Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) (No 2)

[2019] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

SACCO v LOCAL GOVERNMENT ASSOCIATION WORKERS COMPENSATION SCHEME (CITY OF SALISBURY) (No 2)

[2019] SASC 80

Judgment of The Honourable Justice Nicholson

21 May 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - OTHER MATTERS

Application dealt with in private for permission to cross-appeal pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA).

Held:

1.  Permission to cross-appeal granted.

2.  The cross-appeal is to be consolidated with the worker's appeal.

Return to Work Act 2014 (SA); South Australian Employment Tribunal Act 2014 (SA) s 68, referred to.
Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2019] SASC 15; Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2017] SAET 130, considered.

SACCO v LOCAL GOVERNMENT ASSOCIATION WORKERS COMPENSATION SCHEME (CITY OF SALISBURY) (No 2)
[2019] SASC 80

Civil: Application

1. NICHOLSON J.    The respondent to the appeal in this matter, being the applicant before me, is a compensating authority with respect to the Return to Work Act 2014 (SA) who has sought permission, pursuant to section 68 of the South Australian Employment Tribunal Act 2014 (SA), to cross-appeal from a judgment of the Full Bench of the South Australian Employment Tribunal.[1]  On 19 February 2019, I gave permission to the worker to appeal from that same judgment.[2]  Some background to the matter is contained in my earlier reasons. 

   [1]    Local Government Association Workers Compensation Scheme (City of Salisbury) v Sacco [2018] SAET 221 (their Honours Deputy President Judges Gilchrist, Farrell and Kelly).

   [2]    Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2019] SASC 15.

2. The primary Judge, following a trial, made the following orders.[3] 

   (i)The determination dated 4 March 2016 is set aside insofar as it involved rejection of the worker’s claim that he suffered an injury on Wednesday 10 February 2017.

   (ii)The worker is entitled to medical expenses in connection with his work injury sustained on Wednesday 10 February 2017 pursuant to s 33 of the Return to Work Act 2014.

   (iii)The determination is confirmed insofar as the worker is not entitled to weekly payments of income support because, from 10 February 2016 the worker was in breach of the obligation of mutuality, which mutuality has not been restored.

   [3]    Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2017] SAET 130.

3. The worker cross-appealed unsuccessfully to the Full Bench of the Employment Tribunal with respect to order (iii) and permission for a further appeal to the Full Court of the Supreme Court has been given.  That appeal has not yet been listed for hearing.  The applicant appealed unsuccessfully to the Full Bench of the Employment Tribunal with respect to orders (i) and (ii).  The applicant now seeks permission to further appeal to the Full Court of the Supreme Court, by way of cross-appeal.  The grounds relied on by the applicant are as follows. 

   (i)The Full Bench failed to provide adequate reasons for dismissing the appeal to it.

   (ii)The Full Bench erred by imputing (to the learned trial Deputy President) an approach to and process of reasoning it purported he used in his fact finding process which was not available upon a considered interpretation of his reasons. 

   (iii)The Full Bench failed to adequately address the grounds contained in the notice of appeal before it. 

4. I have reviewed the primary judgment and the judgment of the Full Bench together with the summary of argument provided by the applicant for the purpose of this application for permission.  I am satisfied that each of the grounds of appeal raises a question of law and is reasonably arguable.  I am also satisfied that the applicant will stand to suffer an injustice if the worker were to succeed with his appeal and in the event that the first and second orders were incorrectly arrived at but remain unchallenged. 

5. The application for permission is out of time.  However, the delay in bringing the application has been satisfactorily explained[4] and it would appear that the delay will cause no irremediable prejudice to the appellant worker.  However, I recognise that by dealing with this application in private on the papers, the worker has not had the opportunity to make any submissions on the question of prejudice arising from any delay in bringing the application to cross-appeal.  In the circumstances, I refer the question of an extension of time, should it be required by the applicant, to be dealt with by the Full Court on the hearing of the appeal and the cross-appeal.

   [4]    Delay in availability of junior and senior counsel at the trial and engaged for the appeal.

6. The fact that the worker has already been given permission to appeal raises the question whether a cross-appeal should be as of right or also requires permission under section 68. I do not need to determine that issue. Insofar as permission to cross-appeal may be required, I am satisfied that the justice of the case requires permission to be granted and I grant that permission, subject to the applicant making out its case for an extension of time. The cross-appeal should be consolidated with the worker’s appeal and all additional procedural steps, necessary to enable both appeals to be listed for hearing, undertaken expeditiously.