Workers Compensation Nominal Insurer v Republic of Lebanon

[2018] NSWSC 857

Supreme Court

New South Wales

Medium Neutral Citation:

Workers Compensation Nominal Insurer v Republic of Lebanon [2018] NSWSC 857

Hearing dates:

4 June 2018

Date of orders:

04 June 2018

Decision date:

04 June 2018

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1. Pursuant to rr 18.2(b) and (c) of the Uniform Procedure Rules 2005 (NSW) the requirement to serve the notice of motion filed 15 May is dispensed with.

 

2. Pursuant to s 63(3)(a) of the Civil Procedure Act 2005 (NSW) and r 36.6(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) the order of the Court made on 15 September 2017 dismissing these proceedings under r 12.8 is set aside.

 

3. Pursuant to r 16.6 of the Uniform Civil Procedure Rules 2005 (NSW) there will be judgment for the plaintiff against defendant for the sum of $56,043.35 comprising principal debt, interest of $8,130.20 up to today’s date and service fees and solicitors fees at scale.

4. I direct that my reasons for judgment and a copy of the orders taken out from the registry under seal be served on the defendant in accordance with s 28 of the Foreign States Immunities Act 1985 (Cth).

Catchwords:

CIVIL PROCEDURE – dismissal of proceedings – proceedings inactive for over 5 months as per Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 12.8(2) – application to set aside order dismissing proceedings – UCPR, r 36.16(2)(b) – where solicitors for plaintiff unaware of warning from court of impending dismissal – where defendant unresponsive to statement of claim served – prior order dismissing proceedings set aside

 

CIVIL PROCEDURE – service – notice of motion – application to dispense with requirement to serve – where defendant a foreign state, viz the Republic of Lebanon – where prior service of originating process previously effected in accordance with Foreign States Immunities Act 1985 (Cth) – where defendant unresponsive to service – where no appearance for defendant – application granted

  CIVIL PROCEDURE – summary disposal – judgment for plaintiff – claim for indemnification for workers compensation payments – payments made to consulate staff member in Sydney employed by Republic of Lebanon – employer uninsured – where no appearance for defendant

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Foreign States Immunities Act 1985 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:

Kassis v Republic of Lebanon [2014] FCCA 155

Category:

Principal judgment

Parties:

Workers Compensation Nominal Insurer (plaintiff)
The Republic of Lebanon (defendant)

Representation:

Solicitors:
Ms R Marioana (plaintiff)
No appearance (defendant)

File Number(s):

2017/074676

Judgment

1. This is an application by the plaintiff to set aside an order of the Court made on 15 September 2017 dismissing the statement of claim pursuant to r 12.8 of the Uniform Civil Procedure Rules 2005 (“UCPR”) on the ground that the proceedings had been inactive for five months.

2. The statement of claim was filed on 10 March 2017 claiming against the defendant the amount of $45,576.15 plus interest up to judgment. The claim arises out of the employment of a Ms Kassis by the Republic of Lebanon, the defendant, at its Sydney consulate. Ms Kassis claimed in May 2011 to have suffered injury at work and sought to recover work injury compensation in respect thereof from her employer pursuant to Pt 3 of the Workers Compensation Act 1987 (NSW). The employer was uninsured, in contravention of s 155 of the Workers Compensation Act. Ms Kassis therefore claimed against the plaintiff pursuant to s 140 of the Workers Compensation Act.

3. Ms Kassis’ claim was filed with the Workers Compensation Commission in May 2014. The Commission made a determination on 14 May 2014 that compensation be paid by the plaintiff to Ms Kassis and that the defendant, the Republic of Lebanon, reimburse the plaintiff the amounts paid out from the Workers Compensation Insurance Fund. There was paid out to Ms Kassis a total amount including medical expenses of $45,576.15.

4. It is alleged by the plaintiff that on 9 February 2015 it served by mail on the defendant, at its embassy in Canberra, a notice under s 145(1) of the Workers Compensation Act requiring reimbursement of this sum of $45,576.15. The plaintiff alleges that the defendant failed to pay the sum as required in the notice. The notice that was served took the form of a certificate, a copy of which is annexed to an affidavit of Michael Allan Butcher sworn 2 May 2018.

