| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BELCHER -v- AUSTAL SHIPS PTY LTD [2002] WADC 259 CORAM : COMMISSIONER GILES HEARD : 7 OCTOBER 2002 DELIVERED : 18 DECEMBER 2002 FILE NO/S : CIV 2440 of 2001 BETWEEN : DION BELCHER Plaintiff
AND
AUSTAL SHIPS PTY LTD
Defendant
Catchwords: Application for stay of proceedings - Appeal from Registrar - Principles for determining stay application - Form 22 notice inadequate
Legislation: Workers' Compensation and Rehabilitation Act 1981
Rules of the Supreme Court, O 56 r 11
Result: Appeal dismissed
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Representation:
Counsel:
Plaintiff : Ms H S Osbourne
Defendant : Ms Y D Henderson
Solicitors:
Plaintiff : Srdarov Richards
Defendant : Gibson & Gibson
Case(s) referred to in judgment(s):
Adams v The Roman Catholic Archbishop of Perth [2002] WADC 28
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (1997) 18 WAR 334
Gardner Merchant (Australia) Pty Ltd v Herft [2001] WADC 136
Gluhic v Prok Group Limited [2002] WADC 110
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
Mokta v Metro Meats International Limited, unreported and unpublished; DCt of WA (HH Jackson DCJ) CIV 16/2000; 27 June 2001
Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Thomas v Arimco Mining Pty Ltd & Anor (2000) 24 SR (WA) 142
Case(s) also cited:
CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129
Starr v National Coal Board [1977] 1 All ER 243
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1 COMMISSIONER GILES: The plaintiff (respondent) has taken proceedings in the District Court against the defendant (appellant) arising out of an incident on 8 April 1999.
2 The respondent alleges that on that date, he was working on a keel bar of a boat, performing welding work. The light illuminating his work area went out, and he fell to the floor of the boat. He alleges that the accident was caused by the negligence of the appellant, his employer. 3 The respondent claims to have suffered trauma to his head and neck resulting in unconsciousness for a period, lacerations to his face and head, and brain injury manifesting itself in memory loss, loss of cognitive function and epilepsy. He has had extensive treatment by his general practitioner, physiotherapist, and chiropractor, and has been assessed by a large number of psychiatrists, psychologists and neuropsychologists. 4 The respondent issued a writ seeking damages from the appellant in respect of this accident in the District Court on 19 September 2001. 5 On 23 November 2000, the respondent filed a Form 22 seeking a determination from the Directorate of Conciliation and Review that he has suffered a permanent degree of disability of not less than 30 per cent, pursuant to s 93E(3)(a) of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). Such a determination is required in order for the court to make an award of damages in common law proceedings. The matter was referred by the Director of Conciliation and Review to a review officer for determination. 6 The Form 22 had annexed to it an undated report by Professor Mastaglia, neurologist, which stated: "On the basis of the information provided to me by Mr Belcher when I saw him on the 1st June 2000, and the results of the psychometric testing performed by Dr Hayward, I would agree that Mr Belcher has sustained a permanent impairment of 30% of the whole body in accordance with the Second Schedule of the Workers' Compensation and Rehabilitation Act 1981." 7 Prior to the proceedings before the review officer, an application was made by the appellant to prevent disclosure of its surveillance evidence and any medical reports referring to it until after the respondent had given his evidence in chief. This application was dismissed by Review Officer McCloskey on 21 March 2001.
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8 The appellant appealed against Review Officer McCloskey's decision and applied for a stay of the review proceedings. On 18 October 2001 a Magistrate of the Compensation Magistrate's Court heard the appeal and reserved his decision.
9 That application and appeal were dismissed by the Magistrate. Unfortunately, this decision was not handed down until 29 August 2002, some ten months after the hearing. While this matter was awaiting the hearing and then the handing down of the Magistrate's decision, the respondent's application for a determination as to the degree of his disability was effectively on hold. 10 On a date which is not entirely clear, the appellant applied to this court to have the proceedings taken against it by the respondent stayed, until such time as a determination had been reached in the Conciliation and Review Directorate as to the respondent's degree of disability. 11 Deputy Registrar Hewitt refused this application on 12 April 2002. 12 It is from this decision that the appellant now appeals. 13 The respondent was paid weekly payments and medical expenses from the date of the alleged accident. Because of the effluxion of time, these statutory benefits were dwindling. At the time of this appeal being heard in the District Court, they had been exhausted.
