Liebherr-Australia Pty Ltd v Bloomfield
[2006] WASCA 128
•29 JUNE 2006
LIEBHERR-AUSTRALIA PTY LTD -v- BLOOMFIELD [2006] WASCA 128
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 128 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:77/2005 | 21 MARCH 2006 | |
| Coram: | STEYTLER P MCLURE JA PULLIN JA | 29/06/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | LIEBHERR-AUSTRALIA PTY LTD ERIC WAYNE BLOOMFIELD WORKCOVER WA |
Catchwords: | Workers' compensation Whether costs order of a Registrar a nullity because of legislative change Whether the Registrar's order of no effect when subject to a de novo appeal |
Legislation: | District Court of Western Australia Act 1969 (WA), s 79(1)(b), s 88(2)(g) District Court Rules 1996 (WA), O 6 r 2, O 6 r 6, O 6 r 11 Interpretation Act 1984 (WA), s 37 Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 3(a), s 7 Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32 |
Case References: | Briggs v Glentham Pty Ltd (1992) 8 WAR 339 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 Harris v Caladine (1991) 172 CLR 84 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Hunt v Knabe (No 2) (1992) 8 WAR 96 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Thompson v His Honour Judge Byrne (1999) 196 CLR 141 Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190 Wentworth v Rogers [2004] NSWCA 401 Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 Bird v The Commonwealth (1988) 165 CLR 1 Blair v Curran (1939) 62 CLR 464 Collector of Customs v AgfaGevaert Ltd (1996) 186 CLR 389 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Fisher v Hebburn Ltd (1960) 105 CLR 188 Gardner Steel Ltd v Sheffield Brothers [1978] 3 All ER 399 Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379 Hewitt v Benale Pty Ltd (2002) 27 WAR 91 Kuligowski v Metrobus (2002) 26 WAR 137 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Maxwell v Murphy (1957) 96 CLR 261 Murcia & Associates v Grey (2001) 25 WAR 209 Proust v Blake (1989) 17 NSWLR 267 The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 Transfield Pty Ltd v Rawstron [2005] WASCA 78 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LIEBHERR-AUSTRALIA PTY LTD -v- BLOOMFIELD [2006] WASCA 128 CORAM : STEYTLER P
- MCLURE JA
PULLIN JA
- Appellant
AND
ERIC WAYNE BLOOMFIELD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER SCHOOMBEE
Citation : BLOOMFIELD -v- LIEBHERR-AUSTRALIA PTY LTD [2005] WADC 113
File No : CIV 174 of 2004
(Page 2)
Catchwords:
Workers' compensation - Whether costs order of a Registrar a nullity because of legislative change - Whether the Registrar's order of no effect when subject to a de novo appeal
Legislation:
District Court of Western Australia Act 1969 (WA), s 79(1)(b), s 88(2)(g)
District Court Rules 1996 (WA), O 6 r 2, O 6 r 6, O 6 r 11
Interpretation Act 1984 (WA), s 37
Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 3(a), s 7
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr M E Herron
Chief Executive Officer
of WorkCover WA as
Interested Party : Ms C J Thatcher
Solicitors:
Appellant : Crisp Civitella Smith
Respondent : Chris Phillips
Chief Executive Officer
of WorkCover WA as
Interested Party : State Solicitor's Office
(Page 3)
Case(s) referred to in judgment(s):
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Harris v Caladine (1991) 172 CLR 84
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Thompson v His Honour Judge Byrne (1999) 196 CLR 141
Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190
Wentworth v Rogers [2004] NSWCA 401
Case(s) also cited:
Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280
Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88
Bird v The Commonwealth (1988) 165 CLR 1
Blair v Curran (1939) 62 CLR 464
Collector of Customs v AgfaGevaert Ltd (1996) 186 CLR 389
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Fisher v Hebburn Ltd (1960) 105 CLR 188
Gardner Steel Ltd v Sheffield Brothers [1978] 3 All ER 399
Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Kuligowski v Metrobus (2002) 26 WAR 137
MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355
Maxwell v Murphy (1957) 96 CLR 261
Murcia & Associates v Grey (2001) 25 WAR 209
Proust v Blake (1989) 17 NSWLR 267
The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Transfield Pty Ltd v Rawstron [2005] WASCA 78
(Page 4)
1 STEYTLER P: I agree with McLure JA. I would consequently grant leave to appeal, allow the appeal and dismiss the respondent's notice of contention. The order of the Commissioner dated 16 June 2005 should be set aside and, in lieu, the application made to her, dated 11 February 2005, should be dismissed.
