J Robins (Chippendale) Pty Ltd v Sakic [1986] HCA 53; (1986) 161 CLR 410 (23 September 1986)

HIGH COURT OF AUSTRALIA

J. ROBINS (CHIPPENDALE) PTY. LTD. v. SAKIC [1986] HCA 53; (1986) 161 CLR 410
F.C. 86/054

Workers' Compensation (N.S.W.)

High Court of Australia
Mason(1), Wilson(1), Brennan(2), Deane(3) and Dawson(1) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Workers' Compensation Commission - Abolition - Substitution of Compensation Court - Jurisdiction of Court to review awards made by Commission - Workers' Compensation Act 1926, Pts IV, IVA - Compensation Court Act 1984, s. 17(4) - Miscellaneous Acts (Workers' Compensation) Amendment Act 1984, Sched. 2, cl. 4(1).

HEARING

1986, July 31; September 23. 23:9:1986
APPEAL from the Supreme Court of New South Wales.

DECISION

MASON, WILSON AND DAWSON JJ.: In 1984 the New South Wales Parliament effected major changes to the law of workers' compensation in New South Wales. The Workers' Compensation Commission ("the Commission") was abolished and replaced by two bodies: the Compensation Court ("the Court") with responsibility for carrying on what may be broadly described as the judicial work formerly performed by the Commission and the State Compensation Board ("the Board") to fulfil the purely administrative functions formerly carried out by the Commission. The sole issue which is raised by the present appeal is whether the Court has jurisdiction to entertain an application for the rescission ab initio of an award which was made in 1983 by the Commission providing for the payment of compensation by the appellant to the first respondent. The basis of that application is an allegation that the award was obtained by fraud.

2. There would appear to be no reason of principle or legislative policy why the Court should not possess the power to rescind an award by the Commission. The Commission possessed it: Workers' Compensation Act 1926 (N.S.W.), as amended, s.36(2), prior to its repeal by the amending Act No. 90, 1984. The Court has the power to rescind its own orders: Compensation Court Act 1984 (N.S.W.), as amended, ("the Court Act") ss.17(4), 17(4A). Furthermore, the Court may review any order for a weekly payment, whether that order was made by the Court or the Commission: Workers' Compensation Act, s.60(1), as read with the Miscellaneous Acts (Workers' Compensation) Amendment Act 1984 (N.S.W.) ("the Miscellaneous Amendment Act") Schedule 2, cl.4(1). The question is whether there is an unintended gap in the legislation. The New South Wales Court of Appeal concluded that there was a gap, and that it was impossible, in the context of the legislative history, to construe the words of s.17(4) of the Court Act to include decisions previously made or given by the Commission. The present appeal is from that decision of the Court of Appeal.

3. There are two provisions of the legislative scheme which call for particular consideration. The first is s.17(4) of the Court Act in so far as it confers positive power on the Court. As amended in 1985, the subsection reads as follows:

"Nothing in subsection (3) shall prevent the Court
constituted by a Judge from reconsidering any
matter which has been dealt with by it, or from
rescinding, altering or amending any decision
previously made or given by the Court so
constituted, all of which the Court shall have
authority to do".
the Miscellaneous Amendment Act. So far as material, that provision reads:

"Subject to this Act, to the extent that any act,
matter or thing done ... before the appointed day
by ... the Commission would, but for the enactment
of the amending Acts, have had, on or after that
day, any force or effect or been in operation, that
act, matter or thing shall -

(a) to the extent that that act, matter or thing
would have been an act, matter or thing done
... by ... the Court had Schedule 6 to the
Workers' Compensation (Amendment) Act, 1984,
been in force at that time - be deemed to have
been done ... by ... the Court".

Paragraph (b) of cl.4(1) refers, inter alia, to acts performed by the Commission in the exercise of its administrative functions and deems them to have been done by the Board.

4. The Court of Appeal concluded that the reference in s.17(4) to a matter dealt with or decision previously made or given by "the Court constituted by a Judge" could not be construed as embracing a decision of the former Commission even if such a decision was relevantly deemed to have been given "by the Court". It found support for this conclusion with respect to s.17(4) of the Court Act in the view it took of the amendment that was effected to that provision by the Compensation Court (Amendment) Act 1985 (N.S.W.). That amendment inserted in s.17(4) the phrases "constituted by a Judge" and "by the Court so constituted", and included a new subsection, s.17(4A), providing for reconsideration and rescission of decisions by Commissioners. In the view of the Court of Appeal, the amendment made it plain that the legislative purpose expressed in s.17(4) is that it is only matters which have been "dealt with by it" (that is to say, decisions previously made or given "by the Court") that the Court is empowered to reconsider. The result of this view of s.17(4) was that the Court of Appeal found that any reliance upon the transitional legislation was unavailing. The Court of Appeal also considered that the appellant employer's reliance upon cl.4(1)(a) of Schedule 2 of the Miscellaneous Amendment Act was misplaced for the reason that the provision was, in any case, confined to administrative and not judicial acts.

5. It is convenient to consider first the last-mentioned point. With all respect, there appears to us to be no reason to dismiss cl.4(1)(a) of Schedule 2 of the Miscellaneous Amendment Act as being confined to administrative acts. Bearing in mind that the broad purpose of the legislative scheme was to abolish the Commission and distribute its functions between the Court and the Board with the former taking the adjudicative functions and the latter the administrative functions, the broad wording of the prefatory part of cl.4(1) is apt to embrace the whole range of actions of the Commission whether associated with its judicial role or its administrative functions. The subject matter of the subclause, so far as material, is expressed to be "any act, matter or thing done ... before the appointed day ... by the Commission". Paragraphs (a) and (b) then notionally distribute between the Court and the Board respectively the actions of the former Commission according to whether, had the new legislative scheme been in force at the time when it was done, the particular act would have been performed by the one or the other. In each case the act is deemed to have been done by the appropriate body.

6. It was argued for the respondent that whether or not cl.4(1)(a) extended to judicial acts, the wording of the subclause did not bring an award made by the Commission within its reach. In the first place, it was said that the subclause is confined to acts which would have continued in operation after the appointed day "but for the enactment of the amending Acts" and the words "but for" confined the operation of cl.4(1) to acts which "the amending Act" had deprived of any future operation. Since the award in question continued in operation, it was not, according to the argument, within the scope of cl.4(1). In our view, however, the argument breaks down at the threshold in that it gives to the phrase "but for" a meaning and effect which, although open as a matter of language, are quite different from those which it was, as a matter of plain legislative intent, meant to have. The concern of cl.4(1) is to ensure that the operation of any actions of the Commission which are not fully spent by the appointed day shall be continued thereafter in full force and effect as if they were the actions of the Court or Board as the case may be. There was an obvious risk that the abolition of the Commission effected by the amending Acts was liable to undermine or raise doubts about the continuing operation or enforceability of its actions. It was that contingency which the clause was plainly intended to meet. In that context, the words "but for the enactment of the amending Acts" should be construed as meaning no more than "if the amending Acts had not been enacted".

7. In the second place, it was said that the reference (which appears in both pars.(a) and (b) of the subclause) to Schedule 6 of the Workers' Compensation (Amendment) Act 1984 (N.S.W.) denies any relevant operation to par.(a). Again, the submission stems from a misunderstanding of the function and effect of the subclause. Schedule 6 rewrites Part IV of the Principal Act. In that Act, Part IV dealt with the Commission, including its constitution and jurisdiction. The new Part IV deals with the Board, its constitution and functions. The reference in pars.(a) and (b) to Schedule 6 therefore provides a simple point of reference for distinguishing, in the new regime, between the responsibilities of the Court and the Board. In other words, the actions of the Commission which are to be deemed to be actions of the Court will be those actions which if done after the appointed day would have been done by the Court. Conversely, the actions of the Commission which are to be deemed to be actions of the Board will be those actions which if done after the appointed day would have been done by the Board.

