Sutton v SA Water Corporation [2000] SAWCT 100

4 The law to be applied in this matter is really quite straightforward. Webster v Lamparde [1993] HCA 57; (1993) 177 CLR 598, particularly at 602 and 603. The most-quoted authority is General Steel Industries Inc v The New South Wales Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, quoting Fancourt v Mercantile Credit (1983) 154 - 87 at 89. That quotes Dey v Victorian Railway Commissioner [1949] HCA 1; (1949) 78 CLR 62 at 91, being the judgment of Sir Owen Dixon, and Sir Owen said there:-

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in an appointed manner by the court with or without a jury. Once it appears that there is a real question to be determined, whether on fact or law, and the rights of the parties depend upon it then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

5 That has been followed by this Tribunal in Garton v The State of South Australia, Print No JD32/1998, Chirnside v The State of South Australia, Print No JD19/1999 and Sara v Brambles Australia Ltd, Print No JD109/1999.

6 Mr Gray for the applicant says that s 28 and the Regulations mandate that any variation to a plan must be in accordance with the Act and the Regulations.

7 In this case the refusal of the worker to perform work was not to the original plan (plan 10) but a purported variation (plan 11). The variation to plan 10 does not conform to the Act and the Regulations.

8 ie The only plan in existence was plan 10, which is an annexure to Mr Gray's affidavit. Therefore the only obligation upon the worker was to conform to plan 10. There is no evidence that he did not conform to plan 10. Therefore on the above logic the respondent's case has no merit. I have put a long argument in a short, simple, syllogistic form.

9 Mr Crawley submits that there are serious issues to be tried.

10 Firstly, has there been a variation of plan 10 in any event? Secondly, what is, in terms of the evidence that might be led, the meaning of the word "consultation" in s 28A(3)(a), where it says:-

"The corporation should if practical `consult' with any medical expert?"

11 ie Has there been any consultation? This will be a question of fact to be decided. And finally, was what was done, consistent with plan 10?

12 In plan 10 there are a number of obligations placed upon the worker and the employer. Among the employees obligations are:-

8: to report any difficulties immediately to the supervisor;

11: to undertake work that has been offered and which you are capable of performing."

13 Mr Crawley submits that questions of fact that have to be determined in this matter. ie The restrictions of plan 10 are not fixed like the laws of the Medes and Persians. Among the employer's obligations are:-

"To ensure that the duties provided do not exceed the employee's capacity;

3: the supervisor is to report and difficulties to the rehabilitation coordinator;

5: the rehabilitation coordinator is to consult with medical practitioners."

14 Hence there is a real issue as to whether these obligations and duties have been complied with.

15 Fundamental to the whole matter, Mr Crawley submits - although Mr Gray denies this - is what was the worker's capacity to work.

16 In my view that may or may not be an issue. The issue that seems to have emerged from the notice of dispute and the determination simply was whether the worker was acting properly and in conformity with plan 10 when he refused to sign another document ie plan 11.

17 I have no doubt that there are serious issues to be tried, they depend upon establishing various facts.

18 What I have heard from Mr Gray today has been very interesting. It may well be very persuasive when the matter gets to trial. It is an important issue. It is one that might well have ramifications for any working out of the practical implications of s 28A.

19 However, I do not think that this matter is susceptible of being disposed of on the very narrow grounds available under an application for summary judgment. I dismiss the application to strike out.

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 Form 11 within 14 days of the delivery of this decision and must be served on all parties.