Prime v Colliers International (NT) Pty Ltd - [2006] NTSC 83

Prime v Colliers International (NT) Pty Ltd [2006] NTSC 83
PARTIES:PRIME, David

v
COLLIERS INTERNATIONAL (NT) PTY LTD (ACN: 075 812 396)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:LA 17 OF 2006 (20528796)
DELIVERED:  31 October 2006
HEARING DATES:  12 October 2006
JUDGMENT OF:  MILDREN J
CATCHWORDS:

ADMINISTRATIVE LAW – natural justice – application for summary dismissal – claim invalid – claimant seeks relief from invalidity – not pleaded – no requirement to plead – failure of court to adequately warn it required the matter to be pleaded
WORK HEALTH – Claim – requirement claim be accompanied by medical certificate – whether failure to lodge within time limits invalidates claim – whether subsequent proceedings are a nullity – whether worker can seek relief under s 182(3) or must start again – Appeal allowed
LEGISLATION:
Work Health Act (NT), s 62, s 63, s 73, s 80, s 80(1), s 82, s 82(1), s 82(1)(a), s 82(1)(b), s 82(2), s 85(1), s 85(1)(c), s 85(10), s 90B(2), s 103B, s 103B(a), s 103D, s 103D(1), s 103J(1), s 104(3), s 110A, s 182, s 182(1), s 182(3)
Work Health Rules (NT), r 8.03(a)
CITATIONS:
Applied:
Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387
Fletcher & Ors v Federal Commissioner of Taxation (1988) 84 ALR 295
R v Lewis (1988) 78 ALR 477
Distinguished:
CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (NT Court of Appeal, 9 December 1992, unreported)
Referred to:
Burns v The Commission for Railways [1939] WCR (NSW) 115
Johnston v Paspaley Pearls Pty Ltd (1996) 5 NTLR 199
Maddalozzo v Maddick (1992) 108 FLR 159
Murray v Baxter (1914) 18 CLR 622
Paspaley Pearls Pty Ltd v Johnston (1995) 120 FLR 377
Perfect v Northern Territory of Australia (1992) 107 FLR 428
TracyVillage Sports & Social Club v Walker (1992) 111 FLR 32
REPRESENTATION:
Counsel:
Appellant:I Morris
Respondent:  B Mangan
Solicitors:
Appellant:Maley’s Barristers & Solicitors
Respondent:  Lavan Legal
Judgment category classification:    B
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Prime v Colliers International (NT) Pty Ltd [2006] NTSC 83

No. LA 17 of 2006 (20528796)
BETWEEN:

DAVID PRIME

Appellant

AND:

COLLIERS INTERNATIONAL (NT) PTY LTD (ACN: 075 812 396)

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 31 October 2006)

This is an appeal from a decision of the Work Health Court to enter summary judgment for the respondent and to summarily dismiss the appellant’s claim.
The factual background
The appellant claims to have suffered an injury to his lower back on 5 February 2005 whilst moving furniture in the course of his employment with the respondent. The appellant claims to have continued to work in a limited capacity until his employment was terminated by the respondent on or about 17 May 2005. Since then the appellant claims to have been incapacitated for work due to his injury.
On 27 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NTSC 83
Decision Date: 31 October 2006

CaseChat Overview and Summary

In the matter of Prime v Colliers International (NT) Pty Ltd, the appeal concerns the dismissal of a claim by the Work Health Court, where the appellant, Prime, sought relief for an injury sustained during employment. The appellant alleged that he suffered a lower back injury on 5 February 2005 while moving furniture for the respondent, Colliers International (NT) Pty Ltd. Following the injury, Prime continued working until his employment was terminated on 17 May 2005. Prime filed a claim form on 27 June 2005, but did not include the required medical certificate. The employer disputed the claim on 2 September 2005 and mediation was sought, resulting in a partial resolution. Prime filed a Statement of Claim in the Work Health Court on 17 February 2006, seeking weekly payments, medical expenses, and other compensation. The respondent defended the claim on the grounds that it was not accompanied by a medical certificate.

The court needed to address two main legal issues: firstly, whether the failure to include a medical certificate with the initial claim invalidated the entire claim, and secondly, whether the worker could seek relief under section 182(3) of the relevant legislation or if the matter needed to be started anew. The court examined whether the procedural fairness of the Work Health Court was upheld and if the court should have considered the "reasonable cause" provision of section 182(3) in dismissing the claim.

The court found that the dismissal of the claim was procedurally unfair as the appellant was not adequately warned that the claim could be dismissed if it did not comply with the requirement of including a medical certificate. The court emphasised the importance of procedural fairness, stating that a court should not decide matters critical to the outcome without giving the parties proper notice and opportunity to be heard. Given the failure to warn Prime about the potential dismissal, the court held that the appeal must be allowed. The court also noted that the claim included a request for medical expenses, which was not invalidated by the absence of a medical certificate. The decision to dismiss the entire claim based solely on the failure to provide a medical certificate was deemed inappropriate. The case was remitted to the Work Health Court for further argument and consideration.

