J Robins (Chippendale) Pty Ltd v Sakic [1986] HCA 53

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. J Robins (Chippendale) Pty Ltd v Sakic [1986] HCA 53

ORDER Appeal allowed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 23 Mason, Wilson and Dawson JJ.

In 1984 the New South Wales Parliament effected major changes to the law of workers' compensation in New South Wales. The Workers' Compensation Commission ("the Commission") was abolished and replaced by two bodies: the Compensation Court ("the Court") with responsibility for carrying on what may be broadly described as the judicial work formerly performed by the Commission and the State Compensation Board ("the Board") to fulfil the purely administrative functions formerly carried out by the Commission. The sole issue which is raised by the present appeal is whether the Court has jurisdiction to entertain an application for the rescission ab initio of an award which was made in 1983 by the Commission providing for the payment of compensation by the appellant to the first respondent. The basis of that application is an allegation that the award was obtained by fraud.

There would appear to be no reason of principle or legislative policy why the Court should not possess the power to rescind an award by the Commission. The Commission possessed it: Workers' Compensation Act 1926 N.S.W., as amended, s. 36(2), prior to its repeal by the amending Act No. 90, 1984. The Court has the power to rescind its own orders: Compensation Court Act 1984 N.S.W., as amended, ("the Court Act") ss. 17(4), 17(4A). Furthermore, the Court may review any order for a weekly payment, whether that order was made by the Court or the Commission: Workers' Compensation Act, s. 60(1), as read with the Miscellaneous Acts (Workers' Compensation) Amendment Act 1984 N.S.W. ("the Miscellaneous Amendment Act") Sched. 2, cl. 4(1). The question is whether there is an unintended gap in the legislation. The New South Wales Court of Appeal concluded that there was a gap, and that it was impossible, in the context of the legislative history, to construe the words of s. 17(4) of the Court Act to include decisions previously made or given by the Commission. The present appeal is from that decision of the Court of Appeal.