Messent v Comdain Corporate Pty Ltd
[2022] NSWPIC 24
•18 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Messent v Comdain Corporate Pty Ltd [2022] NSWPIC 24 |
| APPLICANT: | Steven Messent |
| RESPONDENT: | Comdain Corporate Pty Ltd |
| SENIOR MEMBER: | Glenn Capel |
| DATE OF DECISION: | 18 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker’s legal representatives withdrew from proceedings; claim ill-conceived and matter not ready to proceed to a conciliation conference and arbitration hearing due to absence of crucial evidence; worker had insufficient knowledge and capacity to act as an unrepresented litigant; worker’s conduct inappropriate; Held- matter not ready to proceed to conciliation conference and arbitration hearing; proceedings dismissed for want of due dispatch. |
| DETERMINATIONS MADE: | The Commission determines: 1. The matter is not ready to proceed to a conciliation conference and arbitration hearing. The Commission orders: 2. Proceedings dismissed for want of due dispatch. |
STATEMENT OF REASONS
BACKGROUND
Steven Messent (the applicant) is 46 years old and was employed by Comdain Corporate Pty Ltd (the respondent) as a mechanical fitter.
There is no dispute that the applicant sustained an injury to his back during the course of his employment on 28 August 2019.
Liability was accepted by Employers Mutual Ltd (the insurer) in respect of his back injury, but it denied liability in respect of a claim for dental and medicinal cannabis treatment. Weekly compensation and medical expenses have been paid, and he is currently waiting to have back surgery.
Of relevance to the current dispute, on 3 November 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), disputing that it was liable for the cost of maintenance of his lawn, as the cost was not one of the listed types of medical or related treatment identified in ss 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).
The insurer advised that it had already paid for lawn mowing services for a period of three months in accordance with s 60AA of the 1987 Act and in the absence of an assessment of whole person impairment in excess of 15%, he was not eligible for further assistance.
The insurer noted that it had agreed to pay for one single service on or about 23 September 2020, but on 23 October 2020, the service provider, Perfection Gardens, declined to mow the applicant’s lawns due to the poor state of the grass. Another provider, Jim’s Mowing, advised the insurer on 30 October 2020 that because of the type of the weed, he was unable to mow the lawn, and the only option was poisoning the lawn or returfing. The former was not an option because the applicant owned a dog. The insurer indicated that returfing was not a medical or related form of treatment under s 59 of the 1987 Act.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 29 September 2021, the applicant claims medical or related expenses described as lawn returfing in the sum of $500, presumably pursuant to
s 60 of the 1987 Act as a result of injury sustained to his lower back on 28 August 2019.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for a telephone conference before General Member Scarcella on
28 October 2021. He issued a Direction in the following terms:“1. By consent, leave is granted to the applicant to amend the Application Resolve a Dispute as follows:
By amending the amount sought for future treatment, care or related
expenses to $18,326.2. The parties are directed to serve any documents that they intend to include in an Application to Admit Late Documents on the other party as soon as practically possible following receipt.
3. The matter is listed before me by audio visual link for conciliation/arbitration on 17 November 2021 at 10:00 am.”
At the conciliation conference and arbitration hearing on 17 November 2021, the applicant was in attendance. Mr Ryan Brown of counsel had been retained for the applicant by Mr Ferraro, solicitor of Turner Freeman. Mr Brown advised Member Scarcella that he and his instructing solicitors would no longer able to act for the applicant and they sought leave to withdraw. The Member granted the application. The Member referred the matter back to the Division Head for allocation to another member.
The conciliation conference was not recorded, but I reviewed the outcome document that was uploaded by Member Scarcella that gave details of conversations that he had with the applicant and his legal representatives. These were as follows:
“1. I was connected to the telephone conciliation/arbitration proceedings and announced by the operator at about 10:00 am.
2. I advised the participants that I would start with a roll call. I commenced by saying good morning to the applicant, Mr Messent. Mr Messent responded with a good morning and then said, “Do you want to know why it’s not going ahead, because my lawyers …” At that point, I interrupted Mr Messent and advised that I was just doing a roll call and that I would be speaking to his lawyers.” I tried to explain the process to him, but he would not permit me to. He kept talking and I endeavoured to let him know that I would come back to him. It was difficult to understand what he was saying.
