Rossington v Hungry Hampers Catering (No 2)
[2024] VMC 7
•29 April 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT GEELONG
WORKCOVER DIVISION OF COURT
Case No. MAG-CI-230197874
| Shaun ROSSINGTON | Plaintiff |
| v | |
| HUNGRY HAMPERS CATERING | Defendant |
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MAGISTRATE: | Magistrate M A Hoare |
WHERE HELD: | Geelong |
DATE OF HEARING: | 29 April 2024 |
DATE OF DECISION: | 29 April 2024 |
CASE MAY BE CITED AS: | Rossington v Hungry Hampers Catering (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VMC 7 |
Ruling
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WORKERS COMPENSATION – Application by plaintiff for increase to lump sum compensation – Whether delay – Whether unreasonable delay - Workplace Injury Rehabilitation and Compensation Act 2013, s 91(1)(a).
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APPEARANCES: | COUNSEL | SOLICITORS |
For the Plaintiff | Mr B Johnson | Maurice Blackburn Lawyers |
For the Defendant | Mr S Scully | Wisewould Mahoney |
HER HONOUR:
Introduction
On 11 April 2024, for reasons provided previously[1], orders were made in favour of Mr Rossington, the plaintiff, which included that the Agent’s notice of decision dated 27 August 2020 be set aside and Mr Rossington was entitled to payment of impairment benefit lump sum compensation of $17,216.00 (the lump sum) with respect to his accepted 2018 injury.
[1]Rossington v Hungry Hampers Catering VMC ( 11 April 2024)
Mr Rossington had included, in his prayer for relief, a claim for interest and costs. Accordingly, the matter was adjourned for parties to attempt to agree on proposed final orders.
There was agreement that there was no provision in the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) for payment of interest except on weekly payments[2].
[2]For completeness, that was also the case under the Accident Compensation Act 1985.
Mr Rossington instead sought compensation, being an increase to the lump sum in the sum of $1,721.60, representing one-tenth of the lump sum (the increase), pursuant to s. 94(1) of the Act; however Hungry Hampers Catering (HHC) denied any such increase was payable to Mr Rossington.
The parties therefore required a ruling on that aspect.
On 11 April 2024, having heard submissions, I ruled that Mr Rossington was not entitled to the increase in the circumstances of this case and provided reasons.
The background and factual findings appear in my previous decision which should be read in conjunction with this decision and will not be repeated here.
These were my reasons for my ruling on 11 April 2024.
Submissions for Mr Rossington
An outline of submissions by Counsel for Mr Rossington were as follows:
a.The Agent made a decision that failed to accord with its obligation to adopt and apply the Panel opinion. The decision was incorrect and unreasonable and subsequently overturned the Court.
b.In essence, Mr Rossington relied on delay in the sense that, had the Agent made a different decision at the time of the second notice subsequent to the Panel opinion, the plaintiff would have had his money much sooner.
c.It followed that s.94(1) was enlivened as there was an unreasonable delay and the plaintiff was entitled to the additional compensation provided by s.94.
d.The maximum increase of one-tenth (being $1,721.60) was the appropriate figure.
e.As for the time taken by Mr Rossington before proceedings were issued, the matter was a complicated one, there was voluminous medical evidence, and considered advice was required before litigation was launched.
Submissions for HHC
10Counsel for HHC submitted:
a.It was plain from the wording of s.94(1) that a worker needed to establish delay on the part of the Agent and that any such delay was unreasonable. Mr Rossington failed to do that.
b.The Agent made a decision in the second notice that was open to it and indeed accorded its statutory obligation (as the Agent viewed it) which was to apply the s.217(4) deduction given Mr Rossington’s prior lump sum.
c.The Agent’s conduct could not be considered unreasonable in the circumstances.
d.At no stage was the Agent responsible for any delay and at all times acted promptly unlike the plaintiff who had taken three years to issue proceedings.
e.The fact that the Agent had ‘lost the legal argument in the case’ was not grounds upon which the Court could be satisfied that the defendant caused unreasonable delay.
