South 32 t/as Westcliff Colliery v Ockers

South 32 t/as Westcliff Colliery v Ockers - [2017] NSWCA 324 - NSWCA 2017 case summary — Zoe

Judgment

THE COURT: The applicant is the defendant in proceedings commenced by the respondent in the District Court (the plaintiff in the District Court proceedings) in which the respondent seeks an award of workers' compensation arising from an injury to his right shoulder said to have arisen from the nature and conditions of his employment by the applicant.
On 19 May 2017 the respondent filed a statement of claim in the Coal Miners' Workers Compensation List in the District Court. Pursuant to an amended statement of claim he alleged that in or about 2006 he suffered an injury to his right shoulder in the course of his work and that he suffered a further injury on 7 May 2011. He claimed that the nature and conditions of his employment have caused, accelerated, precipitated and/or exacerbated an injury to his right shoulder.
The claim for workers' compensation is said to have been made for the first time in 2017. It was precipitated by the respondent's suffering an injury to the right shoulder on 8 January 2017. That injury was suffered when the respondent was camping and was said to have been loading an esky (whether full or empty may be a matter of dispute) into the back of a car. He suffered a tearing of his supraspinatus tendon of his rotator cuff. He underwent surgery.
A principal issue in the District Court proceedings is whether the nature and conditions of the respondent's work materially contributed to the injury suffered in January 2017.
The hearing in the District Court commenced before his Honour Judge Neilson (the primary judge) on 23 November 2017. On 24 November 2017, after the conclusion of evidence, the primary judge made observations to counsel then appearing for the respondent that prompted counsel for the respondent to apply to reopen the respondent's case by calling further medical evidence, in particular evidence from a Dr Leicester, whose medical reports had previously been tendered. That application was opposed, but was successful. The primary judge granted leave to the applicant to call its medical expert, a Dr Rowe, in reply. The matter is listed for further hearing before the primary judge on 12 December 2017.
On 29 November 2017 the applicant filed a summons seeking judicial review of the orders of the primary judge permitting the respondent to reopen his case to adduce further evidence and to relist the matter for further hearing on 12 December 2017. The applicant sought orders that those decisions be set aside and that the matter be remitted to the District Court for further hearing in accordance with the decision of this Court. The grounds for the relief sought in the summons for judicial review were identified as follows: "10 Pursuant to s69 of Supreme Court Act it be declared that the decision of His Honour Judge Neilson DCJ of 24 November 2017 permitting the Plaintiff in the Court below to reopen his case was an error in law and be set aside and/or consequential orders. 11 Particulars of error in law: a. His Honour misapprehended and/or disregarded the nature or limits on the functions and powers to permit re-opening of a case in the circumstances. b. His Honour wrongly disregarded and failed to have regard to the provisions of the Civil Procedure Act. c. Applied the wrong legal test for the application to reopen d. Misconstrued [s] 142J of the District Court Act e. Failed to take into account the interests of all parties f. Gave undue and unreasonable weight to the interests of the Defendant/Plaintiff below. g. Failed to provide to the Plaintiff procedural fairness including failure to give adequate reasons. h. The decision was manifestly unreasonable and unjust. i. Failed to provide a fair trial to the Plaintiff. [viz, the applicant]"
Also on 29 November 2017 the applicant filed a notice of motion seeking a stay of the decision and order of the primary judge allowing the respondent to reopen his case and to adduce further medical evidence, and more generally a stay of the District Court proceedings pending the determination of the "leave to appeal/appeal". That notice of motion was returnable on 4 December 2017. The affidavit of the applicant's solicitor filed in support of the notice of motion included a draft notice of appeal.
