Tasmanian Civil and Administrative Tribunal Act 2020; ss 10, 96, Sch 1.

Re Reference No 1359/199 by State of Tasmania v Luckhurst [2000] TASSC 176;

TCN v Hays Specialist Recruitment (Australia) Pty Ltd [2024] TASCAT 150;

FG v Lady Gowrie Tasmania Inc. [2024] TASCAT 189.

The decision has been anonymised for the purpose of publication.

1. This decision is in relation to an application for a person to be joined as a party to proceedings before the Tribunal.
2. The worker made a claim for compensation in relation to a motor vehicle accident on 15 September 2021, which occurred in the course of his employment as a truck driver. The accident involved another vehicle that was travelling on the wrong side of the road and which collided with a trailer being towed by the worker's vehicle.
3. The claim for workers compensation was made on 1 October 2021. The initial workers compensation certificate certified the worker to be suffering from anxiety, depression and work related stress, consistent with having been caused by the motor vehicle accident. The claim for compensation was accepted by the employer and payments of compensation were made.
4. In August 2023 the employer served on the worker a certificate under s 86(1)(c) of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act). The certificate was issued by Dr Peter Miller, Consultant Psychiatrist, who had examined the worker and certified that in his opinion the worker had wholly or substantially recovered from the effects of the work injury, and that any ongoing incapacity was due other matters.
5. Soon after, the employer filed a referral under s 88 of the WRC Act for review of the weekly payment being made to the worker. The employer sought a determination that the worker's weekly payment be terminated or reduced to zero pursuant to s 88(2)(a) of the WRC Act.
6. In accordance with s 86 of the WRC Act, and in reliance of Dr Miller's s 86(1)(c) certificate, the employer then terminated the worker's payments of weekly compensation.
7. In October 2023 the worker referred the termination of his weekly payments to the Tribunal under s 86(4) of the WRC Act. The employer's s 88 referral and the worker's s 86(4) referral are presently before the Tribunal.
8. The employer has, with the support of the worker, made an application for the driver of the other vehicle that was involved in the worker's motor vehicle accident on 15 September 2021 to be joined as a party to the s 86(4) and s 88 proceedings before the Tribunal.
9. For the sake of brevity, because the employer and the worker have made joint submissions in support of the application, I will refer to them jointly as 'the applicant' as far as this application is concerned. I will refer to the driver of the other vehicle in the motor vehicle accident on 15 September 2021 as 'the respondent.'
10. The respondent does not wish to be joined as a party to the Tribunal proceedings.

1. The application to join the respondent to the proceedings has been brought under s 45(3) of the WRC Act which provides as follows:

The Tribunal may, in its discretion, join a person as a party to the proceeding if the Tribunal is satisfied that that person has a sufficient interest in the settlement of the matter to which the claim for compensation relates.

2. In TCN v Hays Specialist Recruitment (Australia) Pty Ltd [2024] TASCAT 150 (Hays) at [8] Deputy President Grueber observed:

Section 45(3) refers to joinder where a person has a sufficient interest in "settlement of the matter". On its face that might appear to limit the nature of the joinder to conciliation. The meaning of a particular legislative provision will be determined with regard to text, context and purpose, read in the context of the surrounding provisions and the legislative scheme: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 [47] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 [69]. Section 45 is contained within a provision dealing with hearing and determination of claims. It falls within Div 3 of Pt V of the Act, which deals with arbitration of disputed claims. I am satisfied that 'settlement' in s 45(3) means resolution of a claim, howsoever achieved, not simply a settlement by agreement of the type contemplated in s 132A of the Act. That conclusion is reinforced by the use of "persons who appear...from [a referral] to have an interest in the settlement of the claim for compensation" in s 42(4) and (5) to identify who should be given notice of a referral, which in conjunction with s42A and s 45(2) establishes who is a party both for conciliation and for arbitration under Pt V.

