Brett Hocking v the Southern Greyhound Racing Club Incorporated and D.A. and C.M. Payne Kennels No. SCGRG 92/1000 Judgment No. 3890 Number of Pages 7 Practice

[1993] SASC 3890

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BURLEY J SUPREME COURT MASTER

CWDS
Practice - Intervention - statutory right to intervene - Workers Compensation and Rehabilitation Act - whether deferred "interest" for intervention established - right of recovery from plaintiff in common law action - intervention sought to ensure that plaintiff achieved maximum award - not an "interest" for the purposes of the section. Whether Court has discretion as to intevention - no discretion - if application comes within the relevant section an order for intention must be made. Workers compensation and Rehabilitation Act 1986 (SA) ss 54, 123c.

HRNG ADELAIDE, 24 March 1993 #DATE 19:4:1993
Counsel for the plaintiff:            Mr. Duddy
Solicitors for the plaintiff:         Elston and Gilchrist
Counsel for the defendant SCRC:     Mr. Lawson
Solicitors for the defendant SCRC:    Lawson Downs
Counsel for the third party:         Ms. Lincoln
Solicitors for the third party:     Ross and Mcarthy

ORDER
Application dismissed.

JUDGE1 BURLEY J In this matter the Workcover Corporation has applied pursuant to section 123a of the Workers Rehabilitation and Compensation Act (the Act) seeking leave to intervene in the within proceedings. The application is opposed by the 2nd defendant but not by the plaintiff. There were originally two defendants but the plaintiff has filed a notice of discontinuance in respect of the 1st defendant. For the sake of clarity I shall continue to refer to the remaining defendant as the 2nd defendant because it is necessary to refer to both of the original defendants in setting out the background to this application. 2. According to the plaintiff's statement of claim, the plaintiff was injured in the course of his employment on the 19th May 1989. At that time he was an employee of the 1st defendant working at a greyhound raceway owned or occupied by the 2nd defendant. When working on the track the plaintiff's right leg was struck by a lure which travelled along the inside rail of the track. 3. The application by the applicant is supported by the affidavit of Ms. Lincoln sworn on 5th March 1993. Certain payments have been made to the plaintiff by the applicant pursuant to the provisions of the Act. These include payments for medical expenses, hospital expenses, income maintenance and lump sum benefit. It is not disputed that these payments have been made in respect of the injuries sustained by the plaintiff on 19th May 1989. 4. It is not in dispute that under the provisions of section 54 of the Act the applicant is entitled to recover the amount of compensation both paid and payable to a worker by it under the Act in respect of a compensable disability when a right of action exists against a person other than the employer of the plaintiff in respect of damages for personal injury. A notice under section 54(7) of the Act has been served on the plaintiff's solicitors and the 2nd defendant's solicitors. The applicant says that in addition to the amounts already paid, additional amounts may have to be paid by it to the plaintiff under the provisions of the Act. 5. The first part of paragraph 10 of Ms. Lincoln's affidavit is as follows:- "The Workcover Corporation claims an interest in the subject matter in the proceedings in view of its notice of entitlement to recover." 6. Section 123a of the Act is as follows:-
    "123a The Corporation has a right to intervene and be
    heard in -
    (a) immaterial or
    (b) any proceedings before a Court -
    (i) in which the interpretation or application of this
    Act is in issue; or
    (ii) in which the Corporation's interest may be directly
or indirectly affected." 7. At the hearing of this matter Ms. Lincoln, counsel for the applicant, stated that the applicant relied upon sub-paragraph (ii) set out above. During the course of argument the question was raised as to whether or not the Court had a discretion to permit or deny intervention under the provisions of section 123a of the Act, or whether the Court was required to give leave to the applicant to intervene if it is satisfied that the Corporation's interests may be directly or indirectly affected by these proceedings. Having heard submissions from counsel I determined that, on the proper construction of the section, the application did not involve the exercise of a discretion on the part of the Court and that, if I were satisfied that the applicant came within the provisions of s.123a(b)(ii), I was obliged, by force of the section, to permit the applicant to intervene in the proceedings. The section confers "a right to intervene and be heard in" relevant proceedings. In my view, by the use of such wording, the legislature has conferred upon the Corporation a right which must be recognised and acted upon by the Courts if, in any such proceeding, the interpretation or application of the Act is in issue or the applicant's interests may be directly or indirectly affected thereby. It follows that, subject to a point raised by Mr. Lawson, counsel for the 2nd defendant, as to the prospective operation of section 123a of the Act, the only point to be determined on this application is whether or not the Corporation's interests may be directly or indirectly affected by these proceedings. 8. It is apparent from Ms. Lincoln's submissions that the applicant is concerned to participate and be heard in these proceedings because it wishes to protect its rights to recovery conferred by the provisions of section 54 of the Act. In protecting its rights, it wishes to make sure that the amount (if any) recovered by the plaintiff is sufficient to reimburse the applicant in respect of its entitlement under section 54 of the Act. The applicant argued that it comes within section 123a(b)(ii) because its interest in recovery under section 54 of the Act may be directly or indirectly affected in these proceedings. 