Smith v Transport for NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Transport for NSW [2024] NSWPIC 334
APPLICANT:	Kim Smith
RESPONDENT:	Transport for NSW
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	25 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Applicant certified as having no legal capacity and unable to proceed or give instructions; Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited discussed; Held – proceedings dismissed for want of due despatch.
DETERMINATIONS MADE:	The Commission determines: 1. The matter cannot be finalised in a timely fashion due to the applicant’s lack of legal capacity. The Commission orders: 2. Proceedings dismissed for failing to prosecute the claim with due dispatch.

STATEMENT OF REASONS

BACKGROUND

By way of an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (Commission) on 8 April 2024, the applicant claimed weekly compensation from 31 August 2022 as a result of psychological injury on 31 August 2022 (deemed).
The matter was listed for conciliation/arbitration hearing on 21 May 2024 at which time directions were made which provided for an extended timetable for submissions. As I understand it, the rationale for the extended timetable for submissions was to enable the parties to further explore conciliation and resolution and secondly to enable the applicant’s representatives to arrange an assessment of the applicant’s capacity.
On 24 May 2024, the applicant’s general practitioner, reported that the applicant has a legal incapacity.
On 5 June 2024, the applicant’s legal representative wrote to the Commission seeking an extended adjournment anticipating the appointment of a tutor to provide instructions, enclosing the medical report dated 24 May 2024.
On 7 June 2024, the Commission issued the following direction: (unedited)
“The Commission notes:
a.     The applicant’s solicitor advised the Commission on 5 June 2024 that the applicant lacked capacity to continue in the proceedings and he was unable to obtain instructions to file an Election to Discontinue.
b.     This development makes the timetable that was agreed at the conciliation conference and arbitration hearing inappropriate and inconsistent with the objects of the Commission to provide a timely resolution of disputes.
c.     In the circumstances, the applicant’s solicitor has two options:
i.Proceed to a determination of the dispute, or
ii.ii. Refer the matter to the Division Head who will determine whether the matter should be struck out.
2.      The Commission directs:
a. The applicant’s solicitor is to advise the Commission by close of business on 7 June 2024 how the matter is to proceed.
b. If the matter is to proceed to a determination, the parties are to file and serve written submissions as follows:
i. The respondent to lodge and serve written submissions by 14 June 2024.
ii. The applicant to lodge and serve written submissions by 21 June 2024
iii. The respondent to file written submissions in reply by 28 June 2024”
On 7 June 2024, the applicant’s legal representative requested that the matter be referred to the Division Head to determine whether the matter should be struck out.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    emails from the applicant’s solicitor dated 5 June 2024 (enclosing the medical report dated 24 May 2024) and 7 June 2024.

FINDINGS AND REASONS

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 77 of Personal Injury Commission Rules 2021 (the 2021 Rules) 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.”
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.”
The medical evidence confirms legal incapacity which is inferred to be indefinite. As such, I conclude there is little prospect of the matter being advanced within a reasonable time in accordance with the Commission’s statutory obligations which are to provide a timely, fair and cost-effective system for the resolution of disputes.
In the circumstances, I am satisfied that these proceedings should be dismissed because the applicant has notified of her inability to prosecute her claim with due dispatch. I propose to make such orders.
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.[1]
[1] [2004] NSWWCCPD 83.

FINDINGS

The matter cannot be finalised in a timely fashion due to the applicant’s certified legal incapacity and the need to appoint a tutor.

ORDERS

Proceedings dismissed for failing to prosecute the claim with due dispatch.

In the case of Smith v Transport for NSW, the applicant sought compensation for injuries sustained during his employment with the respondent. Due to the applicant's certification as having no legal capacity, the proceedings faced significant challenges. The case was heard in the New South Wales Civil and Administrative Tribunal, where the primary issue was whether the proceedings could be continued in the absence of the applicant's ability to provide instructions or participate meaningfully.

The court was required to determine if the application could proceed under the provisions of the Workers Compensation Act, considering the applicant's incapacity. The court considered relevant case law, notably Morgan v Hacken Pty Limited, which provides guidance on handling claims where the applicant lacks the capacity to manage their own litigation. The court's task was to balance the applicant's right to pursue compensation with the practicalities of managing a case where the applicant could not actively participate.

In reaching its decision, the tribunal emphasised the importance of due despatch in legal proceedings. Given the applicant's incapacity and the absence of any party authorised to act on his behalf, the tribunal concluded that the proceedings could not continue effectively. The tribunal ultimately dismissed the application for want of due despatch, recognising the futility of proceeding without the applicant's capacity to engage in the process. This decision underscores the necessity for active participation from the applicant in workers compensation claims and the tribunal's role in ensuring proceedings are conducted efficiently.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established