[2000] TASSC 176

Workers' Compensation - Proceedings to obtain compensation - Determination of claims - Procedure before hearing - Persons to be notified - Joinder of person as a party - Person alleged to have caused injury by assault upon worker - Right of employer to claim indemnity - Sufficient interest.

Workers Rehabilitation and Compensation Act 1988 (Tas), s45(3).

Tasmanian Government Insurance Board v Priest A57/1993; Ryan v McCain Foods (Aust) Pty Ltd [1995] TASSC 42; (1995) 4 Tas R 101; Guiney v Bury A59/1994; Robinson v Western Australian Museum (1977) 138 CLR 283; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; referred to.

Respondent State of Tasmania: Director of Public Prosecutions

Judgment ID Number: [2000] TASSC 176

IN THE MATTER of REFERENCE NO 1359/1999 by THE STATE OF TASMANIA

1 By a reference under the Workers Rehabilitation and Compensation Act 1988, s81A(5), to the Workers Rehabilitation and Compensation Tribunal, the State of Tasmania, being the employer of Beth Luckhurst, referred the matter of the State's liability to pay her any benefits under the Act, Pt VI, Div 2 (medical and other services). Jillian Sandra Meikle applied for an order that she be joined as a party to the reference, under s45(3). On 20 April 2000 a Commissioner made an order to that effect. The worker, Mrs Luckhurst, appealed.

2 The worker was an enrolled nurse. She alleged that on 25 September 1996, she sustained an injury to her left buttock in the course of her employment, when she was kicked by Miss Meikle. On 3 October 1996, she made a claim for compensation for her injury and her claim was accepted. Compensation was paid. Subsequently, however, the employer determined to dispute its liability to pay the cost of any benefits payable under Pt VI, Div 2, of the Act and referred the matter to the Tribunal. The ground of the reference was that "the worker's present incapacity and symptomatology is not due to the injury in respect of which she claimed compensation". The reference was later amended by replacing the ground with another, that "the worker was not injured as alleged in the claim for compensation dated 3 October 1996 or at all". The Commissioner noted that upon the hearing of the reference, the Tribunal would be required to determine whether Miss Meikle did kick the worker in the area of her left buttock, as was alleged.

3 On 20 April 2000, the office of the Director of Public Prosecutions, on behalf of the employer, wrote a letter to Miss Meikle, confirming that the reference was to be heard by the Tribunal on 23 March. The letter continued:

"You should take notice that in the event that the noted reference proceeds to hearing on the 23rd March and following, and is dismissed, there will be a determination in favour of Ms Luckhurst to the effect that she has suffered an injury by accident arising out of and during the course of her employment by the State - resulting from you kicking her. The State will not then be able to dispute that determination and will be bound by the finding that you kicked her.

In such circumstances the State will seek to recover from you, pursuant to the provisions of Section 134 of the Workers Rehabilitation & Compensation Act, any compensation which it has paid or will have to pay to Ms Luckhurst. At present, the State has paid well in excess of $30,000 and its potential liability, in the noted event will be upwards of $150,000.

I also point out to you that, conceivably, the allegation made by Ms Luckhurst against you, that you kicked her during the course of both of you working an evening shift, could be a matter in respect of which a complaint might be made against you to the Nursing Board of Tasmania under the provisions of Section 56 of the Nursing Act 1995. You would doubtless be aware that disciplinary proceedings taken by the Nursing Board could result in you losing registration."

4 The Tribunal's jurisdiction to join a person as a party to proceedings was contained in s45(3), in terms that "the Tribunal may, in its discretion, join a person as a party to the proceeding if the Tribunal is satisfied that that person has a sufficient interest in the settlement of the matter to which the claim for compensation relates".

5 It was submitted to the Tribunal by Miss Meikle that she had a "sufficient interest" enabling her to be joined as a party to the reference, because of the consequences to her of an adverse finding that she did kick the worker as alleged. Firstly, she submitted that there was a prospect, as foreshadowed by the letter from the Director's office, that proceedings would be taken against her, pursuant to s134, to recover compensation paid by the employer to the worker. By subs(1), it is provided that "where an injury for which compensation is payable to a worker is caused under circumstances creating a liability in some person other than the employer to pay damages in respect of that injury to that worker, the employer may recover indemnity against that person in respect of the compensation paid by the employer to the worker in respect of that injury". Secondly, it was submitted, as alluded to in the letter, that there was a possibility of disciplinary proceedings under the Nursing Act 1995, which might imperil Miss Meikle's registration to work as a nurse. Thirdly, it was submitted that a finding of the Tribunal, adverse to Miss Meikle, would harm her reputation.

6 In his reasons for making the order in favour of Miss Meikle, the Commissioner noted that there was a dearth of decisions upon s43(3), both by the Tribunal and this Court. He was aware that the Court had made it clear that it was inappropriate for an insurer to be made a party to proceedings in circumstances where the insurer clearly had conduct of a matter on behalf of the employer (see Tasmanian Government Insurance Board v Priest A57/1993 and Ryan v McCain Foods (Aust) Pty Ltd [1995] TASSC 42; (1995) 4 Tas R 101), but not inappropriate for an insurer to be made a party in circumstances where there was a clear conflict between the interests of the employer and worker on the one part and the insurer on the other part (see Guiney v Bury A59/1994). However, the Commissioner found little assistance in what was said in the judgments in those cases. On the other hand, he found some assistance in references to the principles of natural justice in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. In Kioa at 582 Mason J stated:

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."

7 In Annettes at 598, Mason CJ, Deane and McHugh JJ stated:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

Upon a consideration of the Coroners Act 1920 (WA), their Honours concluded at 600 that there was "no ground for concluding that the Act evinces any intention to exclude the operation of the principles of natural justice". The Commissioner took up those words and said that it could not be contended that the Workers Rehabilitation and Compensation Act 1988 evinced an intention to exclude the operation of the principles of natural justice. He felt it incumbent upon the Tribunal to pay proper regard to those principles in its consideration of the application of Miss Meikle to be joined as a party.

8 The Commissioner considered the requirement of s45(3), that Miss Meikle needed to have a sufficient interest in the "settlement of the matter to which the claim for compensation relates". He thought that the word "settlement" meant something akin to determination or resolution. The term "claim for compensation" had an extended meaning given to it by s3(1) of "a claim for compensation under this Act and includes any matter or question arising in connection with or incidental to such a claim", and the Commissioner regarded the claim for compensation in this case to be the original claim made by the worker on 3 October 1996, with respect to an injury to her left buttock. The "matter" to which the claim related was considered by the Commissioner to be the liability of the employer to continue to pay to or for the benefit of the worker, the cost of any services payable under Pt VI, Div 2 of the Act.

9 Miss Meikle's application to be joined as a party was then determined in her favour for reasons which the Commissioner expressed as follows:

"Although with some reluctance, I have determined on balance that the applicant should be permitted to join as a party to these proceedings. In reaching this conclusion, I have not overlooked the fact that a finding made by the Tribunal that the applicant had kicked the worker in the left buttock would not result in an order made by this Tribunal requiring the applicant to indemnify the employer for compensation paid as provided by Section 134. Such an outcome could only be achieved by the employer taking separate proceedings elsewhere. Similarly, a finding by this Tribunal that was adverse to the applicant could not be a basis upon which the applicant was disciplined by her own employer. Such action could only result from separate proceedings initiated by a complainant as provided in the Nursing Act 1995. Nevertheless, a finding that the applicant did kick the worker would, in my view, increase the prospect of the employer seeking indemnity from the applicant as provided by Section 134. Furthermore, such a finding would also increase the prospect of a complaint being made of the applicant's conduct to the Nursing Board of Tasmania which could in turn result in the worker being disciplined, although I consider it highly unlikely that any disciplinary action would result in the applicant becoming de-registered as claimed in the employer's letter. It is my opinion that the prospect of these consequences flowing from an adverse finding of this Tribunal is a factor relevant to my determination as to whether the applicant has a 'sufficient interest'.

In reaching my determination I have also not overlooked the fact that an adverse finding made by this Tribunal against the applicant whilst she is not a party would not create an issue estoppel prejudicing her participation in proceedings in other jurisdictions (see TGIO Limited v Viney and Otrs [1995] TASSC 20; 4 TAS R 236 at 242).

Turning to the subject of the applicant's reputation, it is my view that there would be a real risk of some harm to the applicant's reputation in the event that this Tribunal found that the applicant had assaulted a co-worker in the manner alleged. This risk of harm is in my opinion little ameliorated by the requirement that proceedings before the Tribunal be heard in private (sub section 48(1)). It should be noted that the Tribunal is required to give written reasons for its determinations (sub section 61(3)) and it is the practice of the Tribunal to publish its reasons (Section 61A) and distribute them in the public domain (with the requirement that the name of the worker only be omitted). Given the nature of the incident and its occurrence in the workplace, coupled with the release into the public domain of the Tribunal's written findings, it is inevitable in my view that harm could be done to the applicant's reputation if findings were made adverse to her. This is clearly an issue which I must take into account (Kioa v West (supra))."

10 The first two grounds of appeal attack the determination of the Commissioner that Miss Meikle had a sufficient interest in the settlement of the matter to which the claim for compensation related. The Commissioner was correct in concluding that the "matter" for the purposes of s45(3), was the question of the liability of the State to pay to or for the benefit of Mrs Luckhurst, the cost of medical and other services payable under Pt VI, Div 2. It was therefore necessary that Miss Meikle show that she had a sufficient interest in the settlement or, as the Commissioner pointed out, in the determination or resolution of the question whether the State should be held to be liable to pay to or for the benefit of Mrs Luckhurst, the cost of those services. The determination or resolution of that question almost certainly depended on whether the evidence to be presented to the Commissioner established that Mrs Luckhurst was not injured, as alleged in her claim for compensation, by being kicked in the left buttock area by a registered nurse, it being common ground that the identity of the nurse complained about was Miss Meikle. The question whether Miss Meikle did kick Mrs Luckhurst was likely to be one of the most, if not the most, significant of the issues to be determined by the Commissioner on the hearing of the reference.

11 The requirement of s45(3), that the applicant needed to have a sufficient interest in the settlement of the relevant matter, has had little attention in cases before this Court, as the Commissioner pointed out. The joining of an insurer under a workers compensation policy, as a party, when the insurer was in any event entitled to exercise its rights under the policy and defend a worker's claim on behalf of the insured employer, in circumstances where there was no conflict of interest between the insurer and the employer, was criticised in Tasmanian Government Insurance Board v Priest A57/1993 and Ryan v McCain Foods (Aust) Pty Ltd [1995] TASSC 42; (1995) 4 Tas R 101, as being unnecessary and pointless, although, it should be emphasised, not on the ground that the insurer in question did not have the sufficient interest required by the subsection. On the other hand, the adding of an insurer as a party was seemingly approved in Guiney v Bury A59/1994, in which the insurer wished to establish that the date of the occurrence of the worker's injury was outside the period of the cover of the policy and the employer, and not the insurer, should therefore have to bear the risk. I think that those cases demonstrate that notwithstanding that an insurer may have a sufficient interest for the purpose of the subsection, nevertheless the subsection gives to the Tribunal a discretion whether or not to make an order joining the insurer as a party, and the way in which the discretion should be exercised will depend on the circumstances of each particular case.

12 The question whether a person has a sufficient interest will also depend on the circumstances of the particular case. In Robinson v Western Australian Museum (1977) 138 CLR 283 at 327 - 328, it was said by Mason J that "the cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another". Similarly in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36, Gibbs CJ said that "the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation".

13 Accepting that there is little to be gained from an abstract discussion of the range of interests that will support a conclusion of a sufficient interest (Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at 528 and 547), I turn to a consideration of the circumstances of this case. I add, however, that I gain virtually no assistance from the considerable number of cases cited by counsel for Mrs Luckhurst, dealing with questions of locus standi in litigation involving questions of public interest and similar questions.

14 A person who merely has an interest as a witness does not, in my opinion, have a sufficient interest for the purposes of the subsection, nor do I think it to be convincingly arguable that because a person's reputation may be at stake, he or she has a sufficient interest to be added as a party to a case, particularly a workers compensation case. Persons' reputations are no doubt at stake, in a broad sense, in a great number of cases which come before courts and tribunals. But an interest in maintaining one's reputation cannot, I think, be alone regarded as a sufficient interest in the settlement of a matter to which a claim for workers compensation relates. So I do not consider that the fact that Miss Meikle's reputation may be affected, as a consequence of the hearing and determination of the State's reference, gives her the sufficient interest which the subsection requires. Nor do I consider that the mere possibility of disciplinary proceedings being initiated against Miss Meikle under the Nursing Act 1995, in the event that the reference is determined in favour of Mrs Luckhurst, amounts to a sufficient interest. Such proceedings would by no means be certain to follow and in any event, I do not think that Miss Meikle's concern in avoiding the institution of disciplinary proceedings has a sufficiently direct connection with the determination of whether the State should continue to pay for Mrs Luckhurst's medical and other services.

