Linfox Transport (Australia) Pty Ltd & Anor v Toohey

[2004] VSCA 122

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3714 of 2004

LINFOX TRANSPORT (AUSTRALIA) PTY LTD	1st Applicant
- and -
ALLIANZ AUSTRALIA WORKERS' COMPENSATION (VIC) LTD	2nd Applicant
v.
GERALD TOOHEY	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 June 2004
DATE OF JUDGMENT:	11 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 122

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ACCIDENT COMPENSATION - Appeal - On question of law from County Court in its exclusive jurisdiction - Whether "appeal application" to be served within 6 months for its lodgment - Urgent need for amendment - "Lodge" - Accident Compensation Act 1985, ss.51, 52.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P.H. Solomon	Herbert Geer & Rundle
For the Respondent	Mr M.G.R. Gronow	Nowicki Carbone & Co.

BATT, J.A:

1. This application concerns the meaning and effect of s.52 of the Accident Compensation Act 1985 ("the Act"). The section and its predecessor, the former s.68, are replete with uncertainty and have given rise to at least four appeals to this Court or its predecessor for elucidation: Accident Compensation Commission v. C.E. Heath Underwriting and Insurance (Aust) Pty Ltd[1]; Logan v. MMI Switzerland Workers' Compensation (Vic) Ltd[2]; Green v. Victorian WorkCover Authority[3] and Victorian WorkCover Authority v. C.E. Heath Underwriting and Insurance (Aust) Pty Ltd[4].  It is obvious from a cursory reading of it that it has been drafted by someone unfamiliar with the language of court procedure in this State and, in particular, in this division of the Supreme Court.  In Green v. Victorian WorkCover Authority[5], Tadgell, J.A., having dealt with problems requiring resolution in that case which arose from language in s.52 that was, in his word, "inartificial" and also internally inconsistent or incompletely expressed, referred to "various other incongruities and disharmonies"[6] in s.52 and also in s.51. He said that he had mentioned them "in the hope that ss.51 and 52 might be subjected to a thorough revision in order to avoid further unnecessary effort and frustration on the part of the public and the courts in seeking to make sense of them". Unfortunately that cri de coeur has gone unanswered. Amongst the other incongruities and disharmonies that his Honour mentioned were the expressions "appeal application" and "lodge" and "lodged" in sub-ss.(3) and (4)(b), which his Honour stated did not conform to conventional usage in this State and conduced to needless uncertainty. "If a notice of appeal is meant", his Honour said, "it should be easy to say so". He went on to raise whether "lodge" meant "filed" or "served" or "filed and served", saying that the word was "gratuitously ambiguous". The expression "the lodging of an appeal" in sub-s.(5) was, his Honour stated, "even more ambiguous". Somewhat ironically, this Court is now called on to attempt to assign a meaning to the ambiguous expressions for which, as just mentioned, his Honour raised possible meanings but did not offer an opinion. But it is to be hoped that our decision will be an interim one only, for ss.51 and 52 are in urgent need of complete re-writing so as to use the conventional language of courts and to remove other ambiguities. At the same time Parliament might consider whether there is any need for a two-stage process of notice of intention to appeal and appeal application and, indeed, whether, in an era in which all concerned in the administration of justice are anxious to achieve all reasonable expedition and avoid unnecessary delay, there is any reason for allowing an intending appellant six months in which - to anticipate in part questions arising here - to initiate the appeal. Neither counsel could assist the court, despite researches, on the origin of the period of six months. Parliamentary debates when s.68 and later s.52 were enacted do not help.

   [1]Unreported, Full Court, 13 December 1991.

   [2]Unreported, Full Court, 7 October 1994.

   [3][1997] 1 V.R. 364.

   [4][1998] 2 V.R. 427.

   [5]At 368-370.

   [6]Three others may be mentioned. First, s.51, stating the orders which the Supreme Court (that is the Court of Appeal) may make on appeal, precedes, illogically, s.52, which confers the right of appeal and, impliedly, the jurisdiction to hear and determine appeals. Secondly, assuming that s.51(1) is wide enough to authorise the Court of Appeal to order that a proceeding be remitted to the County Court for further hearing, sub-s.(8) seems unnecessary. In any event, review by the County Court is not necessary on the making of every determination by the Court of Appeal.  Thirdly, the point of, indeed the cross-reference in, sub-s.(5) seem to defy explanation.

