Prus Grzybowski v Everingham & Co 1980 FLR Day & Dent Constructions Pty Ltd (1980) 5 NTR 22 (affirmed

(1982) 150 CLR 85) Fazlic v Milingimbu Community Inc (1980) 6 NTR 3 (affirmed (1982) 150 CLR 345) Conair v Frederiksen (1977) 16 ALR 148 (affirmed (1979) 142 CLR 485) AG (NT) v A Legal Practitioner 1981 10 NTR 7, 55 FLR 405 Davidson v TIO 1981 13 NTR 1, 57 FLR 251 Griffiths v Errington 1981 7 NTR 3, 50 FLR 370 Lombardo, Gemino and others v Goldsworthy 1981 11 NTR 19 R v Coburn ex p Fomm 1981 9 NTR 1, 51 FLR 79 Alice Springs Town Council v Watts 1982 18 NTR 1

Law Report Image (PDF) FOR EDUCATIONAL USE ONLY 1981 WL 299937 (NTSC), 56 FLR 286, 11 NTR 19 56 FLR 286; 1981 WL 299937 Keywords Synopsis Opinions Gallop J.

Lombardo Marine Group Pty Ltd v Goldsworthy Gallop J. 23-25 September 1981 Jurisdiction - Supreme Court of a Territory - Seaman - Personal injury - Compensation - Damages awarded by stipendiary magistrate - Defendant appealed to Supreme Court of Northern Territory Whether court has jurisdiction to hear appeal - Seamen's Compensation Act 1911 (Cth), s 5 (3) Local Courts Act 1941 (NT), s 54 - Northern Territory Supreme Court Act 1961 (Cth), s 14 (1) (e) The respondent Goldsworthy suffered personal injury while engaged in working the winch on the vessel M.V. Gemini in waters north of Groote Eylandt. In May 1981 a stipendiary magistrate ordered the appellants to pay to the respondent compensation under the Seamen's Compensation Act 1911. An appeal was taken to the Supreme Court of the Northern Territory from that decision. Held, that the appeal should be dismissed because in the instant case there was no right of appeal to the court. Martin v. Commissioner for Employees' Compensation, [1983] Q.S.R. 85, followed. Commonwealth v. Walker (1961), 3 F.L.R. 141, distinguished. Porter v. The King; Ex parte Chin Man Yee (1926), 37 C.L.R. 432; Capital T.V. and Appliances Pty. Ltd. v. Falconer (1971), 125 C.L.R. 591; Minister of State for the Army v. Parbury Henty & Co. Pty. Ltd. (1945), 70 C.L.R. 459, referred to. Appeal. Appeal to the Supreme Court of the Northern Territory against the determination under the Seamen's Compensation Act 1911 of a stipendiary magistrate sitting as the Local Court ordering the appellants to pay compensation to the respondent. G. McMish, for the first and second appellants. P. B. Bracher, for the third appellant. G. E. Hiley, for the respondent.

