Sunbuild Pty Ltd v Local Court Judge Therese Austin
[2020] NTSC 38
•19 June 2020
CITATION: Sunbuild Pty Ltd v Local Court Judge Therese Austin & Anor [2020] NTSC 38
PARTIES: SUNBUILD PTY LTD
v
LOCAL COURT JUDGE THERESE AUSTIN AND BRAY, HAYDEN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY
FILE NO:126 OF 2019 (21943104)
DELIVERED: 19 June 2020
HEARING DATE: 3 April 2020
JUDGMENT OF: Barr J
CATCHWORDS:
ADMINISTRATIVE LAW – Judicial review – Certiorari – Work Health Court – Application for summary judgment – Applicant’s counsel relied on affidavit evidence tendered for limited purpose – Judge took evidence into account for wider purpose without prior indication to parties – Order for summary judgment – Order made without jurisdiction – Alternatively judge failed to accord procedural fairness – Relief in the nature of certiorari granted
EVIDENCE – LEGAL PROFESSIONAL PRIVILEGE – Work Health Court – Interlocutory order for specific discovery – Rule of court required that documents be enumerated “in convenient order” – Employer ordered to enumerate documents “in convenient order by date and time” – Employer claimed legal professional privilege in respect of surveillance reports and film – No issue that privilege existed – Employer opposed giving discovery of date and time of film – Held that order requiring privileged documents to be enumerated by date and time required partial disclosure of privileged material – Impinged employer’s legal professional privilege – No legitimate requirement for documents to be listed in a manner which would result in loss of legal professional privilege – Order beyond the power of Work Health Court – Order in the nature of certiorari to partially quash discovery order
Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7, 335 FLR 350; Starke Investments (NT) No 2 Pty Ltd and others v Ware [2018] NTSC 58 (Full Court), 336 FLR 372; Police and State of South Australia v Lymberopoulos (2007) 98 SASR 433; Halliday v ACN 003 075 394 Pty Ltd (Unreported), Supreme Court of Victoria, Appeal Division, Ormiston J, D Phillips and O’Bryan JJ, 11 April 1994; Welsh v The Queen (1996) 90 A Crim R 364, followed
Maddalozzo v Maddick (1992) 84 NTR 27; Work Social Club – Katherine Inc v Rozycki (1998) 143 FLR 224; Albison v Newroyd Mill Ltd (1925) 134 LT 171; Egerton v Moore [1912] 2 KB 308;, Van Dongen v Northern Territory [2009] NTSC 1; MacMahon Contractors v Lee [2017] NTSC 33, referred to
Taylor Enterprises (NT) Pty Ltd v Pointon & Work Health Authority [2009] NTMC 29, approved
Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410; Spanos v Lazaris [2008] NSWCA 74 distinguished
Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31, referred to
Return to Work Act 1986 (NT) s 3A, s 53 (1)(c), s 71, s 72, s 80 (1), s 82, s 83, s 85, s 110A (1) & (2), s 182 (2)
Work Health Administration Act 2011, s 12
Evidence (National Uniform Legislation) Act 2011, s 4 (1), s 60
Work Health Court Rules, r 1.12, r 8.01 (2), r 12.02
REPRESENTATION:
Counsel:
Plaintiff:M Crawley SC
First Defendant: M Forbes
Second Defendant: B O’Loughlin
Solicitors:
Plaintiff:HWL Ebsworth Lawyers
First Defendant: Solicitor for the Northern Territory
Second Defendant Ward Keller
Judgment category classification: B
Judgment ID Number: Bar2002
Number of pages: 60
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSunbuild Pty v Local Court Judge Therese Austin & Anor [2020] NTSC 38
No. 126 of 2019 (21943104)
BETWEEN:
SUNBUILD PTY
Plaintiff
AND:
LOCAL COURT JUDGE THERESE AUSTIN
First Defendant
AND:
HAYDEN BRAY
Second Defendant
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 19 June 2020)
The plaintiff seeks judicial review of an order for summary judgment made by Judge Austin (the first defendant) in the Work Health Court at Darwin on 23 September 2019.
The plaintiff also seeks judicial review of an interlocutory order for particular discovery of privileged documents made by Judge Austin on 14 February 2020.
Background
The second defendant (to be referred to as “the worker”) injured his lower back in the course of his employment with the plaintiff (“the employer”) in December 2008. He submitted a claim for compensation in respect of his back injury, and the claim was accepted by the employer (or its insurer) in accordance with s 85 (1)(a) Return to Work Act 1986.
The chronology provided by counsel for the worker in this proceeding indicates that the worker underwent a two-level spinal fusion (L4, L5 and S1) in November 2012.[1] In December 2014, he was assessed as having a 20% whole of person impairment as a result of his accepted back injury.
As time went by, the worker suffered symptoms of depression in addition to chronic severe back pain. On 5 January 2015, the worker’s general practitioner (Dr O’Dwyer) certified the worker as suffering depression related to the “accepted workplace injury”. The worker was referred to a psychologist. On 7 July 2015, the same doctor provided the employer with a report stating that the worker was suffering from a “depressive illness” as a result of the workplace injury. In March 2016, he was diagnosed by Dr Paul Kornan, consulting psychiatrist, as suffering an adjustment disorder with mixed anxiety and depressed mood, and a pain disorder associated with psychological factors.[2] Dr Kornan believed that the worker’s psychiatric ill-health was the result of his lower back injury and the fact that the surgical procedures undergone by him had resulted in only limited improvement.[3]
Medical evidence obtained after March 2016 was generally consistent with Dr Kornan’s diagnosis and confirmed that the worker had suffered a mental injury as a sequela of his lower back injury.[4] Moreover, the employer, through its insurer, appeared to accept that the worker had suffered a mental injury in consequence of his lower back injury. It arranged a permanent impairment assessment in respect of the worker’s mental injury and, on 18 April 2016, without reserving its position, the employer served Dr Kornan’s report on the worker with a covering letter stating that the worker was entitled to a compensation payment “as consequence of the secondary mental (psychiatric) injury”.[5] The letter included the following paragraphs (underline emphasis added):[6]
… the percentage of permanent impairment taken into account in relation to your psychiatric condition is 10%. ….
Your degree of permanent impairment of 20% of your whole body in relation to your back injury in 2014, combined with the degree of permanent impairment of 10% of your whole body in relation to your psychiatric condition in 2016, is 28% as per the AMA 4th Edition Guidelines which equates to $88,146.24.
As you have already received a permanent impairment payment of $58,955.52 for your back injury, the amount you are entitled to for your psychiatric condition is $29,190.72. …
We advise that the payment for a permanent impairment has no impact on any other entitlement you may be eligible for under the Return to Work Act.
The employer’s apparent acceptance of the fact that the worker had suffered a mental injury in consequence of his lower back injury was also reflected in correspondence with the worker’s treating psychiatrist.[7]
On 13 February 2018, the worker was admitted to the Sherbourne Clinic of the Shepparton Private Hospital, suffering severe depression. He had made what Dr Tawde described as a “serious suicide attempt”.[8] He remained in hospital until 2 March 2018.
In the circumstances outlined, it would no doubt have come as a surprise to the worker’s solicitors that solicitors acting for the insurer wrote to them by letter dated 30 October 2018, as follows (formal parts omitted):[9]
We act on instructions from Allianz Australia Insurance Limited trading as Territory Insurance Office (TIO), the workers’ compensation insurer of [the employer] in relation to a claim for compensation by [the worker].
We are instructed by TIO that they accepted liability for the worker’s claim for compensation dated 12 February 2009 for a lower back injury.
TIO have further instructed us that to date the worker has not made a claim for compensation for a psychological injury and that TIO have never accepted a claim for compensation made by the worker.
In the circumstances, TIO have instructed us to advise the worker that in the future TIO will not reimburse any costs incurred by the worker in relation to any psychological treatment, medication, rehabilitation and/or other costs such as the travel by taxi to hospital for electroconvulsive treatment.
The insurer’s specific refusal to pay costs for the worker’s travel for electroconvulsive treatment is an indication that the insurer was aware that the worker’s mental health had declined to the extent that he required such treatment.
The employer’s solicitors were correct that the worker had not made a claim for compensation. However, the insurer’s stance was inconsistent with the manner in which the insurer had been dealing with the worker’s claim since (at least) 2016. One is left to wonder whether the insurer and its legal advisors were aware of the principle stated by the Court of Appeal in Lee v MacMahon Contractors Pty Ltd,[10] that a worker “will not ordinarily be required to make a further claim for workers compensation for the consequences of a secondary or consequential injury which arises from the primary injury for which a claim has already been made and accepted”.[11]
There was a relevant matter which the employer’s solicitors did not raise at that stage. Pursuant to s 80 (1) Return to Work Act 1986, the worker was not entitled to compensation in respect of his mental injury (including compensation for loss of earning capacity as a result of that injury) unless notice of the relevant injury had, as soon as practicable, been given to or served on the employer.[12] The employer’s solicitors did not assert in their letter that notice of the worker’s mental injury had not been given or served.
It is relevant to note that, just as there is no requirement for a worker to follow the statutory procedure set out in s 82 and s 83 Return to Work Act 1986 for the making of a claim in relation to a secondary or consequential injury, there is no corresponding statutory process akin to s 85 Return to Work Act 1986 for an employer to respond to such claims. As a result, the statement made by the insurer’s solicitors that the insurer had never accepted a claim for compensation made by the worker in respect of his psychological injury may have been technically correct. It is unnecessary to make any further observations about the approach taken by the employer’s insurer in October 2018. However, from that time, it should have been clear to the worker’s solicitors that the worker would need to prove, inter alia, that he had suffered a mental injury as a consequence of his accepted physical injury.[13]
Work Health Court proceedings
The worker commenced proceedings by application to the Work Health Court on 6 February 2019. Subsequently, the solicitors for the worker filed a Statement of Claim, with Particulars of Claim pleaded as set out hereunder:
The Worker claims entitlements pursuant to the Return to Work Act (NT) (Act) in relation to a psychological sequela injury, particulars of which are set out below, and seeks the remedies set out below.
PARTICULARS OF CLAIM
1.At all material times, the Worker was a worker as defined by the Act.
2.On 1 December 2008, the Worker suffered an injury to his lower back in the court of his employment with the Employer (Back Injury).
3.The Worker made a claim for compensation under the Act as a consequence of the Back Injury (Claim).
4.In or around December 2008, the Claim was accepted by the Employer.
5.When the Employer accepted the Claim, it was deemed to admit liability for all compensation to which the Worker was entitled under the Act for the Back Injury and its sequelae.
6.The Worker began experiencing psychological symptoms as a result of, as a consequence of or arising out of the Back Injury some time in 2010 (Symptoms).
