Behrens v Aldi Stores
[2021] NSWPIC 487
•29 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Behrens v ALDI Stores [2021] NSWPIC 487 |
| APPLICANT: | Dean Behrens |
| RESPONDENT: | ALDI Stores |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 29 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum and ongoing weekly compensation in respect of disputed psychological injury; unexplained failure of applicant to appear at teleconference; treating practitioners in respect of previous psychological condition unable to be identified for the purposes of an application for leave to serve Directions for Production; evidence suggesting employment in own business not fully disclosed to medicolegal experts and not addressed in applicant’s evidence; lack of recent medical evidence; Held - Notice to Produce financial records not complied with; matter not ready to proceed to conciliation and arbitration; proceedings dismissed for want of due despatch pursuant to rule 77(a) and section 54(c) of the Personal Injury Commission Act 2020. |
| DETERMINATIONS MADE: | 1. The matter is not ready to proceed to a conciliation conference and arbitration hearing. |
| ORDERS MADE: | 2. The proceedings are dismissed for want of due despatch pursuant to s 54(c) of the Personal Injury Commission Act 2020 and r 77(a) of the Personal Injury Commission Rules 2021. |
STATEMENT OF REASONS
BACKGROUND
Mr Dean Behrens (the applicant) was employed by Aldi Stores (the respondent) as a store manager trainee. The applicant claims to have sustained a psychological injury in the course of his employment with the respondent due to bullying and harassment by management and other staff.
Liability for the alleged psychological injury was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 18 June 2019 and 13 December 2019.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 28 October 2021. The applicant seeks weekly compensation from 14 July 2019 to date and continuing and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), in reliance upon an assessment of consultant psychiatrist, Dr Ash Takyar, dated 4 November 2019.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for a telephone conference before me at 9am on 26 November 2021. Mr Gabriel, solicitor, appeared on behalf of the applicant and Mr Murray, solicitor, appeared on behalf of the respondent. A representative from the respondent’s insurer was also present.
The applicant could not be contacted for the commencement of the teleconference.
Mr Gabriel advised me that the applicant was aware of the teleconference and he could not account for his failure to appear. The applicant’s telephone number was confirmed and
Mr Gabriel advised he had no other contact number for the applicant. The Commission’s operator was asked to continue to attempt to contact the applicant while preliminary discussions ensued. At 9:31am, the operator was asked to attempt to contact the applicant on one further occasion, however, the call again went to the applicant’s voicemail service.
Given the applicant’s unexplained failure to appear and having regard to a number of procedural and evidentiary issues identified during the preliminary discussions, I invited
Mr Gabriel and Mr Murray to make submissions as to whether the proceedings should be dismissed for want of due despatch. Those submissions were recorded and a transcript is available upon request.
After hearing the submissions, I determined that the matter was not ready to proceed to conciliation conference and arbitration hearing. The proceedings were dismissed for want of due despatch pursuant to s 54(c) of the Personal Injury Commission Act 2020 and r 77(a)of the Personal Injury Commission Rules 2021.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
FINDINGS AND REASONS
Section 54 of the Personal Injury Act 2020 deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 77 of Personal Injury Commission Rules 2021 provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation
legislation—the applicant has failed to prosecute the proceedings with due
despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are
referred may make any order relating to the procedure to be followed in the
proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”The evidence before the Commission in these proceedings discloses that the applicant suffered from a psychological condition prior to the commencement of his employment with the respondent in June 2017. In a statement attached to the ARD, dated 23 March 2021, the applicant disclosed this condition, noting that he had been prescribed medication and hospitalised at Campbelltown Public Hospital after resigning from his previous employment in October 2016.
During the telephone conference on 26 November 2021, Mr Murray observed that the clinical records from the applicant’s general practitioner, attached to the ARD, noted referrals in January and February 2017 to a psychologist, a Mental Health Team and Campbelltown Hospital. In April 2017, shortly prior to the commencement of employment with the respondent, the applicant was noted to be under the care of a Mental Health Team.
The identities of the applicant’s treating practitioners and records or reports from those practitioners in relation to the previous condition were not disclosed in the evidence before the Commission. Mr Murray indicated that the respondent wished to seek leave to issue Directions for Production on those practitioners but was not able to identify them on the material available. Mr Murray submitted that the respondent would be prejudiced were the matter to proceed to conciliation arbitration without it having the opportunity to obtain evidence from the applicant’s treating practitioners.
Mr Murray also queried whether there was a fair climate for the acceptance of the expert evidence in circumstances where the applicant had provided a history of being “completely well” prior to the commencement of employment with the respondent on 5 June 2017, in light of the evidence of treatment of the prior condition as late as 24 April 2017.
Mr Murray noted that the applicant had been served with a link to a You Tube video (attached to the Reply) titled, “From Depression to Entrepreneurship with Dean Behrens”, in which the applicant discussed his previous psychological condition and treatment, disclosed that he had been working in his own business to a much greater extent than was suggested to Dr Takyar and made no mention of the alleged psychological injury sustained in employment with the respondent.
Mr Murray noted that a Notice for Production had been served on the applicant on 19 November 2021 requesting financial records but had not yet been complied with. The applicant’s evidence did not disclose any earnings following the cessation of work for the respondent.
It was noted that no medical evidence or other evidence of incapacity had been provided after July 2020. Dr Takyar’s report was now more than two years old.
Due to the applicant’s failure to appear, Mr Gabriel was unable to obtain instructions with regard to the identity of the applicant’s treating practitioners or the applicant’s response to the respondent’s application for Directions for Production. Although Mr Gabriel proposed that a list of treating practitioners could be forwarded within seven days, a further teleconference would be required in order to deal with the application and any objections from the applicant. I accept that it would be unfair to move the matter on to conciliation arbitration without the respondent being given the opportunity of obtaining evidence from the applicant’s treating practitioners.
Mr Gabriel suggested that time could also be extended to enable compliance with the Notice for Production. It was also suggested that the applicant could respond to the evidence set out in the You Tube video in a supplementary statement lodged under cover of an Application to Admit Late Documents. It was also suggested that the applicant could give oral evidence or submit to cross-examination.
Despite Mr Gabriel’s submissions, the current state of the evidence is such that there is a strong chance that significant new evidence going to the issues of injury, incapacity and permanent impairment, will need to be served in order for the matter to be ready for conciliation arbitration. The late service of such material would be prejudicial to the respondent and potentially incur additional costs, including the need for a supplementary response from the respondent’s Independent Medical Examiner.
For these reasons, in my opinion, there is little prospect of the matter being advanced within a reasonable time in accordance with the normal practice in the Commission. In the applicant’s absence, Mr Gabriel was unable to obtain instructions with regard to discontinuing the proceedings.
It is the guiding principle of the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Section 42 of the Personal Injury Commission Act 2020 obliges the Commission to give effect to this principle in exercising its powers.
There will be nothing to prevent the applicant from lodging a further application in the Commission, provided I dismiss these proceedings for want of due despatch, which is a prerequisite for dismissing or striking out any proceedings in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited[1].
[1] [2004] NSWWCCPD 83.
In all the circumstances, I am satisfied that these proceedings should be dismissed for want of due despatch.
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