The arguments 14 Ms Osbourne, counsel for the appellant, submitted that a stay ought to be granted pending the determination as to the respondent's degree of disability pursuant to s 93E(3)(a). 15 Ms Osbourne put forward two reasons for the application. 16 First, it was submitted that the Form 22 filed by the respondent was defective. This is because the report by Professor Mastaglia annexed to the Form 22 expressed the plaintiff's disability in terms of a percentage impairment of the whole body. 17 This manner of expressing degree of impairment was held by the Full Court of the Supreme Court to not constitute medical evidence, as required by s93D(6) (Re Monger; Ex parte Dutch & Ors(2001) 25 WAR 96).
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18 The appellant argues that as a consequence of the deficiency in Professor Mastaglia's report the respondent's notification was not validly accepted or referred for review by the Director.
19 It is conceded by the appellant that this defect can easily be cured by the respondent issuing a further Form 22 with an appropriately drafted medical report. Nonetheless, the appellant submits that the defect is sufficient reason for the court to stay its own proceedings, pending determination of the respondent's degree of disability. 20 The second argument advanced by the appellant is that in light of the medical evidence, the respondent has only a slight possibility of obtaining a positive determination pursuant to s 93E(3). Alternatively, there is such uncertainty as to the outcome of this determination, that it would be a waste of resources for the court to allow the respondent to pursue his action. 21 The respondent's counsel argues that the Form 22 is valid, but if it is not, this is a matter which falls within the power of the Supreme Court to determine, pursuant to an application for prerogative relief. The appellant is well out of time to bring such an application, because of the effect of O 56 r 11 of the Rules of the Supreme Court, which require applications for prerogative relief to be brought within six months of the decision sought to be reviewed. It is submitted that the appellant would be unlikely to be granted leave to bring an application out of time. Furthermore, if the Form 22 notice is invalid, this can be easily rectified by the issuing of a fresh notice. 22 As to the second argument, the respondent points to the wealth of medical evidence collected which would tend to indicate that the respondent has good chances of achieving a favourable determination as to his degree of disability.
Power to grant a stay 23 Before considering the arguments advanced by the parties to this appeal, it is worth pausing to note the source of the Court to grant a stay of proceedings. 24 Section 50(1) of the District Court Act, 1969 provides that the District Court has "the same jurisdiction to hear and determine, and may exercise all the powers and authority, that the Supreme Court has and may
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exercise from time to time in relation to …" a number of enumerated matters, of which this is one. 25 The statutory power of the Supreme Court to order a stay derives from the powers conferred by s 16(1)(d)(i) of the Supreme Court Act 1935 (Rules of the Supreme Court, par 1.0.6A;Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (1997) 18 WAR 334). In addition, the court has inherent powers to control its own proceedings. 26 In exercising its discretion to grant a stay, the court is obliged to consider whether not abstaining from intervening could prevent the court from acting effectively. The court must use its power to stay proceedings cautiously (Christmas Island Resortcase(supra)at 345). 27 The respondent's counsel argues that the court needs to be satisfied of "special circumstances" or "extraordinary circumstances" before granting a stay, relying on the comments of Anderson J in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79. I read the court's ruling in that case to apply where an unsuccessful party seeks a stay of execution of a judgment pending an appeal. Order 47 r 13(1) of the Rules of the Supreme Court expressly requires special circumstances to be shown. Furthermore, considerations such as the rights of a party to enjoy the fruits of successful litigation, and the preservation of the subject matter of the litigation come into play. 28 That is not the situation in this case, where the parties are part-way through the interlocutory process, and a party seeks from the court a stay of its own proceedings pending a determination by a body other than the court. 29 In this situation, the court is obliged to exercise its discretion, with a view to case management principles, the rights of the parties, and any prejudice that may flow to the parties by the grant or refusal of a stay, keeping in mind the injunction of the Full Court in the Christmas Island Resortcase that the power be exercised cautiously. 30 If this is wrong and the correct principles are those enunciated in the Hamersley Iron case (supra) I would have to say that the appellant's case in no way establishes "special" or "extraordinary" circumstances. In essence, the appellant is not faced with the subject matter or integrity of the litigation being destroyed as a consequence of the stay not being granted, which is a major factor governing the exercise of a discretion to stay execution of a judgment pending an appeal (per Ipp J at 87, per Anderson J at 90).
