Background
8.1 The Bill presently provides for two separate avenues of appeal from commissioners.
- There is an appeal direct to the Supreme Court of New South Wales, Court of Appeal, on a point of law or in relation to the admission or rejection of evidence.1
- In addition, there is an appeal against an award by a Commissioner to a judge of the court,2 the appeal being by way of re-hearing,3 with a prohibition against further evidence being taken except by leave in special circumstances.4 This formula denotes an appeal on fact and law, but limited to the record of evidence given below, subject to the restricted power to admit further evidence.5
Submissions
8.2 The Chairman of the Workers’ Compensation Commission, in the first of his submissions,6 pointed to the undesirability of separate avenues of appeal, particularly as it might be possible for there to be a wider review in the Court of Appeal in relation to evidentiary matters. He also pointed to the inconsistency of treatment of appeals from judges and commissioners, even though under the Bill, their jurisdiction is largely concurrent. The Chairman recommended that the court should be the sole avenue of appeal from commissioners. It was suggested that having any avenue of appeal direct to the Supreme Court would only encourage parties to conduct “full dress” cases before commissioners with a view to appealing directly to the Supreme Court, thereby frustrating the objective of informal and economic proceedings before commissioners.
8.3 The Federated Municipal & Shire Council Employees’ Union of Australia, New South Wales Division,7 submitted that the proposed limitation on the introduction of fresh evidence in appeals from commissioners to the court would be unduly restrictive. It stated that this provision may operate against a worker who, in a genuine endeavour to obtain a quick resolution of his claim, has the matter brought before a commissioner for early determination and then fails because of the omission to call some available evidence.
8.4 The Law Society of New South Wales also submitted8 that the right of appeal from commissioners contained in the Bill was too limited, particularly if commissioners did not have legal qualifications.
8.5 The Labor Council of New South Wales, Compensation Department, in its submission,9 suggested that in view of the wide jurisdiction granted to commissioners under the Court Bill, appeals to the court should be by way of a re-hearing with a right to call further evidence. In its further submission,10 the Council stated that affiliated unions held the same fear concerning the introduction of fresh evidence as that mentioned earlier (paragraph 8.3).
Issues Involved
8.6 We take the view that there should be an appeal to a judge of the court only in relation to interlocutory matters. Assuming commissioners are to be legally qualified, the position would then be analogous to that which presently obtains in the Supreme Court, where there is an appeal from a master to a judge of the court on interlocutory matters, and an appeal direct to the Court of Appeal in proceedings for final relief.11 It is true that, unlike the position of a master in the Supreme Court, there would be no supervision of a commissioner’s jurisdiction in relation to findings of fact. However, neither is there any supervision of a judge of the Commission, or of the proposed court, in relation to findings of fact. Provided a commissioner is legally qualified, there is no compelling reason of principle why a determination by him in relation to a disputed claim for compensation should be any different from a determination by a judge of the court. The reason we support retention of a supervisory jurisdiction in relation to interlocutory applications is to reserve to the judges of the new court control of, and responsibility for, consistency in the procedural aspects of the jurisdiction.
8.7 Provided that the work allocated to commissioners is confined to simple cases there are also practical reasons for dispensing with appeals to a judge of the court on grounds of fact. Otherwise, there is a substantial risk that a large volume of appellate work would be generated for the judges of the Commission relative to the disposal of compensation claims by commissioners. This risk would be exacerbated by the provision as to costs in the Bill which strictly limits the circumstances in which costs may be ordered against a worker.12 The incidence of such appeals would dilute the saving in costs to be achieved by the appointment of commissioners as a less expensive tier of judicial officers,13 and could eliminate the savings altogether depending on the amount of contested work being done by commissioners.
8.8 If it is thought that the right of appeal to a judge of the court should not be limited to interlocutory matters, the appeal provisions should be amended to ensure that both interlocutory determinations and final determinations of claims for compensation are included. As presently framed, the Bill does not make this clear, although probably an interlocutory order is encompassed within the definition of an award.14 We also take the view that a provision akin to section 75A(10) of the Supreme Court Act, 1970 should then be added, so as to ensure that on appeal from a commissioner, the judge is free to dispose of the case on its merits rather than merely affirm or reverse the decision of the commissioner.
Summary
8.9 If there are to be commissioners with a judicial or quasi-judicial function, then we consider it important that they exercise jurisdiction only in less complex cases. On that basis, we make the following recommendations:
- that an appeal should lie to judges of the Compensation Court only on interlocutory determinations;
- that an appeal should lie to the Supreme Court! Court of Appeal, on the same basis as applies to appeals from judges, namely, on a point of law or in relation to the admission or rejection of evidence; and
- that if the right of appeal to a judge of the Compensation Court is not limited to interlocutory matters, then the judge should have power to dispose of the application on its merits.
FOOTNOTES
1. Court Bill, c11.25(2), 33, 34.
2. Court Bill, cl.36.
3. Court Bill, cl.37(l).
4. Court Bill, cl.37(2), (3).
5. See, e.g., Do Carmo v. Ford Excavations Pty.Ltd. [1981] 1 N.S.W.L.R. 409; Warren v. Coombes (1979) 53 A.L.J.R. 293 for the limitations on the circumstances in which additional evidence may be received on appeal and the principles governing the powers and duties of an appellate court.
6. Schedule: Item 18.
7. Schedule: Item 25.
8. Schedule: Item 27.
9. Schedule: Item 34.
10. Schedule: Item 35.
11. Supreme Court Rules, Part 60, Rules 9, 10, 17.
12. Court Bill, cl.18(3).
13. See infra., paras.4.35-4.36.
14. Court Bill, cl.32(1).
