Halliday v Return to Work Corporation of South Australia

[2020] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

HALLIDAY v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2020] SASC 129

Decision of The Honourable Justice Kelly

10 July 2020

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - RECONSIDERATION OF DETERMINATION AND RE-OPENING OF CASE

Application for permission to appeal an order made by the Full Bench of the South Australian Employment Tribunal. 

The Full Bench allowed an appeal from a decision of a Deputy President who had refused an application by the respondent to re-open a case. The respondent’s application was supported by an affidavit of a solicitor. The Deputy President ruled that he would not consider the affidavit. The Full Bench ordered that the matter be returned to the Deputy President to hear the application for directions in conformity with its reasons.

Held, refusing permission to appeal:

1. The proposed appeal is premature and does not raise an arguable point.

Return to Work Act 2014 (SA), referred to.

HALLIDAY v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 129

Civil:   Permission to Appeal

1. KELLY J:            The applicant, Lynette Kaye Halliday, applies for permission to appeal an order made by the Full Bench of the South Australian Employment Tribunal on 11 May 2020.

2. On that date, the Full Bench allowed an appeal from a decision of a Deputy President of the Tribunal who had refused an application by the respondent, Return to Work Corporation of South Australia (‘RTWSA’), to re-open a case subsequent to the Deputy President’s delivery of reasons for decision. 

3. The application by RTWSA to re-open was supported by an affidavit of a solicitor.  The Deputy President ruled that he would not consider the affidavit and stated that he had not read it. 

4. The Full Bench upheld RTWSA’s appeal that the Deputy President erred in law in refusing the application without considering the contents of the affidavit.  There was some ambiguity about the way in which the hearing before the Deputy President unfolded and the Full Bench found that mistakes had been made.  In respect of the application to re-open, the Full Bench held there should have been a formal application to tender the affidavit upon which the deponent of the affidavit should have been made available for cross-examination and issues such as relevance, hearsay and the like could have been dealt with. 

5. The Full Bench then ordered, consequent on its reasons, that the matter be returned to the Deputy President to hear the application for directions in conformity with its reasons. 

6. On the proposed appeal, the applicant contends that any denial of procedural fairness in the court below could not have made any difference to the outcome and that the Full Bench exceeded its jurisdiction by allowing the appeal based on the denial of procedural fairness which was not material and which was contributed to by counsel for the compensating authority. 

7. The applicant contends that the appeal is of importance and significance to the applicant who, by reason of the judgment delivered by the Deputy President, is entitled to a lump sum of $272,182 and to be treated as a ‘seriously injured worker’ under the Return to Work Act 2014 (SA).

8. I do not consider that the proposed appeal raises any issue of significant importance either as a matter of law or principle. 

9. In any event, in my view, the proposed appeal is premature as the only order made by the Full Bench was to return the matter to the Deputy President to determine the application to re-open in conformity with the Full Bench’s reasons.

10. Once that has occurred either party may or may not have an arguable point to raise on appeal.

11. Until then, permission to appeal is refused.