Pantel v WorkCover Corporation

"Hi I'm still overseas I won't be able to attend the tribunal meeting. I'm coming back in June."

1. Neither Mr Pantel, nor his representative, attended the Tribunal on 29 April 2015. On this occasion I ordered that the respondent file an affidavit of service setting out how service of its Application for Directions, to strike out Mr Pantel's Notice of Dispute, was served upon him. I further ordered that the strike out argument was to be heard before me on 27 May 2015 and that Mr Pantel, or his representative, was to attend on this occasion.
2. Mr Krashos for the respondent emailed[11] Mr Pantel on 29 April 2015 advising him as to the history of the litigation and that the strike out argument would be heard on 29 May 2015. Mr Krashos requested that Mr Pantel urgently respond to him.[12]
3. By affidavit, Mr Krashos deposes that he received no response to his email to Mr Pantel of 29 April 2015.[13]
4. On 25 May 2015, my associate received a telephone call from someone who said that they were in a relationship with Mr Pantel. This person asked for the court case to be adjourned as Mr Pantel was in India. As the identity and authority of the caller could not possibly be verified, I treat this information with caution.
5. Whilst Mr Krashos attended in court for the argument on 29 May 2015, Mr Pantel did not. Mr Krashos asked me to strike out Mr Pantel's Notice of Dispute as his matter had been on foot in the Tribunal for a significant period of time and he had failed to adequately prosecute his dispute despite having ample opportunity to do so. I reserved my decision.
6. Despite hints that Mr Pantel may be returning to South Australia, firstly in October 2014 and then in June 2015, there is no evidence before me as to whether he has so returned, or if not, when, if ever, he will actually return.
7. On an Application for Directions the Tribunal has power to strike out any document filed in an action in order to facilitate the fair and expeditious hearing of a matter.[14]
8. The Tribunal exercises jurisdiction pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA). An object of the Act is to reduce litigation and adversarial contests to the greatest possible extent.[15] The Tribunal must interpret the Act in light of its objects without bias towards the interests of employers or workers.[16]
9. Accordingly, I must weigh what does justice to the occasion; on the one hand Mr Pantel's right to challenge the decision to discontinuance of his weekly payments; on the other, prejudice to the respondent in the delay in the conduct of proceedings, including the issues of repeated unproductive attendances and escalating costs. Moreover, I must consider the duty of the Tribunal to resolve disputes before it fairly and expeditiously and in accordance with the proper administration of justice.
10. The litigation in this matter was initially extended and the adversarial contest prolonged because Mr Pantel did not attend the necessary medical examinations.
11. Since then Mr Pantel has demonstrated an inability or unwillingness to cooperate with the Tribunal, and the respondent, by: firstly, failing to properly instruct his then legal representatives; secondly, then repeatedly failing to attend the Tribunal either personally or by representative; and thirdly, not properly advising the Tribunal, or the respondent, over a lengthy period of time as to how he intends to conduct his litigation.
12. Mr Pantel's repeated failures to participate in the Tribunal's dispute resolution processes - conciliation and judicial determination - has significantly obstructed the conduct of this litigation. His inaction has prolonged the litigation and the adversarial contest, hindering the Tribunal's duty to promptly and justly resolve disputes before it. Indeed the dispute is now no further advanced than it was a year ago, the responsibility for this inordinate delay is Mr Pantel's alone.
13. Accordingly, I order that the Notice of Dispute dated 19 February 2014 is struck out for want of prosecution.

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.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[1] Workers Rehabilitation and Compensation Act 1986, s 35B(1).

[3] Krashos affidavit 4 August 2014, paras 10 and 11.

[4] Application for Directions dated 21 August 2014.

[7] Vaezi affidavit 1 September 2014, para 8.

[9] Supreme Court Civil Rules 2006, r 23.

[10] Email dated 16 April 2015 at 4.22pm.

[11] Mr Krashos corresponded to the email address used by my associate and responded to in para 23.

[12] Krashos affidavit 19 May 2015, Exhibit GK1.

[14] South Australia Workers Compensation Tribunal Rules 2009, r 22(5)(a)(xxi).

[15] Workers Rehabilitation and Compensation Act s 2(1)(f) [and see South Australia Police v Barber [2001] SAWCT 100 at 57].