Beryl Clare Cornish v Stephen Lieschke, Associated Metropolitan Security Pty Ltd (* "in Liquidation* "), Andy Saunders and Workers Rehabilitation and Compensation Corporation No. SCGRG 94/553 Judgment No. 4662
[1994] SASC 4662
•14 July 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J
CWDS
Administrative law - judicial review - Workers Compensation Act, 1986 - claim by worker for compensation for work related stress and anxiety rejected - application for review - Review Officer adjourning application when informed of prosecution of worker in Magistrates Court for alleged breaches of s.l20 of the Act arising out of her claim for compensation - whether Review Officer bound by decision in Atkins v The Minister of Community Welfare and Crowe 142 LSJS 254 to grant an adjournment notwithstanding opposition by worker - error of law on face of record - orders in the nature of certiorari and mandamus granted. Jefferson Ltd v Bhetcha (1979) 2 All ER 1108, applied.
HRNG ADELAIDE, 4 July 1994 #DATE 14:7:1994
Counsel for plaintiff: Mr C J Kourakis
Solicitors for plaintiff: Elston and Gilchrist
Counsel for defendants Lieschke
and Saunders Ms S Bolzon
Solicitors for defendants Lieschke
and Saunders Michell Sillar Lynch
and Meyer
Counsel for defendant Workers
Rehab and Comp Corp Mr P J Rice
Solicitors for defendant Workers
Rehab and Comp Corp Stratford and Co
Defendant AMS (in liq): No appearance
ORDER
Plaintiff entitled to the orders sought in paragraphs 1 and 2 of the Summons.
JUDGE1 MATHESON J On 28 April, 1993 the plaintiff, Beryl Clare Cornish, lodged with her employer, the second defendant, Associated Metropolitan Security Pty Ltd., a claim form headed "Notice of Disability" in which she alleged that she suffered from "work related stress and anxiety", that the injury occurred between 1 April and 27 April 1993, and that she stopped work on 27 April, 1993. Attached to the Notice of Disability was a medical certificate from a Dr C L Roesler in which he stated that the plaintiff's "work related stress and anxiety" was caused by "constant verbal abuse by boss - and unrealistic expectations over a period and unfair treatment". On an interim basis, the plaintiff received payments of income maintenance from the fourth defendant, Workers Rehabilitation and Compensation Corporation, amounting to $374.35 per week up to and including 4 August, 1993.
2. By letter dated 11 August, 1993 the fourth defendant rejected her claim. The letter read:
"Dear Madam RE: EMPLOYER: ASSOCIATED METROPOLITAN
SECURITY PTY LTD CLAIM NO: 06986522/01
Your claim for 'stress and anxiety' which was allegedly
sustained on 27/04/93 has been rejected. Section
30(2)(b) states:
'A disability arises from employment if -
in the case of a disability that is a secondary
disability or disease -
(i) the disability arises out of employment or
(ii) the disability arises in the course of employment
and the employment contributed to the disability.'
In the statement of David Cornish (the plaintiff's
husband) it is stated: 'I believe that Beryl's stress
claim could have been avoided if Ray Russell had given
due consideration to Beryl's and my proposal regarding
running the business, and if Ray had appropriately
acknowledged the fact that she had not resigned.'
In the statement given by yourself, you state: 'I do
believe that my claim to WorkCover could have been
avoided had Ray Russel(sic) acknowledged the fact that I
did not resign.' Evidence provided by your employer, and
corroborated by an independent witness clearly indicates
that you did, by your actions, resign your employment
with Associated Metropolitan Security on 27 April 1993.
Consequently actions taken after this date by your
employer can not be considered to arise out of or in the
course of your employment. Section 30(2a) states:
'A disability that consists of an illness or disorder of
the mind caused by stress is compensable if and only if
- (a) stress arising out of employment was a substantial
cause of the disability; and
- (b) the stress did not arise wholly or predominantly
from -
(iii) reasonable administrative action taken in a
reasonable manner by the employer in connection with
the worker's employment.'
Based on the previously quoted statement of David
Cornish, administrative action taken by your employer
was predominantly responsible for your alleged stress.