2 McLURE JA: The appellant (defendant) appeals from an order made by Commissioner Schoombee on 16 June 2005 setting aside a certificate of taxation of costs payable by the respondent (plaintiff).
3 On 26 August 2004, Deputy Registrar Hewitt of the District Court dismissed the respondent's application for leave to commence common law proceedings against the appellant (his employer) under s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("Workers' Compensation Act") and ordered that the respondent pay the appellant's costs to be taxed. The certificate of taxation set aside was in respect of these costs.
4 The Registrar was exercising the delegated jurisdiction of a Judge in chambers (see O 6 r 2 of the District Court Rules 1996 (WA) and s 88(2)(g) of the District Court of Western Australia Act 1969 (WA)). By O 6 r 11 of the District Court Rules, a person affected by an order of a Registrar has a right of appeal to a District Court Judge in chambers. The respondent exercised that right. On 31 August 2004, he filed a notice of appeal from the orders made by the Registrar on 26 August 2004 ("the appeal").
5 Before the appeal was heard or determined the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) ("CLP Act") came into operation. One of the purposes of the CLP Act is to ensure, so far as is equitable, that the intention of Parliament in enacting s 32 (the transitional provision) of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act") is given effect to: s 3(a) of the CLP Act. Parliament's intention was that the law as it stood before the 1999 Act came into effect ("the former provisions") only applied to proceedings for common law damages commenced before the assent day (5 October 1999) or for which leave had been given before the assent day. However, the High Court in Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 held that s 32 of the 1999 Act did not exclude s 37 of the Interpretation Act 1984 (WA) with the result in that case that the appellant's pending application for leave was governed by the former provisions. The High Court held that the 1999 Act did not abolish the power of the District Court to grant leave to commence common law
(Page 5)
- proceedings after the assent date. The purpose of the CLP Act is to reverse the effect of Dossett while grandfathering cases in which leave to commence common law proceedings was granted after the assent date but before the commencement date of the CLP Act.
6 Both parties accepted that the CLP Act deprived the respondent of his right to continue the appeal. The question in issue in this appeal is whether the respondent remained bound by the costs order against him made by the Registrar on 26 August 2004.
7 The respondent contended in this appeal, and to the learned Commissioner below, that the answer depended on the proper construction of s 7 of the CLP Act. It was no part of the respondent's case (on appeal or below) that a decision made by a Registrar under delegated jurisdiction was of no effect once an appeal was instituted. Such a contention would be without merit: Harris v Caladine (1991) 172 CLR 84. Further, the respondent did not contend (on appeal or below) that the CLP Act had the effect of invalidating the delegation of jurisdiction to the Registrar and thus his decision.
8 However, in construing the CLP Act the Commissioner had regard to the parasitic relationship between a delegation of jurisdiction (or power) and a right of review or an appeal de novo. There is authority in this jurisdiction for the proposition that the validity of the delegation of jurisdiction to a District Court Registrar depends on there being a right of review or appeal de novo from decisions made in the exercise of such delegated jurisdiction: Briggs v Glentham Pty Ltd (1992) 8 WAR 339 at 349 - 350 per Malcolm CJ; Hunt v Knabe (No 2) (1992) 8 WAR 96; and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28 per Malcolm CJ. This significantly influenced the Commissioner's construction of s 7 of the CLP Act which provides:
"7(1) In this section —
'commencement day' means the day on which this Act receives the Royal Assent;
'former provisions matter' means -
(a) an application for leave to commence proceedings under the former provisions;
(b) an application for leave to appeal from a refusal to grant leave to commence proceedings under the former provisions;
- (c) an appeal from a refusal to grant leave to commence proceedings under the former provisions; or
(d) a proceeding to which section 5(3) would have applied but for the operation of section 6(4),
but does not include an application, appeal or proceeding on or relating to District Court file number WC 93D 1194/1998.
- (2) On and after the commencement day no court may hear or determine a former provisions matter.
(3) Any former provisions matter that has been commenced but not determined before the commencement day is a nullity, and is taken to have been dismissed by operation of this subsection with no order for costs.
