JENNINGS v COMMISSIONER OF POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY, JJA 7 August 1995, 1 April 1996 [1996] NSWCA 276 Workers compensation — application filed in wrong place — retrospective effect — jurisdiction Workers Compensation — application filed in wrong place — Police Regulation (Superannuation) Act 1906 — s21 amended by Police Regulation (Superannuation) (Workers Compensation) Amendment Act 1987 — Compensation Court (Savings and Transitional) Regulation 1989 — retrospective effect — jurisdiction of Compensation Court to determine application. A former member of the Police Force appealed against a decision by Duck CCJ refusing to restore to the Compensation Court list an application that a decision of the Police Commissioner be set aside. The application had previously been struck out by Moran CCJ on the ground the Compensation Court had no jurisdiction to entertain it. The appeal concerned the question whether the effect and operation of CL4(2) of the Compensation Court (Savings and Transitional) Regulation 1989 were retrospective. Held: per Priestley JA and Clarke JA, Handley JA dissenting, (1) The application to the Compensation Court was within the words of CL4(2) of the Regulation, and the Compensation Court was empowered to hear and determine the application. (2) The effect and operation of CL4(2) had the effect of turning a previous non-application into a live application. (3) Moran CCJ's decision to strike out the application was not a final disposal of the application on its merits. Moran CCJ's only power was to make a strike out order and consequential orders. In re Bombay Civil Fund Act (1888) 40 Ch D 288; ex parte Jospe re Radovsky (1957) 74 WN (NSW) 156; Norris v Norris (1985) 1 NSWLR 472 at 473; and Wentworth v Rares, Court of Appeal, 20 December 1991, unreported. ORDERS Appeal upheld; decision of Duck CCJ set aside; the matter to be restored to the Compensation Court list; the Commissioner should bear the applicant's costs of the appeal. Priestley JA PRELIMINARY. This appeal is by Mr WJ Jennings, a former member of the Police Force, against a decision by Duck CCJ which, in formal terms, was a refusal to restore to the list of the Compensation Court an application by Mr Jennings that a decision of the Commissioner of Police under the Police Regulation (Superannuation) Act 1906 be set aside. The following facts concerning the appeal were not in dispute. From here on I will call the appellant Mr Jennings the applicant. FACTS. On 22 April 1985 the applicant was injured while on duty. He had some time off work for which he was paid as hurt on duty. In June 1988 the Police Superannuation Advisory Committee certified in terms of s10B(1) of the Act that the applicant was incapable of discharging the duties of his office by reason of a specified infirmity. On 30 June 1988 the applicant was medically discharged from the Police Service. 2 UNREPORTED JUDGMENTS Under s10B(3)(a) the Commissioner was required to decide whether or not the infirmity to which the certificate of the Police Superannuation Advisory Committee related was caused by the applicant having been hurt on duty. On 17 August 1988 the Commissioner decided that the infirmity was not occasioned by an injury referred to in s1(2) of the Act, that is, that the applicant had not been relevantly hurt on duty. Prior to 1 July 1987, s21(1) of the Act provided that a person who considered himself aggrieved by a decision of the Commissioner under s10(B)(3)(a) might, within a period of ninety days after notification of the decision, apply to the Compensation Court for a determination in relation to that decision. However, s21(1) of the Act was amended as from 1 July 1987 (by Act No 81 of 1987, the Police Regulation (Superannuation) (Workers Compensation) Amendment Act, 1987, Schedule 1, CL12, by omitting from s21(1) the words "the court" and inserting instead the words "a Workers Compensation Commissioner under the Workers Compensation Act 1987". On 22 December 1988 the applicant filed application No 452/88 in the Compensation Court for the setting aside of the Commissioner's decision and seeking in its stead a decision that the infirmity certified had been caused by an injury on duty. On 8 March 1989 the respondent filed an answer in the Compensation Court in which he said, inter alia, that the Compensation Court had no jurisdiction to determine the application under s21 as amended by the 1987 amending Act. On 13 March 1989 the applicant filed a second application numbered 5408/89 before the Workers Compensation Commissioners claiming identical relief to that sought in the first application. The first application, No 452/88, came before Moran CCJ in the Compensation Court on 31 March 1989. The file records that there was no appearance for the applicant and that counsel appeared for the Commissioner. The order noted on the file reads: "On Respondent's application. On the ground that these