Kowalski v Mitsubishi Motors Australia Ltd [2003] SAWCT 4

4 If I were to resolve to grant the employer the summary relief that it seeks in respect of the worker's Notice of Dispute that is the subject of these proceedings a consideration of that question becomes academic. Again, I will return to this later.

5 The more vexed question is whether it is within the jurisdiction of the Tribunal to make an order restraining a person from commencing new proceedings against another person without leave of the Tribunal.

6 In pursuing this relief, the employer, through its counsel, Ms Layton QC, asserts that the jurisdiction arises by reason of the inherit jurisdiction of the Tribunal to control its own business. Ms Layton submitted that having regard to the breadth of the rule making power conferred upon the President pursuant to s 88E of the Workers Rehabilitation and Compensation Act 1986 ("the Act") which includes in subparagraph (1)(g) the capacity to make rules "dealing with any other matter necessary or expedient for the effective and efficient operation of the Tribunal" and the existence of rules such as Rule 10(1) of the Workers Compensation Tribunal Rules 2001 ("the Rules") which provides:

"Subject to any express provisions of the Act and the Rules, the President may assign any proceedings to any member of the Tribunal as may seem appropriate and may alter that assignment in order to resolve the proceedings more effectively. If the President is satisfied that a proceeding is vexatious, is an abuse of process or that there is other good reason such as the failure of the party lodging the proceedings to purge a contempt of the Tribunal or to pay a fine imposed as a result of a contempt, the President may decline to assign the proceedings and if the proceedings have already been assigned may withdraw that assignment and may direct the Registrar to strike out the proceedings."

this is indicative of and supportive of the assertion that the Tribunal possesses the inherent jurisdiction to grant the employer the relief that it seeks.

7 It might be that it is within the rule making power of the President conferred by s 88E of the Act to create a rule that in appropriate circumstance and upon the application of an appropriate person and subject to the affected party be given an opportunity to be heard that some limitation, such as the granting of leave, be required before that party can bring any action, appeal or other proceeding in the Tribunal. The difficulty that the employer's argument faces, in so far as it relates to any future actions, is that there is no such rule.

8 Whilst I accept that even in the absence of a specific provision of an Act or a specific rule, certain powers and discretions of any Court or Tribunal can be taken for granted, for the reasons explained by the High Court in Commonwealth Trading Bank v Inglis and Another [1974] HCA 17; (1974) 131 CLR 311, I do not think that the power to restrain a person from initiating new proceedings in the Tribunal can be so regarded.

9 In that case, a party to proceedings before the High Court argued that it was within the inherit jurisdiction of the Court to make an order that no legal proceedings should be instituted or applications in existing made or appeals lodged by the respondent or either of them without leave of the Justice of the Court. Barwick CJ and McTiernan J said at p 313 "We are of opinion that different considerations apply to a restraint on the making of applications in existing proceedings and to the instituting of new proceedings." With respect, I think that distinction similarly applies here.

"It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the court's process in cases where it was shown to be probable that a person would continue bringing groundless proceedings. But, in our opinion, it is apparent that the courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority."

11 This ultimately led their Honours to conclude that absent specific Act or rule that the Court did not have the power to make an order that no legal proceedings should be instituted by the respondent or either of them without leave of the Justice of that Court.

12 In my opinion, the fact that any future actions might concern issues already dealt with by the Tribunal in other actions, is not to the point. Doubtless that submission would go a long way to supporting an application for a summary order but it cannot in my opinion confer jurisdiction to impose restraints on the lodgment of those applications.

13 That then brings me to the application for an order that the worker's Notice of Dispute in the within action to be struck out.

14 The Notice of Dispute identifies the reviewable decision as being

"1. Information provided by MMAL to WorkCover printed on 26-7-02 (1 page).

2. Page 13 and 14 of WCT decision [2002] SAWCT 76."

15 The information to which the notice refers comprises of a computer print out that was supplied by the WorkCover Corporation which purports to provide details of the estimated liability of the employer to the worker and which purportedly identifies an outstanding liability of $60632.78 and which was last updated on 24 July 2001.

16 The reference to the judgment [2002] SAWCT 76 concerns its treatment of an action filed in this Tribunal, being action number 132 of 2002 which is described in the judgment of the learned President at par 41 of the judgment as: "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." The learned President ordered that the application be struck out. The others members of the Full Bench concurred with that decision.

17 Although it might have been better expressed, what emerges from the Notice of Dispute and the submissions that the worker made before me is that the worker is contending is that he has an undetermined claim in relation to weekly payments of income maintenance and a s 43 lump sum in respect of a back injury allegedly sustained by him in the course of his employment with the employer in May 1989; that the employer had failed to determine those claims; that he had properly invoked the jurisdiction conferred upon the Tribunal pursuant to s 97 of the Act which enables a worker or employer who believes that there has been undue delay in deciding a claim to apply to the Tribunal to determine a matter; and that the decision of the Full Bench of the Tribunal as reported in [2002] SAWCT 76 to strike out his application for expedited decision was a decision by the Tribunal for the purposes of s 97B of the Act. Hence, he argues that pursuant to s 97B(3) of the Act that decision has to be treated as a decision of the employer and therefore pursuant to s 97B(3)(b) it is a reviewable decision. It seems that the computer print out was placed before the Tribunal as evidence of an acknowledgment by the employer that it has an undischarged liability in respect of this alleged injury.

18 It is not my place to question the correctness or otherwise of the decision of the Full Bench to strike out the worker's application for expedited decision comprising action number 132 of 2002. My role is limited to deciding whether it can be characterised as a decision on an application for expedited determination of the type contemplated by s 97B(3). In my opinion, it cannot. I think this is made clear in the reasons of the learned President with whom on this issue it is apparent that the other members of the Bench agreed. At par 42 His Honour said:

"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."

19 In view of that observation and the order that was subsequently made by the Full Bench it is plain enough that the Full Bench was dealing with an application for summary relief to strike out action number 132 of 2002. It is not apparent whether a formal application of directions with a supporting affidavit in respect of this matter was filed as contemplated by r 21(1) of the Rules. But even that were not so, pursuant to r 21(9) the Full Bench was entitled to deal with the matter on the basis of an oral application.

20 It is also safe to assume that the President, in exercising the powers conferred upon him pursuant to s 94A(2) of the Act, referred the application directly to the Full Bench of the Tribunal which, with respect, was a logical course given that the Full Bench was dealing with numerous other matters concerning the same parties.

21 In my opinion, the type of decision to which s 97B(3) refers is a decision by which the Tribunal has stood in the shoes of the relevant compensating authority and determined to either accept or reject a claim. The Act, by formally declaring a such decision to be a decision of the relevant compensating authority that is reviewable, was doubtless overcoming the sorts of difficulties that were alluded to by the Full Supreme Court in Pashalis v Workers Rehabilitation and Compensation Corporation [1994] SASC 5143; (1994) 63 SASR 71. I do not think that s 97B(3) refers to a decision made by the Tribunal to strike out the Application for expedited decision.

22 Accordingly, in my opinion, there is no reviewable decision that is the subject of the Notice of Dispute.

23 There are numerous authorities that are often cited in this jurisdiction that make it clear that it is only the clearest case in which summary relief will be granted. It is sufficient for present purposes to refer to the often cited passage from the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 where he said:

"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action-if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal-is clearly demonstrated. The test to be applied has been variously expressed; `so obviously untenable that it cannot possibly succeed'; `manifestly groundless'; `so manifestly faulty that it does not admit of argument'; `discloses a case which the Court is satisfied cannot succeed'; `under no possibility can there be a good cause of action;' `be manifest that to allow them' (the pleadings) `to stand would involve useless expense'.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or `so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; `so to speak apparent at a glance'."

24 In my view, the worker's Notice of Dispute in action 5871 of 2002 befits these descriptions.

25 In my opinion, the employer is entitled to an order striking out that Notice of Dispute and I order accordingly.

26 Having reached this conclusion it is not necessary for me to consider whether it is appropriate to make any orders qualifying the worker's capacity to file any documents with the within action.

27 For the reasons explained by the High Court in Commonwealth Trading Bank v Inglis (supra) it is not appropriate for me to make any order to fetta either party's rights to appeal this decision.

1 The employer is entitled to the relief it seeks in par 1 of the amended application for directions.

2 The relief sought in par 2, par 3 and par 4 of the amended application for directions is refused.

3 As to the question of costs, I grant the parties liberty to apply.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.