JUDGMENT OF: His Honour President Judge WD Jennings, Deputy President Judge FK Cawthorne and Deputy President Judge JP McCusker

Appeals - Various appeals relating to number of issues and claimed injuries - Heads of Agreement executed and consent orders made - Primary Appeal against decision of learned Deputy President dismissing application pursuant to s 88H to set aside parts of Heads of Agreement which were claimed to be contrary to s 119 of Act or revoke consent orders allegedly obtained as a result of fraud, misrepresentation and unconscionable conduct of the company - Whether errors of law - Whether Deputy President in error in refusing to sign summons for Professor to give evidence - Whilst volumes of material allowed whether Deputy President erred in limiting evidentiary material - Claim of gross miscarriage of justice and bias - Interpretation of s 119 - Whether claim vexatious - Appeal to set aside consent orders relating to back injury - Claim orders were obtained as a result of fraud, misrepresentation and unconscionable conduct by company - Appeal on claim for compensation for emotional distress and aggravation and exacerbation of pre-existing coronary heart disease - Claim injury occurred as a consequence of counsel cross-examination - Appeal against determination relating to heart attack claim - Whether any basis - Claim to strike out as vexatious, frivolous or abuse of process - Appeal on claim for payment of cost of medical report of Dr Moss and of CT scan relating to back injury - Application seeking orders for income maintenance relating to residual disability in worker's right middle finger, left leg disability and nerve damage to lower lumbar spine as a result of back injury - Application to have consent orders revoked or declared a nullity - Submissions by company that claims unmeritorious; that company had settled worker's claims at mediation; and Tribunal lacked jurisdiction - Held findings were matters of fact - Findings were open to Deputy President on evidence - Tribunal lacked jurisdiction as no question of law involved - S 36, s 42, s 53, s 86, s 88H, s 95(3), s 97B, s 119, Workers Rehabilitation and Compensation Act 1986.

South Australian Police Department v Barber [2001] SAWCT 100

Rippon v Chilcotin [2001] NSWCA 142

Australian Telecommunications Commission v. Tzikas (1985) 5 AAR 173

Micallef v. ICI Australian Operations Pty Ltd & Anor [2001] NSWCA 274

Kowalski v Mitsubishi Motors Australia Ltd [2000] SAWCT 2

Mitsubishi Motors Australia Ltd v Kowalski [2000] SAWCT 123

Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) JD10 of 1997

Re Monger; Ex parte Dutch and Others [2000] WASCA 220

Gamester Pty Ltd v Lockhart [1993] HCA 79; (1993) 67 ALJR 547

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85

Maher v Wall [2000] SASC 176

Adams v Robinson [2001] SASC 35

General Motors-Holdens Ltd v D'Andrea (1985) 122 LSJS 301

Harvey v Phillips and Another [1956] HCA 27; (1956) 95 CLR 235

Mohtar v Mohtar and Seputis (1988) 146 LSJS 377

Paino v Hofbauer (1988) 13 NSWLR 193

Rippon v Chilcotin [2001] NSWCA 142

Mills v Australian Postal Corporation (1994) 32 ALD 489

King v South Australia (1992) 4 WCATR 307

Money Tree Management Services Pty Ltd v The Deputy Commissioner of Taxation (No 2) [2000] SASC 63

Moursellas v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Complete Crash Repairs Pty Ltd) [2002] SAWCT 26

Seeby v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Korvest Ltd) [2001] SAWCT 63

Bank of Credit and Commerce International SA (In Liquidation) v Ali & Others [2001] UKHL 8; [2001] 1 All ER 961

1 The appeals before this Tribunal relate to a number of issues and claimed injuries of Mr Kazimir Kowalski ("the appellant") against Mitsubishi Motors Australia Ltd and others ("the respondent"). A vast amount of documentation and information was presented to the Tribunal (including some 21 volumes of Book of Documents as well as a number of exhibits).

Action 4163 of 1998 (documents contained in Volumes 1-13 (incl))

2 Action 4163 of 1998, the primary matter listed for hearing before this Tribunal, is an appeal against a decision of Deputy President McCouaig made on 14 August 2001 ([2001] SAWCT 93) in which he dismissed the appellant's application, pursuant to s 88H of the Workers Rehabilitation and Compensation Act 1986 ("the Act") to set aside certain consent orders of Conciliation Officer Richer.

3 The appellant initially applied on 17 November 1999 (BOD v1, at 20) for orders to set aside or revoke consent orders of Conciliation Officer Richer on 3 November 1998 and to declare null and void those parts of the Heads of Agreement dated 27 October 1998 which he asserted were contrary to s 119 of the Act (namely the parts which he alleges purport to exclude, modify or restrict the operation of the Act, in particular parts of par 1.1 and par 2.3 thereof). His grounds of appeal included an assertion that the consent orders had been obtained as a result of fraud, misrepresentation and unconscionable conduct of the respondent, its servants and agents.

4 The Heads of Agreement (BOD v1, at 9), which were the result of a mediated settlement reached by the parties on 26 October 1998, specified terms which were agreed in full and final settlement of any entitlements the appellant may have had to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with the respondent. The terms of settlement were executed and the sum referred to therein, ie $200000, was paid to the appellant with a denial of liability (such payment has not been returned by the appellant to the respondent). Importantly, the appellant had agreed in the agreement (cl 4.1 thereof) "not to institute any legal proceedings and or legal complaints with any court, tribunal or body in respect of the matters in paragraph 1". The agreement which was signed by both parties provides:-

1 Kazimir Kowalksi ("Kowalski") of 26 Nalimba Street Hallett Cove in the State of South Australian and Mitsubishi Motors Australia Limited (MMAL) of Sherriffs Road Lonsdale in the said State have on the 26th day of October 1998 entered into a mediation.

2 Kowalski and MMAL have entered the mediation with intent of trying to resolve all issues both current and future in dispute between them.

3 Kowalski and MMAL have reached an agreement in relation to the resolution of all issues and wish to record the terms of settlement.

1 Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation and damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:

1.1 Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997.

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

1.4 Any superannuation payable by the MMAL Staff Superannuation Fund.

2 The said sum of $200,000 is to be paid to Kowalski 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 forgoing any claims or future claims in any way arising from his employment.

3 In consideration of the matters set out in paragraphs 1 and 2 above, MMAL agrees:

3.1 To forgo recovery of legal costs which are owed by Kowalski and agrees not to seek repayment from Kowalski of monies paid to RJ Cole & Partners with respect to Action 185 of 1992 in the Industrial Court.

3.2 To comply with any Court orders for discovery and or subpoenas for witnesses in relation to any action taken by Kowalski against RJ Cole & Partners.

3.3 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement.

3.4 To prepare and execute all documents necessary to bring into effect this agreement and to make such personal attendances as necessary at any Tribunal, Court or Commission.

4 In consideration of the matters set out in paragraphs 1 and 2 above, Kowalski and his dependants agree:

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.

4.2 To maintain confidentiality in respect of all matters arising in the course of the mediation and of the terms of this agreement.

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

4.4 To execute all documents necessary to bring into effect this agreement and to make such personal attendances required at any Court, Tribunal or Commission.

4.5 That any amounts payable to the Australian Taxation office from the sum of $200,000 are to be borne by Kowalski.

5 The parties agree that payment of the sums in paragraphs 1 and 2 will be made in the following manner:

5.1 Fountain & Bonig are to make arrangements for all matters requiring personal attendance by the parties to achieve discontinuance of those proceedings to be called on and the parties shall thereupon attend and effect discontinuance of those proceedings.

5.2 As to the matters which do not require personal attendance, Fountain and Bonig will prepare the necessary documentation for discontinuance or consent orders.

5.3 Upon satisfaction of 5.1 above, Kowalski shall sign all documents prepared pursuant to clause 5.2 above whereupon bank cheques for the total sum of $200,000 are to be handed to Kowalski (less any taxation that must be deducted by the Superannuation Fund).

5.4 It is the intention of the parties that the terms of this agreement be given effect to as quickly as possible and within 14 days of the date of this agreement save where beyond the control of the parties because of the need to attend personally at any Court Tribunal or Commission.

5 Ms Layton QC, counsel for the respondent, submitted that the appellant in this action was endeavouring "to get behind, to undo that mediation agreement ... but at the same time retain every advantage which was to keep the money [ie $200000], to expect that [the respondent] will not pursue its $60000 worth of costs and in particular not pursue that there was some $9000-odd that was owed (to it) by [the appellant] ..." (68).

6 Ms Layton submitted that all the findings of the learned Deputy President were made on matters of fact, which were supported by the evidence, and there were no errors of law (see respondent's written submissions par 8 - par 11, par 50) and that the Full Tribunal had no jurisdiction to hear the matter.

7 Ms Layton further submitted that the learned Deputy President was not in error, as asserted by the appellant (ground nos 1, 6 - 10, 12, 15 - 16) when he refused to sign a summons for Professor McFarlane to give evidence. The refusal to issue a summons for Professor McFarlane and Ms Bogdanov, she contended, was an interlocutory matter, one that was totally within the discretion of the learned Deputy President. She further submitted that there was nothing that Professor McFarlane could have added to what was in issue before the Tribunal and so it was quite appropriate in the exercise of the discretion for the learned Deputy President to refuse that summons. In any event, Ms Layton submitted that it was a draft report and thus the respondent was not obliged to disclose it. Ms Layton also submitted that there was nothing that Ms Linda Bogdanov could have added having regard to what was sought of her in the summons by the appellant (relating to ground nos 11, 13 - 14, 17 - 20, 22 - 25). (See respondent's written submissions par 55 - 66.)

8 Ms Layton distinguished this case from authorities such as South Australian Police Department v Barber [2001] SAWCT 100 and asserted that the question here was one of the credit of the appellant as opposed to a body of conflicting medical opinion, and that the learned Deputy President had not accepted the appellant as a witness of truth (see respondent's written submissions par 23 and par 49).

9 Addressing the appellant's ground of appeal (ground no 1.3) that the learned Deputy President was wrong in law by improperly limiting the evidentiary material, Ms Layton asserted that the learned Deputy President had in fact allowed volumes of material in order to avoid an accusation that he had in some way so limited the appellant.

10 Addressing the appellant's ground of appeal (ground no 2) that there had been a gross miscarriage of justice and bias on the part of the learned Deputy President, Ms Layton submitted that there was no basis whatsoever for same nor should the learned Deputy President have disqualified himself. (See respondent's written submissions par 67 - 68.)

11 In relation to the appellant's contention (ground no 16) that the learned Deputy President was wrong in law in finding that "...on the evidence before me it cannot be said, as the worker contends, that the worker had a clear entitlement to compensation in respect of his December 1997 heart attack and the alleged consequential disabilities..."; Ms Layton asserted that this was a factual finding, one which was open to him on the evidence (80).