(4) A worker who, during the period commencing on 4 December 2003 and ending on the day on which this Act receives the Royal Assent, has incurred legal costs in commencing or continuing a former provisions matter that is taken to have been dismissed by operation of subsection (3), is entitled to be paid reasonable costs so incurred.
(5) The chief executive officer may determine what are reasonable costs for the purposes of subsection (4).
(6) If the worker disputes the determination of the chief executive officer, the chief executive officer is to refer the matter to a registrar of the District Court or a taxing officer of the Supreme Court who may determine what are reasonable costs as if the determination were a taxation of costs.
(7) Costs that a person is entitled to be paid under this section are payable from the General Fund."
9 The Commissioner found in the respondent's favour on two grounds. First, she concluded that an application for leave under s 7(1)(a) also encompassed an appeal to a Judge in chambers from the decision of a Registrar refusing leave. Secondly, if that was wrong, she concluded that
(Page 7)
- the appeal was a former provisions matter under s 7(1)(c) in which event the appeal and the Registrar's orders become a nullity. She said:
"On the basis of the decisions referred to above regarding the nature and validity of a decision made by a Registrar under delegated powers, I am of the view that if an appeal from a decision of the Registrar becomes a nullity the intention of the legislature must have been that the decision appealed from also becomes a nullity … "
11 The structure of appeals under the law as it stood before the 1999 Act was that a party to an application for leave under s 93D of the Workers' Compensation Act had a right of appeal to a District Court Judge in chambers from a decision made by a Registrar. As the decision was interlocutory, a party required leave to appeal to the Full Court of the Supreme Court from the decision of the District Court Judge in chambers: s 79(1)(b) of the District Court of Western Australia Act 1969 (WA).
12 The respondent contended that s 7(1)(a) of the CLP Act includes all steps taken in the application for leave proceedings which includes any appeal to a District Court Judge in chambers; s 7(1)(b) is a reference to an application to the Supreme Court for leave to appeal; and s 7(1)(c) is confined to an appeal to the Supreme Court following the grant of leave.
13 The next step in the respondent's argument is that all of the steps in the application for leave, including the application to and orders made by the Registrar, are a nullity. According to the respondent, this is the only means of achieving the legislative purpose of ensuring an equitable reversal of Dossett because s 7(4) does not provide for the recovery of party/party costs. The Commissioner rejected the latter submission, concluding that s 7(4) provided for the recovery of both solicitor/client and party/party costs.
14 The proposition that all steps taken and orders made in a proceeding under subpar (a) (and I interpolate, subpars (b) and (c)) of s 7(1) are a nullity is central to the respondent's case. Without expressly identifying what is meant by "nullity", the assumption is that s 7(3) invalidates all orders already made thereby entitling the respondent to an order that the taxation certificate be set aside.
(Page 8)
15 The appellant did not challenge the correctness of either the proposition or the assumption. These issues can be avoided if, as the appellant submitted, the appeal to the District Court Judge from the Registrar's decision was a former provisions matter under s 7(1)(c). However, s 7 and the other relevant provisions of the CLP Act, must be construed as a whole as part of a coherent scheme.
16 It is necessary to test the respondent's contention that Parliament must have intended that the worker be relieved of its obligation to pay the appellant's taxed costs. As a general proposition, that is clearly not so. The point is best illustrated by reference to an example. If on the commencement day there was a pending appeal to the Full Court from the refusal of leave by a District Court Judge, there would be three determinations of a former provisions matter, being the decision of the Registrar, District Court Judge, and Full Court on the grant of leave. At least two of the decisions (that of the Registrar and the District Court Judge) would have resulted in a costs order against the worker. On this scenario, s 7(3) only applies to the pending appeal because that is the only matter that has not been determined before the commencement day. Further, a worker can only be reimbursed under s 7(4) for legal costs involved in commencing or continuing "a former provisions matter that is taken to have been dismissed by operation of s 7(3)". On the facts as I have given them, the worker can only be reimbursed for the pending appeal and not the other proceedings referred to in subpars (a) and (b) of s 7(1). Implicit in this reasoning is an assumption that the phrase "former provisions matter" in s 7(3) and s 7(4) is confined to one of the proceedings specified in subpars (a), (b) or (c) of s 7(1), being the one that has been commenced but not determined. I do not understand the parties to have contended to the contrary. In any event, I see no basis in the language of the section for concluding that the terms "former provisions matter" in s 7(4) means a former provisions matter that had been commenced but not determined and which is deemed to have been dismissed without costs under s 7(3) together with all other former provisions matters already determined. That being so, Parliament must have intended that existing determinations of a former provisions matter:
(a) would remain valid and binding, including costs orders; and
(b) are outside the scope of matters for which the worker can be compensated under s 7(4).