3. Section 45(3) of the WRC Act requires that a two-stage process be undertaken by the Tribunal in deciding whether a person should be joined as a party to a proceeding. First, the Tribunal must decide whether the person proposed to be joined to the proceedings has a sufficient interest required by s 45(3), and, if so, the Tribunal must then determine whether to exercise the discretion to join that person as a party: see Re Reference No. 1359/1999 by State of Tasmania v Luckhurst [2000] TASSC 176 (Luckhurst).
4. The joint submissions of the employer and the worker are directed towards s 45(3) of the WRC Act. The submissions of the respondent, however, are directed towards s 96 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act), which also provides for joinder of parties in proceedings before the Tribunal.
5. Section 96 of the TASCAT Act is broader than s 45(3) of the WRC Act. Section 96(1) of the TASCAT Act provides:

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that - > > (a) the person should be bound by, or have the benefit of, a decision of the Tribunal in the proceedings; or > > (b) the person's interests are affected by the proceedings; or > > (c) for any other reason it is desirable that the person be joined as a party.

6. In FG v Lady Gowrie Tasmania Inc. [2024] TASCAT 189 (FG v Lady Gowrie), on an application to join the Motor Accidents Insurance Board to a proceeding under the WRC Act, Deputy President Grueber referred to the difference between s 45(3) of the WRC Act, and s 96 of the TASCAT Act at [13]-[15]:

Sections 96 and 45 each permit joinder on the basis of interest. In s 96(1)(b) the interest must be an interest affected and in s 45(3) the interest must be sufficient. For the purposes of this decision it is not necessary to distinguish between an interest affected and a sufficient interest. Section 96 is broader than s 45(3) in that it also permits joinder where the person should be bound by or have the benefit of a decision of the Tribunal and, as a catch-all, for any other reason that is desirable. > > Section 7A of the TASCAT Act provides for primacy of relevant Acts over the TASCAT Act in respect to any inconsistency: > > 7A. Inconsistency with relevant Act > > If there is an inconsistency between a provision of a relevant Act and a provision of this Act, the regulations or the Tribunal rules, the provision of the relevant Act prevails to the extent of the inconsistency.

The WRC Act is a relevant act under Schedule 1 of the TASCAT Act. It is therefore arguable that the only qualification for joinder in proceedings under the WRC Act is that of sufficient interest. Given the conclusions that I have reached, it is not necessary for me to consider whether the MAIB should be joined on the additional bases in s 96.

1. In relation to the Tribunal proceedings, the worker and employer have each filed psychiatric expert evidence, and copies of reports have been annexed to the respondent's submissions in relation to this application. The competing medical opinions each contain a history taken from the worker in relation to his involvement in another work-related motor vehicle accident, about a week after the motor vehicle accident on 15 September 2021 (the second accident). The worker said the employer blamed him for the second accident, there was a meeting with the employer, and he was issued with a warning by his employer (the action after the second accident).
2. The expert medical evidence that the employer relies upon in support of the termination of weekly payments under s 86(1)(c) of the WRC Act and the s 88 referral, briefly put, is that the worker sustained a psychological injury in the motor vehicle accident on 15 September 2021, but that at the time the weekly payments of compensation were terminated under s 86(1)(c), the worker had wholly or substantially recovered from the effects of that injury, and any ongoing incapacity resulted from the second accident and/or the action after the second accident.
3. The expert medical evidence that the worker relies upon in relation to the same proceedings is that the worker continues to be incapacitated as a result of the motor vehicle accident from 15 September 2021.
4. The respondent admitted liability for the motor vehicle accident on 15 September 2021, but does not admit that the worker suffered any loss or damage as a result of that accident.
5. On 12 December 2023 the worker commenced common law proceedings in the Supreme Court for damages against the respondent in relation to the motor vehicle accident on 15 September 2021.
6. On 23 August 2024, the employer commenced recovery proceedings in the Supreme Court against the respondent in accordance with s 134 of the WRC Act, which provides:

