You may wish to discuss this application with the Return to Work Corporation of South Australia in the first instance. You have the right to participate in these proceedings. If you wish to attend conferences and participate in the resolution of the dispute in SAET, you must complete the Notice to be Heard (Return to Work) Form, file it with SAET and provide copies to all parties_. If you do so, you or your representative must attend all proceedings._ If you do not lodge this Form, you will not receive any further notification from SAET about these proceedings. [emphasis in italics added]

1. A Notice to be Heard was duly completed by Allied Waste Services and filed on 5 August 2024.
2. The dispute resolution provisions of the RTW Act are in Part 6. Section 96 defines who may be a "party" to a proceeding where an application for review is filed. It provides:

(a) the applicant; and

(b) the relevant compensating authority; and

(c) if the matter is about a work injury and the worker who suffered or is alleged to have suffered the work injury is not the applicant - the worker; and

(d) if the matter is about a work injury and the employer from whose employment the injury arose or is alleged to have arisen is not the applicant - the employer; and

(e) a person who has a direct interest in the matter and has notified the Registrar of the interest;

1. Allied Waste Services may accordingly be a party to the proceeding in accordance with s 96(d) of the RTW Act.[1]
2. As a party to the proceedings, Allied Waste Services is entitled to be afforded natural justice and procedural fairness by the Tribunal.[2] Relevantly, Allied Waste Services is to be given an opportunity to be heard in the proceeding. However, with this right are associated responsibilities. Upon the filing of the Application for Review, Allied Waste Services was promptly informed, by the Registry of the Tribunal, that a party to the proceeding who files a notice to be heard, must attend all proceedings. That is a reference to an obligation to attend all hearings and comply with orders and directions of the Tribunal made at such hearings.
3. In Allesch v Maunz[3] Kirby J explained that the principle to afford a hearing is a rule of natural justice or "procedural fairness"[4] but it does not require the party to be actually heard. Affording the opportunity is all that the law and principle require.[5]
4. Subsections 91(2) and (3) are relevant to a construction of s 96 and application and provide:

91 - Disrupting proceedings of Tribunal

...

(2) If a party to proceedings before the Tribunal -

(a) contravenes or fails to comply with an order in the nature of an interlocutory order or an order to do, or refrain from, a particular act; and

(b) makes no reasonable and adequate excuse to the Tribunal for the contravention or non-compliance, the Tribunal may (without limiting its powers to deal with the matter in any other way) order that the party be not heard, or further heard, in the proceedings, or impose another procedural disability or civil penalty the Tribunal considers appropriate to the circumstances of the case.

(3) Before acting under subsection (2), the Tribunal must give the relevant party an opportunity to be heard on the question.

1. Subsection 91(2), by its text, empowers the Tribunal to order, if the circumstances of the case make it appropriate to do so, that a party not be heard or further heard in the proceedings. Other procedural disability may be imposed.
2. Rule 4 of the SAET Rules addresses the overriding purpose and application of the rules. Sub-rule 4(1) establishes the overriding purpose of the rules. That is to facilitate the objectives of the Tribunal, and in particular, to achieve the just, quick and cost-effective resolution of the real issues in proceedings. Sub-rule 4(3) provides that a party to a proceeding is under a duty to assist the Tribunal to achieve the overriding purpose. Parties do so by participating in the process of the Tribunal in a constructive manner and by complying with directions and orders of the Tribunal. The objectives of the Tribunal are found in s 8 of the SAET Act. Section 8(c) provides that the Tribunal is to ensure that applications are processed and resolved as quickly as possible whilst achieving a just outcome. Section 8(d) provides that the Tribunal is to act in a manner that keeps costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate. In achieving these objectives, the Tribunal is to take an active role in the conduct of the proceeding. Accordingly, provisions which provide the Tribunal with evidentiary and procedural powers are able to be exercised either upon the application of a party to proceedings or on its own initiative.[6]
3. Provisions which empower the Tribunal to dismiss proceedings or strike out a claim, or a part thereof, may be exercised upon an application of a party or of its own initiative.[7] Similarly, r 50(v) which provides for an order to strike out or dismiss a proceeding or part of a proceeding and r 100(1) of the SAET Rules, which provides for an order for the Tribunal to remove a person or entity as a party to the proceeding, may be exercised either upon an application by a person or of its own initiative. Rules 50(v) and 100 provide:

50. General directions

At any time during a proceeding a Presidential member may make such directions or orders necessary to achieve the fair and expeditious resolution of a proceeding, including but not limited to the following:

...

(v) dismissing or striking out a proceeding, or part of a proceeding;

100. Procedure for joinder or disjoinder of a party

(1) The Tribunal may order that a person or entity be joined or removed as a party to a proceeding if satisfied that it is in the interests of the administration of justice to make the order after all parties have had an opportunity to be heard.

(2) An application to join a person as a party to a proceeding must be made in the approved form A10.

(3) The Tribunal may make an order to join or remove a person as a party to a proceeding:

(a) on its own initiative or on an application by any person; and

(b) without notice to the person to whom the order relates.

1. The ability of the Tribunal to act on its own initiative in achieving its main objectives is consistent with the modern approach of courts to case management. That is particularly in the context of discretionary powers to be exercised by a court in a busy jurisdiction. In Jameel (Yousef) v Dow Jones and Co Inc[8] the Court of Appeal stated:

It is no longer the role of the Court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The Court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.[9]

1. That passage was referred to with approval by the High Court in Expense Reduction Analysts Group Pty Ltd and Ors. v Armstrong Strategic Management and Marketing Pty Ltd and Ors. (Expense Reduction Analysts Group).[10] The High Court then revisited its earlier judgment in Aon Risk Services Australia Ltd v Australian National University[11] and confirmed that case management is an accepted aspect of the system of civil justice administered by the courts in Australia.[12] In Expense Reduction Analysts Group, the High Court then stated:

It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants.[13]

That principle finds expression in s 8(c) of the SAET Act.

