Tasmanian Government Insurance Office Board v McLeod

[1991] TASSC 58

Serial No 33/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Tasmanian Government Insurance Office Board v McLeod [1991] TASSC 58; A33/1991

PARTIES:  TASMANIAN GOVERNMENT INSURANCE OFFICE BOARD
  FRENCH'S BUILDING SERVICES PTY LTD
  v
  McLEOD

FILE NO/S:  LCA 1/1991
DELIVERED ON:            21 May 1991
JUDGMENT OF:              Crawford J

Judgment Number:  A33/1991
Number of paragraphs:  19

Serial No 33/1991
List "A"
File No LCA 1/1991

TASMANIAN GOVERNMENT INSURANCE OFFICE BOARD
and FRENCH'S BUILDING SERVICES PTY LTD v McLEOD

REASONS FOR JUDGMENT  CRAWFORD J

21 May 1991

1. The application is expressed to be for an order that "the time for serving the Notice of Appeal from order (sic) of Mr Commissioner Morgan delivered on the 12th March, 1991 be extended".

1. The respondent claimed compensation under the Workers Compensation Act 1988. There was a hearing. The principal issue was whether he was a worker or an independent contractor. The Workers Compensation Commissioner reserved his decision. He resolved that he should find that the relationship had been one of master and servant and that he should therefore determine that the respondent was entitled to compensation. The circumstances in which he made his formal determination is a mystery on the material before me.

1. On the basis of the evidence and admissions made, it appears that the Commissioner caused to be printed lengthy reasons for his determination which included these statements:

"I find that the relationship between them was master and servant at the time of the accident and therefore determine that the claimant is entitled to compensation … I reserve liberty to the parties to address me or adduce evidence if need be, as to the appropriate rate of Compensation".

The reasons were headed as follows:

"BEFORE COMMISSIONER MORGAN: HOBART

FRIDAY THE 8TH FEBRUARY, 1991

DECISION DELIVERED 12TH MARCH, 1991"

1. The document purported to express a determination but not an order. Section 61(1) of the Act provides that where the Commissioner makes a determination he "shall make an order that gives effect to the determination". I very much doubt that the Commissioner has reached that stage yet because of his desire for addresses or evidence. Subsection (3) provides that where the Commissioner makes an order, other than a consent order, "he shall provide a statement in writing of his reasons for making the determination to which the order relates". By subs(5) the Registrar is then obliged, "as soon as practicable after the time that the order is made, to arrange for a copy of the order together with, where applicable, a copy of any statement provided by the Commissioner under subsection (3), to be served on all parties to the proceeding to which the order relates".

1. Notwithstanding that it has not been made to appear that an order was made, but only a determination, a document was apparently prepared and signed by the Deputy Registrar. It was headed "NOTICE OF ORDER" and it referred to s61. It stated the names of the parties and was dated 19 March 1991. It purported to give notice that "the above claim has been determined by the Commissioner following the hearing on the 8th day of February, 1991 when the Commissioner made an order as shown herein. REASONS FOR ORDER AS PER ATTACHED DECISION".

1. The notice and accompanying reasons were received on Tuesday 26 March 1991 by the first applicant which had not been advised that a determination was to be made on 12 March nor, I presume, on any other date. So, on the face of what I have before me, the first applicant first came to be notified of the determination fourteen days after it was made and without being given by the Commissioner any opportunity of knowing about it at any earlier time. The second applicant also knew nothing of the determination before 26 March.

1. The first applicant, being the insurer of the second applicant, consulted with its solicitor and on Thursday 28 March gave instructions for an appeal to be instituted. The solicitor observed that the form entitled "NOTICE OF ORDER" was dated 19 March and assumed that the time limit for commencing an appeal itself commenced on that date. He thought twenty–one days was the time limit for serving a notice of appeal under the rules of this court. On the basis of his thinking he therefore had until 10 April to effect service. Easter intervened. The next working day for the solicitor and for the registry of this court was Wednesday 3 April and the solicitor, acting expeditiously, filed a notice of appeal in this court on that day. On the following day the notice was served on the respondent.

1. The applicant's solicitor submitted that the rules concerning institution of the appeal are to be found in Division IV of O76 of the Rules of Court which, by virtue of r67(1) apply to an appeal from a determination of a "statutory tribunal (not being a court)" under any Act. Rule 69(2) requires service of a notice of appeal "within twenty–one days from the date of the determination or such extended time as a judge may allow". Subrule (1) requires service on every other person who appeared before or who was heard by the tribunal and also the registrar, secretary or other like officer of the tribunal. The applicant's solicitor overlooked the need to serve such an officer but no point was taken by the respondent about that before me.

1. Rule 70 requires that in the case of an appeal from a statutory tribunal (not being a court) the appellant shall file a copy of the notice of appeal in the Principal Registry of this court "within the time prescribed for serving the notice of appeal or such extended time as a judge may allow". By subrule (2) a judge may extend that time notwithstanding that the time limited has expired.

1. During the course of the argument before me it was common ground that the Commissioner made his determination on 12 March without any prior notification to the applicants.