8. There remains the difficulty of construing s.17(4) of the Court Act. It is necessary first to place the 1985 amendments in their proper context. Schedule 4 of the Workers' Compensation (Amendment) Act 1985 (N.S.W.) inserted a new Part IVA in the Principal Act dealing with Commissioners of the Court. Section 42J provides for their appointment and conditions of service and s.42K for the exercise by a Commissioner of certain functions of the Court, including the hearing of applications for compensation. Section 42K(4) provides that in the exercise of any function of the Court conferred on a Commissioner, the Commissioner shall be deemed to be the Court. We digress to remark that a clear distinction is drawn between Commissioners of the Court and Judges of the Court. The Court Act establishes the Court: s.4. The functions of the Court shall, subject to the provisions of the Court Act or any other Act, be exercised by a single Judge, who shall constitute the Court: s.6. A Commissioner may be deemed in some circumstances to be the Court (s.26(2)) but a distinction remains: a Commissioner does not constitute the Court. The fact that, following the introduction of Part IVA into the Workers' Compensation Act, a substantial part of the jurisdiction of the Court could be exercised by Commissioners made it necessary to clarify the exercise of the power of reconsideration or rescission of decisions made by the Court. It is plainly for this reason that s.17(4) of the Court Act was amended in 1985 to include references to the constitution of the Court. The object was to ensure that only the Court constituted by a Judge could, in respect of any decision previously made or given by the Court so constituted, exercise the powers of review conferred by the subsection. Similarly, a new subsection, s.17(4A) was inserted to empower a Commissioner to review any decision previously made or given by a Commissioner.

9. We now come to the critical consideration. If it be the case, as we think it is, that the effect of cl.4(1)(a) of the Second Schedule of the Miscellaneous Amendment Act is to deem the award of the Commission that is the subject of this case to be an award of the Court, can it be said to be a decision previously made by the Court constituted by a Judge so as to satisfy the requirements of s.17(4) of the Court Act? It is quite clear that s.17(4A) can have no application because on no view can it be said that the award was made by a Commissioner. It is necessary to consider the status of members of the Commission. The Commission was established by s.31 of the Workers' Compensation Act. Like the Court, it was established as a court of record: s.31(1). The section contained, inter alia, the following provisions:

"(2)(a) A person to be qualified for
appointment as a member shall be a District Court
judge or a practising barrister of not less than
five years' standing, or a practising solicitor of
not less than seven years' standing.

(b) ...

(3)(a) Each member other than the Chairman
shall, subject to this section, hold his office
during ability and good behaviour, shall have the
same rank, title, status and precedence, and the
same remuneration and other rights as a District
Court judge, and shall be removable from office in
the same manner only as a District Court judge is
by law liable to be removed from his office".

In all relevant respects, and in particular with respect to rank, title, status and precedence, the office held by a member of the Commission is indistinguishable from that now held by a Judge of the Court: see the Court Act, ss.8,9.

10. The award was made in 1983 by the Commission constituted by Judge Moroney. The application by the appellant for its rescission came on for hearing in 1985 before the Court constituted by Judge Moroney. Although made by the Commission, it is deemed to have been made by the Court. That being so, can it be said that the award is a decision previously made or given by the Court constituted by a Judge? In our opinion, it can. The words of the subsection are satisfied without the slightest violence to their meaning. It is therefore unnecessary to look any further for the intention of the legislature. The end result is that, by virtue of s.17(4) of the Court Act, the Court constituted by a Judge has jurisdiction to entertain an application for the rescission of an award made by the Commission.

11. This conclusion makes it unnecessary to consider an alternative argument advanced by the appellant based on s.53G of the Workers' Compensation Act.

12. Prior to the argument on the appeal, counsel for the respondent sought from the Court an order that the appellant pay the costs of the respondent in any event. After hearing argument confined to that question, the Court reserved its decision. The matter of costs was not mentioned on the hearing of the application for special leave; if it had been, an order such as was belatedly sought by the respondent may well have been made as a condition of the grant of special leave. But special leave having been granted without such a condition, it would not be just to make such an order at this stage. In all the circumstances, the general rule that costs be awarded to the successful party should operate.

