Hearing Matters v GM Holden Ltd [2013] SAWCT 10

"(1) A worker or employer who believes there has been undue delay in deciding a claim or other matter affecting the worker or employer may apply to the Tribunal, in the manner and form prescribed by regulation for expedited determination of the matter."

1. Mr Rossi submitted that only a worker or an employer, as defined by the Act, may bring an application pursuant to s 97. He pointed to the definition of "worker" which contains one specific extension to include the legal personal representative of a deceased worker.[2]
2. Mr Wright, counsel for Hearing Matters, submitted that the applications have been brought by Hearing Matters as agents for the respective workers and relied for support on the facts deposed to in the affidavits of Mr Machotka.
3. I accept Mr Rossi's submissions. The expedited decision is a special jurisdiction outside the usual dispute resolution process contained in Part 6A of the Act. The words of s 97 are unambiguous. There is a clear intention to limit the parties who may bring an application for expedited decision to a worker or an employer. This is to be contrasted with the "applicant" who may lodge a notice of dispute under Part 6A. A party to such a dispute is defined as follows[3]:

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

(d) if the dispute is about a compensable 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 dispute and has notified the Registrar of the interest."

1. Section 97 is also to be contrasted with s 32(6) which together with s 89 and s 89A, gives a medical provider, such as Hearing Matters, the specific right to seek the review of a decision by a compensating authority to disallow or reduce a charge for a medical service.
2. As a matter of statutory construction the words of s 97, read in the context of the Act as a whole, do not contemplate the enlargement of the class which may utilise it to include a provider of medical services as agent for the particular individual workers. Furthermore Hearing Matters cannot put itself in the position of a worker for the purposes of lodging such an application.
3. The Tribunal does not have jurisdiction to determine applications for expedited decision brought by such an entity.
4. I uphold the Application for Directions filed on 19 February 2013. Each of the applications for expedited decision is struck out.
5. Mr Rossi seeks costs of the Application for Directions. Costs of such an application are in the general discretion of the Tribunal[4]. Section 95(5) does not apply because the application for expedited hearing and hence this Application for Directions are not proceedings pursuant to Division 6A of the Act.
6. The discretion to order costs pursuant to s 88F, must be exercised judicially. It is important that the Tribunal adopt a consistent approach. Accordingly the discretion will usually be exercised in favour of the successful litigant.[5]
7. The conduct of the parties is relevant to the exercise of the discretion as special or exceptional facts may warrant a departure from the exercise of discretion in favour of the successful litigant.
8. Mr Wright submitted that it was efficacious for Hearing Matters to bring the s 97 applications as otherwise each individual worker would be required to bring an application. He maintained the submission of agency.
9. I am not persuaded by Mr Wright's submissions. Hearing Matters brought 86 unnecessary and inappropriate applications. The assertion of agency could not influence the statutory scope of this special jurisdiction. GM Holden Ltd has been put to unnecessary expense by these applications.
10. Furthermore Hearing Matters was put on notice that GM Holden Ltd regarded the applications as untenable and that if successful in its strike out application would be applying for costs.[6]
11. As the Tribunal said in Iplex Pipelines Australia Pty Ltd v The WorkCover Corporation[7] it is appropriate to reflect on the strength of a case in evaluating the reasonableness of a party in insisting that the matter proceed. In the circumstances there are no facts which warrant a departure from the exercise of discretion in favour of the successful litigant.
12. I order that Hearing Matters pay the costs of and incidental to the Application for Directions filed on 19 February 2013, such costs to be agreed or taxed.
13. Furthermore in the circumstances that Hearing Matters' action in bringing the 86 applications was untenable it acted unreasonably in bringing the applications and has no entitlement to costs against GM Holden Ltd in respect thereof.

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.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Sworn on 12 March 2013 and 26 March 2013 respectively Exhibits R1and R2.

[4] Linke v WorkCover Corporation (Furnmarn Pty Ltd t/as Harvey Norman Furniture Marion) [2012] SAWCT 10

[5] South Australian Police Department v Tate [2000] SAWCT 156

[6] Mr John, solicitor for GM Holden informed Mr Wright of this position in the course of a directions hearing on 14 March 2013 following which I gave Mr Wright the opportunity to seek further intructions. In the end the matter could not be resolved by agreement.

[7] [2007] SAWCT 48