FAI TRADERS INSURANCE CO LTD v_ FAI WORKERS COMPENSATIONS (NSW) LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, HANDLEY and BEAZLEY JJA 16 July 1996 [1996] NSWCA 178 Workers Compensation — Injury sustained prior to 1987 Act — Apportionment of liability by judge — Worker received payment — Application for adjournment to join worker in appeal — Point not raised in court below — Whether leave likely to be granted — Workers Compensation Act s22, s66, s67. Appeal against judge's orders under s22 Workers Compensation Act 1987 apportioning 60% of employer's liability for lump sum award under s66 and s67 to the appellant - Worker sustained back and leg injuries prior to Workers Compensation Act 1987 - Subsequently awarded lump sum payment in respect of injuries and for pain and suffering - Challenge to judge's power to apportion award of compensation for pre-1987 Act injury between pre-Act employer and post-Act employer (and respective insurance companies) - Payment already made to worker after time for appeal expired and not challenged by appellant - Application for adjournment of appeal to join worker - Substantive point not raised in court below - Leave to join worker at later stage not likely to be granted - Proposed adjournment futile: Held (by majority) adjournment refused, accordingly appeal dismissed. Sun Life Assurance Co v Jarvis (1944) AC 11 Workers Compensation Act 1987, s22, s66, s67. Appeal dismissed with costs. Handley JA This appeal from a decision of Burke CCJ given on 1 December 1995 has been brought by the pre-1987 insurer of the Blayney County Council and challenges the judge's orders under s22 of the Workers Compensation Act 1987 as amended which apportioned 60 per cent of the employer's liability for lump sum awards under s66 and s67 in respect of the worker's back to the appellant. The grounds of appeal as originally amended challenged the power of the judge to make any such apportionment in view of what was said to be the inability of the Compensation Court to make orders under those sections against a pre-Act employer or insurer and questioned the extent of the power under s22 as amended to apportion any part of the liability in cases such as this to a pre-Act employer or insurer. The appeal as originally amended joined three post Act insurers as respondents but did not join any of the employers or the worker. Burke CCJ found that the worker was entitled to substantial lump sum awards in respect of his back and left leg and in respect of pain and suffering. The Court was informed from the Bar table that the worker has been paid those awards. The appellant's written submissions as lodged with the Court maintained the original grounds of appeal and challenged the orders for apportionment. However, when the appeal was called on Mr Poulos QC - who had recently been briefed on behalf of the appellant - applied for an adjournment so that the worker could be joined as a respondent to the appeal. The President raised with 2 UNREPORTED JUDGMENTS Mr Poulos the need for the employers to be joined as well and Mr Poulos acknowledged that this would also be necessary. The application for an adjournment was opposed by counsel tor the three respondents. It is clear that the grounds of appeal will need to be extensively amended as well. The Court is disposed to relax procedural requirements and time limits provided there is no substantial prejudice to other parties. However in this case the foreshadowed application to join the worker as a respondent necessarily involves an attack on the judge's awards in favour of the worker at least in respect of the injury to his back and the associated award for pain and suffering. The worker received payment of these awards after the time for appeal had expired in the knowledge that his entitlement to the money was not being challenged. No doubt he would have made his own arrangements for the investment or expenditure of that money. The Court has no knowledge of what the worker may or may not have done with the money but he has been left in undisturbed possession and enjoyment of that money for many months and it is now proposed to seek an adjournment so that he could be brought into the appeal and his continued enjoyment and retention of that money is proposed to be attacked. Mr Poulos does not admit that the appeal is incompetent as presently constituted but there are substantial arguments to that effect. In my judgment the appellant has no realistic prospects of having the worker joined as a party at this late stage. The appellant, a professional litigant with the benefit of legal advice, did not take the present point at the trial, did not take it in the notice of appeal as amended or in the written submissions, and in fact did not take it until late yesterday or first thing this morning. The time for appealing against the worker's awards expired without that award being challenged as a result of a deliberate election by the appellant not to challenge the awards, and the third respondent has, paid the worker those awards. In these circumstances the Court should act on the basis that leave to join the worker at this late stage is not likely to be granted. It might be said that the worker could be joined as a respondent on terms that relieved him from any risk of having to refund the money if the awards were set aside and protected him against costs. However, the decision in Sun Life Assurance Co v Jarvis (1944) AC 111 establishes that in the circumstances such as those Court of Justice should not entertain an appeal because the question will have become academic as between the appellant and the worker. Since in my view the worker is not likely to be joined without conditions and cannot properly be joined subject to conditions which protect him against prejudice, it seems to me that the proposed adjournment would be a futility and should therefore be refused. Beazley JA I agree with the reasons of Handley JA and also agree therefore the