13. The appeal must be allowed with costs.

BRENNAN J.: The question which arises in this case is whether the Compensation Court of New South Wales ("the Court") has jurisdiction to rescind, alter or amend an award made in favour of the first respondent on 23 March 1983 by a member of the Workers' Compensation Commission of New South Wales ("the Commission"), his Honour Judge Moroney. The Commission had been constituted as a court of record by s.31(1) of the Workers' Compensation Act 1926 (N.S.W.) ("the Act") as it then stood. Part IV of the Act, which governed the constitution of the Commission and its powers, was repealed and a new part inserted by Schedule 6 of the Workers' Compensation (Amendment) Act 1984 (Act No.90 of 1984). A corporation known as the State Compensation Board ("the Board") was constituted by the new Part IV. The Board succeeded to some of the functions of the Commission. At the same time a court of record, known as the Compensation Court of New South Wales ("the Court") was constituted by s.4 of the Compensation Court Act 1984 (N.S.W.) (Act No.89 of 1984). That Court was vested with jurisdiction by s.53G of the Act "to examine into, hear and determine all matters and questions arising under this Act". A similar jurisdiction had previously been exercised by the Commission. The substantial provisions of the Compensation Court Act, the new Part IV and s.53G of the Act commenced on 3 December 1984.

2. When the Court was constituted, saving and transitional provisions were enacted by the Miscellaneous Acts (Workers' Compensation) Amendment Act 1984 (Act No.93 of 1984). These were contained in Schedule 2 to that Act, cl.4(1) of which provided:

" 4. (1) Subject to this Act, to the extent that
any act, matter or thing done or omitted to be
done before the appointed day by, to or in
respect of the Commission would, but for the
enactment of the amending Acts, have had, on or
after that day, any force or effect or been in
operation, that act, matter or thing shall -

(a) to the extent that that act, matter or
thing would have been an act, matter or
thing done or omitted to be done by, to or
in respect of the Court had Schedule 6 to
the Workers' Compensation (Amendment) Act,
1984, been in force at that time - be
deemed to have been done or omitted to be
done by, to or in respect of the Court; and

(b) to the extent that that act, matter or
thing would have been an act, matter or
thing done or omitted to be done by, to or
in respect of the Board had Schedule 6 to
the Workers' Compensation (Amendment) Act,
1984, been in force at that time - be
deemed to have been done or omitted to be
done by, to or in respect of the Board."

Schedule 6 to the 1984 Amendment Act, it will be remembered, repealed the provisions constituting the Commission. As the jurisdiction conferred upon the Court corresponded with the jurisdiction of the Commission to examine into, hear and determine all matters and questions arising under the Act, the effect of par.(a) of cl.4(1) was to deem an award made by the Commission to have been made by the Court. The administrative powers of the Commission which were conferred on the Board were covered by par.(b) of cl.4(1).

3. Among the powers vested in the Commission prior to 3 December 1984 was a power to rescind, alter or amend any decision or order which it had previously made. A similar power was conferred on the Court by s.17(4) of the Compensation Court Act. It was expressed as an exception to the provisions of s.17(3). On 3 December 1984, sub-ss.(3) and (4) of s.17 read as follows:

" (3) Subject to Part IV, a decision or
proceeding of the Court shall not -

(a) be vitiated by reason of any informality or
want of form; or

(b) be liable to be challenged, appealed
against, reviewed, quashed or called in
question by any court."

(4) Nothing in subsection (3) shall prevent
the Court from reconsidering any matter which has
been dealt with by it, or from rescinding,
altering or amending any decision previously made
or given, all of which the Court shall, subject
to subsection (5), have authority to do."

By the combined operation of these provisions and the transitional provisions, the Court was vested with jurisdiction to rescind, alter or amend not only any decision previously made by the Court but also any decision made by the Commission which is deemed to have been previously made by the Court.

4. The Court is composed of the Chief Judge and other Judges appointed by the Governor any one of whom may constitute a court for the exercise of the court's functions (ss.6 and 7 of the Compensation Court Act). However, by Schedule 4 of the Workers' Compensation (Amendment) Act 1985 (Act No.91 of 1985) Part IVA was inserted in the Act to provide for the appointment of commissioners of the Court and to prescribe their functions. Those provisions commenced on 30 June 1985. At the same time, s.17(4) of the Compensation Court Act was amended to ensure that the power to rescind, alter or amend any decision given, made or deemed to have been made by the Court was exercised by Judges with respect to decisions made by Judges and by commissioners with respect to decisions made by commissioners. The amended sub-s.(4) and a new sub-s.(4A) of s.17 commenced on 30 June 1985. They read as follows:

" (4) Nothing in subsection (3) shall prevent the
Court constituted by a Judge from reconsidering
any matter which has been dealt with by it, or
from rescinding, altering or amending any
decision previously made or given by the Court so
constituted, all of which the Court shall have
authority to do.

(4A) Nothing in subsection (3) shall prevent a
commissioner from reconsidering any matter which
has been previously dealt with by a commissioner,
or from rescinding, altering or amending any
decision previously made or given by a
commissioner, all of which the commissioners
shall have authority to do."

5. The amended s.17(4) is more restricted than its predecessor. The restriction is twofold: first, the only decisions which are amenable to the exercise of the power to rescind, alter or amend are decisions given by "the Court constituted by a Judge"; and secondly, the power can be exercised by the Court only when it is constituted by a Judge. The question is whether a Judge constituting the Court can rescind, alter or amend a Commission decision. The transitional provisions deemed an award made by the Commission to have been made by the Court, but those provisions did not deem an award made by the Commission to be an award made by the Court constituted by a Judge. In law, the members of the Commission had not been judges; they had been members of the Commission with the same rank, title, status and precedence as a District Court judge (s.31(3) of the Act prior to 3 December 1984). There is no statutory text which deems an award made by the Commission to have been made by "the Court constituted by a Judge". Is there any rule of construction which would supply the textual omission? A general statutory power to rescind, alter or amend a final decision of a court of record runs counter to the rule of res judicata - a rule founded on the public interest in seeing an end to litigation and on the protection of litigants against being vexed twice for the same cause (Lockyer v. Ferryman (1877) 2 App.Cas.519, at p 530). There is no reason why a statute conferring such a power should be construed as though it is remedial in nature. Its exercise is calculated to disturb rights vested by or under the impugned decision, and the power should not be construed to extend to cases which do not fall within the actual terms of the statute.

6. Clause 4(1)(a) of the transitional provisions deemed some decisions of the Commission to be decisions of the Court in order to subject Commission decisions to certain provisions of the Act or of the Compensation Court Act which are expressed to apply to Court decisions. Those provisions include s.60 of the Act which provides for a review of weekly payments, and s.60A which provides for termination of weekly payments. But, as cl.4(1)(a) does not deem a decision made by a member of the Commission to have been made by a Judge, s.17(4) of the Compensation Court Act now confers no power on the Court to rescind, alter or amend a decision made by a member of the Commission.

7. Nor does the Court's general power "to examine into, hear and determine all matters and questions arising under this Act" confer power to rescind, alter or amend a decision made by a member of the Commission. Section 53G was introduced into the Act only when the provisions constituting the Commission were repealed and in place of a like provision conferring power on the Commission. The rescission, alteration or amendment of decisions deemed to have been made by the Court is not a matter arising "under this Act": it arises under s.17(4) of the Compensation Court Act, and the restriction therein contained is not avoided by reference to the Court's general power.

8. It was argued that the Parliament could not have intended to leave the Court without power to rescind, alter or amend Commission decisions. But Parliament's intentions are to be gathered from the words the Parliament used. Once Parliament resolved to give commissioners certain powers of the Court to exercise, Parliament had to decide whether the jurisdiction of the Court with respect to the rescission, alteration or amendment of awards made by members of the Commission should be exercised by commissioners or by judges. Quite clearly that question was not addressed by Parliament and it is not, in my view, for this Court to endeavour to amend the Act by a process of construction which will both repair any unintended omission of the Parliament and positively provide for the exercise of the jurisdiction by judges.

9. It follows that in my opinion the appeal should be dismissed. As this view would carry an award of costs it is unnecessary for me to deal with the application made by the respondent to make an order that the appellant pay the costs in any event. I should say, however, that there are difficulties in the way of a respondent to an appeal who seeks to have such a condition imposed upon an appellant by way of a condition on the grant of special leave if such a condition is not imposed before the appeal is instituted. An appellant who prosecutes his appeal pursuant to an unconditional grant of leave ought not to be met at the hearing of the appeal with an application for an ex post facto insertion of the condition which, if inserted at the time that the grant was made, would have permitted him to elect between pursuing the appeal or not. The appeal should be dismissed with costs.

