PRACTICE AND PROCEDURE - Whether stay order may be pronounced nunc pro tunc - Matter of discretion for Judge - Whether order made nunc pro tunc effective to suspend operation of the Accident Compensation Act 1985 (Vic), s 134AB(12) - Stay order prevents statutory offer process under s 134AB(12) from being triggered - Court has no power to suspend Act directly - Order amended and appeal otherwise dismissed.

PRACTICE AND PROCEDURE - Whether Court functus officio after judgment entered - Doctrine does not affect power to stay judgment - Stay suspends operation of judgment.

(a) Whether the County Court of Victoria has incidental powers to stay a judgment for the grant of leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) ('the AC Act') or has such powers pursuant to s 49 of the County Court Act 1958 (Vic) ('the County Court Act') or r 66.14 of the County Court Civil Procedure Rules 2008 (Vic) ('the County Court Rules'); and

(b) If so, whether an order made nunc pro tunc is effective to suspend the operation of s 134AB(12) of the AC Act?

2 For the reasons that follow we would answer in the affirmative that the County Court has an implied power and also the power conferred by s 49 of the County Court Act and r 66.14 of the County Court Rules to order a stay of a judgment for the grant of leave and to pronounce such an order nunc pro tunc.

3 On 15 December 2011, the County Court delivered judgment on an application by the respondent ('Ms Ruttmar') for leave under s 134AB(16)(b) of the AC Act to bring common law proceedings - (1) to recover damages for pecuniary loss; and (2) for pain and suffering - for injuries that she claimed were work-related. The Court granted her leave to issue proceedings for damages for her pain and suffering but not for any pecuniary loss. The order was entered that same day.

4 The grant of leave triggered s 134AB(12) of the AC Act, which contains a statutory offer process that must be followed by the parties before Ms Ruttmar can commence proceedings pursuant to the grant of leave. That process is required to be commenced by the parties holding, or beginning, a conference within twenty-one days after 'the response date' for the purpose of endeavouring to settle the claim.[1] 'Response date' is a defined term and means the date on which the period of twenty-eight days after 'the determination date' expires.[2] 'Determination date' is also a defined term and means, amongst other things, the date on which the Court gives leave under s 134AB(16)(b).[3]

5 On 22 December 2011, within the twenty-one day period before the 'response date', Ms Ruttmar applied to the County Court for a stay of the grant of leave in anticipation of an appeal by her against the refusal of leave to commence proceedings to recover damages for pecuniary loss.[4] The application was made under rr 66.14 and 66.16 of the County Court Rules.

6 The basis for Ms Ruttmar's stay application was the 'likely prejudice' that she would suffer in the event that the statutory offer process had proceeded on her pain and suffering claim without regard to her pecuniary loss damages claim and she was ultimately successful in her appeal seeking leave to also proceed for pecuniary loss.

7 The trial judge held that there was power to grant a stay of the judgment under both rules. On 23 December 2011, the trial judge ordered:

Nunc pro tunc that the judgment delivered by His Honour Judge McInerney on 15/12/2011 and the operation of s 134AB(12) of the Accident Compensation Act 1985 are stayed until resolution, abandonment or expiration of the time for making an appeal.

... [Ms Ruttmar] satisfied me that she may suffer real prejudice in the statutory offer process and in running any damages action should the statutory offer process in respect to her non pecuniary loss damages claim proceed ahead of the determination of any appeal and separately to any potential pecuniary loss damages action in respect to the same work related injury.

Furthermore, the [appellants] have not articulated any prejudice resulting from a stay of judgment, nunc pro tunc, or from interference with the accrual of the determination date.

9 The appellants have appealed the grant of stay on the grounds that:

(a) the order was beyond the power of the Court, which lacked jurisdiction to make the order; and

Does the County Court have the power to order a stay of the grant of leave?

10 In addressing the question whether the County Court had the power to stay the operation of the final order, the parties made submissions concerning s 49 of the County Court Act and the County Court Rules. At the conclusion of the hearing the parties were granted leave to file further written submissions.

