Moore-McQuillan v Workcover/Royal and Sun

3 In the event the Full Tribunal determined that the trial at first instance had miscarried, allowed the appeal, set aside the decision of the single Member and remitted the matter for re-hearing. In due course the matter came on for hearing before me and over a lengthy period there were a number of acrimonious hearings on the matter of discovery of documents this being critical to the process then in train. In relation to the discovery issue I made a number of orders in an endeavour to ensure proper discovery was given including ordering an investigation by a Conciliation and Arbitration Officer into the matter.

4 However before the matter of discovery was finally resolved I became concerned that despite the fact that both the single Member and the Full Tribunal had assumed jurisdiction in relation to the matter at issue the relief sought by the applicant may not be within the jurisdiction of the Tribunal.

5 As a result on 15 January 2002 I wrote to the parties in the following terms:-

"On reflecting upon this matter I have concerns that the ruling sought by the applicant may not be within the jurisdiction of this Tribunal.

It is settled law that it is the duty of a judicial tribunal to be satisfied that it possesses jurisdiction in a matter before it proceeds to adjudicate thereon; Federated Engine Drivers and Fireman's Association of Australia v. Broken Hill Pty. Co. Ltd. [1911] HCA 31; (1911) 12 C.L.R. 398 at p. 415 per Griffith C.J., Board of Fire Commissioners of N.S.W. v. Threlfo (1966) A.R. 349. Moreover, it is also settled that the question of jurisdiction can be raised at any time in proceedings and that if a judicial officer has concerns about his/her jurisdiction to determine a matter the officer is duty bound to raise it (see the cases cited above amongst others).

In the case at bar, the essential facts are that over the years the subject of the applicant's claim the Tribunal and its predecessor (and the Corporation) have determined that the applicant has an entitlement to weekly payments of compensation of varying amounts. Those determinations begin with one of the Corporation of 11 October 1991 setting his notional weekly earnings at $765.88 per week (varied by a decision of Review Officer Pope of 1 July 1995 setting those earnings at $1024.19) and culminating with orders of the Full Tribunal on 6 September 2001 in matters 6926 and 7089 of 1999 effectively fixing the applicant's entitlement to weekly payments of income maintenance at $220.70 gross per week.

The essence of the matter before me is that the applicant claims that those determinations have not been met in full by the Corporation, or, to put it another way he has been underpaid by the Corporation over the relevant period. The Corporation's position is that all monies to which the applicant is entitled have been paid to him and it would appear that it has made substantial payments of income maintenance to him over the period of the claim.

In Arnott's Biscuits Ltd v Anderson (2001) SAWCT 49 at 125 the Full Tribunal had this to say:

`It is plain that the Tribunal does not possess the jurisdiction to enforce its orders in respect of the payment of money. It is notable that the failure to obey an order of the Tribunal for the payment of money is excluded from the provision declaring failure to comply with directions or orders of the Tribunal a contempt of the Tribunal: s 88A(d). The Act provides that a certified copy of the judgment may be enforced as a judgment or order of the District Court: 87 and 87a. Thus, in a case such as this, if the employer fails to abide by the order of the learned Deputy President, to enforce the order, the worker would have to make an application to the Registrar for the issue of a certified copy of the order and thereafter file and seek enforcement of the order in the District Court.'

In a similar vein, on 27 September 2001 on an application by the applicant in matters 6926 and 7089 of 1999 in which he contended that contrary to the orders of the Tribunal on 6 September 2001 his weekly payments had not been reinstated, the Full Tribunal said at p.115 of the transcript of proceedings:

`As was noted by the full bench of this tribunal in Arnott's Biscuits v. Anderson (2001) SAWCT 49 at paragraph 15, the tribunal does not possess the jurisdiction to enforce its orders in respect of payment of money.

Accordingly, even assuming that the position is as the appellant contends, we do not possess the jurisdiction to assist him. As was noted in Anderson, it does not follow that the appellant is without remedy. There clearly are remedies available to the appellant in other jurisdictions. That may be through filing of the enforcement order in the District Court pursuant to section 87A. It may be through the issue of proceedings in the Supreme Court in the nature of judicial review.

We express no opinion about that as it is not our role to do so. What we do decide is that this application must be dismissed on the ground that we do not possess the jurisdiction to enforce the payment of compensation.'

Given all of the circumstances I direct the parties to file in the Tribunal and exchange by the close of business on Wednesday 8 February next written submissions directed to the question of whether I have jurisdiction to adjudicate on the matter the subject of the present proceedings."

6 Upon receipt of the letter the applicant protested, inter alia, about the requirement to provide written submissions on a number of grounds including that he did not have time to prepare same. In response I allowed an extension of time for the filing and exchange of submissions to the close of business on Friday 1 March 2002 but otherwise did not vary my earlier order. In any event I did receive written submissions of a sort from the applicant on 21 and 30 January and 22 February 2002 and on behalf of the Corporation on or about 31 January 2002.

7 In my view stripped to essentials the applicant's case is one for the enforcement of orders or determinations of the Tribunal the former Review Panel or the Corporation in respect of the payment of money to him. Given that is so the authorities cited above which are binding on me require a conclusion that I do not have jurisdiction to entertain his claim.

8 In the circumstances the application is dismissed.

9 I will hear the parties as to any ancillary matters at a mutually convenient time should it be necessary.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.