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The Form 22 notice
31 It is now well established, and accepted as such by counsel for the appellant, that a favourable determination pursuant to s 93E(3)(a) is not a precondition to the issuing of a writ, nor to pursuing common law damages. This was made clear by his Honour Judge Nisbet in Thomas v Arimco Mining Pty Ltd & Anor (2000) 24 SR (WA) 142 and her Honour Judge O'Brien in Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175. 32 As his Honour observed in Thomas v Arimco, (supra) at 7, that is not to say that the court would not order a stay of proceedings until s 93E(3) had been complied with, on the basis that such proceedings could "run up against the court's rules and practice directions which are intended to promote a timely disposition of matters before it … It would all be a matter of balance." 33 As mentioned above, the appellant contends that the Form 22 notice lodged by the respondent is defective, because of the terms of the undated letter from Professor Mastaglia. It points to the decision of the Full Court of the WA Supreme Court in Re Monger; Ex parte Dutch & Ors(supra). 34 In that decision, the Chief Justice said at [84]: "In my opinion there is no basis in the legislation for the determination of the degree of disability in terms of a percentage function of the whole body. It follows that the decision by the Director to refer the matter to a review officer under s 93D (5) was wrong in law because the medical evidence required to be produced under s 93D (6) did not indicate that, in the medical practitioner's opinion, the degree of disability was not less than the relevant level. The opinion referred to an irrelevant degree of disability, namely, loss of function of the whole body. It follows that, in the circumstances of this case, the decision of the Director was beyond jurisdiction and incapable of conferring jurisdiction on the review officer." 35 This view was affirmed by the Full Court, sitting as five judges in Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 at 9.
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36 The appellant says that on the basis of the current Form 22, the respondent could not obtain a positive determination as to his degree of disability. The only "prayer for relief" sought by the respondent in his writ is damages, and he is not presently entitled to damages because of the defective Form 22. They say that while the respondent was entitled to issue proceedings and to pursue them up to this point, to continue to do so with a defective Form 22 on foot, constitutes a waste of the court's time, and is an abuse of process.
37 The reason for the appellant not seeking prerogative relief is said by its counsel to be the likely cost of so doing, in that if its application were successful, "the worker would be in a position where he could simply issue another form 22. It is simply not in the interest of our client to go to the considerable expense of applying for a writ of certiorari in that instance." 38 The respondent says that even if Professor Mastaglia's report does not comply with the requirements of s 93D(6) as explained in Re Monger; Ex parte Dutch this irregularity can be cured by other medical evidence concerning the respondent, which is properly expressed and complies with s 93D(6). 39 The appellant has made it clear why it has chosen not to seek prerogative relief in the Supreme Court, in which it could contest the validity of the Form 22 issued by the respondent. It has made that decision on balancing the likely cost (which would be significant) with the short-lived benefit to be obtained, because the respondent could simply issue another Form 22. While the time limit in O 56 r 11 does not apply to this situation, the delay in seeking relief would certainly require some explanation to the Supreme Court (Re Monger; Ex parte United Construction Pty Ltd (supra) at 11). 40 It now seeks a stay of the common law proceedings. However the effect of the stay which is sought is not just to stay the proceedings pending the reissuing of a proper Form 22, but pending a favourable determination of degree of disability. These are two very different things. 41 The appellant also advises the court that the adequacy of the referral will be a live issue before the review officer in the proceedings (now to be heard in January 2003) for the determination of the respondent's degree of disability. 42 In exercising its discretion as to whether or not to grant a stay, the court must exercise it's discretion cautiously, and in so doing, consider
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whether the proceedings continuing would constitute a waste of the court's resources, whether the impact on case management principles is such that a stay should be granted and the likely prejudice to each party flowing from the grant or refusal to grant the stay. 43 I cannot see how a continuation of the respondent's action for damages in this Court at this point in the proceedings would constitute a waste of the resources of the court, or interfere with case management principles. The appellant frankly acknowledges that all the respondent needs to do is to reissue the Form 22 to overcome any problem with the Form 22. In any event, the appellant has not sought a stay pending the issuing of a new Form 22, but a stay pending the actual determination of the respondent's degree of disability. A stay of this nature is not justified in these circumstances. 44 I am informed that the respondent's weekly payments are now exhausted and accept that he would suffer financial prejudice were a stay to be granted. As the history of this matter to date illustrates, it could well be a considerable period of time before the question of the respondent's degree of disability is determined. There is no evidence of the respondent or his solicitors dragging their feet on this matter – indeed it appears that achieving a determination has been actively pursued. 45 I have been referred to a decision of this Court in Gluhic v ProkGroup Limited [2002] WADC 110. In that case, a Registrar declined to grant a stay of common law proceedings pending a favourable determination for the worker pursuant to s93E of the Act. The review hearing in respect of the degree of disability had been adjourned sine die, because the employer had filed a writ of certiorari in the Supreme Court seeking to strike out the worker's application for a determination of degree of disability. On appeal from the Registrar, his Honour Judge Williams granted a stay on the basis of the great uncertainty with respect to the worker's position. The pending prerogative writ proceedings, and the adjournment of the review proceedings appear to have been highly significant in influencing his Honour to grant the stay in this case. 46 I have also been referred to Adams v The Roman Catholic Archbishop of Perth[2002] WADC 28,a decision of his Honour Judge Nisbet of this Court. In that case, the plaintiff alleged she had been injured in 1994. She commenced proceedings almost six years later, in February 2000. It was common ground that the plaintiff had failed to notify the defendant of any event which had given rise to her injury, and that she had failed to make a claim of compensation from her employer.
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The main point around which this case turned was an argument put on behalf of the plaintiff that s93B of the Act did not apply to her because of the words “is payable” in s93B(1) of the Act. This issue does not arise here. 47 The court in that case granted a stay, because, like another case also decided by this court in Mokta v Metro Meats International Limited, (unreported and unpublished; DCt of WA (HH Jackson DCJ) CIV 16/2000; 27 June 2001) "the action may be one in which the plaintiff could never be awarded damages…" (at 4). 48 This could only mean that in the particular circumstances of that case, including the lack of notice to the employer and the lengthy period of time between the alleged injury and the issuing of proceedings, that the plaintiff's chances of achieving a favourable outcome were so slim that to allow her to continue in the absence of a favourable determination would constitute a waste of the court's resources. 49 In Gardner Merchant (Australia) Pty Ltd v Herft [2001] WADC 136, Commissioner Greaves of the District Court considered a similar application. In that case, the preliminary review of the worker's degree of disability had been adjourned sine die in May 2000, 12 months prior to the hearing before the learned Commissioner. It appeared that no progress had been achieved in those proceedings since. It was argued that to permit the worker to pursue common law proceedings in the District Court was an abuse of process, because she might never be awarded damages. The learned Commissioner held that there was no evidence that the worker had proceeded other than in accordance with the Act or that her pursuit of common law damages was an abuse of process. No stay was therefore granted. 50 The decisions discussed above underline the highly discretionary nature of the power to grant a stay and the necessity of carefully examining the facts of each case. 51 It is said by the appellant that to permit the proceedings to continue, is to compromise the integrity of the court's processes because the sole relief claimed cannot be awarded. This argument is initially quite an attractive one. However, it should be remembered that the appellant does not seek a stay pending the issue of a proper Form 22 notice. It seeks a stay pending a determination of the respondent's degree of disability. In this, the appellant has somewhat over-reached itself, by seeking a remedy, which goes so much further than the defect it seeks to have remedied.