15 I do, however, conclude that Miss Meikle has a sufficient interest in the determination of that matter because of the likely consequences to her if the State loses the reference. In the event of that occurring, the State will remain liable to pay for Mrs Luckhurst's medical and other services and it has already foreshadowed, in the letter to Miss Meikle from the Director's office of 20 March 2000, that "in such circumstances the State will seek to recover from you, pursuant to the provisions of Section 134 of the Workers Rehabilitation & Compensation Act, any compensation which it has paid and will have to pay to Ms Luckhurst". She therefore has a direct interest in the determination of the reference. If having been added as a party to the reference, she is successful in having it determined in favour of the State, she will ensure that she will not become liable to indemnify the State for the cost of the services that would have been liable to pay if the reference had been unsuccessful. The State would not make a claim against her by way of indemnity under s134(1), to recover what it would have had to pay to or for the benefit of Mrs Luckhurst. Of course, as noted by the Commissioner, no finding or order of the Tribunal would directly result in the applicant being required to indemnify the State. Such an outcome could only be achieved by the State taking separate proceedings against her. But nevertheless, she does in my view have a sufficient interest in the relevant matter. Although not in full agreement with the Commissioner's reasons, I agree with his conclusion in that regard.

16 Although it is not a ground of the appeal, I think with respect that the Commissioner's reasons are open to some criticism, because they do not reflect the two-stage process required by s48(3), that of determining whether Miss Meikle had the sufficient interest required by the subsection and if so, of then determining whether or not to exercise the discretion given by it. Nevertheless, the Commissioner did purport to exercise the subsection's discretion, and it is with that and the third and last ground of the appeal that I now deal.

17 The third ground attacks the exercise by the Commissioner of his discretion, but only to an extremely limited extent, for it merely claims that the Commissioner "erred in law ... in failing to take into account, as a factor in the exercise of the Tribunal's discretion, the anticipated prolongation of the proceedings by reasons of her joinder as a party thereto". In the course of his submissions to the Commissioner, on the hearing of Miss Meikle's application to be joined as a party, counsel for Mrs Luckhurst submitted that there was a grave danger of prolongation of the proceedings by argument and evidence, including cross-examination of witnesses, relating to matters which concerned Miss Meikle, namely her reputation and status. Rather than the Tribunal merely having to determine the narrow issues raised by the State's reference, it was submitted by counsel for Mrs Luckhurst that other issues would be raised, thereby extending the length and scope of the hearing. The Commissioner did not refer to the submission in his reasons, but I do not think that is of any material consequence, for I see no merit in it. Although questions of Miss Meikle's reputation and status may have been of concern to her, and were raised by her as a consideration upon the hearing of her application to be joined as a party, they will not be issues at the eventual hearing of the State's reference to the Tribunal. Miss Meikle will be a party to the proceedings, for that is what s45(3) provides, but the hearing will nevertheless be restricted to a hearing of the employer's reference. The primary issue will be whether Mrs Luckhurst was injured as alleged by her. Evidence going to that issue will be relevant and argument concerning it will be addressed to the Commissioner. But questions of Miss Meikle's reputation and status will not become issues for determination as a consequence of her joinder as a party.

18 Counsel for Mrs Luckhurst also referred the Commissioner to a passage in a letter dated 21 March 2000 from Miss Meikle to the Registrar of the Tribunal, in which she stated that she anticipated it would take a complete day for her witnesses to give evidence and probably another day for cross-examination. I think that Miss Meikle's letter should be considered in full and in the light of the circumstances as she apparently understood them to be. Earlier in the letter she inferred that she had taken offence as a result of an approach to her by an investigator, on behalf of the State, and a request that she give evidence relating to the substantial recovery by Mrs Luckhurst from the injuries she received when Miss Meikle allegedly kicked her. Miss Meikle expressed concern that the State appeared to be accepting that she had kicked Mrs Luckhurst, whereas she maintained that she had emphatically and consistently denied that she had ever kicked her. She therefore wished to have the opportunity to prove that she had not. However, by the time Miss Meikle's application to be joined as a party was heard by the Commissioner, the ground of the State's reference had been amended from a ground which claimed that Mrs Luckhurst's incapacity and symptomatology were not due to the injury in respect of which she claimed compensation, to a ground that maintained instead that Mrs Luckhurst had not been injured as alleged by her at all. That will probably be the principal issue for determination by the Commissioner and the evidence will need to be relevant to it. It is likely that any evidence Miss Meikle could give or call tending to show that she had not kicked Mrs Luckhurst, would be evidence the State would wish to call or rely upon in any event. I do not think it is open to conclude, merely from the contents of Miss Meikle's letter of 21 March, that as a result of her being joined as a party, the length of the hearing of the State's reference is likely to be extended by two days. Once again the Commissioner did not deal with this aspect in his reasons, but even assuming he did not have regard to it, I am not persuaded that if he had done so, there is any real prospect that he would have been persuaded to exercise his discretion in favour of Mrs Luckhurst.

19 On balance, I am not persuaded that the decision of the Commissioner to join Miss Meikle as a party was erroneous upon a basis raised by the grounds of appeal. Accordingly, there will be an order that the appeal is dismissed.