MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer

Supreme Court of NSW|2015-12-03|Before: Adamson J, Robb J

Solicitors: Woods and Day File Number(s): 2015/128752

Introduction

MM International (Australia) Pty Ltd (the plaintiff) applies, by notice of motion filed on 9 November 2015, for a referral for legal assistance under Div 9, Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Mohammad Hussain and his wife, Bazlunnahar Bilkis, sought, and were granted, leave to appear on behalf of the plaintiff, which is a company of which they are both directors.

Evidence

The plaintiff relies on an affidavit of Mr Hussain sworn 6 October 2015 in which he deposes that he seeks advice, representation and assistance and does not have the capacity to pay a lawyer to represent the plaintiff. The plaintiff also relies, in support of the motion, on an affidavit of Mr Hussain sworn 4 November 2015 and filed in the substantive proceedings.

The background to the proceedings

The present proceedings were commenced by summons filed on 30 April 2015. The summons seeks to have the judgment of the Local Court set aside. The proceedings in this Court are an appeal from the Local Court. This Court's jurisdiction to determine the appeal is relevantly provided for by ss 39 and 40 of the Local Court Act 2007 (NSW). Section 39 makes provision for appeals as of right on questions of law. Section 40 makes provision for appeals by leave on a ground that involves a mixed question of fact and law. Section 41(1) provides for the orders that may be made by this Court when determining an appeal and includes an order to set aside the judgment.
The Workers Compensation Nominal Insurer (the defendant) obtained judgment against the plaintiff in the Local Court in the total sum of $17,994.05, which comprised the amount claimed of $14,395.24 and costs of $3,398.81. The claim in the Local Court was for unpaid workers' compensation premiums. The payment of such premiums is governed by the Workers Compensation Act 1987 (NSW). My understanding from Mr Hussain is that the premiums which taxi operators are charged are calculated by reference to the number of taxi plates and the usage of the taxis.
Section 170 of the Workers Compensation Act relevantly provides that an employer has a right to have the premium demanded by an insurer reviewed by the WorkCover Authority. Section 172 relevantly provides that the making of an application to the Authority under s 170 (determination of premium to be charged) does not affect the entitlement of an insurer under this section to recover the premium (or part of premium) concerned.
The effect of these statutory provisions was recently summarised by Robb J in Arora Markets Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 107 at [30] as follows: "Relevantly, an employer who receives a claim from the defendant Workers Compensation Nominal Insurer for a premium for a workers compensation insurance policy is obliged to pay the full amount of that premium as claimed as a debt. If the employer wishes to challenge the amount payable, then the employer must dispute the determination by application made in writing to WorkCover within one month of receiving the determination. The initiation of a dispute does not absolve the employer from the need to pay the whole of the amount originally determined. If WorkCover reduces the amount payable, then the employer is entitled to receive a refund from the defendant for the difference. Only WorkCover has power to review and vary the amount of premium determined by the defendant. The amount and proper calculation of the premium cannot be challenged or reviewed by any court."

The financial position of the plaintiff and its principals

The narrative which Mr Hussain and Mrs Bilkis have given me from the bar table, part of which also appears in Mr Hussain's affidavits, is that the plaintiff initially ran an export business as well as a taxi business in Sydney. However, when Mr Hussain and Mrs Bilkis moved to Canberra, the plaintiff discontinued the export aspect of its business and solely operated a taxi business in the Australian Capital Territory. At one time, the plaintiff had ten taxi plates but it now only has three. Because of ill-health and an assault which occurred while he was driving one of the taxis, Mr Hussain is no longer able to drive a taxi as frequently as previously, or at all.

The defendant's position

Mr Blackie, who appears on behalf of the defendant, supports the application for referral for legal assistance. However, Mr Blackie informed me from the bar table that Mr Hussain was legally represented in his claim for damages for personal injury arising from an assault to him in the taxi against the third party motor vehicle insurer (which, I was informed, was ultimately dismissed by consent) and contended that this legal representation may well be available to the plaintiff in these proceedings.

Relevant legislation

Division 9, Pt 7 of the UCPR provides that the Court may refer a matter for legal assistance with a view to facilitating, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance. Pursuant to UCPR 7.35, the Registrar of this Court maintains a Pro Bono panel made up of barristers and solicitors who have agreed to participate in the scheme by making themselves available to provide legal assistance in circumstances contemplated by Div 9 of Pt 7.
If I am satisfied that it is in the interests of the administration of justice, UCPR 7.36 empowers me to refer the litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono panel.

Consideration

The matters which I may take into account in deciding whether to refer a litigant to the panel are set out in UCPR 7.36(2). I shall address each relevant matter in turn.

The means of the litigant: UCPR 7.36(2)(a)

The first relevant matter is the means of the litigant. Mr Hussain and Mrs Bilkis reside in rented accommodation in Canberra. They have no assets other than their interest in the plaintiff, which owns three taxis. Mr Hussain informed me from the bar table that the plaintiff's taxi business is no longer profitable.

Capacity to obtain legal assistance outside the scheme: UCPR 7.36(2)(b)

Mr Hussain and Mrs Bilkis also informed me from the bar table that they have not been able obtain legal assistance and, furthermore, that they cannot afford to pay a solicitor to represent them in the proceedings.
I note that, according to Mr Blackie, Mr Hussain obtained legal representation for his action for damages for personal injury arising from the assault which occurred in his taxi. I do not regard this matter as indicating that the plaintiff has the capacity to obtain legal assistance outside the scheme. It is a matter of common experience that there is a group of practitioners at the Bar and amongst the solicitors' branch of the profession, who are prepared to act on a speculative (no win, no fee) basis for plaintiffs who make claims for damages for personal injuries. However, there is no reason to suppose that a barrister or solicitor who was prepared to act on such a basis on behalf of Mr Hussain in the District Court proceedings for damages for assault would be prepared to act in the present proceeding, which is, in substance, an administrative law matter arising from what is, essentially, a commercial dispute.

The nature and complexity of the proceedings: UCPR 7.36(2)(c)

Another relevant matter is the nature and complexity of the proceedings. On one view, the proceedings are relatively straightforward, or at least they were in the Local Court, in that the defendant in these proceedings, who was the plaintiff in the Local Court, was seeking judgment as a result of a statutory debt created under the Workers Compensation Act. However, the proceedings in this court are somewhat more complicated because the plaintiff must identifying a question of law (or a mixed question of law and fact) in the decision of the Local Court in order for this Court to have jurisdiction. The identification of a question of law is a matter which requires legal expertise. This Court's jurisdiction under ss 39 and 40 of the Local Court Act does not permit parties to relitigate the merits of the proceedings, which concern questions of fact. Often persons who are not lawyers have difficulty in making this distinction and identifying and articulating a question of law for the Court's consideration.

Whether previous referral has been made: UCPR 7.36(2A)

I cannot refer a litigant for assistance if the litigant has obtained assistance under a previous referral. There is no suggestion that that has occurred.

The interests of the administration of justice: UCPR 7.36(1)

Whether a referral is in the interests of the administration of justice gives rise to countervailing concerns. On the one hand, it is important and desirable that litigants obtain legal assistance in matters in this Court where there is likely to be a degree of complexity because legal advice and representation tends to promote the efficient and cost effective disposal of Court business, particularly in matters such as the present which require particular expertise. Furthermore, such a referral may well improve the prospects of a litigant obtaining good legal advice and therefore being able to assert his or her legal right in the most efficient and cogent way. It may also assist litigants, who do not have a legal right, to accept advice to that effect and, if that be the case, not to continue their proceedings in this Court.
On the other hand, the barristers and solicitors who have offered to provide their services for no remuneration ought not be exploited. For this reason, it is important that matters not be referred to the panel unless there is some real basis for considering that such a course is likely to be productive of benefit to the litigant or to the administration of justice. The interests of the administration of justice include the interests of the defendant, who is obliged to come to court to meet any claim.
It may be that the prospects of the plaintiff obtaining any relief in this Court against the judgment ordered by the Local Court are slim having regard to the provisions to which I have referred in the Workers Compensation Act. However, in my view, it is nonetheless in the interests of the administration of justice for the principals of the plaintiff, Mr Hussain and Mrs Bilkis, to have the benefit of some legal advice in order that they may appreciate their position and what legal action may be taken, if any, whether in this Court or otherwise, to redress what appears to them to be an unjust result.

Conclusion

In these circumstances, I consider it to be in the interests of the administration of justice to refer the principals of the plaintiff for legal assistance. Accordingly, the application is granted.

Application for an adjournment

The plaintiff also sought an order that the hearing date of 24 March 2016 be vacated. The basis for that application is that, on 20 November 2015, Mr Hussain suffered from symptoms of an acute heart condition, as a result of which he was admitted to hospital for two days. Upon his discharge he was told that he required a procedure, including an angioplasty, and that it is likely that that procedure will be able to be performed in January 2016. Accordingly, there is a doubt as to whether he will have recovered sufficiently to participate in the proceedings on 24 March 2016.
I am not prepared, in these circumstances, to adjourn the hearing date, because it depends on uncertainties which will be resolved by events. It may be that, if Mr Hussain is required to undergo the procedure, he cannot attend in March 2016, in which case either Mrs Bilkis or a legal representative may be able to run the case on behalf of the plaintiff. My reasons for refusing the application for adjournment now are not, however, intended to foreclose any further application being made once the state of Mr Hussain's health, closer to the time, becomes known.

Orders

For the foregoing reasons, I make the following orders: 1. Grant the plaintiff's application for referral to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. 2. Refuse the plaintiff's application for the adjournment of the hearing date from 24 March 2016 and confirm the hearing date on 24 March 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2015

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