3. I repeatedly requested Mr Messent to stop. He ignored me. I raised my voice to get his attention and forcefully repeated a number of times, “Mr Messent, please stop.” Mr Messent then directed a tirade of abuse at me. He said, “How dare you raise your voice at me you fucken cunt! Who do you think you are? You wouldn’t raise your voice to me if you were near me. You grey haired cunt!” He continued with the abuse with slight variations. I asked him if he had finished, so that I could continue the proceedings. He answered in the affirmative and then directed further abuse at me of the same general nature. I warned him that I would disconnect him from the teleconference if he continued so that I could speak with the other participants. He ignored me and continued his abuse.
4. It was impossible to conduct a conversation with the other participants so, I requested the operator to disconnect Mr Messent from the teleconference.
5. Once Mr Messent was disconnected, Mr Ryan Brown of counsel advised that, in conferences with him yesterday and this morning, he had informed Mr Messent that he and Turner Freeman Lawyers were no longer able to act on his behalf.
Mr Brown sought leave to withdraw and suggested that the matter be listed for a further teleconference to allow Mr Messent time to instruct another lawyer. There was no objection by the respondent.6. I contacted the Division Head and sought permission for a further teleconference. Permission was granted on the basis that the matter be referred to him for the allocation of a teleconference.
7. I made the following orders at the telephone conciliation/arbitration:
a.Leave granted to the applicant’s lawyers and counsel to withdraw from the proceedings.
b.The matter is referred to the Division Head to allocate a further teleconference.”
The matter was listed for a telephone conference before me on 14 January 2022. A recording was taken of the discussions and I do not propose to repeat them here. A transcript will be available on request.
I was informed by the telephone operator that he had sworn at her at least two times when she tried to connect him to the telephone conference.
The applicant was eventually joined to the conference. Mr Poulos, solicitor, appeared on behalf of the respondent. Two representatives of the insurer were in attendance.
The applicant informed me that he was at a medical appointment. I asked him whether he had sought legal representation. He advised that he had not been told about the telephone conference by the Commission and he had found out from the Independent Review Office. A review of the Commission’s records showed that emails were sent to him on 23 November 2021 and 17 December 2021, but he denied receiving these.
The applicant stated that he had tried to contact solicitors for 1.5 weeks, but they were all on leave. I tried to determine when he had last tried to retain a solicitor, but he became abusive and merely repeated his previous comments.
The applicant advised that he was ready to proceed, he would run his own case and that his focus was on the damage that he claimed had been caused by the lawn mower service providers, rather than any payment of compensation. When I raised the issue of the limitation arising from s 60AA of the 1987 Act, he questioned my knowledge and dismissed this as being of any relevance.
During the course of the telephone conference that lasted approximately 50 minutes, I was abused, sworn at, ridiculed and criticised by the applicant. He was particularly aggressive, and he threatened me. He challenged things that I said and persistently talked over me.
Upon review of the evidence filed in the Commission, particularly in the absence of any evidence quantifying the cost of the returfing, or any evidence regarding any entitlement pursuant to s 60 of the 1987 Act, I was not satisfied that there was any merit in the applicant’s claim that lawn mowing services were a form of medical or related treatment expenses.
Accordingly I indicated that I proposed to strike out the matter, but I would provide written reasons for my decision.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application and attached documents, and
(b) Reply and attached documents.
FINDINGS AND REASONS
President Keating issued e-Bulletin No 56 in November 2013 that included the following:
“Unprepared Matters
Over recent months, the Commission has noted an increased number of matters that are not ready to proceed at the teleconference. Where an application has been commenced without adequate supporting evidence, the current time delays to teleconference provide ample opportunity for an applicant to obtain such evidence. Parties are advised that a matter not adequately prepared at teleconference, where no attempts have been made to prepare since filing, may be dismissed for want of due despatch (Rule 15.8, Workers Compensation Commission Rules 2011).”
What I need to consider is whether the current proceedings should remain on foot to allow the applicant to obtain legal representation or whether the proceedings should be struck out or dismissed for want of due dispatch.
Section 54 of the Personal Injury Act 2020 (the PIC Act) deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 15.8 of the Workers Compensation Commission Rules 2011 referred to by President Keating above has been replaced by Rule 77 of Personal Injury Commission Rules 2021 (the 2021 Rules). It provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation
legislation—the applicant has failed to prosecute the proceedings with due
despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are
referred may make any order relating to the procedure to be followed in the
proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
I raised my concerns about the merit of the claim and the lack of a properly detailed quote for the returfing. The notice of claim was not in evidence, and the applicant seemed confused about the precise nature of his claim.
