Sianis v Workcover/QBE Mercantile Mutual Workers' Compensation

(1) The Tribunal may amend or set aside a judgment or order of the Tribunal -

(c) if the interests of justice require that the judgment or order be amended or set aside.

(2) The power under subsection (1) may only be exercised by the President or a presidential member or conciliation and arbitration officer to whom the President has delegated the power."

7 The preliminary issues as to the application of s 88H of the Act are first whether the directions in the conciliation proceedings were made in the course of proceedings "of the Tribunal". Second, if yes, whether such directions are "orders" of the Tribunal. If the answer to both these questions is yes then the issue is whether it has been shown that "the interests of justice" require that the directions be amended or set aside, and if so whether I should exercise my discretion to do so.

8 In order that the nature of the conciliation process and the question as to whether there are grounds to interfere with the directions made are considered in context, I have addressed the first issue and I have found that conciliation proceedings are proceedings "of the Tribunal". The second issue as to whether the directions are "orders" that may be set aside under s 88H is uncertain in light of the decision of the Full Tribunal in the matter of Puckering v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd [1] ("Puckering"). I have decided that I need not determine this second issue, because if I do have power to set aside or amend the directions, I would decline to do so in any event on the basis that the grounds for an order have not been made out. I have also declined to make any orders on the application of Roofseal, and propose to refer the dispute back to a conciliator for further conciliation proceedings.

Background

9 I set out a brief history of the matter leading taken from the affidavits filed in support of the two applications.

10 The first conciliation conference occurred on 18 November 2004, following which a dispute management plan dated 19 November 2004 was issued by the conciliator. The worker was directed to provide all relevant taxation returns to the compensating authority's solicitors and the Tribunal by 16 December 2004. The dispute management conference was adjourned to 18 January 2005 by which time Roofseal had become separately represented.

11 The direction was not complied with by the appointed date. At the dispute management conference on 18 January 2005, further directions were given and confirmed in a dispute management plan dated 19 January 2005. The worker was again directed to file and serve taxation returns, and was given until 14 February 2005 to do so. He was further requested to attend a Conciliation (Negotiation Focused) Conference in person on 21 February 2005. The worker was represented at the conference by his solicitor, Mr Katsoulas.

12 The worker did not provide any documents by 21 February 2005. The worker did not attend the conference. In an affidavit sworn by Mr Katsoulas, solicitor for the worker, dated 6 June 2005, it was said the worker had not attended due to illness of his children, and that the worker did not comply with the direction that he file and serve taxation returns because he had not lodged any with the Australian Taxation Office[2]. The solicitors for Roofseal and the compensating authority then requested that the worker provide records concerning work done by the worker for both Roofseal and any other businesses. These matters were considered to be relevant with respect to the issue as to the status of the worker as an employee or contractor, in that such records might demonstrate the extent to which the worker had provided services to other entities whilst engaged by Roofseal. The conciliator issued a further dispute management plan (28 February 2005) incorporating directions to this effect, and required that such material be produced by 14 March 2005. The worker was directed to attend the adjourned conference on 12 April 2005.

13 The worker did not comply with the directions for production by 14 March 2005. The solicitors for Roofseal sent a fax to the solicitors for the worker on 21 March 2005 putting them on notice that due to the continued non-compliance by the worker with the directions, and the consequent delay, Roofseal would apply for an order that the Notice of Dispute be struck out.

14 By letters dated 31 March 2005 and 1 April 2005, the solicitors for the worker discovered some bank statements of the worker, and advised that the worker did not have any tax invoice books in his possession with respect to work done for Roofseal, or any other entity, and identified the only other entity by which the worker said he had been employed during the period enquired after.

15 On 11 April 2005 the solicitors for Roofseal wrote to the solicitors for the worker indicating that they considered the discovery given by the worker was inadequate, and that should he maintain his position that all documents had been discovered, Roofseal would require a list of documents to be filed and verified by affidavit in accordance with "the Rules".