5. The defendant not having paid the amount claimed by the plaintiff under the certificate, the plaintiff commenced these proceedings by a statement of claim filed as referred to earlier. As the defendant is a foreign state, proceedings against it are governed by the Foreign States Immunities Act 1985 (Cth). Section 12 of that Act provides as follows (so far as relevant):

(1) A foreign state, as employer, is not immune in a proceeding insofar as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia;

(2) A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:

(a) a right or obligation conferred or imposed by a law of Australia on a person as employer or employee, or

(b) a payment entitlement which arises under a contract of employment.

…

(6) Subsection (1) does not apply in relation to the employment of

(a) a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a) [being the Vienna Convention on Diplomatic Relations]; or

(b) a consular employee as defined by the Convention referred to in paragraph 5(b) [being the Vienna Convention on Consular Relations]

unless the member or employee was at the time when the contract of employment was made a permanent resident of Australia.

6. The plaintiff contends and has adduced evidence to the effect that Ms Kassis was, at the time when she was engaged by the defendant, a permanent resident of Australia. Accordingly subs (6) of s 12 would have no application. Subsection (1) therefore applies and pursuant to that subsection the defendant in these proceedings is not immune from the plaintiff’s claim.

7. Section 13 of the Foreign States Immunities Act is in these terms:

A foreign state is not immune in a proceeding insofar as the proceeding concerns:

(a) the death of, or personal injury to a person; or

(b) loss of or damage to tangible property;

caused by an act or omission done or omitted to be done in Australia.

8. The present proceeding appears to me also to fall within this section. It “concerns” personal injury to Ms Kassis, albeit not directly by way of claim by her but because it arises from a claim by the Workers Compensation Nominal Insurer to recover pursuant to statute an amount paid out to Ms Kassis by way of work injury compensation.

9. The Foreign States Immunities Act, in addition to providing for immunities from action and exceptions to such immunity, also deals with service upon foreign states of process issued by Australian courts. The manner of service is provided for in s 24. In subs (1) of s 24 it is provided that initiating process to be served on a foreign state is to be delivered to the Attorney-General for the Commonwealth for transmission by him or her to the Department of Foreign Affairs and then by the latter Department to its equivalent counterpart in the foreign state. It is required that the initiating process be accompanied by a certified translation into an official language of the foreign state concerned, if English is not such an official language.

10. From the evidence before me it appears that English is not an official language of the Republic of Lebanon. Accordingly, the plaintiff obtained on 18 April 2017 a translation of its statement of claim into Arabic and on 19 June 2017 delivered that to the Attorney-General for the Commonwealth, together with the statement of claim as filed in this Court on 10 March 2017, for service on the Republic as required by s 24. The evidence before me is that that service was not effected until 5 September 2017 and the plaintiff was notified on 14 September 2017 that service had taken place.

11. Under subs (7) of s 24 the time for entering an appearance to the statement of claim begins to run at the expiration of two months from the date when service of the initiating process is effected. In this case that would be 5 November 2017. Therefore the time within which the defendant should in this case have filed an appearance was twenty-eight days from 5 November 2017, subject to the making of the order dismissing the proceedings to which I am about to refer.

12. Pursuant to r 12.8(2) of the UCPR the Court may make an order dismissing proceedings if it appears from the Court's records that for over five months no party has taken any step therein. Five months from the date when this statement of claim was filed expired on 10 August 2017. On 11 August 2017 the registry sent notice to the plaintiff's solicitors advising that the proceedings had been inactive for the period prescribed in the rule and warning that the statement of claim would be struck out if cause were not shown. The giving of such notice is required by subrule (4) of r 12.8.

13. From evidence filed in the proceedings and read on the application before the Court today it appears that this notification from the registry did not come to the attention of the solicitor who was responsible for the conduct of these proceedings on behalf of the plaintiff due to various personnel of the plaintiff’s solicitors firm being on leave, all at the same time. As the notice from the registry was not responded to, on 15 September 2017 an order was made dismissing the proceedings pursuant to r 12.8.

