Attorney-General v Lindsey (No 6)

[2013] VSC 433

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7476 of 1997

THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
DAVID JAMES LINDSEY	Defendant

---

JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2013
DATE OF JUDGMENT:	16 August 2013
CASE MAY BE CITED AS:	Attorney-General v Lindsey (No 6)
MEDIUM NEUTRAL CITATION:	[2013] VSC 433

---

PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceeding – Application granted – Supreme Court Act 1986, s 21(4).

ACCIDENT COMPENSATION – Weekly payments – Pre-12 November 1997 claimant – Serious injury – Ninety per cent of worker’s pre-injury average weekly earnings – Medical panel – Degree of impairment – Accident Compensation Act 1985, ss 68(4), 91E and 93C(2).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	In person

HIS HONOUR:

1. The defendant, now known as David James Lindsay (also known as Sjostrom-Clemens-Lindsay),[1] was declared a vexatious litigant on 16 July 1998.[2]  As a result, the defendant is prohibited from commencing proceedings in any State court or tribunal without the leave of this Court.  The defendant now seeks the leave of this Court to pursue a claim in respect of weekly payments for compensation under the Accident Compensation Act 1985, against CGU Workers Compensation (Vic) Limited (“CGU”).[3]

   [1]And who has also previously been known on occasions as David Clemens and/or David Lindsey and/or David Clemens-Black.  While in the past Mr Lindsay’s name has been spelt with an “e”, currently it seems he spells it with an “a”.

   [2]The Attorney-General for the State of Victoria v Lindsey (unreported Supreme Court of Victoria, Kellam J (as his Honour then was), delivered 16 July 1998).

   [3]The defendant has previously brought other applications over the years for leave to commence proceedings.  Some of the history of these matters may be found in the decision of Attorney-General v Clemens (No 5) [2010] VSC 69 and the cases referred to therein.

1. Section 21(4) of the Supreme Court Act 1986 provides that the application must be refused unless the Court is satisfied that the proposed proceeding is not or will not be an abuse of the process of the Court. The onus rests on the defendant to show that his proposed proceeding will not be an abuse of process.[4]  Further, the application should be refused if the Court is of the opinion that the proposed proceeding is “foredoomed to fail”.[5]

   [4]Phillip Morris Limited v Attorney-General (Vic) (2006) 14 VR 538 [116].

   [5]Ibid [85]. See further, Attorney-General v Clemens (No 4) [2010] VSC 6.

1. The material filed by the defendant in support of his application discloses that the defendant is a long time recipient of weekly payments of compensation under the Accident Compensation Act.  In a medical report of Dr Nicholas Maartens,[6] it is said that the defendant has been on WorkCover payments for the past 20 years following a total and permanent disability assessment as a result of an accident on 20 August 1990.  In a medical report of Dr James Rowe[7] (who examined the defendant on behalf of CGU Workers Compensation on 13 January 2011), it is said that the defendant is totally and permanently incapacitated for all work and that the cause of his condition is “various work-related injuries that have occurred over a period of time from 1984 to 1989”.

   [6]Dated 29 June 2011.

   [7]Dated 13 January 2011.

1. The defendant wishes to bring proceedings against CGU in respect of what he says is an underpayment of his weekly payments of compensation from 17 January 2006 to date and continuing.  The defendant claims that his weekly payments should be calculated from 17 January 2006 at the rate of 90 per cent of his pre-injury average weekly earnings in accordance with the provisions of the Accident Compensation Act.  In fact, the defendant’s weekly payments have been calculated at the rate of 70%[8] of pre-injury average weekly earnings in accordance with a County Court order of 28 February 2006.[9]

   [8]This figure was later increased to 80% when s 31 of the Accident Compensation Amendment Act 2010 commenced on 5 April 2010.

   [9]See the letter from CGU to the defendant dated 15 March 2013.

1. In support of his claim, the defendant relies upon s 93C of the Accident Compensation Act. Section 93C provides:

Weekly payments after the second entitlement period

93C. Weekly payments after the second entitlement period

(1) Subject to section 93CD, a worker’s entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker-

(a)is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; or

(b)is a pre-12 November 1997 claimant who has a serious injury.

