Workers' Compensation and Rehabilitation Commission v Wieslaw Winarczyk t/as the Fishy Affair Restaurant - [2006] WADC 71

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WORKERS' COMPENSATION AND REHABILITATION COMMISSION -v- WIESLAW WINARCZYK t/as THE FISHY AFFAIR RESTAURANT [2006] WADC 71

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 23 MARCH 2006

DELIVERED : 10 MAY 2006

FILE NO/S: CIV 880 of 2003

BETWEEN: WORKERS' COMPENSATION AND REHABILITATION COMMISSION
Plaintiff
AND
WIESLAW WINARCZYK t/as THE FISHY AFFAIR RESTAURANT
Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for leave to apply for summary judgment and for summary judgment - Workers' compensation - Section 174 of the Workers' Compensation and Rehabilitation Act 1981

Legislation:

The Workers' Compensation and Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr B P King
Defendant: Mr T M Clavey

Solicitors:

Plaintiff: State Solicitor for Western Australia
Defendant: Clavey Legal

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Blair and Curran (1939) 62 CLR 464
Dey v Victoria Railways Commissioner (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No.6414; 25 August 1986
Management, unreported, SCt of WA; Library No.950415; 9 August 1995
Reichel v Magrath (1889) 14 App Case 665
Webster v Lampard (1993) 177 CLR 598

DEPUTY REGISTRAR HARMAN: The defendant's application is for leave to apply for summary judgment and for summary judgment to be entered against the plaintiff. At the hearing there was no issue between the parties on the question of leave. On the substantive application it is for the defendant to persuade the court that the judgment sought be entered. The success of the defendant would depend upon whether he establishes that there is no real question to be tried on the case brought in the action by the plaintiff and the court considers that it is appropriate to exercise discretion in his favour.
In the writ the defendant was identified as Wieslaw Winiarczyk. It has been amended to describe him as Wieslaw Winiarczyk trading as The Fishy Affair Restaurant.
The plaintiff's claim was endorsed on the writ as follows:
"The plaintiff's claim is for the sum of $83,890.14 which the Plaintiff paid pursuant to Section 174 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") to Meho Bikic ("the worker") from the General Fund pursuant to an Award of the Conciliation and Review Directorate Workcover Western Australia made on 8 December 1998 and 15 February 1999, being compensation due by the Defendant to the worker in respect of a disability suffered by the worker while in the employment of the Defendant which the Defendant, not being insured against its liability to pay compensation to the worker or alternatively the Defendant's insurer declined to indemnify the Defendant against the worker's claim for compensation, failed to pay within 30 days of obtaining the Award by the worker's representative."
The plaintiff has pleaded a single case that conforms to the features of that endorsement. A significant feature of the pleading is the allegation expressed at par 5 which was founded upon an amended order of the Review Officer. That amended order was subsequently set aside. It is appropriate to consider that it is now unfounded.
Section 174(1) provides as follows:
"Where –
(a)compensation in accordance with this Act is due by an employer to a worker (other than a worker in respect of whom refusal of insurance is permitted pursuant to this Act);
(b)the employer is not insured against his liability to pay compensation to the worker under this Act or the case is one to which s 173(2) applies or the employer's insurer declines to indemnify the employer against the worker's claim for compensation; and
(c)the employer does not pay the compensation due within 30 days of the obtaining of an award by the worker or his representative,
the Commission shall pay to the worker from moneys standing to the credit of the General Fund the amount required to satisfy the award and any award for costs in respect thereof, and the Commission may sue and recover that amount from the employer and, until it so recovers that amount, may exercise any rights of the employer under this Act in relation to the payment of that award."
It is common ground that the Award to which the endorsement refers is the order of Mr P Brash dated 24 March 1999 made in Application 1248/98 commenced by the worker. That application was heard on the dates expressed in the endorsement. It is also common ground that in the application, The Fishy Affair Restaurant had been designated as the respondent and that the order to pay statutory entitlements to the worker was made against the respondent.
In his reasons for the decision expressed in the order, the Review Officer stated the task that confronted the applicant worker had been to establish that his disability and subsequent incapacity arose as a consequence of his employment with the respondent. He immediately stated that there could be no dispute that the applicant had commenced employment with the respondent on 13 November 1997 to undertake the work of a kitchen hand. By that point he had canvassed the relevant evidence as follows:
At p 3, where he portrays the applicant's case as he having met a Mr Randjelovic by whom he had been introduced to:
"…the owner of The Fishy Affair Restaurant Mr Winiarczyk and the offer of work as a kitchen hand was made."
Consistent with what I have already recorded at that point the Review Officer immediately recorded:
"It seems it is not in dispute the applicant commenced in this capacity on 13 November 1997."
At p 12, where he portrays the evidence of Randjelovic as being on behalf of the respondent, that the applicant:
"…has worked at The Fishy Affair Restaurant as a kitchen hand for two years. He met the applicant and introduced him to Mr Winiarczyk the owner of the restaurant with the hope that he could offer him some work. This eventuated with the applicant commencing work in November 1997."
And at p 13:
"The final witness called on behalf of the respondent was Mr Winiarczyk, the owner of The Fishy Affair Restaurant. He confirmed the evidence of Mr Randjelovic as to how the applicant came to be employed."
The case pleaded by the plaintiff is founded upon the terms of the Review Officer's order. In that case the plaintiff portrays the defendant as having been the worker's employer. The applicant's case is that he is not the respondent identified by the order and that in determining the plaintiff's claim this Court could not come to any different conclusion as to the identity of the worker's employer different to that expressed by the Review Officer. It is common ground that The Fishy Affair Restaurant is neither an entity recognised at law or a registered business name.
It is appropriate to consider that an order made by a Review Officer would speak as it was intended to do. In the case of a worker who had established an entitlement to benefits under the Act, it would identify the party against whom that entitlement had been established. The context in which such an order would be made is not one in which there would be any joinder on the issue on the identity of the worker's employer. I have canvassed the Review Officer's portrayal of the relevant evidence. There is nothing that emerges from what the Review Officer describes as the respondent's case that reveals that there had been any contest as to the identity of the worker's employer. I would suggest that as much as it is evident that the extent of any deliberation by the Review Officer on the issue of identity had been at the level of a finding made in default of an issue having been raised for determination, the process of recording that finding could not be placed any higher. A useful tool in discerning the intention of the Review Officer in recording his determination in the terms that he did is to consider his likely response to the proposition before me had it been put in a context where the worker had sought to enforce the order. I would suggest that but for what I am informed was the worker's nomination of the respondent in the application, the identification of the worker's employer as the defendant in this action would have been consistent with what appears to have been the uncontradicted case of the worker. In essence, there is a real prospect that the order was so expressed either because the Review Officer gave no consideration to the issue of the identity of the respondent or if he did, that he considered that the nominated respondent sufficiently identified the defendant. It would appear to me that the course followed by the plaintiff in observing its statutory responsibilities by making payment to the worker and seeking recovery from the defendant is consistent with the positions that I have just outlined.
Although, it could not be said of the Act as a whole that it was the intention of the Legislature to benefit workers and should be interpreted accordingly, there can be no doubt that s 174 is appropriately so characterised. It would seem to me that even had the plaintiff had reservations as to the worker's entitlement under the order, once the conditions expressed in that provision had been satisfied it had an obligation to pay. In seeking to recover the amount paid there is no reason to consider that the Legislature would have contemplated that the plaintiff be disadvantaged. For the court to foreclose upon the prospect of recovery in other than a clear case would confer disadvantage.
If what I have canvassed to this point is considered to be wide off the mark then it would be a matter of considering whether the privity that characterises the estoppel upon which the defendant would rely would emerge in the context of the plaintiff having observed its statutory obligation.
The relief sought by the defendant being ultimately discretionary it would be a fair assessment that what I consider to be more fundamental considerations than the narrow point raised by the defendant should determine the application against him. I accept that the plaintiff may choose to proceed to trial on the same case that it now presents and that it may be that the court would then adopt a different view of what was before me. Be that as it may, I appreciate that if the defendant is to succeed it is appropriate that he does so in the context of trial. The only considerations that would speak against that conclusion would be cost, time, limited judicial resources and case management. I mention them only to record that they have come to mind. Neither alone nor in combination could they justify and different result.