Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71

Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71 - HCA 1906 case summary — Zoe

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which the defendants were liable at common law ; (2) on negli- gence of a person for whose default they were liable under the Employers' Liability Act 1894; and (3) on negligence alleged to be established by non-compliance with the statutory rules prescribed by sec. 23 of the Mines Regulation Act 1895. The defendants, besides other defences, pleaded by way of estoppel that the plaintiff had made a claim against the defendants under the Workers' Compensation Act, and that in pursuance of such claim the plaintiff and defendants had entered into an agreement by which the defendants agreed to pay a stipulated sum to the plaintiff by way of compensation under the Act during his incapacity for work, and that the plaintiff had received payments under the agreement, which the defendants had always been ready and willing to carry out. At the trial before MeMillan J. with a jury in November 1903, the learned Judge at the close of the plaintiff's case directed judgment to be entered for the de- fendants on the ground that this plea was proved. He also expressed an opinion, obiter, that the action would not lie under the Employers' Liability Act from want of due notice of injury under that Act. It was intimated that an appeal would be made from his decision, and he stayed proceedings on the judgment for the purpose of facilitating the appeal. No application was then made by either party to the learned Judge to exercise the juris- diction conferred upon him by sec. 9 of the Act, and it is clear, in iy opinion, that he did not apply his mind to the question of the exercise of that jurisdiction. The appeal to the Supreme Court came on for hearing in the following August, and by an order, dated 10th October 1904, it was dismissed with costs. The learned Judges who heard the appeal (Parker Acting C.J., and Burnside J.) were of opinion that the defence of estoppel was made out, the plaintiff having elected to take advantage of the Workers' Compensation Act, and received compensation under it. This, they thought, brought the case within the prohibition of sec. 7, sub-sec. 2, whether there was or was not a binding agree- ment between the parties as alleged. No application was then made to the Court to remit the case for assessment of compensa- tion under sec. 9, but four days afterwards, on 14th October, the defendants gave notice of a motion before McMillan J. to assess

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section. Whether it should be adopted or not, it seems to me, depends on the consideration, that, where you find an ambiguity in an Act and have a difficulty in solving it by the context, you have to decide which of the constructions open to you is the more reasonable, and choose that one. I have not been able to find any reason why the legislature should be held to have limited its gift in the way contended for. If the liability were thus restricted, then it seems to me that the remedial intention of the legislature, as evidenced in the whole purview of the Act, would not be fulfilled. It is an Act which (although it contains some sections of repeal) nevertheless very largely extends the rights and remedies of the worker. In proceedings taken under the Act a number of the defences which used to beset him, some technical, some substantial, are cut away, and, upon certain observances by way of notice and the time of bringing his suit, the Act enables him to claim those rights, subject to certain limits as to the scale of compensation. Looking at the whole scope of the Act, its purpose is to enable the worker, in spite of difficulties, to obtain those rights so long as he has adopted the procedure laid down. Then we have sec. 9, designed, as I think, to secure him compensation assessed under the Act where he would have succeeded by taking advantage of it instead of mistakenly pursuing another remedy. If the construction were limited to the degree contended for by Mr. Northmore, we should have this result. Suppose a workman brings an action to recover compensation independently of the Act, thinking, rightly or wrongly, that he can do better by proceeding under the Employers Liability Act or by an action at common law for negligence. It is alleged against him and proved that he has agreed with his employer, or has elected - perhaps only in a technical sense - to take his amends under the Workers' Compen- sation Act instead of by the independent action he has brought. Then he is to be precluded from claiming assessment under the Workers' Compensation Act; while if he had been defeated by the application of the maxim volenti non fit injwria, or the doctrine of common employment, he would nevertheless have been entitled to claim under the Workers' Compensation Act. I cannot think that

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the legislature intended such a limitation, nor can I see why we should say that such a circumstance as his having apparently preferred compensation under the Act debars the Court in which he has proceeded from assessing such compensation, notwith- standing the failure of the independent action. The section itself certainly gives one no reason why the question should be settled by inquiring whether the defence is one of the old common law defences, or whether it is one that arises under this Act in respect of the independent action, and I find no words in the rest of the Act which show that such a criterion ever presented itself to the legislature. Between the two constructions, then, I adopt that which appears to be the more reasonable, and on that part of the section I think that the argument of Mr. Northmore cannot succeed. As to the other question, that is to say, the question whether MeMillan J. was right in assessing compensation when he did so, I have carefully considered the reasons which His Honor gave for his judgment at the trial, and have come to the conclusion that in then deciding that there had been an agreement between the plaintiff (now respondent) and the defendant com- pany (now appellants) that the former should receive compensa- tion under the Workers' Compensation Act, the learned Judge was expressing (1) the opinion that the action did not lie, and (2) the further opinion that the appellant company would not have been liable to pay compensation under the Act, for the reason that the agreement had ousted the jurisdiction of the Court under see. 8, and also his own jurisdiction to assess compensation under see. 9. If I am right in this conclusion, then the judgment entered is so far a correct record of the "determination" of the Court. On that determination and at that stage it was not for McMillan J. to assess compensation. The respondent then appealed to the Full Court by way of new trial motion, and his appeal was defeated; the Court ordering "that the judgment obtained in this action should stand and the said motion for a new trial should be dismissed." But the Court upheld the decision on grounds different from those which had commended themselves to McMillan J. They did not think it necessary to decide whether there had or had not been an agreement between the parties. Seeing that the respondent had, after due notice and