7.Notice of the Symptoms were provided to the Employer in 2010.
Particulars of 2010 Notice
(a) Epworth Multidisciplinary Initial Report dated 30 June 2010;
(b) Work Options Vocational Assessment Report dated 23 November 2010;
8.The Employer commenced paying compensation for the Symptoms.
Particulars of Compensation
(a) Particulars to be provided prior to a hearing.
9.In or about early 2015, the Symptoms had developed into major depressive disorder (Psychological Injury).
10.The Psychological Injury has resulted in or materially contributed to the Worker’s incapacity for work.
11.From or about January 2015 the Worker’s total incapacity for work has been contributed to as a result of the Psychological Injury.
Particulars of Incapacity
(a) The Worker has been certified as totally incapacitated for work as a consequence of “lumbar disc prolapse/laminectomy, Depression” from 5 January 2015 to present.
12.As a consequence of the notice of the Symptoms and the Psychological Injury, the Employer obtained a permanent impairment assessment of the Worker’s Psychological Injury, on or about 7 March 2016, in accordance with section 72 [of] the Act.
13.The Worker sought to have the permanent impatient reassessed. That reassessment indicated that the Worker had not yet reached maximum medical improvement.
Particulars of Permanent Impairment Arrangements
(a) Letter, Allianz to Psychiatrist, Dr Kornan dated 1 March 2016;
(b) Independent Report of Psychiatrist, Dr Kornan dated 7 March 2016 making an assessment of 15% in relation to the Psychological Injury;
(c) Reassessment Report of an NT WorkSafe Panel chaired by Psychiatrist, Dr Sheehan dated 29 August 2016 which took into account the opinions of:
(i)Psychiatrist, Dr Scott Chambers;
(ii)Psychiatrist, Dr Amanda Silcock:
(iii)Psychiatrist, Dr Anthony Sheehan;
14.On or about 26 July 2016, the Worker gave further written notice on the Employer of the Psychological Injury.
Particulars of Notice
(a) Report, Psychiatrist, Dr Tejraj Tawde to Allianz dated 26 July 2016.
15.On 30 October 2018, the Employer denied it had ever accepted liability for the psychological sequela injury and disputed liability to pay any compensation associated or further with the Psychological Injury (Denial).
Particulars of Denial & Dispute
(a) Letter, HWL Ebsworth to Ward Keller dated 30 October 2018.
16.The Worker has been entitled to compensation for the Symptoms and the Psychological Injury, pursuant to the Act.
17.Since the Worker is entitled to compensation for the Symptoms and the Psychological Injury, pursuant to the Act, the Denial was:
(a) not lawful or in accordance with the Act;
(b) not in accordance with or consistent with the Employer’s previous acceptance of and payment of compensation.
18.AND THE WORKER CLAIMS the following remedies:
18.1.A declaration that the Worker’s Symptoms and Psychological Injury are compensable under Part 5 of the Act;
18.2.An order that the Employer pay compensation in accordance with the Act in respect of the Symptoms and Psychological Injury;
18.3.An order that the Employer pay the Worker interest pursuant to section 89 and 109 of the Act; and
18.4.An order that the Employer pay the Worker’s cost of an incidental to this proceeding and the dispute giving rise to the proceedings including the mediation, on the indemnity basis, to be taxed in default of agreement.
18.5.In the alternative to 18.4 above, an order that the Employer pay the Worker’s costs of and incidental to these proceedings and the dispute giving ruse to the proceedings including the mediation, to be taxed in default agreement.
Dated the 14th day of March 2019
The Particulars of Claim document was a convoluted and unnecessarily lengthy pleading. Because the worker had not made a claim for compensation in respect of his alleged consequential “Psychological Injury”,[14] and there was no accepted claim for such injury, the worker bore the onus of proving that the mental injury was caused by the accepted lower back injury.[15] However, all the worker needed to allege (with dates and relevant particulars) was that: (1) he had suffered a physical (lower back) injury arising out of or in the course of his employment with the employer; (2) the employer had accepted the claim for his physical injury; (3) he had subsequently suffered a mental injury as a consequence of his accepted physical injury, and hence an injury which arose out of his employment with the employer; (4) notice of the mental injury had been given to the employer as soon as practicable;[16] (5) the mental injury had resulted in or materially contributed to his incapacity for work; and (6) as a result of his physical injury and consequential mental injury, he had been and remained totally (alternatively partially) incapacitated for work.
The basic requirement in pleading a statement of claim (or ‘particulars of claim’) is that a party should plead the material facts sought to be the subject of findings necessary for the claim to succeed. In Work Social Club – Katherine Inc v Rozycki,[17] Mildren J compared those crucial findings to the elements that must be proved by the prosecution in a criminal matter. It is always preferable in pleadings to use the language of the statute. The definition of injury in s 3A Return to Work Act 1986 reads, relevantly, “a physical or mental injury arising out of in the course of the worker’s employment”. The basic requirement of a pleading is that a party plead material facts. Nowhere in the Particulars of Claim did the worker allege having suffered, simply, a “mental injury” (arising out of his employment). The pleading was obfuscated by the use of the partly defined terms “Symptoms” and “Psychological Injury”.
The repeated reference in the Particulars of Claim to alleged psychological symptoms, referred to as “Symptoms”, exemplifies the matters which caused difficulty in understanding the worker’s case. A symptom is commonly understood to be a subjective indication of an illness or disease in the sense it is apparent only to the patient (unlike a ‘sign’, which can be observed by others). In par 6 of the Particulars of Claim, the worker alleged that he began experiencing “psychological symptoms” sometime in 2010. Such symptoms might have been an indication of an underlying illness or disease, possibly evidence of a mental injury of gradual onset, but that was not the worker’s case as pleaded; the worker did not allege that he suffered a mental injury until in or about early 2015.[18] The matters pleaded in par 6 of the Particulars of Claim would appear to be irrelevant. Doubly irrelevant therefore was the pleading in par 7 of the Particulars of Claim that notice of the symptoms was provided to the employer in 2010. The Return to Work Act 1986 requires that notice of the relevant injury be given to or served on the employer as soon as practicable, but there is no requirement to give notice of symptoms in the absence of injury.
The Particulars of Claim failed to directly allege a matter which (I must assume) was crucial to the worker’s claim, namely that the mental injury (“major depressive disorder”) was a consequence of the accepted physical injury. Although it was alleged in par 6 that the psychological symptoms were a consequence of the back injury, and in par 9 that the psychological symptoms “had developed into” major depressive disorder, there was no frank pleading that the worker suffered a mental injury as a consequence of his accepted physical injury, and thus an injury which arose out of his employment with the employer. I refer to my observations in [15] as to what the worker needed to allege (and prove).
The references to “Symptoms” continued to contaminate the pleading. In par 18.1 of the Particulars of Claim, the worker claimed a declaration that his symptoms and injury were compensable under Part 5 of the Act. Similarly, in par 18.2 of the Particulars of Claim, the worker claimed an order that the employer pay compensation in respect of the symptoms and injury. Those claims for relief demonstrate a misunderstanding of the law. Pursuant to s 53 (1)(c) Return to Work Act 1986, compensation is payable when an injury results in or materially contributes to incapacity.[19] Symptoms are not compensable. Rather, incapacity as a result of an injury is compensable.
In terms of pleading incapacity, the Particulars of Claim document was unclear. Par 10 pleaded that the worker’s “Psychological Injury” resulted in or materially contributed to his incapacity for work. However, the worker did not at any stage expressly plead that he became totally incapacitated for work and, if so, when he became totally incapacitated. Rather, he alleged that, from in or about January 2015, his “total incapacity for work [had] been contributed to as a result of the Psychological Injury”, the latter a reference to his major depressive disorder.[20] It would appear that the worker’s solicitors intended to plead that, irrespective of his level of capacity prior to January 2015, the onset of the major depressive disorder in early 2015 contributed to his incapacity such that he became totally incapacitated for work from that time. That is consistent with the particulars to par 11 of the Particulars of Claim that the worker was certified as totally incapacitated for work as a consequence of “lumbar disc prolapse/laminectomy, Depression” from 5 January 2015 to the present (that is, to the date of the pleading). However, the reference in the particulars to the worker having been certified as totally incapacitated for work did not amount to an allegation that the worker had been totally incapacitated for work. The requirement is to plead material facts, not evidence. I refer again to [15] above for a reminder as to the relevant allegations which the pleading should have contained.
It is unclear why the pleading included the matters relating to permanent impairment alleged in pars 12 and 13 of the Particulars of Claim. The worker did not allege in the Particulars of Claim that the employer’s request for a permanent impairment assessment had particular significance, for example, that it evidenced acceptance of liability for the mental injury.[21] No specific claim was made in par 18 of the Particulars of Claim in relation to impairment, and, given the apparent impasse in relation to the worker’s request for reassessment, the Court probably had no jurisdiction in any event. It would therefore appear that pars 12 and 13 contained irrelevant allegations.
The pleading of the Particulars of Claim suggests a concern on the part of the worker’s lawyers that the employer might raise the failure to give notice of injury as soon as practicable as a ground of defence. The pleading in relation to permanent impairment in pars 12 and 13 of the Particulars of Claim may have been for the oblique purpose of dealing with the apprehended pleading by the employer that the worker had failed to give notice of injury. However, the worker’s lawyers could have pleaded, simply, that notice of the worker’s mental injury had been given to the employer as soon as practicable. If the employer were to deny the timely giving of notice of injury, the worker’s lawyers could serve a Reply pleading estoppel (or, if the issue were the right to bring proceedings, as distinct from entitlement to compensation per se, the worker might in a Reply plead the statutory relief provision in s 182 (2) Return to Work Act 1986).
In its Particulars of Defence to the worker’s claim, the employer denied that the requisite notice of the alleged mental injury had been given. The employer pleaded that, if the alleged symptoms suffered by the worker amounted to a “psychological sequelae injury in 2010”, the worker (inter alia) failed to notify the employer that he was suffering from such injury, or that he was claiming compensation for such injury. The employer pleaded that the worker’s claim was barred because he had failed to give notice of the claimed injury “in the form required by section 81 [or] at all or alternatively as soon as practicable as required by section 80”.[22] The employer pleaded a similar statute bar in respect of the worker’s entitlement to claim in respect of the alleged “Psychological Injury” in 2015.[23]
Although failure to give notice of the mental injury was pleaded by the employer, the worker did not seek leave to file and serve a Reply pleading to the employer’s Notice of Defence. I refer to my observations in [22] above.[24]
Notwithstanding the basic requirement in pleading a statement of claim that a party should plead the material facts, a party may raise a point of law or plead a conclusion of law if the material facts supporting the conclusion are pleaded.[25] Par 5 of the Particulars of Claim pleaded a conclusion (or assertion) of law. However, the pleading served no purpose. The deemed admission of liability alleged was in respect of compensation “to which the Worker was entitled under the Act”, which still left open determination of the worker’s entitlement. As explained in [13] and [15], the worker bore the onus of proving that his mental injury was caused by the accepted lower back injury. The matters pleaded should have been saved for final submissions. As it was, the pleading achieved nothing other than to elicit a misconceived response from the employer: “The employer denies paragraph 5… as a matter of law.”