Since the Corporation has established that these actions
of the employer were undertaken in a reasonable manner,
your claim is rejected. Should you be dissatisfied with
this decision, you are encouraged to contact the Case
Manager, Lana on (08) 233 2170 to discuss your
objections. The Case Manager may then reconsider the
determination if appropriate. If no resolution is
possible, you may apply for a review of the decision.
To apply, a completed Application for Review form must
be lodged with the Workers Compensation Review Panel
within one month from receipt of this letter. Further
information about the review process is attached.
Yours faithfully,
(Signed) Forge Mercuri Manager Injury Management"
3. On 7 September, 1993, the plaintiff filed an Application for Review pursuant to the provisions of s.95 of the Worker's Rehabilitation and Compensation Act 1986 ("the Act"), and gave as her reasons for disagreeing with the decision to reject her claim the following:
"1. The determination dated the 11th August, 1993 is
incorrect as a matter of law.
2. The applicant has not resigned her employment and at
all material times has been ready, willing and able to
take up employment commensurate with her disabilities.
3. The injury arises out of the course of her
employment.
4. The applicant's employment was a substantial cause
of her disabilities.
5. The action of the employer was not undertaken in a
reasonable manner."
4. On 9 September, 1993 Messrs. Elston and Gilchrist, solicitors for the plaintiff, wrote the following letter to the fourth defendant:
"We advise that we act on instructions from the
abovenamed in relation to her WorkCover claim. We have
filed an Application for Review challenging your
determination rejecting our client's claim for stress
and anxiety. We advise that our client strongly
challenges your determination which on our reading makes
no sense. Is it being alleged that our client resigned
her employment and therefore has no entitlement to
compensation? Is it being alleged that our client's
injury did not arise out of her employment? Is it being
alleged that our client's injury did arise out of her
employment but that the administrative action taken by
her employer was reasonable administrative action? We
have filed an Application for Review challenging your
determination. We have taken detailed instructions from
our client and it is apparent to us that the action of
the employer was in no way reasonable and that our
client has sustained a stress related condition arising
from her employment. We invite you to reconsider your
determination. We look forward to hearing from you."
5. On 6 October, 1993 the fourth defendant responded as follows:
"We acknowledge receipt of your letter dated 9th
September 1993 in relation to the above worker. The
Corporation is legislatively unable to re-determine a
claim once a determination has been made. As you have
indicated that an application for Review has been lodged
this will be the correct form to provide any evidence in
your possession which may contradict the determination
of the Corporation before a Review Officer. The
Corporation determination has been based on conclusions
derived from an investigation into the circumstances
which gave rise to the worker's stress condition, which
she alleges work having been the causal factor.
1. In regard to her alleged resignation it would
appear(s) from those interviewed in the workplace and by
the actions of the worker and her husband that it was
the intention of the worker not to return to her place
of employment.
2. The Corporation is of the belief that the worker's
condition was predominantly brought about by personal
factors and not substantially caused by her employment."
6. The Application for Review first came before the first defendant on 2 November, 1993, and he listed it for full hearing on 22 and 22 February, 1994. However, it was called on for mention on 15 February, 1994. On that date the first defendant declined to take the Application out of the list at the request of the fourth defendant. On 17 February, 1994 a complaint by the WorkCover Fraud Manager was laid in the Magistrates Court at Port Adelaide alleging that the plaintiff:
"... on or about 27th day of April 1993 at Woodville in
the said State (South Australia) (1) Dishonestly claimed
to be entitled to a payment or other benefit under the
Worker's Rehabilitation and Compensation Act 1986, as
amended, contrary to Section 120(1)(b) of the said Act.
Particulars: The Defendant presented a dishonest claim
to the Worker's Rehabilitation and Compensation
Corporation by means of a claim form and medical
certificate served upon her employer, Associated
Metropolitan Security Pty Ltd on the above date,
claiming that she suffered work related stress whereby
she was incapacitated for work when she was not
suffering from the said stress.
(2) On or about the 27th day of April, 1993 at Fulham
Gardens in the said State dishonestly made a Statement
in relation to a claim under the Workers Rehabilitation
and Compensation Act, 1986, as amended, knowing the said
Statement to be false contrary to Section 120(1)(c) of
the said Act."
