Were the District Court proceedings a nullity?
32 In this Court the plaintiff challenged the central finding that the proceedings were an incurable nullity in the sense that the District Court lacked jurisdiction to address them other than by dismissal for want of jurisdiction. The proceedings were an action falling within the civil jurisdiction of the District Court that had been duly invoked by the filing and service of the statement of claim. If necessary, it was further submitted that the defendant had waived its right to raise a defence based on s151C by its own participation in the proceedings prior to the point being raised on 20 May 2003.
33 The defendant supported the primary judge, arguing that s151C is a condition precedent of a procedural nature that must be satisfied before the commencement of proceedings. Proceedings commenced in contravention, at least in an inferior court, are a nullity or void.
34 The defendant is correct in the first submission, but not in the second.
35 Parliament's command to the plaintiff was clear in the circumstances. Since s151C(2) did not apply on the facts, the plaintiff was not entitled to commence the proceedings until six months had elapsed from service of notice of injury on the employer.
36 Many cases have described provisions of this nature as a condition precedent of a procedural nature that must be satisfied prior to the commencement of proceedings. The earliest is Dandashli v Dandashli (1996) CA unrep, 16 December 1996, dealing with s52(1A)(b) of the Motor Accidents Act 1988. Others to like effect are Hill v Bolt (1992) 28 NSWLR 329 (Motor Accidents Act 1988, s48), Baker v Rothmans of Pall Mall (Australia) Ltd (1999) 18 NSWCCR 374 (Workers Compensation Act 1987, s106E), Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636 at 648[70]-[86] (Motor Accidents Act 1988, s108). These cases have all recognised that the purpose of such provisions is to promote settlement before commencement of court proceedings.
37 Sydney Ports Corporation is directly in point, dealing with s151C. The Court ordered the summary dismissal of proceedings in the District Court after determining that s151C(2) was not engaged in the particular circumstances. Giles JA (at 243) inferred from s151C(2) that the objective of the prohibition is to require the worker to seek damages by negotiation rather than litigation in the first instance.
38 One finds strong language used at times to describe the status of proceedings commenced in breach of these provisions. For instance, in Emad at 648[70], McColl JA spoke of an "absolute prohibition … apparent from [the section's] mandatory terms". See also Baker at 380[20] per Giles JA.
39 A defendant faced with a clear breach may move for summary dismissal. The court has no power to excuse non-compliance or to grant leave for the proceedings to continue. Most of the cases referred to above involved clear cases with no suggestion of waiver on the defendant's part. In many of them the only issue was whether the facts fell within the exceptional categories provided in s151C(2) and its counterparts.
40 It is, however, fallacious to conclude that proceedings in breach have failed to engage the jurisdiction of the court, or are a nullity. The remarks of Glass JA in National Mutual Fire, referred to by the primary judge and relied on in this Court by the defendant, recognise that an additional inquiry must always be made. This is whether one can discern from the legislative scheme an intention that invalidity or nullity will be the consequence of non-compliance with a prohibition, however clearly it is expressed. Glass JA observed that the word "mandatory" can be used in differing senses.
41 The principles discussed by Glass JA have subsequently been stated authoritatively by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 358 at 388[91]-[93]. McHugh, Gummow, Kirby and Hayne JJ at [95] described "mandatory" and "directory" as:
... classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is valid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". (footnotes omitted)
42 By these criteria, s151C(1) is not a provision that spells incurable voidness upon non-compliant proceedings. It is a provision that applies to proceedings in the Supreme Court and the District Court (cf Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 at 356). The language of excess of jurisdiction is not used. On the contrary, jurisdiction to deal with employment injury cases is vested in the District Court (and the Supreme Court) and there is nothing in the language or context of s151C to suggest that the issues it raises is taken out of that dispensation. The two subsections state factual matters that may call for curial resolution in the course of the proceedings themselves and that are apt for such resolution in the Court in which the proceedings are commenced. The facts relevant to attracting s151C(1) will not appear on the face of the documents in the court record, nor necessarily be pleaded in the statement of claim. The facts relevant to s151C(2) may need close examination before it is seen whether or not the section applies.
43 Where Parliament confers jurisdiction upon courts constituted by persons with formal legal qualifications this tends towards the conclusion that they are armed with jurisdiction to decide all necessary factual and legal issues, subject to appellate rights (if any). There is a strong interpretative presumption against a statute making a court's jurisdiction dependent upon a jurisdictional fact (see Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session & Anor [2004] NSWCA 183 at [53] and authorities there cited).
44 A conclusion of jurisdictional nullity would remove any basis for finding that a defendant has waived the right to take the objection. It follows that, if the defendant is correct in its submission, it would not matter that it had knowingly refrained from raising the point (by motion for dismissal or defence) while using the interlocutory processes of the court, including those directed at settlement itself. Presumably even a final judgment by consent or judicial decision would have to be set aside when the point was eventually taken. It is impossible to infer that this would have been Parliament's intent when a defendant is able to protect itself and to ensure the purpose of the Rule is given effect by taking the point in a timely manner in a normal manner.
45 In fact, there is authority recognising that waiver is possible (Dandashli, Hill at 337, Vockins at 195[8]), Deng v GMS Fulfilment Services Ltd (2003) 25 NSWCCR 446. Cf also Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850, Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 406-7, 423, 471-3, 482, 497 and Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100.
46 Statutory rights are not necessarily jurisdictional, and unless jurisdictional, are themselves capable of waiver unless the statute was enacted for some public interest wider than that of the private parties (see generally Admiralty Commissioners v Valverda (Owners) [1938] AC 173 at 185, Brown v The Queen (1986) 160 CLR 171 at 178, 208). In one sense, provisions such as 151C serve the public interest of encouraging dispute resolution without litigation. But they operate in the context of the adversary system in which parties not subject to disability are free to make their own forensic decisions. Subsection (2) of s151C confirms that the section is of this nature.
47 I see no reason in public policy why a defendant should be prevented from waiving the right to insist on compliance with a requirement that a plaintiff provide information designed to promote settlement discussion, thereby bringing forward litigation that both parties may wish to have commenced sooner rather than later. They may wish to do so if only so to engage the now-universal rules of court that themselves promote dispute resolution by providing a structured regime for dealing with offers of settlement. To adapt the remarks of Lord Reid in Kammins Ballrooms (at 860):
The Act contains nothing to indicate that contracting out is forbidden: on the contrary the parties are encouraged at every stage to come to an agreement.