17 This demonstrates that Parliament did not intend to fully compensate a worker for all costs incurred in pursuing a former provisions matter.
(Page 9)
- The next and most important question concerns steps taken and orders made in the course of, but prior to, the determination of the proceedings in any of subpars (a) to (c) of s 7(1). That is what the respondent contends is the situation in this case. However, it can occur in other circumstances. For example, costs orders may be made for or against a worker after the commencement but prior to the determination of an appeal. The respondent says that in those circumstances orders made after the commencement but prior to the determination of a former provisions matter (which for convenience I will call "interim" orders) are, in effect, retrospectively invalidated. If that is the case, monies paid by a worker under a costs order validly made at the time would be recoverable from the employer and the worker would be freed from liability under a costs order made but not satisfied. If so, there would be no need for a mechanism for the worker to be compensated by the State for recovery of taxed costs already paid to the employer.
18 However, the employer is not entitled to any compensation under s 7(4) or otherwise of the CLP Act. It may be wondered why Parliament would intend to deprive the employer of costs that a worker had, prior to the commencement day, been ordered to pay the employer. Such an intention would need to be clearly and unambiguously stated. It is not. To the contrary, the stated consequence of a former provisions matter being a "nullity" is not retrospective invalidation of the entire proceeding from its inception but rather that the proceeding "is taken to have been dismissed … with no order for costs". Such a statement is inconsistent with a conclusion that the legislature intended that validly made interim orders be rendered void by s 7(3) of the Act. In my view, a former provisions matter that had been commenced but not determined prior to the commencement day is rendered a nullity from the commencement date but not retrospectively.
19 Whether or not interim costs in a proceeding that is a former provisions matter are recoverable under s 7(4) of the Act does not arise for determination in this case. Whether or not they should be treated in the same way as orders made in a former provisions matter that has already been determined should be decided on another occasion.
20 It follows from my reasons that whether or not the pending de novo appeal to a District Court Judge in chambers falls within s 7(1)(a) or s 7(1)(c) of the Act has no effect on the outcome. The orders made by the Registrar are not voided or invalidated by s 7 of the CLP Act and accordingly the Commissioner erred in setting aside the certificate of taxation.
(Page 10)
21 For the sake of completeness, I propose to state my conclusion on whether the de novo appeal falls within subpar (a) or (c) of s 7(1). In support of his claim that it fell within s 7(1)(a), the respondent relied primarily on the fact that an appeal from the decision of the Registrar was instituted without a fresh summons (under O 6 r 11(2) of the District Court Rules) and in the same matter. Of greater significance is what this procedural approach reflects. An appeal from a Registrar to a District Court Judge in chambers is a review de novo in which the original application for leave is heard afresh: Harris v Caladine at 106 per Brennan J; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203, [13] per Gleeson CJ, Gaudron and Hayne JJ. This contrasts with an appeal stricto sensu or an appeal by way of rehearing where (in the absence of fresh evidence in the case of a rehearing) error on the part of the original decision maker must be demonstrated before the appeal can be upheld: Coal and Allied Operations at 202 - 204 per Gleeson CJ, Gaudron and Hayne JJ. On the other hand, an appeal de novo is a recognised category of appeal: Coal and Allied Operations at 203, [13]; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621 - 622 per Mason J.
22 When considered as a matter of substance rather than form, the matter before the District Court Judge was an application for leave to commence proceedings; the decision maker is starting with a clean slate entirely unfettered by the earlier decision of the Registrar. Matters of substance should govern the categorisation of the matter. Accordingly, the "appeal" to the District Court Judge is an application for leave falling within s 7(1)(a) of the CLP Act.
23 PULLIN JA: This is an appeal from the judgment of Commissioner Schoombee which judgment set aside a certificate of taxation of costs relating to costs payable by the respondent to the appellant.
