Mericka v Employers Mutual/WorkCover Corporation (Pollard Brothers Pty Ltd)

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
MERICKA v EMPLOYERS MUTUAL/WORKCOVER CORPORATION (POLLARD BROTHERS PTY LTD)
[2014] SASCFC 15
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Blue)
4 March 2014
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - GENERALLY
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - ENTITLEMENTS REDEEMED OR COMMUTED TO A LUMP SUM - GENERALLY
A application for permission to appeal to the Full Court from a decision of the Full bench of the Workers Compensation Tribunal.
The applicant, Alexander David Mericka, was injured in 1993 during the course of his employment. In 1997, documents were executed by the parties for the redemption under section 42 of the Workers Rehabilitation and Compensation Act 1986 (SA) of Mr Mericka’s entitlements to weekly income maintenance payments and medical expenses for a total of $100,000. In 2005, Mr Mericka claimed that he was entitled to ongoing weekly payments and reimbursement of medical expenses because the redemption agreements did not comply with section 42 and were void. Specifically, Mr Mericka contended that he did not receive competent professional advice about the consequences of redemption or competent financial advice about the investment or use of money to be received on redemption within the meaning of section 42(2).
A Presidential Member of the Workers Compensation Tribunal upheld Mr Mericka’s claim and concluded that the advice which was received by Mr Mericka did not comply with section 42(2). The Full Bench of the Workers Compensation Tribunal allowed an appeal against that decision, holding that the Presidential Member had misconstrued the requirements of section 42(2). Mr Mericka filed a notice of appeal against the decision of the Full Bench identifying 17 grounds of appeal.
Held per Gray and Blue JJ (Vanstone J dissenting) (granting permission to appeal):
(1) The proper construction of section 42(2) of the Workers Rehabilitation and Compensation Act insofar as it refers to competent professional advice about the consequences of redemption and competent financial advice about the investment or the use of money to be received on redemption raises a question of law of general public importance (at [11]).
(2) Permission to appeal granted limited to this single ground of appeal and on condition that Mr Mericka amends his notice of appeal accordingly (at [13]).
Workers Rehabilitation and Compensation Act 1986 (SA) s 42, s 86(1) and s 86A, referred to.

MERICKA v EMPLOYERS MUTUAL/WORKCOVER CORPORATION (POLLARD BROTHERS PTY LTD)
[2014] SASCFC 15
FULL COURT: Gray, Vanstone and Blue JJ
GRAY and BLUE JJ.

The applicant, Alexander David Mericka, applies for permission to appeal[1] against a decision of the Full Bench of the Workers Compensation Tribunal which allowed an appeal by the respondent, Employers Mutual Ltd/WorkCover Corporation, against a decision of Olsson AJ and remitted the matter to a different member of the Tribunal for hearing and determination of residual issues. The application has been heard ex parte on the papers. The factual matters set out below are based on the face of the reasons for judgment in the Tribunal and the documents filed by Mr Mericka. They may be qualified when the matter is heard inter partes.
[1] Workers Rehabilitation and Compensation Act 1986 (SA) 86A(2a).
In May 1993, Mr Mericka was injured while driving a vibrating roller in the course of his employment. He suffered injuries to his lumbar spine, right elbow, right knee and ankle. He also claimed that he suffered post traumatic stress disorder. He was paid weekly income maintenance payments and medical expenses by WorkCover from the date of his injury.
In 1997, documents were executed by the parties for the redemption under section 42 of the Workers Rehabilitation and Compensation Act 1986 (SA) of Mr Mericka’s entitlements to weekly income maintenance payments and medical expenses for a total of $100,000. Redemption agreements were prepared on behalf of WorkCover and executed by Mr Mericka in the presence of a WorkCover representative. Certificates certifying that Mr Mericka had received professional advice were signed by a lawyer and certificates that he had received financial advice were signed by an accountant and a financial advisor.
Section 42 of the Workers Rehabilitation and Compensation Act as it was in 1997 relevantly provided:
(1)Any of the following liabilities may, by agreement between the worker and the Corporation, be redeemed by a capital payment to the worker—
(a)     a liability to make weekly payments;
(b)     a liability to pay compensation under section 32;
(c)     a liability to make a capital payment for loss of future earning capacity.
