Reported Decision : 23 NSWCCR 103 Compensation Court of New South Wales CITATION : Franklins v Richards [2002] NSWCC 2 PARTIES : Franklins Ltd Steven Richards MATTER NUMBER(S) : 12052 of 2001 JUDGMENT OF: Neilson J CATCHWORDS: Proceedings to Obtain Compensation :- Commutations filed after 27/11/01 LEGISLATION CITED: CASES CITED: DATES OF HEARING: 30/01/02 EX TEMPORE JUDGMENT DATE : 01/30/2002 FOR APPLICANT: Mr G M Barter instructed by Sparke Helmore appeared for the applicant employer. LEGAL REPRESENTATIVES: FOR RESPONDENT: The respondent worker appeared in person. Mr M J Leeming instructed by I V Knight, Crown Solicitor, appeared for the WorkCover Authority of New South Wales. JUDGMENT: 1. This is an application for commutation. The applicant employer's solicitor filed the application for determination after 9 am on 27 November 2001. The application seeks the approval of the Court to a commutation in the sum of $75,000. 2. It is uncontested that the employer by its solicitor and the worker by his solicitor reached agreement on that sum at 5 pm on 26 November 2001. The applicant employer's solicitor's clerk has averred that it was always the intention of the applicant employer to enter into a commutation settlement with the respondent worker as at 26 November 2001 and to have that commutation settlement approved by this court. The question which has arisen is whether I have power to grant the relief claimed. This involves a further consideration of the terms of Sch 6 Pt 18C cl 11 of the Workers Compensation Act 1987 as inserted by Act number 94 of 2001. 3. Yesterday in Bradshaw v Trazmet (NSW) Pty Ltd (matter number 49457 of 2001) I also dealt with the proper construction of Sch 6 Pt 18C cl 11. At issue in that case was whether an application for determination pending before this court as at 9 am on 27 November 2001 seeking relief only under s 60, s 66 and s 67 enabled this court to entertain a commutation application where the agreement was reached only after 9 o'clock on 27 November 2001. Here agreement was reached prior to 9 am on 27 November 2001 but there were then no application for determination filed in this court. It is again necessary to recite the provisions of Sch 6 Pt 18C cl 11: COMMUTATIONS (1) Section 51 (Exit payments by commutation of weekly payments) is taken to have been repealed on the commencement of this clause. (2) Section 51 continues to apply, as if it had not been repealed, to the commutation of a liability if: (a) An application for determination under that section in respect of the liability is pending immediately before the commencement of this clause, but only so as to authorise the determination of such an application before 31 March 2002, or (b) An application for determination of a dispute in respect of the liability is pending before the Compensation Court immediately before or the commencement of this clause, but only so as to authorise the commutation of a liability before 31 March 2002. (3) Except as provided by subclause (2), Division 9 (commutation of compensation) of Part 3 applies to the commutation of a liability arising in respect of an injury received before or after the commencement of that Division. (4) A liability may be commuted under Division 9 of Part 3 even if the Compensation Court refused, or before the repeal of s 51, to make a determination under that section or under s 15 of the former Act. (5) Clauses 6 - 6B of Pt 4 of this schedule do not apply in respect of the commutation or redemption of a liability after the commencement of this clause (except for the purposes of the continued operation of s 51 pursuant to subclause (2)). The argument advanced on behalf of the applicant employer, which is supported by the worker, is that the word "pending" in subclause (2) par (a) must be interpreted in a different way to the matter "pending before the Compensation Court" referred to in subclause (2) par (b). 4. Mr Barter, counsel for the employer, has submitted that "pending" where used in par (a) should be interpreted as meaning "impending" or "imminent" and supports that interpretation by referring to the second meaning of "pending" given in the Shorter Oxford English Dictionary 3rd edition as at 1978, which is the copy of that work available to me. It is to be noted that the dictionary indicates that that meaning of the word is "rare". Mr Barter argues that whilst "pending" is used both in par (a) and par (b), because "pending" is not modified in par (a) but it is modified in par (b), a different meaning must be given to it. By reference to the same dictionary it can be seen the etymology of the present participle "pending" can be seen. Shortly before the entry for "pending" is the recitation of the Latin phrase "pendente lite", which is translated by the lexicographer as "with a law suit pending" and then gives a meaning "while a suit is pending" and a further meaning "during litigation." The Latin noun "lis", "litis" refers to a law suit itself, if one needs to pursue the meaning of the Latin noun one only need consult the Oxford Latin Dictionary p 1035. It is to be noted that many of the references supporting the meaning of the word come from Roman legal writers. 5. "Pending" came to the English language from French originally through the old French phrase "le plet pendant" which the Shorter Oxford indicates was probably modelled on the Latin "pendente lite." It is to be noted furthermore that although "pending" is a present participle there is no English verb "to pend". The origin of "pending", clearly, is as a technical legal word. According to Stroud's Judicial Dictionary of Words and Phrases, 6th edition, 2000, the primary meaning of "pending" is given in the following explanation: A legal proceeding is `pending' as soon as commenced (on which see 5 Rep.47, 48; 7 Rep.30), and until it is concluded, ie so long as the court and original cognisance of it can make an order on the matters in issue or to be dealt with, therein. 