Facts
24 On 26 August 2004 Deputy Registrar Hewitt of the District Court made orders:
(a) dismissing the respondent's application pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) for leave to commence proceedings claiming damages in respect of a disability allegedly suffered by the respondent as a result of the alleged negligence of the appellant employer; and
(Page 11)
- (b) that the respondent pay the appellant's costs to be taxed.
25 On 31 August 2004, pursuant to O 6 r 11 of the District Court Rules 1996 (WA), the respondent filed a notice of appeal to a Judge of the District Court against the above orders.
26 On 25 October 2004 the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) ("Common Law Act") was proclaimed, which provided in s 7(2) that, on and after this date, "no court may hear or determine a former provisions matter", and in s 7(3) provided that:
"… any former provisions matter that has been commenced but not determined before the commencement date is a nullity, and is taken to have been dismissed by operation of this subsection with no order for costs."
27 It is not in dispute that the appeal instituted on 31 August 2004 was a "former provisions matter" and as a result the appeal to a District Court Judge was then taken to be dismissed with no order as to costs.
28 Before 7 February 2005, and after 25 October 2004 the appellant proceeded to a taxation of the costs ordered on 26 August 2004. The taxation was conducted by Deputy Registrar Harman. The respondent objected to the taxation for reasons referred to below, but the Deputy Registrar proceeded to tax the costs and signed a certificate as to the amount of such costs and, on 7 February 2005, delivered reasons dismissing the objections made by the respondent.
29 On the 11 February 2005 the respondent applied for an order from Commissioner Schoombee, sitting as a Judge of the District Court, to review the taxation.
30 On 16 June 2005 Commissioner Schoombee, having conducted the review, set aside the certificate of taxation of costs.
31 On 30 June 2005 the appellant filed an appeal notice in this Court pursuant to s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) seeking leave to appeal against the order of Commissioner Schoombee.
Section 7 of the Common Law Act
32 The section reads:
"Jurisdiction removed and workers' costs indemnified
(Page 12)
- (1) In this section -
'commencement day' means the day on which this Act receives the Royal Assent;
'former provisions matter' means -
(a) an application for leave to commence proceedings under the former provisions;
(b) an application for leave to appeal from a refusal to grant leave to commence proceedings under the former provisions;
(c) an appeal from a refusal to grant leave to commence proceedings under the former provisions; or
(d) a proceeding to which section 5(3) would have applied but for the operation of section 6(4),
but does not include an application, appeal or proceeding on or relating to District Court file number WC 93D 1194/1998.
(2) On and after the commencement day no court may hear or determine a former provisions matter.
(3) Any former provisions matter that has been commenced but not determined before the commencement day is a nullity, and is taken to have been dismissed by operation of this subsection with no order for costs.
(4) A worker who, during the period commencing on 4 December 2003 and ending on the day on which this Act receives the Royal Assent, has incurred legal costs in commencing or continuing a former provisions matter that is taken to have been dismissed by operation of subsection (3), is entitled to be paid reasonable costs so incurred.
(5) The chief executive officer may determine what are reasonable costs for the purposes of subsection (4).
(Page 13)
- (6) If the worker disputes the determination of the chief executive officer, the chief executive officer is to refer the matter to a registrar of the District Court or a taxing officer of the Supreme Court who may determine what are reasonable costs as if the determination were a taxation of costs.
(7) Costs that a person is entitled to be paid under this section are payable from the General Fund."
The submissions made to Commissioner Schoombee
33 The respondent submitted that its application for leave to commence proceedings against the appellant, which was dismissed by order of Deputy Registrar Hewitt on 26 August 2004, had been "commenced but not determined" before 25 October 2004 and was therefore a nullity. The respondent contended that this was so because the Deputy Registrar exercised delegated power which was subject to review by a Judge on appeal. The respondent also contended that because the appeal, being an appeal by way of a hearing de novo, had been instituted before the commencement of the Common Law Act, the application for leave to commence proceedings had not been determined and would not have been determined until the appeal to the Judge had been heard. In effect, the respondent contended that once the appeal had been instituted, the order of Deputy Registrar Hewitt, including the cost order, had no effect.
34 The appellant submitted that the application for leave to commence proceedings before Deputy Registrar Hewitt had been "determined" before the Common Law Act came into operation by the order made on 26 August 2004.
