Reported Decision : (2001) 22 NSWCCR 75 Compensation Court of New South Wales CITATION : Durrington v SAS Trustee Corporation [2001] NSWCC 165 Christopher J Durrington PARTIES : v SAS Trustee Corporation MATTER NUMBER(S) : 6322 of 2000 JUDGMENT OF: Neilson J at 1 :- Police. Restriction on commencement of proceedings. Six month limitation for bringing of appeals. First originating process not sealed by Registrar. Second originating process filed out of time. First originating process treated as having passed under the Seal of the Court on receipt by Registrar. Operation of CCR Pt 1 r 2A CATCHWORDS: Pt 5 r 4 Pt 32 r 2. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/06/01 EX TEMPORE JUDGMENT DATE : 06/19/2001 FOR APPLICANT: Ms E Beilby instructed by Sommerville Laundry Lomax appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr T Ower instructed by Brian Matthews, Solicitor, appeared for the respondent. JUDGMENT: 1. On 15 November 2000 an application for determination passed under the seal of the Court. That application for determination is in accordance with form 3. It seeks, "A review of an existing award" under the Police Regulation (Superannuation) Act 1906. The respondent is the SAS Trustee Corporation. The relief claim is a lump sum under section 66 for 15 per cent impairment of the back, a further lump sum for 10 per cent permanent impairment of the neck and a lump sum of $35,000 pursuant to section 67. According to paragraph 9 of the application for determination the decision, the subject of the application, was made on 28 April 2000. It is alleged that the appellant was notified of the decision on 13 May 2000 and a copy of the decision is annexed to the application for determination. The decision was indeed made on 2 May 2000 by the SAS Trustee Corporation and was received by the appellant's solicitors on 9 May 2000. 2. Although there was no "existing award" it appears to be clear from the face of the document that it constitutes an appeal pursuant to section 21 of the Police Regulation (Superannuation) Act 1906 from a decision of the SAS Trustee Corporation referable to the quantum of the applicant's entitlements to gratuities under section 12D of the Police Regulation (Superannuation) Act 1906. From the face of the documents that passed under the seal of the Court on 15 November 2000 it is clear that the decision of the SAS Trustee Corporation was made on 2 May 2000, that the appellant was notified of that decision on 9 May 2000 when his solicitor was advised of it and that the application for determination passed under the seal of the Court on 15 November 2000, more than 6 months after the decision of the respondent was notified to the appellant's solicitors. 3. Prima facie the appeal appears to be statute-barred. The time within which an appeal must be brought under Police Regulation (Superannuation) Act 1906 is 6 months and prima facie more than 6 months elapsed between 9 May 2000 and 15 November 2000. Much evidence has been adduced on the applicant's behalf to suggest that the appellant himself was not apprised of the decision of 2 May 2000 until well after 9 May 2000. Ms Beilby, counsel for the appellant, has not been so bold as to submit that the normal laws of agency are abrogated in a case of this nature. Notification to a solicitor acting for a party is notification to the party himself. It is the principle of the law of agency: qui facit per alium facit per se. The appellant has adduced evidence that a form of application for determination was forwarded to the court under cover of letter of 16 October 2000. That document was clearly received by the court on 17 October 2000. If that document had passed under the seal of the Court the current appeal would not be statute-barred. 4. The question is whether the document received by the court on 17 October 2000 ought to have passed under the seal of the Court on that day. That document is annexure D in the affidavit of the appellant's solicitor Mr Benjamin George Crawford of Ballina. That application for determination seeks an award under the Workers Compensation Act 1987. However, the application is not brought against the appellant's actual employer, the Commissioner of Police, but rather against the SAS Trustee Corporation. The relief claimed in the application for determination is the same as is currently pleaded in the application for determination that passed under the seal of the Court on 15 November 2001. 5. Paragraph 5 of the application for determination asks a number of questions and those questions have been answered in a rather odd fashion. Those questions and answers are: Question - (a) Was the applicant directly employed by the respondent employer? Answer -Directly employed by the New South Wales Police Service. Question - (b) If yes, nature of the applicant's employment at the time of injury? Answer - Police constable. Question - (c) If no, how is respondent alleged to be liable for compensation? Answer - SAS Trustee Corporation made the determination which is being appealed against. Question - (d) Nature of work undertaken by the applicant, if the respondent employer not direct employer. Answer - Policeman. 6. Many years ago at university one was taught the principles of pleading. One wonders whether any such instruction is given in modern days. The correct form was not used in the document that was received on 17 October 2000. Form 3 ought to have been used but form 1 was used. The questions in form 1 in paragraph 5 are sought where a worker claiming workers compensation claims to be not an employee at common law but a deemed worker under the Act or where a worker claims against a principal under section 20. Notwithstanding the nature of those questions it is clear that the solicitor who completed the form 1 was making it clear that this was an appeal from the decision of the SAS Trustee Corporation. The registrar refused to affix the seal of the Court to the form 1 that was received on 17 October 2000. A rejection letter was forwarded bearing the date 7 November 2000. That said the document had not been accepted for filing for the following reasons: Applications [sic] to be set out as per the prescribed court form. A form 41 certificate of compliance and WCRS certificate must be attached. The letter of rejection imposes a warning that the amended document should be returned to avoid "further delay". 