DEANE J.: I agree with the judgment of Mason, Wilson and Dawson JJ. I add some comments of my own in relation to the question on which the case turned in the New South Wales Court of Appeal. That question arises once it is accepted that the award made by Judge Moroney as a member of the former Workers' Compensation Commission of New South Wales is deemed by cl.4(1) of Schedule 2 of the Miscellaneous Acts (Workers' Compensation) Amendment Act 1984 (N.S.W.) ("the Miscellaneous Act") to have been made by the Compensation Court of New South Wales ("the Compensation Court"). It is whether the award which is so deemed to have been made by the Compensation Court can, for the purposes of s.17(4) of the Compensation Court Act 1984 (N.S.W.) ("the Court Act"), properly be said to be deemed to have been made or given by that court "constituted by a Judge". It must be answered in the context of the legislative purpose which the insertion, by the 1985 amending legislation (viz. the Workers' Compensation (Amendment) Act 1985 (N.S.W.) and the Compensation Court (Amendment) Act 1985 (N.S.W.)), of the reference to the court "constituted by a Judge" (see Schedule 1, cl.6(b) of the Compensation Court (Amendment) Act 1985, emphasis added) was intended to serve.

2. Among other things, that 1985 amending legislation enabled the appointment of persons as commissioners of the Compensation Court and entrusted the performance of certain functions of that court to the persons so appointed (see Schedule 4, cl.5 of the Workers' Compensation (Amendment) Act 1985). In line with a general statutory policy of separating the functions to be performed by the commissioners from those thereafter to be performed by the judges, sub-s.4A was inserted in s.17 of the Court Act to provide that reconsideration of a decision of a commissioner should be by a commissioner. In that context, the obvious purpose of the insertion of the reference to "the Court constituted by a Judge" in s.17(4) was to exclude from the scope of s.17(4) reconsideration (by a judge) of a decision made by a commissioner. It is scarcely likely that it was the intention of the legislature to bring about, by the amendments to s.17(4), a lacuna in the legislative scheme by rendering awards of the former Commission which continued in force immune from subsequent rescission. To the contrary, it is plain that, in view of the close correspondence between the status (and, indeed, the identity) of the judges of the new court and that of the members of the former Commission, the legislative intent would have been that the function of reconsidering and, where appropriate, rescinding an award of the former Commission should continue to be entrusted to the Compensation Court constituted by a judge. Analysis of the interaction of the relevant statutory provisions discloses that that predictable legislative intent was in fact achieved by the words of s.17(4) in their amended form. I turn to explain why that is so.

3. The Compensation Court was created by the Court Act. The effect of the provisions of that Act is that the court so created is constituted by a judge and only by a judge (see, in particular, s.6). It is true that, under Part IVA of the Workers' Compensation Act 1926-1985 (N.S.W.), a commissioner can exercise some of the functions of the Compensation Court. Part IVA (which was inserted by the 1985 amending legislation) makes it clear, however, that a commissioner cannot himself constitute the court. To the contrary, it is expressly provided by s.42K(4) that a "commissioner shall, in the exercise of any function of the Court conferred on the commissioner by or under this or any other Act, be deemed to be the Court" (emphasis added), that is to say, the Compensation Court which, as has been said, is constituted by a judge.

4. Clause 4(1) of Schedule 2 of the Miscellaneous Act provides that certain acts done before the appointed day by the former Commission shall "be deemed to have been done ... by ... the Court". It is to be stressed that that provision directly deems the designated acts to be acts of the court itself. It follows that the effect of the deeming provision is to deem the relevant acts to be acts of the Compensation Court constituted by a judge as distinct from functions of that court performed by a commissioner which, while not acts of the court, are deemed to be such acts by s.42K(4) of the Workers' Compensation Act.

5. In the light of the above, there is no difficulty in applying s.17(4) of the Court Act to an act deemed by cl.4(1) of Schedule 2 of the Miscellaneous Act to be an act of the Compensation Court itself. As has been seen, the effect of that deeming provision is that such an act is deemed to be an act of that court constituted by a judge. That being so, s.17(4) applies, according to its terms, to confer authority upon the Compensation Court to entertain an application for the rescission ab initio of the award in the present case.

ORDER

Appeal allowed with costs.