11 Before turning to either of these bases upon which the respondent sought to rest the power, we note that both parties' arguments proceeded upon the false assumption that the County Court has no implied powers to stay its own judgment or the execution of that judgment nunc pro tunc. The appellant maintained that in the absence of an express provision or rule, the County Court had no power to make such an order. That argument must be rejected. Although the County Court is not a superior court of record, has no inherent powers independent of its statutory jurisdiction and does not have unlimited jurisdiction, it has, by implication, incidental powers necessary to enable it to act effectively within its jurisdiction.[5] The fact of an appeal after judgment (which was the basis of the application here) is a matter on which the Court may act to stay that judgment. Section 49 further enlarges those incidental powers equating the jurisdiction of a County Court judge to grant such relief with that of the Supreme Court. Rule 66.14 also provides a further source for the power to grant a stay pending appeal.

12 We turn then to address the specific arguments of the appellants that neither s 49 or r 66.14 conferred such power.

13 Section 49 of the County Court Act provides:

The court shall as regards any civil proceeding within its jurisdiction for the time being have power to grant, and shall grant such relief, redress, or remedy, or combination of remedies, either absolute or conditional, and shall have power to make any order that could be made in regard to any civil proceeding, and shall give such and the like effect to every ground of defence or counter-claim, equitable or legal, in as full and ample a manner as might and ought to be done in the like case by the Supreme Court.

14 The appellants acknowledged that the County Court possesses broad powers pursuant to s 49 but submitted for the following reasons that it did not apply:

(1) There were no civil proceedings pending within its jurisdiction, the Court being functus officio and therefore the County Court had no jurisdiction to alter or rescind the final orders made.

(2) The power to grant a stay of execution of judgment founded on the basis that the Court must be able to preserve the subject matter of an appeal[6] had no application as there was no subject matter that needed to be preserved pending appeal.

(3) There was no power per se to later stay an order in the nature of declaratory relief.

The scope of s 49

15 In Linprint Pty Ltd v Hexham Textiles Pty Ltd,[7] Kirby P (as he then was) referred to the 'incidental statutory powers' of a court that may not be expressly stated in the statute but which are necessarily conferred by statute by the very fact of creating a court. Kirby P observed that the intention of s 49 was to enlarge the 'penumbra' of the statutory powers so that the width of the jurisdiction of the County Court of Victoria to provide relief in matters before it was the same as that of the Supreme Court of Victoria.[8]

16 Weinberg J (as he then was) also referred to s 49 in the context of implied powers in P Aker Flowerbulbs v Coulter[9], stating that it conferred jurisdiction upon the court in civil matters in the broadest of terms.[10] Section 49 of the County Court Act gives the County Court the power to make any order in civil proceedings that can be made by the Supreme Court in a like case. As the Supreme Court undoubtedly has the power to stay the operation of a judgment or order in the exercise of its powers,[11] s 49 operates to confer that same power on the County Court.[12]

17 The rule that a court, once functus officio following the regular entry of a judgment or order may not re-open, change or rescind that judgment or order (subject to certain exceptions)[13] has no application to a stay order, the legal effect of which is only to suspend the operation of the judgment.[14] The effect of her Honour's order was not to vary or rescind the judgment, but to suspend the operation of the judgment, such that the 'determination date' brought into effect by s 134AB(37) of the AC Act was not triggered.

18 As to the respondent's second contention, it was said that a stay was not necessary to preserve the subject matter of the proceeding pending appeal because nothing on appeal would upset or adversely affect the order granting leave that had already been granted. That submission must also be rejected. A court with inherent jurisdiction may grant a stay of proceedings to preserve the subject matter of litigation.[15] Furthermore, rr 66.14 and 66.16 (considered below) confer power on the County Court to grant relief in the nature of a stay after a judgment has been perfected. The jurisdiction to grant a stay does not depend on whether there is a need to preserve the subject matter of the proceeding pending appeal. The contention elides the existence of the power to grant a stay with the appropriateness of exercising the power. The Court has the power. Whether it should be exercised in a given case is at the discretion of the Court.