1. Subject to this section, where an injury for which compensation is payable to a worker is caused under circumstances which, but for section 138AB , would create a liability in some person other than the employer to pay damages in respect of that injury to that worker, the employer may recover indemnity against that person in respect of the compensation paid by the employer to the worker in respect of that injury. > > (2) Subject to subsection (3) , where the circumstances referred to in subsection (1) create the liability to pay damages both in the employer and some other person, whether arising as a result of a tort or otherwise, the employer has the like right of indemnity or contribution against that other person in respect of the compensation paid by the employer as if that compensation were part of those damages. > > (3) Where an injury to a worker arises partly by his or her own fault and partly by the fault of another person, the amount recoverable by the employer under this section by way of contribution or indemnity is reduced to such extent as the Supreme Court thinks just and equitable having regard to the degree of the worker's responsibility for the injury.

The extent to which the respondent has an interest in the proceedings

1. The applicant says that the respondent has a sufficient interest in the settlement of the matter to satisfy that requirement under s 45(3), and relies upon Luckhurst at [15] where Crawford J determined that the third party in that case had a sufficient interest in the determination of that matter because of the likely consequences to her if the employer lost the reference, in which case the employer would remain liable to pay the worker's medical and other services, and the employer had already foreshadowed that recovery would be sought against the third person pursuant to s 134 of the WRC Act. Crawford J considered that the third party had "a direct interest in the determination of the reference". His Honour also noted that no finding or order of the Tribunal would directly result in the third party being required to indemnify the employer, and that such an outcome could only be achieved by the employer taking separate proceedings against the third party.
2. The applicant says that, the employer having already foreshadowed recovery against the respondent pursuant to s 134 of the WRC Act, and following Luckhurst, the respondent does have a sufficient interest in the present proceedings.
3. The respondent says, firstly, that she does not have any interest at all in the matter before the Tribunal because of the issues in the proceedings, and in the alternative, that if she does have an interest, it is not a 'sufficient interest' as her rights, interests or benefit are not affected by settlement or determination of those referrals. Further, the respondent says that none of the elements of s 96 of the TASCAT Act are satisfied.
4. Deputy President Grueber in FG v Lady Gowrie referred to the inconsistency between s 45(3) of the WRC Act and s 96 of the TASCAT Act, and noted the application of s 7A of the TASCAT Act where such an inconsistency arises. It was not necessary in that case to resolve the question of whether the only qualification for joinder of a person to proceedings under the WRC Act is the existence of 'sufficient interest' pursuant to s 45(3).
5. In the present case that question needs to be resolved. The respondent has submitted that s 45(3) 'ought to be informed' by s 96 of the TASCAT Act, and that the elements of s 96 ought to be considered in the first stage of the Tribunal's enquiry relating to the sufficiency of a person's interest in the settlement of the matter to which the claim for compensation relates under s 45(3).
6. There is an inconsistency between s 45(3) of the WRC Act and s 96 of the TASCAT Act. The inconsistency arises in relation to the first stage of the process that the Tribunal must undertake in deciding whether a person should be joined as a party to proceedings under the WRC Act. As DP Grueber noted in FG v Lady Gowrie, s 96 is broader than s 45(3). Section 7A of the TASCAT Act provides, where there is such an inconsistency, the provision of the relevant Act prevails to the extent of the inconsistency. The WRC Act is a relevant Act for the purposes of s 7A of the TASCAT Act. Section 45(3) of the WRC Act prevails over s 96 of the TASCAT Act.
7. It is my view that, in considering whether to join a person as a party to a proceeding before the Tribunal under the WRC Act, the Tribunal is only required to determine, pursuant to s 45(3) that the person has a sufficient interest in the settlement of the matter, before the Tribunal then determines whether to exercise its discretion to join that person as a party.
8. There are consequences to the respondent which would potentially flow from the outcome of the s 88 and s 86(4) referrals that are presently before the Tribunal. If the worker succeeds on the s 86(4) referral, and the employer does not succeed on the s 88 referral, the likely determination of the Tribunal would require the employer to back pay the worker's weekly payments to the date of the termination by the employer, and the employer would be obliged to continue to pay weekly payments in accordance with the WRC Act into the future.
9. I accept that no finding or order of the Tribunal would directly result in the respondent being required to indemnify the employer (see Luckhurst at [15]). The employer has already initiated proceedings in the Supreme Court pursuant to s 134 of the WRC Act, seeking to recover from the respondent payments made by the employer to the worker in respect of his claim for compensation. Whether the employer does, or does not have, an ongoing liability to pay weekly payments of compensation to the worker from the date of the s 86(1)(c) termination will affect the amount of compensation ultimately paid by the employer to the worker, and consequently the amount the employer may seek to recover from the respondent.
10. I am satisfied that the respondent has a sufficient interest in the settlement of the matter to which the claim for compensation relates.

