Rita Sargeant as administrator of the Estate of Emily Caridi (deceased) v Return to Work Corporation of South Australia [2025] SAET 81

1. The Application is based on a submission that Aldi will not be able to receive a fair hearing as it is prejudiced because Ms Caridi cannot be cross-examined. In addition, corroboration of the treatment subsequently sought cannot be provided. It follows, the Application asserts, that "there can be no rational basis for preferring the deceased's version of events over the employer's."[2]
2. In its outline of argument, Aldi accepts there is little conflict about the spitting incident, but it contends that the facts surrounding the allegation there was unreasonable behaviour by Mr Caridi's manager, including in relation to the release of the CCTV, is "hotly disputed".[3]

1. Aldi submitted that the dispute concerns Ms Caridi mentioning being hospitalised for a nervous breakdown on or around 8 August 2023 in an interview in relation to her claim, and making a complaint that she was being taunted by the CCTV footage being deliberately withheld from her. Ms Caridi also claimed that she received pestering telephone calls, whereas Aldi submits the calls were a proper part of ensuring and monitoring her well-being.
2. It was submitted that Ms Caridi made statements under the "oppression" of mental illness and "potentially also serious alcohol abuse".[4] It was put that there is no corroborative evidence of victimisation or other unreasonable behaviour by Aldi.
3. It was also said that Ms Caridi exhibited delusional behaviour, a matter not raised by any psychiatrist who saw her, and a proper psychiatric analysis of her behaviour now cannot occur. The issue cannot be resolved other than by pure speculation or supposition, and a favourable determination of the claim is not achievable.
4. The Application was said to be based on s 41 of the South Australian Employment Tribunal Act 2014 (SAET Act) and rule 50(v) and (x) of the South Australian Employment Tribunal Rules 2024 (SAET Rules).
5. In oral submissions, it was said that Ms Caridi withheld information that showed she was paranoid from Dr Papier. That led to an incurable loss of evidence. It was submitted that the affidavit evidence of Ms Caridi's brother supports Aldi's submission that Ms Caridi became paranoid before her death.

1. The Corporation opposed the Application. It submitted that the standard for summary dismissal is very high and is not reached on these facts. Reference was made to Batistatos v Roads & Traffic Authority of New South Wales[5] in relation to whether maintaining the proceeding could be said to be an abuse of process. There was through no fault of the plaintiff, who could not bring his own proceeding, a delay of some decades in instituting the proceeding, and it was said that there was an innate unfairness in being able to prosecute the proceedings.
2. What was said by McHugh J, and cited by the plurality, was that while the categories of abuse of process remain open, they usually distil to firstly, whether the Court's procedures are invoked for an illegitimate purpose, secondly, whether use of the Court's procedures is unjustifiably oppressive, or thirdly, whether using the Court's procedures to the end sought, would bring the administration of justice into disrepute. It was said that the death of a witness presents questions of difficulty of proof ordinarily for an applicant who needs to prove their case according to the balance of probabilities, and usually presents an advantage for the respondent.
3. The Corporation submitted that there is nothing consonant with propositions of abuse of process involved in being unable to have a particular witness before the court. There are all sorts of principles of evidence that are applied as to what occurs when you can't call a relevant witness. These include the extent to which an ordinarily reliable secondary record of evidence might be admissible under s 34 of the Evidence Act 1929 and the extent to which the statement given to the investigator might be admissible as a business record. Sections 34, 35, 52 and 53 all have potential application here.
4. Senior counsel for the Corporation relied upon what Doyle J said in Adelaide Brighton Cement v Hallett Concrete Pty Ltd and Ors (ABC):[6]

By way of summary of the approach articulated in Spencer v Commonwealth,[7] it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.

Related to the requirement that the Court undertake a "practical" assessment is the notion that the Court should not embark upon a 'mini trial' of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court's decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.

[Some footnotes omitted]

1. Senior counsel went on to point out how Doyle J distinguished between an application for summary dismissal and granting summary judgment. He said that the former depends on there being no proper claim, or expressed differently, a claim that cannot possibly succeed.