19 The third submission that there could be no stay because the order made on 15 December 2011 was in the nature of declaratory relief also cannot be sustained. The Court does not have power to stay a declaratory order[16] but it is not apt to describe the grant of leave as a declaratory order. A declaration is an order of the Court declaring with finality the nature of the legal rights and obligations of the parties in the dispute before it.[17] Here there has been no determination by the Court of the parties' legal rights and obligations. All that the trial judge has determined is the right of Ms Ruttmar to commence proceedings for common law damages for pain and suffering for her work-related accident.

20 Judge Millane granted the stay of the judgment pursuant to rr 66.14 and 66.16 of the County Court Rules. The respondent in the alternative relied upon these Rules.

The Court may stay the execution of a judgment.

22 Rule 66.16 cannot support the exercise of the power. That rule only provides for a stay of execution of judgment but does not stay the judgment itself.

The Court may stay execution of a judgment, or make such order as the nature of the case requires, on the ground of matters occurring after judgment.

24 The grant of a stay of execution of a judgment is not the same as a grant of a stay of a judgment. A stay of execution suspends the right of the person entitled under the judgment from immediately enforcing the judgment as distinct from suspending the judgment itself.[18] However, the legal effect of both is to suspend enforcement of the judgment. The New South Wales Court of Appeal in Permewan Wright Consolidated Pty Ltd v Attorney-General[19] did not doubt that it had power under the NSW equivalent provision to r 66.14 to grant a stay of judgment.[20] As Reynolds JA explained (Mahoney JA agreeing, Hutley JA not deciding on this point):

It has been held that neither this power nor the inherent power of the court extends so far as to allow the changing or dissolution of an order regularly made and entered as this order was: Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145. We can, however, stay or suspend its operation on the ground of matters occurring after its date for to stay or suspend the operation of an injunctive order is in my view analogous to staying the execution of a judgment...[21]

25 The phrase 'to make such order as the nature of the case requires' when construed ejusdem generis amplifies the kinds of orders that the Court can make on the ground set out.[22]

26 Order 66.14 replaced r 42.27 of the former rules,[23] which by its terms abolished any proceeding by a writ of audita querela but which enabled a judge to stay execution of a judgment or

... give such other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded; and the Court or Judge may give such relief and upon such terms as may be just.

27 Thus a party could seek such a writ where new facts arose after the judgment, entitling them to relief against such judgment, including relevantly where the enforcement of the judgment would make it 'oppressive'.[24] The Court had a plenary power to grant relief in the nature of variance, suspension or discontinuation. This power was not in the nature of appeal, as it bespoke of no error in the original judgment.

28 Under r 66.14 the court is given very broad powers. Facts such as the commencement of the statutory offer process triggered by the judgment given on 15 December 2011 and the appeal against the refusal to grant leave for pecuniary loss constitute matters 'occurring after judgment'. The appellants did not suggest otherwise.

29 In our opinion, the trial judge was correct to hold that she had the power to order the stay of judgment under r 66.14 .

30 It was also argued that the Court's jurisdiction to make an order nunc pro tunc was not enlivened where the delay in the Court making the order was occasioned by the laches of the party seeking the order or some prejudice would arise to the other party.[25] Specifically, it was argued that Ms Ruttmar, or her legal representatives, had delayed in seeking the stay and that there would be prejudice to the appellants because the stay prevents the appellants from making any offer to resolve the claim for pain and suffering damages pursuant to the provisions of the AC Act. These are discretionary matters, not matters going to the existence of the power of the Court to make an order nunc pro tunc. As there is no appeal from the exercise of discretion, it is not open to the appellants to seek to challenge the merits of the decision to grant a stay. But even if the appellants relied upon such a ground, there was no undue delay on the part of Ms Ruttmar in seeking the stay which she applied for before any steps were required to be taken under s 134AB(12) of the AC Act. Furthermore, there can be no real prejudice to the appellants by the grant of stay. The appellants are not prevented by the stay from making any settlement offer on the pain and suffering claim or otherwise pursuing avenues of settlement.