(2) An agreement for the redemption of a liability under this section cannot be made unless—
(a)     the worker has received competent professional advice about the consequences of redemption; and
(b)     the worker has received competent financial advice about the investment or use of money to be received on redemption; and
(c)     the Corporation has consulted with the employer out of whose employment the disability arose and has considered any representations made by the employer; and
(d)     a recognised medical expert has certified that the extent of the worker’s incapacity resulting from the compensable disability can be determined with a reasonable degree of confidence.
…
In 2005, Mr Mericka instituted proceedings in the Workers Compensation Tribunal claiming that he was entitled to ongoing weekly payments and reimbursement of medical expenses. He asserted that the 1997 redemption agreements did not comply with section 42 and were void. Specifically, he contended that he did not receive competent professional advice about the consequences of redemption or competent financial advice about the investment or use of money to be received on redemption within the meaning of section 42(2). The proceedings were heard by Olsson AJ from time to time between October 2005 and March 2011.
On 28 October 2011, Olsson AJ upheld Mr Mericka’s claim, making a determination that the impugned redemption agreements were not executed in conformity with the requirements of section 42 and were void and ineffective to extinguish any right of Mr Mericka to pursue entitlements properly vested in him by the relevant statutory provisions. His Honour delivered reasons for judgment on 5 September and 28 October 2011.[2] Olsson AJ made detailed findings of fact concerning advice which was or was not received by Mr Mericka. His Honour construed section 42(2) as to what comprised competent legal advice about the consequences of redemption and what comprised competent financial advice about the investment or use of money to be received on redemption. Olsson AJ concluded that the advices which were received by Mr Mericka did not comply with section 42(2).
[2] [2011] SAWCT 25; [2011] SAWCT 35.
On 11 November 2011, WorkCover appealed to the Full Bench against that decision. An appeal lies to the Full Bench from a decision of a presidential member of the Tribunal only on a question of law.[3] On 25 June 2013, the Full Bench made orders allowing WorkCover’s appeal, remitting the remaining issues for determination according to law by another Member of the Tribunal and awarding the costs of the appeal to WorkCover. The Full Bench delivered reasons for judgment on 10 October 2012 and 25 June 2013.[4] The Full Bench held that Olsson AJ misconstrued the requirements of section 42(2).
[3] Workers Rehabilitation and Compensation Act 1986 (SA) s 86(1).
[4] [2012] SAWCT 42; [2013] SAWCT 20.
While the Full Bench delivered its principal reasons for judgment on 10 October 2012, it made no orders and adjourned further hearing as to the orders that may be appropriate in the circumstances. It was only on 25 June 2013 that the Full Bench made orders on the appeal.
On 16 July 2013, Mr Mericka filed in this Court a notice of appeal in which he sought permission to appeal.[5] The appeal was filed within 21 days of the orders made by the Full Bench on 25 June 2013 as required by rule 281(1) of the Supreme Court Civil Rules 2006 (SA). Mr Mericka is unrepresented in this Court and was unrepresented in the proceedings before Olsson AJ, although he was represented by counsel on the appeal to the Full Bench. An appeal lies to this Court from a decision of the Full Bench but only on a question of law with the permission of this Court.[6]
[5] Workers Rehabilitation and Compensation Act 1986 (SA) ss 86A(2) and (2a); Supreme Court Civil Rules 2006 (SA) rules 282(2)(e) and 289(1)(a).
[6] Workers Rehabilitation and Compensation Act 1986 (SA) ss 86A(2) and (2a).
The notice of appeal complains of the whole of the judgment and orders made by the Full Bench of the Workers Compensation Tribunal. The notice may be properly understood to directly challenge the Full Bench’s construction of section 42 of the Workers Rehabilitation and Compensation Act as opposed to that adopted by Olsson AJ at first instance. The Notice by ground 13 complains that the members of the Full Bench did not have regard to the “Legislatured [sic] Statutory Requirements (required by the Act) for ... Compliance with section 42 of the Act as Parliament had intended”.
The proper construction of section 42(2) insofar as it refers to competent professional advice about the consequences of redemption and competent financial advice about the investment or the use of money to be received on redemption raises a question of law. This question is of general public importance and has not to date been addressed by this Court. It is sufficiently arguable that the construction of section 42(2) adopted by the Full Bench was erroneous to warrant a grant of permission to appeal.
The notice of appeal identifies many other purported grounds of appeal. In this respect, it is a rambling and unattractive document. These grounds seek to agitate many peripheral questions, including disqualification of members of the Full Bench for apprehended bias, evidentiary issues and a contention that the Full Bench did not have jurisdiction to hear the appeal. These peripheral contentions do not in our view raise arguable questions of law.
