied equally to provisions governing the jurisdiction, powers and procedures of the Industrial Court.

19. The jurisdiction to hear and determine matters relating to compensation in relation to pre-October 1987 traumas continued to be conferred by section 21 of the 1971 Compensation Act. The procedures of the Industrial Court on hearing such matters continued to be governed by sections 39 to 43 of the 1971 Compensation Act. No such jurisdiction was conferred by the 1972 Industrial Relations Act. The right of appeal to the Full Court of the Industrial Court continued to be conferred by section 45 and the further right of appeal on a question of law to this Court continued to be conferred by section 47 of the 1971 Compensation Act.

20. It would be an irrational intention to impute to the legislature that a right of appeal to this Court that existed as at 30 September 1987 was taken away on 1 October 1987 merely because the 1971 Compensation Act was repealed and replaced by a new regime under the 1986 Compensation Act applying only to post-September 1987 trauma. It would also fail to give effect to clause 2(1) of the First Schedule to the 1986 Compensation Act.

21. Section 16 of the Acts Interpretation Act 1915 (SA) (the Interpretation Act) relevantly provides:

    16—Saving of operation of repealed, amended or expired Act

    (1)     Where an Act is repealed or amended, or where an Act or enactment expires, then,         unless the contrary intention appears, the repeal, amendment or expiry does not—

    …

    (c)     affect any right, interest, title, power or privilege created, acquired, accrued,   established or exercisable, or any status or capacity existing, prior to the     repeal, amendment or expiry; or

    (d)     affect any duty, obligation, liability or burden of proof imposed, created or     incurred, or any penalty, forfeiture or punishment incurred or imposed or     liable to be incurred or imposed, prior to the repeal, amendment or expiry; or

    (e)     affect any investigation, legal proceedings or remedy in respect of any such    right, interest, title, power, privilege, status, capacity, duty, obligation,      liability, burden of proof, penalty, forfeiture or punishment.

    (2)     Any such investigation, legal proceedings or remedy may be instituted, continued      or enforced, and any such penalty, forfeiture or punishment may be imposed and     enforced, as if the repeal or amendment had not been effected or as if the expired         Act or enactment had not expired (as the case may be).

    …

    (4)     In this section—

    “legal proceeding” includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature.

22. The respondents accept that Mr Kowalski’s substantive rights in relation to costs under section 41 of the 1971 Compensation Act were preserved by section 16(1)(c) of the Interpretation Act and his right to institute proceedings in the Industrial Court to assert or enforce those rights was preserved by section 16(1)(e) of the Interpretation Act. However, they contend that Mr Kowalski’s right to appeal against the decision of the Full Court of the Industrial Court in such proceedings was not preserved by section 16.

23. The respondents’ contention must be rejected. First, section 16 of the Interpretation Act is subject to a contrary intention manifested by the Act effecting the repeal. Here, for the reasons already given, the 1986 Compensation Act clearly manifested an intention that the 1971 Compensation Act continue to apply to both substantive and procedural rights and obligations in respect of pre-October 1987 traumas.

24. Secondly, section 16(1) of the Interpretation Act preserves substantive and enforcement or ancillary rights alike under a repealed Act notwithstanding the repeal. Section 16(1)(e) and (2) expressly preserve the ability to enforce substantive rights and to institute and prosecute legal proceedings for that purpose. There is no warrant in the language or purpose of section 16 in drawing a distinction between proceedings at first instance and appellate proceedings.

25. In Yrttiaho v The Public Curator of Queensland,[6] Gibbs J (with whom Menzies, Windeyer and Walsh JJ agreed) held that the Queensland equivalent of section 16(1)(e) and (2) preserves the availability of legal proceedings but not necessarily the procedure to be followed therein and a proceeding is not necessarily affected by an amendment to the procedure to be observed in the proceeding. This has no application in the present case. If the respondents’ contentions were accepted, the availability of an appeal would be abrogated. This is not a case of amendment to the procedure to be followed in the course of legal proceedings.

    1994 onwards

    [6] (1971) 125 CLR 228.

26. The Industrial and Employee Relations Act 1994 (SA) (the Fair Work Act) came into operation on 8 August 1994. Section 8 continued in existence the Industrial Court but changed its name to the Industrial Relations Court. Sections 11 to 15 conferred jurisdiction on the Court of a similar nature to that formerly conferred by the 1972 Industrial Relations Act.

27. Section 191 conferred a new right of appeal to this Court against a judgment, order or decision of the Full Court of the Industrial Relations Court which did not formerly exist under the 1972 Industrial Relations Act. Section 191 relevantly provided:

    191—Appeal to Supreme Court

    (1)     An appeal lies to the Supreme Court from a judgment, order or decision of the Full   Court if—

    (a)     the appeal is based on an alleged excess or deficiency of jurisdiction; or

    (b)     the Supreme Court grants leave[7] to bring the appeal.

    (2)     The appeal must be heard by the Full Court of the Supreme Court.

    …

    [7]    The section has not been amended since its enactment except to substitute the word “permission” for “leave”.

28. It was the evident intention of the legislature that section 191 of the Fair Work Act would govern appeals from the Full Court of the Industrial Relations Court when it was exercising jurisdiction under the Fair Work Act but not when it was exercising jurisdiction under the 1971 Compensation Act.

29. The respondents contend that section 191 of the Fair Work Act does not eliminate the prospect of an appeal against a decision of the Full Court of the Industrial Relations Court but merely regulates it by requiring that it is subject to the grant of permission to appeal. The respondents cite authorities in the constitutional context that address the distinction between prevention and regulation.[8] That distinction is not relevant to the operation here of section 16 of the Interpretation Act or clause 2(1) of the First Schedule to the 1986 Compensation Act.

    [8]    Harrington v Lowe (1996) 190 CLR 311; Smith Kline & French Laboratories v The Commonwealth (1991) 173 CLR 194.

30. The respondents contend that the presumption against retrospective operation of amending legislation does not apply to merely procedural amendments and as to procedural amendments there is a presumption in favour of retrospective operation.[9] These presumptions have no operation in the present case where there are two separate Acts providing for different effects in different circumstances.

    [9]    Maxwell v Murphy (1957) 96 CLR 261 at 267-270 per Dixon CJ; Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 at 241-243 per Gibbs J (with whom Menzies, Windeyer and Walsh JJ agreed).

    Conclusion

31. Section 47 of the 1971 Compensation Act continues to confer a right of appeal against decisions of the Full Court of the Industrial Relations Court when exercising jurisdiction under that Act. Section 191 of the Fair Work Act has no application to such an appeal.

32. Mr Kowalski has an appeal as of right and does not require permission of this Court to appeal. However, his appeal as of right is confined to a question of law.