Elekwachi v Russell & Ors Elekwachi v Fender & Ors No. Scgrg-97-1084, Scgrg-97-1209 Judgment No. S6558

[1998] SASC 6558

ELEKWACHI v RUSSELL & ORS

ELEKWACHI v FENDER & ORS

Williams J

In these actions the plaintiff complains about the handling of two claims which he has made against Workcover pursuant to s53 of the Workers Rehabilitation & Compensation Act 1986. He now seeks judicial review of steps which have been taken or which may be taken relating to the determination of his claims. In Elekwachi v Russell & Ors (the Russell Matter) the plaintiff is seeking an order to require Review Officer Russell to determine his claim in accordance with s97 of the Act. In Elekwachi v Fender & Ors (the Fender Matter) the plaintiff is seeking orders which will require Review Officer Palmer to review a claim and which will exclude Review Officers Fender and Player-Brown from this process.

1. The Background Circumstances

The plaintiff was employed by Workcover within its own office structure.  He appeared in person in these proceedings but he is no ordinary litigant as he displayed some depth of knowledge of the Act.  He displayed skill in argument in the presentation of his case before me.  The defendants appeared by counsel who acknowledged their special responsibility to assist me in circumstances where the plaintiff was appearing in person.  The plaintiff’s case has been exhaustively explored.

The plaintiff is a Nigerian by origin; he says that during his employment with Workcover he was subjected in his workplace to considerable racial and other harassment.  In essence he maintains that he was the target of an undisciplined workplace atmosphere in which other staff members participated in conduct calculated to make him feel uncomfortable by reason of his racial origins.  The plaintiff says that his co-workers engaged in a course of conduct of an insulting nature within the office.  Upon the plaintiff’s case he was made the butt of office jokes.  The plaintiff complains of intolerable workplace conditions.  In particular he complains of the conduct of a senior manager (whom I will refer to by that title).  Mr Elekwachi alleges that the conduct directed against him in his workplace (at the Workcover offices) was such as to cause him distress which brought on (amongst other things) a stomach ulcer.  He asserts that as a result he suffered a compensable disability under the Act.

Mr Elekwachi has lodged two claims for compensation respectively dated 5 July 1994 and 15 July 1996.  He is dissatisfied with the determinations made by FAI on behalf of Workcover with respect to these claims.

The Workcover Corporation Act 1994 (SA) authorises the Corporation to make management arrangements with other bodies and allows the Corporation to delegate its functions to determine claims (see s14(3)(4) and s17).  In the exercise of these powers Workcover Corporation, in this instance, has delegated its functions as now relevant to FAI Workers Compensation (SA) Pty Ltd and by reason of this delegation that company has been joined as a defendant in each action together with Workcover Corporation itself.

The Russell Matter has been instituted with respect to matters arising out of the claim dated 15 July 1996;  Review Officer Russell is a defendant in that action.  The Fender Matter has been instituted with respect to matters arising out of the claim dated 5 July 1994; Review Officer Fender and Review Officer Player-Brown have been joined as defendants to that action and the Review Panel (by that name) has also been sued.

The two actions arise out of the same series of incidents alleged to constitute harassment but the claims are independent of each other.  The two actions have only been referred to me together for hearing as a matter of convenience.  Counsel drew attention to the fact that the Workcover legislation changed on 27 July 1996 and this fact should be brought to account when reading these reasons.

2.  Procedural and Evidentiary Matters

The two matters came before a Master in the course of the pre-trial procedures.  On 9 December 1997 a Master made an order which resulted in each matter coming before me ; the order was in the following terms:

"....In light of the fact that the plaintiff is unrepresented and is clearly genuinely concerned about the alleged treatment he has been given, treatment which he believes has been unlawful and/or unfair.  I believe I should not prevent him from airing all of his complaints before the review judge.  Whilst I suspect that the only real avenue of review is the mandamus question, nevertheless because of the plaintiff’s position I think the review judge will be able to separate the wheat from the chaff without my intervention by way of granting the stays sought.  It may mean some extra time and effort but the plaintiff should, in my opinion, be heard in respect of all his complaints.  I think it is common ground that things have gone awry.  What has gone awry and whether it can be remedied should be generally ventilated."

Extensive material was filed by the plaintiff in each action and there were numerous claims for relief.  Some of the claims were obviously absurd but with some other claims the position was not so clear.

The matter came before me on 21 January 1998 and the hearing occupied three days.

In the light of the Master’s order as abovementioned I took steps to identify issues which appeared to be arguable and I then sought also to identify the particular evidence which might support such arguments.  With considerable assistance from the parties I caused a statement of issues to be prepared together with an accompanying outline of evidence.  I treated the whole of the contents of each file as being before me and that material is available to underpin in detail the outline of evidence and statement of issues which I have settled.

Having separated "the wheat from the chaff" (to use the language of the Master’s orders to describe this preliminary task) I then made an order that the issues so arising in each action be tried before me forthwith. 

The preliminary process which I have described occupied approximately one and a half days of hearing time.  For the most part I relied upon the plaintiff’s own affidavits as the source of the factual material.  In a few instances I relied upon material in affidavits filed on behalf of the defendants (material which was undisputed by the plaintiff).  There is very little room for difference between the parties as to the essential facts.  However, there was a hearing before Review Officer Russell on 10 December 1997 and I took particular note of the terms of a diary note made by FAI as to what transpired on that day.  I drew an inference from the terms of the diary note contrary to the interests of FAI and I made a finding in the following terms:

"A further hearing took place on 10 December 1996 at which time FAI was directed to make a determination by 31 January 1997 and Review Officer Russell then intimated that if FAI failed to comply with this direction it could be anticipated that she would proceed to decide the matter herself."

This finding upheld the contention of the plaintiff and is relevant to Action No.1084/97.  A statement in terms of this finding is included in the outline of evidence relating to that action.

In the Fender Matter, Ms Pangiotidis of Counsel for the Review Officers, the Tribunal and the Review Panel sought to tender an affidavit by Review Officer Palmer in which he disclosed his own particular friendship with the Senior Manager of Workcover whom I have already mentioned.  The plaintiff having made it known that he wished Mr Palmer to undertake a statutory review of his claim in the Fender Matter, the affidavit was directed towards demonstrating that this course would be inappropriate.  I refused the plaintiff’s application to cross-examine Mr Palmer for reasons which I have set out below.  Having heard extensive argument concerning the affidavit I reached the conclusion that an enquiry into the matters raised by Mr Palmer could not affect my decision.  (The plaintiff considered that by reason of my ruling with regard to the affidavit I was prejudging his case.  I rejected his application to disqualify myself from proceeding with the hearing.)

A copy of the statement of issues and the summary of the supporting evidence has been settled and placed with the file.  Except as abovementioned there is no contest between the parties as to the facts.  However the parties were unable to agree a statement of issues.  In these circumstances (and bearing in mind that the plaintiff was acting for himself) it was necessary for me to take responsibility for stating the issues as I saw them.  I have had full argument as to the issues and my statement of issues is a considered one. 

The plaintiff wishes to dispute my identification of issues, but I have declined to facilitate an appeal against my decision in this behalf whilst I am continuing to deal with the matter.

Apart from the issues raised in the statement of issues as abovementioned, I can otherwise find nothing in the case for the plaintiff in either action which deserves the attention of the Court.  I will therefore put in place a general stay of the proceedings subject to the disposal of the issues which I have tried.  The defendant will be at liberty to apply for the dismissal of the "residue" of the actions (as I will call it) and the plaintiff will be at liberty to apply to have the stay lifted.  With the benefit of hindsight I do not consider that the plaintiff should have obtained leave to proceed, except with respect to these specific issues which I have identified.  I am reluctant to dismiss this residue without giving the plaintiff a further opportunity to be heard after he has considered my present reasons.

1. The Issues Arising in the Russell Matter

The plaintiff made an application for compensation on 15 July 1996 and in accordance with Pt6B of the Workers Rehabilitation and Compensation Act 1986 made application on 6 August 1996 for an expedited hearing. The application came before Conciliation and Arbitration Officer Russell (sometimes called Review Officer Russell) on 12 September 1996 who allowed further time for FAI to investigate the claim. A further hearing before Review Officer Russell took place on 10 December 1996 at which time FAI was directed to make a determination by 31 January 1997. At this time Review Officer Russell intimated that if FAI failed to comply with this direction it could be anticipated that she would proceed to decide the matter herself.

On 22 January, 1997 the plaintiff’s representative wrote to the Review Officer requesting that she determine the matter if FAI failed to determine the matter by 31st January, 1997.

The plaintiff received written advice dated 3rd February 1997 of FAI’s claimed determination rejecting his claim.

Review Officer Russell advised the plaintiff by letter dated 5th February 1997 that she would not take any further action on the application because FAI had made a determination.

The plaintiff’s representative wrote to the Review Officer on 6th February 1997 urging that she determine the claim.  The Review Officer declined to do so, and gave reasons by letter dated 7th February 1997.

