Yazbeck v Clarence House Corporation Pty Ltd
[2023] NSWPIC 450
•5 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Yazbeck v Clarence House Corporation Pty Ltd [2023] NSWPIC 450 |
| APPLICANT: | Hiam Yazbeck |
| RESPONDENT: | Clarence House Corporation Pty Ltd |
| MEMBER: | Rachel Homan |
| DATE OF DECISION: | 5 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly compensation at a higher rate; unexplained failure of applicant to appear at conciliation conference and arbitration hearing; matter not ready to proceed; Held – proceedings dismissed for want of due despatch pursuant to rule 77(a) of the Personal Injury Commission Rules 2021 and section 54(c) of the Personal Injury Commission Act 2020. |
| DETERMINATIONS MADE: | The Commission determines: 1. The proceedings are dismissed for want of due despatch pursuant to s 54(c) of the Personal Injury Commission Act 2020 and r 77(a) of the Personal Injury Commission Rules 2021. |
STATEMENT OF REASONS
BACKGROUND
Ms Hiam Yazebck (the applicant) sustained a psychological injury arising out of or in the course of her employment with Clarence House Corporation Pty Ltd (the respondent).
Liability to pay weekly compensation and treatment expenses for the injury was accepted by the respondent’s insurer and payments commenced.
On 24 April 2023, the applicant’s solicitors wrote to the insurer seeking review of the rate at which weekly compensation was being paid. The review was completed and, on 8 May 2023, the applicant was notified that the pre-injury average weekly earnings (PIAWE) rate which had been calculated previously was maintained.
The applicant commenced the present proceedings by lodgement of an Application to Resolve a Dispute on 4 July 2023. The applicant sought weekly compensation from
24 January 2021 to date and continuing at the statutory maximum rate.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
During a preliminary conference via Microsoft Teams on 7 August 2023, at which the applicant appeared, the matter was listed for conciliation conference and arbitration hearing via Microsoft Teams at 10am on 4 September 2023.
At 10am on 4 September 2023, when the proceedings commenced, Mr Stephen Hickey of counsel, instructed by Mr Liam Crisanti appeared on behalf of the applicant. Ms Kavita Balendra of counsel, instructed by Ms Emily Gorry appeared on behalf of the respondent. A representative from the insurer, Ms Liu, was also present.
The applicant was not present.
In response to an enquiry from the Personal Injury Commission (Commission), Mr Crisanti indicated that he had expected the applicant to join the conference separately on her own device. Mr Crisanti stated that he had not been able to make contact with the applicant earlier in the morning and last had contact with her several days ago. Mr Crisanti was asked to attempt to contact the applicant on her telephone again, which he did. Mr Crisanti advised that there was still no answer.
The proceedings were adjourned for 10 minutes to allow the applicant additional time to connect to the conference or make contact with Mr Crisanti. At 10:10am when the proceedings resumed, Mr Crisanti advised that he had attempted again to call the applicant without success.
At that point, there was a preliminary discussion in which the issues in the proceedings were confirmed. Both Ms Balendra and Mr Hickey expressed reservations about the matter being able to proceed to conciliation or arbitration in the applicant’s absence. Although Mr Hickey said he had previously had contact with the applicant ahead of the proceedings, he lacked sufficient instructions to proceed with conciliation in her absence.
The proceedings were adjourned again to 10.30am and the parties advised that, if the applicant had not appeared or made contact by that time, the Commission would consider whether the proceedings should be dismissed.
When the proceedings resumed at 10.30am, the applicant had still not appeared or made contact. Mr Crisanti advised that he had attempted to contact the applicant again but without success. No explanation had been provided by the applicant for her failure to appear.
Mr Hickey and Ms Balendra were invited to make submissions on the Commission’s proposal to dismiss the proceedings due to a failure by the applicant to prosecute the proceedings with due despatch. Neither counsel opposed that course although it was noted by Mr Hickey that it could not be said that the proceedings had been abandoned. It was simply unknown why the applicant had failed to appear.
After hearing the submissions, I determined that the matter was not ready to proceed to conciliation conference and arbitration hearing. The proceedings were dismissed for want of due despatch pursuant to s 54(c) of the Personal Injury Commission Act 2020 and r 77(a)of the Personal Injury Commission Rules 2021.
FINDINGS AND REASONS
Section 54 of the Personal Injury Act 2020 deals with the dismissal of proceedings. It provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
Rule 77 of Personal Injury Commission Rules 2021 provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation
legislation—the applicant has failed to prosecute the proceedings with due
despatch…”
Rule 9 of the 2021 Rules deals with procedural orders that can be made by members of the Commission. It provides:
“9 Procedural orders by non-presidential members and merit reviewers
A non-presidential member or merit reviewer to whom applicable proceedings are
referred may make any order relating to the procedure to be followed in the
proceedings, including an order striking out the proceedings or any step in the proceedings, that could be made by the President.”
It is the guiding principle of the Commission to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Section 42 of the Personal Injury Commission Act 2020 obliges the Commission to give effect to this principle in exercising its powers.
I am satisfied in this case that the applicant was made aware of the proceedings on
4 September 2023 both at the preliminary conference on 7 August 2023 and in the course of communications with her solicitor and counsel in the days leading up to the conciliation conference and arbitration hearing.The applicant had previously used Microsoft Teams to connect to the preliminary conference.
Despite multiple attempts by her solicitor on the morning of the conciliation conference and arbitration hearing, and for half an hour after the commencement time, the applicant could not be contacted. No communication was received by the Commission or the applicant’s solicitor to explain her failure to appear.
The parties agreed that the matter could not proceed in the applicant’s absence.
In all the circumstances, I am satisfied that these proceedings should be dismissed for want of due despatch.
Despite this determination, there will be nothing to prevent the applicant from lodging a further application in the Commission, should she still wish to have the dispute determined.[1]
[1] Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSWWCCPD 83.
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