Hill v Monroe Australia Pty Ltd [2000] SAWCT 130

3 By application for directions filed on 7 July 2000 Monroe sought the following orders:-

"1. An order that this application for directions be made specifically returnable.

2. An order that the worker ceased to be incapacitated for work by work aggravations by 23 February 2000.

3. An order that the worker's entitlement to income maintenance payments pursuant to the worker's rehabilitation and compensation Act (SA) 1986 ceased on and from 23 February 2000.

4. An order that the worker's notice of dispute be struck out or permanently stayed.

5. Such further or other orders as this Tribunal sees fit to make."

4 It is this application that is before me. I heard argument thereon from the parties' solicitors in court as in chambers on 14 July 2000.

5 Monroe's application for directions was supported by an affidavit of the solicitor Ben Duggan sworn on 7 July 2000. That affidavit made it plain that Monroe's request for summary relief was based on a finding of fact made by myself in related proceedings between the parties in respect of which I delivered reasons for decision on 23 February 2000 ([2000] SAWCT 10). Mr Duggan's affidavit noted that the worker had appealed my earlier decision but that the appeal had subsequently been withdrawn.

6 Before me on 14 July 2000, Mr Swan counsel for Monroe, submitted that if the Tribunal was not disposed to strike out or permanently stay the worker's notice of dispute then s 36(4)(b) of the Act empowered the Tribunal to direct that Monroe be relieved of the obligation to continue weekly payments to the worker pending the determination of the s 36(1)(b) dispute.

7 My decision in [2000] SAWCT 10 concerned the validity of an earlier s 36(1)(b) notice issued to the worker by Monroe on 29 June 1998 and the validity of a further determination made by Monroe on 3 December 1998 to the effect that the worker had not suffered any permanent disability or impairment of his arms as a consequence of his compensable disability. It was not in dispute in those proceedings that the worker suffered from the effects of a long standing condition of rheumatoid arthritis. Nor was it disputed that the worker's said condition had been aggravated from time to time by his work activities at Monroe. Claims for compensation in respect of those aggravations had from time to time been submitted by the worker and accepted by Monroe. Put broadly, at issue in those proceedings was whether the work aggravations had resulted in any long term incapacity or disability.

8 My decision in [2000] SAWCT 10 delivered on 23 February 2000 incorporated the following findings:-

"43 On the whole of the evidence I am satisfied that the worker has now reached a point where his ongoing symptoms are attributable solely to his underlying condition and not the effects of his work aggravations. Put another way, I am satisfied that his continuing symptoms can no longer be said to arise from his employment at Monroe. I find that he reached this point sometime within the past twelve months. I am not persuaded on the evidence that this point had been reached by June 1998. I am thus not persuaded that he had by then ceased to be incapacitated by his compensable disabilities. I set aside Monroe's notice dated 29 June 1998.

44 I am satisfied on the evidence that the worker had by June 1998 recovered from any employment related epicondylitis condition affecting his elbows. I accept and find that he does have some continuing symptoms in the elbows, but these symptoms are solely attributable to his rheumatoid arthritis.

45 It follows from my finding that the worker's ongoing symptoms are attributable solely to his underlying condition of rheumatoid arthritis without contribution from his work aggravations that the worker has no entitlement to lump sum compensation pursuant to s 43. That is to say, he does not have any assessable ongoing permanent disability resulting from his compensable disabilities. I confirm Monroe's determination dated 3 December 1998."

9 At the commencement of that hearing it was agreed by counsel representing the parties, being the same counsel who argued the matter before me on 14 July 2000, that I would, inter alia, determine on the evidence presented whether the worker's compensable disability had at any time since 29 June 1998, this being the date of Monroe's earlier s 36 notice, ceased to be a material cause of the worker's incapacity for work. Mr Saies, for the worker, tendered correspondence between the worker's solicitors Greenway and Co and Monroe's solicitors Austin Hodge Duggan (Exhibit A3) identifying this as one of the issues to be dealt with at the hearing. S 88DA of the Act permits the Tribunal to enlarge the scope of proceedings to include such questions, and this is a good illustration of how that provision was meant to be utilised. Whilst the parties were obviously seeking a factual finding on this issue, it was made clear that they were not asking me to make any consequential orders based on such finding.

10 Before me on 14 July 2000, Mr Saies submitted that the Tribunal did not have jurisdiction to hear Monroe's application for summary relief. His jurisdictional concerns were principally directed towards Mr Swan's reliance on s 36(4)(b) of the Act.

11 S 36(4) of the Act provides:-

"(4) If a worker lodges a notice of dispute disputing a decision by the Corporation to discontinue or reduce weekly payments under this section within one month after the worker receives notice of the decision -

(a) the operation of the decision is suspended, and the weekly payments must continue or, if the decision has already taken effect, be reinstated (to their previous level), until the dispute first comes before a conciliator; and

(b) the Tribunal may further suspend the operation of the decision (from time to time) to allow a reasonable opportunity for resolution of the dispute by conciliation, arbitration or judicial determination (as the case requires) without prejudice to the worker's financial position in the meanwhile."

12 On 30 May 2000 the parties appeared before a Conciliation and Arbitration Officer. Noting that the worker had at that stage lodged an appeal against my decision handed down on 23 February 2000 and that all issues on the worker's further s 36(1)(b) notice remained unresolved, the Conciliation and Arbitration Officer, presumably at the request of the parties, completed a Form 7 Request for Judicial Determination from conciliation and ordered, pursuant to s 36(4)(b), that in the interim weekly payments be continued "for the period of the adjournment".

13 S 36(4)(b) invests in the Tribunal a discretion to suspend the operation of a compensating authority's disputed decision to discontinue or reduce weekly payments in order to allow a reasonable opportunity for resolution of the dispute by the means provided by the Act without prejudice to the worker's financial position in the meanwhile. I think the intent of this provision is that a worker's entitlement to weekly payments be preserved pending the resolution of the dispute, with a discretion in the Tribunal to remove that entitlement when the circumstances warrant it.

14 Mr Saies acknowledged that the Tribunal would have jurisdiction to hear Monroe's argument based on s 36(4)(b) when the Form 7 was referred to a Presidential Member to consider the request to proceed to judicial determination, but contended that because the matter had come before me by means of a separate process and for a different purpose, the discretion given to the Tribunal under s 36(4)(b) did not come into play. Monroe would have to wait, Mr Saies contended, until the s 36(1)(b) dispute next came before a Presidential Member in the normal course of the dispute resolution process.

15 I reject this restricted application of s 36(4)(b). The provision is not explicit, allowing the Tribunal to exercise its discretion "from time to time", but there seems to me no logical reason why those occasions ought to be limited to only occasions "in the normal course". That notion itself begs the question as to what criteria would be used to determine when a matter is before a Presidential Member "in the normal course".

16 S 36(4)(b) is equally non-explicit as to what matters the Tribunal should take into account in the exercise of its discretion, but it has been said that in the usual case the proper exercise of the Tribunal's discretion would require suspension of the operation of the relevant decision unless there was compelling reason why this was not appropriate: per DP Judge Cawthorne in David Gregory Foster v WorkCover Corporation/MMI Workers Compensation (SA) Pty Ltd (Adelaide Pest Control) JD107/1999. Other cases suggest that the worker's conduct is an important factor: Chirnside v State of South Australia (Primary Industries and Resources SA) JD115/1999. In Ciampi v State of South Australia (Port Pirie Regional Health Service Inc) JD117/1999 DP Judge Gilchrist suggested that the policy behind s 36 (4)(b) was to "... preserve the worker's entitlement pending resolution of the dispute whilst at the same time promoting the expeditious resolution of the dispute."

17 Given the intent and past application of s 36(4), I do not think there is any real risk of compensating authorities inappropriately seeking to "appeal" orders made by Conciliation and Arbitration Officers pursuant to s 36(4)(b) by the immediate issuing of applications for directions. Mr Saies' assertion that that is all that this application for directions is about (tr 29) is patently wrong.

18 I am satisfied that the Tribunal does have jurisdiction to hear Monroe's application for directions, including its request for relief pursuant to s 36(4)(b).

19 Mr Saies submitted that my previous finding with respect to the cessation of the worker's compensable incapacity for work some time in 1999 was a non-critical finding, was purely dicta, and therefore was not caught by the principle of either issue estoppel or res judicata.

