NESEVSKI v Berkeley Challenge Pty Ltd - [2003] WASCA 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: NESEVSKI -v- BERKELEY CHALLENGE PTY LTD [2003] WASCA 65

CORAM: MURRAY J
WHEELER J
HASLUCK J

HEARD: 12 MARCH 2003

DELIVERED : 28 MARCH 2003

FILE NO/S: FUL 131 of 2002

BETWEEN: DUSAN NESEVSKI
Appellant
AND
BERKELEY CHALLENGE PTY LTD
Respondent

Catchwords:

Workers' Compensation - Appeal from decision of Review Officer to Compensation Magistrate - Adjournment - Discretionary judgment - Turns on own facts

Workers' Compensation - Costs

Legislation:

Workers' Compensation and Rehabilitation Act (1981)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A J Castley
Respondent: Mr J P Wilson

Solicitors:

Appellant: Bradford & Co
Respondent: Srdarov Richards Burton

Case(s) referred to in judgment(s):

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Brown v Metro Meat International [2000] WASCA 123
Jackamarra v Krakouer (1998) 195 CLR 516
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

Nil

MURRAY J: I am in complete agreement with the reasons for decision now published by Wheeler J. It is important, I think, having regard to the nature of the proceedings before the review officer and the statutory context in which the question at issue was to be determined, to which Wheeler J refers, that the accepted principles of case management be applied to an application for an adjournment in circumstances such as those in this case.
It is insufficient to seek an adjournment upon the ground that any prejudice which may be suffered by the respondent may be cured by an award of costs. To approach the question of adjournment in the manner suggested by this Court involves no risk that the application of case management principles will cause injustice to the appellant in a case where his application for an adjournment was insufficiently supported by the establishment of an arguable case: cfQueensland v JL Holdings Pty Ltd (1997) 189 CLR 146.
The appeal should be dismissed.
WHEELER J: This is an appeal from a decision of a Compensation Magistrate refusing an application for leave to extend time within which to appeal from a decision of a review officer. On 26 October 2001 the review officer had refused the appellant's application for an adjournment of a review. Once the adjournment application was refused, the appellant sought to "withdraw" the application for determination of his degree of disability. That application was dismissed by the review officer, and the appellant was ordered to pay the respondent's costs thrown away by reason of the unsuccessful adjournment application. The terms of that last order are not precisely clear, but it seems that what was intended was that the respondent should have the costs of 26 October.
No complaint is made about the manner in which the Compensation Magistrate approached the principles governing applications for extension of time. She considered four factors, they being:
the length of the delay;
the reasons for delay;
whether there is an arguable case; and
the extent of any prejudice.

So far as the merit of the proposed appeal was concerned, her Worship referred to Jackamarra v Krakouer (1998) 195 CLR 516 and noted that, since the appeal period had lapsed, the respondent had a vested right to retain the judgment. The merits of the proposed appeal were relevant to the question of whether that vested right should be put at risk.

