Mericka v Return to Work Corporation of South Australia

[2020] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

MERICKA v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2020] SASC 152

Reasons for Decision of The Honourable Justice Bampton

11 August 2020

WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES

Application for permission to appeal decision of the Full Bench of the South Australian Employment Tribunal – where applicant was injured during the course of his employment in 1993 and entered into redemption agreements with WorkCover in 1997 – where applicant unsuccessfully sought to set aside redemption agreements at first instance and on appeal.

HELD: Permission to appeal refused – the application does not raise any matter of sufficient substance to justify the grant of permission – none of the proposed grounds of appeal are reasonably arguable.

Workers Rehabilitation and Compensation Act 1986 (SA) s 42; Fair Trading Act 1987 (SA); Trade Practices Act 1974 (Cth), referred to.
Mericka v Employers Mutual/WorkCover Corporation [2014] SASCFC 99; Mericka v Employers Mutual Ltd/WorkCover Corporation [2011] SAWCT 25; WorkCover Corporation/Employers Mutual Ltd v Mericka [2012] SAWCT 42; Mericka v Return to Work SA [2018] SAET 104; Mericka v Return to Work Corporation of South Australia [2020] SAET 78, discussed.

MERICKA v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASC 152

Civil:  Permission to Appeal

1. BAMPTON J:     Mr Mericka seeks permission to appeal to the Full Court from a decision of the Full Bench of the South Australian Employment Tribunal delivered on 1 May 2020, dismissing his appeal against a decision of Auxiliary Judge Clayton.[1]

   [1]    Mericka v Return to Work Corporation of South Australia [2020] SAET 78.

2. It is necessary to detail the history of this matter before the South Australian Workers Compensation Tribunal to understand the decision sought to be appealed.  The following history is gleaned from paragraphs [3] to [23] of the Full Bench’s judgment.

3. Mr Mericka was injured during the course of his employment in May 1993.  His claim for workers compensation was accepted, and payments were made to him, including income maintenance and medical expenses.

4. In 1996, discussions took place between Mr Mericka’s then solicitors and solicitors representing the WorkCover Corporation of South Australia (“WorkCover”) in relation to the potential for Mr Mericka to be paid a lump sum redemption in lieu of any ongoing income maintenance and medical expenses pursuant to s 42 of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the WRC Act”).

5. In May 1997, redemption agreements were entered into between Mr Mericka and WorkCover whereby Mr Mericka was to be paid an amount of $80,000 in lieu of ongoing income maintenance payments, and $20,000 in lieu of ongoing payments of medical expenses. A further sum in the order of $100,000 was also agreed to be paid for Mr Mericka’s permanent impairment entitlements pursuant to s 43 of the WRC Act.

6. Consent orders were accordingly made in the Workers Compensation Appeal Tribunal to give effect to the agreement reached between Mr Mericka and WorkCover.

7. In 2005, Mr Mericka sought to claim further amounts of workers compensation benefits with respect to the injuries which were the subject of the redemption agreements.[2]  WorkCover denied that it had any liability and relied on the redemption agreements which had finalised Mr Mericka’s ongoing entitlements.

   [2]    Mericka v Employers Mutual/WorkCover Corporation [2014] SASCFC 99 at [10].

8. Mr Mericka filed a notice of dispute challenging the rejection of his 2005 claims for compensation and the validity of the redemption agreements.

9. Mr Mericka also filed other notices of dispute challenging various determinations which had been made by WorkCover in relation to his compensable injuries.

10. Mr Mericka’s primary dispute was heard by Auxiliary Judge Olsson over 36 days between October 2005 and March 2011.  During this hearing, Mr Mericka claimed that the redemption agreements “…were entered into as a consequence of undue influence and duress on the part of the Compensating Authority”.[3] Mr Mericka also alleged that the redemption agreements “…were executed in circumstances that do not comply with the requirements of section 42 of the Workers Rehabilitation and Compensation Act 1986; were the product of misleading and deceptive conduct; in breach of the provisions of the Fair Trading Act 1987 (SA) and/or the Trade Practices Act 1974 (Cth); and were the product of unconscionable conduct on the part of the compensating authority”.[4]

    [3]    Mericka v Employers Mutual Ltd/WorkCover Corporation [2011] SAWCT 25 at [10].

