Cavar v Workers Compensation Commission

[2019] NSWSC 1758

Supreme Court

New South Wales

Medium Neutral Citation:	Cavar v Workers Compensation Commission [2019] NSWSC 1758
Hearing dates:	5 December 2019
Date of orders:	05 December 2019
Decision date:	05 December 2019
Jurisdiction:	Common Law
Before:	Emmett AJA
Decision:	1. Leave to appeal be refused. 2. Amended summons filed on 26 July 2019 be dismissed. 3. Plaintiff pay costs of both defendants.
Catchwords:	APPEAL – Whether the Judicial Registrar of the District Court erred in dismissing the proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) – Whether the amended statement of claim discloses a cause of action against the named defendants.
Legislation Cited:	District Court Act 1973 (NSW) Freedom of Information Act 1989 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	Celia Celija Cavar (Plaintiff) Workers Compensation Commission (First Defendant) I Care Insurance & Care NSW (Second Defendant)
Representation:	Counsel: In person (Plaintiff) Ms S Ienna (Sol) (First Defendant) Mr T Grimes (Second Defendant)   Solicitors: In person (Plaintiff) Crown Solicitor’s Office (First Defendant) Stiles Lawyers Pty Ltd (Second Defendant)
File Number(s):	2019/89613
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: Nil Date of Decision: 15 February 2019 Before: Judicial Registrar Howard File Number(s): 2018/258301

EX TEMPORE Judgment

1. HIS HONOUR: The plaintiff, Ms Celia Cavar, has commenced proceedings in the Common Law Division by way of appeal from orders made by Judicial Registrar Howard in the District Court on 15 February 2019. The appeal has come before the Common Law Division, as opposed to the Court of Appeal, pursuant to ss 48 and 49 of the Supreme Court Act 1970 (NSW) (the Act). Under s 48(2)(f) of the Act, an appeal from a specified tribunal is assigned to the Court of Appeal. However, a Judicial Registrar of the District Court is not a “specified tribunal” and, accordingly, under s 49 of the Act, this appeal is not assigned to the Court of Appeal but to the Division.

2. There is some question as to the orders that were made, in that Ms Cavar has produced three communications from the District Court saying something different as to the result of the proceedings on 15 February 2019. Two communications dated 18 February 2019 indicate that the proceedings were dismissed under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and that the plaintiff was ordered to pay the defendant’s costs in the proceedings. One of those communications appears to be signed on behalf of the Judicial Registrar and the other is not. The third communication is dated 21 February 2019 and asserts that on 18 February 2019 an order was made in the terms “dismissal”.

3. It is clear enough from the reasons of Judicial Registrar Howard of 15 February 2019 that the orders made were those recorded in the two documents dated 18 February 2019. The orders were made by Judicial Registrar Howard under UCPR 13.4(1)(b), which relevantly provides that, if in any proceedings it appears to the court that, in relation to the proceedings generally or in relation to any claim for relief in the proceedings, no reasonable cause of action is disclosed, the court may order that the proceedings be dismissed generally or in relation to that claim.

4. The proceedings in question were commenced by statement of claim filed on 22 August 2018, in which Ms Cavar was named as the plaintiff. The defendant named in the statement of claim was, “Compensation Department of New South Wales - (Icare Department)”. There is no such entity.

5. On 20 September 2018, Ms Cavar filed a further document entitled “Amendment of Statement of Claim”. Following the filing of that document, the second defendant in the present proceedings, iCare Insurance & Care NSW (iCare), filed a notice of motion on 7 December 2018 seeking an order that the proceedings be struck out pursuant to UCPR r 13.4 or UCPR r 14.28. For reasons given ex tempore on 15 February 2019, after oral argument on that day, the Judicial Registrar made the orders that I have indicated. That is to say, he ordered that the proceedings be dismissed under UCPR r 13.4(1)(b).

