Edgecombe v Workcover/Allianz Australia

3 The determination of 25 February 1998 responds to a claim for compensation made by the worker on 5 November 1997. That claim related to disabilities allegedly sustained by the worker on 10 February 1997 when he fell over a fence.

4 Shortly after 10 February 1997 the worker claimed compensation for a left knee disability arising from that incident. That claim was accepted by a determination of 26 February 1997 for the closed period 11 February 1997 to 14 February 1997. A notice of dispute was not lodged against that determination.

5 Shortly after the receipt of the determination of 25 February 1998 the worker instructed the Employee Advocate Unit ("EAU"). Ms N Voice was assigned to the case. Medical reports were collected from the treating doctors. The EAU arranged for independent medical examinations to be conducted by Mr T Hillier orthopaedic surgeon and Mr Peter Oatey neurosurgeon. It is fair to say that neither consultant supported a causal relationship between the back condition and the incident of 10 February 1997.

6 The worker was living in Whyalla for most of the period March 1998 to September 1998 although he was in residence at Morphett Vale in August/September 1998. Much of his contact with Ms Voice was via the telephone.

7 A critical conciliation conference was listed for 17 September 1998. By 31 August 1998 Ms Voice had formed the view that the worker's case was not strong and it was likely that he would not succeed.

8 It is part of the EAU's modus operandi (which is communicated to its clients) that merits of the dispute save one of the criteria on which it based its decision to represent and continue to represent its clients. Ie if the Unit took the view that the client's case lacked merit the Unit could withdraw representation.

9 It is common ground that the worker was advised on 31 August 1998 of the imminent withdrawal of representation.

10 It is common ground that the EAU would adjourn the conference on 17 September to allow the worker to obtain additional evidence and to seek other representation.

11 On 15 September 1998 the EAU faxed a letter to the Workers Compensation Tribunal.

"We write further to our correspondence of the same day indicating that we are no longer representing the abovenamed worker.

We have since received a telephone call from Mr Edgecombe instructing us that he no longer wishes to pursue the matter. Therefore acting on instructions we request orders to be made confirming the decision of MMI Workers Compensation dated February 25 1998.

Unless advice to the contrary we will assume there is no requirement for attendance at the next scheduled conference on September 17 1998."

13 The conference of 17 September 1998 was abandoned and on that date the order was actually made.

14 The worker seeks to have that order set aside. He relies on s 88H of the Act which says:-

"1. The Tribunal may amend or set aside a judgment or order of the Tribunal -

(c) if the interests of justice require that the judgment or order be amended or set aside."

15 After the order was made, the worker continued to instruct the EAU for another six months in respect of claims arising from the incident on 10 February 1997.

16 On 26 March 1999 the worker instructed his present solicitors.

17 The application to set aside the order was filed on 13 December 1999 ie 15 months after it was made.

18 The worker filed a 10 page affidavit sworn on 7 February 2001. He was subject to an exhaustive cross-examination thereon.

"I do not now precisely recall the circumstances which led me to instructing the Employee Advocate Unit to withdraw the Notice of Dispute in Action No 1690/1998N. I do recall that one or both of Ms DeLisio and Ms Voice were advising me along the following lines:-

(a) My weekly payments on a successful claim would be low and therefore I would be entitled to almost as much money if I were on the pension.

(c) Pursuing my claim may take a long time during which time I would not be able to have treatment for my back injury and therefore if the claim were rejected I could immediately be treated by the public health system.

I do recall that when I instructed the Employee Advocate Unit to consent you a confirmation of a rejection of my back claim of November 1997, I was in the process of preparing a claim for knee, hip and back injury arising out of the events of 10 February 1997.

As at September 1998 my intention was not to withdraw my claim or to stop instructing the Employee Advocate Unit. Rather my intention was to pursue a claim after obtaining further evidence as I intended to ask my orthopaedic surgeon Mr Lim to refer me for an MRI Scan. Ultimately such scan did not occur until much later namely 11 November 1999."

20 I pause there to say that par 22 is difficult to reconcile with par 17 and par 19.

"He did not recall whether his solicitors (Palios Meegan and Nicholson) advised him of various matters deposed to in par 25 - 27 although par 25 explicitly deposes to the fact that he was advised on certain matters `... my solicitors have advised me that pursuing my challenge to the rejection of my October claim ... the claims agent intends to argue the following ...'"

22 Par 28 of the affidavit is at best opaque and confusing. I do not know what it is supposed to mean and the worker certainly had no idea.