    [4] [2011] SAWCT 25 at [10].

11. Auxiliary Judge Olsson found that the certifications that Mr Mericka had received competent financial and legal advice, required for the redemption agreements to be made, were inadequate, did not comply with s 42 of the WRC Act, and as a consequence the redemption agreements were void.[5]  Auxiliary Judge Olsson did not determine the other aspects of Mr Mericka’s claim.  Those aspects included the requirement for Mr Mericka to be granted an extension of time to dispute the determinations that were made in conjunction with the redemption agreements and the claimed unconscionable and related conduct in relation to the making of the agreements (“the residual claims”).[6]

    [5] [2011] SAWCT 25 at [736].

    [6]    [2011] SAWCT 25 at [780]-[786].

12. WorkCover appealed the decision of Auxiliary Judge Olsson to the Full Bench of the Workers Compensation Tribunal. The appeal, pursuant to s 86 of the WRC Act, was limited to a question of law. The Full Bench determined that the primary issue before it was the proper construction of s 42 of the WRC Act.[7] The Full Bench upheld the appeal by WorkCover and found that Auxiliary Judge Olsson had misinterpreted s 42 of the WRC Act and the correct meaning of professional and financial advice.[8]  The Full Bench was then required to determine how the “residual claims” which were not dealt with by Auxiliary Judge Olsson were to be determined.[9]  The Full Bench remitted the residual claims for hearing.  Mr Mericka appealed the decision of the Full Bench to the Full Court of the Supreme Court of South Australia.  The Full Court, by majority, dismissed the appeal.[10]  Mr Mericka’s application for special leave to appeal to the High Court against the dismissal of his appeal by the Full Court was also dismissed.[11]

    [7]    WorkCover Corporation/Employers Mutual Ltd v Mericka [2012] SAWCT 42 at [77].

    [8]    [2012] SAWCT 42 at [95], [184] and [185].

    [9]    WorkCover Corporation /Employers Mutual Ltd v Mericka [2013] SAWCT 20 at [4].

    [10] [2014] SASCFC 99.

    [11] [2015] HCA Trans 64.

13. Thereafter, the residual claims were heard by Auxiliary Judge Clayton between March 2017 and May 2018 over 44 days.

14. Auxiliary Judge Clayton found that Mr Mericka had not established any basis for extensions of time within which to file notices of dispute concerning the residual claims.  His Honour determined that there was no basis to set aside the agreements between Mr Mericka and WorkCover and found that Mr Mericka’s evidence before Auxiliary Judge Olsson and before him was false and dishonest.  His Honour found that in May 1997 Mr Mericka voluntarily entered into a binding agreement to redeem his entitlement to compensation, that WorkCover did not engage in conduct that was unconscionable or in contravention of the “residual claims” and Mr Mericka was not rendered “vulnerable” by the conduct of WorkCover.[12]

    [12] Mericka v Return to Work SA [2018] SAET 104.

15. In short, Auxiliary Judge Clayton found that there was no merit to the claims made by Mr Mericka and there was no basis to set aside the redemption agreements.

16. The Full Bench dismissed Mr Mericka’s appeal against the decision of Auxiliary Judge Clayton.  The Full Bench held that Mr Mericka had not made out any error of law in any of the 84 grounds of appeal he had argued.

17. Mr Mericka’s application for permission to appeal does not raise any matter of sufficient substance to justify the grant of permission.  Having regard to the reasons for decision of the Full Bench and the factual findings of Auxiliary Judge Clayton, none of Mr Mericka’s numerous proposed grounds of appeal are reasonably arguable.

18. Permission to appeal is refused.