Coles Group Ltd v Soldi

[2021] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

COLES GROUP LTD v SOLDI & ANOR

[2021] SASCFC 1

Judgment of The Full Court  (ex tempore)

(The Honourable Chief Justice Kourakis, the Honourable Justice Stanley and the Honourable Justice Doyle)

15 December 2020

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW

Appeal brought by Coles Group Ltd and the interested party, Return to Work Corporation of South Australia (RTWSA), against a decision of the Full Bench of the South Australian Employment Court.

The Full Bench was referred 5 questions of law by the presidential member of the Court concerning whether certain correspondence from Mr Soldi’s solicitor constituted an application for the purposes of reg. 23(2a)(b) of the Return to Work Regulations 2015 (SA).  An additional question (question 5) asked whether the medical report annexed to the referral was capable of supporting a finding that it was reasonable and appropriate for surgery to be undertaken in the future.  The appeal concerns the Full Bench’s answer to question 5 which had the effect of keeping Mr Soldi’s matter indefinitely adjourned.

Held per Kourakis CJ (Stanley and Doyle JJ concurring), allowing the appeal for the purposes of listing and hearing the matter for final determination:

1.      Careful attention should be given to the framing of questions of law for referral to an appellate tribunal.  Questions should generally be agreed on facts found by the trial court or formally agreed by the parties, which bind the parties.

2.      As a general rule, questions should not be referred by a trial court to an appellate tribunal unless it is likely that the answers will resolve the entire dispute, or a substantial element of it.

3.      It is the duty of the South Australian Employment Court to proceed as expeditiously as possible, to hear and determine any application brought before it.  Courts should proceed in the ordinary way to hear and determine disputes brought before them, unless it is impracticable to do so.

4.      Question 5, as it was framed, would not have finally determined the dispute.  The Full Bench erred in failing to make an order directing that Mr Soldi’s application for review proceed to a hearing and determination in the ordinary way.

5.      Appeal allowed for the limited purpose of making an order that the respondent’s application for review of the RTWSA’s decision be listed for hearing and determination.

Return to Work Act 2014 (SA) s 33; Return to Work Regulations 2015 (SA) reg 23(2a)(b); South Australian Employment Tribunal Act 2014 (SA) s 8(c), 22(3); Workers Rehabilitation and Compensation Act 1986 (SA) , referred to.

Soldi v Wesfarmers Ltd and Return to Work SA (No 2) [2020] SAET 90; Soldi v Wesfarmers Ltd and Return to Work SA [2019] SAET 241, discussed.

WorkCover Corporation (SA) v Broken Hill Pty Ltd (1999) SASR 393; Roberts v Bass (2002) 212 CLR 1, considered.

COLES GROUP LTD v SOLDI & ANOR
[2021] SASCFC 1

Full Court:      Kourakis CJ, Stanley and Doyle JJ

1. THE COURT (ex tempore):       This is an appeal brought by Coles Group Ltd (Coles) and the interested party, Return to Work Corporation of South Australia (the Return to Work Corporation), against a decision of the Full Bench of the South Australian Employment Court (the Full Bench).  Coles’ complaint is that the Full Bench failed to make an ancillary order dismissing the respondent Mr Soldi’s review of a decision of the Return to Work Corporation after answering certain questions of law which had been referred to it by a presidential member of the Court.

2. The respondent, Mr Soldi, sustained a workplace injury to his back in the course of his employment with Coles in August 2009.  He was incapacitated from time to time from the occurrence of the injury through to 2011.

3. On 30 June 2015, the Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act) was repealed by the Return to Work Act 2014 (SA) (the RTW Act), which abrogated the entitlement of workers injured before its commencement to indefinite ongoing compensation for surgery related medical expenses from 1 July 2016. Transitional provisions were made by reg 23 of the Return to Work Regulations 2015 (SA) (the RTW Regulations).  Sub‑paragraph (b) of reg 23(2a) provided for an entitlement to medical expenses after that date if the Return to Work Corporation accepted an application, made before 1 July 2016, that it is reasonable and appropriate for such surgery to be undertaken at a later time due to the impact (or likely impact) of the existing injury on the worker's health and capacity (or future health and capacity).

4. The questions referred to the Full Bench concerned whether certain correspondence from Mr Soldi’s solicitor in May and June 2016 constituted such an application.[1]  The Full Bench held that they did.[2]  An additional question (question 5) asked whether the medical report of Dr Munyard annexed to the referral, in the context of certain other evidence, was capable of supporting a finding that it was reasonable and appropriate for the surgery to be undertaken in the future.

