conceditur, conceditur et id sine quo res ipsa esse non
potest.) Those implied powers may in many instances serve a
function
similar to that served by the inherent powers
exercised by a superior court but they are derived from a
different source and
are limited in their extent. The
distinction between inherent jurisdiction and jurisdiction by
implication is not always made
explicit, but it is, as
Menzies J points out, fundamental."
14. His Honour observed, further, at 628:
"It would be unprofitable
to attempt to generalise in
speaking of the powers which an inferior court must possess
by way of necessary implication. Recognition
of the existence
of such powers will be called for whenever they are required
for the effective exercise of a jurisdiction
which is
expressly conferred but will be confined to so much as can be
derived by implication from statutory provisions conferring
particular jurisdiction."
15. The power of a superior court to summarily dismiss an action is an
exercise of the inherent jurisdiction
of such a court: Bayne v Baillieu [1908] HCA 39; (1908)
6 CLR 382 at 398 per O'Connor J; Burton v The President etc. of the Shire of
Bairnsdale [1908] HCA 57; (1908) 7 CLR 76. These cases suggest that the inherent power is
founded upon the power of a court to protect itself from an abuse of its
processes:
see also Williams Supreme Court Civil Procedure Butterworths (1987)
p125. It was submitted by the appellant that the Work Health
Court's power to
do likewise is part of its implied powers. I was not referred to any
authority which has decided whether such a
power has been found to be implied
by the statutory provisions establishing an inferior court. Nor have I been
able to find any authority
on the point myself. The power of inferior courts
to refuse to hear proceedings on the ground that they are oppressive and an
abuse
of process is averted to by Dawson J Grassby at [1989] HCA 45; 168 CLR 1 at 10. In
that case, the High Court decided that no such power could be implied in the
case of a magistrate before whom committal
proceedings have been brought
because the statutory obligations of a magistrate were couched in mandatory
terms as a consequence
of which there was no room for the implication of such
a power.
16. On the other hand, in England it has now been recognised that
a power
does exist in inferior courts to refuse to hear proceedings which are an abuse
of the process of the court, and are vexatious
and oppressive: see Reg v
Humphreys (1977) AC 1 at 45-6 per Lord Salmon; R v Brentford Justices, ex
parte Wong (1981) 73 Crim App R 200; R v Grays Justices, ex parte Graham
(1982)
75 Crim App R 229; R v West London Stipendiary Magistrate, ex parte
Anderson (1985) 80 Crim App R 143. The majority of the High
Court seemed to
recognise such a power in the case of criminal proceedings pending in the
District Court of New South Wales in Jago
v The District Court of New South
Wales and Ors [1989] HCA 46; (1989) 168 CLR 23. Whatever may be the situation in England or
New South Wales, I am bound to approach the matter in accordance with the
principles
referred to in Grassby.
17. The powers of the work Health Court are set out in s94 of the Act. This
section provides:
"94. POWERS
OF COURT
(1) The Court has power to hear and determine -
(a) claims for compensation under Part V and all matters and
questions
incidental to or arising out of such claims; and
(b) all other matters required or permitted by this Act to be
referred to
the Court for determination,and such other powers
as are conferred on it by or under this or any other Act.
(2) The Court may
expand or abridge a time prescribed by or
under this Part as it thinks fit."
18. Section 95 of the Act empowers the Chief Magistrate
to make rules and
give practice directions, not inconsistent with the Act, regulating the
practice and procedures of the Court.
Section 95(4) provides that the
practice and procedures of the court in relation to a matter are within the
discretion of the court.
Section 97 provides that, in addition, the court or
a magistrate has, in relation to a proceeding, except to the extent that the
matter is specifically provided for under the Act, all the powers of a Local
Court or a magistrate under the Local Court Act. It seems to me that prima
facie the Work Health Court has an incidental power to dismiss an application
summarily and prima facie,
express power is conferred by s97. Orders 22 and
23 of the Local Court Rules provide the procedure for summary judgment in the
Local Court. So far as the incidental power is concerned, s94 confers a power
in the widest of terms to hear and determine applications for compensation
under the Act, and s95(4) leaves any question of practice
and procedure in the
discretion of the court. A power to dismiss summarily is in my opinion a
matter of practice and procedure.