The employer’s response to par 5 of the Particulars of Claim appears to have provoked the worker’s application for summary judgment which was heard by the first defendant. I say more about that in [30] and [31] below.
Application for summary judgment
In the fog of confusion created by the pleadings, the worker made an interlocutory application for summary judgment, which was heard by Judge Austin on 21 May 2019 and decided on 23 September 2019.
Par 1 of the worker’s summons sought, simply: “An order for summary judgement in favour of the worker”. The application did not state the terms of the judgment applied for, nor the actual orders sought consequent upon entry of judgment. However, given the claim for relief set out in par 18 of the Particulars of Claim, it would appear that the worker was pressing for the declaration and order the subject of adverse criticism by me in [19] above.[26] If that were the case, (but assuming for present purposes that the references to the worker’s “Symptoms” were deleted), the worker needed to satisfy the court below that the employer had “no real defence” to the worker’s claim.[27] The employer had either denied or not admitted the allegations contained in pars 6, 7, 8, 9, 10, 11 and 16 of the worker’s Particulars of Claim. As a result, the worker was required to prove that he had suffered a mental injury as a consequence of his accepted physical injury (and therefore an injury which arose out of his employment with the employer). That had not been expressly pleaded, as explained in [18]. Moreover, the worker was required to prove that notice of the mental injury had been given as soon as practicable, as required by s 80 (1) Return to Work Act 1986; alternatively, if notice had not been given, that the employer by its conduct was estopped from pleading or relying on such failure. However, the worker had not pleaded estoppel.[28]
In the circumstances explained by me, it was incumbent on the worker’s counsel in the Work Health Court to state the precise relief which the worker was seeking and the basis for it.
Counsel for the worker in the Work Health Court opened the worker’s case as follows:[29]
Mr Grove: Your Honour, it’s the worker’s application, under cover of the application dated 21 May 2019, seeking summary judgment and, in the alternative, striking out a number of paragraphs in the notice of defence. That application is supported by [counsel then tendered three affidavits sworn by his instructing solicitor in support of the application, and referred to the pleadings] …..
Mr Grove: … I might begin with just a short outline of the statement of claim and the defence, to give your Honour an understanding about how this application comes about. …
Mr Grove: The worker suffered a back injury as long ago as December 2008 and made a claim for compensation and that claim was accepted by the employer. Subsequent to that, the worker developed a mental injury variously described as depression or psychological symptoms beginning in about 2010. The worker didn’t make another claim in relation to that particular injury, but we would submit that he did provide notification of that injury, that mental injury, if I can call it that by way of summary, at various times from 2010 up until about July 2016.[30]
The nature of the mental injury was such that it was progressive, in the sense that it was becoming worse over a period of time, and the worker received treatment for that mental injury. The worker also sought and obtained a permanent impairment assessment in relation to that particular injury. That was obtained on 7 March 2016 – it’s at par 12 of the statement of claim. …
Mr Grove: So, then in terms of chronology, in October 2018 or thereabouts – this is par 15 – the employer, or at least the employer’s workers compensation insurer … denied that the employer had accepted liability for this mental injury and, in addition, disputed liability to pay compensation for that mental injury. And as a consequence of that assertion, the worker brings this application for summary judgment on the bases which I will shortly outline.
With that in mind, your Honour, can I begin with the substantive submissions at par 5 of the statement of claim? The worker asserted that when the employer accepted the claim it was deemed to admit liability for all compensation which the worker was entitled under the Act for the back injury and its sequelae. The reference to sequelae is the reference to the mental injury.[31]
Counsel for the worker then referred Judge Austin to a number of authorities, including Lee v MacMahon Contractors Pty Ltd,[32] before drawing the judge’s attention to the employer’s pleading in response to par 5 of the Particulars of Claim, which I referred to in [25] above. Counsel continued:
Mr Grove: That is dealt with by the employer in par 5 of the Defence, simply to deny it, but then to deny it as a matter of law. I don’t quite understand what the employer is trying to get at there. But, in effect, it’s just a simple, a mere denial at the end of the day but, we would say, that it is patently the case that [it] is a plea that cannot be defended on the authorities and, therefore, a judgment should be entered in relation to that paragraph at least. ….
Mr Grove: Now, I’m not suggesting that the employer in this case is asserting that there needs to be a new claim form, but what it does say is that the pleading in par 5 is effectively not maintainable, where we say it’s in fact a matter which cannot be defended. If that’s the case then (inaudible) summary judgment should be given in relation at least to that paragraph.
That is the first aspect of the application, your Honour. So, that is about what is the effect of the acceptance of the claim and we say, of course, that the employer has accepted liability in relation to the mental injury. [underline emphasis added]
Judge Austin then asked the worker’s counsel about the asserted acceptance of liability by the employer for the worker’s mental injury. The discussion between her Honour and the worker’s counsel proceeded as follows:[33]
Her Honour: Where is it that you say, in the evidence, that the employer accepted the liability? … I need you to take me exactly to where in your documents attached to which affidavit it is, that you rely on, which attachment it is or what it is that you are saying?
Mr Grove: No, I don’t need to do that, your Honour. I can do it simply by this way. In par 4 of the statement of claim, they assert that in around December 2008 the claim was accepted by the employer.
Her Honour: Yes.
Mr Grove: That is admitted by the employer.
Her Honour: Yes, now that’s in relation to the back injury, the physical injury, but you are saying that the acceptance of the claim in relation to the injury included the acceptance …
Mr Grove: Yes.
Her Honour: And this is what your argument is before me now.
Mr Grove: It operates by virtue of the law.
Her Honour: Yes, that’s what you’re saying.
Mr Grove: Yes.
Her Honour: And this is what your submissions go to.
Mr Grove: Yes, that’s right. So, it’s an argument that doesn’t require evidence.
Her Honour: No.
Mr Grove: Because the law says this is what it is, this is how it works.
Her Honour: Yes.
The fact that the employer’s pleading to par 5 of the Particulars of Claim was misconceived was not determinant of the summary judgment application. The crucial matters to be established are referred to in [28] above. In this respect, the worker’s counsel did not inform Judge Austin of a very significant matter. While it is true that a claim for compensation under the Return to Work Act 1986 is a claim for all compensation to which a worker may be entitled, it does not follow that “by a general acceptance of liability … the employer thereby accepts liability to make payment of a particular type of compensation for any secondary or consequential injury asserted”.[34] In the present case, as explained in [15] and subsequently, the worker had the onus of proving that the asserted sequela was a consequence of the accepted physical injury. Notwithstanding that the medical evidence may have supported the worker’s case, the merits of the worker’s application and the employer’s defence (or absence of “real defence”) stood to be determined. Counsel’s submission that, as a matter of law, the employer had accepted liability in relation to the mental injury, was at best unhelpful. The real issue was (or should have been) whether the worker had suffered a mental injury as a consequence of his accepted physical injury (and therefore an injury which arose out of his employment with the employer). If that were established, and the resulting incapacity proven, then the employer would be liable to pay compensation (subject only to disentitlement if notice of injury had not been given as soon as practicable). The asserted acceptance of liability by the employer for the mental injury had little relevance to the summary judgment application.[35]
Further, although the Work Health Court Rules expressly permit a party to apply for summary judgment on the grounds that the opposing party (the respondent) has no real defence to the claim, it would not be appropriate to make an order for summary judgment in respect of one paragraph of a pleading. It might be appropriate to strike out par 5 of the employer’s Defence, as bad in law, but that would not have helped the worker’s case, since the onus remained on the worker to prove his entitlement.[36]
Significantly, as can be seen from the underlined parts of the extract in [32], counsel for the worker eschewed reliance on any evidence in relation to whether or not the employer was liable for the worker’s alleged mental injury. The issue of the employer’s liability was put to the judge as a simple proposition of law, not as a factual issue or series of factual issues which her Honour would be required to decide on the evidence. As a consequence, senior counsel for the within plaintiff (employer) contends that counsel for the worker expressly limited reliance on the affidavit evidence to the issue of notice, and that the evidence adduced by the worker before her Honour was confined to that issue. That contention is correct, as demonstrated clearly by further submissions and statements made by counsel for the worker throughout the course of the summary judgment hearing. However, the consequences of such reliance are not so clear.
Following from the passage extracted in [32], counsel for the worker addressed Judge Austin in relation to the question of notice, after her Honour made reference to the affidavit evidence:[37]
Her Honour: … There is also material in your submissions – in your affidavit material – that talk specifically about potentially acknowledging the psychological or mental injury as well.
Mr Grove: Yes.
Her Honour: Isn’t there?
Mr Grove: That’s right, but that really goes to the question of notice and ---
Her Honour: Yes, and that’s what you’re about to get to.
Mr Grove: Yes, that’s what I’m about to get to now.
Her Honour: Okay, thank you.
Mr Grove: I should indicate, your Honour, that we … won’t be pressing summary judgment on pars 10 or 11, and the reason for that is that we accept that there may well be a contest, as it were, on the question about whether or not the injury – the mental injury, I should say, resulted or contributed to incapacity and that’s effectively what pars 10 and 11 of the statement of claim do, and that’s dealt with in the defence. But we are not pressing summary judgment of that because we accept that that’s an issue which may well be the subject of a contest albeit that there is no evidence, as I understand it, subject to one affidavit which has come in from my learned friend’s instructor that sort of talks about issues of loss of earning capacity.
But we accept that we are not in a position to say that it’s a slam dunk on that …
Her Honour: No, I understand what you’re saying. …. I don’t want to cut you off ---
Mr Grove: No.
Her Honour: --- because I do want to hear what you’re saying in relation to, what you say the issues are in your application in relation to summary judgment, that any declaration that is made by the court in relation to summary judgment is that the employer did accept the worker’s claim ---
Mr Grove: Yes
Her Honour: --- and that, as a necessary consequence of that, that included therefore any sequela, that included any mental injury that arose.
Mr Grove: Yes
Her Honour: That – and you are now going to go on to address that notice was given of that.
Mr Grove: Yes
Her Honour: That’s all that was then required by the worker.
Mr Grove: Well that’s right. And that’s going to take a little time, your Honour.
Her Honour: Yes.
Mr Grove: But look essentially ---
Her Honour: But you are saying about potentially not pursuing other ---
Mr Grove: Yes
Her Honour: --- any other summary judgment is that if the declaration – if what you are seeking in relation to acceptance of the claim and what was necessarily included ---
Mr Grove: Yes
Her Honour: --- and notice requirements being met in relation to the mental injury ---
Mr Grove: Yes
Her Honour: --- that any consequence, if you were successful in your application, that would go to the other application ---
Mr Grove: Go to the hearing.
Her Honour: --- in the hearing of the work health matter ---
Mr Grove: Well indeed – well I’m not sure of the ---
Her Honour: --- it may or may not, but that would be dealt with in another ---
Mr Grove: that would still be a live issue on the – on the statement of claim.
Counsel for the worker then addressed her Honour, appropriately acknowledging that notice had to be given to the employer in respect of any injury, including a sequela, which results in incapacity for which compensation is claimed.[38] Confusingly, however, counsel then referred to notification of the “first initial symptomatology” in 2010 as though that ‘notification’ constituted giving notice of injury.[39] I refer to my comments in [17] and [19] in relation to the pleading of the alleged “Symptoms”. Leaving aside whether the content of the reports of medical examiners or vocational assessors in relation to the worker’s back injury could constitute the giving of notice of the mental injury pursuant to s 80(1) Return to Work Act 1986, the submission was confusing and potentially misleading because, on the worker’s pleading, the worker did not suffer the alleged mental injury (“Psychological Injury”) until early 2015.[40]
In relation to paragraph 9 of the employer’s Particulars of Defence, referred to in [23] above, in which the employer pleaded in relation to the worker’s alleged major depressive disorder that the worker had failed to notify the employer (inter alia) that he was suffering from such injury, counsel for the worker took her Honour to medical evidence from 2015, including medical certificates issued by the worker’s general practitioner, which, read with the employer’s list of documents, demonstrated that the employer’s insurer had received some notification of the worker’s mental injury. Counsel submitted that the statutory requirement, that notice of injury be given or served, had been satisfied.[41] It does not appear that counsel made any submissions in relation to notice having been given “as soon as practicable”. However he did point out, correctly, that there was no requirement that worker give notice that he was claiming compensation for the mental injury, which the employer had pleaded was a relevant failure in paragraph 9 of the Particulars of Defence. The employer’s pleading was misconceived in that respect.
While perusing the affidavit material, Judge Austin referred counsel to the fact that the employer had arranged for the worker to be assessed by Dr Kornan, consulting psychiatrist, in her Honour’s words, “for the purpose of establishing the worker’s whole person impairment for the psychiatric injury”.[42] In response, counsel for the worker, consistent with his previously indicated reliance on the affidavit evidence for the sole purpose of proving notice, made a series of submissions, as follows:[43]
Indeed, your Honour. And the notion which the employer seeks to advance in its defence … that notice was not provided, just doesn’t stand scrutiny given that chronology. …
… Bear in mind, your Honour, that at this stage I am just dealing with the question of notice.
But this evidence is important because it’s quite clear that the employer, through its workers compensation insurer, clearly knows that the worker is suffering a mental injury. …
Now the employer, as your Honour has noticed, organised the permanent impairment [assessment]. It must be taken to have received notice of the compensability of the mental injury.
Following from the passages extracted in the previous paragraph, the transcript reads as follows:[44]
Her Honour: Because that permanent impairment assessment was not confined to a permanent impairment assessment, was it or not, of the physical injury?
Mr Grove: No, no. This is in relation to the mental injury, the psychiatric injury.
Her Honour: That’s right. That’s what I read, that what was arranged was a permanent impairment assessment … in relation to the psychiatric injury.
Mr Grove: Correct.
Her Honour: And that was arranged by the employer.
Mr Grove: Yes. …
Her Honour: … there was unequivocal acceptance, by this stage, that they were dealing with two injuries and they were on notice that there was a mental injury as well as a physical injury. Yes, that’s what your argument is.
Mr Grove: They organised a permanent impairment assessment ---
Her Honour: For this issue.
Mr Grove: --- and they wouldn’t have done that if they had any doubt that – well obviously there could have been doubt – but that there was a claim in, or notice in relation to it, because why would they do it? They wouldn’t do it in the abstract.
The evidence in relation to arrangements made by the employer for what her Honour apparently considered “for the purpose of establishing the worker’s whole person impairment for the psychiatric injury” was contained in the letter of referral sent by the employer’s insurer to Dr Kornan, which I set out below:[45]
01 March 2016
Dear Dr Kornan,
RE: Work Health Claim : MR HAYDEN BRAY
Employer : SUNBUILD PTY LTD
Date of Injury : 01/12/2008Claim Number : 60143677
We confirm that we is the workers’ compensation insurer for SUNBUILD PTY LTD.
HAYDEN BRAY has made a claim for workers’ compensation for an injury sustained to back on 01/12/2008.
Thank you for agreeing to review this worker on 07 March 2016 at 1:00PM.
After reviewing the worker, please provide a detailed medical report specifically commenting on the following:
1.What history of events has Hayden provided to you regarding the onset or cause of his symptoms?
2.What are your clinical findings?
3.Is Hayden suffering a recognisable psychiatric condition within the terms of the DSM-V Manual and if so, which condition?
Please identify the precise diagnostic criteria which are satisfied by the condition (if any)?
4.Please provide details of the factors giving rise to the psychiatric condition (if any)?
5.If Hayden is suffering from a psychiatric condition, to what extent, if any, is there a causal connection between the psychiatric condition and Hayden’s perception of his/her alleged work caused injury and current state of health?
6.Are Hayden’s symptoms as a result of other unrelated or pre-existing factors such as his personality make-up, personal or family stresses and is substance abuse contributing to Hayden’s presentation or impairment?
7.Does Hayden have a pre-existing medical condition or any other factors that may be attributable to or contributing towards Hayden’s current condition? If so, please specify.
8.If Hayden is suffering from a recognisable psychiatric condition, does this prevent him/her from:-
·returning to employment in general
·pursuing rehabilitation, a work trial, training etc, and if so, how?
9.Please state whether you consider the worker requires further psychiatric treatment and if so:
·please specify the nature and extent of such further medical treatment;
·whether or not the treatment may be useful in successfully rehabilitating the worker to such an extent that he/she can return to his/her pre-accident employment duties (or any alternative duties);
·to what extent is the treatment due to the worker’s work accident or to other unrelated factors?
10.Please provide your overall prognosis of the worker’s condition and the estimated rate of recovery.
Permanent Impairment
1.Has Hayden sustained a permanent impairment?
2.If so, has his injury stabilised sufficiently to allow assessment of that permanent impairment?
3.If so, please provide your assessment of permanent impairment in accordance with the prescribed guides being the American Association Guides to the Evaluation of Permanent Impairment (4th edition).
It is tolerably clear from the letter that the insurer was aware that the worker may have suffered a mental injury as a consequence of his accepted physical injury. To that extent, the letter was relevant evidence in relation to the issue of notice, which was the only purpose for which the worker’s counsel had tendered the affidavit evidence of which the letter formed part. However, because the employer had not (in any formal manner) accepted liability for the worker’s mental injury and the Work Health Court had made no determination in relation to the employer’s liability for such injury, it would have been problematic to attribute greater significance to the letter, for example, to characterise it as the start of the formal process for assessment of permanent impairment pursuant to s 71 and s 72 Return to Work Act 1986.
The problems associated with premature permanent impairment assessment were explained in Taylor Enterprises (NT) Pty Ltd v Pointon & Work Health Authority.[46] There, Dr Lowndes SM (as he then was) held that the process under s 72 Workers Rehabilitation and Compensation Act 1986 (now the Return to Work Act 1986) presupposed that the permanent impairment to be assessed had been caused by a compensable injury, in respect of which the employer had accepted liability or the Court had made a determination. Unless and until liability had been determined in accordance with the Act, it would be premature for any assessment of permanent impairment to be sought by either side. Dr Lowndes further held that, if an employer denied that the injury in question were compensable, and the Court had not yet determined that the injury was compensable, there was no statutory or legal basis for the commencement of the process established by s 72; and hence any attempt to set in train the statutory process in those circumstances would not be in compliance with the statutory scheme. I respectfully agree with those observations.
Neither counsel addressed her Honour in relation to the decision in Taylor Enterprises. Senior counsel for the employer submitted that the permanent impairment assessment process was “a particular regime where, once an assessment is made it must be paid, if not challenged, under the scheme of the Act … whether the employer likes it or not, once an assessment has been made, it is stuck with it”.[47] Senior counsel did not seek to argue that the referral to Dr Kornan was not for the purpose of commencing the process established by s 72, or that it was not in compliance with the statutory scheme. Counsel for the worker submitted that the employer had arranged for a permanent impairment assessment because it was obliged to, because (he contended, as a matter of law) it had accepted the psychiatric sequela injury.[48]
As I explained earlier in these reasons, the basal contention of the worker’s counsel was that, having accepted the original physical injury, and having been given notice of the asserted consequential mental injury, the employer as a matter of law was liable to pay compensation for the worker’s incapacity resulting from that mental injury. That contention was misconceived insofar as it failed to take into account that the worker had the onus of proving that his asserted mental injury was a consequence of his accepted physical injury. The employer had either denied or not admitted the allegations contained in pars 6, 7, 8, 9, 10 and 16 of the worker’s Particulars of Claim. The difficulty for the worker, in the conduct of the summary judgment application, was that counsel for the worker tendered the affidavit material for the sole purpose of proving that notice of the mental injury had been given to the worker’s employer. Counsel did not rely on it for any other purpose, as explained in [35] and further demonstrated in [39] above. Specifically, counsel for the worker did not rely on the affidavit evidence to prove the causative nexus between the physical injury and the mental injury, or to prove as a matter of fact that the employer had accepted liability for the mental injury.
Judge Austin ultimately made a specific finding that: “… on 1 March 2016, when the Employer referred the Worker for the whole person impairment assessment for the mental injury to Dr Kornan pursuant to s 71 and s 72 of the Act, evidenced by the letter of referral to Dr Kornan dated 1 March 2016, the Employer accepted liability for the Worker’s secondary mental injury, the sequela”.[49] It is unclear how the letter of referral to Dr Korman could have amounted to an acceptance of liability by the employer for the worker’s secondary mental injury. Even taking into account that the referral letter was addressed to a specialist psychiatrist, I note that question 3 asked the doctor whether the worker was suffering a psychiatric condition, and, if so, what condition; question 4 requested details of the factors giving rise to the psychiatric condition; and question 5, premised on the condition that the worker was suffering from a psychiatric condition, asked whether there was a causal connection between that condition and the worker’s “perception of his alleged work-caused injury”. The content of the letter indicates that the employer’s insurer had not made a decision about whether the worker had suffered a mental injury, nor as to whether any such injury had arisen out of (that is, had been caused by) the worker’s employment. The request for a permanent impairment assessment, made at the end of the letter, is to be seen in that context.[50]
Of greater relevance to the present proceeding, however, is that in making the finding referred to in [46], her Honour clearly made use of the evidence beyond the limited purpose for which it was tendered. I say more about that in [71] – [73] below.