12 A number of the appellant's grounds of appeal (ground nos 17 - 20, 22 - 23) relate to the learned Deputy President's interpretation and application of s 119 of the Act. Ms Layton submitted that the learned Deputy President's interpretation was correct and submitted that s 119 was "devised for the purpose of ensuring that there isn't an agreement made or a payment made lesser than that which is clearly applicable under an act" (81) and she submitted this is a matter of fact (84). (See respondent's written submissions par 54.)

13 Ms Layton addressed the appellant's ground of appeal (ground no 21) that the learned Deputy President was wrong in law in finding the consent order determination of Conciliation Officer Richer "was a necessary piece of housekeeping to give effect to the settlement ..." and submitted that if there had been no consent order or determination that "would have left that matter at large" (83). She contended that the consent order was necessary in order to finalise all matters before the tribunal, including the appellant's s 97 application for an expedited decision.

14 The appellant (in ground no 23) contended that the learned Deputy President was wrong in law in finding "the Act is not concerned with and the Tribunal has no jurisdiction to deal with these other employment-related benefits". Ms Layton submitted that the learned Deputy President's finding was correct and pointed out that "there is no restriction on an ability for parties to incorporate a number of matters in an overall settlement, including compensation, and including other employment-related benefits" and that this finding did not infringe s 119 (83).

15 The appellant alleged (ground no 24) that the learned Deputy President was biased at law and wrong in finding that the appellant was attempting "to portray Mitsubishi in the worst possible light ... too readily and too often [allowing] himself to fall prey to opportunism and prevarication" and that he was not a reliable witness. Ms Layton submitted that this was a finding of fact and not an error of law, as was the learned Deputy President's finding that there was a commercial settlement (in relation to which the appellant also alleged bias and an error of law (ground no 25)).

16 In relation to the issue of the EDI reports and the evidence of Mr Shaw and Ms Bogdanov sought to be brought forward by the appellant, Ms Layton pointed out that no evidence of Mr Shaw was presented to the learned Deputy President, however he did have the EDI reports before him and the oral evidence of Mr Fountain with respect to those reports (84 - 90).

17 Ms Layton submitted that there was no foundation for the appellant to appeal against the costs orders made in this matter at first instance as there was no error of law and it was in any event within the discretion of the learned Deputy President. She asserted that the litigation by the appellant was and continues to be totally vexatious.

18 Ms Layton submitted that should the appellant's appeal in action 4163 of 1998 be dismissed, his associated actions and other applications or appeals must also fail.

Action 10W of 2000 (documents contained in Volumes 15 and 16)

19 The appellant lodged an "application or notice of appeal" on 26 October 2001 (BOD vol 15, at 2052) to set aside the consent orders that were made before Review Officer Duigan on 5 November 1998 with regard to his back injury. The appellant asserted (as he did in relation to action 4163 of 1998) that the orders were obtained as a result of fraud, misrepresentation and unconscionable conduct by the respondent and its officers. He contended that pursuant to s 119 of the Act those parts of the Heads of Agreement which were contrary to the Act be declared null and void. Ms Layton submitted that the appellant was not able to bring this action and that because the mediated settlement settled his back condition, that was the end of the matter.

20 The appellant asserted that the EDI reports (as those found at BOD vol 15, at 2059) established that the respondent should be regarded as continuing to accept his May 1989 back injury as compensable. Ms Layton contended the EDI reports were prepared by WorkCover, not the respondent, and had no legal status in relation to the compensability of his claim. (See respondent's written submissions par 80.)

21 This is a claim for compensation for emotional distress and the aggravation and exacerbation of pre-existing coronary heart disease. The appellant's Notice of Dispute was filed on 30 March 2001 (BOD vol 17, at 2447).

22 The injury occurred, the appellant contends, as a consequence of his being cross-examined by Ms Layton on 20 February 2001 in the action 4163 of 1998.

23 On 25 May 2001 Acting Deputy President Thompson stayed this action pending the judgment of the learned Deputy President (BOD vol 17, at 2540).

24 Ms Layton submitted that the appellant's Notice of Dispute be struck out as frivolous, vexatious or an abuse of process (BOD vol 17, at 2463).

25 Ms Layton submitted that the appellant's claim relating to this matter was unsustainable for the following reasons:-

1. there was no causal connection between him being cross-examined and his employment with the respondent (see respondent's written submissions par 88 - 109)

2. there had been an overall settlement of all the appellant's claims at the mediation and thus the appellant had fully and finally settled his claims for compensation including his heart attack claim (see respondent's written submissions par 110)

3. that in any event s 30A came into play and the cross-examination of the appellant was a totally reasonable administrative action, and so there could be no foundation whatsoever for his claim in that case (see respondent's written submissions par 111 - 114).

Action 5879 of 2001 (documents contained in Volume 18)

26 This relates to a notice of dispute filed on 16 August 2001 (BOD vol 18, at 2542) with regard to the s 97 determination made by Conciliation Officer Richer by consent on 3 November 1998. It relates to the appellant's heart attack claim. He relied on a finding made by the learned Deputy President that that determination be treated as a decision of the respondent and not the Tribunal.

27 Ms Layton submitted that this issue had been mediated, had settled and thus had been finalised. She further submitted that there was no basis or foundation for pursuing this notice of dispute in all the circumstances and it should be dismissed. The respondent had sought an order on 24 September 2001 that this matter be struck out as vexatious, frivolous or as an abuse of process (BOD vol 18, at 2544).