"Q Do you agree, Mr Edgecombe, that on 15 September 1998 you had a phone conversation with Natasha Voice about the claim that you were pursuing in relation to your back.

A I do recall a telephone call which was the only one telephone call from States Road. That's the only telephone call that I remember. That was Natasha Voice, but I don't recall us talking about dropping no claim or anything like that."

"Q Do you agree that you did give those instructions.

A No, I don't recall giving the instructions to Margaret DeLisio or Natasha Voice to drop the claim and if I did it would have either been representation dropped so I could get myself a lawyer or either - I don't recall my talking with them, not about dropping the claim.

"Q I'm asking you, did you give those instructions.

Q So are you saying that you didn't give those instructions.

A No I'm not. I'm saying that I can't recall whether I gave them or not. This is 3 - 4 how long ago was is it. Three years.

Q What I'm suggesting to you is that in paragraph 17 you are saying is you don't recall the instructions. You can't recall why but you did give those instructions.

A If I did give them I must have given them yes over the phone or

"That sentence implies a concession on your part that those instructions were given.

BENCH: There are three possibilities. Either you told the unit to drop the claim or - - -

BENCH: - - - You didn't tell the unit to drop the claim, or you can't remember what you told them.

BENCH: Either you told them or you didn't tell them or you just can't remember now.

25 It emerges clearly from the evidence that the worker's position vacillated between the assertion that he did not instruct the EAU to withdraw his case about his back, and an assertion that he could not recall giving those instructions.

26 The resolution of that is academic because the respondent was able to produce a letter from the worker which has a WCC date stamp of 16 September 1998 on it.

I John Edgecombe will drop the first claim being 01 back claim being I don't have enough proof to back up my claim which I have put forward. I will be continuing on with 02 claim being for my knee."

27 The worker signed that document. I find as a fact that it is undeniable that the worker instructed the EAU to withdraw his Notice of Dispute. When confronted with the letter, in the witness box the worker conceded that he had written it.

28 The worker did not assert in his affidavit that he did not understand what he was doing. He did not complain that he was not properly advised.

29 The worker's case was based on the cross-examination of Ms Voice. As a preliminary she said that in August/September 1998 she had approximately 120 files with 120 workers to look after. She said she could not recall the content of the telephonic advice of the 31 August 1990 other than by reference to the EAU notes. She conceded, that she did not interview the worker's then girlfriend or supervisor, that she could not recall whether she discussed the contents of other medical reports with the worker. Ms Voice conceded she did not write a formal letter of advice to the worker.

"Q If he was to not continue with that notice of dispute did you advise him of what the consequences would be if he made that decision.

A I don't recall specifically whether I did nor not.

A Certainly I would advise him certainly about his rights to - if I can just start again. We have lawyers who provide free advice and representation. Normally in situations where I don't believe there's merit in the case I invite them to take up that free advice, to seek some legal advice about whether they wish to pursue it or not. Getting back to specifically whether I advised him as to the consequences of the decision being confirmed, I don't recall whether I did advise him about that or not.

Q Do you recall telling him that if the decision was confirmed that would be the end of his claim for his low back.

Q That he would have no rights to pursue in the future his low back claim.

31 S88H is a necessary provision in an Act which regulates the personal rights of workers viz-a-viz employers - particularly where many of the worker applicants do not have sophisticated educational backgrounds (none of the participants in this drama are legally qualified).

32 The criteria to set aside an order is the "interests of justice". That imports great flexibility which is required by the dictates of the individual case and the participants in each case. It is impossible to lay down any hard and fast rules. There is no definition of what "justice" is, in the context of the section. It would serve no useful purpose to essay a definition.

33 What can be said is that "it is a power that should be exercised cautiously" - see Mundie and Others v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Coles Supermarket and Others) JD51/1997 per Gilchrist J.

34 The facts of Mundie were far removed from the facts of this. His Honour without purporting to state general principles remarked that:-

(a) No new fact had emerged in that case other than those apparent at the time of consent.

(b) Genuine oversights by the parties "might well" lead to an intervention via s 88H

(c) The length of delay between the error and the s 88H application is relevant.

(d) It is undesirable that orders be revisited to rectify missed opportunities.