Senior counsel for the plaintiff contended at the hearing in this Court that her Honour had ultimately decided the application for summary judgment on a basis other than that relied on by the worker (and responded to by the employer), without adequate notice or indication to the parties that she intended to do so.
At one stage in the course of submissions by counsel for the worker, Judge Austin attempted to identify the issue to be determined by her, as appears from the transcript extract below:[51]
Her Honour: --- the issue to be determined is whether there was, as a result of an acceptance of the claim, whether that includes the mental injury and whether or not, in this matter, summary judgment should be entered for that reason.
Mr Grove: Yes.
Her Honour: Because you say notice was clearly given. That’s how you’re presenting it.
Mr Grove: That’s right, yes.
Her Honour: Or whether a declaration is made that acceptance of the original injury, if it did occur, includes any psychological ---
Mr Grove: Correct
Her Honour: --- sequela that may ---
Mr Grove: Yes. So that’s ---
Her Honour: And whether – the notice – it’s quite clear from the defence, that there is a suggestion that notice was required to be given and more than was required to be given and it didn’t occur.
Mr Grove: Yes.
Her Honour: And that they never – but significantly it was never accepted.
At the end of his submissions, Counsel for the worker summarized the worker’s application. He stated that the application for summary judgment was not pressed in relation to pars 10 and 11 of the Particulars of Claim (the allegations that the mental injury had caused or contributed to incapacity for work), but that it was pressed in relation to par 5 (mentioned in [25] above); pars 6, 7 and 8 (the ‘Symptoms’) and paragraphs 9, 12, 13 and 14 (the major depressive disorder, and the permanent impairment pleading).[52] I have considerable difficulty, even now, in understanding what counsel was actually seeking. I refer to the matters which the worker needed to establish, explained in [28] above, and to my observations in [45] above in relation to the deficiencies in the conduct of the worker’s case.
In reply (or further reply, or at least towards the end of the hearing), counsel for the worker made a further attempt to clarify the basis for the summary judgment application:[53]
Mr Grove: … in this application I am not making a claim for specific compensation. I am merely saying I think summary judgment should be given for the acceptance and in relation to the notice. ...
Her Honour: I understand what you are saying, but the employer is not accepting your argument. I mean, they say that this is different: that the acceptance of the primary injury, in this particular case, does not give [rise] to an acceptance of the sequela in this particular matter.
Mr Grove: What I say to that, your Honour, is that you’re wrong.[54]
Her Honour: And you say that the law is clear, but I don’t know that that is necessarily the case …
Mr Grove: Well, the argument I advance, your Honour, is that they ---
Her Honour: --- in all matters. It does certainly depend on the circumstances and they need to be considered carefully in each particular matter. It could be the case that that has occurred; and, therefore, it is important to look at the circumstances of each case to see, indeed, how the employer has conducted themselves and it may be straightforward also, depending on the facts.
Mr Grove: I indicated, your Honour, that I was not – the pleadings do not advance the case in estoppel.
Her Honour: Yes.
Mr Grove: And I mention that specifically because I am relying upon the law that says about the deeming of claims.
Two matters are apparent from the transcript passage extracted in the previous paragraph. The first is that her Honour gave the worker’s counsel the opportunity to respond to employer’s submission that acceptance (of the physical injury) was not a deemed acceptance of any sequela which might be subsequently asserted. Her Honour’s statement that it was “important to look at the circumstances of each case” and her reference to “depending on the facts” indicate that she may not have accepted the worker’s submission that the deeming was a pure question of law. The second matter is that, in response, Counsel for the worker maintained a position consistent with his conduct of the worker’s case, analysed by me in [45] above. He disavowed reliance on estoppel and confirmed that he was “relying upon the law that says about the deeming of claims”.
Insofar as the plaintiff’s case in this Court is that Judge Austin committed jurisdictional error by deciding the worker’s application on a basis not raised on the pleadings, and/or on evidence not relied on by the worker, and without giving notice that she would rely on the affidavit evidence, not only in relation to the issue of notice but also as to proof of the sequela injury and as proof of actual (rather than deemed) acceptance of the injury, it is necessary to consider a number of relevant exchanges between her Honour and senior counsel for the employer in the course of his submissions.
As can be seen from the transcript extract in [51], Judge Austin understood the submission of senior counsel that the employer’s acceptance of the primary (physical) injury did not thereby result in an acceptance of the sequela (mental) injury. However, her Honour was concerned about the possibility that, by its conduct, the employer had accepted the mental injury. Referring to the evidence contained in the extensive affidavit material, her Honour asked the question and received the answer from senior counsel set out below:[55]
Her Honour: I wanted to drill down to another issue which I have looked at on the material, which is: is there something else in these materials that suggests that, even if your issue or case is that the employer did not initially or may not have; at a later date did that occur?
Mr Crawley: Yes, and I must confess that is what I expected I was going to have to meet as a case today because of the amount of material going to that that appeared to have been included in this Philips’ affidavit.
Discussion then turned to the insurer’s referral of the worker to Dr Kornan, and specifically whether a letter written by the insurer subsequent to the receipt of Dr Kornan’s report contained, in her Honour’s words, “a representation made by the insurer that there was acceptance of the claim including the psychological sequela”.[56] Her Honour was there referring to a letter to the worker from the insurer dated 18 April 2016,[57] in which was enclosed a copy of Dr Kornan’s report. The letter stated that the worker was entitled to a compensation payment “as consequence of the secondary mental (psychiatric) injury”. As mentioned in [6] above, the letter included the following paragraphs (underline emphasis added):
… the percentage of permanent impairment taken into account in relation to your psychiatric condition is 10%. ….
Your degree of permanent impairment of 20% of your whole body in relation to your back injury in 2014, combined with the degree of permanent impairment of 10% of your whole body in relation to your psychiatric condition in 2016, is 28% as per the AMA 4th Edition Guidelines which equates to $88,146.24.
As you have already received a permanent impairment payment of $58,955.52 for your back injury, the amount you are entitled to for your psychiatric condition is $29,190.72. …
We advise that the payment for a permanent impairment has no impact on any other entitlement you may be eligible for under the Return to Work Act.
Senior counsel for the employer, apparently adopting the position that the permanent impairment assessment process had been validly engaged,[58] made a submission to the effect that, since the employer was bound to pay, it should not be held to have made a decision to accept the sequela injury. Of greater relevance, however, senior counsel responded to her Honour’s use of the word “representation”, as follows:[59]
Mr Crawley: Your Honour used the word “representation”. It may well be that that is the way the worker wants to argue it because the worker did make reference … to estoppel in that regard. It is not a matter which is pleaded, it is not a matter which has been the subject of proper argument, because estoppel requires not only a representation, but reliance to the detriment in response to that. And that’s a very different situation. I am not going to ---
Her Honour: Well, the worker ---
Mr Crawley: --- meet that argument on the run when it has not been the subject of a pleading, or anything other than, in essence, a throw-away line by my learned friend. But I do urge caution in having regard to that simply because it hasn’t been properly ventilated. All the necessary requirements of estoppel have not been addressed in evidence at all in that regard.
When subsequently pressed by her Honour to explain why the present case was not one where the acceptance of the back injury included the sequela, senior counsel made the following submission:[60]
The mere fact of accepting a claim for a physical injury without more, we say, never amounts to an acceptance of a sequela. It is still the case for the worker to establish that the sequela occurred; [that] he has a psychiatric condition; [that] the condition is causally linked to the employment.[61] The acceptance of a claim for a physical injury does not of itself obviate the need for the worker to prove those matters.
That submission was a substantially correct statement of the law.
Shortly after, the worker’s counsel abandoned reliance on the alleged “Symptoms”,[62] which had previously been a significant part of the worker’s case (see counsel’s summary in [50] above). Senior counsel for the employer was then able to focus his submissions on the pleaded injury occurring in January 2015. In that context, he confirmed for the benefit of her Honour the case which he understood the employer had to meet:[63]
So what we are concerned about then, from the way in which my learned friend has presented his case today, is whether the employer has accepted a claim for psychological injury sustained in January 2015 and whether the worker has met the notice requirement in ss 80 and 81, so as to be entitled to proceed with a claim for compensation in respect of such injury. Those are the two issues that my learned friend has raised and they are the two issues to which I will respond.
That statement by senior counsel fairly corresponds with my analysis of the worker’s case in [45] above.
In relation to whether the employer had accepted the claim, senior counsel for the employer did not confine his submissions to responding to the case argued by the worker’s counsel (the erroneous argument of ‘advance acceptance’, analysed by me in [45]), but also responded to her Honour’s proposition that the employer may have in fact accepted the mental injury at a later time. In reference to “the employer’s subsequent conduct”, he submitted that the continuing payments of compensation for incapacity were not necessarily referable to the worker’s mental injury (or at least they had not been proven to be so referable); and that the employer’s apparent acceptance that it was liable to pay compensation for permanent impairment resulting from the mental injury was not so explicit as to amount to a legally binding acceptance of the mental injury for all purposes.[64]
I interrupt my summary of senior counsel’s submissions to refer to and repeat my observation in [33] above that the asserted acceptance of liability on the part of the employer for the mental injury had little relevance in the hearing of the summary judgment application.[65] In the absence of any formal acceptance of the worker’s mental injury, the employer’s conduct – said to amount to an acceptance of liability – might have been a relevant consideration if the worker had relied on estoppel (whether to plead that the employer was estopped from denying having received timely notice of injury, or to plead that the employer was estopped from denying the fact of the sequela mental injury). However, the worker did not plead, or otherwise rely on estoppel.[66] The worker’s affidavit evidence was tendered to prove notice, not estoppel (or anything else).
It can be seen from [61] that senior counsel made submissions and engaged with Judge Austin in relation to the affidavit evidence tendered by counsel for the worker, and not only in relation to the issue of notice. Senior counsel did not remind her Honour or make a submission that the evidence had been tendered for the sole purpose of proving the giving of notice and hence that the Court’s consideration of the evidence should be confined to that purpose.
Senior counsel made submissions as to the absence of notice of injury (and the requirement that such notice be given as soon as practicable) in relation to the mental injury suffered in early 2015, including the absence of identification of any date of injury.[67]
After hearing the worker’s counsel’s submissions in reply, her Honour invited further submissions from senior counsel for the employer in relation to the employer’s referral of the worker to Dr Kornan. Her Honour’s statements indicated that she was of the view that the insurer’s request for a permanent impairment assessment of the mental injury had some significance in terms of the acceptance by the employer of the mental injury.[68] Senior counsel then made submissions to her Honour in similar terms to my observations in [46] above.
The decision to grant summary judgment
Judge Austin gave written Reasons for Decision on 23 September 2019 in which she made the finding, referred to in [46] above, that, “when the Employer referred the Worker for the whole person impairment assessment for the mental injury to Dr Kornan pursuant to s 71 and s 72 of the Act, evidenced by the letter of referral to Dr Kornan dated 1 March 2016, the Employer accepted liability for the Worker’s secondary mental injury, the sequela.”[69]
Her Honour also held that the letter extracted by me in [55] above was “without qualification in that the Employer did not seek to preserve any rights or privileges or its position on any issue.”[70]
Her Honour ultimately made findings,[71] as follows:
60. I find that there is sufficient evidence in this case to establish on the balance of probabilities that:
(i)the secondary mental injury was productive of an incapacity to work, evidenced by the permanent impairment assessment report; and
(ii)the Employer accepted liability under the Act for the secondary mental injury and that it was productive of an incapacity for work evidenced by the referral of the Worker for the whole of body permanent impairment assessment under section 71 and 72 of the Act and further evidenced by the open, unqualified letter of 1 April 2016 to the Worker outlining the compensation entitlement arising as a result of the assessment.
On the basis of those findings, her Honour held that she was satisfied on the balance of probabilities that “the Worker’s claim of a mental injury secondary to his accepted back injury was accepted by the Employer”. Accordingly, she made the further finding that the defence filed by the Employer disclosed “no real defence to the claim made in the proceedings that the employer accepted the claim for the secondary mental injury”.
Senior counsel for the plaintiff has identified a number of difficulties with her Honour’s findings. It is not necessary to deal with them all. One of the impugned findings is the finding that the secondary mental injury was productive of an incapacity to work. Counsel for the plaintiff contends that, although summary judgment was apparently sought in relation to the entirety of the action, counsel for the worker conceded at the hearing that summary judgment “was only pressed in respect of the occurrence of a compensable psychiatric sequela injury and not on the question of any incapacity arising from it”.[72] It is clear from the transcript that counsel for the worker did not press for summary judgment in relation to whether the alleged mental injury had resulted in or contributed to incapacity. The plaintiff therefore contends that, in making the impugned ruling, her Honour went outside her jurisdiction and thereby committed jurisdictional error.[73]
It is not necessary for me to make a finding in relation to the contention summarized in the previous paragraph, because there was a more significant failure on the part of her Honour to comply with an essential pre-condition or limit to the valid exercise of her power to give summary judgment.
Before any decision could be made to grant summary judgment in favour of the worker, her Honour had to be satisfied that the worker had suffered a mental injury as a consequence of his accepted physical injury and therefore an injury which arose out of his employment with the employer. That was fundamental. In relation to that, there had been no relevant concession by or on behalf of the employer. Indeed the employer’s counsel had made the point that the worker had to establish the causal link.[74] The need to prove these matters had clearly been overlooked by counsel for the worker. Evidence of a causative link between employment/physical injury and the mental injury was contained in multiple medical reports included in the extensive affidavit evidence (referred to in some detail in the early part of these Reasons). However, the affidavit evidence was tendered and relied upon only in relation to the issue of notice. Subject only to the matter dealt with by me in [73], senior counsel for the employer was entitled to treat the worker’s evidence as confined in that way.
An arguable exception to the employer being entitled to rely on the confined use of the evidence came about as a result of her Honour’s expressed concern in relation to acceptance of the claim: that (contrary to the submissions of counsel for the worker that the issue was one of law only), the issue was one of fact, for which evidence was required. In that respect, her Honour fairly foreshadowed that she might rely on the affidavit evidence for the additional purpose of deciding the issue of actual or imputed acceptance of the mental injury.[75] Senior counsel for the employer responded by making submissions in relation to the evidence of acceptance, but without (1) raising any formal objection as to its limited purpose, or (2) making submissions that it was impermissible for her Honour to have regard to that evidence. In the circumstances, I do not think that the plaintiff is entitled in this one respect to assert that Judge Austin committed jurisdictional error by going outside the pleadings, and/or that an order in the nature of certiorari should issue on the grounds of denial of procedural fairness.
However, at no stage did her Honour foreshadow that she might rely on the affidavit evidence for the additional purpose of deciding whether or not the worker had suffered a mental injury as a consequence of his accepted physical injury. Yet it is clear that her Honour took into account and accepted evidence of the causative link, because she could not otherwise have made the further findings made by her in order to grant summary judgment. Unfortunately, her Honour did not give any indication to the parties (and specifically to senior counsel for the employer) that she was intending to have regard to the medical evidence for the purpose of deciding the fundamental issue as to whether or not the mental injury was caused by the accepted back injury.
The unfortunate result was that her Honour decided the case on evidence which was not properly before her. In my judgment, the decision was made without jurisdiction. I would make an order in the nature of certiorari to quash the order for summary judgment.
Further, for reasons stated, there was a failure on the part of her Honour to accord procedural fairness to the employer, the within plaintiff. That denial of natural justice is not jurisdictional error, but is a proper basis for the making of an order in the nature of certiorari.[76]
I make some further observations, obiter, in [78] – [81].
Leaving aside the way in which it was conducted, the application for summary judgment was inappropriate. The issues in dispute were such that they should have been determined after a viva voce hearing. Even in relation to the discrete issue of notice (whether notice was given to the employer, and if so, whether notice was given “as soon as practicable”), it is difficult to know how the worker would prove that the notice was given as soon as practicable, without himself giving evidence. In Maddalozzo v Maddick,[77] Mildren J cited with approval the judgment of the English Court of Appeal in Albison v Newroyd Mill Ltd,[78] in which it was held that the important question was: “at what time did the worker realize that he had suffered an injury entitling him to compensation under the Act?”. Mildren J held that such realization need not be a matter of certainty; that it would be sufficient if the worker realized that he might have to make a claim. Mildren J also cited with approval the following observation of Fletcher Moulton LJ in Egerton v Moore:[79] “In my opinion, it is clear that the workman … was suffering from something which he might have to claim to be a consequence of the accident. It was his business then, at once, to give notice.” The authorities thus suggest that the claimant’s own evidence is normally required.
That leads to a related consideration. Although the common law position is that the expert opinions rise or fall on the basis of their independent evidentiary foundation,[80] the Evidence (National Uniform Legislation) Act 2011 applies in proceedings in the Work Health Court.[81] As a result, the history recorded by the medical experts is admissible evidence to prove the truth of the history as told to the doctors.[82] It remains admissible for purpose of establishing the factual basis upon which the doctors arrived at the opinions expressed in their reports, but it is not limited to that purpose (unless the court were to make an order under pursuant to s 136 Evidence (National Uniform Legislation) Act 2011 to limit the use to be made of the evidence.[83]
Under s 110A (1) Return to Work Act 1986, court proceedings are to be conducted with as little formality and technicality, and with as much expedition, as legislative requirements and a proper consideration of the matter permits. Under s 110A (2), the Work Health Court is not bound by the “rules of evidence” but may inform itself on any matter in such manner as it thinks fit. I have not had the benefit of argument as to what is meant by the expression “rules of evidence”. The meaning of that term in s 110A (2) is somewhat unclear because the applicable evidence legislation, the Evidence (National Uniform Legislation) Act 2011, states: “This Act sets out the rules of evidence for the Territory”.[84] Thus, it may well be that the leeway given to the Work Health Court by s 110A (2) Return to Work Act 1986 enables it to disregard, or at least not apply, the provisions of the Evidence (National Uniform Legislation) Act 2011.[85]
The matters referred to in the preceding two paragraphs emphasize the need for the Work Health Court to resolve issues of evidence in advance of any hearing in order to avoid misunderstanding, disruption and delay. Particular caution is necessary for applications for summary judgment because such applications are mostly dealt with on the basis of documentary evidence, with no oral evidence and hence no cross examination. It is most important that counsel assist the court in relation to matters of evidence, whether at trial or at the pre-trial stages. That requires counsel to clearly identify the issues to ensure that the court receives the level of assistance needed to decide the technically difficult matters which frequently arise for determination.
I turn to consider the application for judicial review referred to in [2] above, in relation to the interlocutory order for particular discovery of privileged documents made on 14 February 2020.
The legal professional privilege issue and the interlocutory order for particular discovery
In relation to discovery and inspection of documents, the Work Court Health Rules set out the requirements for a list of documents as follows:[86]
12.02List of documents
(1) A list of documents is to be in accordance with Form 12A and is to:
(a) identify the documents that are or have been in the possession of the party making the list;
(b) enumerate the documents in convenient order and:
(i)describe each document sufficiently to enable it to be identified; or
(ii)in the case of a group of documents of the same nature – describe the group sufficiently to enable it to be identified;
(c) distinguish those documents that are in the possession of the party making the list from those that have been but are no longer in the party's possession and, if a document has been but is no longer in the party's possession, state when the document was last in the party's possession and his or her belief as to what has become of it; and
(d) if the party making the list claims that a document in the party's possession is privileged from production – state sufficiently the grounds of the privilege.
It is tolerably clear that, if a party wishes to claim legal professional privilege (or ‘client legal privilege’, as it is now also known) in respect of documents which constitute “a group of documents of the same nature”, it is not necessary to identify each and every document in the group, although the grounds of the privilege must be sufficiently stated with respect to the group so that, if necessary, the claimed privilege might be challenged.
On 14 February 2020, following application made by the worker’s solicitors, Judge Austin made an order requiring the employer to “discover the list of documents in accordance with Form 12A” and to:
(a) Identify the documents that are or have been in the possession of the party making the list;
(b) To:
(i)Enumerate the documents in convenient order by date and time;
(ii)Describe each document sufficiently to enable it to be identified
(c) Distinguish each document that are in the parties’ possession from those that are no longer in the parties’ possession;
(d) If the party making the list claims that a document in the party's possession is privileged from production – the party is to state sufficiently the grounds of the privilege.
It can be seen that the order for discovery substantially followed the requirements of rule 12.02 (1). However, the order did not include mention of rule 12.02 (1)(b)(ii), the specific sub-rule in relation to groups of documents of the same nature. More significantly, the order added the words “by date and time” to the simple requirement stated in rule 12.02 (1)(b) that the party enumerate documents in convenient order.
At the hearing in this Court, counsel for the plaintiff tendered or provided a document dated 24 March 2020 described as “Employer’s Updated List of Documents Filed in Compliance with Order dated 14 February 2020”. In that document, the employer claimed privilege and objected to producing the documents in Part 2 of Schedule 1, on the basis that they were “the usual documents privileged from production on the grounds of Legal Professional Privilege, being correspondence and communications between the Principal and Agents solicitors; statements and proofs of witnesses; instructions to and Opinions of Counsel; and other correspondence, documents and file notes which were or are brought into existence for the dominant purpose of submission to the legal advisor for advice or for use in, or in contemplation of, legal proceedings”.