Commissioner Schoombee's reasons
35 The Commissioner said that the appellant's submission (to which I have just referred) "assumes" that the expression "an application for leave to commence proceedings" in s 7(1)(a) of the Act:
"… does not include an appeal to a Judge of the District Court which is an essential condition to the validity of the delegation of jurisdiction by Judges of the District Court to the Registrar and which the plaintiff had already filed before the commencement day of the Act."
36 The Commissioner said that other parts of s 7 of the Common Law Act might shed some light on the intention of the legislature regarding the
(Page 14)
- interpretation of "an application for leave to commence proceedings" and the word "determined". Her Honour referred to the regime contained in s 7(4) to s 7(7) which gave an entitlement to a worker to be paid reasonable costs payable from the general fund. Her Honour said:
"It is not clear whether 'costs so incurred' as referred to in s 7(4) of the Act are only costs which a worker has incurred by instructing his/her own solicitors or whether they also include costs payable by a worker to the defendant pursuant to a costs order."
Her Honour concluded that there was no reason why the words "costs so incurred" were not intended to also include costs payable by a worker to the defendant and on that basis she saw s 7(4) as being a provision beneficial to the worker.
37 Her Honour then said at [59] that s 7(1)(a) of the Common Law Act was ambiguous because it was "not clear whether an appeal to a Judge of this Court from the Registrar's decision forms part of 'an application for leave to commence proceedings' or not." She also said that s 7(3) was ambiguous "in that it is not clear whether an application for leave to commence common law proceedings ruled upon by a Registrar, but appealed to a Judge of this Court, has been 'determined'."
38 Her Honour said that these ambiguities should be resolved by way of a construction beneficial to the worker. The learned Commissioner then said:
"Such a construction requires that the words 'an application for leave to commence proceedings' in s 7(1)(a) of the Act be interpreted to include an appeal to a District Court Judge in chambers in respect of a decision by a Registrar to refuse leave to a worker to commence common law proceedings, at least in those cases where the appeal was lodged prior to 25 October 2004. Further, a beneficial interpretation of s 7(3) leads to the result that such an application has not been 'determined' unless a Judge of the District Court had ruled on it before 25 October 2004."
39 At [62] her Honour continued:
"If I am wrong in making the finding that the words 'an application for leave to commence proceedings' in s 7(1)(a) of the Act include an appeal from a Registrar of the District Court
(Page 15)
- to a District Judge in chambers, at least where a notice of appeal has been filed prior to the commencement day of the Act, I am of the view that such an appeal would still fall within s 7(1)(c) of the Act. … Accordingly, if an appeal to the Judge of this Court is not part of 'an application for leave to commence proceedings' it is 'an appeal from a refusal to grant leave to commence proceedings'."
40 Her Honour said that a question arose whether, since the appeal to the Judge in chambers was a nullity, because it had been commenced but not determined, the decision made by the Deputy Registrar under delegated powers could stand. Her Honour said that if an appeal from a decision of the Registrar:
"… becomes a nullity the intention of the legislature must have been that the decision appealed from also becomes a nullity, in light of the fact that it has always been subject to the appeal or review of a Judge in chambers."
41 Her Honour also said that such an interpretation accorded with a beneficial construction of the provisions of s 7 regarding the worker's entitlement to be paid his or her reasonable legal costs incurred.
42 Her Honour concluded that at the time Deputy Registrar Harman issued the certificate of taxation, the decision of Deputy Registrar Hewitt "had already been turned into a nullity by reason of the operation of s 7" and that the costs order made in favour of the respondent had been "deemed to be a ruling for no order as to costs". Her Honour concluded that Deputy Registrar Harman based his taxation on a costs order which was no longer in existence and had been replaced with a different costs order.
The appellant's grounds of appeal
43 The appellant's grounds of appeal read:
"1. The finding of the learned Commissioner to the effect that the order of Deputy Registrar Hewitt of 26 August 2004 dismissing the Respondent's application for leave to institute proceedings was not a determination of that application is wrong as a matter of law. The order was a valid determination of the application and binding until varied or set aside on appeal.