35 A thorough examination of a similar provision in the Supreme Court Rules (85.12) was made by Von Doussa J in Mohtar v Mohtar (1988) 146 LSJS at 377 particularly at 390. Perhaps the most illuminating exegesis on the exercise of the discretion is found at 391 quoting State Rail Authority of NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1981) 150 CLR 29 Mason and Wilson JJ when considering the exercise of the power of an order of the High Court to be vacated:-

"Nevertheless it is a power to be exercised with great caution. There may be little difficulty where the orders have not been perfected and some mistake or misprison is disclosed but in other cases it will be a case of weighing what would otherwise be irremedial injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional."

1. The worker did not consent in any meaningful sense to the order.

2. More fundamentally to the extent that the worker did "consent", that "consent" is so tainted because of the deficiencies in his understanding, it really was no consent at all.

37 As to 1 Mr Kernot points out that on 2 October 1998 - about 14 days after the order in question was made the worker gave notice of another claim for compensation.

39 Mr Kernot says that the words "may be back affected" suggest that the worker did not have a clear understanding that only two weeks earlier he had consented to the confirmation of the determination, that meant the end of his back claim.

40 However I note that the worker also filed a Notice of Injury on 15 September 1998. I am unaware of the significance of that claim form but the date is certainly significant.

The worker said that he had handed that Notice into the front desk of his employer.

42 Ms Kelly submitted simply that nothing appeared in the evidence that would justify the intervention of the Tribunal under s 88H.

43 In my view the document of 2 October 1998 does not support Mr Kernot's construction, ie that the words "may be back affected" demonstrate that the worker had not abandoned his challenge to the determination. The injury that is nominated is the left knee. The appearance of "may be back affected" is capable of many explanations. It is at best equivocal as a manifestation of the applicant's alleged desire to proceed with the back claim.

44 The document in any event is quite contrary to his written instructions received by EAU on 16 September 1998 and therefore presumably written on 15 September 1998 the day of the conversation with Ms Voice.

45 Furthermore the contents of the 2 October 1998 Notice if they are to have the construction contended for by Mr Kernot, are quite inconsistent with the Notice of 15 September 1998. However that latter notice is perfectly consistent with the instructions verbal and written to Ms Voice.

46 Hence Mr Kernot's first point has no substance in it.

47 As to the second point that the worker's consent was so tainted with his lack of understanding of what he was advised to do (partly because of the deficient advice of the EAU): Ms Kelly has adroitly turned that attack by her submission that one could only come to that conclusion if one accepted the evidence of the worker. However there are two barriers to that.

1. The worker himself does not assert that he failed to understand the consequences of his instructions. Indeed the contrary is true.

2. The worker's evidence is quite unreliable and should not be accepted.

48 In my view the kindest thing one can say of the worker's evidence was that he has a very poor memory of what occurred between 31 August and 17 September 1998. He was confused, could not recall initiating or receiving correspondence - could not remember what instructions he gave to the EAU until confronted with his own letter. His oral evidence was in contradiction to his affidavit evidence sworn earlier this year. He changed his ground when being cross-examined and opted for answers that would absolve him from any responsibility.

49 Furthermore, he continued to accept EAU services for six months after the order was made.

50 Before a judgment can be made on what are the "interests of justice" in a s 88H application the applicant must establish in a persuasive if not incontrovertible way the facts on which the discretion can be exercised.

52 This is not a Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 case. There is no question of the validity of the instructions. There is no question of the worker's will having been overborne.

53 I am invited to speculate that because Ms Voice could not remember in detail what she said to a client nearly three years ago (at a time of a significant case load) it was to be inferred that the advice itself was deficient. I am not prepared to do that. I found Ms Voice to be a helpful and truthful witness and I accept her evidence.

54 Because of the above it is not necessary to comment upon the 15 month delay in seeking the Tribunal's assistance. It has no real effect on this case - other than remark that such a long delay, when the worker is in receipt of advice does not assist the worker's cause.

55 Finally Mr Black who is Mr Kernot's instructing solicitor kindly drew my attention to Cavanagh-Lang v O'Callhehan and Ors (2000) SASC 187 and provided me with a copy of the Full Supreme Court judgment.

56 The facts in that case were used to base an argument as to the availability of Supreme Court Rules 3.4(f) and 84.12 to set aside an interlocutory judgment by default on a non perfected judgment. Those facts are a world away from the facts of this case per par 56 per Olssen J "The present scenario which focuses on an imperfected judgment" etc.

57 Cavanagh-Lang is but another example of the proposition that the power to set aside an order exists - the facts giving rise to "interests of justice" are capable of infinite variations. That case is not remotely similar to that I am considering.

58 The worker has not persuaded me that the interests of justice require that the challenged order be amended or set aside. I dismiss the application.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.