Elias v Taxi Management Solutions Pty Ltd
[2021] NSWPIC 201
•23 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Elias v Taxi Management Solutions Pty Ltd [2021] NSWPIC 201 |
| APPLICANT: | George Elias |
| RESPONDENT: | Taxi Management Solutions Pty Ltd |
| SENIOR MEMBER: | Glenn Capel |
| DATE OF DECISION: | 23 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Third set of proceedings filed by the applicant; applicant’s counsel and solicitor withdraw from the proceedings; matter not ready to proceed to determination in absence of legal representation and further medical evidence; prior proceedings struck out and discontinued; application by respondent to have the matter struck out; Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited discussed; Held- proceedings dismissed for want of due despatch. |
| DETERMINATIONS MADE: | 1. The matter is not ready to proceed to a conciliation conference and arbitration hearing. |
| ORDERS MADE | 2. Proceedings dismissed for want of due dispatch. |
STATEMENT OF REASONS
BACKGROUND
George Elias (the applicant) is 59 years old and was employed by Taxi Management Solutions Pty Ltd (the respondent) as a taxi driver on 10 November 2017.
There is no dispute that the applicant sustained an injury to his back when he was involved in a motor vehicle accident during the course of his employment on 11 November 2017.
Liability was accepted by AAI Ltd t/as GIO (the insurer). Initially the insurer paid the applicant weekly compensation based on Pre-Injury Average Weekly Earnings (PIAWE) of $155 per week, but this figure was increased to $749.42 per week following a Merit Review by the SIRA Workers Compensation Merit Review Service on 3 May 2018.
Weekly compensation and medical expenses were paid from 11 November 2017 to
10 June 2019, when payments were suspended due to the applicant’s failure to attend a medical examination organised by the insurer. Payments were eventually reinstated as from 6 February 2020 and ceased on 18 February 2020.Of relevance to the current dispute, on 10 February 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), alleging that the applicant had recovered from the effects of his back injury and disputing that it was liable to pay weekly compensation and medical expenses. It cited
ss 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act).On 17 February 2020 and 31 July 2020, the insurer reviewed its decision and confirmed that it maintained its position in respect of the back injury, and in respect of injuries to his chest, arms, shoulders, and neck.
On 1 September 2020, the insurer issued a further notice pursuant to s 78 of the 1998 Act, disputing that the applicant had suffered an umbilical hernia injury on 11 November 2017 and that it was liable to pay weekly compensation and medical expenses. It cited ss 4, 9A, 33, 59 and 60 of the 1987 Act.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 29 March 2021, the applicant claims weekly compensation from 11 November 2017 to 8 May 2020 and medical expenses as a result of injuries sustained to his neck, shoulders, chest , ribs respiratory system, back, an umbilical hernia, and a secondary psychological condition on 11 November 2017.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for a telephone conference before me on 26 April 2021. Mr Li, solicitor, appeared on behalf of the applicant and Mr Russell, solicitor, appeared on behalf of the respondent.
There were some settlement discussions, but unfortunately the matter could not resolve. I expressed a preliminary view that the applicant’s expectations were somewhat excessive, given that compensation had been paid by the insurer for most of the period of the claim in accordance with the Merit Review findings.
Despite my concerns regarding the state of the applicant’s medical evidence, the applicant declined to discontinue the claim and the matter was listed for a conciliation conference and arbitration hearing on 22 June 2021.
At the conciliation conference and arbitration hearing on 22 June 2021, Mr Stockley of counsel appeared for the applicant and Mr Barnes of counsel appeared for the respondent.
During the conciliation stage, I enquired whether there had been any developments regarding settlement since the telephone conference. I was advised that there had been no further discussions, but counsel requested some time to privately continue the negotiations.
Following some discussions between the parties, I was informed by Mr Stockley that both he and the applicant’s solicitors had withdrawn from appearing for the applicant. At that stage I enquired of the applicant whether he was ready to proceed with his matter.
The applicant advised that he was not ready to proceed and on further questioning, he indicated that it was likely that he would seek further legal assistance.
I then sought the views of Mr Barnes and I was informed that the respondent opposed any adjournment of the proceedings and requested that the proceedings be struck out.
I indicated to the parties that I would consider the evidence and the submissions before issuing a decision regarding the further conduct of the matter.
A recording was taken of the submissions and I do not propose to repeat them here. A transcript of the submissions will be available on request.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents received on 12 April 2021, and
(d) Merit Review decision dated 3 May 2018.
FINDINGS AND REASONS
President Keating issued e-Bulletin No 56 in November 2013 that included the following:
“Unprepared Matters
Over recent months, the Commission has noted an increased number of matters that are not ready to proceed at the teleconference. Where an application has been commenced without adequate supporting evidence, the current time delays to teleconference provide ample opportunity for an applicant to obtain such evidence. Parties are advised that a matter not adequately prepared at teleconference, where no attempts have been made to prepare since filing, may be dismissed for want of due despatch (Rule 15.8, Workers Compensation Commission Rules 2011)”.
What I need to consider is whether the current proceedings should remain on foot to allow the applicant to obtain legal representation or whether the proceedings should be struck out or dismissed for want of due dispatch.
Section 54 of the Personal Injury Act 2021 deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 15.8 of the Workers Compensation Commission Rules 2011 referred to by President Keating above has been replaced by Rule 77 of Personal Injury Commission Rules 2021 (the 2021 Rules). It provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation
legislation—the applicant has failed to prosecute the proceedings with due
despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are
referred may make any order relating to the procedure to be followed in the
proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
I raised my concerns about the readiness of this matter to proceed to a conciliation conference and arbitration hearing at the telephone conference. Nevertheless, the applicant elected to proceed with his claim.
Of course, this is not the first time that the applicant has failed to prosecute his claim to its conclusion.
The applicant issued proceedings in 2019 in matter no. 4553/19. These proceedings were struck out for want of prosecution by Arbitrator Sweeney. The reasons for this decision are not readily apparent from the evidence.
The applicant issued further proceedings in 2020 in matter no. 6352/20. This matter was listed for a conciliation conference and arbitration hearing before me on 27 January 2021. Whilst I have no recollection of the matter, according to the Certificate of Determination attached to the current Application, the applicant elected to discontinue the proceedings after the respondent objected to the admission of further medical evidence.
The applicant confirmed that the present matter was not ready to proceed because he wished to obtain further legal representation and medical evidence had not been obtained from his treating psychologist. Whilst he did not specifically seek an adjournment, the respondent objected to any further delays, given the poor history of the claim.
There will be nothing to prevent the applicant from lodging a further Application in the Commission as he has done in the past, provided I dismiss these proceedings for want of due despatch, which is a prerequisite for dismissing or striking out any proceedings in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited[1].
[1] [2004] NSWWCCPD 83.
It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes. Section 354 (3) of the 1998 Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. This applies to both the applicant and the respondent.
In my opinion, there is little, or no prospect of the matter being advanced within a reasonable time in accordance with the normal practice in the Commission. Any further delay would be prejudicial to the respondent and it would incur unnecessary costs. I am also mindful that the respondent has already incurred costs associated with the two prior sets of proceedings.
In the circumstances, I am satisfied that these proceedings should be dismissed for want of due despatch. I propose to make such orders.
FINDINGS
The matter is not ready to proceed to a conciliation conference and arbitration hearing.
ORDERS
Proceedings dismissed for want of due despatch.
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