The employer thus intends to rely on both limbs of legal professional privilege: advice privilege (for the protection of communications between a client and a lawyer for the purposes of the lawyer providing legal advice to the client) and litigation privilege (the protection of communications between a client, lawyer and any relevant third party, for the dominant purpose of anticipated or existing legal proceedings).
Relevantly, the employer asserts legal professional privilege in respect of five surveillance reports, each said to be with enclosed surveillance footage. Insurers frequently arrange for surveillance of workers who are in in receipt of workers compensation for work incapacity. The surveillance reports in the present case are described variously as “Surveillance/Activity report” or “Confidential Surveillance Investigation report”. A typical example is document no. 320: “SureFact Australia Activity Investigation Report and enclosed surveillance footage”, with the given date “25/01/2018”. That date was the date of the report; no dates were given for the surveillance footage.
Any surveillance photos or video footage would be properly characterised as a document for the purpose of discovery of documents. Under the provisions of the Interpretation Act 1978, a reference in legislation to a ‘document’ includes not only written documents and photographs, but also video and audio-visual recordings, the latter being described as “… any material from which sounds, images or writings are capable of being reproduced with or without the aid of another article or device”.
The plaintiff contends that there was no statutory authority or rules of court enabling the specificity in the sub-par (b)(i) of the order; and that the words at the end of sub-par (b)(i), requiring that the documents be enumerated “by date and time”, was a jurisdictional error, “necessarily involving an impugning of the employer’s legal professional privilege” and therefore beyond the powers of the Work Health Court.[87] The plaintiff further contends that the practical consequence of the imposed requirement to enumerate documents by reference to date and time is that the worker would be able to determine those activities undertaken by him which were caught on video and, equally, those which were not. At least he would know the dates on which he had been filmed, and the dates he had not. The disclosure of the details ordered by the Work Health Court would impinge on the employer’s privilege.[88] The employer would lose a legitimate forensic advantage by what is, in effect, “a partial disclosure of the privileged material”.
I accept the submission summarized in the previous paragraph. Notwithstanding the requirement to enumerate and list the relevant documents for which privilege is claimed, to enable the privilege claim to be assessed (and challenged), there can be no legitimate requirement for the documents to be listed in a manner which would result in the loss of the benefit of the privilege.[89]
In the present case, the employer has not made clear – in relation to each document or group of documents – the basis or bases on which privilege is claimed. That should be rectified. Notwithstanding that defect, I am satisfied, for the purposes of plaintiff’s application, that the employer’s ‘preface’ statement of the claimed grounds of privilege, together with the description and date of the five separate reports which enclosed surveillance footage, is sufficient to enable the worker’s lawyers to assess the privilege claim. Counsel for the second defendant (worker) does not contend otherwise. Rather, he seeks to distinguish the present case from that in Starke Investments on the basis that (1) the within plaintiff retains the full forensic advantage and can choose when and how it deploys the privileged documents; and (2) the orders made by the Work Health Court “merely required the plaintiff to sufficiently describe the documents including reference to date and time”.
Counsel for the second defendant also submits that the order was “consistent with the Rules and authority”, the one case cited being Kadlunga Proprietors v Electricity Trust of South Australia.[90] In that case, the defendant set out thirty numbered paragraphs in its List of Privileged Documents. The first read: “In a folder marked File1, Documents numbered 1 to 41”. All of the remaining 29 paragraphs adopted the same format. Hardly surprisingly, White J concluded, “It is apparent that this list simply refers to the twelve files, seventeen folders and the documents contained within them by number and gives no indication of the nature or date of the documents within the files and folders.”[91] His Honour’s concern was that adequate scrutiny to assess the criteria for legal professional privilege could not take place “without some useful description of the nature of the document said to be privileged”.[92] That concern in Kadlunga is not relevant in the present case, for the reasons explained in [93]. In the facts of Kadlunga, it was particularly important to include the date of preparation of the protected documents as part of the description because, from the perspective of lawyers examining the claim for privilege, it was less likely that routine and special reports of safety investigations carried out before the “Ash Wednesday” bushfire in February 1983 were prepared for the sole purpose of submission to legal advisers for advice or for use in legal proceedings.[93]
In my opinion, Kadlunga can be readily distinguished from the present case. As to the submission that the orders made by her Honour were “consistent with the Rules”, that is not relevant. It would be relevant if the orders impinging on a party’s legal professional privilege were specifically authorised by legislation or valid rules of court, but that is not the case.
Counsel for the second defendant submits that, if the Work Health Court erred, it was not an error going to jurisdiction. In my opinion, that cannot be accepted. The error was ‘directly jurisdictional’ in that the Work Health Court exceeded its powers in making an order which impinged – albeit slightly – on the employer’s common law right. Further, or in the alternative, the order resulted in a form of procedural unfairness: the employer’s right to a fair hearing included the ability to effectively cross-examine the worker, which was adversely affected in a way which would not be open to correction on appeal.
I would make an order in the nature of certiorari to quash (or partially quash) the discovery order.
Conclusion
I will hear the parties as to the precise orders which this Court should make.
One of my concerns (although the point was not taken, or argued by counsel at trial) was that the proper respondent should more appropriately have been the Work Health Court, rather than the named first defendant. However, I acknowledge there is no equivalent in the Northern Territory to the Victorian Supreme Court rule which requires that the particular court, and not the judicial officer, be named as defendant in matters of this kind.[94] Moreover, as pointed out by senior counsel for the plaintiff, there has been no judicial criticism in the Northern Territory of the practice of naming judicial officers as defendants in proceedings seeking orders in the nature of certiorari.[95]
[100]The plaintiff should submit a draft of the final orders sought, consistent with these Reasons. If there is any dispute, the matter can be listed for further argument.
--------------
[1]The medical evidence indicates that the worker underwent surgery on two occasions, an L4/5 discectomy in 2009 and then an L5/S1 laminectomy and fusion in November 2012. Nothing turns on the precise date and nature of the surgical procedures.
[2]Report Dr Kornan dated 7 March 2016, annexure ‘CP-7’, part of annexure ‘RND-4’ to the affidavit of Reinis Dancis sworn 23 January 2020. The worker was also diagnosed as suffering an ongoing Alcohol Abuse Disorder (he admitted to drinking 80 beers in a week).
[3]Another factor contributing to the worker’s psychiatric ill-health was the breakdown of his marriage. Personality factors were also said to play a part in the worker’s psychiatric presentation.
[4]For example, report Dr Tejraj Tawde dated 26/04/16 annexure ‘CP-11’, part of annexure ‘RND-4’ to the affidavit of Reinis Dancis sworn 23 January 2020: “He presents with depressive features that have been gradually worsening particularly over the last year. … very likely that [he] has experienced some level of depression since the injury, which he tried to cope with by using alcohol. I would therefore consider diagnosis of depressive disorder, possibly in the background of dysthymia. The injury sustained at work and the proceedings in relation to WorkCover that have followed are linked to the onset and worsening of his depression.” In his subsequent report to the insurer dated 26/07/16 (annexure ‘CP-13’), Dr Tawde provided a diagnosis of “persistent depressive disorder” said to have been “strongly linked to the impact of work-related injury”. In August 2016, the Panel (comprising two specialist psychiatrists and an occupational physician) convened to re-assess the permanent impairment assessment carried out by Dr Kornan considered that it was likely that the worker was suffering from a chronic major depressive disorder of moderate severity, secondary to the injury sustained to his lower back, with evidence also of alcohol misuse disorder secondary to his back injuries (annexure ‘CP-14’). In his report to the insurer dated 8/03/17 (annexure ‘CP-18’), Dr Tawde reviewed the causes of the worker's depressive disorder and wrote, “In summary the work-related injury has directly and indirectly contributed to the depressive disorder”. Dr Wasim Shaikh, consultant psychiatrist, examined the worker in October 2017 and considered that he suffered an adjustment disorder with mixed anxiety and depressed mood, rather than a major depressive order (CP-21). He considered that the worker's frustration with the extended compensation process and other compensation-related concerns were “significantly contributory”, suggesting they were greater contributors than the 2008 back injury itself.
[5]Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31 at [54]. There has been an unfortunate lack of synchronisation between the original decision provided to the parties and the decision published on the Local Court website. In these Reasons for Decision, to be published on the Supreme Court website, I consider it is preferable to cite relevant paragraphs from the Work Health Court decision consistently with what has been published to the public on the Local Court website.
[6]Annexure ‘CP-12’, part of annexure ‘RND-4’ to the affidavit of Reinis Dancis sworn 23 January 2020.
[7]The insurer’s letters to Dr Tawde dated 27 February 2017 (“CP-17) and 7 June 2017 (annexure ‘CP-19’) both commenced, “We thank you for seeing Hayden Bray in relation to the secondary psychological condition, suffered as a result of his workplace injury.”
[8]Report Dr Tejraj Tawde to Dr Dwyer, 2/03/2018 (“CP-23).
[9]Annexure “CP-24”.
[10]Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7; 335 FLR 350. This decision was handed down on 29 June 2018, four months before the employer’s solicitors’ letter.
[11]Ibid, at [23].
[12]The Return to Work Act 1986, s 80, provides as follows:-
Notice of injury and claim for compensation
(1)Subject to this Act, a person shall not be entitled to compensation unless notice of the relevant injury has, as soon as practicable, been given to or served on the worker's employer.
(2)An employer who receives a claim for compensation shall be deemed to have been given notice of the injury to which it relates.
[13]See [15] below, for the other matters the worker would need to allege and prove.
[14]This was conceded by counsel for the worker in the summary judgment application at transcript 23/07/2019, p. 13.5: “... it's quite clear we didn't give a claim form in relation to mental injury”.
[15]Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7; 335 FLR 350 at [25], [32].
[16]I consider that it was necessary to plead the fact that notice had been given as soon as practicable. Such notice is a condition upon the right to compensation; as Mildren J held in Maddalozzo v Maddick (1992) 84 NTR 27 at 31: “… the giving of proper notice is the essence of the right to compensation.”
[17]Work Social Club – Katherine Inc v Rozycki (1998) 143 FLR 224 at 230, per Mildren J.
[18]Par 9 of the Particulars of Claim. Reliance on the alleged “Symptoms” was not abandoned until almost the end of the summary judgment hearing – see Transcript 23/07/2019, pp. 49 – 50.
[19]Compensation is also payable where an injury results in or materially contributes to death or impairment – see s 53 (1)(a) and (b) of the Act.
[20]Particulars of Claim, par 11.
