JUDGMENTBY: TERRELL, AG CJ, POYSER, CJ (FMS), GORDON-SMITH, AG JA

TERRELL, AG CJ This was an appeal from an award by the Commissioner for Workmens Compensation directed to be heard before three Judges of the Supreme Court.

The facts are sufficiently set out in the judgment of Gordon-Smith, Ag. J.A. which I have had the opportunity of reading, and it is not necessary to recapitulate them.

Mr. OConnor, counsel for the Assistant Controller of Labour, respondent on the appeal, raised certain preliminary points. The first of these was that the Commissioner gave a judgment on the 14th February, 1939, rejecting various preliminary objections raised by the appellants on the original hearing, and that no appeal was entered against such judgment, the only judgment that is appealed against being the final judgment of the Commissioner dated the 14th June, 1939. For the purpose of deciding this point it is necessary to examine the judgment of the 14th February 1939 (hereinafter referred to as the interlocutory order). It appears that it was drawn up by the Commissioner himself and was not submitted to or approved by the parties. The interlocutory order is in three parts:--the first directs certain amendments which were due to the fact that the form of the application was open to objection, the second part directed that "the application be fixed for hearing on Friday the 17th February at 10 a.m.", and the third that the costs of the preliminary objections be reserved. The order on the face of it makes no finding as to the preliminary objections, and as the procedure is the informal procedure applicable to the District Court, it may be presumed that, but for the necessity for amending the application, no formal order would have been drawn up. It was only on the 15th February, the day after the date of the interlocutory order that the Commissioner put on the file his grounds of judgment upon the preliminary objections, and from such judgment it may be inferred that the Commissioner rejected them. There is, however, no authority for the proposition that an appeal can be entered against inferences to be drawn from an interlocutory order. The only substantive order was that of the 14th June and in appealing against such order it was open to the appellants to raise all the objections raised at the preliminary hearing.

Mr. OConnor also argued that it was not open to the appellants to raise the question of the authority of the Assistant Controller to originate the proceedings on the hearing of the substantive application, and still less to do so on the appeal. But it must always be open to a defendant to object at some stage to the authority of the solicitor or other agent of the plaintiff to bring the proceedings at all, and admittedly the proper way to raise such a question before the District Court is by preliminary objection. In the High Court there would be a summons to stay proceedings. The Commissioner, however, ruled that the point could only be raised at the hearing. In my opinion such ruling cannot be supported, but clearly that should not preclude the appellants, who had properly raised it by way of preliminary objection, from raising it again on the appeal.

Mr. OConnors third ground was that the appellants had waived any objection to the jurisdiction by denying liability on other grounds. The only authority for this proposition is Barron v Carmichael (1912) 1 Workmens Compensation Reports 312. But in that case no objection to the jurisdiction was taken until the appeal when it was argued that there was no dispute within the meaning of the Acts, and Cozens Hardy M.R. held that it was too late to raise it then. Here, however, the appellants raised the issue of jurisdiction from the very commencement, and the case cited is no authority against them.

For these reasons I am of opinion that there is no substance in any of Mr. OConnors preliminary points.

On behalf of the appellants Mr. Walters relied most strongly on the question of

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