(2) A worker to whom subsection (1)(a) or (b) applies is entitled, subject to and in accordance with this Part and Part VIIB, to compensation in the form of weekly payments-

(a)if the worker is a pre-12 November 1997 claimant who has a serious injury, at the rate of-

(i)  the difference between 90 per cent of the worker’s pre-injury average weekly earnings and 90 per cent of the worker's current weekly earnings; or

(ii) the difference between $1070 and 90 per cent of the worker's current weekly earnings- whichever is the lesser;

(b)if the worker is a pre-12 November 1997 claimant who does not have a serious injury, at the rate of-

(i)  80 per cent of the worker's pre-injury average weekly earnings; or

(ii) $1070-

whichever is the lesser; and

(c)in the case of a claim for compensation in the form of weekly payments first made in respect of the injury to which the claim relates on or after 12 November 1997 and before 5 April 2010 at the rate of-

(i)  80 per cent of the worker's pre-injury average weekly earnings; or

(ii) $1330-

whichever is the lesser;

(d)in the case of a claim for compensation in the form of weekly payments first made in respect of the injury to which the claim relates on or after 5 April 2010, at the rate of-

(i)  80 per cent of the worker's pre-injury average weekly earnings, less the deductible amount; or

(ii) twice the State average weekly earnings- whichever is the lesser.

(3) A review of the assessment of a worker to whom subsection (1)(a) or (b) applies may be conducted by the Authority or self-insurer at any time and must be conducted as often as may reasonably be necessary and in any event at least once every 2 years.

1. The defendant contends that:

(a)he is a person with “no current work capacity” within the meaning of the Accident Compensation Act;

(b)his status as having no current work capacity is “likely to continue indefinitely” within the meaning of s 93C of the Act; and

(c)he is a pre-12 November 1997 claimant.[10]

[10]See the definition of “pre-12 November 1997 claimant” in s 91E of the Accident Compensation Act.

1. On the material submitted on this application, there seems to be little doubt that the defendant will establish these matters.  Put in the language of the requirements of the present application, it could not by any means be said that the defendant was foredoomed to fail in respect of the allegations to which I have just referred.

1. The issue between the defendant and CGU appears to be whether the defendant has a “serious injury”. “Serious injury” is defined in s 91E of the Accident Compensation Act, in relation to a claim for compensation in the form of weekly payments made before 12 November 1997, to mean:

an injury to a worker in respect of which the worker’s degree of impairment, if assessed by the Authority or self-insurer in accordance with section 91, would be 30 per cent or more.

1. On 13 January 2011, CGU had the defendant examined by Dr James Rowe, a specialist occupational physician.  Dr Rowe conducted an impairment assessment of the defendant and assessed the defendant’s AMA medical impairment of the whole person at 30%.

1. In July 2013, Dr Rowe was asked by CGU to conduct another AMA assessment.  Dr Rowe examined the defendant on 11 July 2013 and reported as follows:

I am asked to do another AMA 2 assessment.  I am not sure why you request that.  Theoretically it is a permanent impairment assessment and that is what I performed in 2011.  In fact, the numbers will have increased.  I will enclose that with this report.  He will never progress to self-management of his condition.

1. Dr Rowe’s second AMA 2 assessment resulted in a medical impairment of the whole person of 34%.

1. In his proposed proceeding against CGU, the defendant wishes to seek arrears in respect of his alleged underpayments, interest on arrears and declarations that would entitle him to weekly payments at the rate of 90% of his pre-injury average weekly earnings. A potential impediment to the defendant’s claim is a medical panel opinion of January 2006 in which it is recorded that the medical panel assessed the defendant’s whole person impairment at 18% - and thus, that the defendant does not have a “serious injury” within the meaning of ss 91E and 93C of the Accident Compensation Act.

1. Section 68(4) of the Accident Compensation Act provides:

(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.

