Taylor v Centennial Newswtan Pty Ltd
[2008] NSWDC 92
•13 May 2008
NEW SOUTH WALES DISTRICT COURT
CITATION:
Taylor v Centennial Newswtan Pty Ltd [2008] NSWDC 92
FILE NUMBER(S):
Newcastle 122/07
HEARING DATE(S):
8 May 2008
JUDGMENT DATE:
13 May 2008
PARTIES:
Roy Taylor ( Plaintiff)
Centennial Newstan Pty Ltd (Defendant)
JUDGMENT OF:
Sidis DCJ
COUNSEL:
B D Dooley SC - P M O'Rourke ( Plaintiff)
P J Menary (Defendant)
SOLICITORS:
Whitelaw McDonald (Plaintiff)
Lander & Rogers (Defendant)
CATCHWORDS:
WORKERS COMPENSATION
election to pursue permanent loss compensation
whether the District Court has residual jurisdiction under s 151A(3)(b) of Workers Compensation Act 1987
statute not amended following legislative reforms
LEGISLATION CITED:
Civil Procedure Act 2005
Compensation Court Repeal Act 2002
District Court Act 1973
Workers Compensation Act 1984
Workers Compensation Act 1987
CASES CITED:
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Deveigne & Anor v Askar (2007) 239 ALR 370
KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516
Re Pritchard (deceased) [1963] CH 502
TEXTS CITED:
DECISION:
1. The proceedings are dismissed.
2. The plaintiff is to pay the defendant’s costs of the proceedings and those involved in the motion.
3. The exhibits may be returned.
JUDGMENT:
JUDGMENT
On 14 March 2007 the plaintiff filed a statement of claim in the District Court Coal Miners’ Workers Compensation List.
The proceedings sought compensation, including permanent loss compensation, pursuant to the provisions of the Workers’ Compensation Act 1987. Those proceedings were commenced against Elcom Collieries as the first defendant and Centennial Mining as the second defendant. Those proceedings were discontinued on 15 June 2007.
On 24 April 2007 the plaintiff filed in the District Court Common Law Division a statement of claim seeking damages at common law. Those proceedings were commenced against Centennial Newstan Pty Ltd. The defendant has applied to the Court to strike out the claim for common law damages, asserting that, by filing the statement of claim in the court’s Coal Miners’ Workers Compensation List, he was commencing proceedings in the Compensation Court to recover …. permanent loss compensation and that he was therefore bound by an election to pursue permanent loss compensation and was no longer entitled to recover common law damages in respect of his claimed injuries.
The plaintiff responded with two arguments.
(1) that the proceedingswere a nullity; and
(2) that s 151A(3)(b) had no operation on proceedings commenced in the District Court.
ISSUE 1 - NULLITY
Neither of the defendants named in the statement of claim filed in the Coal Miners’ Workers Compensation List had any legal status. Search documents obtained through the Australian Securities and Investments Commission established that there are no corporate entities operating under the names of the two nominated defendants. It was argued therefore by the plaintiff that, where the party joined as a defendant was nonexistent, there was no existing action and the proceedings were a nullity to which the rules of the Court such as those applying to amendment cannot apply.
The plaintiff’s employer at the time of the claimed injury was Centennial Newstan Pty Ltd, the defendant in the common law proceedings.
It was argued that if the rules could be applied then the proceedings remained a nullity until such time as the defendant was properly named through an amendment. This was not done prior to the discontinuance of the proceedings.
In respect of this argument, both parties relied upon the decision of the New South Court of Appeal in Deveigne & Anor v Askar (2007) 239 ALR 370. In Deveigne, the problem arose because the defendant died before proceedings were commenced. Hodgson J agreeing with Giles and McColl JJA at paragraph 2, expressed doubt that proceedings against a nonexistent party were truly a nullity.
McColl J delivered the leading judgment in which she considered the distinction between a nullity and an irregularity in proceedings. She referred extensively to the decision of the High Court in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, quoting from paragraph [13] of the joint judgment as follows:
There is also a very real difficulty in characterising proceedings as “invalid”. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules.
McColl J also discussed two of the three classes of nullity suggested by Lord Justice Upjohn in Re Pritchard (deceased) [1963] CH 502 at 523 to 524. The first of those was that proceedings never come to the notice of the defendant because they were never served. This was not relevant in this case because the nominated defendants were nonexistent and could not have been served in any event. However, McColl J concluded that the authorities supported the view that in such a situation proceedings were a nullity in the sense that someone acting in the interests of the nominated defendant could have them set aside for non service.