31 The effect of the grant of the stay order is to preserve the mutuality of the damages claims arising out of the same work-related incident. The stay did not lack utility and no legal error has been demonstrated.

32 The appellants argued that no order could be made which had the legal effect of suspending the operation of the statutory offer process in s 134AB(12) of the AC Act because the 'determination date' was set by operation of s 134AB(37) of the AC Act and time commenced to run on the grant of leave. The legal effect of the order nunc pro tunc was to suspend the grant of leave so that whilst the stay remains in force, there is no determination date to trigger the statutory offer process under section 134AB(12) of the AC Act.

33 We agree however, that the County Court did not have the power to stay the operation of s 134A(12) of the AC Act. The existence of that power would require a specific legislative mandate. There was no such mandate. It was in any event unnecessary for that separate order to be made because the grant of stay was sufficient and effective to suspend the statutory process. The order pronounced on 22 December 2011 must be amended to remove from the stay order the words "the operation of s 134A(12) of the Accident Compensation Act 1985".

34 Save for the amendments to the stay order removing the references to r 66.16 and the operation of s 134A(12) of the Accident Compensation Act 1985 (Vic), the appeal is otherwise dismissed.

[1] Accident Compensation Act 1985 (Vic), s 134AB(12)(a).

[2] Definition of 'response date' as contained in s 134AB(37).

[3] Definition of 'determination date' as contained in s 134AB(37)(b)(ii).

[4] The Notice of Appeal was filed the following day, on 23 December 2011.

[5] Mason v Ryan [1884] VicLawRp 115; (1884) 10 VLR (L) 335, 340; Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180, 182; Connelly v Director of Public Prosecutions [1964] AC 1254, 1301; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 5; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465, 476. See also Supreme Court Act 1986 (Vic), s 31.

[6] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681.

[7] (1991) 23 NSWLR 508.

[9] [2004] FCA 1486; (2005) 212 ALR 606.

[11] Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365; Wentworth v Attorney-General (NSW) [1984] HCA 70; (1984) 154 CLR 518, 526; Apostolidis v Kalenik [2010] VSCA 80; (2010) 24 VR 726; Koussal v Adkins [2005] VSCA 327; Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 118; Walter v National Australia Bank [2004] VSCA 184.

[12] Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508, 515.

[13] Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145; Lollis v Loulatzis (No 3) [2008] VSC 231.

[14] Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208, 211; Phillip Same Accountants Pty Ltd v Tax Practitioners Board [2011] FCA 458.

[15] Jennings Construction Ltd v Burgundy Royale Investments (No 1) [1986] HCA 84; (1986) 161 CLR 681, 683; Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation, (1981) 34 ALR 208, 211.

[16] Bunnings Forest Products Pty Ltd v Bullen [1994] FCA 1526; (1994) 54 FCR 342.

[17] Australian Competition and Consumer Commission v Francis [2004] FCA 487; (2004) 142 FCR 1.

[18] P Aker Flowerbulbs Pty Ltd v Coulter [2004] FCA 1486; (2005) 212 ALR 606, [40]; Phillip Same Accountants Pty Ltd v Tax Practitioners Board [2011] FCA 458.

[19] (1978) 35 NSWLR 365.

[20] Ibid 367. See also Wentworth v Attorney-General [1984] HCA 70; (1984) 154 CLR 518, 526.

[21] Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365, 367.

[22] Lollis v Loulatzis (No 3) [2008] VSC 231.

[23] Rules of the Supreme Court of the State of Victoria 1957 (Vic).

[24] Hutchinson v Nominal Defendant [1972] 1 NSWLR 443, 447-8_; Stubberfield v Brisbane City Council_ [1996] QCA 184, [15].

[25] Hartley Poynton Ltd v Ali [2005] VSCA 53; (2005) 11 VR 568, 607 [76].