Kowalski v Mitsubishi Motors Australia Ltd [2000] SAWCT 2

1.3 Any matters related to the termination of his employment with MMAL

1.4 Any superannuation payable by the MMAL Staff Superannuation Fund"

3 The $200000 was to be paid to the worker as follows:-

"2.1 The sum of $64,691.43 to be paid from the Superannuation Fund by way of an ill health benefit being the entitlement with respect to the period from 7 March 1970 to the date of cessation of his employment

2.2 The sum of $125,308.57 to be paid by MMAL as an ex gratia payment as compensation for permanent disability impairing his future earning capacity arising from the injuries and disabilities mentioned above

2.3 The sum of $10,000 to be paid by MMAL in consideration of Kowalski foregoing any claims or future claims in any way arising from his employment"

4 Amongst the obligations of the parties set out in the Agreement it was stipulated they would each "execute all documents necessary to bring into effect this Agreement and to make such personal attendances as is necessary at any Tribunal, Court or Commission". (para 3, 4 and 4.4).

5 Amongst the worker's obligations, it was stipulated in the Agreement that he agreed:-

"4.1 Not to institute any legal proceedings and/or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the Action against RJ Cole & Partners and Dowd

4.3 To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL"

6 The action against RJ Cole & Partners and Dowd apparently refers to common law proceedings instituted by the worker against his former legal advisers and do not directly involve Mitsubishi.

7 The said $200000 was paid to the worker on 9 November 1998.

8 On 3 November 1998 the following consent orders were made by Conciliation Officer C Richer in respect of the worker's then outstanding compensation claim in respect of his heart attack in December 1997:-

Matter 4163/1998 is an expedited decision application referred to me pursuant to section 97 of the Act.

Upon hearing submissions from the parties and by consent I make this determination dismissing the claim for `Aggravation, Acceleration, Exacerbation, Deterioration of a pre-existing coronary heart disease and depression and heart attack (Myocardial Infarction)' as stated in the claim form of 7/4/1998 and further claimed on 2/8/1998 and 13/10/1998.

I note that the parties have entered into an agreement resolving all matters in dispute. The consent in this matter is made on the express understanding that if the terms are not met Mr Kowalski is entitled to make an application under section 88H of the act (sic) to have the orders dismissing the action revoked."

9 A little over one year later, on 23 November 1999, the worker filed this application under s 88H of the Workers Rehabilitation and Compensation Act, 1986 ("the Act") seeking to have the aforesaid consent orders revoked. The basis of the worker's application was stated to be:-

"As a result of an application in District Court Action Number 957 of 1996, for Non-Party discovery against the employer, the applicant discovered that prior to and during a mediation conference the employer had failed to acted (sic) in good faith, therefore, the terms of an agreement which were made in good faith have not been met."

10 The said District Court action apparently refers to the worker's common law claim against his former legal advisers.

11 When the worker's application came before me in Chambers, Mr Bonig for Mitsubishi said that it was the respondent's initial contention that the Tribunal had no jurisdiction to entertain the application. If the Tribunal did have jurisdiction, he submitted, the application should be dismissed in the interests of justice having regard to the Agreement made by the parties on 27 November 1998. The matter was set down for argument on the preliminary point as to whether the Tribunal had jurisdiction to entertain the worker's application and grant the relief he sought.

12 Lengthy affidavits and written submissions were submitted and received into evidence. These prompted me to invite the worker at the outset to indicate exactly what orders he was seeking from the Tribunal. The worker said that he wanted the above mentioned consent orders of Conciliation Officer Richer made on 3 November 1998 set aside and he also wanted selected parts of the Agreement declared null and void on the basis of their alleged breach of s 119 of the Act. Specifically, he wanted the words "and a heart attack in December 1997" in para 1.1 of the Agreement and the whole of para 2.3 declared void and of no effect. This would free him to pursue a compensation claim against Mitsubishi with respect to his heart attack (the subject of the consent orders on 3 November 1998) and to pursue a claim against Mitsubishi in the Industrial Relations Commission for relief with respect to his termination of employment (a claim that he had instituted shortly before the mediation and settlement of his claims in November 1998 and which had, presumably, been resolved by the Agreement). The worker acknowledges that the $10,000 paid to him pursuant to para 2.3 of the Agreement was compensation for losing his job - refer transcript p 29 of the proceedings before Commissioner McCutcheon in the Industrial Relations Commission on 15 December 1999.

13 The worker is now also challenging the binding nature of para 2.1 of the Agreement before the Superannuation Complaints Tribunal. He is not, however, asking this Tribunal to amend or set aside para 2.1 of the Agreement.

14 The worker does not seek to have para 2.2 of the Agreement declared null and void. This is notwithstanding that this is the only provision in the Agreement dealing with his entitlement in respect of outstanding compensation claims and the fact that the basis of his challenge to the Agreement is that information was withheld from him of such importance that he would not have agreed to the settlement had that information been made available to him at the time.

15 Nor does the worker seek to amend or set aside para 4.1 of the Agreement which would seem to be a necessary prerequisite to setting aside any part of the Agreement or, for that matter, proceeding with the instant application.

16 The worker has made it clear that he does not want to set aside the whole Agreement. It is difficult to conceive on what legal or equitable principle he could hope to have the Agreement re-fashioned by this Tribunal in the manner he seeks so as to preserve the terms favourable to him and to excise those terms he now perceives to be unfavourable.

