Inghams Enterprises P/L v Iogha & 4 Ors

CATCHWORDS : Join WorkCover as a party - review

Uniform Civil Procedure Rules 2005 - R 6.24.1 LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1988 - s 327(3)

Australian Railways Union v The Victoria Railways Commissioners and Others (1930) 44 CLR 319 Campbelltown City Council v Vegan [2004] NSWSC 1129 Holloway v Chairperson of the Residential Tribunal [2001] NSWCA 209 CASES CITED : R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 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) State of Victoria v Sutton (1998) 195 CLR 291 United States Tobacco Co v Minister for Consumer Affairs & Ors (1988) 20 FCR 520

Inghams Enterprises Pty Ltd (Plaintiff)

Diane Allison Iogha (First Defendant)

Bruce Mamanamey PARTIES : (Second Defendant)

Edward Korbel (Third Defendant)

Registrar, Workers Compensation Commission of NSW (Fifth Defendant)

Mr G M Watson SC with Mr D G Saul (Plaintiff)

COUNSEL : Ms M Allars (WorkCover)

Lucas & Staggs Lawyers (Plaintiff) SOLICITORS : Crown Solicitor (Second to Fifth Defendants)

LOWER COURT JUDICIAL OFFICER : Assistant Deputy Registrar Walton

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30095/2004 - INGHAMS ENTERPRISES PTY LTD v DIANE ALLISON IOGHA & 4 ORS

JUDGMENT (Join WorkCover as a party - review) 1 HER HONOUR: The issue is whether WorkCover Authority of New South Wales (WorkCover) should be joined as a party to these proceedings where Inghams is seeking judicial review. Inghams oppose the orders sought. 2 The plaintiff is Inghams Enterprises Pty Ltd (Inghams) is the plaintiff. The first defendant is Diane Allison Iogha. She neither consents nor opposes the orders sought. The second defendant is Bruce Mamanamey. The third defendant is Edward Korbel. The fourth defendant is Kenneth Hume. The fifth defendant is the Registrar, Workers Compensation Commission of NSW. The second defendant is an arbitrator, the third and fourth defendants are members of the Medical Appeal Panel. 3 Before me are two notices of motion both filed by WorkCover on 1 July 2005. In the first motion WorkCover seeks that it be joined as a defendant in the proceedings pursuant to Part 8 r 8 of the Supreme Court Rules 1970 (SCR). WorkCover relied on the affidavit of Stephen David Davidson sworn 19 July 2005. In its second motion WorkerCover seeks an order that the whole of the decision of Assistant Registrar Walton dated 3 June 2005, dismissing the notice of motion filed by it on 9 March 2005 for joinder as a defendant in the proceedings, be discharged pursuant to Part 61 r 3(1) of the SCR on the basis of changed circumstances. Further, WorkCover contends that seeking to discharge the Registrar's orders is consequential relief. 4 Whether this is a review or a further interlocutory application brought in the light of new circumstances is open to debate. Since the Registrar made her decision the Uniform Civil Procedure Rules 2005 (UCPR) have come into effect and that means that a new rule similar to Part 8 r 8 of the SCR applies. Because of these two changes, the approach I have decided to take is that I should inform myself of all the material before the Registrar and the new circumstance. I will make my own decision based on the material before me and after having the benefit of counsel's submissions. My reasons are prepared with expediency as the hearing of judicial review is listed on 31 August 2005. 5 In these judicial review proceedings, Inghams seek that two decisions be quashed, namely the decision made by the Registrar of the Workers Compensation Commission where the matter was referred to the Medical Appeal Panel pursuant to s 327(3) of the Workplace Injury Management and Workers Compensation Act 1988 (the Act); and a subsequent decision of the Medical Appeal Panel in number WCC 6329-2003 in the matter of Diane Iogha v Inghams Enterprises Pty Limited dated 21 September 2004. Inghams says that both decisions involve errors of the face of the record and jurisdictional errors. Inghams seek orders that both the Registrar and the Medical Review Panel carry out their functions in accordance with the Act and law. 6 As the judicial officer hearing the application for judicial review may refer the matter back to either the Medical Appeal Panel and/or the Registrar, they properly made submitting appearances (save as to costs) in accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. WorkCover can make submission without offending this principle. 7 Assistant Deputy Registrar Walton in her reasons for decision dated 3 June 2005 stated [12-13]: "12. It is clear from the material submitted that joining WorkCover to the present proceedings would assist WorkCover to meet its statutory obligations. Thus the joinder would be just and convenient for WorkCover, but to be successful the joinder of WorkCover must be "necessary to ensure that all matters in dispute… be effectually and completely determined" [ SCR Pt 8 r 8]. The question to be considered then is what does it mean to say that a party proposed to be joined is necessary to ensure that all matters in the proceedings may be effectively and completely determined and adjudicated upon.

13. The plaintiff has submitted that WorkCover is not a necessary party and ought not to be joined as the proceedings seek no relief against WorkCover. The plaintiff concedes that there is a differing of opinion in the cases as to whether an application to be joined can succeed if no relief is sought against the proposed defendant [see Gordian Runoff Limited v Price [2004] NSWSC 535 at 14]. However, they submit that "it seems to be generally agreed that no application, upon Part 8 rule 8(1)(b) can succeed if the persons rights against or liabilities to any party in respect of the subject matter of the action are not affected. Pegang Mining co Limited v Choong Sam [1969] 2 MLJ 52, 55-6 Diplock, LJ." The plaintiff argues that WorkCover's rights or liabilities in respect of the parties will not be affected by resolution of the proceedings and accordingly part 8 rule 8 does not apply and WorkCover should not be joined. 8 The learned Registrar concluded at [21]: "21. I agree that the plaintiff has only referred me to cases where applicants sought to be joined in commercial circumstances. However I believe the principles enunciated in those cases apply generally to applications under Part 8 rule 8 (1)(b). WorkCover has failed to show that any decision made in this case will directly affect WorkCovers rights or liabilities as against any other party in this case. I am not convinced by WorkCovers argument that the public interest in the decision would be sufficient to allow WorkCover to be joined as a party to the proceedings. In my view the cases clearly imply that a right or liability as against the existing parties to the proceedings must be shown before the joinder will be allowed. Accordingly the application fails." 9 Rule 6.24.1 of the UCPR states: "6.24 Court may join party if joinder proper or necessary

(cf SCR Part 8, rule 8 (1); DCR Part 7, rule 8 (1); LCR Part 6, rule 8 (1))

(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.

(1) That the WorkCover Authority of New South Wales be joined as a defendant in the proceedings pursuant to r 6.24 of the UCPR .

(2) The whole of the decision of Assistant Deputy Registrar Walton dated 3 June 2005, dismissing the notice of motion filed by WorkCover on 9 March 2005 for joinder as a defendant in these proceedings, is set aside.

(3) No order as to costs both before the Registrar and before me. **********

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