adjournment ought to be refused. I wish to add a few further comments of my own. I consider it is relevant to take into account on this adjournment application the likelihood of success of the appeal. The essential basis upon which this appeal is based was not raised in the Court below. In my opinion, this is a case where the point ought not now be taken, principally because, if the worker was joined, and WAU TRADERS INSURANCE CO LTD v FAl WORKERS COMPENSATIONS (NSW) LTB (Mahoney P) then depending upon the outcome of the appeal, the matter would have to be returned to the Workers Compensation Commission for a new hearing. Mahoney P I confess my inclination is to grant an adjournment, although in coming to that conclusion my mind has wavered considerably. The problem arises in the present case as Handley JA has indicated and as appears from the judgment of Judge Burke, because the main physical injury suffered by the worker occurred on 27 May 1987. That is before the commencement of the Workers Compensation Act 1987 The judge of the Compensation Court, in making his award of periodical payments and under s66 and s67, acted upon the basis that the employer - as I shall describe it - pre-Act Blayney Abattoir County Council and its insurer - the two FAI companies - could be made effectively liable in relation to that injury, the pre-Act injury. He held the award to be made should be made against the last employer, the post-Act employer, Blayney Abattoirs Pty Ltd and consequently imposed a burden directly upon that company's insurers, but then in exercise of his powers under s22 apportioned the liability so that the pre-Act employer, the County Council, bore 70 per cent of the liability and the post-Act employer, the Abattoirs, bore 30 per cent of it. Of the 70 per cent borne by the County Council, the apportionment between the two FAI companies was 60 per cent to the FAI Traders company and 10 per cent to FAI Workers Compensation company. Similarly the remaining 30 per cent apportioned to the Abattoirs company was divided between its insurers - QBE 20 per cent and the other company 10 per cent. When the appeal came on, the point that was to be raised by Mr Poulos for the appellant was, as he properly pointed out, one which would affect the right of the worker to have orders under, at least, s66 and s67. In principle, if his point was right, the award under those sections should not have been made. Accordingly, no apportionment could be made against his present client the FAI Traders company. The problem raised by that point and associated points is, of course, as Handley JA has pointed out, that in principle they affect the rights and the form of the awards in respect of the worker and the employers. Neither the worker nor the group of employers, the Abattoirs and the County Council companies or corporations, has been joined. No doubt it may be possible for the insurers to have the employers joined but it is more difficult to have the worker joined. The Court has, with the assistance of counsel, spent some time endeavouring to work out a method by which the appeal may in substance proceed and the substantial points be argued. The majority of the Court is of the opinion that no practical method can be achieved, at least cannot be achieved without what would be an unnecessary and unacceptable expenditure on costs. I have, I must confess, a good deal of sympathy for that view. However, I am inclined to the point of view that an adjournment if granted would enable the appellant to attempt to have the worker joined and, of course, the employers. If it failed in joining the worker then the result would appear to be that the appeal would be improperly constituted irrevocably and would be dismissed. If it was able to achieve the joinder of the worker then it may be the appeal could proceed. I say that subject to the matter pointed out by Beazley JA, namely, that the point was not raised below. That may be a powerful factor which would prevent a judge dealing with an application ordering the worker to be joined. 4 UNREPORTED JUDGMENTS In all the circumstances, I would have been prepared to allow the present appellant to attempt the task of joining the worker. However, I confess that I appreciate the force of the difficulties with which the appellant would be faced and I understand the view taken by my brethren. In the circumstances I would formally record my view that the application for adjournment should be granted and the matter adjourned to allow such a course to be followed. The result of the view taken by the majority of the Court is that the application for adjournment is refused. The result of that would appear to be that Mr Poulos is faced with an attempt to argue an appeal which is irrevocably improperly constituted and that being so it would appear, although the Court will invite argument upon this point, that inevitably the appeal will have to be dismissed because it is not properly constituted. I would ask formally, Mr Poulos, whether there is anything you can urge against that order. For the reasons I have indicated or other reasons which may be urged, it would appear that the appeal must be dismissed. POULOS: I will have to take some instructions. It may not be a matter of argument, but a matter of choice. MAHONEY P: I invite you to take those instructions now because we feel we should dispose of the appeal this afternoon. SHORT ADJOURNMENT POULOS: Your Honours, the appellant does not wish to pursue the appeal. MAHONEY P: Then it follows that the appeal will be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J Poulos QC/CJ Wynyard Solicitors for the appellant: Curwood and Partners Counsel for the first respondent: PM Morris Solicitors for the first respondent: Moray and Agnew Counsel for the second respondent: DT Kennedy Solicitors for the second respondent: Leitch Hasson and Dent Counsel for the third respondent: BHK Donovan QC/MJ McAuley Solicitors for the third respondent: J Sharpe