6. By summons seeking leave to appeal filed on 18 March 2019 Ms Cavar sought leave to appeal from the orders made by the Judicial Registrar. On 26 July 2019, Ms Cavar filed an amended summons. The defendants named in the summons were the Workers Compensation Commission (the Commission) and iCare. Ms Cavar also sought an extension of time for commencing the proceedings because the summons was filed three days after the time fixed by the rules for appealing from a decision of the District Court had expired. Neither defendant in these proceedings has indicated any prejudice by reason of the short delay, although neither consented to an extension of time. Accordingly, at the commencement of the hearing today I made an order extending the time for the commencement of the proceedings.

7. Section 127 of the District Court Act1973 (NSW) relevantly provides that a party who is dissatisfied with the judgment or order of a Judicial Registrar in an action may appeal to the Supreme Court. However, under s 127(2), an appeal from an interlocutory judgment or order lies only by leave of the Supreme Court. The order made by the Judicial Registrar was clearly interlocutory, in that, putting aside any question of limitation, it would be open for Ms Cavar to commence fresh proceedings, if she were so advised. Hence it is necessary for Ms Cavar to obtain leave for this appeal to proceed. The matter has proceeded in effect on the basis that the application for leave and the appeal, assuming leave were to be granted, be heard concurrently.

8. It may be, and I express no view about it, that Ms Cavar has a genuine basis for complaint about the matters to which I shall refer shortly. The difficulty that both the Judicial Registrar had, and that I have, is understanding precisely what complaint is being made by Ms Cavar and against whom.

9. In her amended statement of claim of 20 September 2018, Ms Cavar claimed the following relief:

1.   Refund of amount of $398,624.20;

2.   Interest rate of 7.75% for post judgment for the above amount since 22 August 2012.

She stated in the amended statement of claim that the amount of her claim was, “$132.694.60, $132,695 - Lump sum and $132,694.60 in total of $398,624.20”. Thus it appears to be a claim three times for the sum of $132,695 rounded up.

10. The allegations made in the amended statement of claim are somewhat obscure. The full terms of the allegations are as follows:

“PLEADINGS AND PARTICULARS

1   The plaintiff is unincorporated individual and is capable of suing and be sued in its name and style.

2   The defendant is corporation as government agency and registered under Corporation Act 2001 with ABN, and is capable of sing and be sued in its corporate name and style.

3   Pursuant to Supreme Court Order of New South Wales 2012/108304 judgment against Centrelink is entered on 22 Aug 2012 and two claims have been made by unauthorised parties and their possession of original judgment for above matter.

4   ABOVE AMOUNT WAS PAID TO UNAUTHORISED PERSONS BY CENTRELINK-(COMPENSATION OF NSW - I CARE DEPARTMENT) OF NEW SOUTH WALES ON 22 AUG 2012, ON 20 SEPT 2012 AND 19 DEC 2012.

5   AMOUNT OF $132.694,60 AND AMOUNT OF LUMP SUM PAYMENT OF $132.695 HAS BEEN CLAIMED ON 22 AUG 2012 BY UNAUTHORISED PERSONS MENTIONED IN THE LETTER DATED 18 JAN 2017 AND AS MAJOR SUSPECTED PERSONS ARE :Mr LAZAR STOJKOVIC, WICKY-CLEANER IN CHILDREN'S HOSPITAL AT RANDWICK, Dr. ROGER TAYEH, MANDA GOMBOVIC AND MATIJA PEDISIC.

6   Most recent, new fact that Lazar Stojkovic has claimed one of above amount is my sister comment to me on 02 Aug 2018, who lives in Austria. I visited her and her comment to me was in effect: Celia I received the phone call from his wife with request cited: "I found your mobile number on my husband Lazar Stojkovic mobile just before I left to work, I came back home to check what my husband does. My sister's reply to her was in effect:" I do not know your husband and I never been in any relation with him, never. That conversation between plaintiff and her sister occurred on fact that plaintiff showed the statement of ANZ bank related to stolen bank card in 2012 in plaintiff’s absence (he was overseas).