On 4 December 2017 the applicant filed a summons seeking leave to appeal on the following grounds: "1 The decision was erred in point of law in that the trial judge; a. Failed to have regard to the provisions of the Civil Procedure Act (NSW) 2005. b. Breached the rules of procedural fairness in that: i. He failed to provide a fair trial to the Plaintiff [viz, the applicant]. ii. The decision effectively amounted to the trial judge calling a witness. iii. Considered the controlling feature of his exercise of discretion was to avoid making a decision in favour of the Plaintiff [viz, the applicant]. iv. Failed to give adequate reasons. c. That the trial judge erred in law his exercise of his discretion in that he: i. Acted on wrong principle. ii. Allowed himself to be guided by extraneous or irrelevant matters. iii. Made mistakes of fact. iv. Failed to take into account material considerations. d. The discretionary decision was unreasonable and/or plainly unjust. e. Wrongly regarded the meaning and effect of section 142J(1)(a) of the District Court [Act] and/or gave it too much weight in his considerations."
On the return of the notice of motion, the notice of motion together with the summons for judicial review and the summons seeking leave to appeal were referred for hearing before a bench of three judges. At the conclusion of the parties' submissions, the Court made the following orders: "1. Having expedited the hearing of the applicant's motion of 29 November 2017 otherwise dismiss the motion. 2. Dismiss the summons under s 69 of the Supreme Court Act 1970. 3. Dismiss the summons seeking leave to appeal 4. Order that the applicant/employer pay the respondent/worker's costs of the proceedings in this Court. 5. Reasons reserved."
These are our reasons for those orders.
No transcript of the submissions before the primary judge or his Honour's observations that led to the respondent's counsel applying for leave to reopen to adduce further medical evidence is available. However, the applicant's solicitor prepared an affidavit to the following effect: "To the best of my recollection and relying on the notes I took on 24 November 2017 in the Court below, at the end of the submissions of Mr Benson, His Honour Judge Neilson said words to the effect that the Plaintiff in the Court below had a 'major problem', there was a 'lack of evidence for an inference to be drawn (in relation to the cause of degenerative changes found on radiology) … what is likely to be the cause of the symptoms … and whether there has been a compromise on the cuff. Degenerative tendonosis in right shoulder, tear in right cuff on 8 January 2017. What evidence is called by the Plaintiff that supraspinatus was degenerative. No (medical) evidence that any minor assault would have caused the tear. … No medical evidence … . All evidence is against the Plaintiff on that issue… (the Plaintiff) needed expert evidence to call if he wished to establish liability stating (1) that lifting an empty esky is not typical as to how you rupture your rotator cuff and (2) need to call doctor to provide evidence of the (cause) of the underlying pathology. The report of Dr Leicester does not state these issues and cannot be inferred.'
The proceedings below are in the compensation jurisdiction of the District Court, being its jurisdiction to examine, hear and determine coal miner matters within the meaning of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (except for matters arising under Pt 5 of the Workers Compensation Act 1987 (NSW), that is, matters involving a claim for common law damages).
Section 142J of the District Court Act 1973 (NSW) (the "District Court Act") provides: "142J Decisions of Court when exercising compensation jurisdiction (1) The following apply in the exercise of the Court's compensation jurisdiction: (a) a decision of the Court in any matter is to be on the real merits and justice of the case, (b) the Court is not bound to follow strict legal precedent, (c) subject to Subdivision 3: (i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and (ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and (iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its compensation jurisdiction, and (iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner. (2) Nothing in subsection (1) prevents the Court from reconsidering any matter that has been dealt with by it in its compensation jurisdiction (or had been dealt with by the Compensation Court), or from rescinding, altering or amending any decision previously made or given by the Court in the exercise of that jurisdiction (or by the Compensation Court), all of which the Court has authority to do. (3) In this section, decision includes award, order, determination, ruling and direction."
Section 142J is in Div 8A of the District Court Act dealing with the compensation jurisdiction of the District Court. Section 142N (which is in subdivision 3) relevantly provides: "142N Appeal to Court of Appeal on question of law (1) If a party to any proceedings before the Court in its compensation jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal. … (4) The following appeals under this section may be made only by leave of the Court of Appeal: (a) an appeal from an interlocutory decision, … (c) an appeal from a final decision or award, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more. …"

