Siddik v Workcover Authority of NSW & 2 ors

[2007] NSWSC 909

CITATION:	Siddik v Workcover Authority of NSW & 2 ors [2007] NSWSC 909
HEARING DATE(S):	27 July 2007
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	27 July 2007
DECISION:	Proceedings removed to Court of Appeal
CATCHWORDS:	PROCEDURE – Appeals – appeal from Associate Judge – where decision of Associate Judge is final decision – appeal lies to Court of Appeal, not Division – Powers of Associate Judge – whether power to deal with application for prerogative relief against Workcover Authority doubted
LEGISLATION CITED:	(NSW) Supreme Court Act 1970, ss 51, 69, 104 (NSW) Supreme Court Rules 1970 Pts 51, 60 (NSW) Workplace Injury Management and Workers Compensation Act 1998 s 328 NSW) Uniform Civil Procedure Rules 2005, r 49.4
PARTIES:	Hussein Hussein Siddik (plaintiff) Workcover Authority of NSW (first defendant) Registrar of the Workers Compensation Commission (second defendant) Appeal Panel Constituted Under S 328 (NSW) Workplace Injury Management & Workers Compensation Act 1998 (third defendant)
FILE NUMBER(S):	SC 30057/06
COUNSEL:	Mr C Jackson (plaintiff) Mr E O'Neill (agent) (first defendant)
SOLICITORS:	M D Di Re (plaintiff) DLA Phillips Fox (first defendant) I V Knight, Crown Solicitor (second & third defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

BRERETON J

Friday, 27 July 2007

30057/06 Hussein Hussein Siddik v Workcover Authority of New South Wales & 2 Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: There is listed for hearing before me an appeal instituted by motion filed on 16 March 2007 from a decision given by Malpass AsJ on 1 March 2007, in which his Honour dismissed a summons whereby the plaintiff/appellant, Hussein Hussein Siddik, sought prerogative relief and an order under (NSW) Supreme Court Act 1970, s 69, against the first defendant the Workcover Authority, the second defendant the Registrar of the Workers Compensation Commission, and the third defendant an Appeal Panel constituted under s 328 of the (NSW) Workplace Injury Management and Workers Compensation Act 1998.

2 While in the time available this morning it has not been possible or necessary to research this question definitively, a cursory reading of (NSW) Supreme Court Rules 1970 Pt 60 and Sch D does not reveal a basis upon which an Associate Judge had jurisdiction to deal with proceedings for such relief, unless they had been referred by the Court to an Associate Judge under Sch D, Pt 3, cl 4(b); although it gives an Associate Judge jurisdiction in appeals from and applications for prerogative and declaratory relief against the Consumer, Trader & Tenancy Tribunal [Sch D Pt 3, cl 5] and, where referred by a judge, similar proceedings in respect of the Administrative Appeals Tribunal [Sch D, Pt 3, cl 5A], there does not appear to be any equivalent provision in respect of the Workcover Authority or an Appeal Panel.

3 This seems consistent with Practice Note SC CL 3, in which cl 26 – although the first sentence apparently has a typographical omission – seems to contemplate that a reference of proceedings to an Associate Judge would be necessary. The record of proceedings does not indicate any order referring the matter to an Associate Judge. Accordingly, it may be questioned whether the Associate Judge had jurisdiction to deal with the summons.

4 However, the matter before me is a purported appeal from an Associate Judge. (NSW) Uniform Civil Procedure Rules 2005, r 49.4, has the effect that an appeal lies to the Court (constituted by a judge) from any decision of an Associate Judge, except in any case where an appeal lies to the Court of Appeal. Supreme Court Act, s 104, provides that subject to the rules, an appeal does not lie to the Court of Appeal from a decision, judgment, order or determination of the Court in a Division constituted by an Associate Judge. However, Supreme Court Rules, Pt 60, r 17 provides that an appeal shall lie to the Court of Appeal, subject to leave where it would otherwise be required, from any decision of the Court in a Division, constituted by an Associate Judge, where, inter alia, that decision is a final decision (subject to immaterial exceptions) [Pt 60, r 17(k)]. The proceeding with which the Associate Judge dealt was a final proceeding for the relief claimed in the Amended Summons, and the decision of the Associate Judge in respect of it was a final decision to dismiss the Summons. Accordingly, any appeal from the Associate Judge lies to the Court of Appeal, and not to a judge in a Division.

5 Where proceedings are commenced in a Division, but under the Act or under the Rules are assigned to the Court of Appeal, the Court in the Division in which the proceedings are pending may, on application by a party or of its own Motion, order that the proceedings be removed into the Court of Appeal [Supreme Court Act, s 51(1)(b)].

6 Counsel for the plaintiff/appellant, having recently identified that the appeal should have been brought to the Court of Appeal, has proposed that I make such an order, and I agree that that is an appropriate course. The solicitor for the defendant consents to that course.

7 Accordingly, by consent, I make the following orders:

(1) Order that the hearing of the Motion today be vacated.

(2) Order, pursuant to Supreme Court Act s 51(1)(b), that the proceedings be removed to the Court of Appeal.

(3) Direct that the matter thereafter proceed as an application for leave to appeal under Supreme Court Rules Pt 51.

(4) Direct that the plaintiff file an amended summons for leave to appeal and the white folder referred to in Supreme Court Rules Pt 51, r 4(B) by 10 August 2007.

(5) Direct that the defendant file and serve its response in accordance with Pt 51 r 4(C) by 24 August 2007.

(6) Adjourn the proceedings to 10 September 2007 before the Registrar of the Court of Appeal for directions.

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