Meier v Bridgestone Tg Australia Pty Ltd [2000] SAWCT 53

4 The matter comes before me on the application for directions and counsel have asked me to deal with it as if a preliminary matter.

5 The worker relies on an exchange of correspondence between solicitors. The worker claims this exchange constitutes an enforceable agreement to settle the dispute. Furthermore the Tribunal should record and effect that settlement.

6 The issue of jurisdiction was raised by Mr Crawley for the respondent. I must therefore satisfy myself that I have jurisdiction to entertain the matter raised by the application for directions: R v Bleby ex parte Public Service Board No 1 (1974) 41 SAIR 887 at 894.

7 In Consolidated Press Holdings Ltd v Wheeler [1992] NTSC 102; (1992) 84 NTR 42 the issue at stake was jurisdiction. The legislation permitted the Court to hear and determine claims for compensation and/or matters and questions incidental to or arising out of such claims and all other matters required or permitted by the Act. I acknowledge the distinction between power and jurisdiction, but the analysis of the Court in the circumstances is helpful.

8 Mildren J stated his conclusions as follows (45):-

"There is no specific statutory power or rule of court empowering the court to grant summary relief to a party in the absence of consent where the applicant for relief contends that there ought to be summary judgment. The Work Health Court is a statutory court and therefore bound by the Act which establishes its constitution. Unlike a superior court, it has no inherent powers. Nevertheless, it does have implied powers. As Dawson J observed in Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at 16-17; `However notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid 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'.

His Honour observed, further, at CLR 17; ALR 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'.

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 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, p 125. 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 that 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 adverted to by Dawson J in Grassby at CLR 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.

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 R v Humphrys [1977] AC 1 at 45-6 per Lord Salmon; R v Brentford Justices; Ex parte Wong (1981) 73 Crim App R 67; R v Grays Justices; Ex parte Graham (1982) 75 Crim App R 229; R v West London Stipendiary Magistrate; Ex parte Anderson (1984) 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 District Court of New South Wales [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."

9 Mr Schroeder counsel for the worker, relies on the following rules which have been made pursuant to s 88E of the Workers Rehabilitation and Compensation Act, 1986 ("the Act"):-

"Rule 1 In any case not provided in these Rules the general principles of the practice of the Supreme Court and the rules of that court for the time being in force may be adopted and applied with such modifications as the member of the Tribunal before which the proceedings is pending considers necessary in the circumstances of the particular case.

Rule 2 A Presidential Member of the Tribunal shall so far as it is appropriate have the powers conferred by the said rules on a Judge of the Supreme Court.

Rule 3(4) If the parties agree to resolve the dispute, either wholly or in part, they may record their agreement by completing Form 5, which upon execution by the conciliation officer will become an Order of the Tribunal and will be referred to the Registrar for registration pursuant to Rule 23 sub-rule (1).

Rule 3(6) A party may at any time, file and serve an offer consenting to the resolution of the dispute on such terms as that party thinks appropriate, and subject to any specific provision contained within the Act, upon the resolution of the dispute by the Tribunal, that party may bring that offer to the attention of the Tribunal for the purpose of determining that party's entitlement to or liability for costs, in accordance with the Act. Prior to that time however the fact that such an offer has been filed will not be disclosed to an Officer of the Tribunal presiding over an arbitration or judicial determination of the dispute."

Rule 23(1) If the parties agree as to the payment of a lump sum by way of compensation under the Act or if a compensating authority has made a determination of a worker's entitlement to a lump sum payment of compensation and the time for seeking a review of the determination has expired, that agreement or that determination must be registered as provided for herein.

Rule 23(2) In the case of an agreement, the agreement must be in accordance with Form 5 and must include full particulars of all relevant parties and if the agreement includes an allowance for costs and disbursements, the amount so allowed must be specified in the agreement.

Rule 23(3) In the case of a determination of a lump sum payment by a compensating authority a copy must be filed with the Registrar together with a statement containing full particulars of all relevant parties."

10 The Act states that the Tribunal has the jurisdiction conferred by statute, (s 79). I do not read that as a limiting provision rather as an enabling one. I do not read it as permitting jurisdiction only in expressed, as opposed to implied, terms.

11 S 89A states:-

(a) a decision on a claim for compensation including -

(ii) a decision on a claim by the Tribunal, made in the exercise of the Tribunal's special jurisdiction to expedite decisions on claims2;

(b) a decision about the nature of rehabilitation services provided, or to be provided, for a worker3;

(c) a decision to vary, suspend or discontinue weekly payments;

(d) a decision on an application by an employer to have weekly payments payable to a worker employed by, or formerly employed by, the employer reviewed;

(e) a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the charge into conformity with a rate of charge prescribed by regulation).

(2) However, a decision is not reviewable if declared not to be reviewable by or under this Act.

1 See section 53(7) & (7a).

2 See section 97B(3)(b).

3 Section 28B also provides for the review of a rehabilitation and return to work plan."

12 Mr Schroeder has asserted that the jurisdiction is to resolve disputes that arise under s 90 (see his outline). S 90 is directed at the persons who may invoke the jurisdiction and by what procedure or forms the jurisdiction may be invoked. It does not describe the matters which are reviewable.

13 As to the reliance on the provisions of r 1 I think this is no ground for jurisdiction. Moreover the utilisation of this provision is limited and it is prospective: see Fowler v Stanley (1994) 56 IR 69.

14 It is instructive to compare the jurisdiction that now exists in s 89A and that provided in the 1971 Act. The latter's jurisdiction was contained in s 21 of the Workers Compensation Act, 1971 and read as follows:-

"The Industrial Court of South Australia shall have jurisdiction to hear and determine any question or dispute concerning any matter or thing arising out of or connected with the liability to pay, or the amount of compensation under this Act and all matters and things ancillary thereto."

15 The emphasis in s 89A is on the word "decisions". In this respect the legislation is concerned with decisions made under the Act (eg s 53). Moreover it is concerned with decisions meeting certain descriptions. If these descriptions are met, then the decisions are reviewable in the Tribunal.

16 In Adelaide Assemblers Ltd v Kutos and Freeway Motors Ltd (1974) 9 SASR 102 at 107 the Court with respect to the 1971 Act, said:-

"These words are used in the setting of an Act which is in the nature of a complete code, making detailed provisions for the proceedings which are to be taken in the various circumstances contemplated by the Act. Where a piece of legislation speaks only in general terms and does not descend to detail, it is much easier for a court to be able to interpret the Act liberally, and to import terms which it is reasonable to believe that Parliament would have included expressly if it had directed its attention to the particular problem. But where an Act is in the nature of a code, and particularly where, as in this case, it is a code which expressly provides for contribution in some circumstances, but not in those which have actually occurred, then it is much more difficult for a court to read general words such as those now under consideration as endowing the court with the particular jurisdiction which the respondent Freeway seeks to have imported."

17 Those comments are relevant to the case before me. It would be importing a jurisdiction if I were to hear and determine the issues of whether the parties entered into an agreement, (whether there was an offer in existence and if so whether it was accepted), and what the terms were. That is not within the jurisdiction of this Tribunal. It cannot be implied from the jurisdiction expressly granted.

18 I have heard the parties in respect to the merits in case on any appeal it was the Full Tribunal's conclusion I had jurisdiction. In those circumstances it is inappropriate for me to express an opinion on that matter in the event that my conclusion as to jurisdiction is wrong or the issue is placed before a tribunal vested with jurisdiction.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.