Young, Grant v Pickands Mather & Co International (t/a Savage River Mines) & HIH Winterthur Pty Ltd

[1998] TASSC 108

108/1998

PARTIES:  YOUNG, Grant
  v
  PICKANDS MATHER & CO INTERNATIONAL

(t/a SAVAGE RIVER MINES)
HIH WINTERTHUR PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 13/1998
DELIVERED:  16 September 1998
HEARING DATE/S:  1 September 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners etc - Tasmania - Meaning of "a claim for compensation" - Order sought for production of a copy of an occupational therapist's report - Not arising out of or incidental to a claim for compensation.

Workers Rehabilitation and Compensation Act 1988 (Tas), s3(1).

Aust Dig Workers Compensation [143]

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Jurisdiction and powers of Tribunals, Boards, Commissioners etc - Tasmania - No inherent jurisdiction to enforce solicitor's undertakings.

Workers Rehabilitation and Compensation Act 1988 (Tas).

In re a Solicitor [1966] 1 WLR 1604, referred to.

Aust Dig Workers Compensation [143]

REPRESENTATION:

Counsel:
           Appellant:  C J Bartlett
           Respondents:  J L Dewar
Solicitors:
           Appellant:  Bartletts
           Respondents:  Lander & Rogers

Court Computer Code:  
Judgment ID Number:  108/1998
Number of pages:  3

Serial No 108/1998
File No LCA 13/1998

GRANT YOUNG v PICKANDS MATHER & CO INTERNATIONAL (t/as SAVAGE RIVER MINES) and HIH WINTERTHUR PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD J

16 September 1998

This is an appeal from an order of the Workers Rehabilitation and Compensation Tribunal dismissing the appellant's claim for costs.

On 30 January 1998, the appellant made the following application to the Tribunal (formal parts omitted):

"I GRANT YOUNG of 6 Wiena Crescent, Devonport in Tasmania, being the worker refer to the Tribunal for determination of the following:-

1    that the employer and its licensed insurer produce to the worker and his solicitors, within 7 days, the report from Taryn Dinnien of IRS Rehabilitation obtained by them in or about August 1997 pursuant to the Act as part of the worker's rehabilitation/return to work plan;

2    that the employer/insurer pay the costs of and incidental to this Application;

3    this Application is made pursuant to Section 42 of the Act.

…
Dated    30th    day    January     1998"

The application was heard on 20 May 1998.  By that time, the respondents, or rather, their solicitors, had produced the sought after report to the appellant's solicitors.  However, the appellant pursued the application insofar as it sought an order for costs.  The learned Commissioner dismissed it upon the basis that the Tribunal had no jurisdiction to make the order sought and he was quite right to do so.

It appears that the appellant suffered an injury arising out of and in the course of his employment with the first respondent.  The material from the Tribunal does not disclose when this happened, but it was quite some time ago.  From the submissions put to the learned Commissioner, it seems that at some stage the appellant commenced proceedings in the Tribunal "to have those [weekly] payments put in order and properly paid."  The exact nature of those proceedings does not appear but, at all events, it is clear that at the time the present dispute arose, weekly payments were being made.  Indeed, according to counsel for the respondents in the Tribunal, the appellant's entitlement to weekly payments was then almost exhausted.  Proceedings were commenced in this Court on, I think, 29 August 1997 to recover damages at common law.  There is considerable uncertainty surrounding the facts because apart from a few letters, no evidence was taken in the Tribunal.  For relevant material the Tribunal relied upon statements made by counsel in the course of making submissions.  See the Workers Rehabilitation and Compensation Act 1988, s49(1).

On 17 July 1997, before the commencement of proceedings in this Court, the respondents' solicitors wrote to the appellant's solicitors asking if the appellant would present himself to an occupational therapist, Taryn Dinnien, for a "functional assessment".  The appellant's solicitors responded with a letter asking for the qualifications of Taryn Dinnien and whether she was an accredited medical practitioner.  The solicitors for the respondents replied that a functional assessment by an occupational therapist had been recommended by the respondents' accredited medical practitioner adviser.  By the same letter, the solicitors for the respondents provided the name and address of another occupational therapist whom they wanted the appellant to see in place of Taryn Dinnien.  The next day, the appellant's solicitors wrote to the respondents' solicitors as follows (formal parts omitted):

"If our clients attends the appointment, will you provide us with a copy of the Occupational Therapist's report and if not, why not?

Once we hear from you we will take the matter up with our client."

The written war of attrition continued unabated.  Two days later, the solicitors for the respondents advised, by letter (formal parts again omitted):

"We refer to your letter of 5 August.  While you [sic] client does not concede that it is in any way required to provide your client with a copy of the occupational therapist report, our client will provide your client will [sic] a precis of the report, covering the major conclusions of the report.

Will you client attend the appointment next week or not?

If we do not hear from you by Friday 8 August at 5.00pm, we will be making application to the Tribunal in respect of this matter."

