Kowalski v Chief Executive WorkCover Corporation & Anor (Ex Parte) - [2005] SASC 481

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KOWALSKI v CHIEF EXECUTIVE WORKCOVER CORPORATION & ANOR (EX PARTE)
Judgment of The Honourable Justice Duggan
19 December 2005
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
Appeal against a decision of a master to refuse leave to serve a summons against the first defendant seeking judicial review by way of mandamus - the summons seeks an order that the defendant be compelled to consider whether to consent to an agreement entered into between the appellant and his former employer following settlement of workers compensation claims - held: there is no duty on the part of the defendants to determine whether the relevant agreement warranted consent under the Workers Rehabilitation and Compensation Act - accordingly the application for judicial review is not fit for argument - the proceedings would also be vexatious - appeal dismissed.

KOWALSKI v CHIEF EXECUTIVE WORKCOVER CORPORATION & ANOR (EX PARTE)
[2005] SASC 481
Magistrates Appeal

DUGGAN J. The appellant was refused leave to serve a summons against the Chief Executive of the Workcover Corporation (“the Corporation”) seeking judicial review by way of mandamus. He now appeals against that decision which was made by a master.
The summons seeks an order that the Chief Executive Office:
be compelled to perform the public and statutory duty according to law and to consider whether the Heads of Agreement between my employer, my wife and myself dated 27 October 1998, purports to exclude, modify or restrict the operation of the Workers Rehabilitation and Compensation Act 1986 (SA) and if it did purport to exclude, modify or restrict the operation of the said Act, then to determine whether the Heads of Agreement warranted her consent or otherwise.
The application is related to a series of claims for workers compensation made by the appellant against Mitsubishi Motors Australia Ltd (“Mitsubishi”), his former employer. The history of these proceedings is set out in the judgment of Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, an application by Mitsubishi to have the appellant declared a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935. The application was successful and the orders made by Bleby J included an order that the appellant be prohibited from instituting further proceedings in a prescribed court as defined in s 39(6) of the Supreme Court Act 1935 against Mitsubishi or any corporation related to Mitsubishi without leave of the Court. It is clear that this order does not apply to the present circumstances, but the proceedings before Bleby J are relevant background to the present proceedings. An appeal by the appellant to the Full Court against the orders made by Bleby J was dismissed.
When dealing with the application before him, Bleby J summarised the circumstances of 45 proceedings instituted by the appellant in relation to his claim for compensation against Mitsubishi. His Honour also referred to a mediated settlement of the appellant’s claims which occurred in October 1998 at a time when 21 of the proceedings referred to by Bleby J had been considered by various courts.
In his judgment at [133] Bleby J referred to the issues in dispute at the time of the mediation:
The issues which were to be the subject of the mediation in October 1998 included the eye injury, the right middle finger injury, the back injury, the emotional distress and the heart attack. Also included were any matters relating to the termination of Mr Kowalski’s employment at Mitsubishi, any outstanding sick leave and any superannuation and superannuation ill health benefits payable to Mr Kowalski.
At the time of the mediation there were numerous proceedings which were at the time unresolved.
The mediation resulted in an agreement dated 27 October 1998 entitled “Heads of Agreement”. Under the agreement the appellant agreed to accept the sum of $200,000 in full and final settlement of the entitlements which he claimed from Mitsubishi.
Following upon the settlement, a number of outstanding proceedings were dismissed by consent. Bleby J described the next development at [151]f:
More than a year later, on 23 November 1999, Mr Kowalski filed an application under s 88H of the Compensation Act to have the consent orders made by Conciliation Officer Richer set aside. The basis of this application was said to be that Mr Kowalski, through an application in the District Court for non-party discovery against Mitsubishi, discovered certain documents which led him to believe that Mitsubishi had not mediated in good faith.
At the hearing it became clear that Mr Kowalski was also seeking additional orders from the Tribunal. He wanted selected parts but not the whole of the heads of agreement declared null and void on the basis that they allegedly breached s 119 of the Compensation Act. If such orders were made Mr Kowalski would have been free to pursue his compensation claim in respect of the heart attack and also to pursue a claim in the Industrial Relations Commission for relief in relation to the termination of his employment.
Mitsubishi then raised a preliminary point as to whether the Tribunal had jurisdiction to determine the validity of the heads of agreement or to grant the relief sought. McCouaig DP held that the Tribunal did have jurisdiction, notwithstanding the fact that an inquiry involving consideration of the settlement agreement would include the examination of terms not strictly concerning worker’s compensation. Mitsubishi subsequently appealed against this decision to a Full Bench of the Tribunal.
The Full Bench of the Tribunal held that the Tribunal had the jurisdiction to set aside a consent order, but held further, that it had no jurisdiction to make any orders or declarations in relation to the Heads of Agreement.
In subsequent proceedings before the Tribunal, the appellant sought, inter alia, an order or declaration declaring null and void those parts of the Heads of Agreement “that are contrary to s 119 of the Act and in particular those parts of Par 1.1 and Par 2.3 that purport to exclude, modify or restrict the operation of the Act”.
Section 119 of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) provides as follows:
119—Contract to avoid Act
(1)Any agreement or arrangement entered into without the consent of the Corporation that purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect.