7   Second fact is that Mr Lazar Stojkovic details of his super fund are sent on Plaintiff address and by that way plaintiff has detected most suspected illegal claimant and placement of plaintiffs legal claim in his super fund.

8   Both claims-LUMP SUM PAYMENT SETTLEMENT OF $132695 and claim of $132,694,60 pursuant to above court order which are claimed on 22 Aug 2012 without plaintiff’s presence and without his knowledge the plaintiff has discovered on 24 and 25 Oct 2016 at Social Security Maroubra. Until then all was hidden by staff Mark, Sonya, staff in Blacktown, in Canberra office and Compensation department.

9   The plaintiff has enforced the judgment entered just against Centrelink on 22 Aug 2012 FOR AMOUNT OF $132,694,60 CLAIMED on 19 SEP 2012, PAID ON 20 SEPT 2012 AND ILLEGALLY TAKEN AWAY BY ELISSA MORTON AND GEOFFREY CONNELLAN ON 19 DEC 2012, DURING 2013 AND IN 2014.

10   Since 20 Sept 2012 until 22 Jan 2014 the plaintiff could not get any details of that paid claim only claimed by plaintiff and only Shanti-officer in Maroubra sent details to Compensation department with request to respond to the plaintiff in regards to his claim of $132, 694,60 which has been claimed by GP Roger Tayeh confirmed by Shanti-staff officer.

11   From Compensation department Michelle responded to the plaintiff that full informations about claim the plaintiff can find in BLACKTOWN-HEAD OFFICE which plaintiff visited next day and was obstructed by 3 members of the staff.

12   Only one old lady in Blacktown Office called Compensation department and confirmed to the plaintiff and 3 staff members that claim has been paid without any further details.

13   ILLEGAL INVOLMENT AND FABRICATED FURHER PROCEEDING IN MATTER AT SUPREME COURT NUMBER 2012/108304 SINCE FINALISING THE MATTER ON 22 AUG 2012, BY COMCOVER INSURANCE AND PERSONS NAMED: ROBERT HIGGINS, JULLIE HIGGINS, and JASON NOAKES IN NORTON ROSE SYDNEY. FURTHER NORFOLK ILEND AGENCY AND HANNELORE SCHUSTER NOT IN ANY RELATION TO THE PLAINTIFF.

14   All details related to paragraph 13 are found in FOl decision LEX 6849 received by plaintiff on 18 Feb 2014 and further FOl decision 15/29 received on 01 May 2015.”

11. The allegations seem to be based upon proceedings 108304 of 2012 commenced in the Supreme Court in 2012 (the 2012 Proceedings). The amended statement of claim appears to allege that, in the 2012 Proceedings, a judgment against Centrelink was entered in her favour on 22 August 2012 but that, although a judgment was entered, she has never been paid the amount of any judgment.

12. The pleadings in the 2012 Proceedings are not in evidence and it is by no means clear what relief was sought. JusticeLink records indicate that the defendants were Dr Roger Tayeh and Centrelink Canberra. By a notice of motion filed on 6 August 2012, returnable on 22 August 2012, Ms Cavar sought judgment “in the statement of claim filed on 5/4/2012 an amount of $132,694.60”. The defendant named in the notice of motion was “Centrelink Canberra Office Maroubra NSW 2035”. Extracts of the orders made in the 2012 Proceedings taken from JusticeLink show that, on 22 August 2012, a direction was given that the 2012 Proceedings be listed for directions on 7 September 2012. A direction was given that any motion seeking to strike out the statement of claim and affidavit material in support be filed and served on 24 August 2012, such motion to be made returnable on 7 September 2012. Directions were given for Ms Cavar to file and serve any affidavit evidence or documents in reply by 4 September 2012. On 7 September 2012 the proceedings were stood over to 17 September 2012, when they were referred to the Duty Judge. On that day a motion was fixed for hearing on 5 October 2012 and Ms Cavar was directed to file and serve any affidavit evidence or medical material by 26 September 2012. It appears that that hearing was vacated and ultimately the matter was listed on 13 December 2012. On that day, the court noted that Ms Cavar had discontinued the proceedings as against Dr Tayeh. The proceedings were stood over to 24 January 2013. Leave was given to file and serve a notice of motion for dismissal of the proceedings, together with any affidavit evidence on which Centrelink sought to rely. On 24 January 2013 the 2012 Proceedings were dismissed as against Centrelink under UCPR r 13.6.

13. Thus it is clear that no judgment was ever entered in the 2012 Proceedings in favour of Ms Cavar. However, she tendered other material suggesting that there was a settlement of some kind recorded in the records of Centrelink. A series of documents that clearly emanate from Centrelink, and which Ms Cavar said from the bar table she obtained pursuant to an application under the Freedom of Information Act 1989 (Cth), refer to a settlement in relation to an incident on 12 January 2012. The documents in question clearly refer to Ms Cavar, to a settlement date of 22 August 2012 and to a settlement amount of $132,694.60.

14. Another document tendered by Ms Cavar is a claim form addressed to Centrelink entitled “Compensation and damages” “Mod C”, which purports to be on behalf of Ms Cavar and is dated 19 September 2012. It bears a signature purporting to be her signature and refers to the date of an injury or illness as being 12 January 2012. No further particulars are stated in relation to the injury. Another document produced by Centrelink refers to the receipt of that document on 19 September 2012.

15. Ms Cavar’s complaint appears to be that, although the records of Centrelink indicate that a settlement in the amount that I have mentioned was paid in respect of an injury, she has never received it. It is not entirely clear whether she says that she is entitled to be paid that sum or simply that the records wrongly show that she has been paid the sum. At one stage in the course of her oral address she said that what she wanted was for the record to be cleared so that there was no suggestion in the material that she had received that sum. On the other hand, that is inconsistent with the claims made in the proceedings brought in the District Court that are the subject of this appeal, namely a claim for a judgment against a New South Wales instrumentality.

16. Both the Commission and iCare filed appearances in these proceedings on 5 April 2019. On the same day, each filed a notice of motion seeking summary dismissal of the proceedings. The motions came before Harrison J on 24 April 2019, when his Honour gave orders adjourning the notices of motion for hearing before the Duty Judge on 28 June 2019. His Honour observed that the pleading that was the subject of consideration by Judicial Registrar Howard was difficult to understand and not easily summarised. On 24 June 2019, Ms Cavar had filed a notice of motion seeking summary judgment in the sum of $132,694.60 “pursuant to Settlement Out of Court”. She also sought interest.

17. The three motions came before Walton J on 28 June 2019. For reasons published ex tempore on that day after oral argument, Walton J ordered that Ms Cavar’s notice of motion be dismissed. However, his Honour was troubled that Ms Cavar may have a potential argument arising out of the proceedings before Judicial Registrar Howard by virtue of the circumstances in which the proceedings were brought before the Registrar. His Honour said that an issue or issues of law may arise either with respect to the exercise of the power by the Judicial Registrar or a question of procedural fairness and considered the appropriate order was to refuse the applications for summary dismissal but to strike out the summons. His Honour granted leave to Ms Cavar to file an amended summons which she did on 26 July 2019. The grounds stated in the amended summons run to some four or five pages and are difficult to comprehend. They assert various errors of law on the part of Judicial Registrar Howard.

18. In his reasons, the Judicial Registrar began by observing that Ms Cavar had made serious attempts to obtain legal representation but had not been able to do so. The Judicial Registrar observed that the court was left in a position where Ms Cavar was not going to be represented and that it was difficult to accept a proper application to adjourn once more to enable her to obtain representation.

19. The Judicial Registrar was confident that there were serious problems with both the statement of claim and the amended statement of claim. He said that the fundamental problem with the amended statement of claim was that Ms Cavar had purported to sue two New South Wales instrumentalities, although she referred to them by a name that does not exist. The Judicial Registrar then observed that the core of Ms Cavar’s claim was the allegation that in the 2012 Proceedings judgment had been entered for Ms Cavar against Centrelink in the sum of $132,694.60. The Judicial Registrar noted that there was no record of any judgment in relation to the 2012 Proceedings.

20. The Judicial Registrar was prepared to accept that Ms Cavar had a multitude of complaints involving an allegation of a judgment supposedly entered in her favour and an allegation that the judgment was paid by Centrelink to persons not authorised to receive it. However, the Judicial Registrar said, none of the allegations culminated in a recognisable claim in the amended statement of claim.

21. The Judicial Registrar said that he had been adjourning the matter to enable Ms Cavar to have some assistance in addressing those concerns and referred to an application by Ms Cavar to have two or three weeks’ adjournment. The Judicial Registrar concluded that it was not suitable that the matter be kept alive simply for Ms Cavar to obtain advice and an amended statement of claim which, the Judicial Registrar observed, had to change fundamentally in some way or another. The Judicial Registrar said that the statement of claim had to be refashioned as a debt claim or as a negligence claim identifying a correct defendant. He concluded that the better course for the parties and to save difficulty was to dismiss the proceedings so as to allow Ms Cavar to obtain representation and advice on how to prepare the claim and then bring the claim again in a more suitable format. For those reasons the Judicial Registrar ordered the proceedings be dismissed under UCPR r 13.4(1)(b).

22. On 18 September 2019, Ms Cavar filed an outline of submissions in support of the appeal that runs to some nine pages. However, the submissions do not appear to address any error in the decision of Judicial Registrar Howard. In essence, the Judicial Registrar’s decision that was that the amended statement of claim simply does not disclose a cause of action against the defendant named in the proceedings. Assuming the Commission and iCare were substituted for the defendant named in the amended statement of claim, the position would be the same. There is no allegation made in the amended statement of claim that supports any basis upon which either the Commission or iCare might be held to be liable to Ms Cavar in respect of the sum to which I have referred.

23. Whether there was a settlement involving Centrelink is unclear. The evidence to which I have referred suggests that there may well have been. Whether that amount was paid to someone other than Ms Cavar is certainly a real possibility having regard to the vehemence of the assertions made by Ms Cavar that she has never received that sum. If she is entitled to it she may well have a good claim against Centrelink on the basis that the conduct of some persons resulted in a payment by Centrelink to the wrong person. In her amended statement of claim Ms Cavar names various people who, she says, may have had an involvement in the wrongful payment of the sum in question. Be that as it may, there is simply nothing to link either the Commission or iCare to the 2012 Proceedings or to the settlement referred to in the material produced by Centrelink.

11. It is quite clear that the amended statement of claim discloses no cause of action against either the Commission or iCare, assuming that they are the defendants who should have been named in the amended statement of claim. On that basis, I do not consider that there was any error at all on the part of the Judicial Registrar in ordering that the proceedings be dismissed. There was no suggestion that there ought to have been a grant of leave to replead a second time. That may have been appropriate if a limitation question has arisen. It appears that the District Court proceedings were not commenced until 22 August 2018, which is the sixth anniversary of the alleged settlement in 2012. Even so, if six years is the appropriate limitation period that period appears, to have expired one day before.

12. In any event, as I have said, the present defendants do not appear to be involved in the claim in any way. It follows, in my view, that the Judicial Registrar made no error at all in concluding that the amended statement of claim disclosed no cause of action against the defendant named and, as I have said, even if the defendants in the present proceedings had been named in the District Court proceedings it is clear the statement of claim discloses no cause of action against either of them. In my view the appeal has no prospects of success. In those circumstances I would refuse leave to appeal and dismiss the amended summons. The plaintiff should pay the costs of both defendants.

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Decision last updated: 10 December 2019