The applicant indicated that he did not want any further lawn mowing services, and he only wanted the insurer to pay for the cost of rectifying the damage caused to the lawn. Given the provisions in ss 59, 60 and 60AA of the 1987 Act, I was not satisfied that there was any merit in the application based on the evidence currently before the Commission.
A further matter of concern was the applicant’s conduct during the course of the telephone conference. Provisions in the PIC Act and procedural directions are of relevance.
Section 21 of the PIC Act authorises the President to issue procedural directions in proceedings in the Commission. It provides:
“21 Procedural directions
(1) The President may give directions (procedural directions) relating to the practice and procedures to be followed in proceedings before—
(a) the Commission, or
(b) medical assessors or merit reviewers.
(2) The procedural directions must be—
(a) publicly available, and
(b) consistent with this Act and enabling legislation.
(3) Without limiting subsection (2)(a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Commission.
(4) Each of the following must comply with any applicable procedural directions—
(a) members,
(b) medical assessors,
(c) merit reviewers,
(d) the parties to proceedings and their representatives and agents.”
Section 42 of the PIC Act refers to the guiding principle that applies to practice and procedure in the Commission. It provides:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2) The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3) Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission….”
Clauses 1 and 9 of Procedural Direction PIC1-Conduct of parties during proceedings are also of relevance:
“1. Parties to proceedings in the Commission are expected to abide by certain
behavioural and conduct standards during the course of their proceedings.
This Procedural Direction sets standards for parties as well as additional
expectations of representatives.”, and“9. Parties to proceedings, and representatives of parties, must cooperate with the Commission to give effect to the guiding principle, and in so doing, comply with the PIC Act, the PIC Rules, any Procedural Directions, and any direction given by the Commission.”
The Commission expects that certain standards of conduct are maintained during proceedings. There is an expectation that representatives or their agents appearing before the Commission should, amongst other things, behave courteously and respectfully to the opposing party, and his or her representative, to any witnesses called during the proceedings, to the Member, and to Commission staff. They are not to engage in behaviour that could reasonably be perceived to be inappropriate, unprofessional, or an abuse of process. Such general principles not only apply to legal representatives, but equally apply to parties.
It is apparent from the evidence that the applicant has used inappropriate language and has been aggressive in his dealings with the insurer and the rehabilitation providers, IPAR. By letter dated 17 August 2021[1], the insurer directed the applicant to refrain from calling its staff and highlighted eight separate telephone calls. This was on a background of similar conduct in 2020. It directed that all contact be via email. It is apparent from the evidence that Turner Freeman was not the first firm of solicitors to cease acting on his behalf.
[1] Reply, p 30 – 31.
According to Member Scarcella’s summary referred to above, the applicant conducted himself in a similar aggressive fashion at the conciliation conference before him, so the inappropriate conduct exhibited by the applicant at the telephone conference before me on 14 January 2022 was not an isolated event.
I formed the view that in light of his unacceptable conduct and lack of any appreciation of the principles that were relevant to the issues in dispute, he did not have the requisite knowledge or capacity to act as an unrepresented litigant. He was also reluctant to seek legal assistance.
In my opinion, there is little prospect of the matter being advanced within a reasonable time in accordance with the normal practice in the Commission. Any further delay would be prejudicial to the respondent and it would incur unnecessary costs. I am also mindful that the respondent has already incurred costs associated with the prior telephone conference and conciliation conference.
There is nothing to prevent the applicant from lodging a further Application in the Commission, provided I dismiss these proceedings for want of due despatch, which is a prerequisite for dismissing or striking out any proceedings in accordance with the principles in Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited[2]. Hopefully, if the applicant recommences proceedings, he will take heed of the principles that apply to a party in the Commission and conduct himself appropriately.
[2] [2004] NSWWCCPD 83.
It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes. Section 354 (3) of the 1998 Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.
In the circumstances, I am satisfied that these proceedings should be dismissed for want of due despatch. I propose to make such orders.
FINDINGS
The matter is not ready to proceed to a conciliation conference and arbitration hearing.
ORDERS
Proceedings dismissed for want of due despatch.
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