7. On 18 February, 1994, the Application for Review was called on again before the first defendant, and at the of the fourth defendant, it was adjourned to a date to be fixed.
8. The plaintiff now applies to this court for the following orders by way of judicial review pursuant to Rule 98.01 of the Supreme Court Rules 1987:
"1. An order in the nature of Certiorari quashing the
order of the first defendant made on the 18th of
February, 1994 whereby he ordered that the Application
for Review filed by the plaintiff and numbered
06986522/01/02 dated the 7th of September, 1993 ('the
review') be adjourned to a date to be fixed upon the
application of either party.
2. An order in the nature of Mandamus directing that
the first defendant or such other Review Officer of the
Workers Compensation Review Panel as may be appointed
by the third defendant hear the review as a matter of
urgency.
3. A declaration that the plaintiff, if she so wished,
was entitled to have the review proceed to a hearing and
determination despite a complaint having been laid in
the Magistrates Court at Port Adelaide alleging that the
plaintiff had committed offences contrary to Section 120
of the Workers Rehabilitation and Compensation Act
1986."
9. In her affidavit in support of those orders, the plaintiff inter alia deposed:
"4. My application for compensation was rejected by the
WorkCover Corporation by letter dated 11th August, 1993
and I received no further payments of income maintenance
thereafter.
5. After the WorkCover Corporation stopped making the
payments of income maintenance I registered with the
Department of Social Security through the Department of
Family and Community Services on Port Road.
Consequently I commenced receiving sickness benefits at
a rate of $477.28 per fortnight.
6. On the 27th of April, 1993 my husband resigned his
employment with Associated Metropolitan Security Pty.
Ltd To the date of swearing this Affidavit my husband
has not received, to my knowledge, any wage or income
nor has he received any Social Security payments.
7. The refusal of the WorkCover Corporation to accept
my claim for workers compensation has caused great
financial hardship to my family. I currently receive
$477.28 per fortnight. I have fortnightly expenses of
rent ($320.00) and Electricity Trust of South Australia
($100.00). In addition to these two expenses I have the
normal household bills to attend to. My eldest son,
Richard Jones, pays some of the household bills and pays
for the household food. My younger son, Aaron Jones, is
receiving Austudy payments of $80.00 per week. I owe my
dentist $500.00. I have been unable to keep up payments
for private health cover and thus I will be responsible
for orthopaedic treatment costing $l,600.00 for my son
Aaron. An instalment of $600.00 is now due. I have
received an assessment from the Australian Taxation
Office whereby my husband and I have to pay $600.00 in
tax for the 1992/1993 financial year. I am finding it
extremely difficult to meet the financial commitments
of my family whilst receiving sickness benefits.
8. I instructed my solicitor to file an Application to
Review the decision to reject my claim for compensation
('the Application for Review').
9. On the 18th of February, 1994 I attended the offices
of my solicitors, Elston and Gilchrist, and there spoke
to a solicitor Mr Geoff Black. I was shown a
complaint which alleged that I had made a false claim to
the WorkCover Corporation and had made a false statement
to Dr Roesler in support of that claim.
10. Mr Black explained to me:
10.1 The nature of the charges and that they were laid
by Trent Anthony Fuller ('the complainant') for and on
behalf of the WorkCover Corporation.
10.2 The procedure involved in those charges being heard
in the Magistrates Court.
10.3 The penalties that could be imposed upon me if I
were convicted of those offences.
10.4 The likely time frame for the hearing of those
charges.
10.5 The advantages and disadvantages in having the
Application for Review held in abeyance pending the
finalisation of the prosecution.
Having received that advice I instructed my solicitors
that I wished to have the Application for Review proceed
to hearing on Monday the 21st of February, 1994. I
wished to have the Application for Review finalised as
the lack of certainty with respect to my workers
compensation claim was causing me financial hardship in
addition to creating ongoing anxiety and stress for
which I was being treated by Dr Roesler."
10. It is necessary to quote from the transcript of the hearing before the first defendant on 18 February. In the course thereof, the first defendant said (addressing Mr Luke who appeared for the fourth defendant):
"... the possible prejudice is if there are subsequent
criminal proceedings and your witnesses have been
cross-examined here - that in the subsequent criminal
proceedings the worker can then seek to alter her story
or change her evidence in some way that appears to be
consistent with what she has given here but seems to be
more plausible with respect to criminal proceedings.