Action 8059 of 2000 (documents contained in Volume 19)

28 This is a claim for payment of the cost of a 1991 medical report of Dr Moss ($350) and of a CT Scan performed on 28 June 2000 ($447). This relates to the appellant's back injury. The appellant made his request for payment on 3 July 2000 (BOD vol 19, at 2678). Ms Layton submitted that this claim was totally without foundation and should be dismissed. She submitted that there was no basis whatsoever for a claim that there be a payment for those costs. She asserted that the CAT Scan procedure was performed some 18 months after the mediated settlement and thus there was no basis for saying that the appellant had any right to have that paid for in respect of his back.

29 The appellant lodged a Notice of Dispute on 29 December 2000 (BOD vol 19, at 2647) and on 1 February 2001 the respondent lodged an application seeking that the appellant's Notice of Dispute be struck out as an abuse of process (BOD vol 19, at 2667). Acting Deputy President Thompson struck out the Notice of Dispute as incompetent on 15 March 2001 (BOD vol 19, at 2715) and on 6 April 2001 ordered that the appellant pay the respondent's costs of and incidental to this application ([2001] SAWCT 38).

30 The appellant lodged a revised notice of appeal on 17 April 2001 (BOD vol 19, at 2729) against the decisions of Acting Deputy President Thompson.

31 The appellant applied for a stay of the order for costs (BOD vol 19, at 2732) which was refused on 28 September 2001 by the Full Bench of the Tribunal ([2001] SAWCT 112).

32 Ms Layton submitted that as the appellant's claims (including back claims) were settled at mediation and with consent orders, this action should be dismissed for the same reasons as those relating to the other actions. She further asserted that more than enough was paid to the appellant following mediation to cover these medical costs.

Actions 4174 of 1998; 4961 of 1998; 4529 of 1998 (documents contained in Volumes 20 and 21)

33 Action 4174 of 1998 involves a claim for compensation dated 24 May 1997 (BOD v 20, at 2779) which relates to the appellant's accepted 2 per cent residual disability in his right middle finger. His claim for income maintenance was rejected by the respondent on 23 June 1997 (BOD vol 20, at 2781) and he then lodged a Notice of Dispute on 25 June 1997 (BOD vol 20, at 2792). On or about 7 June 1998 the appellant sought a redemption or commutation of weekly payments in relation to his right hand middle finger injury pursuant to s 42A of the Act (BOD vol 20, at 2799). On 13 July 1998 the respondent's solicitors advised the appellant that his purported claim was not a valid claim for compensation (BOD vol 20, at 2801). The appellant, having regarded such advice to be a determination, lodged a Notice of Dispute dated 17 July 1998 being action number 4174 of 1998 (BOD vol 20, at 2802). The respondent then applied for directions seeking an order that the Tribunal lacked jurisdiction to deal with this matter (BOD vol 20, at 2754).

34 Action 4961 of 1998 relates to a Notice of Dispute lodged on 31 August 1998 (BOD vol 20, at 2854) in which the appellant asserted that both the respondent and WorkCover had failed to comply with s 107B of the Act (by failing to provide documents concerning his claims for compensation in accordance with his 1 July 1998 request). On 25 September 1998 the respondent sought an order that the Tribunal lacked jurisdiction to deal with this matter (BOD vol 20, at 2845). The respondent also submitted that the appellant's application be struck out for the additional reason that s 107B had not been proclaimed on 31 August 1998 (and in fact did not come into operation until 16 April 2000).

35 Action 4529 of 1998 is a section 43 claim for compensation dated 13 July 1998 (BOD vol 21, at 3026) alleging a left leg disability below the knee and nerve damage to the lower lumbar spine as a result of the back injury sustained in May 1989. The appellant also lodged a Notice of Alternative Contention on 20 July 1998 (BOD vol 21, at 3028). The respondent advised him that it viewed his claim as being invalid (BOD vol 21, at 3036). The appellant, having regarded such advice to be a determination, lodged a Notice of Dispute on or about 3 August 1998 (BD vol 21, at 3038). The respondent then on 25 September 1998 sought an order that the Tribunal lacked jurisdiction to deal with this matter (BOD vol 21, at 2856).

36 Following the settlement of the appellant's claims in relation to each of these actions, consent orders were made by His Honour Deputy President Judge Gilchrist on 28 October 1998 (BOD vol 1, at 401).

37 In relation to these three matters the appellant made a section 88H application on 9 January 2001 (BOD vol 21, at 3040) in which he sought to have these consent orders revoked or declared a nullity. In general terms, his grounds were similar to the grounds of the application in action 4163 of 1998.

38 The appellant's application to revoke the consent orders was adjourned by Acting Deputy President Thompson on 26 February 2001 until such a time as the proceedings before Deputy President McCouaig had concluded (3090).

39 These matters were the subject of a mediated settlement as well as consent orders. Ms Layton submitted that there could be no reason whatsoever to set aside those matters to allow the appellant to "re-litigate" and that the appellant's application with regard to setting aside those consent orders ought to be struck out or dismissed. (See respondent's written submissions par 143.)

Action 132/2002 (documents contained in Exhibit R2)

40 This is an application filed by the respondent on 18 January 2002 for directions in response to the appellant's s 97 application in relation to his back injury. The respondent sought to have this matter joined as "it arises out of exactly the same saga of the other matters". Ms Layton submitted that the appellant's application be struck out as an abuse of process.

