Goodes v Select Staff Pty Ltd [2002] SAWCT 3

3. The applicant is to be paid his costs and disbursements agreed in the amount of $400.00 all inclusive.

Solicitors for the Respondent Solicitors for the Applicant"

2 The evidence consisted of statements from the worker, Mr Kudra solicitor, an affidavit from a Mr Pugh claims manager and Mr Kudra's file. All were cross-examined.

1 The applicant instructed Mr Victor Kudra solicitor of Berri South Australia to act for him in respect of a claim for compensation against his employer Select Staff. This claim was for the consequence of a disability of allergic rhinitos/sinusitis which originally occurred on 18 November 1999.

2 The first determination of 5 January 2000 was for a closed period terminating on 23 December 1999. That generated Dispute No 559/2000.

3 The second determination was dated 13 March 2000. That generated Dispute No 1976/2000.

4 Sometime in January 2000 the applicant obtained suitable employment with AJ Cass and Company. The employment concluded sometime about 22/23 May 2000. The exact date is in dispute.

5 On 30 March 2000 Mr Kudra had sent an interim account to the applicant in the sum of $824.95. This was still outstanding on 23 May 2000.

6 On 23 May 2000 Mr Kudra had a telephone conversation with the applicant. Mr Kudra's file note says:-

He can't afford legal fees to continue WCT - Notice of Dispute. He instructed me to advise solicitors for Select Staff - but provided they agree to pay gazetted costs then he will discontinue both Notices of Dispute. VK advised ought to recover about half the fees from Select Staff. Balance payable by client. He said he would ? to pay it within four-six weeks.

He said he is going public. He has spoken with John Laws and he is going to destroy Select Staff and Winery."

7 On or about 25 May Mr Kudra advised the solicitors for Select Staff that the Notices of Dispute were to be withdrawn.

8 As the result thereof the orders of 5 June were made.

9 The applicant filed a fresh Notice of Dispute on 6 June 2000.

10 A telephone conciliation conference had been listed for 24 or 26 May 2000 - it having been adjourned from 4 May 2000.

1 He did not instruct Mr Kudra to withdraw the Notices of Dispute.

2 He instructed Mr Kudra that as he could no longer afford the legal fees Mr Kudra was not to act for him any more.

3 In the event that what passed between the applicant and Mr Kudra on 23 May could be construed as instructions to withdraw the Notice of Dispute, such instructions were given mistakenly by the worker believing that his compensation claim would not be terminated - but postponed and dealt with in such a way so as to enable the applicant to revive it.

5 The respondent's case is that the orders were made by consent and that Mr Kudra acted upon instructions and authority validly held by him.

6 The applicant is aged 51. He is an unsophisticated agricultural labour educated to Grade 7. He said that after instructing Mr Kudra on 11 January 2000 he received a number of letters on the progress of his claim. The totality of the letters and enclosed accounts amounted to 10 pages of correspondence. Every letter mentioned costs. The last account was on 30 March for $824.95. He was unable to pay these accounts.

7 On 23 May Mr Kudra telephoned him and asked if the account would be paid. The applicant told Mr Kudra he could not pay the account. Then Mr Kudra told him that he might be able to get Select Staff to pay some of the fees. The word "discontinuance" may have been used. The worker said he does not understand what "discontinuance" means. He did not think that the dispute would be finalised. He did not deny receiving a letter of 26 May which said:-

"We refer to our telephone discussion of 23 May 2000.

We confirm that pursuant to your instructions we have discontinued the two Notices of Dispute which were filed on your behalf with the Workers Compensation Tribunal in relation to the above matter.

We note that our outstanding fees to date total $824.95. We request that you commence instalment payments with respect to our outstanding fees with the first payment due on or before Friday 2 June 2000.

We confirm our advice to Select Staff is obliged to contribute approximately $340.00 towards your legal costs. The balance of approximately $485.00 will need to be paid by you.

8 I note that the agreed costs were in fact $400.00 and that the Consent Orders were signed by Mr Kudra on 30 May 2000.

9 The applicant said that he did not understand the letter of 26 May to mean that the dispute would not continue.

10 He lodged a fresh Notice of Dispute on 6 June 2000 after obtaining advice from WorkCover.

11 In cross-examination the applicant said it might have been 24 May that he was sacked by Cass. He did not deny or was unable to recollect, if when he spoke to Mr Kudra on 23 May, he still had a job which at that time looked as though it would continue for a month or two on very good money.

12 He conceded that he had telephoned Mr Pugh the claims manager on 23 May 2000 and said "You have won round 1". He conceded that he threatened to go to the media and embarrass Select Staff. He said that the expression "You have won round 1 "was "a figure of speech".

13 Mr Kudra gave evidence. He said he has very little recollection of the matter other than the notes on his file. On the critical point of the phone call of 23 May he was quite certain that he had been instructed to discontinue the Notice of Dispute.

14 He subsequently sued and obtained default judgment against the applicant for his account.

15 Mr Pugh deposed in an affidavit of 5 December (inter alia par 2):-

"I recall receiving a telephone call from the worker informing me that he was not pursuing his Notices of Dispute."

W rang and advised that `We have won round 1'. He was pulling his lawyer off the case. (WCT Dispute)"

But he was going to the media today and going to make Austvin and us look stupid.

W stated `Select Staff (Berri) lied their a ... s off'."

17 The applicant is, as I said uneducated and unsophisicated, was not shaken in his evidence that he did not give instructions to his solicitor to withdraw the Notice of Dispute. His memory of conversations 18 months prior is understandably unclear, somewhat confused. He remembers those things which are important to him. As is usual, those things are consistent with his version of what occurred. He is not to be doubted or disbelieved because of that. He did not take notes. His recollection is of course imperfect.