14. When time had expired for the defendant to file an appearance the plaintiff’s solicitors attempted to enter default judgment. They then discovered that the proceedings had been dismissed. The notice of motion now before the Court was therefore filed on 15 May 2018 seeking an order under s 63(3)(a) of the Civil Procedure Act 2005 (NSW) or r 36.16(2)(b) of the UCPR that the Court’s order of 15 September 2017 dismissing the proceedings be set aside. The notice of motion also seeks an order dispensing with service of the notice of motion upon the defendant and, further, that judgment now be entered in favour of the plaintiff against the defendant for default of appearance.

15. The reason for inactivity in the proceedings for more than five months after the statement of claim was filed has now belatedly been fully explained. The reason why an explanation was not given when first sought by the Court and why no action was taken to prevent the proceedings being dismissed under r 12.8 has also been given, namely the lack of awareness of the notification from the court. There is power in the Court, possibly under s 63(3) but more clearly under r 36.16(2)(b), to set aside the order by which the statement of claim was dismissed. The principal question concerning the exercise of the power is whether there may be detriment to the defendant in doing so and whether notice ought be given to the defendant before determining the application.

16. The evidence shows that the defendant has not made any response to the service of the statement of claim upon it. Before that it made no response to the plaintiff’s service of the certificate and demand under s 145(1) of the Workers Compensation Act. The plaintiff’s solicitors have been informed by the Attorney-General’s office that the statement of claim was served, together with the translation, pursuant to the Foreign States Immunities Act. It is quite clear from the statement of claim what is claimed and on what basis. Contact details for the plaintiff’s solicitors appear plainly on the document. The plaintiff’s solicitors have received no communication.

17. There is no evidence to suggest that the defendant has at any time been aware that the Court made the order under r 12.8 dismissing the proceedings with effect from 15 September 2017. Still less is there any evidence to suggest that the defendant may have acted on an assumption that the proceedings were no longer continuing against it, by reason of such an order. Accordingly, there is no detriment to the defendant if the proceedings are now reinstated by setting aside the order made under r 12.8 so that the statement of claim continues to be in force as if that order had not been made.

18. If the plaintiff should be required to serve its notice of motion before it is heard and determined, then there would likely be again a long delay before that could be achieved. Service of the notice of motion would likely have to follow the same diplomatic channels under s 24 of the Foreign States Immunities Act as the statement of claim. This would serve no purpose in view of the defendant’s lack of response to the demand before action and to the statement of claim itself.

19. So far as the defendant has been aware, as appears from the evidence before the Court, it would have understood that the statement of claim was valid and effective and that it required response if the claim were to be defended. In that understanding the defendant has done nothing about the proceedings. The time limit for the entry of appearance, which would be twenty-eight days from 5 November 2017, has well and truly passed. Accordingly I consider that it is in order to grant the relief that the plaintiff seeks.

20. It has been drawn to my attention that Ms Kassis herself brought proceedings against the defendant in the Federal Circuit Court of Australia for unpaid wages and entitlements and for compensation for discrimination on the grounds of her marital status and for wrongful dismissal. The Republic of Lebanon did not appear, although the originating process had been served in accordance with the Foreign States Immunities Act. Ms Kassis’ claims were upheld: Kassis v Republic of Lebanon [2014] FCCA 155. It is a matter of concern, within the responsibility of the Commonwealth Department of Foreign Affairs and Trade, that the Republic of Lebanon appears to disregard proceedings in courts of appropriate jurisdiction concerning liabilities of the Republic liabilities arising from it having employed in this State an Australian citizen.

21. The orders of the Court are:

1. Pursuant to rr 18.2(b) and (c) of the Uniform Procedure Rules 2005 (NSW) the requirement to serve the notice of motion filed 15 May is dispensed with.

2. Pursuant to s 63(3)(a) of the Civil Procedure Act 2005 (NSW) and r 36.6(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) the order of the court made on 15 September 2017 dismissing these proceedings under r 12.8 is set aside.

3. Pursuant to r 16.6 of the Uniform Civil Procedure Rules 2005 (NSW) there will be judgment for the plaintiff against defendant for the sum of $56,043.35 comprising principal debt, interest of $8,130.20 up to today's date and service fees and solicitors fees at scale.

4. I direct that my reasons for judgment and a copy of the orders taken out from the registry under seal be served on the defendant in accordance with s 28 of the Foreign States Immunities Act 1985 (Cth).

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Decision last updated: 07 June 2018