Johnson v Artback NT - [2011] NTMC 31

CITATION: Johnson v Artback NT [2011] NTMC 031
PARTIES: MARGARET JOHNSON

v
ARTBACK NT: ARTS DEVELOPMENT TOURING INC

TITLE OF COURT:   WORK HEALTH COURT
JURISDICTION:   Work Health
FILE NO(s):   20830195
DELIVERED ON:   20 May 2011
DELIVERED AT:   Darwin
HEARING DATE(s):   6 December 2010, 7 December 2010, 8 December 2010
Date of final submissions 3 May 2011

JUDGMENT OF: Dr John Allan Lowndes
CATCHWORDS:

WORK HEALTH COURT – PROCEDURAL BAR – APPLICATION TO STRIKE OUT – LATE AMENDMENT OF PLEADINGS
Workers Rehabilitation and Compensation Act s 163J(1), s 103D
Berowra Holdings Pty Ltd v Gordon [2006] 225 CLR 363, applied
Prime v Colliers International [2004] FLR 220, considered
REPRESENTATION:
Counsel:
Plaintiff:   Mr O’Loughlin
Defendant:   Mr Cole
Solicitors:
Plaintiff:   Halfpennys
Defendant:   Minter Ellison
Judgment category classification:         B
Judgment ID number:   [2011] NTMC 031
Number of paragraphs:   74

IN THE WORK HEALTH
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20830195
[2011] NTMC 031

BETWEEN:
MARGARET JOHNSON

Plaintiff
AND:
ARTBACK NT: ARTS DEVELOPMENT

Defendant

REASONS FOR DECISION
(Delivered 20 May 2011)
Dr John Allan Lowndes SM:
The Court’s Earlier Decision

On 23 December 2010 I published my reasons for decision underpinning the Court’s conclusion that the present proceedings were commenced prematurely and are barred by the provisions of s 103J(1) of the Workers Rehabilitation and Compensation Act. At the same time I invited submissions from the parties in relation to consequential and ancillary matters.
I do not propose to repeat my reasons for decision except to say that as there had been no attempt to resolve a dispute concerning the cancellation of payments by mediation the worker was barred from commencing proceedings, seeking a declaration that the cancellation of payments in 2002 was invalid and a reinstatement of benefits. Furthermore, to the extent the worker was, in the alternative, seeking a determination of a claim for compensation based on a change of circumstances,[1] the commencement of proceedings in that regard were similarly barred because no such claim (or dispute in relation thereto) had been mediated beforehand.
However, it became apparent from the worker’s written submissions filed on 19 January 2011 regarding consequential and ancillary orders that the worker was never, in fact, pursuing an alternative remedy, but simply seeking a declaration that the cancellation of benefits was invalid and a reinstatement of those benefits. This, in my view, only adds to the confusion and uncertainty surrounding the dispute that was the subject of pre action mediation; and reinforces the conclusion that the Court could not be satisfied that an attempt had been made to resolve by way of mediation a dispute concerning the validity of the cancellation of benefits in 2002 and reinstatement of those benefits.
The Subsequent Course of the Matter
In the written submissions filed on 19 January 2011 the worker submitted that given the Court’s reasons for decision the proceedings ought to be dismissed. However, it was submitted that the costs of the proceedings should be reserved on the basis that both parties had shown some interest…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Artback NT

Details

AGLC: Johnson v Artback NT [2011] NTMC 31
Case: [2011] NTMC 31
Decision Date: 20 May 2011

CaseChat Overview and Summary

In the case of Johnson v Artback NT, the worker initiated proceedings in the Work Health Court to contest the employer's decision to cancel her benefits. The employer, in turn, argued that the worker's proceedings were procedurally barred due to her failure to comply with section 103J(1) of the Workers Rehabilitation and Compensation Act, which mandates the attempt to resolve disputes by mediation before commencing legal action. The court was required to decide whether the worker's non-compliance with the mediation requirement should result in the dismissal of her proceedings, and if the worker could amend her pleadings to seek an extension for mediation post-commencement of the proceedings.