6. That meaning was approved by Clarke JA in Norcal Pty Ltd v D'Amato (1988) 15 NSWLR 376 at 393E. That case involved the proper construction of the Workers Compensation Act 1987 and involved transitional provisions dividing work between this Court and the then workers compensation commissioners who were relieved of their exclusive jurisdiction in 1989 and the survivors who were made officers of this Court. 7. In the same case McHugh JA (as he then was) said at 386C: Accordingly, I am unable to give the phrase `proceedings pending' in cl 2(1) a meaning which would embrace a case where the Compensation Court had already made an award under the Workers Compensation Act 1926. Indeed, the terms of cl 2 (3) indicate that the expression `proceedings pending' in cl 2 (1) has a special meaning which may be even narrower than its ordinary meaning. The terms of cl 2 (3) suggest that `proceedings pending before the Compensation Court' mean proceedings which have been commenced under the former Act and allocated to the Compensation Court but not determined at the commencement of the Act. 8. The question which arises is why "pending" is modified in par (b) but not in par (a) of cl 11 (2). There may be a number of explanations. The first one one can generally proffer about most workers compensation legislation since 1987, is the ineptitude of the draftsman. A second may be that one clause was drafted by one person and another clause drafted by another person. In other words the clauses may have had different draftsmen or draftswomen. However, in certain circumstances the modifying words in par (b) could have some specific work to do. It is to be noted that the only Court, indeed the only body, which could approve a commutation under s 51 was and is this Court. Yesterday in Bradshaw's case I determined that the dispute which must be pending before this Court for the purposes of par (b) is a claim for weekly payments of compensation. There may be circumstances in which there was a dispute in respect of liability for weekly payments which was before a body other than this Court. It has been pointed out that a dispute about liability for weekly payments could have been before the Workers Compensation Resolution Service for conciliation immediately prior to 9 am on 27 November 2001. Equally in an action for damages for personal injury due to the negligence of an employer, a claim might be made for loss of earnings such as weekly wages and that could be seen as a dispute pending, but a dispute pending before the District Court or the Supreme Court. 9. In referring to the last matter, I have clearly given the words "application for determination" a very non-technical meaning, I have used them in a broad sense. The words "application for determination" are the title of the normal initiating process in this Court and their use is time honoured. The Workers Compensation Rules 1926 were made by the Workers Compensation Commission of New South Wales, the predecessor of this Court. Rule 2 (1) was in the following terms: Where an application is made for the determination of any matter or question under the Act, the party making such application shall be called `the applicant' , and subject to these Rules, all other persons, whose presence may be necessary to enable the Commission effectively and completely to determine such matter or question, shall be made parties to the application and shall be called `the respondents. ' Thereafter the Rules use verbiage such as "application for the determination" of certain questions. Rule 8(1) provided this: The application and particulars shall be according to such one of the forms in the Appendix as shall be applicable to the case, with such modifications as the nature of the case may require. 10. Form 1 was headed "Application by Injured Worker with respect to the Compensation payable to him." Form 2 was headed "Application by or on behalf of the Dependants of Deceased Worker with respect to the Compensation payable in respect of the Injury to such Dependants where Death has resulted from an Injury to the Worker and the Determination of Questions as to who are Dependants and the Apportionment and Application of such Compensation." Form 3 was headed "Application for Determination as to who are Dependants, or as to the Amount Payable to each Dependant, where the total amount Payable as Compensation to the Dependants of the Deceased Worker has been determined." Form 4 commences with the words "Application for determination." Form 5, the form in respect of review termination diminution increase or redemption commenced "Application for a Determination". The same material commenced the heading for form 6 and form 7, although in form 7 "determination" was spelt without a capital letter. The final form of application was form 8 which commenced "Application for a determination." 11. The rules were amended from time to time and were republished on 30 July 1976. When the Workers Compensation Commission of New South Wales was divided into this Court and the then State Compensation Board this Court adopted the Workers Compensation Rules 1926 at a meeting of the Rule Committee on 3 December 1984. Those Rules remained the Rules of this Court until the Compensation Court Rules 1990 came into force on 1 January 1991. Throughout, the usual initiating process of this Court has been an "Application for determination." Of course, if Parliament wished to refer specifically to the usual initiating process in this Court it could have used the words "Application for a Determination" thereby indicating the specific initiating process of this Court. However, capital letters were not used but that may be the current orthographic practice that seems to shy at the use of capital letters. Clearly an application must be made to somebody and an application for determination can only be made to a person who has authority to determine the issue. Clearly in par (b) "An application for determination of a dispute in respect of the liability...pending before the Compensation Court" refers to an initiating process which has been filed in this Court. It would therefore appear to me to be otiose to give "Application for a determination" a different meaning in par (a). 