Now, that I see as a possible prejudice that your case
could suffer here ..."
"I think your strongest argument in Atkins (he was
referring to the case of Atkins v Minister of
Community Welfare and Environment (1988) 142 LSJS 254) -
apart from what I said identifying that prejudice, which
I think is of concern - the potential prejudice of
having your witnesses cross-examined here and then later
the worker having the benefit of that - at page 3 at the
end of the third paragraph where he says, 'Indeed it is
difficult to see how any long-term settlement of the
children's future in that case can be arrived at till
the outcome of the criminal proceedings is known,' and
see that's the same problem here that your client faces.
Even if I proceed it's not going to make any difference.
It's going to be academic in a sense until the criminal
proceedings are finalised because any decision I make is
not going to be acted upon until the criminal
proceedings are finalised ... In my decision I will
adjourn the trial, the hearing of this matter, based
upon - although with some disquiet as to the procedures
adopted by the corporation, but I think I am bound by
what the Chief Justice said in Atkins, especially with
respect to his statement that possible prejudice is to
be taken into account and I can identify some, although
for that to occur the worker would have to embark upon a
concerted course of lying, and also the fact - taking
into account what the Chief Justice says that no
long-term settlement of this issue between Miss Cornish
and WorkCover will occur until the outcome of the
criminal proceedings is known, so it is something that
has to be disposed of in any event before any decision I
make can be operative - whatever that might be - so on
that basis I will adjourn this action to a date to be
set upon application from the parties - either party."
11. Mr Kourakis pointed out that the Act contains no express power of adjournment (cf. Supreme Court Acts.45, District Court Acts.22 and Magistrates Court Acts.17), but conceded, I think correctly, that such a power was implicit. He reminded me of the policy of the Act of ensuring that claims of disabled workers for what the Act calls income maintenance were decided expeditiously, and where decisions were reviewed, that the reviews be conducted expeditiously. In support of that submission, he referred me to the following provisions of the Act:
" s.53(4) The Corporation shall determine claims for
compensation as expeditiously as reasonably practicable
and where the claim is for compensation by way of income
maintenance shall, wherever practicable, endeavour to
determine the claim within 10 business days after the
date of receipt of the claim.
(4a) ...
(5) As soon as practicable after determining a claim for
compensation the Corporation shall give notice in
writing of the determination -
(a) to the claimant; and
(b) to any employer who may be directly affected.
...
s.95.(1) A person who is directly affected by a
decision that is reviewable under subsection (2) may
apply for a review of the decision.
(2) The following decisions are reviewable -
(a) a decision made on a claim for compensation;
(b) a decision in relation to the nature of
rehabilitation services provided, or to be provided, for
a worker;
(c) a decision to vary, suspend or discontinue weekly
payments;
(d) a decision on an application by an employer under
section 36 to have weekly payments payable to a worker
employed by, or formerly employed by, that employer
reviewed;
(da) a decision by the Corporation to disallow a charge
for a service under section 32.
(3) ...
(4) An application for review must be in the prescribed
manner and form and must be made within one month after
the person applying for the review receives notice of
the decision to which the review relates unless the
Chief Review Officer, or another Review Officer
authorized by the Chief Review Officer for the purposes
of this provision, in his or her discretion, allows an
extension of the time for making the application.
(5) - (6) ...
(7) Where -
(a) the Corporation fails to resolve the questions in
issue by agreement;
or
(b) the questions in issue have not been resolved after
14 days from the date on which the application is first
received by the Corporation and the applicant requests
the reference of those questions to a Review Officer,
the application for review shall be referred to a Review
Officer. ...
96(1) Where an application for review is referred to a
Review Officer, the Review Officer shall conduct a
review of the decision to which the application relates.
(1a) ...
(2) On a review under this section, the Review Officer
shall make a fresh determination of the matters to which
the decision subject to review relates.
...
(4) Where the Review Officer arrives at a decision that
differs from the decision under review, the decision of
the Review Officer shall take effect in substitution for
that decision."
"88.(1) In proceedings under this Act, a review
authority -
(a) shall act according to equity, good conscience and
the substantial merits of the case without regard to
technicalities and legal forms;
and
(b) is not bound by any rules of evidence, but may
inform itself on any matter in such manner as it thinks
fit.
(2) - (3) ...
(4) A review authority must, in conducting its
proceedings under this Act, act as expeditiously as
possible."
12. The words "review authority" are defined in s.3 to include a Review Officer.
13. The first defendant, in adjourning the plaintiff's Application for Review, considered himself bound by the decision of the Full Court in Atkins v Minister of Community Welfare and Crowe (supra), but I agree with Mr Kourakis that that case is clearly distinguishable here. There the Minister of Community Welfare applied to the Children's Court for a declaration that three children of the plaintiff were "in need of care". Subsequently, the Children's Court placed the children under the guardianship of the Minister during the period of an adjournment without declaring that they were in need of care. The plaintiff was subsequently charged with incest and indecent assault in relation to two of the children. He then applied to Judge Crowe in the Children's Court for an adjournment of the proceedings until such time as the criminal proceedings had been dealt with. The application was refused. The plaintiff's summons for a judicial review was referred to the Full Court. In a judgment with which Jacobs and von Doussa JJ agreed, King CJ said:
"It is clear that a court hearing non-criminal
proceedings has a discretionary power to stay those
proceedings pending the determination of criminal
proceedings in respect of the same subject matter if it
appears to the court that to proceed with the
non-criminal proceedings might produce injustice in the
criminal proceedings, Jefferson Ltd v Bhetcha 1979 1
WLR 898 especially per Megaw LJ in 904-5; Re
Saltergate Insurance Co. Ltd (in liquidation) and
The Companies Act 4 ACLR 733; McMahon v Gould (1982) 7
ACLR 202 especially at 206. That discretion must be
exercised having regard to the circumstances of the
particular case. Circumstances vary and it is not
possible to draw up a list of factors which should
govern exclusively the exercise of the discretion. In
McMahon v Gould supra Wootten J indicated certain
factors which may be relevant but the list is by no
means exhaustive. I do not think that the right to
silence has much relevance in the present case. The
plaintiff is not bound to give evidence in the
Children's Court and if his evidence would disclose
guilt, he presumably would not do so. I do not think
that there is any real possibility of a miscarriage of
justice arising out of disclosure of the defence
enabling the fabrication of evidence by prosecution
witnesses. When interviewed by the police, the
plaintiff denied the allegations and put forward an
alibi with respect to one of them. He would be obliged
to give advance notice to the prosecution of any alibi.
Nevertheless, for reasons which I will state, I think
that there is a real risk of injustice involved in a
hearing of the Children's Court proceedings in advance
of the criminal proceedings. The children have been
interviewed by a medical practitioner from the Sexual
Assault Referral Centre and by a psychologist. They
have also given statements to the police. The
Children's Court is not bound by the rules of evidence
but may inform itself upon any matter relating to the
proceedings in such manner as the court thinks fit,
section 17 Children's Protection and Young Offenders Act
1979. We were told from the bar table that it is the
practice of the Children's Court in applications such as
that under consideration, to receive hearsay evidence as
to the children's allegations and not to insist upon the
children being called to give evidence. The statements,
as well as the particulars given by the Minister in
support of his application, indicate that the
allegations relate to periods during which the plaintiff
was taking access to the children. If he wished to
resist the Minister's application, he would be obliged
to give evidence without having heard the evidence of
the children, and being acquainted only with the rather
general allegations contained in the statements. The
breadth of the issue relating to the children's need of
care would justify cross-examination extending over the
whole area of his relations with the children. He might
be called upon to explain allegations and suggestions
supposedly emanating from the children which might never
in fact be proved by evidence from the children. An
innocent person in that situation might well compromise
his credit by groping about for explanations for
suggested incidents which might turn out to be
unfounded. I think that there is a real risk of
prejudice to the fairness of the plaintiff's trial in
such circumstances. There is an inherent incongruity in
holding two trials, one criminal and the other
non-criminal, of the same issue of a person's guilt or
innocence, Rochfort v John Fairfax and Sons Ltd 1972
1 NSWLR 16 per Sugarman ACJ at 21, and when one adds to
that the risk of injustice from the factors discussed
above, there were, as it seems to me, strong grounds for
the exercise of the discretion in favour of deferring
the proceedings in the Children's Court. The
countervailing considerations are not strong. There are
indications, it is true, in the Act itself of a
legislative policy that 'need of care' proceedings
should be disposed of without undue delay. There seems
to be little need for urgency, however, in the present
case. The children are under the guardianship fo the
Minister. There is no suggestion that they are other
than satisfactorily placed. The particulars supporting
the application make allegations of abuse against the
mother and the mother's present husband. They have not
appeared before this Court to press for an early
hearing. If it is safe and proper to do so, the
Minister is in a position to place the children in the
care of the mother pending the hearing of the
application. There could be no question, one would
think, of the plaintiff having access to the children
until the criminal proceedings have been disposed of.
Indeed it is difficult to see how any long term
settlement of the children's future can be arrived at
until the outcome of the criminal proceedings is known.
The statement of facts placed before the Court by the
parties states that 'the second defendant in refusing
the application for adjournment indicated that the
underlying policy of the Children's Protection Act,
having regard to the best interests of the children, was
the speedy resolution of issues and that the rights of
the applicant and the possible prejudices to the
plaintiff were secondary to these considerations'. We
do not have the record of the Children's Court before
us, but this agreed statement of the learned judge's
interpretation of the Act must be taken from the record
of the Children's Court. I think that it discloses an
error of law. There are indications in section 16 of
the Act of a legislative intention that applications
under Part III of the Act should not be adjourned
indefinitely but should be kept under constant review by
means of limited adjournments only. The Act is clearly
based upon the principle that the interests of the
children are paramount. I discern, however, nothing in
the Act which would justify the view that the Act
stipulates that possible prejudice to a fair trial of a
person charged with a criminal offence is to be regarded
as secondary to the speedy resolution of issues arising
under the Act. A speedy resolution may be more
important in some cases than in others and the degree of
prejudice of a fair trial of criminal of criminal
charges may be greater in some cases than in others.
The obligation of the Court is to balance these
considerations and to exercise the discretion
accordingly. I think that an a priori view that
prejudice to a fair trial is a consideration secondary
to speedy resolution of the Minister's application is
based upon a misunderstanding of the statutory
provisions. In my opinion, therefore, there is an error
of law appearing on the face of the record. I think
that, for the reasons given above, this Court's
discretion should be exercised in favour of granting
certiorari to quash the decision of the Children's Court
judge refusing the adjournment."
14. I was also referred to a passage in the judgment of Megaw LJ in Jefferson Ltd v Bhetcha (1979) 2 All ER 1108 at pp.1112-1113 (Brandon LJ agreeing):
"As I understand it, (Forbes J) based his decision on
the view that there is an established principle of law
that, if criminal proceedings are pending against a
defendant in respect of the same subject-matter, he, the
defendant, is entitled to be excused from taking in the
civil action any procedural step, which step would, in
the ordinary way, be necessary or desirable for him to
take in furtherance of his defence in the civil action,
if that step would, or might, have the result of
disclosing, in whole or in part, what his defence is, or
is likely to be, in the criminal proceedings. Counsel
for the defendant in this court submitted that that is
the general rule which ought to be followed. He did
not, as I understand it, submit that it was an
invariable or inflexible rule which would deprive the
court of any discretion if the matters which I have
mentioned were established. With the view, if it were
put forward, that this is an established principle of
law, I would respectfully but firmly disagree. There is
no such principle of law."
15. I agree with Mr Kourakis that the first defendant's ruling that the fourth defendant could be prejudiced if an adjournment was not granted was erroneous. If the Application for Review proceeded first the plaintiff would have to give evidence first, and be cross-examined without knowing the case for the complainant in relation to the alleged breaches of s.120 of the Act. She would then be bound in a very real sense by what she said. It would only be after her evidence and the evidence of any witness called on her behalf on the Application for Review that the complainant's case would be disclosed. It must be remembered that the plaintiff, in opposing the application for an adjournment, was prepared to forego the right to silence.
16. Mr Rice, counsel for the fourth defendant, agreed that if there was an error, there was "error on the face of the record". He did not dispute that the transcript of the hearing before the first defendant on 18 February, 1994 was "the record". As I understand his submission, he was disposed to concede that what the first defendant said was erroneous, but he submitted that his decision to grant the adjournment was nevertheless correct because a decision to hear the Application for Review first might prejudice the administration of justice. When he came to develop the submission, it became apparent that he was really arguing that the plaintiff herself might be prejudiced because of the presence in the Act of s.88(1) (supra). Because of that provision, he submitted that the plaintiff might be forced into answers on a review hearing which could then be used against her interests in the criminal proceedings. I am not at all persuaded that this submission is correct, but in any event it must be remembered that it was the plaintiff herself who opposed the application for an adjournment, and who wants the Application for Review to be heard first, and for good reason, namely, her obviously serious financial predicament. Mr Rice then reminded me, correctly, that the remedies sought are discretionary, and submitted that it was highly undesirable that two different tribunals should be considering the same subject matter at the same time or almost at the same time. He informed me that the Magistrates Court complaint was set for hearing in the Port Adelaide Magistrates Court on 15 August. If I grant the relief sought, it will be on the understanding that the Application for Review will proceed expeditiously in accordance with the Act. I would have thought that the outcome of that Review will determine whether or not the complaint proceeds in August. It may be adjourned, or even withdrawn. Mr Rice also submitted that if there were to be two court hearings, that could hardly be in the interests of the plaintiff if she was suffering from a stress condition. I reject this submission also. In so far as it was valid, which I doubt, the plaintiff herself has waived any benefit.
17. Counsel for the fourth defendant then submitted that the plaintiff was guilty of delay in making the application. Rule 98.06 of the Supreme Court Rules provides that "a summons for judicial review must be issued within six months from the date when grounds for the review first arose, and shall in all cases be made as promptly as possible".
18. The facts are as follows. On 3 March, 1994 the plaintiff's solicitors filed a Notice of Appeal from the fourth defendant's decision to the Workers Compensation Appeal Tribunal, together with an application and supporting affidavit seeking an order that the hearing of the appeal be expedited. The application was made returnable for 11 March, and came on for hearing before Stanley J on that day. It is agreed that his Honour expressed the following views:
"(a) he did not believe that the Workers Compensation
Appeal Tribunal could order a Review Officer to hear the
Application for Review;
(b) he suggested that one alternative would be for the
plaintiff to request that Review Officer Lieschke
reconsider his decision to adjourn the hearing of the
Application for Review;
(c) that it was, in his opinion, more appropriate that a
Writ of Mandamus be issued out of the Supreme Court
seeking the orders that the Application for Review
proceed;
(d) that a decision by a Review Officer to adjourn an
Application for Review may or may not be an appealable
decision under the Workers Rehabilitation and
Compensation Act 1986;
(e) that as regards the prosecution, the plaintiff had
not actually had her claim accepted by WorkCover and
thus should more appropriately be charged with
attempting to obtain by false pretences;
(f) that given the onus of proof in a prosecution, the
complainant (WorkCover) might wish to consider their
position as a stress claim was going to be considerably
aggravated by any delay in its determination and that
might significantly increase the potential liability to
pay income maintenance to the plaintiff;
(g) he suggested that WorkCover might like to consider
whether the prosecution was to continue."
19. The Application for Directions was adjourned to 31 March to enable both parties to consider their position, and when it then came on for hearing, both parties consented to the appeal being dismissed. The Inter Partes Summons seeking the relief now sought was filed in the Supreme Court on 14 April, 1994.
20. It seems to me that these facts only have to be stated to indicate that there has not been any delay by the plaintiff. If there has been any culpable delay, it has been in the laying of the complaint.
21. In my opinion, the plaintiff has demonstrated error law on the face of the record (see, for example, "Laws of Australia", vol.2, paras.104 and 108). He took into account what he wrongly considered was a risk of prejudice to the fourth defendant, and he wrongly considered the case of Atkins compelled him to adjourn the application. That case was clearly distinguishable and, in any event, there it was the person being prosecuted who wanted the adjournment.
22. For all these reasons, I think the plaintiff is entitled to the orders she seeks in paragraphs 1 and 2 of the Summons. As at present advised, I do not think there is any need for the declaration sought in paragraph 3, but I will hear the parties as to that.
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