1. The applicant says that a joinder of the respondent would afford the respondent procedural fairness in determination of the right of the worker to receive compensation under the WRC Act, and would be consistent with the objects of both the WRCT Act (s 2A) and the TASCAT Act (s 10).
2. The applicant also says that joinder of the respondent would expedite beneficial resolution of the matter and avoid further delay (which the applicant says has been caused by the respondent's failure to respond to or engage with the employer's solicitors on a number of occasions).
3. Finally, the applicant also says that joinder of the respondent may increase the prospects of a negotiated outcome between all parties, by facilitating rights of common law liability and contribution on recovery in the conciliation process.
4. The respondent says that the applicant's motivation for seeking to join her as a party to the Tribunal proceedings is to require the respondent to contribute to any settlement, and that the Tribunal proceedings ought not be used as a forum to facilitate an overall resolution of matters between the parties where many of those matters fall outside the Tribunal's jurisdiction.
5. The respondent also says that she ought not be forced to participate in proceedings against her will where she would necessarily expend time and incur costs dealing with issues where she has nothing to do with the proceedings on foot, and would not be bound by any Tribunal determination.
6. The respondent also says that joinder will potentially add to the length and associated cost of Tribunal proceedings because she would need to have the worker independently assessed, which would delay the matter being listed for conciliation.
7. Finally, the respondent says that her participation in the proceedings before the Tribunal will have the potential for an issue estoppel to arise which will unnecessarily complicate the two sets of proceedings that are currently on foot in the Supreme Court.
8. I agree that the applicant has raised some matters that are supportive of the respondent being joined as a party to the proceedings before the Tribunal. In particular, if the respondent was to participate in settlement negotiations that resolved the proceedings that are before the Tribunal, it would be unlikely that there could later be any dispute by the respondent as to the reasonableness of any settlement sum agreed in the course of those negotiations in the context of proceedings for recovery under s 134 of the WRC Act.
9. However, the issues that are before the Tribunal are relatively limited compared to the issues that will likely be ventilated in the Supreme Court proceedings.
10. What the Tribunal will be required to determine in the s 86(4) referral is whether the worker has recovered from the claimed injury in accordance with the s 86(1)(c) certificate, on which the termination of the worker's weekly payments was based. If the Tribunal rules against the employer on the s 86(4) referral, the question that will then need to be determined is the extent of the worker's capacity for work, and whether there ought to be a reduction in the amount of his weekly payments.
11. The proceedings before the Tribunal will therefore cover limited aspects of the worker's entitlement to compensation - potentially only the worker's entitlement to, and the amount of, weekly payments from the date of termination in about August 2023 to the date of any determination of the Tribunal, and the rate of weekly payments moving forwards from that date.
12. An assessment of the worker's entitlement to weekly payments by the Tribunal will be based on the question of whether the worker has wholly or substantially recovered from the work injury for which payments of compensation were made. Even if the respondent were to participate in the proceedings before the Tribunal, there would be no basis for the Tribunal to consider any questions raised by the respondent about foundational liability arising from the accident on 15 September 2021.
13. In the light of these factors, I am not satisfied that the discretion to join the respondent to the proceedings before the Tribunal should be exercised. The application is dismissed.
14. The applicant and the respondent in their written submissions raised the issue of costs. I will hear any costs application if that becomes necessary.