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judgment of the Full Court has not been appealed from by either party. The present appeal is from a subsequent decision of the Full Court which arose thus : - -In view of the words in see. 9, "the Court in which the action is tried shall assess such compen- sation," which, as they occur in this Act, are not dependent on the exercise by the plaintiff of an option, as in the English Act, it was equally open to either party to apply for assessment after the judgment of the Full Court on the first appeal. The company applied to the Court in which the action was tried to assess that compensation. McMillan J., after hearing argument, interpreted the reasoning of the Full Court correctly, and assessed compensa- tion on the basis of the payments which the plaintiff had already received, the basis laid down by the Second Schedule of the Workers' Compensation Act. From the compensation so arrived at His Honor deducted the company's costs of the action in which Symonds had failed, and ordered judgment to be entered for the balance. Again there was an appeal to the Full Court, and the Full Court held that there could be only one judgment, that the application to assess was too late, and that at that stage of the proceedings, judgment having been entered up before the agreement, the appellant company were barred from having compensation assessed. Asso often happens in Courts of Justice, the present fight really, though not outwardly, turns largely on a question of costs, as a reference to the concluding words of sec. 9 will suggest. But the question for this Court is much more important than that. A right is given to the plaintiff under sec. 9. If we decide that in such circumstances compensa- tion may not be assessed, we shall be going far to frustrate the efforts of the legislature to prevent a cireuity of action the continuance of which may be very harassing to the class for whom the protection of this Act is designed. Now, the first thing that strikes one in relation to the judgment on the second appeal is, as I have put it, that the Full Court, upon the judg- ment on the first appeal, either had not applied their minds to the operation of sec. 9, or must be taken to have decided, though they were determining an appeal which applied solely to the action for negligence, that the claim for compensation was still

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open. Whichever way we take that, it seems to me there is equal chance of justice being defeated. I shall not traverse the de- cisions to which His Honor has referred - which I have carefully considered - but I point to this, that the Court in which the action is tried is bound in my judgment to assess the compensa- tion whichever party applies for it. It is not, as in the ease of Edwards v. Godfrey (1), necessary under this Act that the claim for compensation should be made immediately after the decision in the action. That decision of Edwards v. Godfrey (1) was, I think, founded upon words which are not contained in this Act, "shall proceed to assess such compensation." Therefore, in my view, it is not necessary that the application to assess compensa- tion should be made immediately upon the judgment in the Court of first instance. In fact, if it were necessary here, this curious result would follow, that where the Judge decides that an action fails, not only as an action independent of the Act, but also as a claim under the Act, then if he is right as to the first, but wrong as to the second, compensation cannot be assessed at all, even if he is set right on appeal; if it must be assessed at the trial or not at all, then the right given under sec. 9 is absolutely taken away in such a case. That was never the meaning of the legis- lature. But if it is not necessary in law to assess the compensa- tion immediately upon the decision of the Court of first instance, then it is open to assess it later on. At what time then is the right to assess compensation barred? Is it barred even when the Court of first instance - *the Court in which the action was tried " - has been applied to as soon as possible, after it has been set right on appeal? Iam clearly of opinion that it is not so barred, and that the Act must be observed. But it is said there was a judgment standing in the way because the judgment of the Court of first instance (arrived at no doubt upon grounds which barred both the independent action and the claim for compensation) was allowed to stand by the Court of Appeal on grounds which only applied to the written statement of claim and not to the right of recovery given (notwithstanding that statement of claim) by sec. 9. Technically there was one judg- ment; technically also - if we look at see. 9 - the time for enter- (1) (1899) 2 Q.B., 333.

