(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party."
10 Rule 6.24 of the UCPR differs slightly from the old Part 8 r 8 of the SCR.
11 The new circumstance is that since the Registrar gave her decision, WorkCover has become a party to the proceedings in the Commission. WorkCover submitted that once it became a party to the proceedings in the Commission and Appeal Panel, it ought to have been joined as a party to these proceedings. Section 106(1) and (3) of the Act gives WorkCover a right to be heard in any proceedings before the Commission and it may apply for an order which any party may apply in those proceedings. I do not read this to mean that WorkCover becomes a party to those proceedings but rather gives it a right to be heard. WorkCover has exercised its right to be heard after these decisions subject to judicial review were determined. While WorkCover would be entitled to be heard should the matter be remitted to the Registrar and/or the Appeal Panel, it has not actually made any submissions before the Registrar or the Appeal Panel. I do not think that by adopting the course in the Commission gives WorkCover an automatic right to be joined as a party in these proceedings. Certainly if it has been heard in relation to the matters subject to judicial review, I may be entitled to be joined as a party in these proceedings.
12 The general and specific functions of the WorkCover Authority are set out in ss 22 and 23 respectively of the Act. It is not necessary to repeat them in full. WorkCover is responsible for the day to day operation matters relating to the scheme to which any such legislation relates. WorkCover is also required to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and on the performance of the schemes to which that legislation relates - s 22(1) the Act. WorkCover has a specific function of monitoring the operation of arrangements under the workers compensation legislation, including those relating to workers compensation insurance - s 23(1)(l) the Act.
13 WorkCover has a general function of undertaking consultation it thinks fit in connection with current or proposed legislation relating to any such scheme. WorkCover submitted that one such scheme is set out in Chapter 7 of the Act. Chapter 7 deals with claims procedures and which includes the provisions relating to the proper conduct of medical assessments and appeals to the Appeal Panel relating to such assessments. WorkCover also has a power to arrange for the training and provision of information to approved medical specialists, to promote accurate and consistent assessments under Part 7 of the Act - s 320(4). From time to time, WorkCover issues guidelines with titles including "WorkCover Medical Assessment Guidelines" and WorkCover Guides for the Evaluation of Permanent Impairment".
14 A senior legal officer for the WorkCover Authority, Stephen Davidson, deposed that WorkCover's interest is of a general kind, given the wider significance which the Court's decisions on the legal issues raised in the present proceedings will have for decision making by the Panel and the Commission for other claims under the Act and for the effective operation of the scheme by which medical assessments are made under the Act.
15 Inghams objected to WorkCover being joined as a party on the basis that WorkCover does not fall into a special category. Inghams further submitted that WorkCover is not a person who ought to be joined nor is its joinder necessary to the determination of all matters in dispute. According to Ingham's there will be both a plaintiff and a defendant to argue the matter. Ingham relied upon Australian Railways Union v The Victorian Railways Commissioners and Others (1930) 44 CLR 319 and Southern Cross Pipelines Australia Pty Ltd & Ors v Kenneth Comninos Michael Western Australian Independent Gas Pipelines Access Regulator & Anor [2002] WASC 149 (12 June 2002).
16 In Australian Railways Dixon J, at 331, stated that normally parties, and parties alone, appear in litigation except by a very special practice when intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. This passage refers to allowing appearances of Counsel to be heard on a particular issue but not being joined as a party. This case is not of great assistance as s 78 has since been included in the Judiciary Act 1976. The local rules, being the former SCR and the current UCPR, permitting the joinder of parties have undergone refinement since 1930.
17 Inghams submitted that Southern Cross Pipelines, a decision of Heenan J in the Supreme Court of Western Australia, is correct when he says at [4]:
"The general rule is that a plaintiff who wishes to pursue a cause of action against a defendant or defendants is entitled to pursue his remedy against that defendant or those defendants alone and cannot be compelled to proceed against other persons whom he has no desire to sue - Tollfus Meig Et Compagnie SA v Bank of England [1951] Ch 33 but, under this rule, a person who is not a party may be added as a defendant against the wishes of the plaintiff, either on the application of a defendant or on his own intervention or by the court of its motion. The jurisdiction of the court under the rule is to some extent discretionary. As will be seen, there is a variety of views about the breadth of the rule but it is clear that the rule does not give the power to join a party whenever it is just or convenient to do so, but only where that party ought to have been joined or his or her presence is necessary to ensure that all questions between the original parties are effectually and completely disposed of: Vandervell Trustees Ltd v White [1971] AC 912 at 936 …"
18 Order 18 r 6(2) of the Rules of the Supreme Court of Western Australia, differs slightly from r 6.24 UCPR in that the former embodies further consideration, namely that the Court may on such terms as it thinks just. However, the passage quoted above is instructive.
19 WorkCover referred to United States Tobacco Co v Minister for Consumer Affairs & Ors (1988) 20 FCR 520, The State of Victoria v Sutton (1998) 195 CLR 291 and Campbelltown City Council v Vegan [2004] NSWSC 1129.
20 Vegan is instructive. In Vegan the Council brought proceedings pursuant to s 69 of the Supreme Court Act for a declaration that the decision, which was delivered on 11 December 2003, by an Appeal Panel constituted under the Act involved jurisdictional error and was beyond power. Orders were sought quashing that decision, and required the Panel to carry out its functions, in relation to the review, in accordance with the law. This is similar to the judicial review sought in these current proceedings. In both cases the interpretation of s 327 is in issue. In Vegan, WorkCover was joined as a party. There was no opposition to it being so joined.
21 At [73] Wood CJ at CL stated:
"This, however, does not foreclose the present issue, for the reason that the WorkCover Authority has advanced a construction of ss 327 and 328, which was not put forward by the first Defendant, and which was not accepted by the Plaintiff, but which is critical for an understanding of the way that the Appeal Panel is to go about its task."
22 WorkCover's submissions were set out in [74] and [75] of the judgment. Wood J in [76] saw some force in WorkCover's submission for the four reasons mentioned.
23 I drew the parties attention to Holloway v Chairperson of the Residential Tribunal [2001] NSWCA 209. In Holloway, one party did not appear. The issue in dispute was the interpretation of s 63 of the Residential Tribunal Act. At [42] and [43] the NSWCA stated that it was not satisfactory and that there was no contradictor to assist the Court. The Court commented that the Chairperson, who was a party to the proceedings, had perhaps misunderstood his or her position in filing a submitting appearance. In this current case Holloway differs as WorkCover is not already a party to the proceedings.
24 In the current proceedings before me, the named second to fifth parties can do no other than put in a submitting appearance as they may yet be called upon to determine the matter. WorkCover is in a position to put submissions on the operation of the legislation as to the interpretation of the legislation, as it helpfully did in Vegan. Inghams and Ms Iogha will put submissions to the Court that are favourable to them, but those submission will not necessarily be the same as those of WorkCover. It is my view that the Court will be much assisted by the submission put forward by WorkCover. For these reasons, it is my view that WorkCover ought to have been joined as party. WorkCover will assist in ensuring that the issue of interpretation of legislation will be effectively and completely adjudicated upon. I make order and order that the WorkCover Authority of New South Wales be joined as a defendant in the proceedings pursuant to r 6.24 of the UCPR.
25 As I have come to a different conclusion to that of the learned Registrar. I make orders (1) in both motions filed 1 July 2005. I make no orders as to costs both before the Registrar and before me.