1. Counsel for the applicant focussed on factual matters that can be proven and that show that the test for summary dismissal is not made out. He submitted that the failure of store management to contact the police, lodge a police report, or take any photos in relation to the incident suggests that Aldi sought to downplay the incident. In her record of interview, Ms Caridi said the store manager asked her what making a police report would achieve. Counsel said the applicant's confidence in how the spitting incident was handled was not assisted by the store manager telling Ms Caridi in giving her statement to: 'Get it as close to mine as you can'.[8]
2. Counsel submitted that the record of interview with Ms Caridi showed that she was ruminating about the spitting incident, and that the delay in providing her with access to the footage was psychologically damaging to her. Ms Caridi's record of interview describes a protracted and somewhat confusing process in relation to the response to her request to see the CCTV footage. Ms Caridi went to the store on a day when she was not rostered to work specifically to see the footage. In her record of interview, she stated that another employee told her that the store manager had said that he had no intention of showing Ms Caridi the CCTV footage despite saying that he would.
3. It was also pointed out that the area manager responsible for the store in question spoke with Ms Caridi on 5 August 2023, the day on which he came into the store to see the CCTV footage. He said that before Ms Caridi arrived at the store, she called him and sounded hysterical.
4. Counsel acknowledged that the applicant needs to show that the injury claimed did not arise from administrative action, and if it did, that it had to be shown that the action was unreasonable or was conducted unreasonably. Ms Caridi attended the store in question on a Saturday, the busiest day of the week for the store, so there may be an explanation for why the CCTV footage was not shown then.
5. Counsel sought to make the point that there is ample evidence to base a decision on in relation to whether Ms Caridi sustained a work injury.

1. I made two observations in response to the Application. Firstly, while Aldi is not able to cross-examine Ms Caridi, Ms Caridi's account will not be given by her, nor can she respond to the accounts of the witnesses called by Aldi. As senior counsel for the Corporation submitted, that would seem to be a greater impediment for the applicant's case than for Aldi's case.
2. Secondly, it has long been the case in our adversarial system of justice that all evidence is weighed according to the proof which is in the power of one side to produce, and in the power of the other side to contradict: Blatch v Archer.[9] Hearings may not take place on a completely level playing field. Over time, rules and procedures have been developed to deal with situations where one or more parties are at a disadvantage. Dismissing a proceeding because of a difficulty one party encounters is not appropriate if the other party faces a disadvantage of similar or greater magnitude.
3. Section 41 of the SAET Act provides:

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process.

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and may make any related or ancillary order.

(3) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

(4) If a proceeding is dismissed or struck out under this section, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a Presidential member.

1. Relevantly to this proceeding, rule 50 of the SAET Rules provides that a Presidential member of the Tribunal may make such directions or orders as are necessary, including:

(v) dismissing or striking out a proceeding, or part of a proceeding;

(x) granting summary relief;

1. I accept the submissions of senior counsel for the Corporation in relation to what constitutes an abuse of process, and by implication and extension, what constitutes an improper purpose for bringing an action.
2. The law would rightly be criticised if an event in employment, which a worker has claimed caused a work injury and loss of income, could be defeated by the death of the worker. The criticism is amplified if the death of the worker is related to the incidents the claim is based upon.
3. In saying that, I do not suggest what the outcome here should be or is likely to be. Counsel for Aldi submitted that Ms Caridi was delusional after the spitting incident. That is for the Presidential member who hears the substantive dispute to decide. Aldi is entitled to submit that other factors had a bearing on Ms Caridi's mental state at relevant times. There are witnesses that Aldi can call about Ms Caridi's behaviour. Their accounts, and Ms Caridi's record of interview, can be put to psychiatrists.
4. The approach taken by this court in relation to summary dismissal of proceedings is consonant with the approach described by Doyle J in ABC. In Longford v Department for Education,[10] Eaton DP cited the passage from ABC set out above and said:[11]

The test requires a demonstration of the outcome of the litigation not an assessment of the prospects of its success.[12] It is a test demonstrating certainty of outcome.[13]

1. Eaton DP referred to Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2),[14] where McKerracher J set out some principles relevant to summary judgment, one of which is:[15]

the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney [2015] FCA 1045; (2015) 239 FCR 381 per Perry J (at [37]);

1. This proceeding is not an abuse of process, nor is it being maintained for an improper purpose, and its outcome is not certain. The standard required to summarily dismiss a proceeding is not met.
2. Having regard to the factual matters addressed by counsel for the applicant, I am far from satisfied that the claim has no reasonable prospect of success. The matter should be allowed to proceed to a hearing.
3. I make the following orders:
   1. The Application is dismissed.
   2. There is liberty to apply if incidental orders are sought.
   3. Adjourn to telephone directions on 26 August 2025 at 9.15am.

[1] See the history provided to Dr Estela Papier in her medical report dated 20 September 2023.

[2] Affidavit of Margaret Kaukas affirmed on 4 March 2025 [12].

[3] Employer's Outline of Argument [2].

[5] [2006] HCA 27; (2006) 226 CLR 256.

[6] [2020] SASC 161 at [59].

[7] [2010] HCA 28.

[8] Applicant's Record of Interview, Answer 169.

[9] [1774] EngR 2; (1774) 98 ER 969 at 970.

[10] [2024] SAET 11.

[12] Spencer v Commonwealth of Australia [2010] HCA 28 at [54].

[14] [2018] FCA 978.