The court ordered that the appeal be allowed and the respondent's application to dismiss the claim be remitted to the Work Health Court. The court also directed that the parties be heard regarding costs.

Orders

Orders of the court

n the result, the appeal must be allowed. Having regard to the fact that the claim was also for medical expenses, the Court ought not to have dismissed the claim altogether based solely on the failure to give a medical certificate. Whether or not the Court should have exercised its discretion differently in respect of the claim for weekly compensation or should have found that there was "reasonable cause" vide s 182(3) is a matter which should be determined by the Work Health Court in accordance with these reasons. The respondent's application is remitted to the Work Health Court to hear further argument and for further consideration. I will hear the parties as to costs.

Background

Background to the litigation

This is an appeal from a decision of the Work Health Court to enter summary judgment for the respondent and to summarily dismiss the appellant’s claim.The factual background The appellant claims to have suffered an injury to his lower back on 5 February 2005 whilst moving furniture in the course of his employment with the respondent. The appellant claims to have continued to work in a limited capacity until his employment was terminated by the respondent on or about 17 May 2005. Since then the appellant claims to have been incapacitated for work due to his injury. On 27 June 2005, the worker lodged a claim form with the respondent. The claim form does not have any provision on it for a claimant to indicate whether or not the claim is only for medical expenses or also for weekly compensation. The form does, however, have on it a statement as follows:“A claim for weekly benefits must be accompanied by 2 copies of the prescribed medical certificate. If these certificates are not attached, the claim for weekly benefits is not valid.” The appellant did not lodge any medical certificate with the claim. I note that under s 82 of the Work Health Act, only one certificate is required and that the form of the certificate is not prescribed by regulation but approved by the Work Health Authority. Initially the employer deferred making a decision as to whether or not it would accept or reject the claim and arranged for the appellant to be medically examined. It is not clear whether or not the employer specifically advised the appellant of its decision to defer as required by s 85(1) of the Work Health Act, but this is not in issue in this appeal. On 2 September the employer sent by post a written notice to the appellant notifying him that the claim was disputed on the following grounds:“1. If you are suffering from an injury, which is denied, your employer disputes that your condition arose out of or in the course of your employment.2.If you are suffering from an injury, which is denied, your condition was not materially contributed to by your employment.” Following this advice, the appellant sought mediation. A mediation conference was held on 9 November 2005. On that date the mediator issued a certificate to the effect that the employer would pay only reasonable medical expenses at this stage and would consider payment for “loss of wages on supply of appropriate worker’s compensation medical certificates.” After a certificate of mediation is issued, a worker who is dissatisfied with the result of the mediation has 28 days to commence proceedings in the Work Health Court vide s 104(3) of the Act. The worker lodged an Application in the Work Health Court within that time. A Statement of Claim was filed on 17 February 2006. The claim, as pleaded, is for weekly payments, medical expenses, “payment of permanent impairment compensation”, costs and interest. The respondent filed its Defence in May 2006. In its Defence it raised a number of issues, including, by paragraph 10 of the Defence, a plea to the effect that the claim form was not accompanied by a medical certificate and no certificate was given or served on the employer within 28 days.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Morris submitted that the course adopted by the learned Magistrate was unfair and vitiated the learned Magistrate’s discretion. In support of that submission, Mr Morris referred to CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (NT Court of Appeal, 9 December 1992, unreported), but that case is not strictly on point. I take the submission to mean that the Court denied the appellant procedural fairness or natural justice. It is well established that neither a Court nor a Tribunal should decide matters which are of importance to the outcome of proceedings unless the party concerned is on notice and has been given an opportunity to be heard. If notice has not been given by the other party, it is the duty of the Court or Tribunal concerned to ensure that it does not proceed in the absence of such notice: see R v Lewis (1988) 78 ALR 477 at 481; Fletcher & Ors v Federal Commissioner of Taxation (1988) 84 ALR 295 at 308-310. I do not think it is enough in the circumstances of a case like the present to drop hints or make suggestions. If the Court intends to take such an important step as to enter summary judgment for the defendant it should have indicated its position to the plaintiff clearly so as to give the plaintiff a proper opportunity to deal with the point. I am unable to say that the appellant had no prospects of success if the appellant had been given a proper opportunity to seek relief under s 182(3) by, for example, amending his Statement of Claim, if that were necessary. I note also that there is some material already on the file of the Work Health Court which the appellant could have relied upon to show “reasonable cause”: c.f.Burns v The Commissioner for Railways [1939] WCR (NSW) 115.Conclusions In the result, the appeal must be allowed. Having regard to the fact that the claim was also for medical expenses, the Court ought not to have dismissed the claim altogether based solely on the failure to give a medical certificate. Whether or not the Court should have exercised its discretion differently in respect of the claim for weekly compensation or should have found that there was “reasonable cause” vide s 182(3) is a matter which should be determined by the Work Health Court in accordance with these reasons. The respondent’s application is remitted to the Work Health Court to hear further argument and for further consideration. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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