17 Mr Bonig submitted that as it is in reality the Agreement of 27 October 1998 that the worker is seeking to have set aside or at least amended and as the Tribunal's jurisdiction is limited by the Act to the matters set out in Pts 6 and 6A of the Act, the Tribunal cannot have jurisdiction here. With regard to the declaratory orders sought by the worker he said that if such orders were sought in the appropriate Court (which he suggested was either the Supreme Court or District Court) that Court would inevitably order that the settlement sum be repaid or paid into Court pending the determination of the dispute. He submitted that the absence of that power in the Tribunal was an indicator that the Tribunal did not have jurisdiction to grant the sort of relief sought by the worker.

18 It is my view that the Tribunal does have jurisdiction to deal with the worker's application. It is the consent orders of 3 November 1998 that the worker seeks to set aside. This can only be done if the interests of justice require it - s 88H(1)(c). The consent orders of 3 November 1998 were, however, clearly no more than a necessary piece of house keeping to give effect to the Agreement reached by the parties on 27 October 1998 - refer paras 3.4 and 4.4 of the Agreement.

19 Any contemplation of the interests of justice necessarily calls into consideration whether the Agreement reached by the parties on 27 November 1998 is binding on them. If it is, clearly the interests of justice could not permit, much less require, that the consent orders be set aside. If the Agreement is not binding, the orders may be set aside.

20 The fact that the Agreement contains terms not strictly involving workers compensation matters does not, in my view, preclude the Tribunal from adjudicating on the Agreement's legal validity. It so happens in this instance that this is a necessary task in the assessment of whether the interests of justice require that the consent orders of 3 November 1998 be set aside.

21 In Blocki v WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd (Pyrotech Fire Protection Pty Ltd) JD123/1999 the Tribunal was called upon to determine whether it had jurisdiction to determine the validity of a redemption agreement. Deputy President Gilchrist determined that the Tribunal did have jurisdiction, noting (p 3):-

"Whilst it is self evident that the Tribunal's primary jurisdiction is to resolve disputes between workers and employers and compensating authorities arising out of workplace disabilities, sometimes factual issues arise which are of a type that ordinarily fall within the purview of another forum. That does not mean that the Tribunal cannot decide them. The issue of a construction summons out of the Supreme Court might provide an effective means of determining whether a redemption agreement exists. Similarly proceedings issued out of the Industrial Relations Commission might provide an effective means by which to determine whether there has been a dismissal for serious and wilful misconduct as no doubt would proceedings in the Family Court on the issue of whether a person was the child of a worker, now deceased. The efficacy of these forums to deal with these issues is beyond question and their rulings may, in appropriate circumstances, create issue estoppel in respect of proceedings before the Tribunal: Ruf v. General Motors Holden Automotive Ltd J.D.77/98 upheld in J.D.35/99. But where no such proceedings have been issued the Tribunal must resolve the issue as it did in Smith v. WorkCover - MMI Workers Compensation (SA) Ltd. (Underdale Metal Processing) J.D.3/96 and cases like it. It must, because it is necessary to do so to resolve the dispute.

If the position were otherwise, then potentially every time an issue arose that did not strictly involve a workers compensation matter, the proceedings would have to be put on hold and that discrete issue would have to be referred elsewhere. There does not appear to me, to be any sound policy reason why Parliament would require this to be so. In many other respects, Parliament has evinced the intention to in large measure confine the adjudication of worker's compensation related issues to the Tribunal, by, for example, abolishing the Review Panel and limiting access to the Full Supreme Court of South Australia. Moreover, one of the stated objects of the legislation is to `reduce litigation and adversarial contests to the greatest possible extent': s 2(1)(f)."

22 S 88H of the Act confers jurisdiction on the Tribunal to amend or set aside previous orders of the Tribunal. In the exercise of this power, in this instance it is necessary to determine whether the Agreement reached by the parties on 27 November 1998 is binding on them. That the Agreement contains terms not strictly involving workers compensation is of no consequence. The fact of the matter, as Mr Bonig submitted, is that it is not possible to sever the workers compensation issues from other matters covered by the Agreement as the mediation and Agreement intended to achieve a global resolution of all employment related disputes between the parties.

23 Had the worker sought only an order declaring para 2.3 of the Agreement null and void s 88H would not come into play and there would be no jurisdiction in the Tribunal. However, that is not the situation we have here.

24 It can and should be said, however, that the Agreement reached by the parties on 27 November 1998 will stand or fall in its entirety. The worker cannot realistically hope to now have the parts he does not like excised and the parts he does like preserved. It could not conceivably be in the interests of justice to hold Mitsubishi to only those parts of the Agreement the worker likes whilst at the same time denying it the "global settlement" of all matters that it believed it was achieving.

25 On the material, including the report of Professor McFarlane dated 16 September 1998, and the submissions put before me thus far, it could not be said that the interests of justice require that the consent orders be set aside. However, I am mindful that the hearing to date has been principally concerned with the issue of the Tribunal's jurisdiction.

26 I will now hear from the parties as to the further conduct of this matter in light of Mr Bonig's intimation that a hearing on the merits, ie consideration of the interests of justice, will involve the calling of further evidence likely to require several days.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to Section 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.