41 The appellant applied for an expedited decision on 10 January 2002 relating to his back injury in May 1989. He claimed that the respondent had not discontinued his "legally entitled weekly payments" of income maintenance (pursuant to s 36 of the Act) and had not paid a s 43 lump sum to him and he sought such payment.

42 Ms Layton asserted that this matter, which was the subject of the mediated settlement, had no foundation in law whatsoever as there was no requirement to comply with s 36 of the Act if there was no basis for the entitlement. Ms Layton pointed out that this went back to the issue that initially the respondent accepted his back claim; however subsequent to the trial before Judge Lee the respondent was no longer going to compensate the appellant because he had not sustained that injury. Ms Layton submitted that in any event the appellant was estopped from so claiming, as a result of the mediated settlement. The respondent seeks that the matter be brought to an end.

43 Ms Layton seeks that the appellant's appeal in action 4163 of 1998 (and his appeal against the costs order in that action) and his appeal in action 8059 of 2000 (and his appeal against the costs order in that action) be dismissed. Further, she seeks that all other Notices of Dispute be dismissed on the basis of her submissions in relation thereto. The respondent also seeks costs. Ms Layton submitted that all of the appellant's claims for compensation were unmeritorious, and in any event, the respondent had settled all of the appellant's claims against it at the mediation (see respondent's written submissions par 163).

44 I have had regard to the facts and circumstances of all appeals and associated actions and other applications before the Full Bench, and have had regard to all of the submissions and in particular those of Ms Layton QC in relation to same (which I accept and adopt). In particular with regard to action 4163 of 1998 I agree that the findings of the learned Deputy President were on matters of fact; that his findings were open to him on the evidence; and I determine this Tribunal lacks jurisdiction to hear it as there is no question of law involved.

Action No. 2228 of 2001 - Determination of Respondent be confirmed.

Action No. 5879 of 2001 - Notice of Dispute be struck out.

Action No. 8059 of 2000 - Notice of Dispute be struck out.

Action No. 4174 of 1998 - Application for Directions be dismissed.

Action No. 4961 of 1998 - Notice of Dispute be struck out.

Action No. 4529 of 1998 - Notice of Dispute be struck out.

Composite documents in Action Nos. 4174 of 1998, 4529 of 1998 and 4961 of 1998 - Application be dismissed.

Action No. 132 of 2002 - Application be struck out.

47 I have had the advantage of reading in draft the reasons of the President and Deputy President Judge McCusker and am generally in agreement with them and the orders proposed save that I differ, with respect, from the decision of Deputy President Judge McCusker insofar as his decision deals with Action No. 2228 of 2001.

48 In respect of that action it seems to me that even taking the appellant's case at its highest the claim the subject of that action is destined to fail.

1 49 The essence of the appellant's claim the subject of these proceedings is that on 20 February 2001 as a result of cross-examination by Ms. Layton QC for the respondent in proceedings relating to Action No. 4163 of 1998 he suffered emotional distress and an aggravation and exacerbation of a pre-existing coronary heart disease. He asserted that the respondent's action in this regard was unwarranted and unreasonable action in relation to his various claims for compensation.

50 It seems to me that assuming the emotional distress allegedly suffered by the appellant as a result of Ms Layton's cross-examination consists of an illness or disorder of the mind then it cannot be said that employment was a substantial cause of the disability (s 30A(a)) in that proceedings to pursue the appellant's claims are surely too remote from that concept; I find accordingly; see by analogy Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 per Sweeney and Woodward JJ at 195.

51 The argument for remoteness in this case is made stronger given the unchallengeable findings of the learned Deputy President in the costs proceedings in Action No 4163 of 1998 as follows (pars 26 - 27 of the reasons for decision):-

"I find that in bringing these proceedings the worker acted unreasonably. He also acted frivolously, on the basis that his application was not made on reasonable grounds. It was a hopeless and unmeritorious application from the outset, based on spurious grounds.

The worker's continued reliance on these grounds, knowing them to be false, and his other aforementioned conduct in pursuance of the matter also constituted unreasonable, frivolous and, at times, vexatious conduct."

52 In addition even if it could be said that the cross-examination in the proceedings was a substantial cause of the disability I find that the action of cross-examination of the appellant was not only proper but nothing on the face of the record that I have seen would suggest that it was other than reasonable action taken in a reasonable manner under the Act affecting the appellant; s 30A.

53 In terms of the appellant's assertion of an aggravation etc of a pre-existing coronary heart disease again it seems to me in light of my earlier conclusion it cannot be said that the disability arose in the course of employment and I so find; s 31(5)(b) of the Act.

54 For these reasons I would confirm the respondent's determination in Action No 2228 of 2001.

55 This is primarily an appeal from the decision of a Deputy President. That decision dismissed an application by the worker to set aside consent orders made by a Conciliation Officer ("the Richer orders") dated 3 November 1998. The worker relies on s 88H of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). The Richer orders were made following a mediated settlement between the parties on 26 October 1998. That settlement was by way of a compromise.

56 S 88H of the Act is in the following terms:-

"(1) The Tribunal may amend or set aside a judgment or order of the Tribunal-

(c) if the interests of justice require that the judgment or order be amended or set aside.

(2) The power under subsection (1) may only be exercised by the President or a presidential member or conciliation and arbitration officer to whom the President has delegated the power."