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ing final judgment is after the assessment of compensation and not before it. A hyper-technical construction is likely to defeat the Act in every way, but as the Court has a statutory duty to assess compensation, I am of opinion that any order drawn up which, in form, would prevent the performance of that statutory duty must. not be allowed to stand in the way of the doing of complete justice between the parties by a Court of final resort. Where the Act says that after a determination - whether you call it a judgment or not, or whether you draw up a judgment at a stage when you ought not to have drawn it up in the Court of first resort - there is still nevertheless a right of compensation, then the proceedings in the whole action are not complete until assessment is made. It seems to me that the first judgment, even if drawn up, is in the position of an interlocutory order within the meaning of the decision in the case of Maharajah Moheshur Sing v. Bengal Government (1), cited by His Honor, and therefore that that order could be corrected. Again, on the authorities cited, the Court, in my judgment, on the second appeal, ought itself to have cor- rected its order made on the first appeal. It had ample authority to do so, if there is any meaning in the cases which His Honor has just cited. But if the Court ought to have so corrected its order that, notwithstanding the fact of its having been drawn up, the obligation of the Court to assess compensation would be dis- charged, then this Court has a further right under sec. 37 of the Judiciary Act 1903, which enacts that "The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance." Now, "in the first instance," I take it, for the purpose of this section, means in the order appealed from. It was, in my opinion, the duty of the Full Court, on appeal, to correct its own prior order if that course became necessary for the purpose of seeing that justice was done, instead of allowing the second appeal upon what seem to me the highly technical grounds on which it was allowed. It was open to them to choose between the allowance of that technicality and the making of a corrective order within an established jurisdie- tion. If the latter ought to have been done - and I am of opinion (1) 7 Moo. Ind. App., 283.

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long since become binding on the parties to the litigation, and no attempt is made now to impeach it. The defendants know that, if it were set aside, it must be set aside as a whole; and this result the defendants probably do not desii I take the judgment to mean, on its face, that the plaintiff is not entitled to recover anything in the action, whether by way of ordinary damages for negligence, or by way of compensation under the Workers' Compensation Act. I cannot see what jurisdiction this Court has, on an appeal from an order on a motion to assess compensation, to alter a previous judgment, as to which neither party has appealed to this Court. We are not, in my opinion, at liberty on the present application to question the decision em- bodied in the previous judgment; Attorney-General v. Tomline (1). This judgment of the 2nd November 1903 was not a mere interlocutory order, such as would bring the case within Order LVIIL, vr. 14. The Supreme Court itself has inherent power to rectify the judgment, even though it has been passed and entered, if it does not truly represent the decision which the Court pronounced. But it cannot be pretended that the Supreme Court, speaking through McMillan J., did not pronounce to the effect that the plaintiff was not entitled to reeover anything in this action, or that the Full Court did not pronounce to the effect that the judgment should stand. The Supreme Court has power also, on motion or summons, to correct clerical mistakes in judgments, or errors arising therein from any accidental slip or omission (Order XXVUTL, 1.11). But this rule does not, in my opinion, apply to this case. The learned Judge deliberately came to the conclusion that there was an agreement between the parties which deprived the plaintiff of all rights of action for the injury; and I do not think that this Court, wide as are its powers, should take upon itself to say that there has been an error in the judgment arising from any accidental slip or omission. If there was an error, it was not accidental: it was the result of a deliberate finding; and the Judge intended the judgment to be in the form in which it now stands. In one sense, it is true that all mistakes of a Judge are " accidental"; but that is not the sense in which the word is used in the rule.

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If it were, no one could feel any confidence in acting on the formal, written judgment of the Court. If the Judge has made a mistake in his decision, the remedy is appeal ; and if no appeal be brought, or if the appeal be dismissed, the litigants are bound by the decision, even though wrong. The authorities are well considered by Lomer J. in Ainsworth v. Wilding (1). In that case, the learned Judge says : - * The Court has no jurisdiction, after the judgment at the trial has been passed and entered, to re-hear the case. That is clear. Formerly the Court of Chancery had power to re-hear cases which had been tried before it even after the decree had been entered; but that is not so since the Judicature Acts. So far as I am aware, the only cases in which the Court can interfere after the passing and entering of the judgment are these: - (1) Where there has been an accidental slip in the judgment as drawn up - in which case the Court has power to rectify it under Order XXVIII, r. 11; (2) When the Court itself finds that the judgment as drawn up does not cor- rectly state what the Court actually decided and intended." Probably also, he says, the Court can act by the consent of the parties : In re Swire; Mellor v. Swire (2). The decision actually pronounced was as to the profits of collieries in which the testator was interested at his death, but the order as drawn up applied, or might be construed as applying, to the profits of new con- cerns acquired after the death. In Hatton v. Harris (3) the whole difficulty arose "from a mere slip of the registrar or the registrar's clerk." In Lawrie v. Lees (4) Lord Penzance merely said that "every Court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the Court - to vary them in such a way as to carry out its own meaning, and where language has been used which is doubtful, to make it plain." Milson v. Carter (5) was a mere case as to costs, which, in the circumstances of the case, had not been provided for. The order of the Supreme Court, in allowing an appeal to go to the Privy Council, had provided that the costs should abide the judgment of the Privy Council, but had not provided for the case, which happened, of the appeal being (1) (1896) 1 Ch., 673, at p. 676. Lord Macnaghten,

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Judgment (126 paragraphs)

H.C. or A. 1906.

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