proceedings should have been filed before Commissioners because of the amendment made 1/7/87 I order that I have no jurisdiction to hear this matter and order that the Application for Determination be struck out. " The notation bears what appears to be his Honour's signature and a further note, also apparently signed by him: "10.28 am Later Mr Meagher appeared for applicant and I advised him of the order made. On 15 September 1989 a regulation made under the Compensation Court Act 1894, called the Compensation Court (Savings and Transitional) Regulation 1989 (the ST Regulation) was gazetted. CL3 of the ST Regulation provided that after the repeal of Pt8 of the Workers Compensation Act 1987 (repealed by Act No 119 of 1989 effective from 1 October 1989) a reference to a Workers Compensation Commissioner in, inter alia, s21 of the Police Regulation (Superannuation) Act 1906 was to be read as a reference to the Compensation Court. CL4, including its heading, was as follows: 'Pending proceedings under Police Regulation (Superannuation) Act 1906 etc 4. (1) CL2 of Schedule 4 to the Compensation Court Act 1984 applies in respect of proceedings before a workers compensation commissioner under the Police Regulation (Superannuation) Act 1906 or any other Act in the same way as it applies in respect of proceedings under the Workers Compensation Act 1987. (2) The Compensation Court may hear and determine proceedings on an application purporting to have been lodged URJ JENNINGS v COMMISSIONER OF POLICE (Priestley JA) 3 with the Court under s21 of the Police Regulation (Superannuation) Act 1906 even though the application was required to be lodged with a workers compensation commissioner. An explanatory note published beneath the ST Regulation said: "The object of this Regulation is to make savings and transitional provisions consequent on the transfer of workers compensation commissioners and their jurisdiction to the Compensation Court under the Compensation Court (Amendment) Act 1989. The Regulation: (a) requires references in the appeal provisions of the Police Regulation (Superannuation) Act 1906 or any other Act to be read as references to the Compensation Court; and (b) saves pending proceedings under such appeal provisions, including appeal proceedings which are defective because they were instituted in the Compensation Court instead of with the commissioners." On 28 November 1989 Moroney CCJ stood application No 5408/89 over generally. On 4 December 1989 the Commissioner filed an answer in application No 5408/89 in which it was said, inter alia, that the applicant had failed to make the application to set aside the Commissioner's decision within the time stipulated in s21(1). On 28 May 1990 the applicant filed a notice of motion in application No 452/88 for an order that the court restore the application to the list. The motion came before Manser J on 5 June 1990. The court file shows that on is occasion the applicant was represented but the Commissioner was not. The file also shows the following order was made by Manser J: "Restore to list. Order A to file and serve particulars of the claim within 21/7. Otherwise usual directions." On 14 November 1990 the applicant filed a notice of motion in application No 5408/89 seeking an order restoring the matter to the list. The applicant's solicitor swore an affidavit in support of this motion saying, inter alia, that through inadvertence the applicant's notice of motion of 28 May 1989 was filed under application No 452/88 although the solicitor believed and intended the matter to be restored was application No 5408/89. In para7 the solicitor said: "Should it be necessary I undertake to file a Notice of Discontinuance in Matter No 0452 of 1989." On 3 December 1990 Moroney CCJ is noted on the file in application No 5408/89 as having ordered: "Restore to List. R/L to be filed within 28 days otherwise A/D S, out. A to file particulars of claim." Nothing further happened, so far as the court records show, until 22 January 1993 when a notice of change of solicitor was filed in application No 452/88 DECISION OF DUCK CCJ. It appears from the reasons for judgment given by Duck CCJ on 6 October 1993 that there had been before him on that day both application No 452/88 and application No 5408/89. In his reasons for judgment Duck CCJ recorded that he asked counsel for the applicant to say which application he sought to proceed upon and that the answer was that the applicant sought to proceed first on the earlier application and alternatively on the later one. 4 UNREPORTED JUDGMENTS Duck CCJ then referred to the history that I have already set out, and continued that in his view the order of Manser CCJ of 5 June 1990 had been a nullity, because the court had had no jurisdiction. He also referred to CL4(2) of the ST Regulation. He then said: "After some debate I indicated to counsel that it seemed to me that the correct position was that the applicant had on foot the second of his applications,... and that the application bearing No 452/88 was nor on foot, nor had it been at least since Moran J struck it out for want of jurisdiction on 31 March 1989." He noted that once he had expressed that view the applicant's counsel immediately made application that the court should exercise a power under s17 of the Compensation Court Act to restore application No 452/88 to the list. He said that the applicant's counsel in support of this application had said inter alia that s17 "contained power which permitted the court, now, to restore to the list the earlier application". Duck CCJ added that counsel for the applicant expressly disassociated himself from any suggestion he was seeking in any way to vary the order of Moran CCJ. Duck CCJ's conclusion was: "... that the application must be rejected, firstly, because it does not seem to me to be within the power contained in s17 of the Compensation Court Act and, secondly, because there being no jurisdiction in the court to entertain the application when it was filed, that matter cannot be corrected by some application of the powers contained in s17, even if they existed. I therefore reject the application to have the matter, 452/88, restored." Having disposed of application No 452/88 he then heard evidence in application No 4508/89. That application was stood over part heard and was eventually stood over generally with liberty to restore on seven days notice. THE ARGUMENT IN THIS COURT. On the appeal to this court the argument principally turned on the orders of Moran CCJ on 31 March 1989 and the effect of CL4(2) of the ST Regulation. To an extent, the attention of the court was taken up with the reference in the heading to CL4 to "Pending proceedings". Since it seemed plain to the court (as I continue to think) that no application by Mr Jennings was on foot in the Compensation Court, and that therefore there could be no pending proceedings, it seemed possible that CL4(2) had no application to the applicant's application. Alternatively it was argued for the Commissioner that if there had been anything before the court to be struck out by Moran CCJ, he had done so before CL4(2) began to operate, and even if that sub-clause operated retrospectively, it had nothing to operate on. It now seems to me however that CL4(2) does not deal with pending proceedings in any valid or substantive sense, but as its own terms make clear, is dealing with purported applications which are not in legal reality applications at all, because of their having been lodged with the Court (which had no jurisdiction) when they should have been lodged with a workers compensation commissioner (who did have jurisdiction). The next thing the court needs to consider, it seems to me, is what the orders of Moran CCJ in substance did. There seems to me to be sufficient information in what is recorded of his Honour's orders made on 31 March 1989 to show that he was not in any sense disposing finally of the substance or merits of the application which, at that date, should have been before a commissioner: the substance of what he was saying was no more than that the application before him was not in the Compensation Court's jurisdiction and the Compensation Court could make no orders concerning it. Since the court had no jurisdiction to URJ JENNINGS v COMMISSIONER OF POLICE (Priestley JA) 5 decide the applicant's application, Moran CCJ's only power was to make an order based on that position, and to make such consequential orders as were necessarily ancillary to his primary order: see In re Bombay Civil Fund Act (1888) 40 Ch D 288; ex parte Jospe re Radovsky (1957) 74 WN (NSW) 156; Norris v Norris (1985) 1 NSWLR 472 at 473, 477 and Wentworth v Rares CA, 20 December 1991, unreported. It does not seem to me that orders to that substantive effect could have any bearing on the question which arose when CLA(2) of the ST Regulation came into effect unless in some way Moran CCJ's orders in law expunged the applicant's application from the Compensation Court's records. In the absence of legislation or subordinate legislation such as the ST Regulation, nothing further could ever have happened in regard to the application; but once the Regulation came into force, it raised the question, in the circumstances of the present case whether the application fulfilled the description of "an application purporting to have been lodged with the Court under s21... even though it was required to be lodged with the workers compensation commissioner". The application had certainly been lodged with the court under the relevant section even though required to be lodged with a workers compensation commissioner. Did Moran CCJ's order displace that lodgement? Although the applicant's then solicitor had undertaken to file a notice of discontinuance in application No 452/88 "should it be necessary", it does not appear that any notice of discontinuance