12. There is much force in the submission made by Mr Leeming on behalf of the WorkCover Authority, which has intervened in this matter, pursuant to its statutory power under s 106 of the Workplace Injury Management and Workers Compensation Act 1988, that the amending Act, that is Act number 94 of 2001 speaks not of proceedings but of applications for determination thereby looking to the present practice of this Court as governed by its Rules and hallowed by 75 years of tradition. That tradition goes back even further, I might add. The Workers Compensation Rules 1926 appear to be modelled on the "Workmans Compensation Rules" 1926 (Imp) and the use of the word "application" appears to go back even further. For example, if one consults the first volume of Butterworths Workmans Compensation Cases one sees that in the second report, Taylor v Jones (1907) 1 BWCC3 that the proceedings were headed "Application for Compensation in the Ely County Court". In the same volume one can see that Spencer v Hallison & Son (1908) 1 BWCC76 is headed "Application for Compensation in the Norwich County Court." Those were both claims under the Workmans Compensation Act 1897 (Imp). 13. The long history of use of the words "application for determination", I believe, does refer to the present practice of this Court. Mr Barter for the applicant does not seek to obviate that but merely says that that pending where used in par (a) ought be given a different meaning to pending used in par (b), that in par (a) it means "impending" while it certainly means "pending" in par (b). I again reiterate that he supports that distinction because of the modification of "pending" in par (b) by the matter "before the Compensation Court" but I have already pointed out that it may have some work to do it. Another alternative is that it is unnecessary surplusage which of course is quite possibly the case. 14. The problem with the argument advanced by Mr Barter is that it raises a large number of imponderables. If it merely means that an application for determination is impending, imminent or anticipated what is it that it is imminent or anticipated? Is it, as he submitted, the agreement of the parties on a lump sum and the intention to bring the matter before this Court or might it be something else? There is no reference, of course, in cl 11 to any agreement of the parties. If something is impending it might be impending in the mind of one person, that is might it be sufficient that merely the worker or the employer wishes to have a commutation. There is nothing to validate the proposition of the applicant employer that the discrimen is an agreement, it might be merely an intention or a wish to agree. 15. The second difficulty in acceding to Mr Barter's argument is it would then raise questions as to how "immediately" is to be interpreted in par (a). One could accept that where an agreement had been reached and the intention made at 5 pm on 26 November 2001 to put an application before the Court that it was "immediately" prior to 9 am on 27 November 2001. But the question would then arise, how far could one go back? As I put, arguendo, to Mr Barter what if the agreement had been reached on 1 February 2001 but the worker's solicitor did not get around to filing the appropriate document in this Court prior to 9 am on 27 November 2001. It is very hard to see how some agreement reached on 1 February 2001 indicated that something was "pending immediately" before 9 am on 27 November 2001. 16. Another problem with the construction urged upon me by Mr Barter is that it requires me to use a technical legal word in an Act of Parliament dealing with technical issues (one might say "lawyers law" as far as jurisdiction goes, were the effect on workers and employers not as draconian) in a non-technical way. "Pending" is clearly used technically in par (b). To assign it a non-technical use in par (a) appears to me to be perverse and hardly the intention of Parliament. 17. The point of these considerations is that if I acceded to the proposition that "pending" must be construed as meaning "impending" there would be no certainty at all in the effect of par (a) and when one looks at the whole of subclause 11(2) one can see that great effort has been made to specify time limits and mechanisms. It must be recalled that Act number 94 received the Royal assent on 6 December 2001 and was proclaimed to commence on 1 January 2002 but by reason of s 2 (2) the provisions relating to commutation were deemed to commence at 9 am on 27 November 2001. This is clear retrospective legislation. Everything about cl 11 points to a specific intention to limit the ability of parties to commute pursuant to s 51, promoting the less generous provisions under the new regime, if I may use that expression, and to restrict the availability of s 51 to certain classes of matter provided this Court determines them before 31 March 2002. The scheme of the clause is against the much wider interpretation which Mr Barter urges upon me. 18. Furthermore, if Mr Barter's submission were correct par (a) could be rewritten as follows: An agreement as to a lump sum proposed for commutation was reached immediately before commencing of this clause.... Unfortunately, to use the adage of Meagher JA, the Act does not say that nor in my view does it mean that. In my view par (a) requires that there be an initiating process filed in this Court prior to 9 am on 27 November 2001. In the present case there is no such application. 19. For those reasons I hold that this Court does not have power to grant the relief claimed in the application for determination. 20. The application is dismissed. 21. Order the applicant employer to repay the respondent worker's costs. Mr G M Barter instructed by Sparke Helmore appeared for the applicant employer. The respondent worker appeared in person. Mr M J Leeming instructed by I V Knight, Crown Solicitor, appeared for the WorkCover Authority of New South Wales. 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.