   [1]     Soldi v Wesfarmers Ltd and Return to Work SA [2019] SAET 241 at [23].

   [2]     Soldi v Wesfarmers Ltd and Return to Work SA [2019] SAET 241 at [81].

5. The Full Bench appears to have understood question 5 to be whether the evidence set out in the referral was sufficient to establish a right to an extension of time under reg 23 of the RTW Regulations.  The Full Bench concluded that ‘without more’ the application for a waiver of the time limitation that would otherwise apply had not been made out on the evidence referred to in the stated case.[3]  It is clear from the prefatory words ‘without more’ that the Full Bench did not intend its answer to be dispositive of the application for review of the employer’s decision not to accept the application for deferral.  Plainly enough, that was an unsatisfactory result.  The decision of the Full Bench was, in effect, little more than an advice on evidence for the benefit of Mr Soldi’s solicitor.

   [3]     Soldi v Wesfarmers Ltd and Return to Work SA [2019] SAET 241 at [82].

6. It is appropriate, therefore, to repeat the cautionary admonition which has been given, by this and other courts, many times.[4]  Careful attention should be given to the framing of questions of law for referral to an appellate tribunal.  For reasons which the Full Bench’s decision exposes, questions should generally be agreed on facts found by the trial court or formally agreed by the parties, and which, therefore, bind the parties.

   [4]     See, e.g. WorkCover Corporation (SA) v Broken Hill Pty Ltd (1999) SASR 393 at 405 (Bleby J).

7. It is difficult to see any utility in referring question 5 as it was formulated.  Even an answer favourable to Mr Soldi would not have finally determined the dispute.  The controversy would still have proceeded to trial for the employer to make its response and, possibly, have Dr Munyard’s opinion rejected.  The question was limited, on its terms, to whether the material set out in the agreed facts amounted to a case to answer.  However, as a matter of practicality, if this matter had proceeded to hearing, an elaboration of the skeleton evidence accompanying the questions reserved would undoubtedly have been given by the medical practitioners on closer questioning.  It was inappropriate to refer question 5, on the limited evidence provided to the Full Bench, in this particular case. 

8. As a general rule, questions should not be referred by a trial court to an appellate tribunal unless it is likely that the answers will resolve the entire dispute, or a substantial element of it.  Unless that is so, the more expeditious course is to proceed to a hearing so that any question of law can be decided on the facts as found.

9. Section 22(3) of the South Australian Employment Tribunal Act 2014 (SA) provides that, in addition to answering the questions of law referred, the Full Bench may decide any other questions remaining between the parties and make such orders that are necessary to dispose of the matter. The Full Bench invited submissions on the consequential orders it should make. Coles submitted that the application for review of the employer's decision should be forthwith dismissed because of the answer given to question 5. The Full Bench declined to make that order, explaining that its answer was not intended to be a final determination of Mr Soldi's application.[5]

   [5]     Soldi v Wesfarmers Ltd and Return to Work SA (No 2) [2020] SAET 90 at [28] – [35].

10. Unfortunately, paragraphs 33 and 34 of the Full Bench’s reasons might be understood to suggest that the South Australian Employment Court need not hear and determine an application for review of a decision of the Return to Work Corporation, refusing an application for deferral of surgery, until such time as the worker proposes to proceed with the surgery.  So understood, the suggested practice would indefinitely adjourn applications for review of that kind, if not place them in an inactive list.  That would be an unusual course to take.  It is the duty of the South Australian Employment Court to proceed, as expeditiously as is practicable, to hear and determine any application brought before it, unless the application is an abuse of process.[6]  It is not for any court to decide for the parties whether a controversy is best left undecided.  As a general rule, hearings should not be adjourned unless there is a good procedural reason, connected with the hearing and determination of the matter, to do so.  Courts should proceed in the ordinary way to hear and determine disputes brought before them, unless it is impracticable to do so.

    [6]     See, eg Roberts v Bass (2002) 212 CLR 1 at [158] (Kirby J).

11. For the above reasons, we hold that the Full Bench erred in failing to make an order directing that Mr Soldi’s application for review proceed to a hearing and determination in the ordinary way. The appeal is allowed for the purpose of making an order, pursuant to s 22(3) of the RTW Act, that Mr Soldi's application for review of the Return to Work Corporation's decision be listed for hearing and determination.