16 There was no attendance by either the worker or his solicitors at the conference on 12 April 2005. The only explanation given for such non attendance is the statement by Mr Katsoulas in his affidavit to the effect that he (Mr Katsoulas) "was unable to attend", and that as a result of his inability to do so, he had advised the worker not to be in attendance without his representation[3]. It does not appear that either the other parties or the Tribunal were notified beforehand of the proposed non-attendance or the reasons for this (such as they are).

17 A representative of the employer, the solicitor for the employer and the solicitor for the compensating authority attended the conference on 12 April 2005. The conciliator then issued a further dispute management plan dated 13 April 2005 which adjourned the conference to 6 June 2005 and directed the worker to do the following in the meantime:-

•

File at the Tribunal forthwith the documentation "produced by him as previously directed on 28 February 2005".

•

Make discovery by way of filing a list of documents verified by affidavit by 10 May 2005.

•

Disclose and produce to the Tribunal and all other parties:

(a) All other business records showing production of income by 10 May 2005.

(b) All source documents relating to credits shown in both statements by the St George Bank Account number 066152154 by 10 May 2005.

(c) Statement number 14 re account number 066152154 by 19 April 2005

"disclose and produce to the Tribunal and all other parties all documentation in its care, custody and control concerning the applicant no later than 7 days from receipt from it (via his solicitors) of all the documentation from the applicant referred to in this plan".

19 Each of the plans issued by the conciliator gave notice to the parties that if they could not comply with any requirement set out in "the timeline", the other parties and the conciliator should be so advised. That plan also gave notice that if the parties did not comply "with any obligation" cast upon them by the plan and the conciliation conference was adjourned, then that party could reasonably expect that an order for costs would be made against him/her/it in accordance with r 16(8)(b) of the Workers Compensation Tribunal Rules 2001 ("the Rules"). [4]

20 As observed above, Roofseal filed an Application for Directions on 17 May 2005 for orders that the Notice of Dispute be struck out or stayed. That Application for Directions was first listed in Chambers on 7 June 2005. On the day before, the worker filed his Application for Directions seeking amendment or setting aside of the dispute management plan dated 13 April 2005, and an order that the worker and the employer disclose evidentiary material to the Tribunal in a manner which conformed with s 92(1)(b)(i) of the Act.

Submissions

21 Although it was the worker who sought to invoke the jurisdiction of the Tribunal pursuant to s 88H(1)(c) of the Act in order to set aside or amend the directions of the conciliator, the primary position ultimately adopted by counsel for the worker, Mr Kernot, was that such orders could not be made. It was submitted that conciliation proceedings following referral of a dispute for conciliation pursuant to s 91A of the Act are not proceedings "of the Tribunal", and that no proceedings took place before the Tribunal in relation to a dispute until it was referred "into the Tribunal" for either arbitration or judicial determination pursuant to s 92D of the Act.

22 Conciliation proceedings were thus said to be an administrative process outside the Tribunal consistently with the objects of the Act and the requirement of r 16(4) of the Rules that such proceedings be conducted fairly, economically, informally and quickly. It was submitted that the directions were onerous and were not appropriate unless and until the dispute had reached the adversarial stage.

23 Accordingly the worker submitted that no order should be made on the application and requested that the matter be referred back to the conciliator to reconsider the directions given on 13 April 2005. It was noted that since that date further documents had been produced by the worker, a list of documents had been filed, and taxation returns had been prepared (although at the time of hearing not yet produced). It was suggested that upon referral of the dispute back to conciliation the conciliator should consider whether further conciliation proceedings were able to advance the matter, and if not, refer the matter to either arbitration or judicial determination. To do otherwise, it was submitted, would allow the conciliation process to become unduly prolonged by further investigation of the claim when such investigation should for the most part have already occurred at or prior to the making of the determination to reject the claim.

