Ettridge v WorkCover Corporation - [2012] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
ETTRIDGE v WORKCOVER CORPORATION
[2012] SASCFC 148
Reasons for Decision of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice David)
20 December 2012
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal to the Full Court in private – appeal from a single Judge of the Supreme Court dismissing the applicant’s appeal against a decision of the Full Bench of the Workers Compensation Tribunal.
Held: Application for permission to appeal refused.
Workers Rehabilitation and Compensation Act 1986 (SA) s 85; Supreme Court Civil Rules 2006 (SA) r 289(1)(c), referred to.
Mitsubishi Motors Australia Ltd v Harbord & Anor (1997) 69 SASR 75; Kairns v WorkCover Corporation/CGU Workers Compensation (SA) Ltd (Chateau Yaldara Pty Ltd) (2004) 90 SASR 81, considered.

ETTRIDGE v WORKCOVER CORPORATION
[2012] SASCFC 148
Full Court: Kourakis CJ, Sulan and David JJ

KOURAKIS CJ: This is an application for permission to appeal against a decision of a single Justice of this Court in turn refusing the applicant permission to appeal against a decision of the Full Bench of the Workers Compensation Tribunal (“the Full Bench”).
The decision of the Full Bench which is challenged by the applicant was, in turn, made on appeal from a decision of a Deputy President of the Workers Compensation Tribunal (“the Tribunal”) which dismissed the applicant’s claim for compensation on the ground that he was not a worker for the purposes of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”).
The applicant brought a claim for compensation under the Act for a shoulder injury which he alleged he had suffered in September 2008 in the course of his employment with the company Gemini Electric Motor Company Pty Ltd (Gemini). Gemini is a private company, which was founded by the applicant and his brother, but at all relevant times the applicant was the principal.
Before bringing his claim under the Act, Mr Ettridge had brought a claim under a Commonwealth statutory scheme for military compensation on the ground that the work injury had aggravated an old injury Mr Ettridge had suffered in the course of military service in 1966. That claim was rejected by the Military Rehabilitation and Compensation Commission and Mr Ettridge’s appeal against that rejection to the Administrative Appeals Tribunal was dismissed.
Mr Ettridge’s claim for compensation under the Act was initially accepted by the Corporation’s claims agent (EML) on 11 March 2009. Subsequent determinations were also made accepting his claims for reasonable medical expenses and for weekly payments between 30 April 2009 and 31 August 2009 at a rate of $76.92 gross per week. Mr Ettridge disputed the quantum of those determinations and, after attempts to conciliate failed, the determinations were referred to a Deputy President of the Tribunal for determination. When the matter was called on before the Deputy President, WorkCover announced that it disputed that Mr Ettridge was a worker. That issue was joined in the hearing and Mr Ettridge contended both that he was, in fact, a worker, and, in the alternative, that WorkCover was estopped from denying his status as such. The Deputy President found against Mr Ettridge. Mr Ettridge appealed to the Full Bench. His appeal was, save with respect to one ground, dismissed. The ground on which Mr Ettridge succeeded concerned his contention that WorkCover was estopped from denying he was a worker because it had accepted levies from Gemini on the basis that he was a worker. The Full Bench remitted the hearing and determination of that issue to the Deputy President.
Mr Ettridge brought an application for permission to appeal to a single Justice of this Court pursuant to s 86A of the Act. Pursuant to s 86A of the Act, an appeal lies to the Full Court of this Supreme Court on a question of law with the permission of a Judge of this Court.
On 15 May 2012, Stanley J dismissed Mr Ettridge’s application for permission to appeal. Mr Ettridge filed documents which were treated as an application for permission to appeal the decision of Stanley J on 24 August 2012. The application was made out of time. It should have been filed by close of business on 29 May 2008.[1] Stanley J refused permission on 15 May 2012.
[1] Supreme Court Civil Rules 2006 (SA) r 289(1)(c).
By and large Mr Ettridge’s complaint about the Full Bench’s decision was that it had wrongly decided those grounds of appeal which it decided adversely to him.
The written submissions made by Mr Ettridge in support of his application for permission are difficult to understand. They appear, however, to agitate the five grounds of appeal identified by Stanley J in his reasons for judgment of 15 May 2012. I will deal with each in turn.
The first ground was conveniently summarised by Stanley J as follows:
1The Full Bench erred as a matter of law in failing to conclude that it was not open to the Tribunal at first instance to hear and determine the issue of the correct status of Mr Ettridge as a “worker” within the meaning of the Act because this could only occur by the Tribunal enlarging the scope of the proceedings to include that question. This could only occur by consent and he had refused consent.