We would grant permission to appeal limited to the question of the proper construction of section 42(2) of the Workers Compensation and Rehabilitation Act. Given the significance of this matter, including its general public importance, the Court would be assisted if Mr Mericka were represented by legal counsel on the hearing of the appeal.
In his notice of appeal, Mr Mericka seeks an extension of time in which to appeal on the ground that he believed that no appeal lay until 25 June 2013. The Full Bench made no orders on the appeal until 25 June 2013. It would appear that in the circumstances no extension of time is required.
VANSTONE J:
The Court has before it the application of Alexander David Mericka for permission to appeal against a decision of the Full Bench of the Workers Compensation Tribunal (the Full Bench) which was delivered on 10 October 2012. There is also an application for an extension of time within which to appeal.
The original decision was that of Olsson AJ in the Workers Compensation Tribunal delivered on 5 September 2011. Upon appeal to the Full Bench that decision was reversed and the present applicant’s claim was dismissed. Thus, the applicant failed in his quest to have his redemption agreement with the compensating authority set aside by reason of non-compliance with s 42 of the Workers Rehabilitation and Compensation Act 1986 (the WRC Act).
This matter has a long and unfortunate history, of which the present application constitutes another chapter.
Procedural matters
The right of appeal from a decision of the Tribunal to this Court is provided in s 86A of the WRC Act. It provides as follows:
86A—Reference of question of law and final appeal to Supreme Court
(1)     A Full Bench of the Tribunal may refer a question of law for the opinion of the Full Court of the Supreme Court.
(2)     Subject to subsection (2a), an appeal also lies on a question of law against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.
(2a)   An appeal cannot be commenced under subsection (2) except with the permission of a Judge of the Supreme Court.
(3)     On a reference or appeal under this section, the Full Court of the Supreme Court may—
(a)decide the question of law;
(b)refer the matter back to the Tribunal with directions the Full Court considers appropriate;
(c)make consequential or related orders (including orders for costs).
It will be noted that an appeal cannot be commenced except with permission of a judge of this Court: s 86A(2a).
The manner of seeking permission to appeal is dealt with in Rule 289 of the Supreme Court Civil Rules 2006. That Rule provides as follows:
289—Appeals to the Full Court – Manner of seeking permission to appeal
(1) When permission to appeal is required and the appeal will, if permission is granted, be heard by the Full Court, the appellant may seek permission to appeal:
(a)by commencing the appeal in the ordinary way and including in the notice of appeal a request for the necessary permission;
(b)if a statute authorises a single Judge to grant permission to appeal to the Full Court, by filing, within 14 days after the date of the judgment against which the appellant seeks to appeal, a summons for permission to appeal;
or
(c)if the appeal is against a judgment of a single Judge or Master of the Court, by making, within 14 days of the judgment, application to that Judge or Master for permission to appeal.
(2) If an application under subrule (1)(c) is refused, the appellant may renew the application to the Full Court by commencing, within 14 days of the refusal, an appeal in the ordinary way under rule 290 and by including in the notice of appeal a request for the necessary permission.
On my reading of Rule 289 the application for permission in this case might have been sought either by commencing the appeal in the ordinary way and including in it the request for permission (Rule 289(1)(a)) or by filing a summons for permission to appeal under Rule 289(1)(b). Which path is selected affects the way in which this Court deals with the application. I pause to say that conceivably the rule could be read as dictating the procedure in subrule (1)(b) be followed where the statute under consideration authorises a single judge to grant permission. However, I rather think that the rule should be read as permitting an application under (a) in all circumstances, and as additionally permitting the applications as contemplated by (b) and (c) where an applicant can bring himself within either of those subparagraphs.
In the present case the Notice of Appeal contains the request for the necessary permission and no summons for permission to appeal has been filed. Thus it appears that Rule 289(1)(a) is invoked. In those circumstances Rule 290 regulates the ensuing procedure. Had the application been made under Rule 289(1)(b) then the procedure would have been as set out in Rule 291.
Rule 290(6) provides that the Full Court will ordinarily consider the application for permission without hearing from the respondent and may, at its discretion, determine the application without hearing oral argument from the appellant. If the application is granted then further directions may be given. On the other hand the application may be refused. (Had the application proceeded by way of Rule 289(1)(b) with a summons for permission to appeal, then the matter would go before a single judge.)
And so, on my reading of the Rules, three judges should determine the application in private, at least in the first instance.
For the following reasons I consider permission to appeal should be refused.
Proposed grounds of appeal
Before turning to the proposed grounds, I set out a brief chronology.
27/01/2006Farrell DP says in the course of a directions hearing that she would feel unable to hear the trial of the matter and that other members of the Tribunal may well consider themselves disqualified.
05/09/2011Decision of Olsson AJ.
11/11/2011, 21/12/2011, 11/07/2012 and 03/03/2013
Applicant claims to have filed “Notices of Objection” going to composition of the Full Bench.
08/05/2012, 24/05/2012
Full Bench hears appeal.
10/10/2012Full Bench delivers judgment allowing appeal.
25/06/2013Further determination by Full Bench regarding remitter and costs.
05/07/2013Applicant’s counsel before the Full Bench, Mr Zollo, withdraws from file.
16/09/2013Notice of Appeal filed in Supreme Court.
19/11/2013Application books received.
The grounds appear to have been drafted by the applicant himself. That is so notwithstanding that before the Full Bench he was represented by Mr Zollo. Indeed, the time within which to appeal had well and truly run by the time Mr Zollo withdrew. Some of the grounds raise the same points and I shall group them accordingly. Indeed the applicant himself has, in some instances, grouped them in the same way.
The Notice of Appeal is a rather difficult document. It begins by setting out apparent proposed grounds of appeal numbered 1 to 17. It then deals with the extension of time issue and then again purports to set out grounds of appeal, these being numbered only 1 to 14. In the summary of argument filed on 27 September 2013 are reproduced the proposed grounds and supporting contentions which appear in the latter part of the Notice of Appeal. Although the numbering differs the essential arguments appear to be encompassed in the summary of argument document. Accordingly, it is those grounds of appeal which I shall now address.
Grounds 1 and 2 – Asserted want of jurisdiction in Full Bench
Grounds 1 and 2 assert that the Full Bench did not have jurisdiction to hear the appeal from Olsson AJ. It is contended that because the applicant had filed a certified copy of Olsson AJ’s judgment in the District Court pursuant to s 87A of the WRC Act, the appeal to the Full Bench was not competent.
Section 87A of the WRC Act provides that upon filing a judgment or order of the Tribunal in the District Court, it may be enforced as a judgment or order of that Court. Plainly, such a filing has no impact on the right of either party to appeal to the Full Bench.
Ground 3 – Asserted decision by Farrell DP that all Tribunal members were disqualified
What purports to be a brief excerpt of transcript before Farrell DP on 27 January 2006 is set out in the applicant’s summary of argument at page 6. It appears to be transcript of a pretrial conference or directions hearing. Then under discussion was the question of whether Farrell DP could hear the trial in the matter in view of the fact that Mr Lieschke’s conduct was to be at issue and he had, in the meantime, been appointed to the Tribunal. According to the transcript set out, Farrell DP expressed the view that she would not wish to hear the trial and that others might be in the same position.
In his argument the applicant elevates this interchange to the status of a decision binding not only on Farrell DP but on all other Tribunal members. He then asserts that that decision was later “set aside” at the time of constituting the Full Bench.

Plainly, Farrell DP’s intimation could have no impact on the attitude of other members of the Tribunal to hearing the trial. In any event the trial was heard by Olsson AJ. The applicant’s argument does not distinguish between composition of the Tribunal at trial, as opposed to composition of the Full Bench. Clearly, different issues would arise. Moreover, by the stage of the composition of the Full Bench being determined, the mere fact that Mr Lieschke had been appointed to the Tribunal, if grounds for disqualification of itself, would mean that no Full Bench could be constituted. Of necessity, the appeal had to be heard by members of the Tribunal.
In any event, as foreshadowed, the argument also overlooks the fact that the Full Bench could only entertain an appeal on the basis of an error of law: s 86(1) WRC Act. The Full Bench approached the matter in that way. The matter of law consisted of statutory construction of provisions of the WRC Act.
This ground largely merges with proposed ground 4 which asserts that all Tribunal members were conflicted and should have been disqualified. In support of this ground it is asserted that because the Tribunal considered, in the course of its decision, decisions of other Tribunal members, the Full Bench had a “conflict of interest”. Proposed ground 4(d) goes further and appears to assert actual bias, due to Mr Lieschke being “colleagues” and “personal friends” of other Tribunal members.
What I have said above also applies to this particular.