The plaintiff appealed the decision of the Review Officer not to determine the claim to the Workers Compensation Tribunal  The appeal was dismissed on 17th July 1997 by Deputy President Gilchrist.

It should be noted that FAI was required by the direction of the defendant Russell to deal with the claim by Friday 31 January 1997. Instead, FAI dealt with the matter on the next business day - being Monday 3 February 1997. The plaintiff now asserts that as FAI failed to comply strictly with the time limit set by the Review Officer’s order that FAI thereupon lost its right to make a determination of the claim. The plaintiff further asserts that the defendant Russell, having embarked upon the process set out in Pt6B, should be required to complete the hearing by determining the claim herself. The plaintiff contends that Russell should determine the matter based on the material available to her as at 31 January 1997. Apparently, the plaintiff anticipates that the determination which he might reasonably expect by reference to this limited material, would put him in a position of particular advantage when pursuing his claim through the succeeding steps in the dispute resolution process.

The following issues arise for my determination:

1. In the factual circumstances described herein was Review Officer Russell under a duty pursuant to section 97 of the Workers Rehabilitation and Compensation Act 1986 (as amended) to determine the application for compensation made by the plaintiff on 15th July, 1996?

1. Did Review Officer Russell wrongly define the limits of her jurisdiction by holding that she had no power to redetermine the plaintiff’s claim after the determination made by the compensating authority?

1. If the Review Officer was under such a duty should an order in the nature of mandamus compelling performance of the duty now be made?

In my opinion, each of the three questions which I have mentioned should be answered in the negative.  I consider that the plaintiff’s claim in this respect fails.

Although FAI was in default under the order of Review Officer Russell for one business day - ie from Friday 31 January 1997 until Monday 3 February 1997 the maxim de minimis non curat lex might be applied to this situation. Bearing in mind the purposes of Pt6B of the Act - to expedite a hearing - any further exercise of power by Review Officer Russell would have been unreasonable. In this sense her exercise of power was overtaken by events when FAI rectified its default so shortly after the requisite date.

I have been unable upon the evidence to identify a foundation for the plaintiff’s expectation that Review Officer Russell (if she had chosen to embark upon a hearing herself as at 1 February 1997) would have necessarily limited herself to the material as the plaintiff would have wished.  Mr Elekwachi has apparently hoped to bring about a situation in which FAI (by reason of its default) would be denied the right to present a case in opposition to the material upon which he relies.  I only mention these matters in order to provide some appreciation of the plaintiff’s reasons for bringing this action.

Mr Elekwachi is seeking a declaration that FAI’s determination of 3 February 1997 is of no effect and he is seeking a further order in the nature of mandamus to require the defendant Russell to continue hearing his matter by way of review.

In my opinion the plaintiff fails to establish that FAI’s determination lacks legal efficacy. Bearing in mind the purposes of Pt6B I would in any event refuse relief in the light of the action taken by FAI to rectify its own default.

The purpose of Pt6B appears to be to "expedite decisions". FAI eventually made a decision (albeit late by one working day).

Issues Arising in the Fender Matter

The plaintiff made a claim for compensation on 5 July 1994 and this claim was rejected by FAI (standing in the shoes of Workcover) on 23 November 1994.  The plaintiff then lodged an application for a review of that decision.  Review Officer Palmer conducted certain short hearings on 13 April 1995, 11 May 1995 and 21 May 1995.

Review Officer Fender commenced her conduct of the review on 24 August 1995.  Evidence was called and submissions were made on 24 August 1995, 25 August 1995, 19 June 1996, 12 November 1996, 18 November 1996 and 19 November 1996.

The hearing was never completed because of the resignation of Review Officer Fender.

Review Officer Mostowyj has now been appointed to conduct a review de novo.

Review Officer Palmer considers that he is disqualified from hearing the matter by reason of apprehension of bias.  After conducting the last of the abovementioned short hearings Palmer advised the Chief Review Officer to assign the matter to another Review Officer due to a possible perception that he was not impartial in relation to the plaintiff’s position.

The plaintiff’s claim for compensation was referred to Review Officer Player-Brown for conciliation pursuant to a Practice Direction dated 27 November 1996.

Review Officer Player-Brown declined to conciliate the matter.

Although Review Officer Palmer has not been joined as a party to the proceedings the plaintiff is seeking an order which will require Mr Palmer to proceed with a review.  In view of my conclusion I have not required Mr Palmer to be joined as a party by name though I note that the review panel has been included as a defendant and no point has been raised by the defendants in this behalf.

The essence of the plaintiff’s claim is that he asserts that Review Officer Fender is biased against him and should be prohibited from continuing proceedings.  Mr Elekwachi apparently has confidence in Review Officer Palmer.

The following questions now arise for determination - on the proper construction of ss93 and 96 of the Workers Rehabilitation and Compensation Act 1986 and in the factual circumstances which I have described.

"(a)    Was Review Officer Palmer required to hear and finally determine the plaintiff’s application for review by reason of his conduct of the short hearings dealing with preliminary matters?

(b)     Did Review Officer Palmer embark upon a review of the decision which was the subject matter of the plaintiff’s application and if so was he required to complete the review?

(c)     If Review Officer Palmer was required by law to conduct the review should an order in the nature of mandamus now be made to compel Palmer to conduct the review?

(d)     Did Review Officer Player Brown undertake any statutory function and if so should an order in the nature of mandamus now be made to compel her to complete the function."

In my opinion each of these questions should be answered in the negative.

Ms Fender has ceased her engagement as a Review Officer and it is not suggested by any party that she should be required to proceed with the task which is the subject of these proceedings.  The defendants FAI and Workcover Corporation have proffered an undertaking by counsel that they will not rely upon anything done in the proceedings by Review Officer Fender as being a bar to further proceedings upon the plaintiff’s review application.  The review may therefore proceed afresh before another review officer without regard to anything which has transpired before Review Officer Fender and without regard to any decision which she may have made.  The plaintiff expresses his dissatisfaction with the proposed undertaking and seeks an order of the court by way of judicial review against Ms Fender.  I cannot see any need for such an order at this stage.  It seems to me that the plaintiff is simply seeking to "score a point" against Workcover and its delegate.

The plaintiff wishes Review Officer Palmer now to be responsible for the review.  Mr Palmer was involved in the preliminary hearings but he has not been involved since May 1995.  I consider that the time for any argument that Mr Palmer should be regarded as seized of the matter has long since past.  The plaintiff (until he lost confidence in Review Officer Fender) was content for Ms Fender to proceed with her evaluation.  In these circumstances I do not consider that the plaintiff has any foundation for an argument requiring Mr Palmer to proceed.  He has distanced himself from the matter and the plaintiff raised no objection within a reasonable time after Ms Fender replaced him in the review.

There is a further obstacle standing in the plaintiff’s path.  Mr Palmer has sworn an affidavit (to which I have already referred) disclosing a close personal relationship with Workcover’s senior manager abovementioned.  The Senior Manager is the person who is alleged by the plaintiff to have been involved in the process of harassment which he has put forward as a cause of the plaintiff’s alleged stress and associated disability.  It would be inappropriate in the exercise of a discretion to make an order in the circumstances so as to impose an obligation upon Mr Palmer to be further involved.  The plaintiff takes issue with Mr Palmer’s affidavit, and, in argument has attacked Mr Palmer’s bona fides.  If the plaintiff were justified in that assertion, then that fact in itself would demonstrate that the Court should not foist the matter on Mr Palmer as Review Officer.  Whilst I have recorded the essence of the plaintiff’s assertion I should make it clear that my judgment should not be treated as reflecting in any way upon Mr Palmer’s bona fides; his evidence remains untested.  I have already observed that I decline the plaintiff’s application to cross-examine Review Officer Palmer as it appeared to me that the outcome would not advance the plaintiff’s case.  On any view of the facts there is good reason why Mr Palmer should not be further involved.

I have been concerned to ensure that a review officer is available to discharge the review responsibilities.  Counsel assures me that Review Officer Mostowyj is available to conduct the review.  Nevertheless the plaintiff wants Review Officer Palmer to undertake this task.  I decline to make the order sought.

Review Officer Player-Brown attempted to conciliate this matter after an incident during the course of the hearing before Review Officer Fender.  It was not suggested during the course of argument that conciliation should be pursued except upon on a voluntary basis.  The involvement of Review Officer Player-Brown will not have any effect on the review proceedings.  It is unnecessary for any order to be made with respect to Review Officer Player-Brown.  It appears that the plaintiff only wishes to clear off the involvement of Review Officer Player-Brown as one step in his attempt to resuscitate the hearing before Review Officer Palmer.

Conclusion

Upon the issues which I have tried I determine that the claims of the plaintiff fail.

That determination does not entirely dispose of these actions but that which remains in each case (which I have already referred to as the residue) does not deserve the attention of the court.  Apart from the points which I have now decided I have been unable to find anything further which should be treated as "arguable".  For the time being further proceedings with respect to the residue in each matter should be stayed and the parties will have liberty

(a)     to apply to dismiss any claim concerning the residue or

(b)     to remove the stay.

Whilst this form of order will preserve for the time being an opportunity for the plaintiff to formulate some further issue if he can, nothing in my reasons should encourage the plaintiff to the view that he has any prospect of being able to identify a further issue.

The orders will be:

1. That the claims of the plaintiff for relief with respect to the issues tried before me be dismissed.

1. That in all other respects the proceedings in each action be stayed with liberty to the parties to apply to dismiss the actions or to remove the stay.

I will hear the parties as to questions of costs.

APPENDIX 1 - RUSSELL

A      Statement of Issues as Identified and Settled by Trial Judge

1. In the factual circumstances described herein was Review Officer Russell under a duty pursuant to section 97 of the Workers Rehabilitation and Compensation Act 1986 (as amended) to determine the application for compensation made by the plaintiff on 15 July 1996?

1. Did Review Officer Russell wrongly define the limits of her jurisdiction by holding that she had no power to redetermine the plaintiff’s claim after the determination made by the compensating authority?

1. If the Review Officer was under such a duty should an order in the nature of mandamus compelling performance of the duty now be made?

B      Summary of Facts Giving Rise to the Above Issues

1. The plaintiff made an application for compensation under the Act on 15 July 1996.

1. The plaintiff applied for an expedited determination of the claim on 6 August 1996.

1. A hearing of the application took place on 12 September 1996 before Arbitration Office Russell.  FAI was allowed further time to investigate.

1. A further hearing took place on 10 December 1997 at which time FAI was directed to make a determination by 31 January 1997 and Review Officer Russell then intimated that if FAI failed to comply with this direction it could be anticipated that she would proceed to decide the matter herself.

1. On 22 January 1997 the plaintiff’s representative wrote to the Review Officer requesting that she determine the matter if FAI failed to determine the matter by 31 January 1997.

1. The plaintiff received written advice dated 3 February 1997 of FAI’s claimed determination rejecting his claim.

1. Review Officer Russell advised the plaintiff by letter dated 5 February 1997 that she would not take any further action on the application because FAI had made a determination.

1. The plaintiff’s representative wrote to the Review Officer on 6 February 1997 urging that she determine the claim.  The Review Officer declined to do so and gave reasons by letter dated 7 February 1997.

1. The plaintiff appealed the decision of the Review Officer not to determine the claim to the Workers Compensation Tribunal.  The appeal was dismissed on 17 July 1997 by Deputy President Gilchrist.
    APPENDIX 2 - FENDER

A      Statement of Issues as Identified and Settled by Trial Judge

On a proper construction of sections 93 and 96 of the Workers Rehabilitation and Compensation Act 1986-1996 and in the factual circumstances described herein:

(a)     Was Review Officer Palmer required to hear and finally determine the plaintiff’s application for review by reason of his conduct of the short hearings dealing with preliminary matters?

(b)     Did Review Officer Palmer embark upon a review of the decision which was the subject matter of the plaintiff’s application and if so was he required to complete the review?

(c)     If Review Officer Palmer was required by law to conduct the review should an order in the nature of mandamus now be made to compel Palmer to conduct the review?

(d)     Did Review Officer Player Brown undertake any statutory function and if so should an order in the nature of mandamus now be made to compel her to complete the function.

B      Summary of Facts Giving Rise to the Above Issues

1. The plaintiff made a claim for compensation on 5 July 1994.

1. The plaintiff’s claim was rejected by Workcover on 23 November 1994.  The plaintiff lodged an application for review.

1. Review Officer Palmer conducted certain short hearings on 13 April 1995, 11 May 1995 and 21 May 1995.

1. Review Officer Fender commenced her conduct of the review on 24 August 1995.  Evidence was called and submissions were made on 24 August 1995, 25 August 1995, 19 June 1996, 12 November 1996, 18 November 1996 and 19 November 1996.

1. The hearing was never completed because of the resignation of Review Officer Fender.

1. Review Officer Mostowyj has now been appointed to conduct a review de novo.

1. Review Officer Palmer considers that he is disqualified from hearing the matter by reason of apprehension of bias.  (See par4 of Palmer’s affidavit).  After conducting the last short hearing Palmer advised the Chief Review Officer to assign the matter to another Review Officer due to possible perception that he was not impartial to adjudicate.

1. The plaintiff’s claim for compensation was referred to Review Officer Player-Brown for conciliation pursuant to a Practice direction dated 27 November 1996.

1. Review Officer Player Brown declined to conciliate the matter.