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52 The other issue this argument raises is a more fundamental one. If the appellant is right in saying that no proceedings ought to continue because the relief sought in the writ could not presently be awarded, then all proceedings for personal injury against employers in the District Court would similarly be caught, until such time as a favourable determination pursuant to s 93E(3)(a) was made, or an election made under s 93E(3)(b). To be consistent, the court would need to grant stays in all such actions pending a favourable determination, because the relief sought (that is, damages) could not be awarded until a favourable determination is made. This is clearly not what Parliament intended. As is observed in Thomas v Arimco and Hunt v Multiplex, the legislature has deliberately permitted proceedings to be issued prior to the occurrence of a determination or election pursuant to s 93E(3). The Act is in effect statutory permission for the very state of affairs that the appellant claims justifies a stay of proceedings.
The respondent's chances of success in obtaining a favourable determination 53 The appellant argues that the chances of the respondent obtaining a favourable determination as to his degree of disability are slight, and that this in itself warrants a stay of the District Court proceedings. The logic of this argument is that it would be a waste of the court's resources, and the parties' resources to permit the common law proceedings to continue, when the action must ultimately come to nothing. 54 I have before me a wealth of medical reports by the competing experts in this matter, as annexures to the respective solicitor's affidavits. I am informed by counsel that these reports are only some of those prepared about the respondent's disability. 55 The respondent has undergone an exhaustive investigation of his mental and cognitive functioning since April 1999, generating literally dozens of reports. There is a stark clash of opinions between the experts retained by the parties in this matter. Those retained by the respondent have reported that as a consequence of the accident Mr Belcher suffers from brain damage, epilepsy and serious memory loss which has had a grave impact upon his daily life, his ability to earn an income and his cognitive functioning. On the other hand, a number of experts retained by the appellant have reported that if Mr Belcher ever suffered an injury, he has well and truly recovered from it and his current symptoms are nothing more than malingering.
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56 These are matters which are not capable of being resolved on an interlocutory basis in this Court. If they come before this Court, they could only be determined by a close examination of the various practitioners' instructions, expertise and opinions, probably after the taking of oral evidence. Presently they fall within the province of the review officer who will no doubt consider the material carefully and form an opinion concerning the degree of expertise of the authors and the reliability of their respective opinions in coming to his or her decision. I do not consider it would be helpful or proper for me to comment about these matters, prior to the review officer assessing the respondent's degree of disability.
57 The appellant also says that it has surveillance video evidence, which has yet to be disclosed. I have not seen it, and place no weight on intimations by the appellant's counsel from the bar table that it contains material damaging to the respondent. 58 Having considered the medical reports made available to me, I do not agree that they disclose that the respondent's chances of success are minimal, or that he probably will fail. The extent of his loss and injury is obviously highly controversial and these matters will need to be fully ventilated before the review officer. 59 I can imagine a case in which the medical reports were so overwhelmingly against a party claiming relief that this might be a relevant circumstance influencing the grant of a stay of proceedings pending a determination of degree of disability. However, this is not such a case.
Conclusions 60 I have decided to refuse the appellant's request for a stay of these proceedings. In doing so, I have closely considered the appellant's arguments in support of a stay, and find them unconvincing. I have also taken into account the fact that the respondent appears to be actively pursuing his application for determination of his degree of disability. I have also given weight to the fact that the respondent's weekly payments have now been exhausted, making his quest for damages in the District Court more urgent than it may otherwise be. I have considered the appellant's argument that the cost of proceedings may ultimately be thrown away, if no favourable determination is reached. However, I consider in a case such as this, the costs remedy available through the court would be adequate compensation.
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61 The question of the validity of the Form 22 notice may be determined elsewhere. If it is determined against the plaintiff, I have no doubt that he will have the matter rectified promptly. I do not see that there is any reason at this stage why the proceedings in the court should be delayed.
62 The appeal is dismissed. 63 I will hear counsel on the question of costs.
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