It is important to note this vests the Tribunal with a discretion, albeit a judicial discretion: see Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274.

57 The proceedings appealed from, (File No 4163 of 1998), were the subject of preliminary rulings. In Kowalski v Mitsubishi Motors Australia Ltd [2000] SAWCT 2, the employer disputed the Tribunal's jurisdiction to entertain the application in the circumstances. Alternatively the employer argued the worker should not be allowed to proceed in the interests of justice, because the agreement reached in the mediated settlement contained, inter alia, a term not to institute any further, "legal proceedings and/or legal complaints with any Court, Tribunal or body" in respect to his compensation claims described in par 1 of that document.

1 58 The worker declared his purpose at that time and it is described by the Deputy President (par 12) as follows:-

"... 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 basis of the worker's challenge to the agreement was that information was withheld from him of such importance that he would never have settled had the information been available to him at the time.

59 The Deputy President understood the worker did not want to set aside the whole agreement. However the Deputy President observed (par 16) that it was difficult to conceive the requisite principal of severance involved that would enable the agreement to be changed preserving the terms that just happened to be favourable to the worker and removing those he wished no longer to comply with. It is to be noted that this partially nullified form of agreement remains the worker's stance (Appellant's Outline of Argument page 15 at par 3.1, appeal tr 103). He does not propose returning the $200000.00 he received under the terms of the agreement.

60 It is further to be noted (at par 17) that the employer contended on the preliminary issue that the proceedings taken under s 88H of the Act were in effect to set aside or amend the agreement of 27 October 1998. That has remained the employer's characterisation of the matter at all times since, (appeal tr 68). In respect to the employer's contention that this was an issue outside the Tribunal's jurisdiction, the Deputy President stated (par 18 - 20):-

"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 (sic) 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."

61 That decision was appealed by the employer. The appeal was dismissed: see Mitsubishi Motors Australia Ltd v Kowalski [2000] SAWCT 123. In its judgment (par 12) the Full Tribunal noted the following:-

"...At the commencement of the hearing the respondent clarified the orders he was seeking. In addition to the setting aside of the consent order he also asked the Tribunal to declare "null and void" those parts of the Heads of Agreement which were contrary to s 119 of the Act, namely those parts which purported to exclude the operation of the Act (AB vol 1 170). He specifically identified par 1.1 in respect of which he sought to have reference to the heart attack of December 1997 deleted from the recitation of the claims for injury settled by the Agreement. (AB vol 1 172). He also identified par 2.3 by which the appellant agreed to pay the respondent $10000 in consideration for him `foregoing any claims or future claims in any way arising from his employment' (AB vol 1 68). It is apparent from his submissions that the respondent wishes to proceed with his heart attack claim in the Tribunal."

However the Full Tribunal regarded the matters raised as going to the merits, not the Tribunal's jurisdiction under s 88H to set aside the consent order if the interests of justice so required (par 15).

62 When the matter subsequently proceeded before the Deputy President its primary focus was that the Richer orders were obtained by fraud, misrepresentation and unconscionable conduct (par 24). This remained the core contention of the worker in his submissions to us, (appeal tr 2, 3, 8, 9, 11, 12, 17, 19, 21, 32, 40, 41, 42, 45, 48, 49 and 52). Other arguments were raised including that Conciliation Officer Richer could not make the consent orders because Mitsubishi had already made a s 53 determination, the Richer order was reviewable being an order contemplated by s 97B(3)(b) of the Act, the agreement/order did not comply with r 3(4) of the Workers Compensation Tribunal Rules 1996 ("the 1996 Rules") nor was it registered pursuant to r 23 making it a nullity, and specific parts of the agreement contravened s 119 of the Act. These parts should be treated as null and void. As noted by the Deputy President, the plea under s 97B(3) created somewhat of a dichotomy because the power in s 88H only attaches to the orders of the Tribunal.

63 The claim that there was any fraud, misrepresentation or unconscionable conduct by Mitsubishi was rejected by the Deputy President. It was rejected because the accepted evidence refuted such a claim. The Deputy President found as a fact there was nothing improper or untoward in the behaviour of Mitsubishi in the circumstances surrounding either the agreement or the Richer orders (par 79).

64 The Deputy President added that he did not believe the worker when he said the McFarlane report would have made a difference to his actions at the time of the settlement (par 36). This was a finding based upon credit. He also found the McFarlane report did not advance the worker's claim for compensation beyond anything already existing in the several reports of the cardiologist that were available to the worker at the time (par 37). This conclusion depended upon the Deputy President's interpretation and evaluation of that material. That is it involved matters of fact. The Deputy President found the worker was not forced to mediate and his engagement in the mediation process was entirely voluntary (par 64). He concluded the worker was entirely disingenuous in his evidence and his contentions, (pars 73, 74, 76, 77 and 78).

65 The Deputy President dealt with related claims made by the worker that Conciliation Officer Richer had been misinformed by Mitsubishi's lawyers and also that there was a failure to determine the 1998 heart claim in a timely manner. Having carefully considered the material available, the Deputy President concluded the investigations were entirely appropriate (par 90) and the employer's dealings with the conciliation officer proper at all times (par 80). He rejected this basis for finding improper, misleading, unconscionable or fraudulent conduct (par 91).

66 The reasons for decision then dealt with the allegation that Mitsubishi had already determined the claim, so making any determination by Conciliation Officer Richer beyond power. The Deputy President rejected this as factually wrong (par 94). The details of the communications between Conciliation Officer Richer and Mitsubishi's lawyers make it plain this was so (par 48), but in any event it was a matter of fact the Deputy President had to and did reach a conclusion in respect to.