1. On 6 October 2003 Judge Pilgrim in the County Court at Melbourne in substance declared that the plaintiff, the present respondent, was entitled to have the second defendant, now the second applicant, accept liability pursuant to s.98C or s.98E of the Act or both sections and ordered the latter to request the respondent to attend an independent medical examination. The defendants, the present applicants, wished to appeal. Since his Honour was exercising the exclusive jurisdiction of the County Court under s.39 of the Act any appeal is governed by s.52, the text of which I do not set out but take to be available to anyone hearing or reading these reasons. On 24 October 2003, that is, within 21 days after his Honour's decision, the solicitors for the applicants served a notice of intention to appeal. On 2 April 2004, that is, within six months after his Honour's decision, the solicitors filed a notice of appeal in the Court of Appeal Registry. On 8 April 2004, that is, more than six months after the making of his Honour's decision, the solicitors served the notice of appeal on the solicitors for the respondent.

1. The Deputy Registrar informed the applicants' solicitors that the "appeal" was out of time and that unless the Court of Appeal made an appropriate order no further action would be taken in the matter. By way of explanation it was said that the effect of s.52(3) of the Act was to enlarge the time for the notice of appeal referred to in Rule 64.03 of the Supreme Court (General Civil Procedure) Rules 1996 ("the Rules") and that an appeal must be commenced by service of the notice of appeal on the respondent within the time so enlarged. The respondent adopted this view and advanced it through his counsel this morning in an eloquent and well reasoned manner. It should be said that Rule 58.01(3) provides that an appeal on a question of law under s.52 shall be in accordance with Order 64, with any necessary modification, and that section.

1. In the light of the Deputy Registrar's statement, the applicants on 13 May 2004 filed a summons seeking an order that the Registrar be directed to settle the contents of the appeal book or, alternatively, an order that the time for service of the notice of appeal be extended, retrospectively, to 8 April 2004.

1. Because ss.51 and 52 are so ill-drawn, one cannot be confident of one's interpretation of them, but the following seems tolerably clear. First, s.52 lays down a two-stage process for appealing consisting of serving "notice of intention to appeal" under sub-s.(2) and lodging "the appeal application" under sub-s.(3). Subsections (4) and (5) also recognise that two-stage process. Next, in the context of an appeal on a question of law to the Court of Appeal the expression "the appeal application" must mean, as it has always in my experience been treated as meaning, the notice of appeal. Further, the section clearly distinguishes between "service" and "lodging" (and respective corresponding parts of speech) and does so even in the one sub-section: see sub-ss.(2) to (5) and (7). The word "serve" is used for delivery to a party or to the County Court seen as an entity affected by the proposed appeal, as opposed to the court in which the appeal is to take place, for which a record is required to be created. For that the word "lodge" is used. The appropriate meaning of the verb "lodge" in sub-s.(3) is sense 3c in The Oxford English Dictionary[7], namely, "To deposit in court or with some appointed officer a formal statement of (an information, complaint, objection)".  Somewhat similarly, the definition in Butterworths Australian Legal Dictionary commences, "To deliver and place a document or thing in the possession of a person in relation to an official procedure".  Cases in which such a meaning of the word has been judicially adopted include Angus Fire Armour Aust. Pty Ltd v. Collector of Customs (NSW)[8]; Hong v. Minister for Immigration and Multicultural Affairs[9]; and Francis v. City of Ringwood[10]; cf Purden Pty Ltd v. Registrar in Bankruptcy[11].  It is unnecessary to consider what, if any, act by way of response on the part of the putative depositee is necessary for lodgement to have occurred or to consider whether "lodging" is equivalent to "filing"[12] at common law or under the Rules. Those aspects are considered in the cases cited. The essence of the conception of lodgement for present purposes is the depositing in a court or government office or with some public officer or functionary. Thus, a plan of subdivision was said to be "lodged" or "deposited" in the Office of Titles: Shelmerdine v. Ringen Pty Ltd[13].  The word "lodge" is quite inappropriate to denote or to include a denotation of delivery to a party;  and I have found no dictionary or judicial definition of it to that effect.

   [7]2nd Edition.

   [8](1998) 19 FCR 477.

   [9](1998) 82 FCR 468.

   [10](1978) 54 L.G.R.A. 323.

   [11](1982) 43 A.L.R.512.

   [12]As to which see Director of Public Prosecutions v. His Honour Judge Fricke [1993] 1 V.R. 369 at 372.

   [13][1993] 1 V.R. 315 at 330.