Analysis
11Section 94 is in similar terms to s.128 of the Accident Compensation Act 1985 (ACA) and provides, relevantly, as follows:
(1)If, in any proceedings under this Act for the payment of … compensation under Division 5 … of Part 5, a court is of the opinion that the employer, the Authority or a self-insurer is responsible for any unreasonable delay—
(a)the court may direct the amount of compensation determined and payable under this Act to be increased by an amount specified by the court; and
(b)the Authority or self-insurer must pay the person entitled to compensation the amount of the increase.
(2)…
(3)The amount of the increase must not exceed— …
(4)(b) in the case of compensation under Division 5 of Part 5, one-tenth of the lump sum calculated under that Division; …
12The burden of establishing that s.94(1) is enlivened rests with the plaintiff.
13Neither Counsel referred to case law regarding s.94(1) of the current Act nor the predecessor provisions of the ACA or Workers Compensation Act 1958 (the WCA).
14A decision directing that compensation be paid under s.94(1) of the Act is a matter of the Court’s discretion. The discretionary nature of such directions is well-established by cases that have considered the predecessor provisions in the ACA and the WCA. That was confirmed, for example by Ginnane J (as then was) in Farrell v Frances[3]. There, as his Honour observed, in referring to the various decisions referred to in the commentary to s.128(1) of the Accident Compensation Guide, each case will turn on its own facts.
[3][2017] VMC 021
15I turn to the Explanatory Memorandum regarding Parliament’s intention with respect to s.94(1). Clause 94 confirms that the provision allows the Court to increase the amount of compensation due to a worker, if the Court finds that the employer or the Authority or self-insurer is responsible for any unreasonable delay. The clause then states the provision is ‘intended to discourage undue delays on the part of the [Agent]. The increase in compensation also operates to compensate the worker for any adverse impact caused by the delay.’
16It is useful to consider what is meant by delay according to the ordinary sense of that word: the primary sense of delay according to the Macquarie dictionary (5th ed) means: “to put off to a later time, defer, postpone”. There is a secondary or alternative meaning being “to impede the progress of, retard, hinder’.
17I now turn to the timeline of events, the evidence of which was as follows:
a. Original notice of entitlement dated 4 May 2020 of zero WPI% and $nil following plaintiff’s lodgement of claim on about 11 March 2020.
b. Referral to the Panel on 4 June 2020 by the Agent within four weeks of the notice following the worker giving notice he disputed the decision.
c. The Panel’s certificate of opinion was dated 25 August 2020.
d. Second notice issued by the Agent two days after the opinion (on 27 August 2020).
e. Some three years later, by complaint dated 22 August 2023, these proceedings were initiated.
18I find, on that evidence, the Agent has not been responsible for delay at any point in the course of this matter and indeed has acted promptly.
19Indeed, the real delay in the matter relates to the plaintiff’s postponing by some three years the commencing of proceedings to dispute the second notice.
20I now turn to the submission for Mr Rossington urging that the concept of ‘delay’ in s.94(1) ought extend to the delay experienced by the plaintiff in receiving his money by reason of the Agent’s decision ultimately being overturned by the Court.
21Firstly, in my opinion, to extend to the lapse of time between an original decision and an outcome in which the original decision is overturned by a Court, is to, my mind, to stretch the word delay beyond its ordinary meaning and beyond what was intended by the Parliament. It is clear from the Explanatory Memorandum that the Parliament intended to compensate workers for undue delay on the part of the Agent rather than for the conduct or decision-making itself.
22Secondly, whilst for the reasons provided previously, I found that the Agent’s notice of decision should be set aside and that a deduction under s.217 was applied incorrectly, that is not the same as finding it unreasonable. In any event, it is quite clear from the wording of s.94(1) and from reference in the Explanatory Memorandum to ‘undue delay’ that the concept of reasonableness attaches to delay rather than the decision itself.
23Thirdly, as I have said the three year delay in issuing proceedings was the plaintiff’s delay.
24For these reasons, I decline to exercise discretion to direct that there be compensation paid to Mr Rossington under s.94(1).
Conclusion
25 The parties shall file minutes of proposed consent orders as to costs and the proceeding is otherwise dismissed.
MAGISTRATE M A HOARE
11 April 2024
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