was ever filed. The appeal papers included photostats of the Compensation Court's file for application No 452/88. It seems clear from these that the application physically remained in the Compensation Court's records. It seems to me that nothing had happened to it in law - nothing can happen in law to something that does not exist in law - and nothing had happened to it in fact - it was still on file. It had been doomed to lie uselessly in the records until the Regulation came into effect, but once it came into effect, it seems to me that it was literally within the words of CLA(2) and that the Compensation Court was empowered to hear and deter nine the application. CONCLUSION. Underlying Duck CCIJ's refusal to restore application No 452/88 to the list was a view that, there having been no jurisdiction in the court to entertain the application when it was filed, and notwithstanding the subsequent coming into force of CL4(2), the Compensation Court had no power to deal with the matter. For the reasons already given, my opinion is that CL4(2) had the effect of turning what was previously a non-application into a live application to the Compensation Court. It should therefore be restored to the list and dealt with. I would uphold the appeal against the decision of Duck CCJ not to restore application No 452/88 to the list, set that decision aside and in its place order that the matter be restored to the Compensation Court list. The respondent Commissioner should bear the applicant's costs of the appeal. AFTERWORD. Since reading the conclusion expressed above I have had the benefit of reading Handley JA's opinion to the contrary. As I follow his reasoning, it begins with the proposition that a decision by a judicial tribunal that it lacks jurisdiction is a res judicata on that question. Assuming (without necessarily agreeing) that that proposition applies in all circumstances, and that it applied at the time Judge Moran made his order, the question would become whether CL4(2) of the Superannuation Tribunal Regulation retrospectively affected Judge Moran's decision. For the reasons I have already given I think the words of CL4(2) are 6 UNREPORTED JUDGMENTS quite strong enough to overcome that decision. CL4(2) deals with applications "purporting" to have been lodged, to use its own word, and which are "defective because... instituted in the... Court instead of with the Commissioners", to use the words of the explanatory note. The words of CL4(2) (although a more accurate form could have been chosen in a technical sense) seem to me plainly to include situations such as arose in the present case. I would not read them down in light of the heading above CL4. I think the preferable approach is to understand the heading in light of the clear meaning of the substantive provisions. On this approach I remain of the view that the words of the sub-clause prevail against the considerations involved in the presumption against retrospectivity. Clarke JA I agree with the orders and reasons of Priestley JA and would only add that I wish to reserve my opinion on the question whether there is a wide principle, as Handley JA states, that a decision by a judicial tribunal that it lacks jurisdiction is a res judicata on that question. Handley JA In this appeal I have the misfortune to differ from the views of the other members of the Court and will attempt to briefly explain my reasons for doing so. Priestley JA has set out the provisions of the relevant statutes and regulations, and there is no need for me to repeat this material. The question for decision is whether CL4(2) of the Compensation Court (Savings and Transitional) Regulation which came into force on 15 September 1989 applies to validate the appellant's appeal commenced in the Compensation Court on 22 December 1988 at a time when that Court admittedly had no jurisdiction. CL4(2) provides: "Pending Proceedings under Police Regulation (Superannuation) Act 1906 etc 4(1)... (2) The Compensation Court may hear and determine proceedings on an application purporting to have been lodged with the Court under s21 of the Police Regulation (Superannuation) Act 1906 even though the application was required to be lodged with a Workers' Compensation Commissioner". The explanatory note states that this sub-clause: "saves pending proceedings under such appeal provisions, including appeal proceedings which are defective because they were instituted in the Compensation Court instead of with the Commissioners" The Court is entitled to refer to the heading and explanatory note when considering the interpretation of CL4(2). See Interpretation Act 1987 s34(2)(a), s34(2)(e). There is no doubt that this sub-clause has a retrospective operation and validated pending appeals commenced in the Court when it lacked jurisdiction. However on 15 September 1989 this appeal was not pending in the Compensation Court. On 31 March Moran CCJ held, correctly, that the Court had no jurisdiction to hear the appeal and ordered that it be struck out. A decision by a judicial tribunal that it lacks jurisdiction is a res judicata on that question. Spencer Bower and Turner "Res Judicata" at 52-3 states what I understand to be the principle: "... where an action has been dismissed on the sole ground that the particular court had no jurisdiction... such a dismissal, whilst it will allow the disappointed party to prosecute his claim in a court having jurisdiction, will preclude him from reviving his claim before the tribunal which has formally refused jurisdiction". URJ JENNINGS v COMMISSIONER OF POLICE (Handley JA) 7 The author cites as authority R v Middlesex JJ Ex parte Bond (1933) 2 KB 1 (CA). To this may now be added The Sennar (No 2) (1985) 1 WLR 490 (HL). The decision of Moran CCJ was therefore a final decision dismissing the appeal for lack of jurisdiction. The language of CL4(2) does not in terms apply to an appeal which has already been finally dismissed for want of jurisdiction. It conferred jurisdiction on the Court to hear and determine proceedings but what was required in the present case was not authority to hear but authority to re- hear a completed proceeding. The language is not apt to confer such authority. This is supported by the references to pending proceedings in the clause heading and the explanatory note and by the use of the present tense in the explanatory note "including... proceedings which are defective". The question is whether CL4(2) has the further retrospective operation required to make it applicable to concluded proceedings. The relevant principle is stated in Halsbury's 4th ed Vol 44 "Statutes" para924: "Tt is a corollary of the general presumption against retrospection that, even where a statute is clearly intended to be to some extent retrospective, it is not to be construed as having a greater retrospective effect than its language renders necessary". See also Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466 (CA) at 472. Even without further authority there would, in my view, have been a real doubt as to whether the language of CL4(2) could be construed as reviving completed proceedings. However in Lemm v Mitchell (1912) AC 400 the Privy Council considered whether retrospective legislation applied to a case heard and determined under the previous law. Lord Robson said at 405-406: "In the absence of appeal the judgment was a final determination of the rights of the parties, and the ordinary principle that a man is not to be vexed twice for the same alleged cause of action applies, unless it be excluded by the legislature in explicit and unmistakable terms. That is not the case here.... This language... must not be taken to deprive persons of vested rights acquired by them in actions duly determined under the repealed law. It would require language much more explicit than that which is to be found in the Ordinance of 1908 to justify a court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting". See also FEDFA v BHP (1913) 16 CLR 245 at 259, 271, 272, 275-6, 280-281 where Lemm u Mitchell was applied by some Justices and distinguished by others without casting any doubt on its application in a case such as the present. The language of CL4(2) is not expressed in the "clear and unmistakable terms" required to avoid the res judicata created by the decision of Moran CCJ. An example of clear language intended to achieve such a result is to be found in Schedule 5 CLS of the Limitation Act 1969 inserted by Act No 36 of 1990 which applies in terms to "pre existing judgments" and authorised the Supreme Court to set them aside. The decision of Moran CCJ was not a final decision on the merits of the appeal, and it would not bar the appellant from commencing fresh proceedings in a court with appropriate jurisdiction, assuming this were possible. However at the relevant time s21 of the Act required appeals such as this to be commenced within 90 days. The appellant may be still able to appeal from the Commissioner's decision if he can secure an extension of time for the commencement of fresh proceedings. However, if this is not possible the respondent has an accrued right as a result of the expiration of the 90 day limitation period which would be affected if CL4(2) were construed as setting 8 UNREPORTED JUDGMENTS aside the order of Moran CCJ. There is a strong presumption against such a construction. See Maxwell v Murphy (1956) 96 CLR 261, Yew Bon Tew v Kenderaan Bas Mara (1983) 1 AC 553. In my opinion the appeal should be dismissed with costs. Appeal upheld; decision of Duck CCJ set aside; the matter to be restored to the Compensation Court list; the Commissioner should bear the applicant's costs of the appeal. Counsel for the Appellant: PW Neil/ B Rowe Solicitors for the Appellant: Eric Oates Counsel for the Respondent: J Trew QC Solicitors for the Respondent: Commissioner of Police - Office of the Solicitor