20 Mr Saies further submitted that it was the worker's condition as at 10 April 2000 that was relevant, the issue being whether he had ceased to be incapacitated by his compensable disability as at that date, and that it might well be that the worker's circumstances had changed subsequent to the delivery of my decision on 23 February 2000. Accordingly, he submitted, it was inappropriate to deny the worker the opportunity to adduce further evidence as to the worker's position as at 10 April 2000.

21 Mr Saies further submitted that the worker needed an opportunity to consider whether there was scope to challenge the validity of the s 36(1)(b) notice given to the worker on 10 April 2000.

22 Mr Swan submitted that whether my previous finding as to the cessation of the worker's compensable incapacity for work was obiter dicta or otherwise was irrelevant. What was important, he said, was that this was a judicial finding on a matter in dispute between the parties; a finding made on the evidence after extensive argument on an issue agitated by the parties to be a relevant issue. In those circumstances, Mr Swan submitted, the same issue (viz as to whether and if so when the worker had ceased to be incapacitated for work by his compensable disabilities) was not open to argument again between the same parties, and any further process calling into question my finding on that issue amounted to an abuse of process.

23 There is no doubt that the earlier hearing proceeded before me on the basis that I would, inter alia, make a finding as to whether, at any time after 29 June 1998, the worker had ceased to be incapacitated for work as a result of his compensable disability. Whether or not this was, as Mr Swan submitted, the main issue in the case, what is irrefutable is that it was an issue upon which the parties sought, and received, a finding. This was clarified with counsel at the outset (tr 20 - 21), and again confirmed with counsel at the commencement of their addresses (tr 345 - 346).

24 Although the worker is bound by my previous finding that he ceased to be incapacitated for work by his compensable disabilities some time in 1999, he may potentially be able to demonstrate a change in his circumstances between the date of my decision, 23 February 2000, and the date of the s 36(1)(b) notice, 10 April 2000. Alternatively, he may be able to otherwise challenge the validity of the s 36(1)(b) notice. There is, as yet, no indication that he will be able to do this, but it is, I think, sufficient on an application for summary relief that he show the possibility of doing so.

25 With respect to the specific orders sought by Monroe:-

1. An order that the worker ceased to be incapacitated for work by work aggravations by 23 February 2000.

In my decision handed down on 23 February 2000 there is a specific finding that the worker had by that date ceased to be incapacitated for work as a result of his earlier work aggravations. However, the earlier matter proceeded on the basis that the parties requested only that I would make a finding on this issue. I was not asked and it was not anticipated that I would make any consequential orders based on that finding. Indeed, it was contemplated that I would not - see in particular tr 345 - 346. This order sought by Monroe amounts to a consequential order and I decline to make the order sought.

2. An order that the worker's entitlement to income maintenance payments pursuant to the Workers Rehabilitation and Compensation Act (SA) 1986 ceased on and from 23 February 2000.

My aforesaid remarks apply with respect to this request. I decline to make such an order on the basis that it was not contemplated by the parties that I would make any consequential orders based on the factual finding requested by the parties.

3. An order that the worker's notice of dispute be struck out or permanently stayed.

The authorities are clear that summary relief ought be granted only when it is clear that there is nothing to argue about, and whilst there is no indication yet that the worker will be able to successfully challenge the further s 36(1)(b) notice, I think he should be given the opportunity to do so.

4. An order that in the interim weekly payments to the worker be suspended pursuant to s 36(4)(b).

There is substance in Mr Swan's submission that thus far the worker has failed to identify any ground upon which Monroe's determination of 10 April 2000 might be set aside. This is not the usual s 36(1)(b) dispute. From Monroe's viewpoint, the worker has already had the benefit of s 36(4)(b) during the earlier determination of what might be said to be the substantive issue viz as to whether his ongoing incapacity results from the compensable work aggravation of his rheumatoid arthritis condition. A conclusive and binding finding has been made on that issue. The worker's notice of dispute simply challenges that finding.

In the circumstances, at least until the worker can show that there is some substantive basis for him disputing the discontinuance of his payments, I think that this is an appropriate case for Monroe to be relieved of the obligation to make further weekly payments. I so order. This does not, of course, prevent the worker from asking the Tribunal to revisit this issue, and I give liberty to apply in this regard. It would seem to me, however, to be in the interests of all concerned to have the s 36(1)(b) dispute itself brought on for hearing as soon as possible.

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.