The following oral judgment was delivered.*287 Sept. 25. Gallop J. These are appeals against the determination of Ms. S. Thomas, stipendiary magistrate, sitting as the Local Court, Darwin, against a determination under the Seamen's Compensation Act 1911 (Cth), whereby she ordered that the appellants pay compensation under the Act to the respondent for total incapacity during a closed period and lump-sum compensation for a schedule injury to the left hand, together with hospital and medical expenses. At the outset of the hearing of the appeal the respondent indicated that, whilst not objecting to the competency of the appeals, he wished to draw my attention to an apparent lack of jurisdiction in the court to hear the appeal. The matter has been fully argued and it is necessary to resolve this threshold question. The Seamen's Compensation Act sets out the rights to compensation of those seamen covered by the Act. Section 5 (3) provides for the resolution of questions arising under the Act: "If any question arises, in any proceedings under this Act, as to the liability to pay compensation under this Act (including any question as to whether the person injured is a seaman to whom this Act applies), or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of Schedule 1, be settled by arbitration, in accordance with Schedule 2, or by proceedings in a County Court." Schedule 2, which is referred to in sub-s (3) of s 5, provides for the means of settling claims for compensation. Clause 1 of Sched 2 provides for settlement by arbitration by a committee who are representatives elected by the parties. Clause 2 provides for any matter to be settled by a single arbitrator agreed on by the parties, or in the absence of agreement by arbitration before a judge of a County Court. Clause 3 provides that where a County Court settles a matter under the Act, the decisions of the County Court "... shall be final, unless within time and in accordance with the conditions prescribed by the regulations either party appeals to the High Court or to the Supreme Court of the State in which the County Court is situated". It has been submitted by counsel for the first and second appellants that the alternatives for settling disputes under the Act are, firstly, arbitration proceedings in accordance with Sched 2, or, secondly, proceedings in a County Court. I agree with that submission. They seem to be true alternatives. County Court means, "a County Court, District Court or Local Court of any State, or any Court exercising in any part of the Commonwealth a limited civil jurisdiction and presided over by a judge or a police, stipendiary or special magistrate." (See s 3 of the Act.)*288 It was not disputed that in this case the magistrate exercised jurisdiction of the Local Court, being a court of limited civil jurisdiction, presided over by a stipendiary or special magistrate. It was submitted by the appellants, and it was not disputed by the respondent, that, therefore, the Local Court had jurisdiction. The respondent contended that the Act gives a right of appeal to the High Court or the Supreme Court of a State, but makes no provision for a right of appeal to this Court as the Supreme Court of a Territory. The regulations made under the Act provide for the time and manner of instituting of appeals to the High Court or to the Supreme Court of a State. The regulations do not expressly cover appeals to the Supreme Court of a Territory. The appellants sought to rely in argument in favour of the competency of these appeals upon the general provisions of Territory law providing for appeals, and in particular, the Local Courts Act 1941 (NT). Under Pt VI of that Act, s 54, any party who is dissatisfied with any final judgment, determination or order of the Local Court, inter alia, in an action in which the amount of a claim exceeds sixty dollars, as it did in this case, may appeal if the court was constituted otherwise than by a judge to the Supreme Court. The appellants submitted that this being a final judgment in an action

in which the amount of the claim exceeded sixty dollars, they have a right of appeal to this Court under s 54 of the Local Courts Act. In support of this submission, they relied upon a comparable provision in the Court of Petty Sessions Ordinance 1930 (ACT), s 208A thereof, and the decision of the Supreme Court of the Australian Capital Territory given by Joske J. in Commonwealth v. Walker((1)). Alternatively, the third appellant submitted that the appeals are competent because the appellants have a right of appeal to this Court pursuant to s 14(1)(e) of the Supreme Court Act 1911 (NT), which provides that this Court has jurisdiction to hear and determine appeals from all judgments of inferior courts in the Territory, given or pronounced after the commencement of the Act. I note, however, that the jurisdiction of this Court, under the Supreme Court Act, given by s 14(1)(e) is with such exceptions, and subject to such conditions as are provided by law in force in the Territory. It was submitted on behalf of the respondent that neither the Local Courts Act nor the Supreme Court Act can invest this Court with federal jurisdiction and that, as the right of appeal *289 has been expressly given in cl 3 of Sched 2 of the Seamen's Compensation Act to the High Court or to the Supreme Court of a State in which the County Court is situated, the legislature has expressed an intention to exclude a right of appeal to the Supreme Courts of the Territories. The Supreme Court of the Northern Territory created by the Northern Territory Supreme Court Act 1961 (Cth) is not a federal court within the meaning of s 71 of the Constitution (Porter v. The King; Ex parte Chin Man Yee((2))). The present Supreme Court of the Northern Territory is a creature of local statute, having been created by the Supreme Court Act 1979 (NT). In my view, there could be no ground for asserting that the newly created Supreme Court is other than a Territory court (see Capital T.V. and Appliances Pty. Ltd. v. Falconer((3))). This Supreme Court can only exercise federal jurisdiction when it is properly conferred (see Porter's case). This Court has not been invested with federal jurisdiction (although interestingly enough it has been invested with federal jurisdiction to entertain appeals under the Commonwealth Employees' Compensation Act 1930 (Cth) (see s 54(1) (ea))). I would have some doubt about whether that is a valid investiture of jurisdiction, but I do not need to decide that for the purposes of this appeal. In the course of argument, I was referred by counsel for the first and second appellants to the decision in Commonwealth v. Walker to which I have already referred. That was, as I have said, an appeal from the Court of Petty Sessions, Canberra, to the Supreme Court of the Australian Capital Territory in a matter involving the application of the Commonwealth Employees' Compensation Act. Joske J. said: "It is clear from the authorities, and in particular National Telephone Co. Ltd. v. Postmaster-General((4)), that where additional jurisdiction is given to an established court, then unless there is a limitation imposed upon the right of appeal which exists in relation to that court, the right of appeal can be used by an appellant from an order made by the court in the exercise of its additional jurisdiction"((5)). His Honour went on to say he could see no reason why that general principle should not apply in the case before him. With respect to his Honour, the proposition upon which he relies is not the whole ratio of that case as I read it. The ratio of the case is more appropriately set out in a couple of dicta *290 referred to by Mack J. in Martin v. Commissioner for Employees' Compensation((6)). In particular: "The general rule in such matters [his Honour says] is stated in National Telephone Co. Ltd. v. Postmaster-General((7)). Viscount Haldane says: 'When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches'((8))"((9)). Mack J.((10)) goes on to quote from Lord Moulton: "Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same"((11)). It seems to me that this case is distinguishable from Walker's case in that the investiture of