[21]As senior counsel for the plaintiff submits, there was no pleaded case that the referral to Dr Kornan amounted to acceptance of the sequela injury (submissions par 41.1).
[22]Particulars of Defence, par 7.
[23]Particulars of Defence, par 9.
[24]The Work Health Court Rules do not make express provision for a pleading in reply. The Court is nonetheless empowered to grant leave for a Reply pursuant to Part 1, Division 5, rule 1.12, which permits the court to make orders or follow a procedure it thinks fit.
[25]See Work Health Court Rules, rule 8.01(2).
[26]Counsel for the worker ultimately abandoned the application for a declaration and order in relation to the “Symptoms” in par 18.1 of the Particulars of Claim, but not until part way through the oral submissions of senior counsel for the employer: Transcript 23/07/2019, p 49.5. Reliance on the “Symptoms” in par 18.2 was not abandoned until the very end: Transcript 23/07/2019, p 56.9.
[27]See Work Health Court Rules, rule 21.02(1)(a).
[28]At one point in his submissions to Judge Austin, counsel for the worker acknowledged that estoppel had not been pleaded: “We haven't pleaded estoppel but effectively that's what it is”: Transcript 23/07/2019, p 35.1. Further, counsel for the worker submitted that it was important to look at the circumstances to see how an employer had conducted itself – which suggests estoppel by conduct – while nonetheless acknowledging that the pleadings “do not advance the case in estoppel”: Transcript 23/07/2019, p 56.1. If estoppel were relied on, it should have been pleaded. The Work Health Court Rules, rule 8.03, provide that in a pleading subsequent to a statement of claim, a party must plead specifically a fact or matter that (a) the party alleges makes a claim or defence of the opposite party not maintainable.
[29]Transcript 23/07/2019, p. 2.4.
[30]Transcript 23/07/2019, page 5.5. Counsel for the worker appeared to be asserting that the worker's mental injury commenced at the same terms as the alleged “Symptoms”, in 2010. That was a departure from the pleaded Particulars of Claim. The submission was misleading. Reliance on the alleged “Symptoms” was ultimately abandoned. Counsel for the worker later acknowledged that the only relevant sequela injury alleged was the mental injury suffered by the worker in January 2015 or early 2015. As a matter of logic, notice of that injury could not have been given in the period 2010 to 2015.
[31]Transcript 23/07/2019, page 6.1.
[32]Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7; 335 FLR 350.
[33]Transcript 23/07/2019, p 10.
[34]Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7; 335 FLR 350 at [25].
[35]I refer to my observations in [13] above. The present case may be contrasted with MacMahon Contractors Pty Ltd v Lee [2017] NTSC 33, where the issue as to whether or not the employer had accepted liability for a consequent mental injury had legal significance. The employer had cancelled payment of compensation paid for the worker’s incapacity, pursuant to s 69 Return to Work Act 1986. The worker contended that the employer had been paying compensation for both a back injury and a mental injury. The employer's notice of decision referred only to cessation of incapacity as a result of the accepted back injury. There was no mention in the notice, or in the attached medical certificate, of the worker’s alleged mental injury. The worker contended that the notice was therefore an invalid notice of cancellation. As a result, it was necessary for the trial judge to determine whether the employer had accepted liability to pay compensation for incapacity on account of the alleged mental injury. It was held on appeal that there was no evidence that the employer had accepted liability to pay compensation for any claimed incapacity for work as a result of a mental injury, at [40] to [44], and that the trial judge had erred by conflating the employer’s awareness of a psychological condition with acceptance of liability for such condition.
In the present case, it appears that counsel for the worker was aware that MacMahon was “a section 69 case” and that the issue in MacMahon was the validity of the s 69 notice cancelling payments – see transcript 23/07/2019, p 54. However, counsel did not explain the relevant distinction to her Honour.
[36]For my part, I would also strike out par 5 of the Particulars of Claim because, inter alia, it did not plead a material fact. I refer also to the observations in [28] above.
[37]Transcript 23/07/2019, page 11.1 [underline emphasis added].
[38]Transcript 23/07/2019, p 15.1, 16.8. See Maddalozzo v Maddick (1992) 84 NTR 27 at 32.35; Van Dongen v Northern Territory [2009] NTSC 1 at [41]; Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7; 335 FLR 350 at [24].
[39]Transcript 23/07/2019, p 17.2.
[40] As explained in footnote 26, counsel for the worker did not abandon the application for a declaration and order in relation to the “Symptoms” in par 18.1 of the Particulars of Claim until part way through the submissions of senior counsel for the employer. Counsel for the worker then confirmed that the asserted mental injury occurred in January 2015 – Transcript 23/07/2019, p 49.5 – 50.2.
[41] Transcript 23/07/2019, p 23.1.
[42]Transcript 23/07/2019, p 25.9 - 26.1. Dr Kornan’s report is referred to in [5] above.
[43]Transcript 23/07/2019, p 26.4; p 27.4, p 28.7.
[44]Transcript 23/07/2019, from 28.8.
[45]Annexure ‘CP-6’, part of annexure ‘RND-4’ to the affidavit of Reinis Dancis sworn 23 January 2020.
[46]Taylor Enterprises (NT) Pty Ltd v Pointon & Work Health Authority [2009] NTMC 29 at [26], [27].
[47]Transcript 23/07/2019, page 42.7.
[48]Transcript 23/07/2019, page 57.9.
[49]Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31 at [8]; also at [58].
[50]Senior counsel for the employer submitted that the referral to Dr Korman could not be seen as an acceptance of the psychiatric injury; rather, the fact that the was seeking an opinion as to whether or the worker had a psychiatric injury suggested that it had not at that time accepted the injury – see transcript 23/07/2019, pp. 58-60.
[51]Transcript 23/07/2019, page 31.5.
[52]Transcript 23/07/2019, page 38.5.
[53]Transcript 23/07/2019, p 55.5.
[54]This was possibly mis-transcribed. Counsel may have submitted, “… they’re wrong”, at T 55.8.
[55]Transcript 23/07/2019, p. 42.1.
[56]Transcript 23/07/2019, p. 43.4.
[57]Annexure ‘CP-12’, part of annexure ‘RND-4’ to the affidavit of Reinis Dancis sworn 23 January 2020.
[58]See [44] above.
[59]Transcript 23/07/2019, p 43.7.
[60]Transcript 23/07/2019, p 44.5.
[61]Senior counsel subsequently corrected the submission to say that the worker must establish that the condition is causally linked “to the primary injury”: transcript 23/07/2019, p 56.7.
[62]Transcript 23/07/2019, p 49.5.
[63] Transcript 23/07/2019, p 50.9.
[64] Transcript 23/07/2019, page 51.
[65] See [33] and footnote 35 above.
[66]Confirmed by counsel for the worker in reply, at transcript 23/07/2019 at p 56.1.
[67]Transcript 23/07/2019, page 53.5.
[68]Transcript 23/07/2019, pp 58 – 60.
[69] Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31 at [8].
[70]Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31 at [54].
[71]Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31 at [60].
[72]Plaintiff's submissions, paragraph 28, referring to transcript, 23/07/2019, p.11. See also transcript p 38.4.
[73]Consideration of that contention is complicated by the fact that, when the matter was brought back before her Honour on 5 December 2019, her Honour explained that, notwithstanding the finding, her Reasons for Decision should be confined to a decision as to whether or not the worker’s sequela was accepted by the employer. See transcript 05/12/2019, pp 4.9 – 5.
[74]See the transcript extract in [57] above.
[75]An issue which I consider was an irrelevant issue – see [33], footnote 35 and [62] above.
[76]See Police and State of South Australia v Lymberopoulos (2007) 98 SASR 433 at 441, at [40] – [42], per Doyle CJ; Bleby and Sulan agreeing at [74] and [82] respectively. Cf. Spanos v Lazaris [2008] NSWCA 74 at [16] where Basten JA held that a failure to afford procedural fairness would constitute ‘jurisdictional error’.
[77]Maddalozzo v Maddick (1992) 84 NTR 27 at 37.5.
[78]Albison v Newroyd Mill Ltd (1925) 134 LT 171.
[79]Egerton v Moore [1912] 2 KB 308 at 315.
[80]See, for example, Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [68]-[76] per Heydon JA.
[81]Work Health Administration Act 2011, s 12; Evidence (National Uniform Legislation) Act 2011, s 4 (1).
[82]Evidence (National Uniform Legislation) Act 2011, s 60; Welsh v The Queen (1996) 90 A Crim R 364 at 369.4, per Hunt CJ at CL, Newman J and Bell AJ agreeing at 375.
[83]Evidence (National Uniform Legislation) Act 2011, s 136. The court may limit the use to be made of evidence if there is a danger that the evidence might be (a) unfairly prejudicial to a party or (b) misleading or confusing.
[84]Evidence (National Uniform Legislation) Act 2011, Chapter 1, Introductory Note, Outline of the Act.
[85]The Evidence (National Uniform Legislation) Act 2011, s 8, preserves the provisions in other Acts which relieve courts from the obligation to apply the rules of evidence. This applies to s 110A (2) Return to Work Act 1986. The fact that s 110A (2) is not specifically mentioned in Note 4 to s 4 Evidence (National Uniform Legislation) Act 2011 is not relevant because the list of provisions “in other Territory Acts” which relieve courts from the obligation to apply the rules of evidence in certain proceedings are examples only. Moreover, the Notes are for guidance and do not affect the substantive provision in s 8 Evidence (National Uniform Legislation) Act 2011.
[86]Work Health Court Rules, rule 12.02.
[87]Supplementary outline of submissions of the plaintiff, par 18.
[88]See Starke Investments (NT) No 2 Pty Ltd and others v Ware [2018] NTSC 58 (Full Court); 336 FLR 372 at [6], [7].
[89]Halliday v ACN 003 075 394 Pty Ltd (Unreported), Supreme Court of Victoria, Appeal Division, Ormiston J, D Phillips and O’Bryan JJ, 11 April 1994, per Ormiston J at p 7.
[90]Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410.
[91]Ibid, p 412.5.
[92]Ibid, p 415.4.
[93]At the time Kadlunga was decided, the ‘sole purpose test’ of legal professional privilege prevailed, established in Grant v Downs (1976) 135 CLR 674. However, in 1999, the majority of the High Court substituted ‘dominant’ for ‘sole’ – see Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49.
[94] Victorian Supreme Court (General Civil Procedure) Rules 2005, rule 56.01 (2)(b) & (3); DPP v Denysenko [1998] 1 VR 312
[95]Examples include: Work Health Authority v Outback Ballooning Pty Ltd and David Bamber SM [2017] NTSC 32; Qadir v Judge Greg Macdonald and Registrar of Motor Vehicles [2018] NTSC 79.
0
16
0