York Civil P/L v Workers Rehab & Comp Corporation No. Scgrg-98-801 Judgment No. S6749

[1998] SASC 6749

YORK CIVIL PTY LTD v
WORKERS REHABILITATION & COMPENSATION CORPORATION
[1998] SASC S6749

Civil

Debelle J

Application for leave to appeal

The applicant seeks leave to appeal from a decision of the Full Bench of the Workers Compensation Tribunal.  Before dealing with the question of leave to appeal it is necessary first to determine whether, in the particular circumstances of this case, an application for leave to appeal is available to a dissatisfied party.  The question arises out of amendments made in 1995 to the Workers Rehabilitation & Compensation Act, 1986 (“the Act”).  There was a second issue in that the application was out of time and so the issue of extending the time in which to make the application also arose.  I decided that it was appropriate, therefore, to give notice of the application to the intended respondent pursuant to Rule 94.01A(2) of the Supreme Court Rules.  The hearing of the application was adjourned.

Yesterday, both parties were heard on the application.  At the conclusion of the hearing I made orders extending the time in which to make the application for leave to appeal and granting leave.  I said I would publish my reasons.  These are the reasons for those orders.

The application arises in the following way. On 19 April 1995 the WorkCover Corporation (“the Corporation”) instituted proceedings in the Industrial Court pursuant to s54(6) of the Act against the appellant to recover moneys it had paid pursuant to the Act for the benefit of the worker named Mr Ahern.  The Corporation alleged that on 30 April 1992, whilst employed by Skilled Engineering Pty Ltd (“Skilled Engineering”), Ahern had sustained injury while carrying out his duties on premises at South Road, Wingfield which were occupied by York Civil Pty Ltd (“York”). Skilled Engineering is a company which carries on the business of making labour available for hire.  When requested, it makes persons available to work for others.  In April 1992, Ahern received a telephone call from Skilled Engineering directing him to attend at a construction site where work was being carried out by York.  Ahern attended at the site.  He was injured in the course of performing duties on the site.  The Corporation paid compensation.  It sought to recover it from York. The Corporation alleged that York owed Ahern a duty of care and that it had acted in breach of that duty.  In the action commenced by the Corporation, York contended, among other things, that Ahern was its employee so that York was not liable pursuant to s54(6) to reimburse the Corporation for the compensation it had paid.

Although the action had been commenced in the Industrial Court, it was in fact heard by the Workers Compensation Tribunal (“the Tribunal”).  That appears to have been a consequence of amendments to the Act which came into force in 1996.   I will refer to the amendments in a moment. The Tribunal found that Ahern was not York’s employee and that the Corporation was entitled to be reimbursed by York.  On appeal, that decision was upheld by the Full Bench of the Tribunal.  The Full Bench delivered its judgment on 14  May 1998. York now seeks leave to appeal against that decision. 

One of the Acts amending the Workers Rehabilitation & Compensation Act is the Act No 75 of 1995 (“the amending Act”).  The amending Act received the Royal Assent on 9 November 1995 and came into force on 3 June 1996, well after the Corporation had commenced its action.  Until the amending Act came into force, proceedings pursuant to s54(6) to recover amounts paid by way of compensation to an injured worker were heard and determined in the Industrial Court: see s54(7)(g) of the Act. Those proceedings must now be heard in the Workers’ Compensation Tribunal (“the Tribunal”).  There is no transitional provision which prescribes who is to hear actions for reimbursement pursuant to s54(6) which had already been commenced before the amending Act came into force.

The amending Act reconstituted the Tribunal: see Part 6 of the amending Act. Applications under s54(6) are heard by either the President or Deputy President of the Tribunal: see s54(7)(g) and the definition of “presidential member” in s3 of the Act. The President is the senior judge of the Industrial Relations Court which, prior  to the amendment, was called the Industrial Court.  The Deputy President of the Tribunal is a judge other than the senior judge of the Industrial Relations Court. Section 8 of the amending Act amended s54(7)(g) to provide that proceedings under s54(6) should be heard and determined by the Tribunal constituted by a presidential member. 

The amending Act also amended the rights of appeal which, until then, had been available under the Workers Rehabilitation & Compensation Act.  The relevant provision is s88I.  It states:

“No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except -

(a)     as provided in this Act; or

(b)     in proceedings before the Full Supreme Court founded on an
         alleged excess or want of jurisdiction.”

Provision is made by s86A for the Full Bench of the Tribunal to state a case for the opinion of the Full Court of this Court.  But that provision does not assist this applicant.  Thus, if the applicant is bound by s88I, its rights of appeal are severely restricted.  There is no relevant provision of the Act which provides a right of appeal under paragraph (a) of s88I.  Thus, York can only appeal if the appeal is founded on alleged excess or want of jurisdiction. There is no right available to York to apply for leave to appeal under the Workers Rehabilitation & Compensation Act.  The application for leave is incompetent. 

