Smith v Griffin Coal Mining Co Pty Ltd - [2000] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: BUNBURY

CITATION: SMITH -v- GRIFFIN COAL MINING CO PTY LTD [2000] WADC 100

CORAM: WILLIAMS DCJ

HEARD: 27 MARCH 2000

DELIVERED : 20 APRIL 2000

FILE NO/S: CIV 74 of 1999

BETWEEN: EDWARD CHARLES SMITH
Plaintiff
AND
GRIFFIN COAL MINING CO PTY LTD
Defendant

Catchwords:

Workers' compensation - Alternative rights against employer for damages at common law - Application for leave to bring action before Registrar - Registrar granting leave - Appeal against Registrar's decision - Whether nunc pro tunc order - Whether procedural unfairness.

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA) s93D

Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) s32

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr M Owens
Defendant: Mr I Watson

Solicitors:

Plaintiff: Max Owens & Co
Defendant: Slee Anderson Pidgeon

Case(s) referred to in judgment(s):

Bingham and Ors v England (1997) 17 WAR 226
Escobar v Classic Property Services WA Pty Ltd [1999] WADC 149
Guardian of West Ham v Church Wardens of Bethnal Green (1985) 1 QB 662
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Lusef v J McPhee and Son (Australia) Pty Ltd [1999] WADC 131
Whiley v Hammersley Iron Pty Ltd [1999] WADC 165

Case(s) also cited:

Nil

WILLIAMS DCJ:

Introduction

This is an appeal by the defendant against the orders of the Registrar made on 17 September 1999 and 17 December 1999 wherein he ordered that:
At the hearing on 17 September 1999:
1.The plaintiff have leave to commence common law proceedings for a disability sustained by the plaintiff as pleaded in the originating summons whilst in the employ of the defendant.
2.The order (being 1 above) not be extracted until further order.
At the hearing on 17 December 1999:
3.The plaintiff have leave to extract the order made on 17 September 1999, such order to date from 17 September 1999.

The facts

The plaintiff in this action has worked all of his life in heavy machinery. He commenced employment with the defendant, a large mining company in July 1987. As a result of a series of work caused injuries whilst working with the defendant he has been left with L5/S1 and L4/5 disc lesions and degeneration of facet joints mainly at the L5/S1 and is unstable at L4/5 and L5/S1 lumbar segments. Having suffered these incapacities for work the plaintiff says that his employment was terminated by the defendant on 23 August 1999 because he was unable to keep up with work expectations as a result of his injury.
On 26 August 1999 the plaintiff issued an originating summons for leave to commence common law proceedings pursuant to the provisions of s93D of the Workers' Compensation and Rehabilitation Act 1981 and amendments ("the Act"). On 30 August 1999 the plaintiff filed an affidavit in support of the originating summons.
On 2 September 1999 the originating summons was served on the defendant together with the affidavit and a certificate of readiness and notice of appointment to hear originating summons with a return date of 1 October 1999.
On 15 September 1999 the plaintiff's solicitors spoke to the Registrar of the Court requesting that the hearing be brought forward to 17 September 1999.
On 9 September 1999 the defendant filed a memorandum of appearance.
On 17 September 1999 the originating summons was heard and orders were made in the absence of legal representation for the defendant or an affidavit in opposition to the making of the order.
The orders made by the Registrar were as follows:
"1.Leave to commence common law proceedings for a disability sustained by the plaintiff as pleaded in the originating summons whilst in the employ of the defendant.
2.The order not to be extracted until further order.
3.The defendant to file and serve an affidavit in reply on or before 22 October 1999.
4.The plaintiff do file an affidavit in reply on or before 5 November 1999.
5.Adjourned to 12 November 1999 at 10.30am for hearing.
6.Costs reserves."
On 20 September 1999 the defendant filed an affidavit in support of an application for directions and confirming the defendant's intention to oppose the relief sought.
On 5 October 1999 s32 of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) came into operation. The effect of that was to repeal s93D of the Act as it stood at the date of the grant of leave and to introduce other provisions which have the effect that no grant of leave is now required but there are other statutory restrictions on the right of a worker to seek damages from an employer at common law.
Section 32 of the Amendment Act provides, inter alia, as follows:
"7.The amended provisions do not affect the awarding of damages in proceedings –
….
(b)For the commencement of which the District Court gave leave under the former provisions before (5 October 1999),
And the former provisions continue to apply in relation to those proceedings."
On the 21 October 1999 the defendant filed an affidavit in opposition to the plaintiff's application to commence common law proceedings.
On 4 November 1999 the plaintiff filed a further affidavit.
On 17 December 1999 the continued hearing of the originating summons came on for hearing and the Registrar made the following order, inter alia:
"1.Leave to extract the order made 17 September 1999 such order to date from 17 September 1999."
On 21 December 1999 the defendant filed the notice of appeal.

Principals applicable in relation to appeals

The jurisdiction exercised by the Registrar of the District Court in relation to interlocutory matters is a delegated jurisdiction. A condition of the delegation of this jurisdiction is the provision for a complete review de novo before a Judge of the District Court. In conducting such an appeal, each party may rely on evidence given in affidavit or orally before the Registrar. Furthermore, a re-hearing of the matter would also permit the admission of further evidence, without leave, subject to the discretion of the Judge to exclude such evidence where it is irrelevant or where it would be unjust to admit it. It would be wrong to adopt a more restrictive approach: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 per Malcolm CJ at 28-29.