[4]

Summons for Judicial Review

At least arguably, the summons for judicial review is barred by s 142J(1)(c)(ii) or (iii). If that provision stood alone and there was no right to appeal to the Court of Appeal from an award of the District Court, then, notwithstanding the clear terms of s 142J(1)(c)(ii) and (iii), the Supreme Court would have a constitutionally entrenched jurisdiction to grant prerogative relief for jurisdictional error (Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [80], [99]-[100] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Because the issue was not the subject of argument, we prefer to express no view on whether s 142J(1)(c)(ii) or (iii) precludes the grant of prerogative relief, even in the case of jurisdictional error, because s 142N confers a right of appeal on a party aggrieved by an award in point of law or on a question as to the admission or rejection of evidence, subject in some limited cases, to a grant of leave. Such an appeal right means that decisions of the District Court in its compensation jurisdiction are not "islands of power immune from supervision and restraint" (Kirk v Industrial Relations Commission (NSW) at [99]). Assuming in the applicant's favour that the primary judge's decision to allow the respondent to reopen his case to adduce further medical evidence was amenable to judicial review if there were jurisdictional error, no such jurisdictional error is shown.
The last ground of review asserts that the primary judge made an error of law in permitting the respondent to reopen his case by failing to provide a fair trial to the applicant. We take that to be an allegation of denial of procedural fairness. If established, this would be jurisdictional error (Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [82]). The ground is elaborated upon in the summons for leave to appeal by the assertion that the decision effectively amounted to the primary judge's calling a witness, and that the primary judge considered that the controlling feature of his exercise of discretion was to avoid making a decision in favour of the applicant.
There was no unfairness in the procedures adopted, even if, as the applicant contends, the decision to allow the respondent to reopen his case was erroneous. It is not suggested that the applicant was not heard on the respondent's application to reopen. The applicant's complaint rather is as to the merits of the decision to allow the respondent to reopen.
The primary judge did not call a witness. His Honour allowed the parties the opportunity to do so. He identified Dr Leicester as the witness whom he assumed would be the witness the respondent would seek to rely upon. That does not amount to the primary judge himself calling the witness.
No oral submission was made in support of the contention in the written submissions that the primary judge considered that the controlling feature of his exercise of discretion was to avoid making a decision in favour of the applicant. That is tantamount to an allegation of actual or apprehended bias. There is no basis for such an allegation. It should not have been made. The primary judge is reported simply to have said that the respondent should not be disadvantaged by his lawyers' failing to appreciate a gap in the medical evidence. That statement cannot reasonably be construed as indicating that the primary judge wished to avoid making a decision in the applicant's favour.
It is entirely proper for a judge in the course of submissions to identify where, in the judge's view, a party's evidence falls short of establishing a claim or defence. This is especially so where the governing legislation requires the decision of the Court to be "on the real merits and justice of the case". If the actions of the judge lead to an application to reopen, then discretionary considerations come into play. But acceding to an application to reopen after identifying such a deficiency cannot give rise to an apprehension by a reasonable bystander that the judge might not bring an impartial mind to his or her decision (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2010] HCA 63 at [6]).
As to the alleged errors of law there are at least two answers to the claim for prerogative relief, even if the alleged errors of law are established.
The summons for judicial review seeks an order that the primary judge's decision be "set aside" and that the matter be remitted to the District Court for hearing in accordance with the decision of this Court. This appears to be relief sought in the nature of certiorari, that is, an order that would quash the decision, and an order in the nature of mandamus directing the District Court to proceed in accordance with the judgment of this Court. However, the decision of the primary judge was not determinative of either party's legal rights or interests. As this Court said in W O v Director of Public Prosecutions (NSW) [2009] NSWCA 370: "[10] Where courts have been asked to intervene in the exercise of a supervisory jurisdiction, before a trial court or tribunal has made an order determinative of rights, the usual course will be to seek prohibition, rather than certiorari, on the basis that there will be nothing at that stage capable of being set aside or quashed."
Whether the relief sought is an order in the nature of prohibition or certiorari, the applicant must establish jurisdictional error. The alleged errors in the primary judge's discretionary decision to allow the respondent to reopen his case involved no misconception or disregard of the limits of the District Court's compensation jurisdiction, even if the primary judge failed to take into account matters which he was required to take into account, as is asserted, or applied a wrong legal test for allowing the application to reopen (Craig v South Australia (1995) 184 CLR 163 at 177-178; [1995] HCA 58). If the decision were erroneous, the error was committed in the exercise of the District Court's jurisdiction to determine the claim for compensation. The decision did not touch the limits of that jurisdiction.
Secondly, even if the grounds for relief by way of judicial review were otherwise established, the relief should be refused on discretionary grounds. That is so for two reasons. First, the statute (being the District Court Act) provides an avenue of appeal, either as of right or by leave. Secondly, for the same reasons that a tight rein should be maintained on appellate interference with interlocutory decisions on matters of practice or procedure, in proceedings by way of judicial review of interlocutory decisions on matters of practice or procedure, a tight rein should be kept on quasi-appellate intervention. The reasons below for our decision to refuse leave to appeal would also have led to the refusal of relief by way of judicial review if the grounds for such relief had been established.

