The Workers Rehabilitation and Compensation Corporation v Stephen Mark Lieschke No. SCGRG 92/2489 Judgment No. 3698 Number of Pages 4 Workers' Compensation

[1992] SASC 3698

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Workers' compensation - miscellaneous matters - other matters - WorkersRehabilitation and Compensation Act s.1O2 - undue delay by Corporation in determination of worker's claim for compensation - whether review officer's jurisdiction to intervene under s.102 is restricted to initial claims for economic loss and does not extend to a claim for non-economic loss under s 43. Supreme Court Rules r.98.04A - application for leave to serve and also to prohibit tribunal from hearing a matter - need for R.98.04A application to be made promptly.

HRNG ADELAIDE, 5 November 1992 #DATE 5:11:1992
Counsel for applicant:        Mr J M Walsh
Solicitors for applicant:     Stratford and Co
No attendance by respondent

ORDER
Applicaton refused.

JUDGE1 COX J This is an ex parte application under r.98.04A of the Supreme Court Rules for leave to serve, and for an interim order of prohibition, in support of an interpretation that the Workers Rehabilitation and Compensation Corporation puts on the review provisions contained in s.95 and s.102 of the Workers Rehabilitation and Compensation Act 1986. 2. The question arises in this way. According to the documents exhibited to the application, a worker notified the Corporation on the prescribed form that he had been injured at work on 8 September 1989. He used for that purpose a document that is headed 'Compensation Claim', but he does not appear to have specified the compensation that he might have been seeking at that time. Mr Walsh, for the applicant Corporation, tells me that that is quite normal and amounts nevertheless to a claim for compensation within the meaning of the Act, and I accept that implied interpretation of the scheme. 3. Later, through his solicitors, the worker sought specifically from the Corporation a determination of his entitlement, if any, to compensation under s.43 of the Act. That section acknowledges the right of the worker in certain circumstances to compensation for non-economic loss by way of a lump sum. The solicitor's letter was written on 29 November 1991. Time passed and evidently the solicitors got no reply. So on 20 July 1992 the worker made a formal application, again by his solicitors, for consideration of 2 the matter by a review officer pursuant to the provisions of s.102. Sub-section (1) of that section reads - 'A worker who believes that there has been undue delay in the determination of a claim by the worker under this Act may apply to a review officer under this section'. 4. The section goes on to state that a review officer can give necessary directions and, in particular, may himself decide the claim. 5. Read against the background of a legislative scheme that provides for a variety of claims on the Corporation by an injured worker and, for the most part, no specific time limits within which the Corporation must respond, one may see s.102 as providing the useful function of enabling a worker to get an answer to a claim where for some reason or other the Corporation is not providing one; hence the power under sub-s.(2), when the very making of the s.102 application has failed to stir the Corporation into a decision, for the review officer himself to take the matter out of the Corporation's hands and decide the claim for himself. Section 102, then, can be seen as complementary to the general review provisions of s.95. 6. Mr Walsh agrees that a claim under s.43 is within the ordinary meaning of the expression, 'a claim by the worker under this Act', that is used in s.102. He argues, however, that s.102 is really restricted to what he calls the 'initial' claim for economic loss. I am willing to assume that most first claims made by a worker under this Act are for economic loss of one kind or another. Section 43 is plainly exceptional in being concerned merely with 3 non-economic loss. It is not obvious to me, however, that any intelligible or fair policy that one may discern in this legislation would appropriately be served by giving s.102 the restricted and unobvious interpretation for which the applicant argues. If a workman's claim has simply been put to one side and overlooked, or has not been answered for some other reason, good or bad, it seems entirely reasonable to me that he should be able to have the matter independently considered, and not have his claim for practical purposes stultified, whether it is a claim for economic loss or for non-economic loss and whether it is an initial claim or a subsequent claim. Human error being what it is, the possibility of unjustifiable delay causing hardship must be as great in one instance as in another. I see no good reason for giving the plain words of s.102 a restricted interpretation, and every reason for not doing so. 7. The same, I think, must be said of the related argument that was put to me about s.95 of the Act. Sub-section (2) of that section lists the kinds of decisions of the Corporation that are generally reviewable by a review officer. The first of them is 'a decision made on a claim for compensation' but, again, Mr Walsh argued that this is confined to 'initial decisions' for economic relief. I see no support for that submission in the fact that the following decisions listed in the sub-section are decisions about economic claims, because a claim under s.43 would ordinarily be answered once for all. There would be no occasion to vary or suspend or discontinue, for instance, a 4 lump sum payment for non-economic loss. So it is not significant, in my view, that paras. (b) to (e) of s.95(2) do not use terms appropriate to decisions made with respect to a claim for compensation for non-economic loss. There is no need for them to do so. They are sufficiently covered in the general words of para.(a). There is nothing about s.95, in my judgement, to support a restricted interpretation of the clear words used in s.102. 8. I was referred to a decision of the Workers Compensation Appeal Tribunal dated 20 December 1991 in the matter of Metro Meat Ltd v Holliday. That, as I read the case, was a decision on quite a distinct matter. I do not think it can assist the applicant in the case I am hearing this afternoon. 9. It is not generally appropriate, of course, when hearing an application under rule 98.04A, for the chamber judge to pronounce finally on the issue that the applicant seeks to raise. It is enough if the judge perceives a case fit for argument. I am afraid, however, that the applicant has not satisfied me that this is such a case. I think the review officer was plainly right in the decision that he made. More important, I do not think that his interpretation of s.102, that includes in its scope an underdetermined claim made by a worker under s.43, is attended by sufficient doubt or even room for argument as to warrant the grant of leave under the rule. The application must, therefore, be refused. 10. There is one other matter that I should refer to before leaving the case. This construction point was argued by the 5 Corporation before the review officer on 18 August and 22 October, 1992, and he made his determination on the matter of construction and therefore jurisdiction on 26 October. He published, presumably the same day, reasons running to some three pages. At the same time he informed the parties that he would hear the application itself, for relief under s.102, on 6 November at 9 a.m. 11. The Corporation, for reasons which have not been explained, and certainly not justified, to me this afternoon, waited until today before making its application in this Court to have the matter of jurisdiction brought up here for argument and, as a necessary concomitant to the grant of leave under rule 98, to prohibit the review officer from hearing the worker's application on the merits under s.102 tomorrow morning. 12. One may suppose that the worker might have been interested in arguing the rule 98 application had he had the opportunity of doing so. Of course, he has had no opportunity, because the summons that was issued today has not been served upon him, and it is plainly impracticable to adjourn the matter with directions to serve and have a hearing before tomorrow morning. 13. I do not think it is right that a hearing before a tribunal, fixed for everyone's convenience well in advance, should be delayed at the last minute in this fashion, with an inevitable disruption of the tribunal's business, without very good reason. That was why, at the outset, I asked Mr Walsh what the consequences would be for his client were the application to be refused on discretionary grounds because 6 of his client's apparently inexcusable delay. In the circumstances there is no need to pursue that matter. It should be clearly understood, however, that generally speaking, applications of this sort should, if possible, be made in time to have an inter partes hearing on the merits of the application, if that should be considered by the Judge to be desirable, in the Supreme Court, before the question of inhibiting proceedings of an inferior court of tribunal becomes critical. 14. The order of the Court, then, is that the application for leave to serve these proceedings under rule 98.04A is refused.