In Adam P Brown Fashions Pty Ltd v Philip
Morris Incorporated and Philip Morris Ltd [1981] HCA 39; (1981) 148 CLR 170 at 176 Gibbs CJ
and Aickin, Wilson and Brennan JJ cited with approval the following passage
from Salmond on Jurisprudence 10 ed (1947)
p476 which distinguishes
substantive from procedural law: "'Substantive law is concerned with the ends
which the administration
of justice seeks; procedural law deals with the means
and instruments by which those ends are to be attained. The latter regulates
the conduct and relations of courts and litigants in respect of the litigation
itself; the former determines their conduct and relations
in respect of the
matters litigated.'"
19. The Solicitor-General, Mr Pauling QC, who appeared for the respondent,
pointed out that
the powers conferred by s95 and s97 were to be read subject
to there being no specific provision by the Act, and as s107(2)(a) required
the agreement of the parties to decide the matter summarily, there was no room
for any express or implied power to dispose of the
matter summarily in the
absence of consent. I do not consider that s107(2)(a) has the effect
contended for by Mr Pauling QC. There
is a well-recognised difference between
summary trials of proceedings and summary judgment applications. For example,
the Supreme
Court Rules provide for both procedures: see Orders 22 and 23
which deal with summary judgment applications and r22.06(1)(d) which
empowers
the court, by consent of the parties, to dispose of a proceeding finally in a
summary way. The Local Court Rules similarly observe the distinction: see
r22.04(1)(d) and Orders 22 and 23. I conclude, therefore, that the Work
Health Court did
have jurisdiction to entertain an application by the
appellant for summary judgment.
20. The final question is whether the learned
magistrate made any error of
law in deciding to dismiss the application for summary judgment. No argument
was addressed to his Worship
as to the merits of the application. The only
question he was called upon to decide is where and when the application would
be heard.
His Worship dismissed the application because he considered that he
must have evidence before him. No doubt it was essential that
there be
evidence placed before the court before the application could be determined,
but there were affidavits already on file in
support of the application. His
Worship failed to give the appellant any opportunity to be heard before
dismissing the application.
Although the appellant was represented at the
adjourned hearing on 16 March 1992, his Worship did not call upon the
solicitor for
the appellant before ordering that the summons be dismissed.
There is nothing to suggest that the appellant's solicitor waived her
right to
be heard. This was a clear denial of natural justice to the appellant, and a
breach of denial of natural justice is an
error of law: Escobar v Spindaleri
(1986) 7 NSWLR 51. Although s107 of the Act requires that a preliminary
conference be heard "informally," that is not sufficient, in my opinion, to
indicate that the rules of natural justice do not apply.
21. I should also mention that although the Rules of the Work Health Court
make no provision for summary judgment applications, it is clear that s95(4)
of the Act empowers the court or a magistrate to decide
its or his own
procedures for the hearing of such an application: see Bogeta Pty Ltd v Wales
(1977) 1 NSWLR 139 at 149.
22. As to Mr Pauling's submission that there was an error because the summary
judgment application rested upon disputed
facts and included a difficult
question of law, there was no material either before me or before the learned
magistrate in the absence
of submissions as to the merits of the application,
upon which a finding of that kind could be made. Of course, when the
application
is heard on the merits, those sorts of consideration will be most
relevant as to whether the relief sought is granted or refused.
But that
moment has not yet come.
23. Accordingly, the appeal is allowed, the order of the learned magistrate
dismissing the summons
for summary judgment is set aside, and the respondent
is ordered to pay the appellant's costs of the application of 16 March 1992
and the costs of this appeal.