The second class related to proceedings brought by or against a nonexistent person or company. McColl J discussed the principle applying to proceedings commenced by nonexistent persons which she said were a nullity which the Court, would by order, dismiss. Those proceedings she said could not be regularised by the addition of other parties.
McColl J reviewed a number of other authorities and concluded that similarly, proceedings against a non existing company were nullities. She then proceeded to consider the consequences of that conclusion. This involved drawing a distinction between proceedings that were null and void ab initio and those that were affected by an irregularity that is able to be waived or remedied. She said the result was dependent upon the jurisdiction of the court involved.
Justice McColl referred to the decision of Sheller J in KBRV Resort Operations Pty Ltd v Chilcott (2001) 51 NSWLR 516 in which he stated that the District Court of New South Wales, while in some circumstances having no jurisdiction to hear and dispose of a claim, had implied authority to ensure that justice is administered by striking out or dismissing the action.
In this case a statement of claim was filed against entities that could not respond to the claim.
I have reached the conclusion that this was an irregularity in their form so that as commenced the proceedings were null. In my view the regularity could have been dealt with in one of three ways.
1. The waiver by the appropriate defendant, Centennial Newstan Pty Ltd, of the irregularity.
2. The amendment of the statement of claim in accordance with the provisions of the Civil Procedure Act 2005 and the Rules to join the appropriate defendant.
3. An order of the Court dismissing the proceedings.
In any of these cases the procedural jurisdiction of the Court would necessarily have been involved. I have therefore concluded that the commencement of the proceedings engaged the procedural law relevant to the District Court, although they were vulnerable to an order dismissing them.
ISSUE 2 - OPERATION OF S 151A(3)(b) ON PROCEEDINGS COMMENCED IN THE DISTRICT COURT
This section of the Workers’ Compensation Act 1987 refers to proceedings commenced in the Compensation Court. The plaintiff’s searches revealed amendments to numerous statutes which substitute the District Court or the Workers’ Compensation Commission for the Compensation Court as a consequence of the repeal of the Compensation Court Act 1984. It was stated that no amendment could be located that made any similar amendment to s 151A(3)(b) of the Workers’ Compensation Act 1987.
Residual jurisdiction to hear and determine all matters involving coal miners except matters arising under Part 5 of the Workers’ Compensation Act 1987 was conferred on the District Court by operation of the Compensation Court Repeal Act 2002.
Provisions to deal with this residual jurisdiction were inserted into the District Court Act 1973 in 2004 in sections 142G to 142P inclusive. Section 142I sets out the extent of the Court’s residual jurisdiction. It is in very broad terms and it reads as follows:
For the purposes of exercising its residual jurisdiction, the District Court has the same powers, authorities, duties and functions as the Compensation Court had under the Compensation Court Act 1984 immediately before 1 January 2004. The powers conferred by this section are not limited by any other provisions of this division.
The District Court in its common law jurisdiction has power and authority to deal with claims by coal miners under Part 5 of the Act only to the extent that the claimant is not disentitled from pursuing common law rights.
I have concluded that the commencement of proceedings in the District Court exercising its residual jurisdiction in respect of coal miner matters effected an election by the plaintiff to pursue permanent loss compensation for the following reasons:
1. The clear intention of s 151A(3)(b) is that the election to pursue permanent loss compensation becomes binding upon the commencement of proceedings.
2. It is the clear intention of the District Court Act in respect of its residual jurisdiction that workers’ compensation rights of coal miners be heard and determined in the same manner as if the Compensation Court continued to operate.
3. The term residual jurisdiction is employed because it is jurisdiction that remained in the Compensation Court.
4. The District Court has effectively become the Compensation Court for the purposes of exercising this residual jurisdiction.
5. In my view it does not matter that the name of the Court has changed. The District Court continues to deal with the jurisdiction of the Compensation Court.
The result is that the claim for common law damages cannot be allowed to continue.
In respect of costs the plaintiff argued that the entitlement of the defendant to costs should be limited to those incurred after 14 February 2008 when the defendant first raised the issue with the plaintiff and that there was delay by the defendant in bringing the matter to the attention of the plaintiff after the common law action was commenced in April 2007. Although I have some sympathy for the plaintiff in that argument, it does appear to me that the proceedings were commenced quite irregularly and as a consequence the plaintiff must face the inevitable.
ORDERS
1. The proceedings are dismissed.
2. The plaintiff is to pay the defendant’s costs of the proceedings and those involved in the motion.
3. The exhibits may be returned.
LAST UPDATED:
2 June 2008
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