(2)Any purported waiver of a right conferred by or under this Act is void and of no effect.
(3)     Any person—
(a)     who enters into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act; or
(b)     who attempts to induce a person to waive a right or benefit conferred by or under this Act,
is guilty of an offence.
Penalty: $5 000 or imprisonment for one year.
Importantly, for present purposes, it was accepted by both the appellant and Mitsubishi throughout the post-settlement proceedings that the Corporation’s consent was not obtained in relation to the agreement.
Deputy President McCouaig dealt with the s 119 argument in Kowalski v Mitsubishi Motors Australia Ltd [2001] SAWCT 93. He said at [109]f:
109The language of s 119 suggests that it was not intended to apply to the circumstances that we have here. It is difficult to identify how the Act can be said to have been excluded, modified or restricted by the Agreement's inclusion of reference to the worker's disabilities resulting from his heart attack.
110The worker had lodged his 1998 heart claims in accordance with the Act, there was investigation, mediation and settlement of these and other matters and there was a consent finalising of his claims in accordance with the Act as per Conciliation Officer Richer's determination on 3 November 1998.
111S 119 does not require that every resolution of every claim by every worker must be approved by the Corporation. This is not what the section says, as it so easily could have if that had been Parliament's intention. Rather, I think the intent of s 119 is to safeguard worker's rights and benefits under the Act by declaring that contractual attempts to exclude, modify or restrict the operation of the Act without the consent of the Corporation will be deemed void and of no effect.
112There can be no suggestion here of the worker being denied his due rights and benefits under the Act, or of anyone trying to circumvent the operation of the Act. This is a case of a worker, well aware of his rights and benefits under the Act, choosing to compromise his disputed entitlements in respect of existing claims on terms that he was pleased with at the time and thereupon, in conjunction with Mitsubishi's solicitors, carefully ensuring that his claims were properly finalised in accordance with the Act.
113The consent order/determination of Conciliation Officer Richer on 3 November 1998 was a necessary piece of housekeeping to give effect to the settlement reached by the parties and to accommodate the resolution of the worker's heart claims in accordance with the Act. The consent order made by Review Officer Duigan two days later likewise finalised the worker's outstanding claims before the Review Panel in accordance with the Act.
114The parties' ability to consent to an acceptance or, as here, rejection of a claim for compensation is fundamentally within the ambit of the Act. One of the stated objects of the Act is "to reduce litigation and adversarial contests to the greatest possible extent" and there is a heavy focus in the current scheme on conciliated outcomes. To circumvent, or attempt to circumvent, the operation of the Act is quite another thing.
115I find that neither the settlement reached by the parties nor the Agreement recording that settlement purported to exclude, modify or restrict the operation of the Act so as to give rise to any application of s 119 of the Act.
On appeal to the Full Bench of the Tribunal [2002] SAWCT 76, in a section of his judgment with which Cawthorne DPJ expressed his general agreement, McCusker DPJ said at [75]:
Firstly the Deputy President's conclusion in respect to s 119 was correct. There was no evidence of a proscribed purpose. We note that in the Workers Compensation Act 1971 ("the 1971 Act") a similar provision operated (s 86). That agreements ipso facto did not operate to deny the requisite purpose was implicit in the reasoning of the Court in GeneralMotors-Holdens Ltd v D'Andrea (1985) 122 LSJS 301. The construction of s 119, as may be said to underlie the worker's argument, is wrong.
Throughout the proceedings before the Tribunal it was acknowledged by Mitsubishi and the appellant that the Corporation had not given its consent to the settlement agreement. This consideration was an important component of the appellant’s argument that certain aspects of the Heads of Agreement were void.
The summons seeks an order that the Chief Executive Officer of the Corporation be compelled to perform her public and statutory duty to consider whether the Heads of Agreement purport to exclude, modify or restrict the operation of the Act. The Corporation has also been joined as a defendant by the appellant. The Act does not require the Corporation to determine whether the Heads of Agreement have this effect. The section simply provides that an agreement which has that effect and which is entered into without the consent of the Corporation is, to that extent, void and of no effect. Nor is there any duty on the part of the Corporation or its officers to determine whether the agreement warranted consent or otherwise. The fact of the matter is that there was no consent.
As consent was not given, it has suited the appellant to rely on that fact to advance the argument he put forward in previous proceedings. His argument was rejected. If consent had been granted the appellant could not have advanced the argument in the first place.
Accordingly, not only is there no duty which the court could address on judicial review, but an order of the type sought could not advance any right or action which the appellant wishes to pursue.
Finally, although the relief sought by the appellant does not come within the terms of Bleby J’s order, the appellant’s application cannot be seen as anything other than an attempt to further pursue his claims against Mitsubishi. In that respect also, I am of the view that they are to be regarded as vexatious.
The matter was referred to the master in order to consider whether leave to issue a summons should be granted: R102.09. I agree with his view that leave should be refused on the ground that the proceedings would be vexatious. I am also of the view that leave should be refused because the application for judicial review sought by the appellant is not fit for argument: Workers Rehabilitation and Compensation Corporation v Lieschke (Cox J, 5 November 1992, unreported).
The appeal will be dismissed.