Attorney General v Lindsay
[2016] VSC 136
•28 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 00640
| THE ATTORNEY GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| DAVID JAMES LINDSAY | Defendant |
---
JUDGE: | McDONALD J |
WHERE HELD: | MELBOURNE |
DATE OF JUDGMENT: | 28 April 2016 |
CASE MAY BE CITED AS: | Attorney General v Lindsay |
MEDIUM NEUTRAL CITATION: | [2016] VSC 136 |
---
PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceeding – Application granted – Supreme Court Act 1986 s 21; Vexatious Proceedings Act ss 54, 55, 56, 60, 62, 63, 64, 91, 102.
ACCIDENT COMPENSATION – Reduction and discontinuance of weekly payments – Issue as to work capacity - Accident Compensation Act 1985 s 114; Workplace Injury Rehabilitation and Compensation Act 2013.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | No appearance |
HIS HONOUR:
David James Lindsay (also known as Sjostrom-Clemens-Lindsey) was declared a vexatious litigant on 16 July 1998 pursuant to s 21 of the Supreme Court Act 1986.[1] That section was repealed by the Vexatious Proceedings Act 2014 (‘the Act’) on 31 October 2014,[2] and Mr Lindsay became subject to a general litigation restraint order.[3] Mr Lindsay seeks leave pursuant to s 54 of the Act to commence a proceeding in respect of weekly payments for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.
[1]The Attorney General for the State of Victoria v Lindsey (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998).
[2]Vexatious Proceedings Act 2014, s 102.
[3]Ibid s 91.
The defendant in the proposed claim is Gallagher Bassett Services Workers Compensation Victoria Pty Ltd (‘Gallagher Bassett’). The proposed claim relates to notices dated 22 December 2015 and 23 December 2015 which were issued to Mr Lindsay by Gallagher Bassett pursuant to s 114(2) of the Accident Compensation Act 1985. Pursuant to the first notice, Mr Lindsay was advised that his weekly payments were to be reduced from 90% ($945) to 80% ($840) of his pre-injury weekly earnings with effect from 23 January 2016. By notice dated 23 December 2015, Mr Lindsay was advised that as of 31 March 2016 he would no longer receive any weekly payments.
Mr Lindsay takes issue with the decision as set out in the notices referred to above. The dispute has been subject to a conciliation but has not been resolved. The Conciliator certified that ‘There is a genuine dispute with respect to the liability to make or continue to make weekly payments’.[4]
[4]Affidavit of David James Lindsay sworn 11 February 2016, “DJL 009”.
Mr Lindsay wishes to commence a proceeding in the Magistrates’ Court seeking orders which will reinstate his weekly payments at 90% of his pre-injury average weekly earnings.
Mr Lindsay filed material in compliance with s 56 of the Act. On 5 April 2016, he was informed that the Court considered his application for leave to proceed should proceed. Consequently he was directed, in accordance with s 60(2) of the Act, to give notice of his application to relevant persons. On 11 April 2016, Mr Lindsay advised the Court that he had notified the Attorney-General and Gallagher Bassett.
A person who has been given notice in accordance with s 60 of the Act may be heard in relation to the application for leave to proceed.[5] However, by letter dated 20 April 2016, the Victorian Government Solicitor’s Office advised that the Attorney-General ‘does not seek to be heard by the Supreme Court on the return of Mr Lindsay’s Application’.
[5]Ibid s 62(1).
Gallagher Bassett adopted a similar position. By letter dated 21 April 2016, the solicitors acting for Gallagher Bassett raised the following ‘issues of form’:
(a) ‘The Applicant is seeking to commence proceedings … by way of Application … whereas the correct originating process in the Magistrates’ Court for proceedings under the Accident Compensation Act is by way of a Complaint’; and
(b) ‘The Prayer for Relief in the proposed Application … seeks remedies for which the Magistrates’ Court either lacks jurisdiction or in respect of which are improper.’
However, the letter continues that ‘the above are more matters of form and in our view are more properly dealt with by the Magistrates’ Court when substantive proceedings are issued, rather than at the application for leave stage.’ Thus Gallagher Bassett ‘does not seek to be heard by the Supreme Court in relation to the Application for Leave by the Applicant.’
In the circumstances, Mr Lindsay’s application for leave to proceed has been determined on the papers, without any appearance.[6]
[6]Ibid s 63(1).
Section 55 of the Act provides:
On an application under section 54, a Victorian court or tribunal may grant a person who is subject to a general litigation restraint order leave to commence or continue a proceeding if the Victorian court or tribunal is satisfied that—
(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.
I am satisfied based on the material filed by Mr Lindsay in support of his application that the proposed proceeding is not vexatious and there are reasonable grounds for the proceeding.
It is plain that Mr Lindsay has a legitimate grievance in respect of the decision to terminate his weekly payments. The combined effect of the two notices which he received in December 2015 is to reduce his weekly payments of compensation from $945 per week to zero. Mr Lindsay has been in receipt of weekly payments of compensation since 2006. Until recently, those payments have been calculated on the basis of him having a serious injury based on a whole of person impairment of 30%.
The material filed by Mr Lindsay in support of his application includes a report of his treating physician, Dr Scott Tunaley, dated 4 January 2016. This report includes the following:
He is currently unfit for work and is unable to perform any work at present or in the future.
This assessment appears to be directly inconsistent with the basis upon which Gallagher Bassett determined that Mr Lindsay was not entitled to receive any weekly payments post 31 March 2016 (i.e. that he currently has a work capacity, or alternatively, any current lack of work capacity is not likely to continue indefinitely).
It is not the function of the Court in determining an application under s 55 of the Act to express any concluded view as to the likelihood of success of the proposed proceeding. Mr Lindsay does not have to establish that he is likely to succeed in the proposed proceeding in order to obtain a grant of leave to commence that proceeding. Rather, he is merely required to establish that his proposed proceeding will not be an abuse of process.[7] Based on the material filed in support of Mr Lindsay’s application, the proposed proceeding cannot be described as an abuse of process.
[7]The Attorney General v Lindsey (No 6) [2013] VSC 433, [19].
The Court shall make an order that leave of the Court is hereby granted to David James Lindsay to commence a proceeding before the Magistrates’ Court of Victoria at Melbourne against Gallagher Bassett Services Workers Compensation Victoria Pty Ltd for the orders sought in the proposed application and amended affidavit in support of the application dated 5 April 2016.
---
0