1. Under Order 64 of the Rules appeals are instituted, that is, commenced, by service of a notice of appeal on the proposed respondent. It should not be thought, however, that that is the only way in which an appeal may be instituted. In particular, an appeal may be instituted by filing a notice of appeal: see, for instance, O.70 r.2(1) of the High Court Rules; O.52 r.12(1) of the Federal Court Rules and R.4.04(a) of the Supreme Court (Miscellaneous Proceedings) Rules 1998 of this Court, other parts of which, I may say, make that procedure applicable to an appeal directly to the Court of Appeal on a question of law under the procedure laid down in Order 4. In the present context it is reasonably clear from sub-s.(3) that the act or event which initiates the appeal is lodgement of the appeal application. This is the critical act or event and it is because that is so that provision is made, by way of indulgence, for obtaining leave to lodge after that period. I have already indicated that, in my view, the word "lodge", taken in its context in this section, is too intractable to get out of it the meaning "lodge and serve on each other party". Sub-s.(3) is, therefore, dealing, not with service of the notice of appeal (as Rule 64.03 of the Rules does), but with an act or event equivalent to or akin to filing (dealt with in Rule 64.07), namely, lodgement.

1. It might perhaps, however, be argued that since R.58.01(3) requires an appeal under s.52 to be in accordance with O.64, with any necessary modification, service on each other party must be effected at least one week before the expiry of the period of six months. In my view, however, that would be inconsistent with the scheme of s.52, for it would substitute a different initiating act or event for lodgement. If that were the true meaning and effect of Rule 58.01(3) that paragraph of the Rules would be invalid to the extent that it purported to override s.52(3). But in my view that is not the meaning and effect of paragraph (3). Even if (contrary to my opinion) that would otherwise be so, a modification would be "necessary" in order to avoid inconsistency and invalidity. Additionally, such a construction would introduce a trap for intending appellants that was truly hidden. In that regard the words of the Full Court of the Federal Court in Hong[14] are apposite.  Speaking of a provision requiring lodgement with a Registry, their Honours said: 

"But for the very reason that non-compliance with [the provision] will prevent the Court exercising supervisory jurisdiction over the Tribunal great care should be taken to ensure that the provision is construed in a way that will avoid injustice to the extent that its language permits.  The jurisdiction of the Federal Court to control the proceedings of the Tribunal by judicial review is an important jurisdiction.  When the Tribunal errs in law the Court should have the power to put it right.  The Parliament should not be taken to have deprived the Court of that jurisdiction except by the clearest language." 

I would, of course, acknowledge that in the context of this case it is important to note that a six-month period is allowed for lodgement. 

[14]At 470.

1. Mr Gronow presented a somewhat different argument, based on the application of Order 64. He argued that both service and lodgement were required to occur within the six months' period. The argument which I have recently considered based on Order 64 was not, as I have indicated, one that he put. The argument already considered was based on the fact that Order 64 requires service to precede filing and allows a further week for filing, hence my reference to one week. As to Mr Gronow's argument that the initiating event was in fact twofold, service and lodgement, he accepted that that depended upon being able to read the word "lodge" as including "service". As I have indicated, I do not consider that possible.

1. It goes without saying that each other party must be served with a notice of appeal at an early stage of the appeal. It might be said - though this would not assist the respondent in supporting the Deputy Registrar's view - that sub-s.(3) does not provide for service because the appeal application is to be exactly the same as set out in or annexed to the notice of intention to appeal. That is not, however, how s.52 in my experience has been interpreted. More importantly, that is not the natural meaning of sub-ss.(2) and (3). Further, if the appeal application were not served, a party who had been notified of intention to appeal would not know without making his or her own enquiries at the Registry whether an appeal had ultimately been instituted. So service is, in justice, required. Indeed, Rule 64.04(1), which provides that a notice of appeal should be served on all parties affected by the appeal, can be applied. The only problem is that the time for service in Rule 64.03(1) is quite inapposite. Without suggesting that that time might be extended by the Court of Appeal or the Registrar under Rule 64.20, I consider that the court, as a superior court, has power to mould its own procedures so as, if necessary, to direct the appellant to serve the notice of appeal on each other party. One would expect the need for such a direction to be rare, first, because it would seem unusual for service not to be effected within the period of six months and, secondly, because an appellant who has not effected service would almost certainly realise that it was necessary as soon as the appellant came to deliver a note of proposed contents of the appeal book. Alternatively it may be said that the true construction of Order 64, with necessary modifications, is that service must be effected within a reasonable time after lodgement or that, there being no applicable time, service must be effected within a reasonable time. It is not necessary to express a definitive view on these possibilities, for in this case service has already occurred, though, as I have indicated, clearly there must be service at an early stage.

