Swartz v Commonwealth [1959] HCA 28; (1959) 102 CLR 340 (25 June 1959)

HIGH COURT OF AUSTRALIA

SWARTZ v. THE COMMONWEALTH OF AUSTRALIA [1959] HCA 28; (1959) 102 CLR 340

Workers' Compensation

High Court of Australia
Dixon C.J.(1), Kitto(1) and Windeyer(1) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth employee - Claim for compensation - Determination by Commissioner - Appeal by claimant - Revocation by Commissioner of determination pending appeal - Substitution of new determination - Magistrate refusing to entertain appeal on ground that the determination had been nullified - Appeal to High Court against magistrate's decision - Whether special leave to appeal necessary - Commonwealth Employees' Compensation Act 1930-1956, ss. 4 (1), 6 (2), 20.

HEARING

Brisbane, 1959, June 16, 25. 25:6:1959
APPEAL and application for special leave to appeal from the Magistrates Court of Queensland.

DECISION

June 25.
THE COURT delivered the following written judgment:-
William Henry Swartz, describing himself as an exempt lift driver of the Queensland at Brisbane against a determination made on 10th March 1958 by the Delegate for the Commissioner for Employees' Compensation under the Commonwealth Employees' Compensation Act 1930-1956. The Magistrates Court falls within the definition of the expression "County Court" employed in that Act and defined in s. 4(1). Section 20 provides that any person affected by any determination or action of the Commissioner under the Act may within a given time appeal to a county court against the determination or action and the court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a re-hearing. It was pursuant to this provision that Swartz appealed. (at p343)

2. He had complained that on 10th September 1953 personal injury by accident arising out of or in the course of his employment by the Commonwealth was caused to him. The determination of 10th March 1958 against which Swartz appealed stated in terms that Swartz had sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth on 10th September 1953, namely, hypertensive carditis with angina. But the determination went on in a separate paragraph to say that the incapacity for work resulting from Swartz's injury on 10th September 1953 ceased to exist on 7th March 1958 (that is three days before the date of the determination) and that thereupon Swartz ceased to be entitled to weekly payments of compensation under the Act. Swartz appealed from the determination within due time to the Magistrates Court. One may suppose that he intended to appeal against the second paragraph of the determination, that bringing weekly payments to an end, and not against the first, which declared that he suffered from hypertensive carditis with angina and that it amounted to personal injury by accident arising out of or in the course of his employment. But in fact the appeal was from the whole determination. The appeal eventually came on for hearing before the Magistrates Court on 16th February 1959. (at p344)

3. A week before that date, however, a delegate for the Commissioner took a new step. Sub-section (1) of s. 6 of the Act provides that the Commissioner shall have power to examine, hear and determine all matters and questions arising under the Act and the Regulations, and sub-s. (2) provides that the Commissioner may reconsider any such determination and may alter, amend or revoke any such determination. These are powers which may be exercised by delegation: s. 7. On 9th February 1959 a delegate proceeded to revoke certain former determinations in Swartz's case including that of 10th March 1958 forming the subject of the pending appeal and in their place to make a new determination. By this instrument it was determined among other things that Swartz sustained personal injury by accident arising out of or in the course of his employment by the Commonwealth on 10th September 1953, namely a sprained left ankle, sprained dorsal muscles and lumbosacral muscle, multiple abrasions and contusions. The document contained provisions in relation to the periods for which compensation had been payable and it dealt with matters such as the cost of medical treatment. But it determined that the incapacity for work of Swartz subsequent to 7th March 1958 did not result from personal injury by accident sustained on 10th September 1953. From the determination or determinations or "action of the Commissioner" embodied in this instrument it was possible for Swartz to appeal in pursuance of s. 20 to the Magistrates Court and in fact he gave a notice of appeal accordingly. But when his pending appeal from the determination of 10th March 1958 which this instrument revoked, or purported to revoke, came on before the Magistrates Court on 16th February 1959, Swartz insisted that it should be heard and determined without regard to the revocation. The magistrate declined to adopt this course and held that with the revocation of the determination appealed from the appeal "lapsed". From this decision Swartz gave a notice of appeal to this Court or alternatively of an application for special leave to appeal. There seems little doubt that in Queensland special leave to appeal is necessary if it is desired to appeal to this Court from a decision under s. 20. See Martin v. Commissioner for Employees' Compensation (1953) Q SR 85 ; Goward v. The Commonwealth [1957] HCA 60; (1957) 97 CLR 355, at pp 359-361 ; Bavcevic v. The Commonwealth [1957] HCA 67; (1957) 98 CLR 296, at p 301 ; Contrast the case of Victoria: The Commonwealth v. Anderson [1957] HCA 44; (1957) 97 CLR 345, at p 348 . But we need not concern ourselves in this case with the distinction between appeals as of right and by special leave; for we think that an appeal by Swartz from the magistrate's decision must fail. (at p345)

4. The magistrate had before him no facts; nor have we. All he knew was that an appeal had been made to him under s. 20 by a claimant against the whole of a determination made in pursuance of s. 6(1) and that since the notice of appeal and before the hearing there had been a complete revocation of the determination, the whole of which was appealed against. For Swartz it is contended that upon a proper interpretation of the provisions of ss. 6 and 20 the power given by s. 6(2) is inapplicable to a determination once there has been a notice of appeal given under s. 20. We do not think this contention can be sustained. The provisions will not bear such a construction. There is no reason in the nature of the remedy given by s. 20 and none in the manner in which the provisions are expressed why the determination should not remain open to the reconsideration of the Commissioner notwithstanding the pendency of an appeal therefrom. Nor can any reason be found why it would not remain subject to the powers of alteration and amendment which s. 6(2) confers. Why should it not also be open to complete revocation? The language of s. 6(2) is unqualified and there is no sufficient ground for an implication which would restrict its operation. It seems clear enough that a determination is open to revocation notwithstanding that an appeal has been instituted. In other words the pendency of the appeal does not deprive the Commissioner of any of the powers which s. 6(2) gives him. It may not be quite right to say that the appeal "lapses" if the Commissioner exercises his power under s. 6(2) or any of them with respect to the determination. The power given by s. 20 to the court in respect of a determination appealed against could not for example, be lost by an alteration or amendment, much less by a reconsideration resulting in a confirmation. The better view is that the "jurisdiction" of the court under s. 20 is not affected by the exercise while the appeal is pending of powers given by sub-s. (2) of s. 6: what is affected is the subject matter of the appeal, the determination. Here the whole subject matter was revoked: the appellant complained of it all and it had all gone. Nothing existed for the magistrate to review. (at p345)

5. The Commonwealth was not unwilling that the appeal should be heard by the magistrate from the determination of 9th February 1959 by which the revoked determination of 10th March 1958 was replaced. But Swartz would not acquiesce in that course and wished to persist in his appeal from the revoked determination. In our opinion no subject matter remained for that appeal. Accordingly the present appeal and application for special leave should be dismissed. (at p346)

ORDER

Appeal and application for special leave to appeal dismissed with costs.