jurisdiction in Walker's case did not contain any limitation in any way. However, in the instant case there is a limitation of jurisdiction. The decision to use the words of cl 3, Sched 2, of the County Court is expressed to be final, unless an appeal is instituted to the High Court or the Supreme Court of the State. That seems to me to be a substantial limitation upon the investiture of jurisdiction. In Minister of State for the Army v. Parbury Henty & Co. Pty. Ltd.((12)) Rich J. said: "It is well settled that 'when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared'"((13)). His Honour cites Federated Sawmill, Timberyard and General Woodworkers' Employees' Association v. Alexander((14)). It seems to me that the exception or proviso in the words, "unless otherwise expressly declared" must be given their full operation. Rich J. also cited a passage from Peacock v. Newtown Marrickville and General Co-operative Building Society (No. 4) Ltd.((15)) and said: "I find no indication of intention in s 39 (2) (a) [Judiciary Act] to interfere with the procedure of State Supreme Courts by preventing appeals within the Courts themselves and *291 there is certainly nothing in the language of reg 60G of the National Security (General) Regulations which expresses such an intention"((16)). Then he quotes from National Telephone Co. Ltd. v. Postmaster-General: "When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches"((17)), which is the passage from the National Telephone Co. Ltd. case which I referred to earlier. It was submitted by counsel for the first and second appellants that Sched 2 has no operation except in relation to arbitration proceedings and that, in so far as proceedings in a County Court, as referred to in s 5(3) of the Act are concerned, that Act is silent about the right of appeal from a decision of the County Court. I do not agree with that submission. It seems to me that cl 3 clearly deals with not only arbitration, but by its very terms provides that where the matter is dealt with by proceedings in a County Court, any decision or order made under the Act by the County Court shall be final, unless a proper appeal is instituted in accordance with the right of appeal given in cl 3. It seems to me, therefore, that the intention of the legislature is to limit appeals from decisions of the County Court not sitting in arbitration proceedings but sitting as a court and to limit such decisions and to make them final in the County Court unless an appeal is instituted to the High Court or to the Supreme Court of the State in which the County Court is situated. I note that in 1979 the Seamen's Compensation Act was amended by the Jurisdiction of Courts (Miscellaneous Amendments) Act 1979 (Cth) (No. 19 of 1979) and the legislature did not take the opportunity to amend the appellate provisions set out in cl 3 of Sched 2. In my view, there is no right of appeal to this Court in the present matter, and I dismiss the appeals as incompetent. Solicitors for the first and second appellants: Mildren, Silvester & Partners. Solicitors for the third appellant: Cridland & Bauer. Solicitor for the respondent: Ward Keller. E. F. Frohlich FN((1)) (1961) 3 F.L.R. 141. FN((2)) (1926) 37 C.L.R. 432. FN((3)) (1971) 125 C.L.R. 591. FN((4)) [1913] A.C. 546, at pp. 552, 562.

FN((5)) (1961) 3 F.L.R., at p. 142. FN((6)) [1953] Q.S.R. 85. FN((7)) [1913] A.C. 546. FN((8)) [1913] A.C., at p. 552. FN((9)) [1953] Q.S.R., at p. 88. FN((10)) [1953] Q.S.R., at p. 88. FN((11)) [1913] A.C., at p. 562. FN((12)) (1945) 70 C.L.R. 459. FN((13)) (1945) 70 C.L.R., at p. 499. FN((14)) (1912) 15 C.L.R. 308. FN((15)) (1943) 67 C.L.R. 25. FN((16)) (1945) 70 C.L.R., at p. 499. FN((17)) [1913] A.C., at p. 552. (c) Thomson Legal and Regulatory Limited ABN 64 058 914 668 END OF DOCUMENT

(c) 2012 Thomson Reuters.