(Page 16)
- 2. The finding of the learned Commissioner that the order of Deputy Registrar Hewitt was a nullity because it was a 'former provisions matter' as defined in section 7 Workers Compensation (Common Law Proceedings) Act 2004 on the basis that there was an appeal on foot at the time that Act was proclaimed, is wrong in law. The order of Deputy Registrar Hewitt dismissing the Respondent's application for leave to commence proceedings was determined before the commencement day of the Act and was not a 'former provisions matter' as defined in that Act.
3. The finding of the learned Commissioner that as a consequence of the order of Deputy Registrar Hewitt being a nullity that the order for costs made by him and the certificate of taxation signed by Deputy Registrar Harman based thereon were also invalid is wrong as a matter of law. The order for costs was not affected by the amending legislation and was able to be validly enforced in the manner which in fact occurred."
The parties submissions on this appeal
44 In effect, the appellant contends that the determination of the Registrar dismissing the application for leave, was a "valid" determination unless an appeal set aside that determination.
45 The respondent submits that the appeal, which had been instituted against Deputy Registrar Hewitt's determination, was "not a separate originating procedure" from the application for leave to commence proceedings, and that "by proceeding with the appeal the respondent was proceeding or continuing with his application" and that therefore, pursuant to s 7(3), the original application and the appeal, taken as one, was a nullity and was taken to have been dismissed with no order as to costs. It was submitted that this would give effect to what was said to be the underlying legislative intention to ensure that workers were treated equitably in being "deprived of [their] ability" to proceed with the application for leave.
46 The respondent submitted that under s 7(4), the worker was only entitled to be indemnified for his reasonable solicitor/client costs, not in respect of party/party costs, and that he would not be treated "equitably" if he had to pay the appellant's costs, which he would have to do if the appellant's submissions were upheld and the appeal allowed.
(Page 17)
47 The respondent also filed a notice of contention claiming that the words "any former provisions matter that has been commenced but not determined" in s 7(3) must be read as meaning "any former provisions matter that has been commenced but not determined by a grant of leave to commence proceedings". It was submitted that "an unfair and unjust result" would follow if that contention was not accepted, because the worker was required to pay costs ordered against him in circumstances where he was deprived of the right to appeal. It was submitted that if by s 7(4) a worker was entitled to have his solicitor/client costs paid if the appeal was taken to have been dismissed by operation of s 7(3), but was required to pay the appellant's costs pursuant to the order for costs on the original application, "an absurd or unreasonable result would occur, which could not have been intended by Parliament".
Statutory interpretation
48 The respondent contends that the critical issue is one of the proper construction of s 7 of the Common Law Act. In fact, the critical issue is about whether the order of Deputy Registrar Hewitt remained in full force and effect once the appeal against it was instituted. It is true that s 7 must then be considered, and in that regard s 18 of the Interpretation Act requires the court to adopt a construction of the Act which will promote the purpose or object underlying the Act. This does not mean however, that the court is authorised to adopt an unreasonable or unnatural construction: Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113. If the language of an act is clear and unambiguous, then the duty of the court is to give effect to the purpose of Parliament as expressed in that language: Thompson v His Honour Judge Byrne (1999) 196 CLR 141 at [19].
The statutory provisions authorising the Registrar to make orders
49 The District Court Judges were authorised by s 88(2)(g) of the District Court of Western Australia Act to delegate power to a Registrar to exercise the jurisdiction of a Judge in chambers. Power was delegated by O 6 r 2 allowing a Registrar to exercise jurisdiction which might be exercised by a District Court Judge in chambers. O 6 r 6 of the District Court Rulesprovided that the office of a Registrar "should be deemed to be Judge's chambers" for the purpose of any matter which is authorised by or under the rules to be dealt with by the Registrar and "in respect of such matters references in this Order to the Court shall be deemed to be references also to the Registrar". These provisions explain why Deputy Registrar Hewitt heard the application for leave to commence proceedings.
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50 By O 6 r 11 a Registrar's order could be appealed to a District Court Judge. This was a hearing de novo: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. By O 6 r 11(5) it was stated that:
"An appeal from a decision of a Registrar should not operate as a stay of proceedings unless so ordered by a Judge or a Registrar."
- The delegation of judicial power by the Judges to the Registrars of the District Court is valid because of the existence of the appeal provision in O 6 r 11. See Briggs v Glentham Pty Ltd (1992) 8 WAR 339; Hunt v Knabe (No 2) (1992) 8 WAR 96; Hazart (supra).
