Walker v Return to Work Corporation of South Australia [2025] SAET 113

2. Mr Walker is again directed to attend in person at the Tribunal at 11:30am on 9 October 2025. Should he not attend on that occasion, then the Tribunal may proceed to hear and determine the application for directions of the respondent dated 25 September 2025 in his absence.

1. The applicant did not attend upon the hearing of oral argument on 9 October 2025. No explanation for the non-attendance has since been received.

1. The respondent's counsel Ms Caretti addressed in some detail the facts as set out earlier in these reasons. She submitted the facts prove that there has been a want of prosecution within the ambit of s 40(4) of the SAET Act. Moreover, as I understood her submission, the failure to attend the Tribunal after the filing and serving of the application for directions, without explanation, is indicative of a lack of desire to continue with the proceeding.
2. Ms Caretti submitted that the facts were also within the ambit of s 42(1)(a) and (f) of the SAET Act as the applicant has failed, repeatedly, to comply with orders and directions of the Tribunal and had repeatedly failed to attend hearings in the proceedings, and the applicant had failed to give a reasonable cause for that failure. Ms Caretti advanced submissions as to why the failure to comply with the orders and directions of the Tribunal has been causing disadvantage to the respondent within the ambit of s 42(1)(a) of the SAET Act. Reference was made to costs where there is no reasonable prospect of recovering from the applicant if an adverse order as to costs were to be made against him in relation to the repeated failures to attend the Tribunal and to comply with orders and directions of the Tribunal. Reference was also made to the impact of the delays upon the ability of the respondent to understand the case of the applicant it is expected to meet at trial and to effectively present its case.

1. Section 40 of the SAET Act relates to the dismissal of proceedings and, relevantly, for want of prosecution. Sub-section 40(4) provides:

(4) At any time, the Tribunal may make an order dismissing or striking out all, or any part, of any proceedings for want of prosecution.