On 8 August 1997, the solicitors for the appellant replied (formal parts omitted):

"Our client will attend the appointment on the condition that you will provide the Occupational Therapists reports [sic].  Please advise by 3:00pm today that you will provide them."

Four days later, the respondents' solicitors wrote in part:

"Our client is not obliged to provide your client with a copy of any rehabilitation document apart from the return to work plan.  Our client will agree to provide your client with a copy of the functional assessment by IRS."

The appellant attended for the functional assessment and the occupational therapist (Ms J Pepper-Mason) made a report to the solicitors for the respondents.  A copy was not sent to the solicitors for the appellant as promised.  This led to a further exchange of rather acrimonious correspondence which, fortunately, it is unnecessary to set out.  As the learned Commissioner noted in his reasons for judgment, by this time common law proceedings had been commenced and the solicitors for the respondents decided to treat the report as a proof of expert opinion evidence and withhold it until the action was nearly ready for trial.

As a copy of the report was not forthcoming, the appellant made the application to the Tribunal.  The application erroneously refers to the occupational therapist as Taryn Dinnien, but nothing turns on that.  As mentioned, a copy of the report was handed over before the application came on for hearing, so the only matter left to argue about was the costs of the proceedings in the Tribunal.

The Act, s42 provides that a claim for compensation may be referred to the Tribunal.  The Act, s3 defines a claim for compensation to mean, "a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim."  I interpolate here Professor Pearce's views on the use, in a definition section, of the expression "means and includes" expressed in his book, Statutory Interpretation in Australia, 2nd edn, 118:

"Finally on this question the phrase 'means and includes' ought to be eschewed by draftsmen and interpreters of legislation alike.  The expressions are incompatible with one another — one limits and the other extends.  Persons who say 'means and includes' invariably use the expression to limit the meaning of the word defined (cf Dilworth's case [1899] AC 99). Accordingly, 'means' is sufficient."

The meaning of the expression "claim for compensation" has been considered by this Court on several occasions.  See Chorley v Hazell Pty Ltd A17/1993; Jones v Jones (1996) 6 Tas R 273. The appellant's application for an order for production of a copy of the occupational therapist's report was neither a claim for compensation nor a matter or question arising in connection with or incidental to such a claim. The appellant apparently did make a claim for compensation and it was referred to the Tribunal, but that claim related to weekly payments and was not extant at the time the application was made for an order for production of a copy of the occupational therapist's report. Production of the report had nothing to do with weekly payments. It was submitted that a functional assessment was part of a rehabilitation plan. No doubt it was, but in this case, a rehabilitation plan was neither a claim for compensation nor a matter or question arising in connection with or incidental to a claim for compensation. The Tribunal has no statutory power to make an order with respect to a rehabilitation plan, other than for the payment of the costs of attending one as provided by the Act, PtVI, Div2. In addition, failure by a worker to take part in a rehabilitation program may have adverse consequences for him or her as is provided by the Act, s86, but the request for the occupational therapist's report was not a matter incidental to or arising from any of that. There are, of course, penal provisions in the Act, PtXI with respect to rehabilitation plans, but they are not material to this case. Accordingly, I conclude that the appellant's referral to the Tribunal was not a claim for compensation under the Act and, accordingly, the learned Commissioner was quite correct in concluding that he had no jurisdiction to make any order.

Counsel for the appellant in the Tribunal said to the learned Commissioner, "it is my submission that you, as the Commissioner of this Tribunal are entitled to insist on the bargains being made between the solicitors being kept [sic].  I relying on s 49 and the inherent powers in the Tribunal."

The Tribunal has no inherent powers.  It has only those powers that are conferred on it by statute.  The Tribunal has no general inherent jurisdiction to enforce undertakings or agreements between solicitors, and it certainly has no jurisdiction to punish a solicitor for a failure to comply with an undertaking.  Breach of an undertaking given by a legal practitioner is punishable by this Court by virtue of the practitioner's status as an officer of the Court.  The jurisdiction is exercised, not so much for the purpose of enforcing rights, but to maintain proper standards of conduct.  See In re H A Grey [1892] 2 QB 440. The following passage from Cordery on Solicitors, 5th edn (1993) at 159, was approved in In re a Solicitor [1966] 1 WLR 1604 at 1607 - 1608:

"Whether an undertaking given by a solicitor to the court, his client or a third party may be enforced against him personally depends upon the facts of each case, but the undertaking must be a personal undertaking and given by the solicitor professionally, ie, as a solicitor; it must be clear in its terms; the whole of the undertaking must be before the court; and the undertaking must be one which is capable of being performed ab initio … In enforcing undertakings the court is not guided by considerations of contract, but aims at securing honesty of conduct in its officers."

However, in that case, Pennycuick J noted, at 1608, that the practice generally is to order the defaulting solicitor to perform the undertaking before proceeding to punish the breach.  However, all of that is really by the way as the Workers Rehabilitation and Compensation Tribunal has no disciplinary jurisdiction over solicitors, except that which is provided by way of the Act, s60 (contempt and other offences).

The appeal is dismissed.