67 The Deputy President then dealt with the basis upon which Conciliation Officer Richer was seized of the matter. He was seized of the matter by dint of the action of the worker. The worker had sought relief under s 97B. That being so the decision by Conciliation Officer Richer was one notionally occurring in the shoes of Mitsubishi. It was therefore not an order of the Tribunal and not subject to the powers in s 88H (par 100). That in itself ought to have been the first and last answer of the matter (par 25). However the matter was conducted making an assumption both for and against this circumstance.

68 The Deputy President then dealt with alleged irregularities in respect to the 1996 Rules. He concluded that r 3(4) of the 1996 Rules concerned the conciliation process. That was not operative here. He concluded r 23 was concerned with lump sums made under the Act. That had no application either (par 101 - 102).

69 Finally he dealt with the claim under s 119. Having set out the provisions of the Act he pointed to the fact that the legislative intent was directed at the purport of the subject agreement. That is the agreement's purpose was to exclude, modify or restrict the operation of the Act. There was no foundation for such a conclusion on the facts of the case before him (par 115). By way of ending his examination, he dealt with an argument that the settlement was actually a redemption under s 42. He found it clearly was not.

70 Two things must be stated at the outset. The first is that we are concerned to examine the decision of the Deputy President and not hear the case de novo. The worker's address often took the latter form, though it is hard to give his submissions a particular categorisation given the disjunctive and disseminated nature of the worker's discourse. The second matter is that our mandate to consider the appeal is limited by s 86(1) to questions of law.

71 What constitutes a question of law can undoubtedly be a vexed question. The view of the matter contained in the majority judgment in Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) JD10/1997 has generally been followed by Full Tribunals since. Those views are consistent with the views recently expressed by the Full Court of Western in Australia in Re Monger; Ex parte Dutch and Others [2001] WASCA 220 where Malcolm CJ stated (par 11 - 13):-

"11 ... Where the ultimate fact in issue (the factum probandum) involves a term used in a statute, the question whether the facts found adduced by the evidence and found (facta probanda) establish the ultimate fact is, at least generally, if not always, a question of law: Hayes v. Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47 at 51 per Fullagar J. In Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 289 the Federal Court (Neaves, French and Cooper JJ) said:

`Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depends upon a judgment about that purpose. The selection process involved is analogous to that used in determining what causal relationships between conduct and loss attract liability for the purpose of s 82 of the Trade Practices Act (1974) (Cth): see Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230; (1987) 16 FCR 410 at 418-419; Munchies Management Pty Ltd v. Belperio [1988] FCA 413; (1988) 84 ALR 700 at 712-713. In the end this is not a process of fact finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law.'

12 In Pozzolanic at 287 their Honours also stated five general propositions, which were quoted by Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ in Collector of Customs v. Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395 as follows:

`1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meanings is a question of law. (Jedko Game Co Pty Ltd v. Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v. Cozens [1972] UKHL 6; [1973] AC 854).

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. (Life Insurance Co of Australia Ltd v. Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v. Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 512; Neal v. Department of Transport [1980] FCA 45; (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491).

3. The meaning of a technical legal term is a question of law. (Australian Gas Light Co v. Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v. Federal Commissioner of Taxation [1979] FCA 66; (1979) 40 FLR 208 at 215).

4. The effect or construction of a term whose meaning or interpretation is established is a question of law. (Life Insurance Co of Australia v. Phillips [1925] HCA 18; (1925) 36 CLR 60 at 79).

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.'

13 In Pozzolanic at 288 the Full Court qualified the fifth proposition, saying that when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question whether they do or not is one of fact: cf Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8 per Mason J. Their Honours in the High Court were unable to accept the distinction between meaning (a question said to be one of fact) and construction (said to be a question of law). The distinction was given its strongest support in Life Insurance Co of Australia Ltd v. Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78 per Isaacs J. Their Honours commented on the distinction at 396-397 as follows:

`With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v. Brown ([1996] 1 AC 453 at 561), a recent House of Lords decision, Lord Hoffmann said:

"The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole."

If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.'

`All that is required for a reviewable question of law to be raised is for a phrase to be identified as being used in a sense different from that which it has in ordinary speech.'"

72 Properly applied and understood the failure of the appellant at the jurisdiction hurdle deals with the majority of the worker's complaints. The worker's complaints were directed overwhelmingly at findings, particularly those rejecting his claim of "fraud, misrepresentation and unconscionable conduct". The essence of his case appears in this submission (appeal tr 48):

"It was only as a result of me, number 1, coming across the EDI reports from WorkCover and Dr McFarlane's medical report, that I became very distressed and said, `Look, they conned me.' If it hadn't been for me finding this evidence I wouldn't have been here today. I would have, I suppose, accepted what they said was truthful; but once they were exposed I couldn't go to my grave knowing that they conned me when they had legal obligations to me and I had legal entitlements and they just conned me."

73 That he was "conned" as he claimed, or at all, was the very fact rejected. This matter was decided against the worker on credit and to that extent raises no question of law. However in the hope some further comments may give some assistance to the worker in appreciating he has not suffered the gross injustice he claims, I detail the following. That is acknowledging it is not part of our obligation to search the extensive materials here for some question of law the worker has failed to articulate. In Gamester Pty Ltd v Lockhart [1993] HCA 79; (1993) 67 ALJR 547 the Court said (at 549):-

"... it seems to proceed on a false basis. It suggests that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. ..."

74 I also recognise the obligations on the Tribunal when dealing with an unrepresented litigant. But there are clear limits to our duty and these are shaped by the nature of the case, the assessment of the litigant's ability and understanding of the case and the recognition that the Tribunal must be even handed in these matters: see Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; Maher v Wall [2000] SASC 176; Adams v Robinson [2001] SASC 35. The objective, at all times is a fair hearing. In this regard the allegations of the worker against the Deputy President's claiming denial of entitlement to summons who he wanted to (appeal tr 22) are groundless. There was nothing to show other than fair and orderly conduct of the hearing and nothing amounting to any denial to the worker.

75 Given that the worker was seeking the exercise of a discretion under s 88H, if one was to overlook the nature of the power exercised by Conciliation Officer Richer at the time he made the order (ie. s 97B(3)), other matters made the outcome inevitable. Firstly the Deputy President's conclusion in respect to s 119 was correct. There was no evidence of a proscribed purpose. We note that in the Workers Compensation Act 1971 ("the 1971 Act") a similar provision operated (s 86). That agreements ipso facto did not operate to deny the requisite purpose was implicit in the reasoning of the Court in General Motors-Holdens Ltd v D'Andrea (1985) 122 LSJS 301. The construction of s 119, as may be said to underlie the worker's argument, is wrong.

76 Of further significance to the discretion is the law applying to the compromise. In Harvey v Phillips and Another [1956] HCA 27; (1956) 95 CLR 235 at 243 - 244 the Court said:-

"... The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. ..."

77 Leaving aside for the moment questions of delay or the public interest requirement that litigation should not proceed interminably, given the findings that the Deputy President there was really no ground afforded to the worker to hope for the agreement to be struck down, more particularly so on the, "part only", basis contended by him: see Mohtar v Mohtar and Seputis (1988) 146 LSJS 377. In Paino v Hofbauer (1988) 13 NSWLR 193 at 198 McHugh JA (as he then was) stated the principle as follows:-

"Nevertheless, when a party asks that a consent order based on a contract should be set aside or varied and the underlying contract could not be set aside or varied, the case would need to be exceptional before the Court would exercise its discretion in favour of an applicant. ..."

78 Paino's case and the principle it contains, must be applied in the context of the findings of fact made by the Deputy President in this case. It was the agreement that was the central and determining feature of the issue being agitated by this worker, as correctly contended by Ms Layton QC, (appeal tr 68).

79 As to Action No. 10W of 2000, the attempts to set aside the consent orders before Conciliation Officer Duigan must fail for the same reasons as with the Richer orders. No grounds exist for an interference with them (see Respondent's Outline of Argument pars 71-80, appeal tr 91). So too with the attempts to set aside the orders of Judge Gilchrist of 29 October 1998 and related to Action Nos. 4174 of 1998, 4961 of 1998 and 4592 of 1998 (see appeal tr 97). There is no substance in the worker's challenges and the same basis exists for their rejection. As to Exhibit R2, I agree with Ms Layton, (appeal tr 98) that this is merely an attempt to re-litigate the back injury. It is wrong to permit that: see Rippon v Chilcotin [2001] NSWCA 142 at par 15.

80 Action No 5879 of 2001 quite clearly attempts to circumvent the settlement of the worker's claims and the Richer orders by the back door. As such it is an abuse of process, see Money Tree Management Services Pty Ltd v. The Deputy Commissioner of Taxation (No 2) [2000] SASC 63, and the respondent's plea must be upheld (appeal tr 93).

81 Action No 8059 of 2000 relating to the Dr Moss report regarding the worker's back (see Exhibit R1) is wholly answered by the passage of evidence in the proceedings before Judge Anderson in the District Court (see appeal tr 96). The CT report of the back cannot be claimed having been received 18 months after the Richer orders.

82 In respect to the costs, firstly there is no question of law raised by that appeal. Secondly it is only in a rare case that this Full Tribunal will interfere with the exercise of the discretion as to costs in the Tribunal below: see Moursellas v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Complete Crash Repairs Pty Ltd) [2002] SAWCT 26. Finally the order of the Deputy President is consistent with the manner in which these matters have been dealt with in the past: see Seeby v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Korvest Ltd) [2001] SAWCT 63 at par 10.

83 Action No 2228 of 2001 is a fresh claim said to be an aggravation of pre-existing coronary heart disease due to cross examination on 20 February 2001. The Notice of Dispute was stayed pending the resolution of the issues in Action No 4163 of 1998. This matter cannot be determined by the Full Tribunal in the circumstances of competing evidence and contentions. That includes the factual issue of whether the operative stressors are too remote from employ: see Mills v Australian Postal Corporation (1994) 32 ALD 489, King v South Australia (1992) 4 WCATR 307 and whether the matter is incorporated in the compromise made between the parties of 26 October 1998: see Bank of Credit and Commerce International SA (In Liquidation) v Ali & Others [2001] UKHL 8; [2001] 1 All ER 961. That said it is a novel assertion (see Respondent's Outline of Argument par 101) and particularly as the stress related to proceedings which themselves were ruled unjustified, groundless and unreasonable: (see the costs decision [2001] SAWCT 102). But I regard it as prematurely referred to this Full Tribunal and would refer it back for due processing.

84 Subject to the referral back of Action No 2228 of 2001, I otherwise concur with the orders of the President.