Williams v Mullins Wheels Pty Ltd
[2003] VSC 205
•3 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4837 of 2003
| Williams | Plaintiff |
| V | |
| Mullins Wheels Pty Ltd Accident Compensation Conciliation Service | Defendants |
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JUDGE: | Morris J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2003 | |
DATE OF JUDGMENT: | 3 June 2003 | |
CASE MAY BE CITED AS: | Williams v Mullins Wheels Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 205 | |
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Workers’ compensation – termination of payments – application to lodge referral of dispute to conciliation out of time refused by senior conciliation officer of Accident Compensation Conciliation Service - Accident Compensation Act 1985 (Vic) ss49, 53-55 – whether senior conciliation officer erred as a matter of law in the exercise of discretion pursuant to s55(3) of the Act – whether second defendant’s non-participation in the proceedings accorded with the principles enunciated in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Harrison | Rogers & Gaylard |
| For the Defendant | Mr M. Fleming | Wisewoulds |
HIS HONOUR:
The matter before the court is an application by Mr Raymond Williams against his former employer, Mullins Wheels Pty Ltd (“Mullins Wheels”), and Accident Compensation Conciliation Service (“the ACCS”), a body corporate established pursuant to the Accident Compensation Act 1985 (“the Act”). The plaintiff seeks orders that a decision of Mr Tony McMahon, senior conciliation officer of the ACCS, to refuse to allow the plaintiff's application to lodge his referral for conciliation of a dispute with Mullins Wheels to be considered out of time be quashed; and, further, that there be an order that Mr McMahon be directed to reconsider the plaintiff's application dated 13 December 2002 according to law.
The facts of this case can be briefly stated. On about 30 September 1993 the plaintiff was struck by a swinging gate on a heavy truck and, as a result, claims to have suffered a severe back injury. The plaintiff received weekly payments pursuant to the Accident Compensation Act between December 1993 and December 1995.
On 28 December 1995 the insurer, acting for Mullins Wheels, gave a formal notice to the plaintiff pursuant to section 114 of the Act advising that weekly payments of compensation would be terminated on 8 January 1996. That notice explained to the plaintiff his rights in the event that he disagreed with the decision to terminate weekly payments. Those rights included referring the matter to conciliation and, if conciliation was unsuccessful, then referring the matter to a court.
For some reason the plaintiff did not dispute the decision to terminate weekly payments. There is a suggestion that certain legal advice was given, or not given as the case may be, that influenced the plaintiff's course. In any event, weekly payments did cease and there have been no weekly payments since.
In 2002 further legal advice was given to the effect that the plaintiff may be entitled to weekly payments from the date when they were terminated for a period into the future. As a result the plaintiff took two steps. First, he took steps to seek to review the decision to terminate weekly payments as from January 1996; and second, a fresh application was made for weekly payments on a prospective basis. That fresh application has been referred to conciliation and has not been resolved; and may now be the subject of proceedings in the County Court or the Magistrates' Court. If that fresh application succeeds it would not allow the plaintiff to recover any weekly payments for the period from approximately January 1996 and early 2003.
In order to recover weekly payments for that period, the plaintiff needs to obtain an order from the County Court that the termination of the payments in 1996 was not justified, having regard to the provisions of the Act. Whether or not that can be done depends on whether the dispute was referred to conciliation; thus the current application for an order of this Court is made in that context.
It may be convenient if I briefly refer to some provisions of the Act. Section 82(1) of the Act provides that if there is caused to a worker an injury arising out of employment and if the worker's employment was a significant contributing factor, the worker shall be entitled to compensation in accordance with the Act. Part of that compensation comes in the form of weekly payments. Section 93 establishes a basic entitlement for compensation in the form of weekly payments. This entitlement is greater during the first 26 weeks of incapacity, after which payments become subject to further considerations.
Section 93B(3) provides that a worker's entitlement to weekly payments ceases after the expiry of the entitlement period, which is an aggregate period of 104 weeks, unless the worker (a) has a serious injury, or (b) is totally and permanently incapacitated. A serious injury is essentially defined as an injury where the worker's degree of impairment would be 30 per cent or more. Thus it would be open for the plaintiff to challenge the decision of the former employer to terminate weekly payments on the basis that his injury is a serious injury within the meaning of the Act; or alternatively, that he is and was at all relevant times totally and permanently incapacitated.
Generally speaking, proceedings which challenge a decision to terminate weekly payments are brought before the County Court of Victoria, by reason of section 39 of the Act. When such proceedings are brought, it will always be necessary to have regard to section 49, which relevantly provides that proceedings of the type in issue in this case must not be commenced: first, unless the dispute between the parties has been referred to conciliation; and second, until the conciliation officer has issued a certificate in relation to that conciliation.
The conciliation referred to in section 49 is the conciliation outlined in sections 53-55 of the Act. Section 55 provides that: "Any party to a dispute may refer the dispute for conciliation by a conciliation officer." "Dispute" is relevantly defined to mean a dispute in connection with a claim for compensation between the person who makes or has made the claim and an employer, the authority or a self-insurer. There is no question in this case that there was a dispute.
Section 55(2) provides that: "A referral for conciliation of a dispute must be lodged with the senior conciliation officer by sending or delivering notice in the form approved by the authority within 60 days after notice of the decision was given to or served on the worker or the claimant."
In the context of the present case, the 60 days would have commenced to have run on 28 December 1995 and to have expired some time towards the end of February 1996. No referral for conciliation was made in that time; indeed the first reference to conciliation was made on 19 July 2002.
If the legislation left the matter there, it is clear, in my opinion, that the plaintiff could not bring proceedings in relation to the termination of weekly payments, by reason of the operation of section 49(1) of the Act. However, there is provision in section 55(3) of the Act as follows: "The senior conciliation officer may, on application, allow (a) an extension of time for lodging an application; or (b) an application to be lodged out of time if he or she considers it appropriate in the circumstances of the particular case."
It seems to me that the words in paragraph (a) are designed to deal with circumstances where an application is made before the time period has expired, whereas paragraph (b) is intended to deal with circumstances where the application is made after the time period has expired. Nothing turns on this in the present case.
On 19 July 2002 the plaintiff asked the senior conciliation officer to allow an application to refer the dispute to conciliation to be lodged out of time. The application consisted of a letter together with a document headed "Request for Conciliation". The letter indicated that the plaintiff had previously instructed particular firms of solicitors and had not received appropriate advice regarding the letter of termination. The letter further stated that the plaintiff had only recently instructed his present solicitors and received advice as to his ability to challenge the termination of weekly payments.
On 26 July 2002, Mr Tony McMahon, senior conciliation officer with the second defendant, stated that he did not consider it appropriate to lodge the application outside the 60 day time frame provided by the Act.
On 6 September 2002 the plaintiff issued a writ in the County Court against Mullins Wheels seeking to challenge the decision to terminate weekly payments, both on the ground that the plaintiff had suffered a serious injury and also on the ground that he was suffering a total and permanent incapacity.
On 4 November 2002 Mullins Wheels lodged a defence which included the pleading that the County Court did not have jurisdiction to hear and determine the proceeding on the ground that the plaintiff had failed to comply with the provisions of section 49 of the Act.
Although the plaintiff pleaded in a reply to the defence that this obligation did not arise in this particular case, he obviously was sufficiently concerned by the pleading in the defence to make a fresh application for conciliation to be lodged out of time. The fresh application was dated 13 December 2002. This application was also accompanied by a request for conciliation in substantially similar terms to the earlier one, but also raising the question of the previous refusal of the senior conciliation officer to exercise his discretion to grant an extension of time.
More significantly, the letter supporting the application for the matter to be considered out of time referred to the County Court proceedings and the allegation by the defendant in those proceedings in relation to section 49. The letter stated that the effect of this pleading, if upheld, would be that the claim would be barred. The second application was also supported by considerable medical evidence, the general purport of which is that the plaintiff may well be regarded as having been totally and permanently incapacitated at all relevant times since December 1995.
On 2 January 2003 the senior conciliation officer refused the second application by letter. In giving reasons for his refusal, the senior conciliation officer stated: "I am not sure when the worker requested the employer/WorkCover agent to reinstate weekly payments. If such request was made, it was presumably rejected and it may be that a decision to reject reinstatement of weekly payments should come to the Conciliation Service prior to proceedings being issued in the County Court for reinstatement. However, it would not appear to be necessary in any such County Court proceedings that the decision terminating weekly payments also must firstly have come to conciliation. In the absence of any such necessity, the late lodgement of a request for conciliation in relation to the decision terminating weekly payments would not appear to be relevant to the current County Court proceedings in relation to an application for reinstatement of weekly payments." I must say that these reasons are somewhat Delphic.
In an attempt to explain the reasoning, the court was provided with an affidavit of Anthony James McMahon sworn 2 June 2003 in which he sought to clarify these matters. In that affidavit Mr McMahon said a reference to "any such County Court proceedings" was a reference by him to the County Court proceedings referred to in the previous paragraph of the letter. He also said that at the time he wrote his letter he was unaware of the existence of the County Court proceedings I have referred to earlier in these reasons. I do find this a little odd because in the letter dated 13 December 2002 from the plaintiff's solicitors to Mr McMahon, there is specific reference to particular County Court proceedings and a particular contention of the defendant in those proceedings concerning section 49.
In any event, the issue before me in this case is whether or not the senior conciliation officer erred as a matter of law in the exercise of his discretion pursuant to section 55(3) of the Act.
It was said by the plaintiff that the officer did err because he exercised the discretion on the basis that a refusal to allow the application to be lodged out of time would have no consequence in relation to the County Court proceedings. The plaintiff submitted that, in fact, there would be a significant consequence, or at least there was likely to be a significant consequence, by reason of section 49 of the Act.
The first defendant, not surprisingly, concurred with the plaintiff's argument in relation to section 49; indeed the first defendant stood its ground in relation to section 49, stating that the effect of that section would be to preclude any claim being brought in the County Court unless the conciliation process had first occurred.
The first defendant in this proceeding did, however, raise a separate point, albeit somewhat faintly, namely that the second application for an extension of time might be regarded as a repetition of the first application and the effective application should be the one made in July 2002, with the result that that application before this Court should be regarded as out of time, having regard to the provisions of Order 56 of the Rules of this Court. I can dispose of that matter quickly.
In my opinion there is no obstacle to a person making more than one approach to the senior conciliation officer to have an application for referral for conciliation lodged out of time. Certainly as a matter of discretion, I would expect that any subsequent application should be refused unless there was some change in circumstances or additional information provided in support of the application. Obviously repeated applications which are identical ought be discouraged and, in the usual course, a subsequent application that is merely an abuse of the process would be pre-emptorily dismissed.
However, the second application in this case is not of that category; it was accompanied by considerable additional information and critically, by information about the County Court proceedings in which the defendant had taken a defence based upon section 49. So, in my judgment, it was incumbent upon the senior conciliation officer to consider the application for lodgement out of time which was made on 13 December 2002.
The power given to the senior conciliation officer in section 55(3) is open-ended. There is nothing in the legislation that specifies the criteria which must be taken into account, nor is there anything in the legislation that would seem to limit or otherwise
provide for the manner in which the power is to be exercised.
In this situation the courts have established that the extent of the discretion is essentially unlimited, save as to the limits that ought be imposed by reference to the purpose of the power in the context of the whole Act. The leading case in this respect is the decision of the High Court in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, where, at pages 757 and 758, Dixon J explained in words that have now become famous that, in circumstances like this, the scope of the power, although unlimited, is defined by the scope and object of the instrument conferring the power.
The effect of section 49 of the Act is plain, namely that if proceedings of the type described are not first referred to and subject of conciliation, then they cannot be commenced in the County Court or the Magistrates' Court. The legislative intent is clear; it is to discourage resort to litigation and to promote conciliation. It does this by mandating that conciliation be a necessary step before one can even commence litigation.
Section 55(2), which requires a referral for conciliation to be made within 60 days after the notice of decision, is clearly designed to promote the speedy resolution of disputes and to avoid circumstances arising where there is argument about a matter long after the event. Notwithstanding this, the effect of the 60 day period in section 55(2) could sometimes be draconian and unfair to an injured worker. Limitations periods are not normally so short.
Section 55(3) is designed to deal with these matters and to provide, in effect, a safety net to deal with cases where for one reason or another a referral to conciliation within the 60 day period is not practical or reasonable or appropriate or fair. Although the discretion in section 55(3) is not circumscribed by specific considerations, it is to be interpreted having regard to the scope and object of the Act, which is to ensure that there is appropriate compensation for injured workers and to ensure that there is a fair process.
In the context of the present case, the reasons that have been given by the senior conciliation officer in refusing to extend time are not persuasive. But the mere fact that they are not persuasive does not mean that there has been an error of law. However, they go beyond being reasons that are not persuasive and demonstrate that the senior conciliation officer has had an incorrect understanding of the law when he made his decision. In particular, the reasons demonstrate a misunderstanding of the impact of refusing to allow the application to be lodged out of time.
The impact of the refusal is to close the door, once and for all, on any possibility of the plaintiff obtaining weekly payments for the period January 1996 to early 2003. The explanation given by the senior conciliation officer in his affidavit fails to address the gravamen of the complaint, which is that the decision not to allow the application to be lodged out of time was made in the belief that it effectively did not impact upon the worker's rights, when in truth it had a substantial impact on the worker's rights.
Put another way, the obligation to exercise the discretion in section 55(3) includes an obligation to exercise that discretion having regard to relevant considerations. In the context of this particular application, a relevant consideration was that the refusal of allowing the application to be lodged out of time meant that the plaintiff would lose his rights to obtain weekly payments for the period January 1996 to early 2003. The failure to have regard to that consideration has resulted in the exercise of that power being flawed so I propose to make the orders sought in the originating motion.
Before I turn to the orders, I would just like to say one other thing. On 18 March 2003 the Victorian Government Solicitor, acting on behalf of the second defendant, informed the court that it did not intend to take an active role in the proceedings, but would merely abide by the decision of the Court. The solicitors say that such an approach accords with the principles enunciated by the High Court in R v.Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35 where the High Court said that the usual course for a tribunal is to submit to such order as the court may make, save any award as to costs. The second defendant did not appear before me, even though it had the right to do so.
In Hardiman's case, the High Court noted at the end of its judgment that in cases of the kind then under consideration, the usual course was for the tribunal to submit to the orders that the court may make rather than become a protagonist in the court. That decision has often been understood as applying to all administrative decisions by all administrative decision makers. In my opinion this extends the principle outlined by the High Court beyond the circumstances which the court envisaged.
The concerns raised by the High Court appear to have been interpreted in later cases as two-fold. First, it may be inappropriate for a tribunal to “enter the arena of contest occupied by the parties” where the appeal is inter parties and the plaintiff’s case is actively contested by the first respondent[1]. In this case, the preferred course is for the tribunal to submit to the outcome of the inter parties dispute. Second, it may be inappropriate for a tribunal to actively defend its position and contest the plaintiff’s application due to the risk of endangering the impartiality of the tribunal in subsequent proceedings held before it.
[1]Custom Credit Corporation Ltd v. Lupi [1992] 1 VR 99 at 127, per McDonald J; cf. McDonald v. Guardianship and Administration Board and Another [1993] 1 VR 521.
On the other hand, circumstances may arise where the court would benefit from the appearance and participation of the tribunal in question[2]. The first instance arises in the unusual circumstance whereby no party is in a position to contest the argument submitted before the Court. This was the case in the current matter, where there was no reason for the first respondent to oppose the applicant’s submissions. The second instance where an appearance by the tribunal would be of assistance is in aiding the court’s understanding of the Act or Acts in issue. Submissions from the tribunal on the structure and operation of the Accident Compensation Act 1985 would have been of assistance to the Court in the current matter, given the tribunal’s intimacy with the processes and procedures established under the Act.
[2]eg. Re New Broadcasting Ltd and Australian Broadcasting Tribunal (1987) 6 AAR 386.
It must be remembered that in Hardiman's case the tribunal was a quasi-judicial tribunal, which heard submissions and evidence in much the same way as a court or an administrative tribunal such as the Victorian Civil and Administrative Tribunal. That circumstance is quite different from decisions of bodies that are effectively administrative decision-makers.
By these comments I am not saying that the senior conciliation officer should have necessarily participated in these proceedings, but in my opinion the ACCS had every right to come before the court to explain its decision and to defend it[3]. In the circumstances of this case that would have been quite helpful, because the first defendant had no real interest in defending a decision which would have been in conflict with the position it had adopted in relation to section 49 of the Act.
[3]As was done by the Teachers Tribunal and endorsed by the Court in Charlton v Members of the Teachers Tribunal [1981] VR 831 at 855. A similar approach was set out by Brennan J in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681.
So I make the following orders:
1. The decision of Tony McMahon, senior conciliation officer of the Accident Compensation Conciliation Service established under the Accident Compensation Act 1985, by letter dated 2 January 2003 to refuse to allow the plaintiff's application to lodge his referral for conciliation of his dispute with Mullins Wheels Pty Ltd out of time under section 55(3) of the Act is quashed.
2. The said Mr McMahon is directed to reconsider the plaintiff's application dated 13 December 2002 to lodge his request for conciliation of his dispute with Mullins Wheels Pty Ltd out of time under section 55(3) of the Act according to law.
3. That the plaintiff's costs of this application be paid by the second defendant.
I provide reasons for the third order. The plaintiff has succeeded in the case and in the ordinary course of events would be entitled to his costs. The plaintiff has identified an error of law, has brought proceedings to seek orders of the Court in relation to such an error and has succeeded.
The first defendant, who would normally be the person to whom one would look for costs, says, with good cause, that it was not its error. More significant though, it says that it adopted a position early in the proceedings acknowledging that the senior conciliation officer did make an error of law and in this regard I refer to the letter dated 28 April 2003. The first defendant says - and I believe with justification - that it would be unfair for it to have to pay costs, given its stance and the early point in time when it took that stance.
It is true that the second defendant is not before the court, and has given an explanation as to why it is not before the court, but, having regard to my reasons it has had the opportunity of appearing before the court and it is the opportunity to appear that is critical rather than actual participation.
In the circumstances, it is just that the second defendant pay the plaintiff's costs. The second defendant could have acknowledged its error at an earlier stage and avoided the costs that had been incurred in these proceedings, but it did not.
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