1. Section 96(d) is to be construed in the context of s 91(2). The rules referred to which have been made in accordance with the rule making power in s 92 of the SAET Act are also to be considered. In this case the right conferred by s 96 for Allied Waste Services to be a party to the proceedings does not preclude the Tribunal, in appropriate circumstances, from removing it as a party to the proceeding and striking out its Notice to be Heard.
2. The application for review was referred by a Commissioner for hearing and determination on 6 November 2024.
3. Directions hearings have been held on 27 November 2024, 25 February 2025, 16 April 2025, 1 May 2025 and 15 May 2025. There was no attendance by or on behalf of Allied Waste Services on any of these occasions and nor has there been an explanation for the failure to attend.
4. In the order of 1 May 2025, reference was made by the Tribunal, to considering, of its own motion, whether to remove Allied Waste Services as a party to the proceedings if there was no attendance by or on behalf of Allied Waste Services at the directions hearing on 15 May 2025. As already noted, there was no attendance on 15 May 2025, and nor have any written submissions been received.
5. There has been no communication from Allied Waste Services, to the Tribunal, to explain its repeated non-attendance.
6. Mr Deslandes and the Corporation are now following the process to have Mr Deslandes assessed as to permanent impairment so that any possible entitlement to a lump sum payment under s 58 of the Return to Work Act 2014, for non-economic loss, may be determined. Mr Deslandes and the Corporation wish to engage in settlement discussions. If agreement is reached and Allied Waste Services is a party to the proceedings, with a current Notice to be Heard, orders by consent cannot be made without the consent of Allied Waste Services. It is unsatisfactory for a party to the proceeding to repeatedly fail to comply with directions of the Tribunal, fail in any meaningful way to participate in the progress of the matter and then seek to determine whether orders may be made by consent. Given the failure to attend directions hearings to date, without explanation, the Tribunal can have no confidence that Allied Waste Services will comply with its directions in the future. Its current position is in relation to the merits of the application for review is unclear. The continued involvement of Allied Waste Services, as a party to the proceedings, may result in delay or a need to list the matter for trial or to hear an application pursuant to s 42(1)(a) of the South Australian Employment Tribunal Act 2014. Section 42 provides:

42 - Proceedings being conducted to cause disadvantage

(1) This section applies if the Tribunal believes that a party to any proceedings is conducting the proceedings in a way that unnecessarily disadvantages another party to the proceedings by conduct such as -

(a) failing to comply with an order or direction of the Tribunal without reasonable cause; or

(b) failing to comply with this Act or a relevant Act; or

(c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or

(d) attempting to deceive another party or the Tribunal; or

(e) vexatiously conducting the proceedings; or

(f) failing to attend any hearing in the proceedings.

(2) If this section applies, the Tribunal may -

(a) if the party causing the disadvantage is the applicant, order that the proceedings be dismissed or struck out; and

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceedings in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceedings.

(3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

(4) If any proceedings are dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member.

1. If, upon application by a worker to review a decision of the Corporation there is not a current Notice to be Heard of the employer then the worker and the Corporation may agree to orders which may then be issued by the Tribunal as binding upon the worker, the Corporation and the employer.[14] Such order may be subject to the power conferred by s 110 of the RTW Act to amend or set aside such orders.
2. Removing a party to the proceeding or striking out a Notice to be Heard does not foreclose future involvement by that person or entity. An application may be made subsequently to be joined again in accordance with r 100 of the SAET Rules and to file a further Notice to be Heard. It is appropriate that an order be made that if Allied Waste Services wishes to again be a party to the proceedings and to file a Notice to be Heard, that it be required to file an application and supporting affidavit seeking leave of the Tribunal to do so.
3. As already noted, the order of 1 May 2025 gave notice to Allied Waste Services that the Tribunal would consider whether to remove it as a party to the proceeding if there was no attendance on 15 May 2025. It was afforded the opportunity to attend on 15 May 2025 and to be heard in relation to whether such an order should be made. It failed to do so. If there was any difficulty in attending in person that day it could have sought an adjournment or it could have sought leave to provide submissions by telephone or in writing. It did neither. For the reasons given, I am satisfied that it is in the interests of the administration of justice that Allied Waste Services be removed as a party to a proceeding and that its Notice to be Heard be struck out.

1. Allied Waste Services is removed as a party to the proceeding pursuant to r 100(1) of the South Australian Employment Tribunal Rules 2024.
2. The Notice to be Heard (Return to Work) Form filed by Allied Waste Services on 5 August 2024 is struck out pursuant to r 50(v) of the South Australian Employment Tribunal Rules 2024.
3. Leave of the Tribunal is required should Allied Waste Services seek to be rejoined as a party to this proceeding or to file again a Notice to be Heard (Return to Work) Form.

[1] See reasoning of Hannon DPJ in Winston v QBE Workers Compensation (SA) Ltd and Clipsal Australia Pty Ltd [2006] SAWCT 40 at [19] which addressed the same part of the definition of the cognate provision in s 89 of the Workers Rehabilitation and Compensation Act 1986.

[2] South Australian Employment Tribunal Act 2014 (the SAET Act) s 8(a)(ii).

[3] [2000] HCA 40; (2000) 203 CLR 172.

[7] See ss 40, 41 and 42 of the SAET Act.

[8] [2005] EWCA Civ 75; [2005] QB 946.

[10] [2013] HCA 46 at [39].

[11] [2009] HCA 27; (2009) 239 CLR 175.

[14] See Goddard v RTWSA [2021] SAET 138.