24 Alternatively, in the event that it was considered that conciliation proceedings were proceedings "of the Tribunal", a further question was whether the directions were "orders" of the Tribunal capable of being set aside pursuant to s 88H of the Act. Counsel for the worker submitted they were "orders", and sought to distinguish the decision of Puckering. In that matter the Full Tribunal held that a discretionary ruling of a conciliator pursuant to s 92(2) of the Act on the issue as to whether or not a party should give another party access to evidentiary material comprising a videotape was not an order of the Tribunal for the purposes of s 88H of the Act. It was submitted that the directions in this matter were not discretionary rulings, but were orders with which the worker was now compelled to comply under pain of being in contempt of the Tribunal for breach of s 88A(d) of the Act.

25 The worker submitted that it was in the "interests of justice" that the orders be set aside as they were oppressive or beyond the powers vested in the conciliator under the Act or the Rules.Counsel for the compensating authority, Mr Calligeros, supported the submission of the worker that a conciliator presiding over conciliation proceedings was acting administratively, and not as the Tribunal, and that any directions issued during that process could not be interfered with under s 88H of the Act. As to the worker's alternative proposition as to whether such directions may constitute an "order" of the Tribunal, Mr Calligeros conceded that the decision of Puckering may be able to be distinguished, but submitted this was irrelevant because there was no ground "in the interests of justice" to set aside the directions (if they be "orders") given the circumstances which led to them being made, being the dilatory conduct of the worker and his continued non-compliance with the directions.

26 Counsel for Roofseal, Mr Duggan, contended that the conciliation proceedings were clearly proceedings of the Tribunal, but that the directions were not "orders" of the Tribunal which could properly be the subject of an application under s 88H of the Act. In this regard, it was submitted that the decision of Puckering was not distinguishable. Alternatively, if the directions had the status of orders, it was submitted that they were within power, and should not be interfered with as a matter of law or policy, and that no grounds to do so had been made out.

Consideration

The nature of the conciliation proceedings

27 The provisions of the Act and the Rules to which I refer below strongly indicate that conciliation proceedings are proceedings "of the Tribunal". I do not consider it necessary to reproduce the relevant provisions in full in order to explain my reasons.

28 Pt 6 of the Act relates to the Workers Compensation Tribunal ("the Tribunal"), which may be constituted of a Full Bench, a single presidential member, or a single conciliation and arbitration officer[5]. A conciliation and arbitration officer is appointed to "carry out the Tribunal's work of conciliation and arbitration"[6]. When acting as an arbitrator, the conciliation and arbitration officer is an "arbitration officer", and when acting as a conciliator, the conciliation and arbitration officer is a "conciliation officer"[7]. These provisions indicate that whether a conciliation and arbitration officer is engaged in conciliation or arbitration, that person is engaged in the work of the Tribunal.

29 Pt 6 of the Act includes ss 85A and 85B. Pursuant to s 85A(1), "The Tribunal must hear proceedings (other than interlocutory or conciliation proceedings) in a place open to the public". It is implicit in this provision that conciliation proceedings are proceedings of the Tribunal. The purpose is to make clear that there is no obligation on the Tribunal to conduct conciliation proceedings in public, as opposed, for example, to arbitration or judicial determination proceedings. This is consistent with s 92B(3) of the Act which provides that a conciliator has discretion to hold a compulsory conference in public or private.

30 Further, s 85B(1) provides "A person is entitled to appear personally or by representative in conciliation proceedings or other proceedings before the Tribunal". To my mind, this provision does not suggest that "conciliation proceedings" are not proceedings "before the Tribunal", as with other proceedings, but is intended to confirm (as is sometimes not the case with other legislation providing for conciliation proceedings) that there is an unfettered right to representation at the conciliation stage.