1. For the foregoing reasons I consider that the appeal is on foot and that it is not necessary to consider the alternative relief sought by the applicant under which delay, prospects, prejudice and the want of clarity in the section might have been relevant.  I consider it appropriate to declare that the appeal is on foot and that notice of appeal was duly served on 8 April 2004.  The contents of the appeal book will no doubt now be settled in the usual way.  I would direct that the appeal be given such expedition as the Registrar can afford it.  I would make that direction having regard to the material in the answering affidavit filed for the respondent.

1. I make two final comments.  First, while the legislation remains as it is, it is in the interests of justice, at least in the ordinary case, that intending appellants lodge and serve a notice of appeal well before the end of the period of six months.  Secondly, the respondent argued that the "proposed appeal" was at least in part an appeal against findings of fact, that the decision below was correct in law and that the appeal was hopeless.  I understood, and Mr Gronow confirmed this, that those submissions were directed to the alternative relief sought by the applicant.  In any event if, as I consider, the appeal is on foot those submissions do not seem material, at least in the absence of a substantive application by the respondents.  I am not of course to be taken as suggesting that such an application should be made.  I would

point out that the words in sub-s.(1) "on a question of law raised during the proceedings", namely, "proceedings before the County Court", are different from the formula considered in Transport Accident Commission v. Hoffman[15].  Whether that is intentional or a fortuitous anomaly may be a question.

EAMES, J.A.:

[15][1989] V.R. 197 at 198-19.

1. Although the argument made by Mr Gronow is an attractive one, and one which I would very much like to accept, I must agree for the reasons given by Batt, J.A. that in the context of the section as a whole the meaning of the word "lodge" in s.52(3) of the Accident Compensation Act cannot extend to the words "and serve".  Accordingly, there is no requirement imposed by the subsection for there to be service of the appeal application which the appellant must lodge with the Court.  Whatever the explanation for that absurd omission, and no valid one comes to mind, it cannot be overcome by judicial redrafting of the terms of the subsection.

1. The very difficulties with the language of s.52(3) which are now exposed on this application were identified by Tadgell, J.A. in Green v. Victorian WorkCover Authority[16].  His Honour said, in emphatic terms, that the legislation had to be amended and clarified but his plea went unanswered.

   [16](1997) 1 V.R. 364 at 370.

1. There is particular need for this problem to be addressed.  It already gives an exceptionally generous amount of time for the lodging of an appeal application.  Where it is a worker who is appealing it is highly likely that he or she would not wish to delay at all in advancing an appeal, but where the appellant is an employer, an insurer or the Authority, there is less likelihood of a similar sense of urgency.

1. In this case, for reasons which are unexplained, all but a few days of the entire six months' period was used before the application was lodged.  In the meantime no assessment of impairment had been conducted under s.104B.

1. In a letter dated 20 October 2003 tendered before us from the solicitors for the appellant addressed to the second appellant, it was acknowledged that the plaintiff/respondent had suffered a serious back injury in the accident on 5 December 2001 and in consequence was suffering anxiety and depression and other conditions. It is quite unacceptable that resolution of the claims for compensation by a person with apparently significant injuries should be unnecessarily delayed. Whatever the merits of the proposed appeal in this case, I have no doubt that resolution of the issues between the parties has, in part, been delayed simply because of the poor drafting of the terms of s.52. I agree with Batt, J.A. that the Parliament ought, as a matter of urgency, amend the terms of the section to prevent similar disadvantage befalling other injured workers.

1. For the reasons discussed above, it follows that I also agree that this is a very appropriate case for the hearing of the appeal to be expedited.

(Discussion ensued as to costs.)

BATT, J.A.: 

1. There has been discussion on the question of costs.   Both sides agree that whatever costs are awarded should be costs in the appeal and we think that right.  Mr Solomon sought that only his client's costs be costs in the appeal, but we think, for reasons indicated in argument, and because the necessity for today's hearing stems from uncertainty about the legislation itself, that the costs of both sides should be costs in the appeal.

1. The orders of the court will therefore be as follows. 

1.        The court declares -

(a)       That the appeal in proceeding No.3714 of 2004 is on foot. 

(b) That notice of appeal was duly served on the solicitors for the respondent on 8 April 2004.

2.The court directs that the appeal be given such expedition as the Registrar can afford it.

3.The court orders that the costs of the applicants and the respondent of and incidental to the summons filed on 13 May 2004 on behalf of the applicants be costs in the appeal.

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