Decision on this appeal
51 The Commissioner in effect regarded the order of the Registrar dismissing the application for leave to commence proceedings as being of no effect once the appeal against that decision was instituted. The result was that her Honour concluded that once the appeal was instituted, the application for leave to commence proceedings had not been determined.
52 In my opinion the learned Commissioner erred in so concluding. The order of Deputy Registrar Hewitt remained in full force and effect until set aside, despite the institution of the appeal. See Harris v Caladine (1991) 172 CLR 84 per Mason CJ and Deane J at 97, Brennan J at 106, Dawson J at 126 - 127 and Gaudron J at 154. That case was decided in the context of applications for a review of a Registrar's decision. The fact that the High Court was concerned with a Chapter 3 Court is not in my view of any relevance in relation to the validity of the Registrar's orders. In Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190 Kirby P, with whom Handley JA and Hope AJA agreed generally, said in the context of an appeal against a Judge of the Compensation Court of New South Wales who reviewed a decision of a Commissioner of the Court:
"The fact that there is a decision of the Commissioner which is being 'reviewed' postulated that the Judge of the Compensation Court will not start with a blank page but with a formal decision of a person who, in making it, is 'taken to be the Court'. Thus, unless the 'review' persuades the Judge that the order being reviewed should be varied, discharged or otherwise disturbed, the order under 'review' will stand and be binding between the parties. This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision
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- under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders."
53 In my opinion, the fact that in that case there was a "review" rather than an appeal against the Commissioner's decision does not alter the relevance of the passage I have just quoted to the situation here.
54 Finally, I refer to Wentworth v Rogers [2004] NSWCA 401. In that case, a Registrar of the New South Wales Supreme Court made an order setting aside two garnishment notices. This was made the subject of a review application to Miles AJ who dismissed the application. Santow JA, in the Court of Appeal, referred to the appellant's contention that the bank was bound to hold the moneys in the account pending the application for review being determined by Miles AJ and concluded that the submission had no substance. His Honour referred to Harris v Caladine (supra) and Watson v Hanimex (supra) and quoted Kirby P from the latter case when he said:
"Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders."
55 Once it is clear that the learned Commissioner erred in concluding that the application for leave had not been determined because an appeal had been instituted, then this appeal must succeed.
56 In summary therefore, the only proceeding affected by the Common Law Act was the appeal against Deputy Registrar Hewitt's decision dismissing the application for leave to commence proceedings. That appeal became a nullity and the District Court was no longer permitted to hear or determine the appeal. (I should mention that the respondent argued that s 7(1)(c) referred only to appeals "to the Supreme Court" but I see no justification at all for reading in those words.)
57 The application which had been made to Deputy Registrar Hewitt and dismissed, and the costs order made by him, were the subject of a binding judgment of the court dated 26 August 2004. The application for leave, which had already been determined by Deputy Registrar Hewitt, was not a former provisions matter because the former provisions matters listed in the definition must all be understood as "pending" applications because s 7(2) and (3) are both premised on the basis that former provisions matters have not already been determined. An "application", an "appeal" and a "proceeding" were no longer applications, appeals or
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- proceedings once they had been determined by a judgment or order of the court.
58 The legislation is unambiguously clear and reflective of a Parliamentary intention to prevent all pending but undetermined applications for leave to appeal or appeals from a refusal to grant leave to commence proceedings from being heard and to determine them as provided for in s 7. The section does not deal with applications for leave which have been dismissed.
59 In my opinion there is no justification for reading in the additional words which the respondent contends for in the notice of contention. In my opinion, reference to the costs provisions in s 7(4) to s 7(7) do not assist. They are separate provisions, about which I express no opinion. Even if the provisions only allow recovery of solicitor and client costs, then it means no more than that Parliament has chosen to only partially indemnify a worker in relation to costs incurred. Just because this may be "inequitable" does not mean that the unambiguous earlier subsections of s 7 must be given an unnatural and distorted meaning to try to produce an "equitable" outcome in relation to costs.
60 I would therefore grant leave to appeal, allow all three grounds of appeal and dismiss the respondent's notice of contention. As a result, the order of the learned Commissioner dated 16 June 2005 should be set aside and, in lieu thereof, the application of the respondent to Commissioner Schoombee dated 11 February 2005 should be dismissed.
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