31 In support of their submissions counsel for the worker and counsel for the compensating authority directed attention to Pt 6A of the Act and the dispute referral process under s 91A and s 92 of the Act. The process of assignment by the Registrar of a dispute for conciliation under these provisions, followed by 92D which provides that if conciliation proceedings do not result in an agreed settlement of the dispute, the presiding conciliator must refer the dispute "into the Tribunal" either for arbitration or judicial determination, was said to necessarily imply that, prior to the stage of a s 92D referral, the conciliation proceedings had not been "in the Tribunal".

32 I do not accept this submission. It cannot be correct having regard to the definition of "evidentiary material" in s 3 of the Act as meaning:-

"any document, object or substance of evidentiary value in proceedings before the Tribunal and includes any document, object or substance that should, in the opinion of the Tribunal, be produced for the purpose of enabling the Tribunal to determine whether or not it has evidentiary value".

33 It necessarily follows from this definition that the process whereby consideration is given as to what may comprise evidentiary material, and as to what might need to be produced so that a determination can be made as to whether it has evidentiary value, is a process which takes place in proceedings "before the Tribunal". Given the obligations of the parties and the powers of the conciliator arising under 92(1)(b) of the Act and the Rules in relation to conciliation proceedings and the production of evidentiary material, the Act must contemplate such proceedings to be proceedings "before the Tribunal".

34 As for s 92D of the Act, the referral of a dispute from the stage of conciliation proceedings "into the Tribunal" merely recognises the formal transition of proceedings from the conciliation process to one form or another of the adversarial process. It does not mean the proceedings were not "in the Tribunal" before this stage, and to read such into s 92D would be inconsistent with the overall scheme of the Act.

35 A further submission put by counsel for the worker and the compensating authority arose from the fact that the Act appears to contain separate provisions as to commission of a contempt in conciliation proceedings as opposed to other proceedings before the Tribunal. In Pt 6 of the Act, s 88A sets out circumstances in which a person may be considered to commit a contempt of the Tribunal. Given that s 88A(c) applies only to a contempt being a refusal "in the face of the Tribunal" to obey a lawful direction of the Tribunal, it was contended that the provision may have no application to conciliation proceedings. Thus, it was suggested, Pt 6A of the Act includes s 92B(4) which provides that a person who fails to attend a compulsory conference as required by summons, or who having attended, fails to participate in the conference as required by a conciliator presiding, commits a contempt of the Tribunal.

36 I do not consider that s 92B read as a whole supports this submission. Although it is the case that, if conciliation proceedings are proceedings "of the Tribunal", the provisions of s 88A and s 92B overlap to some extent, and in particular s 88A(d) and s 92B(4), it is significant that a failure to comply with the requirements of a conciliator presiding at a conference contrary to s 92B(4) is a "contempt of the Tribunal". This is again consistent with the conciliation proceedings being proceedings "of the Tribunal".

37 I also refer to s 92C of the Act relating to "procedure in conciliation proceedings". A settlement which is agreed at a conference is binding on a party [8], and a determination or order of a conciliator presiding at a conference to give effect to such a settlement is a determination or order "of the Tribunal"[9]. I consider these provisions indicate that conciliation proceedings are proceedings of the Tribunal at all material times. It seems to me artificial to suggest that conciliation proceedings convert from proceedings administrative in nature to proceedings "of the Tribunal" (in some informal manner and without a reference pursuant to s 92D(1)) upon a settlement being reached at a conference and a determination or order being made under s 92C(6).

38 A further indicator is contained in s 88E of the Act which sets out the rule making powers of the President. S 88E(1)(b) specifically permits the making of rules authorising conciliation and arbitration officers to exercise any part of the jurisdiction of the Tribunal. The Rules relating to the conciliation process assume that conciliation proceedings are proceedings of the Tribunal, consistently with s 81(1) of the Act referred to above[10]. See in particular r 2, and the definition of "proceeding", r 10, which refers generally to the assignment of proceedings including a conciliation conference or other proceedings, to r 16(5) with respect to agreed orders of the Tribunal in conciliation proceedings, and r 23(1)(c) which permits the Registrar to issue a summons upon the direction of a conciliation and arbitration officer to require that person "to attend before the Tribunal to participate in a conciliation conference".