The present appeal is directed at her Worship's assessment of the merits of the proposed appeal before her. It is submitted that the Compensation Magistrate erred in law in finding that the review officer had correctly exercised his discretion in refusing to grant the adjournment and in making the award of costs. An understanding of the chronology of events preceding the adjournment application is necessary to an understanding of that argument. A chronology of relevant events is set out below.
14 May 1996Appellant suffers disability (back injury).
1998Appellant returns to pre‑accident employment.
8 December 1999                 Dr Hewett, appellant's general practitioner, provides report expressing his view that appellant's degree of permanent whole body disability is exactly 30 per cent.
12 December 1999 Referral form lodged by appellant, within the time prescribed for the purpose of s 93D(5) of the Workers' Compensation and Rehabilitation Act (1981) (the "Act").
23 May 2000  First "preliminary review" before review officer. At that time, the respondent suggested that Dr Hewett's report was inadequate. The matter was adjourned sine die.
14 February 2001                 The appellant's solicitors wrote to Dr Hewett seeking clarification of his report.
19 February 2001                 Review officer issued notice of listing of second preliminary review, including a direction concerning the identification of "the nature and extent of any delay to the readiness of the matter to proceed to review".
6 March 2001  Second preliminary review, directions made as to filing and service of reports, authorities etc.
3 April 2001, 7 May 2001     Appellant reviewed by an occupational physician and an orthopaedic surgeon respectively on behalf of respondent.
23 May 2001  Medical reports of respondent's medical witnesses provided (late) to appellant - should have been two clear days prior to review.
25 May 2001  Review adjourned sine die notwithstanding objections of respondent.
7 August 2001  Notice of relisting of review issued, assigning 26 October 2001 as new date.
29 August 2001  Appellant's solicitors make appointment with Professor Mastaglia, appointment scheduled for 1 November 2001.
25 September 2001, 2 October 2001
Appellant informs respondent and review officer respectively of request for adjournment of relisted review.
15 October 2001                  Respondent advises adjournment will be opposed.
19 October 2001                  Review officer advises appellant in writing that question of adjournment will be argued at review hearing.
26 October 2001                  Review hearing.
On 26 October, counsel for the appellant conceded that Dr Hewett's report did not comply with the requirements of the Act. He was unable to explain why no earlier appointment with Professor Mastaglia or any other medical practitioner could have been organised. He did not point to any material which gave any indication as to what views Professor Mastaglia might relevantly form. In essence, the submission by counsel for the appellant was that the delay could, so far as the respondent was concerned, be curable by costs, while an adjournment was necessary for the appellant to "afford the [appellant] the opportunity of obtaining this report from Professor Mastaglia and, depending on what the result of that examination is and the contents of Professor Mastaglia's report, the matter will be taken further from there".
Her Worship noted that the review officer had, in written reasons, set out in careful detail the submissions made in relation to the application to adjourn. The review officer had regard to the principles set out in the Act, in particular those in s 3(d) and s 84ZA(2). He expressed the view that the appellant had had sufficient time to prepare his case and that the submissions advanced on his behalf did not reveal any reason why the obtaining of a further medical report could not have been attended to at an earlier date. The review officer considered that fairness to the respondent employer was a relevant consideration. He noted, in that context, the delay and expense already occasioned by adjournments and the potential for further delay and expense likely to flow from the receipt of a report issued by Professor Mastaglia, possibly involving or requiring further referrals of the appellant to other qualified medical practitioners. The review officer recognised that there would be prejudice to the appellant if an adjournment were not granted, in that on the evidence at that stage before the review officer the question of the worker's disability would be determined, or would be likely to be determined, adversely to the appellant.
Her Worship referred to the fact that the appeal against a refusal to grant an adjournment is an appeal against a discretionary judgment, so that the "strong presumption" in favour of the correctness of the decision appealed from was applicable: Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627 per Kitto J. Her Honour also referred to Brown v Metro Meat International [2000] WASCA 123 as authority for the proposition that a discretionary decision reveals no error simply because a different decision was open or even was preferable. Her Honour referred to pages 6 ‑ 7 of my reasons for decision in that case (with which Kennedy and Parker JJ agreed) as authority for the proposition that the Act requires the balancing of a number of factors, so that the review officer must not only act fairly but must also act economically, informally and quickly. Those expressions have their statutory bases in s 84ZB and s 3(b) of the Act. Her Worship considered that in those circumstances the proposed appeal had no merit.
So far as costs were concerned, her Worship noted that the review officer had not set out in his written reasons the provisions of s 84ZL(1), which provides that each party to the proceedings bears the party's own costs unless the review officer orders otherwise. However, her Worship noted that the review officer did refer to two unreported decisions dealing with the question of costs and that there was a passage in his decision which clearly indicated that he was aware that costs were not to be awarded in the "normal case".
