Derwent Court Nursing Home v Free

[1991] TASSC 147

Serial No B33/1991
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Derwent Court Nursing Home v Free [1991] TASSC 147; B33/1991

PARTIES:  DERWENT COURT NURSING HOME
  (IN THE MATTER OF)
  v
  FREE, Patricia

FILE NO/S:  M103/1991
DELIVERED ON:  18 June 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  B33/1991
Number of paragraphs:  10

Serial No B33/1991
List "B"
File No M103/1991

IN THE MATTER OF DERWENT COURT
NURSING HOME and PATRICIA FREE

REASONS FOR JUDGMENT  ZEEMAN J

(GIVEN ORALLY)  18 June 991

1. I have before me a document which has been transmitted to this court by the Registrar of the Workers' Compensation Division of the Court of Requests as being a case stated under s58 of the Workers Compensation Act 1988 by Mr Morgan, an acting commissioner appointed under s18 of the Act at the time that the relevant matter was first referred to him. The document is in the nature of the learned acting commissioner's reasons for having determined to state a case. I do not consider that it constitutes a case within the meaning of s59 at all, and I proceed to state my reasons for coming to that conclusion.

1. The requirements for a case stated are set forth in s58(2)(a). Amongst other things, the case is required to set forth the material facts found by the commissioner. The document purports to set forth as facts for the purposes of that provision, the following:

"That it is appropriate that all parties to this claim can be represented."

1. It might be questioned whether that states any fact at all, other than the acting commissioner's state of mind on irrelevant matter. The reference in s47(2) to "where that person is proposed for his approval" makes it plain that the discretion conferred by s47(1) is to be exercised by reference to a particular person, so that the learned acting commissioner was never called upon to consider whether representation in a general sense was appropriate, although such a consideration might have become relevant during the course of considering whether representation by a particular person should be approved.

1. The learned acting commissioner's reasons, and I refer to the document as reasons, because that is what they purport to be, suggest that the relevant facts included the following:

1That an employer, not identified in the document, sought to have reviewed under s88 the weekly payment made to a worker, who again was not identified in the document. I say that notwithstanding the reference to "the insurer" in the heading to the document.

2That the reference was referred to the learned acting commissioner pursuant to the provisions of the Act.

3That the employer sought to be heard by counsel and claimed that it was entitled to be so heard as a matter of right.

1. It might be thought that the question of law thereupon arising would be whether the employer had a right to be heard by counsel. A consideration of that question might be thought to require an examination of s47 of the Act with a view to determining whether the representation therein referred to is to be taken as including representation by counsel.

1. The document, in its terms, asks no questions. It is in these terms:

"The questions that I propose to ask the Supreme Court are these:

(1)Does the Commissioner have the right to refuse to permit a party to be legally represented, as of choice, once the Commissioner has approved of that person being represented in general.

(2)Where a person seeks to appear by Counsel, or any other person is that person permitted to produce evidence to satisfy the Commissioner that approval should be granted to that person being represented.

(3)In what circumstances may the Commissioner refuse to approve of a person being represented by a person of choice, other than where the provisions of Section 47(2) have not been met.

(4)Is the Commissioner empowered to require of a party to be represented by a person other than that of that party's choice and thereby cause that party to be represented other than by Counsel."

1. Having formulated those proposed questions, the learned acting commissioner said: "I will hear submissions on these questions". I am told that in fact he did not hear the parties further.

1. The document does not state any question of law on which the learned acting commissioner desires the opinion of the Supreme Court, but merely expresses an intention, subject to hearing submissions, of asking questions. Nothing further has occurred. The questions have not been asked. It is perhaps appropriate to observe that none of the proposed questions appear to arise on such facts as the reasons suggest might be found. Question 1 appears to be based upon an incorrect premise. The other questions are of a theoretical nature doing no more than asking questions which seek guidance on matters which might arise in the course of proceedings, but which do not appear to have arisen in the present proceedings.

1. There being no case stated, I do not consider that I can exercise any jurisdiction to send it back for amendment. Even if I were to be wrong about that, I would not send it back because the document is so defective. The need to properly state a case is obvious. Reference may be had to the judgment of Neasey J in the Full Court in Adlard v Williams No 25/1978.

1. I direct that the purported case be returned to the learned acting commissioner with a copy of these reasons. It appears as though he has continuing jurisdiction in the subject reference by virtue of s18(4), and in any event I am told by counsel that he is again exercising jurisdiction as an acting commissioner. Whether or not he chooses to exercise his jurisdiction, and if so, whether or not he chooses to state a fresh case, is a matter for him to determine.