39 Whilst referring to the Rules, I observe that both r 16 (4) in relation to conciliation and r 18(4) in relation to arbitration require that such processes be conducted fairly, economically, informally and quickly. The existence of this requirement in relation to both processes somewhat undermines the submission of counsel for the worker that r 16(4) is an indicator that the conciliation process is not a proceeding of the Tribunal in contrast to the arbitral process.

40 Accordingly I find that the conciliation proceedings in which the conciliator was engaged at the time she made the directions contained in the dispute management plan of 13 April 2005 were proceedings "of the Tribunal".

Whether the directions are orders - whether the interests of justice require the "orders" be set aside

41 As stated earlier in these reasons, I am of the view that I do not need to determine whether the decision of the Full Tribunal in Puckering applies to the directions given in this matter. It is arguable that Puckering is distinguishable, and should be confined to its facts, given that it addresses the status of a discretionary ruling of a conciliator under s 92(2) of the Act, rather than directions purportedly made under r 16 of the Rules. However, even if Puckering is distinguishable, such that directions for production and discovery made under r 16 have the status of orders for the purposes of s 88H of the Act, I consider that it has not been shown that "the interests of justice" require that the directions be amended or set aside.

42 The scheme of the Act suggests that directions or orders made in conciliation proceedings should not be lightly interfered with, if at all. This is even more so given that my finding that such directions or orders emanate from proceedings "of the Tribunal".

43 The statutory obligation on a conciliator under s 92A of the Act to identify and narrow the range of issues in dispute, and to explore the possibilities of resolution by agreement, may be discharged by the exercise of the powers afforded by r 16(3) of the Rules. These powers are very wide. The conciliator may "exercise such powers and give such directions as may reasonably be required to conciliate the matter..." Pursuant to r 16(3)(a), this could be a requirement that a party meet with the conciliator and "produce evidentiary material".

44 Counsel for the worker submitted that the extent of the conciliator's powers under r 16(3) must be limited by the non-adversarial nature of the conciliation process. Thus it was said the specific reference in r 16(3)(a) to the power to require a person to attend a meeting with the conciliator and to produce evidentiary material, implies that some constraint be exercised with respect to the extent of the production required, otherwise the conciliation process would take the form of an improper investigation of the claim. Further, it was submitted that the example of the requirement that might be imposed under r 16(3)(a) implied that the powers of the conciliator were limited to directing that documents be produced, and could not extend to directions that discovery be made, quite apart from a direction that such discovery be verified by affidavit.

45 There is some force in the submission that the direction made on 13 April 2005 that the worker "make discovery by way of filing a list of documents verified by affidavit" goes beyond the scope of the directions one would envisage a conciliator might make under r 16(3) for production of evidentiary material. Whilst no doubt parties to conciliation proceedings do file lists of documents, if for no other reason than to provide a record for themselves and other parties as to the material which may be produced, it is not a procedure for which the Rules formally provide in the conciliation process, or even in the arbitration process[11]. Only a Presidential Member has express power to make an order with respect to discovery and inspection of documents, and in the context of the Rules, such power under r 21(5) would appear to be contemplated only for use in proceedings for judicial determination[12].

46 However, notwithstanding the question as to whether the powers of a conciliator under r 16(3) extend to making directions for discovery verified by affidavit, I have decided it is not appropriate to interfere with the directions made for a number of reasons. I do not accept the contention of the worker that a direction for production of documents which requires a party to go to some effort to locate and produce relevant material, necessarily becomes an inappropriate investigation into the circumstances of the claim. It is true that prior to the conciliation process the compensating authority should have made such investigations and enquiries as are necessary to determine a claim[13]. However, such a determination must be made expeditiously and where practicable within ten days[14], and given these imperatives, it is hardly surprising that there may be further enquiry needed with respect to relevant material at the conciliation stage to allow the conciliator to form an opinion as to whether certain material has evidentiary value, and to facilitate the identification and narrowing of the issues. To that extent the process may involve what might be termed further investigation.