Submission of the defendant

In relation to the orders of 17 September 1999 it is the submission of the defendant that the Registrar ought not to have given the plaintiff leave as he had not heard from the defendant or its solicitors who were on the record or alternatively that he did not have the power to make a nunc pro tunc order in the circumstances.
The plaintiff's certificate of readiness and notice of appointment to hear originating summons were filed before the defendant had entered its memorandum of appearance. The certificate of readiness was filed certifying that:
"1.Any requisite directions had been obtained.
2.All necessary parties have been joined and served.
3.An affidavit has been filed proving service on any party or person who has not entered an appearance.
4.The estimated length of the hearing is one hour.
5.So far as the plaintiff is concerned the matter is ready to proceed to a hearing."
A hearing date for 1 October 1999 was allocated before the memorandum of appearance was entered. The hearing was brought forward to 17 September 1999 on the request of the solicitor for the plaintiff.
The Consolidated Practice Directions of the District Court (No 5.2) provide that applications for leave to commence proceedings pursuant to s93D shall be made by originating summons and proceed in accordance with O58 of the Supreme Court Rules. Order 58(19) provides for an orderly sequence within which matters of procedure are to occur. The provisions of O58(19) are silent on the requirements for direction.
On 20 September 1999 the affidavit of John Roderick Brooksby sworn 16 September 1999 in support of directions was filed.
It is the submission of counsel for the defendant that on the hearing of the application on 17 September 1999 the Registrar was aware that:
a)The defendant was unrepresented despite a memorandum of appearance having been entered.
b)The hearing which was listed for 1 October 1999 had been brought forward at the request of the plaintiff.
c)Notwithstanding the defendant's position the Registrar proceeded to hear the application and made the orders referred to earlier in these reasons.
The defendant says the Court should have given directions as to the filing of affidavits and should have ordered the application proper to be transferred to Perth for further hearing before 5 October 1999 deadline (which deadline date the defendant accepts was unknown at that stage).
It is the defendant's submission that the orders were made in the absence of any affidavit evidence on behalf of the defendant when clearly the Court was mindful that the defendant should have had the opportunity of response and as such the order should not have been made at that point in time.
That is a submission that I accept. However in my view any procedural unfairness that occurred on 17 September 1999 was cured by the Registrar giving the defendant a full hearing on the merits on 17 December 1999. The defendant makes no complaint about not getting a hearing on the merits on that date. Furthermore in my view the defendant has complied with the Registrar's orders of 17 September 1999 in that the defendant filed an affidavit in opposition to this application and attended on the hearing on 17 December and argued the application on its merits.
In my view this has the effect of curing any procedural unfairness which occurred at the hearing on 17 September 1999.
It is then further said in the alternative that the Registrar did not have the power to make a nunc pro tunc order in the circumstances on 17 September 1999. Insofar as a nunc pro tunc order is a "now" in place of "then" or an anti-dating of an order in my view no such order has been made by the Registrar. Nothing the Registrar did on 17 September 1999 is anti-dated.
The defendant points to O42 r2(1) of the Rules of the Supreme Court which provide as follows:
"2.(1) A judgment order of the Court takes effect from the day
of its date.
(2)Such judgment or order shall be dated as of the day on which it is announced given or made unless the Court orders that it be dated as of some earlier or later date in which case it shall be dated as of that other day."
In my view the order made by the Registrar was an entirely proper order. It is clear from the 1999 Supreme Court Practice (White Book) para 42–3–2 that a proviso may be added to a judgment or order to the effect that it is not to be entered or drawn up before a certain period of time. It is my view ordering that an order not be extracted without a further order is of the same effect.
It is not said that on 17 December 1999 the defendant was not given a fair hearing on the merits. But what is said is that the Registrar in giving leave to extract the order made on 17 September 1999 and in also backdating the order relies on the decision to grant leave when he had not heard from the defendant.
Although in backdating the order the Registrar did make an order nunc pro tunc in my view it was unnecessary for him to do so. Had he merely given leave to extract the order made on 17 September 1999 when the order of 17 September 1999 is extracted it relates back to the day on which it was pronounced: Guardian of West Ham v Church Wardens of Bethnal Green (1985) 1 QB 662.
It is the submission of counsel for the defendant that the power of the Court to make an order nunc pro tunc and/or anti-date an order has "been exercised cautiously and only where there has been something exceptional in the facts to justify the making of such an order: Bingham and Ors v England (1997) 17 WAR 226 per Kennedy ACJ at 234.
However in my view it was unnecessary for the Registrar to backdate the order and in merely giving leave to extract the order made on 17 September 1999 the order would take effect from that date.
It follows in my view that the appeal should be dismissed.
If I am wrong in my view that the procedural irregularity which occurred on the hearing before the Registrar on 17 September 1999 has been cured by the proceedings heard on 17 December 1999 then for the reasons stated by Macknay DCJ in Whiley v Hammersley Iron Pty Ltd [1999] WADC 165, I am of the view that would not therefore entitle the defendant on this appeal to have the decision of the Registrar set aside. The appeal would then have to be dealt with on its merits. Counsel before me on the hearing of the appeal informed me that the defendant did not contest the matter on the merits of the application under s93D. It therefore follows that the plaintiff would have a walk-up case on the merits and succeed in the appeal in any event.
Furthermore for the reasons stated by Yeats DCJ in Lusef v J McPhee and Son (Australia) Pty Ltd [1999] WADC 131 and Commissioner Reynolds in Escobar v Classic Property Services WA Pty Ltd [1999] WADC 149 I am of the view that the repeal of s93D on 5 October 1999 does not affect the plaintiff's right to have the appeal determined under the repealed legislation.
The appeal is dismissed.