The argument in support of the first ground is based on s 88BA of the Act. It provides that the Tribunal may enlarge the scope of proceedings before it only with the consent of all of the parties to the proceedings. As I earlier observed, WorkCover announced at the very commencement of the proceedings that Mr Ettridge’s status as a worker was an issue. No occasion arose for the enlargement of the issues before the Tribunal. Mr Ettridge’s application proceeds on the false premise that the issues before the Tribunal are limited by the earlier determinations made by WorkCover’s agents and in particular the implicit acceptance of his status as a worker. That is not so. The Tribunal has a jurisdiction to determine afresh all aspects of the claim which are in dispute when the claim is referred to the Tribunal for determination. For the reasons which I give in dealing with the second ground of appeal, the earlier WorkCover determination did not preclude WorkCover from denying Mr Ettridge’s employment status.
The second ground of appeal was summarised by Stanley J as follows:
2The Full Bench erred as a matter of law in failing to find that the Corporation was stopped from disputing his entitlement to compensation following the decision of the Administrative Appeals Tribunal rejecting any claim for compensation under the scheme for military rehabilitation and compensation. This was because the AAT had dismissed his claim on the basis that as a claim for the same injury had been accepted by the Corporation, he was not entitled to pursue a claim for compensation in respect of the same injury under the scheme of military rehabilitation and compensation.
Mr Ettridge’s second ground of appeal contains two distinct complaints but both must fail for the reasons given by the Full Bench. The first complaint is that in the course of the reasons of the Administrative Appeals Tribunal, it justified its dismissal of Mr Ettridge’s war service claim on the basis that a claim for the same injury had been accepted by WorkCover. A decision made in a hearing before a different Tribunal to which WorkCover was not a party cannot bind it in proceedings before the Workers Compensation Tribunal. Secondly, it is well established that the administrative acceptance by WorkCover of a claim does not preclude it from subsequently disputing the claim. WorkCover is not bound to adhere to the concessions which it may make in initially accepting a claim for compensation.[2] If it were otherwise, the scheme established by the Act would obstruct the expeditious resolution of what are, on their face, minor claims.
[2] Mitsubishi Motors Australia Ltd v Harbord & Anor (1997) 69 SASR 75; Kairns v WorkCover Corporation/CGU Workers Compensation (SA) Limited (Chateau Yaldara Pty Ltd) (2004) 90 SASR 81.
Mr Ettridge’s third ground of appeal was summarised as follows:
3The Full Bench erred as a matter of law in failing to find that the Corporation was precluded from disputing his entitlement to compensation under the Act because the Corporation had committed what he described as the “offence” of maintenance and champerty.
Mr Ettridge’s contention with respect to that ground was that in challenging his status as a worker, WorkCover improperly interfered in his contractual and employment relationship with Gemini. A determination of Mr Ettridge’s employment status for the purpose of the Tribunal hearing could not bind Mr Ettridge in his legal relationship with Gemini. The determination is made for the purposes of his claim under the Act alone and binds him only in his relationship to WorkCover. This ground is not arguable.
Mr Ettridge’s fourth ground was summarised as follows:
4The Full Bench had erred as a matter of law in its interpretation of the Full Court’s decision in Kairns v WorkCover Corporation/CGU Workers Compensation (SA) Ltd (Chateau Yaldara Pty Ltd) (2004) 90 SASR 81.
In support of that ground, Mr Ettridge argues that the decision in Kairns does not extend to cases where the compensating authority accepts a claim more than six months after the injury and when it was in possession of medical evidence. It is not arguable that there should be any such limitation put on the principle established by the authorities.
Mr Ettridge’s fifth ground of appeal was summarised as follows:
5The Full Bench erred as a matter of law in failing to find that the Tribunal at first instance had contravened s 85 of the Act and had demonstrated actual bias in its conduct of the proceedings.
Mr Ettridge’s appeal to the Full Bench on this ground was dismissed on the grounds that the allegations of bias were “scurrilous and unfounded assertions”. There is no basis on which to contend that that strong factual finding is attended by an error of law. Before Stanley J, Mr Ettridge added a legal dimension to his argument contending that the formality with which the Deputy President conducted the hearing was inconsistent with the statutory direction to act in accordance with “equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms”.[3] Stanley J was right to describe that contention as misconceived. Mr Ettridge has not shown that the procedure adopted by the Deputy President was precluded as a matter of law by s 85 of the Act. Mr Ettridge’s complaint appears to be that the Deputy President should have made greater allowance for the circumstance that he was unrepresented.
[3] Workers Rehabilitation and Compensation Act 1986 (SA) s 85.
Courts and Tribunals assist unrepresented litigants to present their case to the extent that it is reasonably practicable and appropriate to do so. There are important limits to the assistance which can be given within an adversarial process. Courts and Tribunals must be mindful of the appearance, from the perspective of the opposing party and the reasonable bystander, of the efforts which are made to help unrepresented litigants. Courts and Tribunals must also have regard to the expense that may be incurred by the opposing party when indulgences are allowed to an unrepresented litigant. Finally, it should be remembered that the time and resources allocated to assist an unrepresented litigant come at a cost to those parties who engage lawyers allowing their matters, generally, to be dealt with more efficiently.
Conclusion
For the above reasons and because of the delay in bringing the application, it should be refused.
SULAN J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice.
DAVID J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice.