Moore-McQuillan v Workcover Corporation/Vero Workers Compensation

2.

The worker is suffering from stress and related disabilities which are making the hearings in the WCT prolonged and drawn out and a legal representative work [sic] quicken the process.

3.

WorkCover pay the worker his Full entitlement pursuant to the Act as the worker is prejudiced by the economic duress WorkCover have caused by not paying the entitlements.

4.

the issue of 4(7) income be brought on before Olsson AUJ to be examined for workcover not complying with the Act."

3 The applicant filed two successive written outline submissions in support of his application, the second containing references to two specific topics that were not the subject of the application. I therefore declined to receive submissions on those topics, to which I shall later refer.

4 At the request of the applicant I called the matter on by way of telephone link to afford the parties an opportunity of making oral submissions in relation to the application. It must be said that such a process was extraordinarily difficult, as the conduct of the applicant was such as to render a meaningful hearing process almost impossible. However, I did ultimately receive oral submissions from both parties, although the applicant repeatedly sought to range far beyond the matters referred to in the application for directions.

5 At the end of the hearing I indicated to the parties that I would advise my considered decision in relation to the matters properly raised in writing. This I now proceed to do.

Paragraphs 1 and 2 - Legal Representation of the Applicant

6 These paragraphs seek an order of the Tribunal requiring the respondent to arrange for the representation of the applicant by a lawyer at its cost. It is asserted by the applicant that such a course had been mooted on previous occasions by the Tribunal and WorkCover and that the stress to the applicant of the long and protracted hearing of his matters and the associated economic duress arising from non-receipt of income maintenance payments is causing him serious disadvantage.

7 In his written submissions the applicant stated that he is now suffering further stress, anxiety beyond that earlier suffered by him and also reactive fear when trying to attend the Tribunal. He asserts that his raised heart rate and tingling down the left side coupled with the nausea, severe headache, etc make it impossible for him to attend, or be able to follow a full day of protracted hearings. He sought to make reference to stress claims additional to those currently before me, that are apparently the subject of documentation filed in the Tribunal which has not been assigned to me for hearing and determination.

8 When requested by me to indicate any statutory provision that would authorise or justify the making of the order sought, the response of the applicant was to the effect that he was unable to do so, but that he had been informed by a Member of Parliament that there was power to make such order.

9 Mr Downs, of counsel for the respondent, submitted that the Tribunal had no power to make the order sought and that, in any event, as a matter of practicality, it would be inappropriate to entertain such a situation at this advanced stage of the matters presently being heard. He referred to the past history of what was said to have been somewhat abortive legal representation of the applicant.

10 The topic of costs of representation of a party (other than WorkCover) is dealt with by s 95 of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). So far as relevant for present purposes it provides as follows:-

"95(1) A party (other than the relevant compensating authority) is entitled, subject to this Part and to the limits prescribed by regulation, to an award against the relevant compensating authority for the party's reasonable costs of -

(a)

the initial reconsideration of a disputed decision; and

(b)

any subsequent proceedings for resolution of the dispute under this Part (but not proceedings by way of appeal or case stated to a Full Bench of the Tribunal or the Supreme Court).

(a) the cost of representation by a legal practitioner or an officer or employee of an industrial Association; and

(b)

costs of a kind authorised by the regulations that were reasonably incurred.

(3) If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the Tribunal may-

(a)

decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(b)

reduce the amount of the award to which the party would otherwise have been entitled."

11 The section goes on to deal with certain other aspects not presently relevant.

12 My attention has not been drawn to any authority that sanctions or warrants the making of a prospective order for costs. This is scarcely surprising as such an order, if made, would essentially pre-empt any consideration of issues arising under sub-section (3). An order for payment of costs requires the exercise of a judicial discretion at the conclusion of the relevant proceedings having regard to all matters relevant for consideration under s 95.

13 In my opinion, there is no power in the Tribunal to accede to the application made in paragraphs 1 and 2 of the application for directions. Even if I am incorrect as to that, I see no basis upon which such order could properly be made in the circumstances of the present case bearing in mind, amongst other things, foreshadowed applications on the part of the respondent pursuant to sub-section (3) of s 95.

Paragraph 3 - Claim for payment of "full entitlement pursuant to the Act"

14 In his written submission the applicant seeks this relief because he says that he "is prejudiced by the economic duress WorkCover have caused by not paying the entitlements". He argues that the economic duress in question is not a normal situation for anyone appearing before the Tribunal. He has referred to the fact that he is bankrupt and in receipt of Social Security disability benefits. He says that he has been without an income, even though medical certificates state that he has been entitled to income benefits pursuant to the Act since 2000. He contends that he has been unable to provide what he describes as "the required evidence" to the Tribunal because the respondent has control of his income and by removing it, has secured "a superior advantage with unlimited finances". He makes the statement that the respondent and I have exploited this to his prejudice.

15 As Mr Downs, in effect, points out, this claim really begs the essential questions arising for determination in the present proceedings. What is currently under consideration is whether, in all the circumstances, the respondent was justified in law in suspending the applicant's income maintenance payments and what (if any) other entitlements to compensation the applicant has by virtue of any relevant compensable incapacities suffered by him.

16 The short answer to this claim is that it attempts to pre-empt the outcome of the very proceedings in which the application is brought. Plainly, the order sought cannot possibly be made in pursuance of the application for directions.

Paragraph 4 - The s 4(7) issue

17 In a practical sense this claim is really an extension of that referred to in paragraph 3 of the application for directions.

18 Be that as it may, the applicant contends that this question ought to be brought on before me "to be examined for WorkCover not complying with the Act". In his written submission he argues that this would resolve his economic duress and that "it would only require the two State awards that the worker was covered by, being the Retailer's Industrial Award (Retail Industry (SA) Award) and the Ports Corporation Enterprise Bargaining Agreement". He produced a spreadsheet containing what he said were the appropriate proper calculations.

19 Quite apart from the fact that seeking to prosecute this claim would be to raise an issue that is not currently properly before me in the present proceedings, it seeks, yet once again, to raise an issue that has long since been dealt with, adversely to the applicant, in other proceedings.

20 In paragraphs 37 to 41 inclusive of the first decision I recited the history of attempts on the part of the applicant to reopen the original determinations of the two review officers who initially dealt with his claims, in an attempt to pursue the very s 4(7) issue referred to in the application for directions. Those attempts were unsuccessful at first instance. A refusal to grant an extension of time to raise them was upheld after the hearing of successive appeals.

21 Moreover, the same issue has been raised by the appellant as specific grounds in his appeal against my decision referred to in the first decision. That matter is currently before the Full Bench awaiting its judgment.

22 In the foregoing circumstances it is simply not open to the appellant to seek to ventilate the matter in the present proceedings.

Conclusion

23 It follows that the applicant is not entitled to any of the relief claimed in his application for directions. That application must therefore be dismissed.

24 Having arrived at that conclusion, I reiterate that, in the course of a second version of his written outline of argument received by me on 21 August 2006, the appellant sought to raise two additional issues that were not the subject of the application for directions before me.

25 The first of these related to the question of payment for the cost of medication related to his asserted stress and knee injuries. As I understand the situation the relevant issues are of recent origin and are the subject of separate disputes filed in the Tribunal. Those disputes have not been assigned to and are not before me.

26 The second appeared to be a complaint in relation to earlier rulings that I had given in the present proceedings related to the tender of certain certified documents related to a boat and a motor vehicle that had been registered in the name of the appellant. It is by no means certain precisely what the appellant is now seeking by way of any order in relation to these matters.

27 I intimated to the applicant that I was not prepared to entertain submissions on either of the above two topics, as they were not raised by the application for directions before me.

28 I note that, almost immediately after I had reserved my decision in relation to the application for directions, the applicant sent by e-mail to my associate what purports to be a further application for directions in the present proceedings. He has backdated this to 16 June 2006.

29 This application specifically seeks to raise the two additional topics to which I have just referred.

30 I do not propose to list the last mentioned application for directions for hearing at this stage. It is plain, on the face of the document, that I have no power to deal with the question of medication as there is no dispute related to it that has been assigned to me for hearing and determination. Secondly, insofar as it complains about what is described as "The abuse of tendering documents and gathering of evidence" it does not seek any particular order. In so far as it seems to assert what is described as prejudice and bias by me towards the applicant, it is no more than a complaint concerning rulings that have long since been given by me in the course of the current trial. There remains nothing for me to further rule upon in that regard.

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.