1. The background set out earlier in these reasons demonstrates that the applicant has failed to prosecute his application for review. Sub-section 104(1) of the RTW Act provides that before the Tribunal proceeds with the hearing of a matter under that Part, a compulsory conciliation conference between the parties must be held in accordance of s 43 of the SAET Act.
2. The compulsory conciliation conference is an important part of the Tribunal resolving disputes in accordance with the main objectives of the SAET Act. Those objectives include ensuring that applications are processed and resolved as quickly as possible while achieving a just outcome[2] and keeping costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate.[3]
3. Upon the evidence before the Tribunal the applicant did fail to attend a number of medical examinations that had been arranged by the respondent in order for it to properly consider and determine his claims for compensation on its merits. An objective of the compulsory conciliation conference process was to encourage the applicant to attend medical examinations to enable a merits-based decision, and that may have resulted in a resolution of the dispute. The applicant failed to attend the further scheduled appointments and failed to participate in the compulsory conciliation conference by telephone as requested.
4. Since the referral for hearing and determination, apart from one attendance at a directions hearing, the applicant repeatedly failed to attend direction hearings and a hearing set to receive oral argument, and has failed to comply with directions for him to file and serve a list of documents, a Statement of Facts, Issues and Contentions, an affidavit evidence.
5. Although at the single attendance before me there was an indication of the possibility of further legal representation, there is no evidence that the applicant contacted any other solicitor. This is in circumstances of his previous solicitors seeking leave to be removed from the court file as representing the applicant because of difficulties experienced by them in obtaining instructions from him.
6. In the circumstances, there had been a failure to prosecute the application for review within the ambit of s 40(4) of the SAET Act. Upon the evidence before the Tribunal, I was satisfied when the order was made that if an order were not made now to strike out the application for review and to dismiss the proceeding, that it would be likely that the applicant would continue to not comply with orders and directions of the Tribunal, and would continue to fail to prosecute the application for review. The circumstances had been causing unnecessary expense for the respondent and, as has been noted previously by the Tribunal, such conduct, especially if allowed to continue, may erode public confidence in the proper administration of justice.[4]
7. I was satisfied that the failure to comply with the directions and orders of the Tribunal and the failure to attend hearings in the proceedings, set out earlier within these reasons, been without reasonable cause and I was further satisfied that this has caused disadvantage to the respondent within the ambit of s 42(2)(b) of the SAET Act. Sub-section 30(1) of the RTW Act requires a claim for compensation to be made within the prescribed period. Sub-section 30(10) provides that the prescribed period means the period of 6 months commencing on the date on which the entitlement to make the claim arises. The claim form identifies the date of injury as being 1 April 2021 and medical expenses appear to have been incurred from about that time. The claim for compensation was not submitted until 20 August 2024. The effect upon the respondent's ability to present its case at trial, as a result of the non-compliance with the orders and directions of the Tribunal, is to be understood in the context of the current lack of detail of the applicant's case in relation to the claimed causal link between COVID-19 vaccination and his claimed work injuries, and the compounding effect of further delay upon the ability of the respondent to obtain evidence, including expert medical opinion evidence, and to be able to rely upon the recall of witnesses.
8. The requirements of both s 40(4) and s 42(1)(a) and (f) and s 42(2)(b) of the SAET Act were thereby satisfied.
9. I accepted the submission of the respondent that if the applicant were to fail in relation to his application for review and there were to be an adverse costs order pursuant to s 106(3) of the RTW Act, against the applicant, then there is evidence currently before the Tribunal to indicate an inability to recover those costs. That too constitutes a relevant disadvantage.
10. There is no medical evidence that supports a causal link between the COVID-19 vaccination received by the applicant and his claimed work injuries. A report of the applicant's general practitioner Dr Chhanabhai refers to longstanding chronic cardiac and psychiatric conditions. It does not support his other claimed work injury. The likely prejudice to the applicant if the application were granted was a factor taken into account in the exercise of discretion.
11. In determining whether the discretion should be exercised to strike out the application for review or to dismiss the proceeding, I also took into account that if such orders were not to be made, then it is unlikely that the applicant would comply with orders and directions of the Tribunal in the future. There has been no indication of a likely change in compliance in the future.
12. A worker who seeks review by the Tribunal of a reviewable decision has a right to be given the opportunity to present the case at trial if the matter is unable to be resolved by agreement. The effect of provisions such as s 40 and s 42 of the SAET Act is to dispel any suggestion of an unqualified right to proceed to trial. The repeated failure to attend direction hearings and to comply with orders and directions of the Tribunal not only impacts upon the other parties in the proceedings, but also the use of the Tribunal's resources. In a busy jurisdiction frequently addressing claims where a party may be mentally or financially distressed, or in pain seeking pre-approval for the cost of medical treatments, other claims may be unnecessarily delayed. As noted earlier in these reasons, such failure can also erode the public's confidence in the administration of justice.
13. As has been noted in earlier decisions of this Tribunal, where there is an absence of communication, the Tribunal cannot rule out altogether the unlikely possibility of exceptional circumstances relevant to the failure to prosecute claims and comply with orders and directions of the Tribunal. However, the Tribunal does not speculate and a dismissal of the application for review that is not based upon the merits of the application would not, in itself, render a subsequent application for review, dealing with the same subject matter, an abuse of process.[5]

[1] See Hill v Workers Rehabilitation and Compensation Corporation [1997] 191 LSJS 300.

[4] Roll v Return to Work SA (Equals International (Aust) Pty Ltd [2017] SAET 131; Martin v Return to Work Corporation of South Australia (Aquaessence Pty Ltd)(Martin) [2020] SAET 157.

[5] Condie v Return to Work Corporation of South Australia [2019] SAET 249; Martin supra; Hughes v Gales (1995) 14 WAR 434; Cosenza & Anor v Gill & Ors [2016] SASC 154.