1. If the applicants' counsel was correct in his submission that Division IV of O76 applies to the appeal then the last day for service of the notice of appeal was Tuesday 2 April. But the last day for filing became Wednesday 3 April because of the provisions of O79 r3 allowing an extra day if 2 April was a court holiday, which it was. Service of the notice on the respondent on 4 April would therefore have been two days late notwithstanding that it was only four working days after first notification to the applicants of the determination. But the filing would have been within time.

1. However, the respondent's counsel argued that Division IV of O76 is not applicable and that Division II establishes the procedure for the appeal. By virtue of r37 that division applies to all "appeals (which are subject to the provisions of the Act) from inferior courts". Rule 40(1) requires that a notice of appeal in such a case shall be served within fourteen days from the date of the judgment. (which term includes a determination) "or such extended time as the judge may allow". Service is required by r39(1) to be effected upon all parties directly affected by the appeal. Rule 41 (1) requires filing of the notice in the inferior court and in this court within the time prescribed for service or such extended time as a judge may allow. It was therefore argued for the respondent that the last day for filing and service was 26 March, which was the very day on which notice of the determination was received.

1. Whichever division applies, what occurred was most unfair to the applicants on the evidence presented to me. In the interests of justice the Commissioner has a duty to ensure that the parties are given sufficient notice to enable them to learn of the determination on the day it is made and to give them all of the time allowed by the rules in which to decide whether to appeal.

1. An appeal lies by virtue of s63(2) of the Workers Compensation Act 1988 subject to the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court. The answer to the question whether the appeal is from an "inferior court" will determine which Division of O76 applies. In Electrolytic Zinc Company of Australasia Limited v Fisher 31/1989 the question was raised but Underwood J found it unnecessary to decide it. I find myself forced to do so because of the course of the hearing before me, the merits of granting an application for an extension of time not having been fully argued yet. I add, however, that I find it difficult to contemplate that my resolution of the question will affect one way or the other the eventual decision whether the applicants should be permitted to proceed with their desire to appeal, taking into account the little time they were given to properly institute an appeal.

1. I hold that the determination of the Commissioner was a determination of an inferior court. There can be no doubt that if it was a determination of a court it was that of a court inferior to this one. My reason for concluding that it was a determination of a court is to be found in ss 16 and 17(1) of the Act. They provide:

"16      There is established by this Act a division of each court of requests to be known as the workers compensation division of that court.

17 – (1) Each division shall be constituted by the same person who shall be known as the Workers Compensation Commissioner."

1. The establishment of divisions of courts is not uncommon outside Tasmania. In England the High Court is divided into the Family Division, the Chancery Division and Queens Bench Division. The Supreme Court of New South Wales has its divisions. In this State the Court of Requests (Small Claims Division) Act 1985 established by s6 "a division of each court of requests to be known as the small claims division of that court". Since the enactment of the Workers Compensation Act 1988 further provision has been made by Parliament for court divisions. By s6 of the Magistrates Court (Small Claims Division) Act 1989 there was established "a division of the Magistrates Court to be known as the small claims division of the Magistrates Court". Section 7 made it clear that the small claims division was to be a court. That Act, of course, repealed the Court of Requests (Small Claims Division) Act 1985. At the same time there was enacted the Magistrates Amendment Act 1989 which amended the Magistrates Act 1987 to provide inter alia in s3B(2) that the Magistrates Court should exercise its jurisdiction in divisions which might be created.

1. There is a further provision in the Workers Compensation Act 1988 which is significant. It is s166. It amended the Magistrates Act 1987 by providing inter alia that the definition of "magistrates courts" in s3 of the latter Act would include "any proceedings before the Workers Compensation Commissioner or a part–time Workers Compensation Commissioner under the Workers Compensation Act 1988". The other institutions falling within the statutory meaning of "magistrates courts" in that Act were stated to be courts of summary jurisdiction within the meaning of the Justices Act 1959, local courts within the meaning of the Local Courts Act 1896, any proceedings before the Special Commissioner or a part–time Special Commissioner under the Court of Requests (Small Claims Division) Act 1985, children's courts within the meaning of the Child Welfare Act 1960 and any proceedings before a coroner under the Coroners Act 1957. The intention of Parliament that a determination of the Workers Compensation Commissioner would be the determination of a court is clear

1. The Shorter Oxford English Dictionary provides the meaning of "division" as follows:

"What produces, or is produced by, division. 1. What divides or marks separation; a partition ME 2 One of the parts into which anything is or may be divided; a portion, section ME spec b a portion of a country, etc, as marked off for some political, administrative, or other purpose....."

These meanings reinforce my conclusion.

1. Accordingly, I hold that a determination by the Commissioner is a determination of an inferior court. It follows that the procedure for an appeal from such a determination is governed by Division II of O76 of the Rules of Court and not by Division IV. By virtue of r40(1) the notice of appeal should have been served within fourteen days from the date of the determination "or such extended time as the judge may allow". By virtue of r41 (1) copies of the notice of appeal should have been filed as therein directed "within the time prescribed for serving the notice of appeal or such extended time as a judge may allow". The primary limitation period of fourteen days expired on 26 March 1991 by which time neither service or filing had occurred. I will hear further from counsel concerning the merits of the application.