1. From the correspondence exhibited in this application, it appears that CGU will contend that the medical panel’s decision in January 2006, followed by the County Court order of February 2006, limits the defendant’s entitlement to payments at his current rate for most of the past (if not into the future).

1. While a medical panel opinion is final and conclusive, an issue arises as to in respect of what issue the medical panel’s opinion is final and conclusive.  In the absence of a successful judicial review of the decision made by the medical panel, the medical panel’s opinion that the defendant has an 18% whole person impairment as at January 2006, cannot be cavilled with.  However, the possibility exists that the defendant might successfully argue that while 18% was his permanent whole person impairment as at January 2006, the defendant’s permanent whole person impairment is now, and has been for some years, 30% or more – entitling him to weekly payments calculated at the rate of 90% of the defendant’s pre-injury average weekly earnings.  As was said in AMP Workers Compensation Services Limited v Chalkley:

A finding that a person is totally and permanently incapacitated at a particular time does not mean that that person will in fact be totally incapacitated in the future.  A number of factors subsequent to such a finding such as an ‘unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills, or even the improvement in the labour market’ or the opportunity to learn fresh skills from participating in an approved ‘occupational rehabilitation service’ may bring an end to the incapacity or reduce it.

…

That finding [of total and permanent incapacity on 30 November 1994] could not prevent or estop the appellant, in the subsequent proceedings between Chalkley and it, putting in issue the matter of fact that at the time relevant to those subsequent proceedings and being subsequent to 30 November 1994 the nature and extent of any incapacity that Chalkley had for work where such matter was relevant to a fact or matter in issue in the later proceedings.[11]

[11]1998 VSC 29 [37] and [38].  See further Ajinvan Pty Ltd v Fry (2001) 3 VR 644, 651 [17]; and Norris v Brumar (Victoria) Pty Ltd [2009] VSC 214 [16].

1. The defendant contends that at the time of the medical panel’s decision, the medical panel was unaware of additional work-related injuries which first manifested themselves on 1 May 2007.  It follows, so the defendant contends, that the panel’s decision of January 2006 does not prevent the defendant from calling evidence and submitting that his permanent impairment has been 30% or more since that time.  Support for such an argument is capable of being found in the authorities to which I have just referred.

1. The defendant has attempted to conciliate his dispute with CGU. A conciliation conference was held on 12 June 2013. On that day, a conciliation officer certified under s 59(1) of the Accident Compensation Act that he was “taken to be satisfied that there is a genuine dispute with respect to the liability to make or continue to make weekly payments” in this case.  The conciliation officer also certified that the defendant had “taken all reasonable steps to settle the dispute”.

1. While at the conciliation CGU denied any liability to pay weekly payments of compensation to the defendant at the rate of 90%, it appears that some payments calculated at that rate may have been paid subsequently by CGU.  That said, there has been no written acceptance of this position by CGU, and the defendant’s claim for arrears and interest remains unresolved.

1. The defendant does not have to show that he is likely to succeed in a proposed proceeding in respect of which he seeks leave to commence.  The defendant is merely required to establish that his proceeding will not be an abuse of process.  There are difficulties with the defendant’s claim for arrears at and about the time of the medical panel’s determination.  That said, in my view, the defendant’s proposed proceeding could not be described as “foredoomed to fail”.  While I have not heard any argument to the contrary, on the material put on this application, the defendant appears to have a reasonably arguable claim for arrears at the rate of 90% from at least some time in or around 2011 – if not from May 2007 or thereabouts.  While the claim for arrears in and close to 2006 may be very difficult for the defendant, this is not the occasion to summarily determine such matters.

1. Having been satisfied by the defendant that his proposed proceeding will not be an abuse of the process of the Court, the defendant should be given leave to commence a proceeding against CGU seeking the relief set out in the draft statement of claim forming part of Exhibit DJL.001 to the defendant’s affidavit sworn 7 August 2013.

1. There will be an order giving the defendant leave to commence a proceeding in the County Court of Victoria against CGU Workers Compensation (Vic) Limited seeking the relief set out in the draft statement of claim forming part of exhibit DJL.001 to the affidavit of the defendant sworn 7 August 2013 herein.