The issue in this intended appeal is whether Ahern was an employee of York.  The Full Bench of the Tribunal has decided that he was not.  If he was, the Tribunal did not have jurisdiction to make the order sought.  Thus, on the face of the matter, the appeal from the decision of the Full Bench of the Tribunal raises an issue going to an alleged excess or want of jurisdiction and, to that extent, York has a right of appeal.  It has instituted proceedings seeking judicial review of the decision of the Full Bench.

But the matter does not end there.  York contends that it has a right to seek leave to appeal under s191 of the Industrial and Employee Relations Act, 1994.  Section 191 provides for a limited right of appeal to this Court.  It is in these terms:

“An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if -

(a)     the appeal is based on an alleged excess or deficiency of
         jurisdiction; or

(b)     the Supreme Court grants leave to bring the appeal.”

An application for leave to appeal must be made within 14 days of the date of the judgment or order against which leave to appeal is sought: s191(4).  In addition, the time within which the appeal must be lodged is 14 days from the date of the judgment or order against which the appeal is brought: Rule 95.02 of the Supreme Court Rules.

Given that s191(1) and s88I both provide a right of appeal where an excess or deficiency of jurisdiction is alleged, and the appeal in this case involves an allegation of a deficiency of jurisdiction, it might be said that an application for leave to appeal is otiose.  However, York is concerned lest it be held that the issues do not involve an excess or deficiency of jurisdiction and, out of an abundance of caution, seeks leave to appeal.  Thus, it is necessary to determine whether the right to make an application for leave to appeal is available to it.  That issue turns on whether the relevant provisions are those in s88I of the Workers Compensation & Rehabilitation Act or s191 of the Industrial and Employee Relations Act. 

This action was instituted on 19 April 1995 before the amending Act had come into force.  Indeed, the action was instituted before the amending Act had received Royal Assent.  The Corporation commenced its action in the Industrial Court.  That accorded with the terms of s54(7)(g) as it then stood.  By the time the action came to be heard, the 1995 amendments had come into force and the action was heard by the Tribunal. 

In 1994 the Industrial and Employee Relations Act was enacted.  The relevant parts of that Act came into operation on 8 August 1994, some eight months before the Corporation made its application. That Act reconstituted the Industrial Court and called it the “Industrial Relations Court”.  Transitional provisions were provided in Schedule 1.  Paragraph 5 of Schedule 1 deals with references to the former Industrial Court.  Paragraph 5 reads:

“A reference in an Act or other instrument to the former Court or the former Commission must, where the context admits, be read as a reference to the Court or the Commission under this Act.”

Thus, the reference in s54(7)(g) of the Workers Compensation & Rehabilitation Act to the Industrial Court became a reference to the Industrial Relations Court.  It follows, therefore, that the proceeding commenced by the Corporation had to be initially commenced in the Industrial Court and thereafter continue in the Industrial Relations Court. 

The general rule of the common law which the Acts Interpretation Act, 1915 reinforces is that, when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the statute shows a clear intention to vary such rights: Hutchinson v Jauncey [1950] 1 KB 574 at 579; Zainal v Government of Malaysia [1980] AC 734; Continental Liqueurs Pty Ltd v G.F. Heublein & Bro Inc (1960) 103 CLR 422 at 426. The rights of the parties include the right of appeal: Continental Liqueurs (supra) at 426. When the Corporation instituted its action in the Industrial Court, both the Corporation and York had the right to have that action determined according to the Workers Rehabilitation & Compensation Act as it then stood.  If either party was dissatisfied with the decision of the Industrial Court, by that time reconstituted as the Industrial Relations Court, both parties had the rights of appeal available under the Industrial & Employee Relations Act. That right is within the protection of s16(1)(e) of the Acts Interpretation Act: see Colonial Sugar Refining Co Limited v Irving [1905] AC 369 and Continental Liqueurs Pty Ltd v G.F. Heublein & Bro Inc (supra) at 426. The fact that the action instituted by the Corporation was heard by the Tribunal and not by the Industrial Relations Court does not displace the right. Nor is it an indication of any contrary legislative intention. It was simply an administrative arrangement.

For these reasons, the right to apply for leave to appeal under s191 of the Industrial & Employee Relations Act is available to York.  The matter is fit for leave since it goes to the question of the jurisdiction of the Tribunal. 

The decision of the Full Bench of the Tribunal was delivered on 14 May 1998.  This application was commenced on 15 June 1998.  As already noted, the time within which to institute an appeal under s191 is fourteen days. York is, therefore, out of time and must seek an extension of time within which to appeal if it seeks to prosecute the appeal.  York has applied for an extension of time in which to make its application.  Mr Hanus for the Corporation has candidly stated that the Corporation is not prejudiced by the delay.  In all the circumstances, it is appropriate to extend the time in which to appeal.

For these reasons, I made the following orders:

1. Extending the time within which to apply for leave to appeal to 15 June 1998.

1. Granting leave to appeal.

1. That this appeal be heard together with the application in Action No 800/98.

1. Question of costs reserved to the Full Court.