18 Mr Kudra was cross-examined. His memory is almost non existent. He properly relied on his file notes. He was taxed with the observation that he was primarily interested in his costs. They are mentioned in the first interview when he obtained instructions, and in the attendance of 30 March. He then told the worker that "Select Staff would fight the case probably fight it and it will have to go to court for a full hearing and there would be large legal costs". An estimate of the cost of medical reports follows.

19 There is a note "Client to provide $1000.00 in payment of account and the rest in trust by 3 April".

20 The emphasis on costs appearing as they do in every letter is unusual. However no adverse inference is to be drawn from that about Mr Kudra's professional practice. His professional practice is not an issue in this case. What is in issue is the content of the instructions he received.

21 I say at the outset that I have no doubt that Mr Kudra acted upon the instructions he thought he had received.

22 However on hearing Mr Kudra and analysing his evidence I am concerned that:-

1 The applicant being unsophisicated and uneducated, gave the withdraw to instructions by telephone.

2 The medical report from Dr Richie Gun obtained by the respondent is not adverse to the applicant's case. Many a compensation claim has succeeded on reports less favourable to the applicant.

3 The instructions to withdraw the claim allegedly given by the applicant, were obviously the most critical part of the phone conversation. However the file notes says absolutely nothing about them.

At the very most it says "He cannot afford legal fees". I would have thought that bearing in mind the type of person with whom Mr Kudra was dealing, such instructions should have been obtained unequivocally and preferably in writing. Indeed if taken by telephone one would expect a specific note to be taken of the exact words used by the client. Yet the actual instructions were not mentioned in the file note.

The notes of the conversation should have contained the explicit instructions to continue or not to continue with the case - not about Mr Kudra's prospects of obtaining his costs.

4 I do not believe that the applicant said "The gazetted costs". My observations of this applicant lead me to believe that he would not know the meaning of the word "gazetted".

5 The matter was due for a further telephone conciliation conference within two or three days. No discussion of that event appears in the note or in the subsequent demand for costs.

23 Hence I do not regard as Mr Kudra's evidence as being anything more than equivocal.

24 As to Mr Pugh's evidence I have real difficulty in accepting the assertion in par 2 thereof ie:-

"I recall receiving a telephone call from the worker informing me that he was not pursuing his Notices of Dispute."

That recollection was generated on 22 November 2001 some 19 months after the phone call.

25 That statement does not appear, and nothing like it appears in the note of the telephone conversation. If the purpose of the note of the telephone conversation was to accurately set down either the conversation in full, or the most important part of the conversation, then the fact that there is no note of the applicant saying that "the Notices of Dispute were to be withdrawn" is something that makes it difficult to justify the recollection of Mr Pugh, that he can recall receiving a telephone call from the applicant informing him that he was not pursuing the Notice of Dispute.

26 In short I do not accept that paragraph in Mr Pugh's affidavit.

27 The file notes of Mr Kudra and Mr Pugh, like the observation of Sherlock Holmes - "the dog that didn't bark in the night" in The Silver Blaze - are important not for what the notes contain - but for what they do not contain.

28 I have given full weight to the submission made by Mr Hanus that the applicant had a good reason to now dispute his instructions of 23 May. At that time the worker had a job. He had no real interest in the compensation case. After he was discharged from his job, worker's compensation was his only source of income.

29 I have considered that scenario but I am forced to reject it. I doubt if this applicant has the Machiavellian cast of mind to have thought that up.

30 The law regarding invoking the assistance of s 88H of the Act has been recently considered by myself in Edgecombe v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Limited (Queen Elizabeth Hospital Research Foundation) [2001] SAWCT 88. Both parties accept the statement of law therein contained. I have nothing to add to it.

"... `it is a power that should be exercised cautiously' - Mundie and Others v WorkCover Corporation/MMI Workers Compensation (SA) Ltd v Coles Supermarket and Others) JD51/1997 per Gilchrist J; State Rail Authority of NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1981) 150 CLR 29.

... `It is a power to be exercised with great caution.' ... The circumstances that will justify a rehearing must be quite exceptional."

32 The facts in Edgecombe were not all that dissimilar to the facts in this case.

33 The exercise of the power in s 88H must be grounded upon the interest of justice. That is justice to both parties. No criticism whatsoever could be advanced against the solicitors for the respondent and indeed none is sought to be advanced.

34 However, I am left with the uneasy impression that instructions were at best equivocal.

35 I am quite satisfied that the applicant did not think he was putting an end to his compensation claims. I am quite satisfied that the applicant thought that his claims would continue albeit in some unspecified way. However the reservations I have regarding the file note of the final telephone conference on 23 May between Mr Kudra and the applicant compel me to the conclusion that the applicant should not be shut out from pursuing his case before the Tribunal.

36 If one applies the Ciceronian test of "cui bono" ie "what does the worker get out of withdrawing his claim" then the answer is nothing.

37 For those reasons I have come to the conclusion that the applicant has demonstrated that the interests of justice require that the order be set aside.

38 I further order that the respondent pay the applicant's costs. The matter should be returned to the conciliation process unless within four working days the parties request that the matter go to judicial determination.

39 Finally, this is one of those cases regrettably seen all too frequently in the Tribunal when the lapse of time between the lodging of the Notice of Dispute - and judicial determination has taken far too long - from 6 June 2000 to 20 December 2001 - 18 months to get to a preliminary point.

40 The trial will not be before September 2002 - and the Trial Judge will then have to grapple with a factual selection as it existed almost three years earlier. The parties and indeed the Tribunal are at the mercy of fallible memories. That is a melancholy state of affairs for a workers

compensation court. I have no idea where responsibility lies for this delay. I mention it as a cautionary tale for the benefit of the advisers of these and other litigants.

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 the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.