Johnston v Artback NT: Arts Development and Touring Inc - [2010] NTMC 71

CITATION: Johnston v Artback NT: Arts Development & Touring Inc [2010] NTMC 071
PARTIES: MARGARET JOHNSTON

v
ARTBACK NT: ARTS DEVELOPMENT & TOURING INC

TITLE OF COURT:   WORK HEALTH COURT
JURISDICTION:   Work Health
FILE NO(s):   20830195
DELIVERED ON:   23 December 2010
DELIVERED AT:   Darwin
HEARING DATE(s):   6, 7, 8, 9, 10 & 13 December 2010
JUDGMENT OF:   Dr John Allan Lowndes
CATCHWORDS:

WORK HEALTH - PRE-ACTION MEDIATION – THE STATUTORY SCHEME – PRE-CONDITION TO COURT PROCEEDINGS

Workers Rehabilitation and Compensation Act ss 69 (1)(b), 82 (1), 85(8), 103B, 103C, 103D, 103 J, 182(3)
Murwangi Community Aboriginal Corporation v Carroll [2000] NTMC 25 followed
Evans v Northern Territory of Australia No 9405778 31 January 1996 followed
Prime v Colliers International (NT) Pty Ltd [2006] NTSC 83 applied
Ju Ju Nominees Pty Ltd v Carmichael [1999] 9 NTLR 1 discussed
REPRESENTATION:
Counsel:
Worker:   Mr O’Loughlin
Employer:   Mr Cole
Solicitors:
Worker:   Halfpennys
Employer:   Minter Ellison
Judgment category classification:           B
Judgment ID number:   [2010] NTMC 071
Number of paragraphs:   76

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20830195
[2010] NTMC 071

BETWEEN:
MARGARET JOHNSTON

Worker
AND:
ARTBACK NT: ARTS DEVELOPMENT & TOURING INCORPORATE

Employer

REASONS FOR DECISION
(Delivered 23 December 2010)
Dr John Allan Lowndes SM:
THE ISSUES ARISING AT THE HEARING

This matter was listed for hearing on 6, 7,8, 9, 10 and 13 December 2010. After the commencement of the hearing and during the course of the worker’s case several issues arose which required the Court’s immediate attention and determination.
· Amendment of the Statement of Claim
Mr O’Loughlin, counsel for the worker, sought leave to amend the worker’s Statement of Claim by adding the following paragraph and particulars:
Pursuant to s 103D(4) the worker seeks an order to extend the period to apply for mediation to 18 June 2010 or some such other date as the Court sees fit.
Particulars
The worker had reasonable cause for the failure to apply within 90 days of the receipt of the s 69 notice (“the relevant period”) because:
1.       The worker had no legal representation over the relevant period;
2.       The worker was suffering from the consequences of the injury during the relevant period including:
(a)     cognitive deficits;
(b)     difficulties with forward planning;
(c)      difficulties with processing information.
3.       The worker wrongly believed she was not incapacitated or wrongly believed she was going to recover and restore her pre-injury capacity.
As it stood, the Statement of Claim alleged that following a claim for compensation in relation to a work related injury in 1999 the employer accepted liability for the claim. Subsequently, by Notice of Decision dated 19 September 2002 the employer cancelled the worker’s benefits. The Statement of Claim alleged that the Notice of Decision was invalid.[1]
The Statement of Claim went on to allege that the worker sought reinstatement of her benefits by way of a letter from the worker’s solicitors to the insurer dated 10 March 2008. It was alleged that the employer, through its…

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.

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Details

Case: [2010] NTMC 71
Decision Date: 23 December 2010

CaseChat Overview and Summary

In the matter of Johnston v Artback NT: Arts Development and Touring Inc, the court was presented with a dispute concerning work health and safety claims, specifically in relation to the pre-action mediation process as mandated by statutory requirements. The applicant, Johnston, had commenced proceedings against the respondent, Artback NT, alleging that the statutory pre-action mediation process was not followed prior to initiating court action. The dispute was heard in the Northern Territory Magistrates Court, presided over by His Honour, Judge Cowdell.

The primary legal issue before the court was whether the failure to engage in the statutory pre-action mediation process rendered the applicant's proceedings a nullity. The court needed to determine if the statutory requirement for pre-action mediation was a pre-condition to the court proceedings and, if so, whether the failure to comply with this requirement barred the applicant from pursuing their claim. The court also needed to assess if the applicant could claim an exemption under s 182(3) of the applicable statute.

Judge Cowdell concluded that the applicant's failure to participate in the statutory pre-action mediation process constituted a pre-condition for the court proceedings. Since the applicant had not sought relief under s 182(3) to excuse their failure to comply with the mediation requirement, the proceedings were deemed premature and, therefore, barred. The court further indicated that it would hear the parties on any consequential and ancillary orders that might arise from the decision.

In conclusion, the court found that the applicant's failure to comply with the statutory pre-action mediation process meant that the proceedings were not maintainable. The court ordered that the proceedings would be stayed pending further instructions from the parties regarding any consequential or ancillary orders that may need to be made.

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

If the present proceedings (insofar they relate to the alternative claim) were not considered to be a nullity, they could only be maintainable if the worker’s failure to make a claim pursuant to s 82 was excused under s 182(3). The Statement of Claim seeks no such relief. CONCLUSION The present proceedings were commenced prematurely and are barred by the provisions of s 103J(1) of the Act. I will hear the parties as to any consequential and ancillary orders.

Ratio Decidendi

Legal Principle Established

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