The court held that the statutory procedural bar imposed by section 103J(1) did not automatically dismiss the worker's proceedings. The court reasoned that the objective of promoting dispute resolution by mediation prior to litigation did not mandate the dismissal of proceedings where non-compliance with the mediation requirement was not challenged by the employer. The court found that the employer's choice not to raise the procedural bar at an early stage, and its subsequent grant of leave to amend the defence to include the procedural bar, meant that the worker's proceedings should continue. The court also rejected the employer's argument that the worker's application to amend her pleadings to seek an extension for mediation was futile, noting that such an amendment could not cure the underlying failure to mediate prior to litigation.

Consequently, the court dismissed the employer's application to strike out the worker's proceedings and denied the employer's resistance to the worker's application to amend her pleadings. The court's decision allows the worker's proceedings to continue, despite the failure to comply with the mediation requirement. The court's ruling highlights the importance of the employer's role in enforcing the mediation requirement and the potential consequences of not doing so. The final orders of the court were that the employer's application to strike out the worker's proceedings be dismissed and the worker's application to amend her pleadings be denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Consequently, the proceedings should be allowed to continue, although there has never been an attempt to resolve by way of mediation the dispute concerning the cancellation of benefits. In my opinion, that is not a strange result. Had the employer chosen not to raise the s 103 J(1) point – a choice that was freely available to the employer in the context of the adversarial process and the Work Health Court Rules – the proceedings would have proceeded to finality, without the parties ever having attempted to resolve by way of mediation a dispute that was central to the litigation between the parties. Similarly, had the employer not be granted leave to amend its defence and thereby rely upon the procedural bar, the proceedings would have continued despite non-compliance with s 103J(1).[37] The result would have been analogous to the outcome in Berowra Holdings Pty Ltd v Gordon. In my opinion, the procedural bar established by s 103 J(1) of the Workers Rehabilitation and Compensation Act is not materially different from the procedural bar created by s 151C(1) of the NSW statute.[38] The two statutory provisions share the common objective of promoting and facilitating the resolution of disputes prior to the commencement of legal proceedings. The Worker’s application to amend and the decision in Cook v Suplejack In light of my conclusion that the proceedings should be allowed to continue, notwithstanding the worker’s non-compliance with s 103J(1) of the Act, it is strictly unnecessary to consider the worker’s interlocutory application filed on 25 February 2011. However, I think it is appropriate to consider the application, as it raises some important issues concerning the operation of the pre-action mediation process under the Workers Rehabilitation and Compensation Act. The worker sought an amendment to the Statement of Claim to enable her to obtain, pursuant to s 103D(4), an extension of time to apply for mediation in relation to the unmediated s 69 cancellation issue. The intention was that upon obtaining such an extension the parties would mediate the issue, thereby remedying (albeit retrospectively) the defective proceedings (due to non-compliance with s 103J(1)). Upon obtaining the necessary mediation certificate the Court would then be “entitled, as a matter of procedure, to make a nunc pro tunc order permitting the hearing to continue in respect of the cancellation”.[39] The employer resisted the application on the following grounds:1.Once the Court had ruled that the proceedings were barred by the provisions of s 103J(1) the Court cannot grant leave to the worker to amend her pleadings for the reason that the proceedings are not validly before the Court;[40]2.The Court’s power to grant leave to amend proceedings necessarily assumes that the pleadings which are sought to be amended are valid pleadings;[41]3.Pleadings of proceedings which are barred have no legal status except for the purpose of the Court determining whether the Court has jurisdiction in relation to the matter before the Court, and making consequential orders if jurisdiction is not established;[42]4.It would an error of law to grant leave to amend pleadings of proceedings which are barred, and accordingly the Court cannot grant such leave;[43]5.The failure to comply with s 103J(1) cannot be cured by amendment, for the reason that an amendment to the worker’s pleadings cannot cure the omission to attempt to resolve the dispute by mediation. An amendment which seeks to extend time for a mediation presupposes that a mediation has taken place but the time limit for doing so has not been met. In this case, there was no mediation; no amendment to the pleadings can cure that.[44]

Ratio Decidendi

Legal Principle Established

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