9. It seems to me that the scope of the section, for the purposes of this application, is to be determined largely by reference to the meaning of "the Corporation's interest" referred to in s.123a(b)(ii). It has an interest, by virtue of the provisions of section 54 of the Act, in the recovery, to the extent referred to in section 54(7), of what it has paid out and will pay out to the plaintiff. That being the case, the interest of the applicant is not affected by these proceedings because it is readily apparent from the pleadings in this action that the Court is not called upon to adjudicate in any way as to the applicant's rights of recovery under section 54 of the Act. However, it is at least implicit in Ms. Lincoln's submissions, that the "interest" sought to be protected by intervention go beyond a mere right of recovery. The relevant interest, according to Ms. Lincoln, is an interest in ensuring that either the plaintiff does not settle the case for too little or that, if the matter comes to trial, the plaintiff vigorously pursues his case in order to obtain the maximum award. 10. I do not consider that section 123a of the Act contemplates intervention for such purposes. In my opinion, such a conclusion is required when section 54 is considered in conjunction with section 123a. The interest arising from rights of recovery under section 54 is conferred upon a "claimant" as defined in section 54(7)(c), whereas the right of intervention is limited to the applicant. Why should the legislature confer a right of intervention upon the applicant and not other claimants? The fact that the legislature has not done so leads me to believe that it was not intended that the interest that the applicant may have in ensuring that particular plaintiffs prosecute claims vigorously or that plaintiffs vigorously contest defences are interests in respect of which an applicant would have the right of intervention. Section 54 of the Act clearly contemplates that the "wrongdoer" may not be liable for, and the "injured party" may not recover, in common law proceedings, an amount which exceeds the total of the amounts paid or payable by the applicant. In that event the right of recovery is limited to the amount awarded in the relevant proceedings. The inclusion of such a provision within section 54 of the Act adds weight to the contention that the interest referred to in s.123a(b) (ii) is confined to an interest in enforcing a right of recovery. 11. I also consider that such an interpretation is warranted if the consequences of the interpretation contended for by the applicant are taken into account. If permitted to intervene, could the applicant take part in any negotiations for settlement? It presumably could for the purposes of offering advice and assistance but it could go no further. The concept of intervention clearly does not contemplate that the intervener could require the plaintiff and the defendant or either of them to settle in a particular matter. 12. Could the intervener participate in interlocutory processes by seeking leave to interrogate or by demanding further and better discovery? Could the intervener call witnesses at trial and introduce documentary evidence? Could the intervener at trial submit that the plaintiff's entitlement was greater than that contended for by the plaintiff? I refrain from providing an answer to these questions. They may or may not be matters for another day. However the raising of such questions, in my opinion, serves to reinforce the view that the extent of "the Corporation's interests" for the purposes of intervention should not be too widely construed. 13. In arriving at such a conclusion I do not mean to suggest that for all purposes the Corporation's interests referred to in s.123a(b)(ii) are confined to interests which might arise from the provisions of section 54. I merely put forward that where intervention is sought to protect rights under section 54(5) and (7), the interest does not extend to any desire that the applicant may have to ensure that a given plaintiff vigorously prosecutes his or her claim. 14. In light of the above reasoning I determine that the applicant does not come within the provisions of section 123a(b)(ii) and accordingly the application must be dismissed. It is therefore not necessary for me to consider the defendant's contention that section 123a can have no application to these proceedings because it came into operation after the date in which the plaintiff was injured. However in deference to the submissions put by counsel, I shall briefly deal with the point. 15. Mr. Lawson contended that section 123a of the Act was only prospective in its operation because it conferred a substantive right upon the applicant. Ms. Lincoln contended that the section had a retrospective effect because it was procedural in nature. In my view, section 123a of the Act does apply to these proceedings notwithstanding that it came into operation after the date of the injury. Whether or not the provision confers substantive rights or is procedural, its operation relates to proceedings and the course of such proceedings. Consequently once the section came into operation the applicant was and remains able to apply to intervene in respect of any current proceedings irrespective of when the injuries the subject of the proceedings were sustained. But even if I am wrong in that view, I consider that the section is procedural in nature and, on the authority of Van Vliet v. Griffiths (1979) 20 SASR 524, the section operates retrospectively.