Her Worship considered that it was clear from the proceedings before the review officer that the appellant came to the hearing with the intention of seeking an adjournment and of withdrawing if the adjournment was not granted. The respondent had not been advised that the appellant proposed to withdraw if the adjournment was not granted, and therefore not only prepared argument in relation to the question of adjournment, but also prepared for a review hearing on the merits, in case the adjournment should not be granted and the appellant wished to proceed.
In circumstances where: the matter had first been adjourned at the request of the appellant in May 2001 because of an alleged need to obtain further medical evidence; no such evidence had been obtained; a further adjournment was sought for precisely the same reason some five months later; and the respondent had been put to the expense of preparation which, as the appellant knew but the respondent did not, would have been unnecessary whatever the result of the adjournment application, her Worship considered that it was open to the review officer to compensate the respondent for that abnormal expense by an award of costs.
As to the question of adjournment, I am unable to see any error in any aspect of the decision of the review officer, or in the Compensation Magistrate's evaluation of the review officer's reasons. In this Court, as in courts throughout Australia, it has been increasingly recognised that the interests of justice require recognition of the very real costs - in terms of money, time, and often emotion - associated with undue delay. Case management principles recognise the interests of individual litigants and of the public at large in the efficient disposition of litigation.
The "case management principles" under the Act are made explicit in the Act itself. In particular, s 3(d) includes amongst the "purposes" of the Act, that of making provision for the hearing and determination of disputes "in a manner that is fair, just, economical, informal and quick". There is obviously considerable overlap between those terms. Fairness and justice, for example, are very broadly the same concept. There will sometimes be tension between those concepts; most obviously, an undue emphasis on informality or speed may lead to injustice. However, all of those terms must be given due weight and an appropriate balance struck between them. It is not open to suggest, as it appears the appellant's argument does suggest, that any amount of delay must be tolerated in order to ensure that no possible prejudice is occasioned to an applicant, even where the delay is both unexplained and of the applicant's own making. I note that the legislative concern to avoid delay is also evident in the strict time limits provided within which an applicant with a significant disability (that is one exceeding 16 per cent but under 30 per cent) must elect to pursue his or her right to seek damages.
In the present case, it seems to me that there was no reason whatever pointing in favour of the granting of an adjournment. The party who seeks an adjournment is always seeking the indulgence of the tribunal. There must be some explanation of the reason why an adjournment is sought, and an identification of the way in which the interests of justice would be advanced by the granting of the adjournment, or would be hindered by the refusal to grant it.
In this case, there was no explanation for the appellant's very lengthy delays. There was no explanation as to why it was not possible for the appellant to see Professor Mastaglia, or some other appropriate medical practitioner, at an earlier date. There was no explanation of any steps which had been taken to obtain an appropriate appointment for the appellant. Although it was faintly suggested by the appellant's counsel that there may have been some dilatory behaviour on the part of the appellant's solicitors, there was no affidavit or other material from the solicitors confirming that they had been responsible for any delay or explaining why the delay had occurred. In short, there was simply no explanation at all for the appellant's inability to proceed on the review date.
As against that, there was the purely speculative advantage which the appellant might obtain from a report of Professor Mastaglia. That advantage would flow only if Professor Mastaglia did form a view favourable to the appellant and such favourable view outweighed the evidence already produced on the part of the respondent. I would not consider that it would be necessary for a party seeking an adjournment in order to obtain further evidence, to be able to satisfy the tribunal or court that the evidence, if obtained, would inevitably favour that party. However, there must be some reasonable grounds which can be pointed to

as indicating that the evidence may be of some assistance, before an application for an adjournment for such a purpose would be granted. It is not enough to suggest to the tribunal that although there is presently no evidence suggesting that the applicant for adjournment has a meritorious case, the applicant hopes that some such evidence might be able to be obtained in the future if an adjournment were granted.

So far as costs are concerned, it seems clear enough that not only did the appellant delay in seeking the appointment which was ultimately made with Professor Mastaglia, but also the appellant unreasonably delayed in notifying the respondent that an adjournment would be sought. In addition, as I have noted, the appellant did not advise the respondent that, in any event, the outcome of the adjournment application would be decisive. The appellant thereby caused the respondent to incur unnecessary costs. In those circumstances, it does not seem to me that the review officer was in error in compensating the respondent for those costs thrown away.
In my view this appeal should be dismissed.
HASLUCK J: I agree with the reasons for decision now published by Wheeler J and agree that the appeal should be dismissed.