Klein v Domus Pty Ltd

High Court of Australia|1963-07-01|Before: Windeyer JJ, Wallace J

High Court of Australia Dixon C.J. McTiernan and Windeyer JJ. Klein v Domus Pty Ltd [1963] HCA 54

This is an appeal brought as of right from an order of the Full Court of the Supreme Court of New South Wales. The order which is under appeal is for the dismissal of an appeal from an order made by Wallace J. The order of Wallace J. was made on a reference from a decision of the Prothonotary on an application made pursuant to s. 63 of the Workers' Compensation Act, 1926-1960 N.S.W. for an extension of time within which the appellant could - notwithstanding that she had applied for workers' compensation and had received workers' compensation to an extent - exercise the right which s. 63 (1) nevertheless gives her of pursuing what was alleged to be a cause of action at common law, in respect of the injury which she had received.

Section 63 has a long history and has been the subject not only of various decisions but of various amendments, but it has stood in its present form for a very considerable time. I regret to say that this Court was rendered, some years ago, only too familiar with the difficulties to which s. 63 then gave rise. After Latter v. Muswellbrook Corporation [1] we heard little of the provision. What s. 63 does in its present form is not really intricate. It assumes, as of course one would suppose, the existence of a claim for workers' compensation conferred by the anterior sections of the Act. Sub-section (1) then says, "Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible."

Sub-section (2) goes on, "In such a case the worker may proceed both under this Act and independently of this Act, but where he obtains judgment against his employer independently of this Act he shall not be entitled to any compensation under this Act other than compensation paid to him before such judgment."

It is convenient to stop there for the moment in saying what s. 63 does, and to state that in this case the present appellant and her husband were in process of taking employment from the respondent, a company called Domus Pty. Limited. The company apparently had a guest house or houses, and the appellant and her husband were engaged as managers of one of these guest houses. She had, on 10th December 1960, gone into the guest house. There is a little uncertainty or difficulty in being sure of the date from which she was to take up her regular duties; but that has no intimate bearing on what we have to decide in this case or what the Full Court had to decide. At all events, on that date, whether she had then entered into full employment or not, she was going upstairs with a superior manageress, and a question occurred to her as to the security of a pile of bedsteads in a room they were passing as they were going upstairs. She commented on them and said they had better be made more safe or attended to. The superior manageress said she was going to bed, and she, the appellant, could do what she liked with them. Her husband and she (that is, the appellant) approached them and they fell down on her foot. She obtained workers' compensation for a space of time in weekly payments. Then the payments were stopped and some time elapsed. She did not refer to the question of weekly payments; but eventually contemplated bringing an action in tort against her employers (that is to say, the respondent Domus Pty. Limited).

To go back to s. 63: one of the paragraphs in sub-s. (3) says, that is to say the material part of it says: " no proceedings against the employer, independently of this Act, in respect of the injury, shall be maintainable by any person whomsoever unless such proceedings are instituted within three years after the date upon which such payment was so received by the worker, or where more payments than one have been so received by the worker, unless such proceedings are instituted within three years after the date upon which the first of such payments was so received by the worker" "Provided that where an application is made to a judge of the Supreme Court in accordance with rules of court for an extension of the prescribed period the judge may, if he is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do, make an order for extension of the prescribed period for such further period and subject to such terms and conditions (if any) as may be set out in the order." "Such application for extension may be made either within the prescribed period or at any time within twelve months thereafter."

It might be thought at first sight that that was definitive but it is not, for the enactment continues: "Any person who is dissatisfied with the decision of the judge on any such application may appeal to the Supreme Court and that court may on the appeal make any order which ought to have been made in the first instance. Every such appeal shall be made in accordance with rules of court."

In the present case three years were allowed to pass and then the question was agitated whether an action at common law, an action it tort, should be brought in respect of this injury by the present appellant. I do not think it is necessary to state the reasons why it was then agitated, or the reasons given for the delay.

The fact was that it became necessary to apply to the Supreme Court for an extension and under rules which exist the decision was for the consideration of the Prothonotary in the first instance. The Prothonotary, of course, went into the question of what would justify an extension of a period of time.

It is to be noted that the period of time affords a positive limitation unless the extension is granted and a refusal would mean denying any cause of action to the now appellant if she ever possessed it. The question whether she ever possessed any cause of action would be tried by a jury, of course, if the extension of time was given, but the denial of any extension of time left her foreclosed of any right to bring the action and litigate its merits.

The question for us is whether the Supreme Court in its various branches exercised the discretion in a way which it was entitled to do, and did not exercise it so that it is our duty as an ultimate tribunal of appeal, to intervene.

As always is the case when there is a very wide discretion and it is entrusted to a tribunal which is subject to appeal - and there are two appeals, in effect, here, one from the Prothonotary to the judge and the other from the judge to the Supreme Court - the members of the tribunal give reasons which are not identical but not necessarily inconsistent in any way, and not necessarily at variance with the scope of the discretion which is given to them.

Now, the discretion in the present case is given in somewhat curious words, viz.: "if he is satisfied that sufficient cause has been shown, or that having regard to all the circumstances of the case, it would be reasonable so to do, make an order for extension." An analysis of those words, perhaps, indicates that there is not a little difficulty in knowing how the words "it would be reasonable so to do" march with the words "if he is satisfied that sufficient cause has been shown". But there is one thing perfectly clear about the sentence - at all events it is clear to me - and that is that the burden is upon the applicant to satisfy the condition that those words express. The applicant has got to show that there is a reason, within the expression which I have read, for extending the time, and it is a positive burden on the applicant, not of any great severity perhaps, but it is a positive burden which the applicant must discharge as he must discharge any other matter in which the burden of proof lies on him. The appellant allowed the time to elapse and it is for her to show that there is a reason why it should be extended. Expressions used in the cases cited before us which suggest that the usual thing is to extend and the unusual thing is to refuse to extend time cannot, in my opinion, be supported as indicating the true meaning of this section. I think that the words which I have read, namely, "sufficient cause has been shown" really mean that a positive reason has been shown, and the words immediately following them mean "or if the positive reason cannot be isolated and put in a distinct form, all the facts which are alleged by the applicant amount to - although not dealt with analytically - a sound and positive ground on which an indulgence shall be allowed".

In the present case Mr. Glass has with considerable care and skill gone over all the reasons which are mentioned by all the members of the tribunal to whom I have referred and has suggested that some of them may travel outside the scope of this provision. This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised and in a sense this is one such case. We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

I can see nothing, speaking for myself, in all that has been said which disqualifies any of the final conclusions stated by the three judges or the primary judge - or the Prothonotary for that matter. Their decision was to refuse the application and let the law operate according to its tenor. That really is what was done.

I therefore think that the appeal should be dismissed.

I agree with the reasons the Chief Justice has given, and in my opinion none of the grounds which actuated the Full Court were extraneous to the objects of this section or beyond the range of the discretion it confers. I agree entirely with what the Chief Justice has said on that matter.

I also agree generally in what the Chief Justice has said. I think we should not interfere with the exercise of the discretionary judgment of the Supreme Court. I would state specifically my agreement with the Chief Justice on one aspect: I am not persuaded of the validity of some of the principles which it is said have guided or should guide the Supreme Court. I do not think that there is a prima facie right to an extension. And I do not understand why it is said that only in a rare case should an extension be refused, unless it be that in the great majority of cases a sufficient ground for an extension is made out. The applicant must make out a case for permission to agitate something that prima facie time has put to rest. The matter is one for the discretion of the Supreme Court.

I should add that I do not think that the words "or that having regard to all the circumstances of the case it would be reasonable so to do" create an alternative to a "sufficient cause" as a ground on which an extension may be sought. I say that because I cannot see how, in the absence of a sufficient cause for extending the time, it could ever be reasonable to extend it. I therefore read those words as explanatory of what is meant by a "sufficient cause" rather than as stating a distinct alternative. They obviously confer a wide discretion.

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