7. It is not clear to me why the registrar's clerk rejected the form. True it is that form 1 was used and form 3 ought to have been used. However, an appeal under the Police Regulation (Superannuation) Act 1906 does not require any certificate of compliance nor does it need to be referred to the Workers Compensation Resolution Service as required under the Workers Compensation Act and under the Workplace Injury Management and Workers Compensation Act 1998. The document form 1 was received on 17 October 2000. With effect from 20 October 2000, 3 days later, Pt I r 2A came into force. That Rule should be considered. It provides as follows: (1) The overriding purpose of these rules is to facilitate the just, quick and cheapest resolution of the real issues in any proceedings. (2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any Rule. (3) A party is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the Court. (4) A solicitor or barrister shall not, by his or her conduct, cause his or her client to be put in breach of the duty identified in (3). (5) The Court may take into account any failure to comply with (3) or (4) in exercising a discretion with respect to costs. Subrule (1) contains no novel proposition. It is well established that the Rules of Court are our servants not our masters. Under Pt I r 6(2) the Court has a wide power. That subrule is as follows: The Court may, if it thinks fit, on terms dispense with compliance with any of the requirements of the Rules, either before or after the occasion for the compliance arises. 8. I can retrospectively dispense with any requirement of the Rules. I infer that that power extends to any requirement that is contained in a provision which is subject to the Rules or has lesser validity than a Rule of Court itself. Pt 5 r 4 clause (f) requires that an appeal under the Police Regulation (Superannuation) Act 1906 shall be commenced by the filing of an application for determination. Here the form 1 received by the court on 17 October 2000 was an application for determination. Pt 5 r 5 contains provisions specific to appeals under the Police Regulation (Superannuation) Act 1906. Subrule (3) of that Rule provides that in proceedings the subject of a decision of the SAS Trustee Corporation that corporation shall be a respondent in the proceedings. In the form 1 received on 17 October 2000 the SAS Trustee Corporation was nominated as the respondent. The rest of the rule does not contain any relevant considerations. The next Rule to consider is Pt 32 r 2. That Rule deals with forms. The Rule is as follows: (1) It shall be sufficient compliance with any requirement of the Act or the Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variation as the nature of the case requires. (2) The Chief Judge may from time to time cause to be published forms approved for use in the court, and all documents filed in the proceedings shall be in forms similar to the forms so approved where those forms are applicable, and where no approved form is applicable to any document the document shall be framed to the satisfaction of the Registrar. 9. Here, although the form 1 received on 17 October 2000 is not an appropriate or well crafted document, it substantially draws to this Court's attention the fact that it was an appeal against a decision made by the SAS Trustee Corporation in respect to a policeman. A decision by the SAS Trustee Corporation in respect to a policeman can only be made under the Police Regulation (Superannuation) Act 1906. Therefore it is sufficiently disclosed in the document that in essence although it refers to the Workers Compensation Act 1987 it was in fact an appeal pursuant to the Police Regulation (Superannuation) Act 1906. The wrong form clearly was used but the substance of the dispute between the appellant and the SAS Trustee Corporation is clearly disclosed in the form 1 received on 17 October 2000. 10. In my view, the form 1 received on 17 October 2000 ought to have passed under the seal of the Court on that day. If it had there could be no argument that the current appeal is statute-barred. One wonders whether the Registrar would have passed the document received on 17 October 2000 under the seal of the Court if one of his clerks had realised that a form 41 certificate of compliance was not required and that the matter need not have gone to the Workers Compensation Resolution Service. It appears to me, in the interests of justice and the quick and cheap resolution of the issues between the parties, I should deem the document that was received by the court on 17 October 2000 to have passed under the seal of the Court thereby commencing the current appeal within the time prescribed by the Police Regulation (Superannuation) Act 1906. 11. I therefore declare that the current proceedings were commenced by the appellant on 17 October 2000 when a document sufficient to identify the appeal was received by the Registrar. I therefore dismiss the motion filed by the respondent on 18 May 2001. I also strike out paragraph 1(a) of the respondent's answer filed on 1 February 2001. 12. The only remaining issue relates to costs. I have been told, without objection by Ms Beilby, that the receipt of the affidavit of the appellant's solicitor sworn on 15 June 2000 was the first notice that the respondent had that the appellant had tried prior to the expiration of the limitation period to file an appropriate application for determination in this court. Furthermore, it became abundantly clear during the course of argument that Mr Ower for the respondent was not even briefed with a copy of the letter of the registrar of 2 November 2000 rejecting the document received on 17 October 2000 for filing because of, inter alia, the lack of a form 41 certificate of compliance. If the appellant's solicitor had drawn this much earlier to the attention of the respondent and its solicitor perhaps the current motion would not have been brought. Furthermore, if it had been drawn much more swiftly to the respondent's solicitors' attention the respondent may well have considered the provisions of Pt I r 2A and not sought to defeat the appeal on an extremely technical ground. 13. In the circumstances the respondent ought not be liable for any costs of this motion. Ideally, I ought order the applicant's solicitor to pay the respondent's costs of this motion because it is the solicitor's completing an incorrect form which caused the respondent to plead the appropriate limitation period and to bring this motion and furthermore it was the solicitor's failure to give any earlier advice to the respondent about his attempt to file an appropriate document within the 6-month limitation period. However, the Court has no power to order costs against a solicitor. 14. I order that each party pay his or its own costs of the motion. It has now been drawn to my attention by Mr Ower that his client was aware of some earlier attempt to file an application for determination but was not aware of the grounds on which the registrar rejected the document for filing. I am grateful to him for drawing that to my attention but that does not cause me to change in any way either the relief that I have granted or the order for costs that I have already announced. However, it does raise the question of whether Mr Ower's client ought to have considered the provisions of Pt I r 2A before making the current application. Ms E Beilby instructed by Somerville Laundry Lomax appeared for the applicant. Mr T Ower instructed by Brian Matthews, Solicitor, appeared for the respondent. 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.