47 As noted by Gilchrist DPJ in the matter of Paterson v WorkCover Corporation/MMI Workers Compensation (SA) Ltd [15], the issue of relevance of evidentiary material is not a matter exclusively within the domain of the parties. It is not for the worker or the worker's solicitor to unilaterally declare that documents are not relevant. It is ultimately a matter for the conciliator to decide whether or not documents have evidentiary value, and whilst directions in this regard are in place, there is an obligation on the parties to comply with them.

48 The comments of Gilchrist DPJ in Paterson [16], and the approach taken by the Full Tribunal in Puckering [17] with respect to the conciliation process generally, indicate that it is desirable that the parties approach the conciliator for a review of any direction made if issues arise with respect to compliance with it. The scheme of the Act does not appear to contemplate that a Presidential Member would readily intervene in the conciliation proceedings and displace the exercise of the powers of the conciliator. As noted in Paterson, it may be that such intervention would amount to a pre-emptive ruling as to an interlocutory order on appeal where such a process is not permitted.

49 The need for a cautious approach in this regard is given further force bearing in mind that a Presidential Member of the Tribunal can be assigned to preside at conciliation proceedings as a conciliator. It seems unlikely that Parliament intended that directions given in that context should readily be the subject of review by another single Presidential Member under s 88H of the Act, even assuming there is power to do so.

50 The above considerations are even more relevant when, as in this case, the directions have been made in the absence (for whatever reason) of one of the parties which subsequently wishes to have those directions altered. That is best considered whilst the parties remain within the conciliation context.

51 The directions of 13 April 2005 came to be made due to the worker's belated and incomplete production of evidentiary material, repeated non-compliance with previous directions for the production of documents, and repeated non attendances at conferences. A cavalier attitude was taken to compliance with the directions, and to providing the conciliator or the other parties with an adequate explanation for non-compliance and non-attendance. It was the lack of co-operation by the worker which led the conciliator to develop, at the urging of Roofseal, the more specific, supposedly "oppressive" directions in this regard. These directions were not challenged by the worker until some time after Roofseal's strike out application was issued.

52 Since the conference on 13 April 2005, the worker has filed a list of documents which discloses a wider breadth of evidentiary material, including tax returns for the financial years ending 30 June 2003 and 30 June 2004. Further consideration of this evidentiary material may lead a conciliator to review the need to maintain the directions made 13 April 2005, and to assess whether the conciliation process is still capable of being productive, and to make further directions accordingly. Before I determine whether this course should be adopted, I should deal with the application by Roofseal for an order that the Notice of Dispute be struck out or stayed.

Application by Roofseal for strike out or stay of Notice of Dispute

53 Roofseal does not contend that there is no real question of fact or law to be determined, but rather that the delay occasioned by the worker in the prosecution of his claim, and his persistent non-compliance with directions, constitutes a contempt of the Tribunal and an abuse of process. It was submitted that I should either strike out the Notice of Dispute or stay further proceedings until there had been compliance with the directions made.

54 There is undoubtedly a legitimate basis for Roofseal's complaints with respect to non-compliance, and counsel for the worker did not attempt to justify or excuse the conduct of the worker. No affidavit material was filed by the worker explaining his conduct beyond that which I have adverted to above. Counsel for the worker submitted only that the delays in the process which had been caused by the worker, and non-compliance with directions, were not such as to warrant the extreme sanction of a striking out of the Notice of Dispute, particularly given the issue as to whether the directions in question were oppressive or beyond power.

55 I refer to what I said in the matter of Kroezen v CGU Workers Compensation (SA) Ltd[18] in relation to the approach of the Tribunal to a strike out application. It is not necessary that Roofseal go so far as to demonstrate intentional or contumelious default with orders of the Tribunal to establish the basis for a strike out order, or that the delay be so inordinate or inexcusable so as to give rise to a substantial risk to a fair trial of the issues in the action. It is a matter for the general discretion of the Tribunal, having regard to but not being limited to the factors outlined by Bray CJ in Ulowski v Miller.[19]

56 The worker has caused a substantial delay of up to six months or more in the progress of this matter. Not all of this delay was directly due to dilatoriness in relation to pursuit of the claim itself, in that the failure to produce tax returns was initially due to the fact that they did not exist, although why the worker did not advise of this problem and address it much earlier than he did remains unexplained. The delay is nevertheless lengthy and no doubt has caused prejudice to the employer in terms of the timely disposition of the proceedings, and with respect to additional legal costs. There is no suggestion that the conduct of Roofseal has in any way contributed to the delays in this matter.

57 However, the above factors are outweighed by the severe prejudice to the worker if his claim was struck out. Despite the delay, and the continued non-compliance with the directions of the conciliator, his conduct is not such as to warrant at this stage that he be shut out of his claim[20], although it must be said that the reason Roofseal made its application in this regard is quite understandable, and a continuation of such conduct may lead to this outcome.

58 In the alternative, Roofseal seeks an order that the claim be stayed until such time as the directions of 13 April 2005 are complied with. I decline to make such an order. In the circumstances it is more appropriate that the matter resume before a conciliator who can consider the foreshadowed application by the worker for a variation of the directions of 13 April 2005.

59 There are a number of options open to a conciliator, as was accepted by counsel for the worker. Assuming that further conciliation did not result in a resolution, one option might be to vary the directions to accommodate any matters raised by the worker. It may be on the other hand that the conciliator confirms the continuance of the directions made on 13 April 2005 if it is still considered the extent of the worker's production of evidentiary material is unsatisfactory. If non-compliance continues, the conciliator could consider referring the matter to a Presidential Member for consideration of whether there is a contempt of the Tribunal contrary to either or both of s 88A(d) or s 92B(4) of the Act. Alternatively, the conciliator might refer the matter to a Presidential Member under r 16(9) on the basis that a continued non-compliance with directions constitutes an abuse of process. Additionally, and this is the preferred option of counsel for the worker, the matter might be referred to either arbitration or judicial determination under r 16(8)(a), which would allow any continuing issues relating to disclosure of evidential material to be dealt with in the adversarial context. I express no view as to what approach might best be adopted.

60 I decline to make an order setting aside the directions of the conciliator recorded in the dispute management plan of 13 April 2005. Although I consider the process giving rise to such directions to be proceedings "of the Tribunal", a question remains as to whether such directions are "orders" for the purposes of the exercise of the Tribunal's powers under of s 88H of the Act. I have not determined that question, because even if such directions are "orders" for this purpose, it has not been established that the interests of justice require that I intervene pursuant to s 88H(1)(c ) of the Act. Accordingly the worker's application is dismissed.

61 I dismiss the application by Roofseal to strike out or stay the Notice of Dispute.

62 I propose to refer the dispute to a conciliator for further conciliation and to allow consideration to be given to a review of the directions made 13 April 2005 in light of events since that time.

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.

[1] [2004] SAWCT 60

[4] At the time the directions were made the dispute management conference process was in the "pilot" stage. It has been formalised in the Rules as from 25 July 2005. This does not affect any of the matters under consideration.

[10] par 29 - I do not treat the Rules which follow as governing the interpretation of the Act, however they are quite consistent with what I consider is intended by the Act

[19] (1968) SASR 277

[20] See the comments of Lander J generally in BQ and HM Doe Pty Ltd v National Australia Bank [1999] SASC 124 as set out in par 48 of Kroezen (n.18 above)