Grounds 5, 6 and 7 – Further allegations of bias
Ground 5 asserts that “Notices of Objection” to the composition of the Full Bench were filed at various times. It is asserted that these were misplaced or lost but in any event, not dealt with.
It is not apparent from the judgment of the Full Bench that any objection to its composition was made before it or dealt with by it. Indeed, the second paragraph of the decision of the Full Bench already mentioned discussed the issue of competence of the appeal, but made no reference to any such application.
Ground 6(a) asserts that Mr Lieschke sent an offensive email to the legal representatives of the compensating authority during the hearing before Olsson AJ. There is no evidence in support of this allegation which, even if true, could have had no impact on any decision.
Proposed ground 7 asserts that Mr Lieschke, as a Deputy President, improperly used his position in an attempt to influence the proceedings. In my view it is plain that the applicant has misconstrued the purpose and tenor of the communications he sets out. In any event, these communications do not have any impact on the decisions of Olsson AJ or the Full Bench. It appears that at least some of these communications were aired in the trial and Olsson AJ raised the question whether Mr Lieschke had breached his obligations to the applicant. In my view these matters have nothing to do with any appeal to this Court. The ground should be struck out.
Ground 8 – Use of defendant’s chronology
Here the applicant argues that the Full Bench wrongly used a chronology of facts provided by the appellant’s counsel before the Full Bench, rather than that used by Olsson AJ. No particular factual error is identified. It appears that the applicant misapprehends the purpose of provision of a chronology. But, in any event, at [7] the Full Bench set out a chronology based on that used by Olsson AJ.
Ground 9 – Use of medical and psychiatric evidence
This proposed ground asserts that the Full Bench wrongly failed to have regard to medical and psychiatric material bearing on the applicant’s health.
In my view this ground mistakes the ambit of the appeal before the Full Bench. The material was irrelevant.
Ground 10 – Further material not considered
This ground asserts that further material before Olsson AJ was not considered by the Full Court.
What I said in relation to ground 9 applies.
Ground 11
Ground 11 asserts that photocopies rather than original or certified documents were tendered by the compensating authority.
Even if true, this assertion does not figure in the Full Bench’s reasons and can have no relevance to the issue before the Full Bench.
Ground 12 – Question of compensating authority’s awareness of advice given to the applicant
This ground asserts an error by the Full Bench but fails to stipulate in what paragraph of the Full Bench’s reasons the error is said to have been made. I cannot locate any likely candidate. In any event, the ground raises a question of fact which was before the trial judge and does not go to the question of statutory interpretation.
Ground 13 – Use of redemption agreement documents
This ground appears to contend that, instead of construing the meaning of s 42 WRC Act, the Full Bench took as its starting point the content of the relevant redemption agreement. The particulars go on to assert that the agreements did not comply with the rules of the Tribunal.
This contention appears to me to be outside the ambit of the appeal to the Full Bench.
Ground 14
This ground focuses on the signing of the redemption agreement and advice certificates. Again, insofar as I can understand the arguments they appear to raise questions of fact which are outside the matters of statutory interpretation dealt with by the Full Bench.
Conclusion as to proposed grounds
I consider that none of the grounds in the notice is reasonably arguable. I say that even assuming the factual matters asserted in the notice. I would refuse permission to appeal.
Extension of time
There appears to be some confusion about what, if any, orders were made on 10 October 2012, when the Full Bench delivered its judgment. It may be that the date from which “time ran” was much later. If so it may be that the applicant does not require an extension of time within which to appeal. Having said that I shall deal with the matter on the basis that an extension is required.
The argument that time within which to appeal should be extended amounts first to a contention that Mr Zollo misled the applicant as to the appropriate time for filing a notice of appeal in the Supreme Court and, secondly, that Mr Zollo’s withdrawal meant that the applicant was unable to progress his application. There is no sworn material in support of the factual matters asserted.
I would refuse the application for an extension of time both on the basis that the proposed appeal is without merit and also because there is no acceptable material before the Court to justify the substantial extension sought.
Since compiling these reasons I have had the benefit of seeing the reasons of Gray and Blue JJ. Their Honours would grant permission to appeal on the question of the construction of s 42(2) WRC Act. In my view no ground of appeal raises any question of statutory construction. Nor is it apparent to me that the decision of the Full Bench is arguably wrong. I would not be prepared to acquiesce in the grant of permission to appeal some fourteen months after delivery of the judgment on a ground not raised by the applicant.

[2014] SASCFC 15

4 March 2014

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice