Reported Decision : (2002) 23 NSWCCR 551 Compensation Court of New South Wales CITATION : Harder v Waterford Wedgewood Australia Ltd [2002] NSWCC 31 Barbara Mary Harder PARTIES : v Waterford Wedgewood Australia Ltd MATTER NUMBER(S) : 48155 of 2001 JUDGMENT OF: Neilson J at 1 :- Application to restore to the list pursuant to Pt 10 r 4(2). Correctness of Farris v C B Richard Ellis (C) Pty Ltd [2002] NSWCC 12 challenged. Held: CATCHWORDS: 1. Pt 10 r 4 is not ultra vires Harding v Bourke (2000) 48 NSWLR 598 applied. 2. A "striking out" of a matter is different to a "stay". 3. What cannot be done directly (commencing fresh proceedings) cannot be done indirectly (by restoring struck out proceedings). 4. Farris was correctly decided. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 06/06/02 EX TEMPORE JUDGMENT DATE : 06/06/2002 FOR APPLICANT: Mr G R Graham instructed by J H Fisher & Sons appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Pearce instructed by Hunt & Hunt appeared for the respondent. Mr M Leeming instructed by the State Crown Solicitor appeared for The WorkCover Authority of New South Wales. JUDGMENT: 1. This is an application under Pt 10 r 4(2) of the Compensation Court Rules 1990. The application for determination was filed on 10 October 2001. The last day for service of that application for determination was 10 December 2001. The matter was deemed to have been struck out on 10 January 2002, no affidavit of service or answer or notice of appearance having been filed. The application to restore the matter was filed on 1 May 2002. If my decision in Farris v C B Richard Ellis (C) Pty Limited [2002] NSWCC 12 be correct, the current application before me under Pt 10 r 4(2) must be dismissed for want of jurisdiction. 2. The question which has arisen in this case is whether my decision in Farris be correct. The matter was before the Court on 23 May 2002 when Mr Graham of Counsel appeared for the applicant. Mr Hing, a solicitor employed by Messrs Hunt and Hunt, appeared for the respondent. After Mr Graham's address I was concerned as to the correctness of my decision in Farris and stood the matter over for further hearing today with the exhortation to the respondent that counsel be retained and requiring the Registrar to notify the WorkCover Authority of the argument before me so that it could, if it wished to, exercise its rights under s 106 of the Workplace Injury Management and Workers Compensation Act 1998. 3. Today Mr Graham of counsel again appears for the applicant. Mr Pearce of counsel appears for the respondent and Mr Leeming instructed by the State Crown Solicitor appears for the WorkCover Authority of New South Wales. There are before me as well four other applications under Pt 10 r 4 in three of which Ms Wood of counsel appears for the applicant. Ms Wood has been heard in this argument as the outcome in this case may determine the result in the three matters in which she is involved. Mr Graham points out that the decision of the Court of Appeal in Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 is only strictly authority for the proposition that the earliest time that proceedings can cease to be pending before this Court is when there has been a final determination of a claim on its merits. In that regard he is quite correct. 4. Mr Graham then argues that Pt 10 r 4 is ultra vires the Compensation Court Act 1984. Mr Graham points to the Court's obligation to hear and determine matters and relies on the provisions of s 6(1) of the Compensation Court Act 1984. That provision is as follows: The functions of the Court shall, subject to the provisions of this Act, the Workers Compensation Acts, or any other Act, be exercised by a single judge who shall constitute the Court. 5. Mr Graham argues that this requires that a judge of the Court, subject to the provisions relating to Commissioners, hear and determine any case before it on its merits. His argument is that until that has occurred a matter is pending before the Court and furthermore an administrative striking out under a provision such as Pt 10 r 4 is inconsistent with the terms of the Act and therefore it is ultra vires. In argument on the last occasion Mr Graham said this: What I am saying is the Court has never done anything which it was empowered to do by the Act in the sense of finally determining these proceedings. Further at page 7 Mr Graham said this: The only way in which the Court can finally dispose of the matter is by a hearing properly constituted by a relevant officer. Then that really involves the consequence that every proceeding that is before the Court is pending until that event occurs. 6. Again that argument is used to support the argument that not only was the current matter still pending before the Court as at 1 April 2002 but also that the administrative disposal of the matters pursuant to Pt 10 r 4 was ultra vires. S 6 of the Compensation Court Act 1984 has an equivalent in the District Court Act 1973 s 11. Pt 10 r 4 has at least one equivalent provision in the District Court rules, namely Pt 12 r 4C. The question of the validity of Pt 12 r 4C was dealt with in Harding v Bourke (2000) 48 NSWLR 598. That was a decision of Mason P with whom Meagher and Heydon JJA concurred. Their Honours held that Pt 12 r 4C was intra vires the rule-making power of the District Court. 7. The rule-making power of the District Court for civil purposes is governed by s 161 of the District Court Act 1973. S 161(1) provides a general rule-making power. S 161(2) provides specific examples of areas in which rules might be made without limiting the generality of the grant in s 161(1). S 161(2) par (l) is in the following terms: Empowering the Court to strike out the whole or any part of any proceedings brought by a party on the ground that the proceedings or part of the proceedings are frivolous or vexatious or disclose no cause of action, or on any other ground prescribed in the rules, and to reinstate any proceedings that have been struck out. 8. It is important to note that their Honours in the Court of Appeal said that Pt 12 r 4C was authorised by the general rule-making power in s 161(1) and did not deal with the specific grant of power in s 161(2) par (l). As has been pointed out by Mr Leeming for the WorkCover Authority the general rule-making power of this Court granted by s 43 of the Compensation Court Act 1984 is much greater in generality than the provisions of s 161(1). S 43(1) par (a) allows for making of rules with respect to "All matters of procedure and practice, including the prescription of forms to be used in any proceedings before the Court and that payment of witnesses' expenses". 9. In Harding v Bourke Mason P said at par 10: Part 12 r 4C is authorised by s 161(1). The rule has an undoubted connection with the procedure of the District Court in the exercise of its civil jurisdiction. It operates as a spur to expedition and a sanction for tardiness. It is similar in ultimate effect to provisions such as Pt 18 r 3 which empowers a judge to dismiss proceedings for want of prosecution, nonetheless so because Pt 12 r 4C is self-executing. 10. The same can be said of Pt 10 r 4. The equivalent under the Compensation Court rules 1990 to Pt 18 r 3 of the District Court rules is Pt 16 r 4. If Pt 12 r 4C were authorised under the District Court Act 1973, as has been held by the Court of Appeal in Harding v Bourke, then Pt 10 r 4 must also be within the rule-making power of this Court under s 43 and it clearly relates to a matter of practice or procedure. The dismissal of actions for want of prosecution is a common enough provision in the rules of any court in the common law system. 11. The argument advanced by Mr Graham is, although a powerful one, in my view flawed by reason of fact that s 6 of the Compensation Court Act which I have cited above is "subject to the provisions of this Act". The provisions of the Compensation Court Act include s 43, the rule-making power which envisages rules as to practice and procedure. Therefore the Court's duty is to hear and determine cases is subject to the provisions of the rules which include rules such as Pt 10 r 4. However, Mr Graham's argument is not based solely on the ultra vires argument. His argument is that even though proceedings have been struck out under Pt 10 r 4 there is still something before the Court. He points out for example to the terms of Pt 10 r 4 which need to be considered: (1) Where in respect of any proceedings on a claim for compensation - (a) a respondent has not filed a notice of appearance or answer; and (b) the applicant has not filed an affidavit of service of the originating process on that respondent, within 3 months after the date of commencement of the proceedings, the proceedings as against the respondent are deemed to have been struck out and no further step may be taken in those proceedings (other than an application mentioned in subrule(2)) until the proceedings have been restored to the list. (2) The Court may on application by a party, and on terms, restore to the list any proceedings deemed to have been struck out under subrule (1). 12. Mr Graham argues that the use of the word proceedings in Pt 10 r 4(2) indicates that there is still something before the Court, still some proceedings in which the Court can exercise its jurisdiction. As I put in argument to Mr Graham, Pt 10 r 4(2) allows the Court to resurrect an otherwise "inactive" proceedings. The real question is whether the proceedings were merely dormant or in fact dead. 13. Until recently Pt 10 r 4(2) was hardly ever used. That is because it was easier to commence fresh proceedings. It is easier to re-engross an application for determination and file it than it is to draw a notice of motion and a supporting affidavit, to file them and then to appear in court to ask for the restoration of the "inactive" proceedings. In other words, until recently it was easier for proceedings to be started again, a rebirth, rather than to seek the resurrection of "inactive" proceedings. Of course, since 1 April 2002 rebirth has become impossible as far as proceedings in this court are concerned and hence practitioners are seeking a resurrection of proceedings under Pt 10 r 4(2). 14. As will be apparent to anyone reading of the transcript of argument of 23 May 2002 I was reluctant to overrule my own decision in Farris because I and the Registrars and other Judges have struck out many applications under Pt 10 r 4(2) that were filed after 1 April 2002 relying on the validity of Farris' case. No appeal was taken from Farris or any of the other cases in which it was applied. However, this is the first occasion on which a concerted attempt was made to argue the correctness of Farris' case. 15. The problem with the argument advanced on the applicant's behalf is that adverted to by Mr Pearce of counsel earlier today. Since rebirth is no longer possible the applicant seeks resurrection. If rebirth is impossible so ought resurrection be. A fresh application cannot give this Court jurisdiction and therefore doing the same thing indirectly by use of Pt 10 r 4(2) ought be frowned upon, indicating that my decision in Farris was correct. Mr Leeming points out to mischief which might otherwise arise. Matters may have been struck out many years ago but could be resurrected under Pt 10 r 4(2) or even by the Court revoking a dismissal for want of prosecution under Pt 16 r 4. Equally it might be capable of being argued that an applicant ought be given leave to revoke a discontinuance under Pt 16. 16. The various provisions of reg 93, which is what I am really interpreting, indicate precision so that litigants know where they might litigate their claims, either in this court or in another place. My decision in Farris and the related decision of Faber v Arrow Concrete Pumping Services Pty Limited [2002] NSWCC 13 comply with the precision which the whole of the regulation, properly looked at, calls for. The regulation treats all existing claims in respect of which proceedings had not been commenced in this court prior to 1 April 2002 as being new claims such as they fall within the jurisdiction of the Workers Compensation Commission. 17. The policy which one gleans from the regulation and the Acts from which it derives is that there be a definite point at which the relevant jurisdiction of this Court and the Workers Compensation Commission can be determined. Mr Graham for the applicant relies on a number of general principles and in particular cited par 12 of the decision in Harding v Bourke where Mason P said: Goldring DCJ applied the passage in Coco v the Queen (1994) 179 CLR 427 at 436-437 which discusses the presumption that general words in a statute are insufficient to authorise interference with fundamental rights such as the right to unimpeded access to the courts. (He continued): A power to put an end to litigation, especially when it is done without individual notice to the party whose right is being terminated, in my view constitutes a power to cause a very serious and adverse interference with the right, which every member of the community enjoys, to enforce his or her rights through the courts. 18. Mr Graham argues that I should not interpret either Pt 10 r 4 or reg 93 in such terms as to terminate his client's right to have her case heard and determined in this court. However, the question here involved is not one in which I am determining whether the applicant's rights have been terminated or otherwise taken away but rather merely one as to in which forum those rights might be determined. The current applicant and many applicants clearly wish their cases to be heard and determined in this Court but Parliament has established another body to hear and determine claims in the future. In other words, what I am dealing here is not with a provision which takes away established legal rights or theoretically diminishes them but rather with what may be described, using the language of industrial relations, as a demarcation dispute between a court and a non-judicial tribunal. 19. I again return to Mr Graham's argument as to whether after the operation of Pt 10 r 4(2) proceedings are merely dormant or dead. In my view the correct description of a proceeding which has been struck out under Pt 10 r 4 is that it is dead, that is, that it has ceased to be on the record at the court. It is common enough to find in rules of court provisions which enable the Court to change the status of matters. This is a common occurrence in any legal system. A proceeding might be struck out, dismissed, terminated, use whatever terminology one may, but the Court has a power to revive it, resurrect it, reinstate it or the like. However, until that power is exercised the matter remains dead or non-existent. I am unable to accede to the argument that proceedings are still "pending" after they have been struck out pursuant to Pt 10 r 4. As I said in both Farris and Faber, if there were an application under Pt 10 r 4(2) pending as at 31 March 2002, there was something in which the Court could make an order. However, if there was nothing before the Court which enabled it to make an order on 1 April 2002 then the matter was not pending before this Court. I am also unable to accede to the argument that proceedings struck out under Pt 10 r 4 are merely "stayed". The Rules provide for a stay of proceedings in certain circumstances, for example, Pt 10 r 3 (where proceedings may be stayed or dismissed in certain circumstances), Pt 16 r 9 (stay to secure costs), Pt 17 r 2 (proceedings stayed where a Third Party Notice is filed), Pt 18 r 12 (where an applicant in default in giving discovery), Pt 19 r 5 (where an applicant in default in answering interrogatories), Pt 20 r 4 (where applicant fails to attend a medical examination), Pt 20 r 10 (where applicant in default of provisions re medical examination or rehabilitation assessment), Pt 27 r 3 (pending a reconsideration). If the purpose of Pt 10 r 4 where only to stay proceedings, that word would have been used. In my view a stay merely stops a matter proceeding further; striking a matter out removes it from the active case load of the Court. 20. Mr Graham was kind enough to refer me to the decision of the Court of Criminal of Queensland in Regina v Ferguson ex parte the Attorney-General [1991] 1 Qd R 35. He referred me in particular to the judgment of Connolly J at page 38 where his Honour said: Unaided by authority one would suppose that proceedings in a court are pending there from the time of their institution until they are finally disposed of. A reference to a few only of the authorities confirms this view. Thus on the civil side it has been held that a cause is pending even after final judgment, so long as such judgment remains unsatisfied: Salt v Cooper (1880) 16 Ch.D. 544 per Jessel MR at 551. In R v Davies ; ex parte Delbert-Evans [1945] KB 435 Humphreys J at 43 said that there was ample authority for saying that "During the time between the conviction of the accused person on the indictment and his appeal to the Court of Criminal Appeal, the case is not ended at all, but is still sub judice, or pending, to use the expression which had been used in many cases in many other judgments." Oliver J at 445 said that contempt can be committed at any time until the case is ended, and that it is not ended until the hearing and decision of an appeal, if there had been an appeal. In O'Connor T.P. [1913] 1 KB 557 the Court was concerned with an Act of 1912 which provided for whipping but not in relation to proceedings pending at the commencement of the Act. The prisoner had been tried and convicted after the commencement of the Act of 1912 and it was held that the proceedings were pending at the commencement of that Act so that there was no power to impose a sentence of whipping. At 560 Ridley J delivering the judgment in the Court of Criminal Appeal held that proceedings taken under the previous legislation and not disposed of at the passing of the Act of 1912 are "proceedings pending at the commencement of" that Act. 21. Mr Graham pointed out that the question in that case was when proceedings ceased to be pending and the Court of Criminal Appeal of Queensland certainly gave an extended version. Of course, in this state the dictum of Connolly J must be read down to comply with the decision in Norcal Pty Limited v D'Amato. As I understand it there is no learning other than decisions of this Court on provisions such as Pt 10 r 4 and whether under them proceedings are pending or not, and whether proceedings which have been struck out can still be seen to be pending. However, for something to be pending the Court must be able to make some order or, in this Court's vocabulary, or award. Here as at 1 April 2002 there was nothing in which the Court could make any order or award. In other words I am not persuaded that my decision in Farris was wrong and I am unable, with reluctance, to accede to the powerful and attractive argument of Mr Graham on behalf of the applicant. 22. I have inquired of counsel for the parties whether any further reasons for judgment are required and I am told that none is so required. For those reasons the motion is dismissed. 23. I order the respondent to pay the applicant's costs of 23 May 2002. Certify for counsel on the motion. Mr G R Graham instructed by J H Fisher & Sons appeared for the applicant. Mr J Pearce instructed by Hunt & Hunt appeared for the respondent. Mr M Leeming instructed by the State Crown Solicitor, appeared for The WorkCover Authority of NSW. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.