[5]

Summons for Leave to Appeal

The applicant submitted that the decision to allow the respondent to reopen his case was unfair and that the primary judge failed to take into account relevant matters to which he was required to have regard. The applicant said that forensic decisions had been taken by the parties' choosing not to cross-examine doctors whose reports were tendered. The applicant said that a decision was made not to seek to cross-examine the respondent's medical witnesses as it was thought, it is said correctly, that those reports would not sustain an award of compensation. The result of the decision to allow the plaintiff to reopen his case is that Dr Rowe (a doctor whose reports were served by the applicant) would be expected to provide a report in response to the further report provided by Dr Leicester, and leave might be given to the respondent to cross-examine Dr Rowe. It was said that the primary judge was required to consider ss 56 and 57 of the Civil Procedure Act 2005 (NSW) in making his decision whether to grant leave to reopen, but did not do so, and instead concentrated only on the requirements of s 142J(1)(a) that the decision be on the "real merits and justice of the case". It was submitted that the real merits and justice of the case include (or at least do not exclude) the considerations in ss 56 and 57 of the Civil Procedure Act. The applicant also submitted (citing Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (per Kenny J)) that there are four classes of case in which leave to reopen may be granted, namely: "(1) Fresh evidence; (2) Inadvertent error; (3) Mistaken apprehension of the facts; (4) Mistaken apprehension of the law."
In Inspector General in Bankruptcy v Bradshaw, Kenny J also said (at [24]) that the classes identified overlapped and were not exhaustive, and that in every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.
Section 56(1) of the Civil Procedure Act 2005 (NSW) states that the overriding purpose of the Act and rules of court "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." Section 57 requires that the court have regard to that purpose in managing proceedings and giving procedural directions. That obligation is in harmony with the requirement that the court determine matters "on the real merits and justice of the case" (s 142J(1)(a)), together with the power to reconsider a matter which has been dealt with in the compensation jurisdiction (s 142J(2)); in practical terms, these provisions should not conflict. Nor was any aspect of conflict or inconsistency identified in the applicant's submissions. (The effect of s 142J was considered in Daley v SAS Trustee Corporation [2016] NSWCA 111 at [92]-[107].)
No doubt the decision to allow the worker to reopen his case will involve an increase in the cost and length of this proceeding. On the other hand, that course may ensure that the real issues are justly determined. Given that the Court has power to reconsider earlier compensation determinations, the assessment of factors relevant to a reopening decision may well operate differently in this jurisdiction from other jurisdictions. There is no reason to suppose that express reference to the terms of s 56 or s 57 of the Civil Procedure Act would have affected the outcome. An example of consideration of the overriding purpose leading to a similar conclusion in a tribunal may be seen in ALZ v Lismore City Council (No 2) [2016] NSWCATAD 250 (Senior Member R Perrignon).
It is neither necessary nor desirable to express a concluded view on the merits of the applicant's submission. The reason for not doing so is that the case before Neilson DCJ is part-heard. If a final award is made adverse to the applicant, then (on the assumption that the amount involved would be more than $20,000) the applicant will be entitled to appeal as of right from the award. If an award is made that is adverse to the applicant by reason of the additional evidence adduced pursuant to the grant of leave to reopen, then it will be open to the applicant to seek to establish that the discretion to allow the respondent to reopen miscarried. This is a case to which the observations of Jordan CJ in In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323 apply: "… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
The primary judge's decision does not determine the parties' substantive rights. In our view, it was not in the interests of justice to interfere with the hearing of the District Court. For these reasons the summons for leave to appeal was dismissed.

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