Ire v Stage 5 Enterprises Pty Ltd [2005] PGNC 38; N2898 (8 March 2005)

N2898

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APP. NO. 304 OF 2002

Between:

PHILEMON W. IRE
-Appellant-

And:

STAGE 5 ENTERPRISES PTY LTD
-Respondent-

Waigani: Injia, DCJ
2005: 8th March

STATUTORY TRIBUNALS – Workers Compensation Tribunal – Appeal from Registrar’s decision to fix date for hearing application to set aside ex parte order – Administrative decision - Not a final decision of the Tribunal – Not open to appeal – Workers’ Compensation Act (Ch. No. 179), ss.40, 49.

Cases cited:
No cases cited in the judgment.

Counsel:
P. Kingal for the Appellant
L. Tilto for the Respondent

8th March, 2005

INJIA, DCJ: This is an appeal against the "decision" of the Workers’ Compensation Tribunal, under s.49 of the Workers’ Compensation Act (Ch. No. 179) ("the Act"). When the appeal came on for hearing before me, I asked the Appellant’s counsel to identify the final "decision" the subject of the appeal. This is because under s.40(1) of the Act, a party can only appeal against "a decision or makes an order or award" made or given by the Tribunal, which I understand to be a final decision.

In the Notice of Appeal, the "decision" identified is the "decision of the Workers Compensation Tribunal on 1st February 2002 to re-hear the matter on 28th February 2002, adjourned to 22nd March 2002, and pending for re-hearing." In other words, it is the Registrar’s decision in "re-listing the matter for rehearing when the proceedings were determined on 2nd August 2000, where the Appellant was awarded the sum of K12,554.00 in compensation for injuries." Mr Kingal then referred me to the Tribunal’s decision as the one contained in Appeal Book p.101, which is a letter issued by the Registrar to the Appellant on 1st February 2001 advising the Appellant that the "matter has been set down for the Tribunal Hearing on the 28th February 2002" and enclosed Form 8.

I commented that the "decision" referred to was not a final decision or award of the Tribunal, which is subject of an appeal, but simply an administrative direction given by the Tribunal’s Registrar to convene a hearing. The Appellant would be required to attend and raise any objection such as res judicata before the Tribunal and obtain a decision, which could then be a proper subject of appeal to this Court.

Mr. Kingal required time to obtain instructions from his client and sought an adjournment. He was granted one. He returned to the Court with a Notice of Motion filed on 8th November 2004, seeking orders amending the grounds of appeal to plead an additional "decision" which is referred to in the Draft Amendment. That is, "the decision of the Workers’ Compensation Tribunal, contained in a letter dated 16th January 2002 from the Acting Chief Commissioner addressed to the Respondent to set aside the ex parte award of the Tribunal of 2nd August 2000." It is necessary to set out the full text of Mr. Dai’s letter dated 16th January 2002 to the Respondent. Mr. Dai wrote:

"RE: WORKERS’ COMPENSATION CLAIM – MR. PHILEMON W. IRE.

Following your letter of 25th August 2000, the Ex-parte Award no. 698/00 was withdrawn from the Port Moresby District Court and is pending further negotiation to have the award complied with.

There are number of facts that needs to be highlighted here and they are:-

1. Compulsory Workers’ Compensation Insurance (Sec. 90).

As you are aware as per Section 90 of the Act, you have contravened this legislative requirement by not having in force the Workers’ Compensation Insurance Policy at the date of Mr. Ire’s injuries. Your failure to do so, you are now therefore required to meet the full liability under the Act.

2. Workers’ Compensation Tribunal Decision (Ex-parte Award).

Any Workers’ Compensation Tribunal Award is binding on all parties to the case and therefore the Ex-parte Order is proper and must be complied with.

3. Settlement out of the Trust Fund.

The Tribunal will not entertain any Application under Section 18(c).

Be further advised that the Ex-parte Award was set aside following your request in your letter of 25th August, 2000. We also note that you are making every effort to settle the claim outside the jurisdiction of the Workers’ Compensation Tribunal which we encourage.

From your letter of 25th August 2000, we have however, noted that you have made some very serious allegations on the validity of the claim and this you will have to provide further information to substantiate your allegations. We have also noted that you have alleged that you were not given any fair hearing prior to the issuing of the Ex-parte Award.

In an attempt to having this matter settled expeditiously, a meeting is now being set for 30th January 2002 at 1.30p.m. in Chief Commissioner’s office Monian Tower, Port Moresby between you and the Applicant.

In the interest of all concerned both you and the Applicant are required to attend this compulsory meeting.

Failure to reach any settlement at that meeting, either party will have to seek further order from the National Court on the Tribunal decision." (My underlining).

The pertinent part relied upon appears on the underlined part of this letter. Mr Dai wrote this letter in his capacity as the Acting Chairman of the Tribunal. This letter is annexed to the affidavit of Mr. Ire sworn on 6th November 2004, filed in support of the application.

There is no formal decision from the Tribunal setting aside the Ex-parte award, contained in the Tribunal records before me. It is not clear as to whether the decision made by Mr. Dai being referred to in his letter, is a decision of the Tribunal or an administrative decision made by Mr. Dai suspending the enforcement of the award to allow the Respondent to settle the compensation claim outside the Tribunal. It is not clear if the Tribunal formally convened and made the decision to set aside the ex-parte award and to re-hear the matter. It is also not clear if the matter listed before the Tribunal would involve a re-hearing of the matter or it was to consider whether the Ex-parte award should be set aside and for the matter to be re-heard. These and other questions that may arise pertain to administrative matters which require clarification by the Tribunal at a formal hearing. They are matters within the Tribunal’s jurisdiction to deal with.

Mr. Dai’s letter dated 16th January 2002 is superseded by the Registrar’s letter dated 1st February 2002. Although Mr. Dai made references to either party seeking orders from the National Court, the Registrar’s letter shows that all the issues raised by Mr. Dai were going to be addressed by the Tribunal at the hearing scheduled for 28th February 2002. Both parties are entitled to be represented and heard on these issues. In the circumstances, I find that no final decision was made by the Tribunal to set aside the Ex-parte award, which can be the proper subject of appeal. The matters raised by Mr. Dai in his letter dated 16th January 2002 are clearly administrative matters which cannot be a proper subject of appeal.

Also, the new "decision" sought to be challenged on appeal now is not one for which Sakora, J granted extension of time to appeal.

For these reasons, as I previously indicated on the first day of the hearing, the appeal has no proper basis. The application to amend the Notice of Appeal is refused. The appeal is dismissed as being incompetent. The Appellant shall pay the Respondent’s costs of these proceedings.
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Lawyer for the Appellant : Pius Kingal & Associates
Lawyer for the Respondents : Kari Bure Lawyers