Omoregie v RPA Hosp [2001] NSWCC 149

Reported Decision : (2001) 22 NSWCCR 543

Compensation Court of New South Wales

CITATION : Omoregie v RPA Hosp [2001] NSWCC 149 PARTIES : Peggy Omoregie Central Sydney ARea Health Service - Royal Prince Alfred Hospital MATTER NUMBER(S) : 52779 of 2000 JUDGMENT OF: Truss J at 1 CATCHWORDS: Miscellaneous Matters :- Conciliation - unreasonable failure to participate LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 CASES CITED: nil DATES OF HEARING: 11 September 2001 DATE OF JUDGMENT: 09/19/2001

FOR APPLICANT: Mr R Petrie instructed by P K Simpson & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr N Kennedy of P W Turk & Associates

JUDGMENT: 1. The applicant in these proceedings is claiming lump sum compensation under s 66 and 67 for permanent impairment of the back and neck and loss of the efficient use of both legs as a consequence of injuries received in a motor vehicle accident on 13 January 1999. There is no issue about the fact that the claims were duly made by letter dated 15 June 2000. 2. On 3 October 2000 the matter was referred to the Workers Compensation Resolution Service and a conciliation conference was held on 26 October 2000. Under cover of a letter dated 30 October 2000 the conciliator, Ms Faye Robinson sent to the parties a letter entitled NOTICE OF CLOSURE OF WCRS FILE wherein she said:- Referral: 3 October 2000 The worker requested conciliation in respect of a claim pursuant to sec. 66 and sec. 67. The claim was as follows: Sec. 66 Back 15 % $9,000.00 Neck 10 % $4,000.00 Right leg above knee 35 % $26,250.00 Left leg above knee 20 % $15,000.00 Sec. 67 $30,000.00 $84,250.00 The worker relied on a report dated 3 April 2000 prepared, by Dr. S. Mahajan, following an examination of the worker on 3/4/00. It was apparent from that report the impairments alleged arose from two accidents one on 22 November 1995 and the other on 13 January 1999. At the conference the solicitor for the worker advised the worker had previously obtained an award in respect of the 1995 injury as follows: Back 5 % Right leg above the knee 15 % The solicitor did not produce any reports or documentation apportioning the impairment between the two separate and distinct injuries. The parties indicated a wish to explore commutation. Consequently I withdrew from the conference temporarily. I returned within approximately 15-20 minutes and was informed the parties could not agree on a commutation and that they had been unable to negotiate a settlement of the sec 66/67 claim. In respect of the sec. 66/67 claim I was informed the insurer had made an officer (sic) which had been rejected by the worker. I was further informed the worker had made a counter offer of $80,000.00. I was informed, by the solicitor for the worker, the sec.67 claim was reduced to $25,750.00 and there was no reduction or deduction in respect of the sec. 66 claims. Consequently the worker had not made any allowance whatsoever for the prior claim/payment. Under all the circumstances, due to the failure of the worker's solicitor to properly prepare for the conference and the refusal of the worker and/or her solicitor to effectively participate in the conference to resolve the dispute, I terminated the conference. I am now closing the WCRS file. The solicitor for the worker should obtain assessments of the impairments arising from the injury on 13 January 1999 and, at the appropriate time, lodge a(sic) another Application for Conciliation. This is not a Certificate of Conciliation Outcome as I am unable to certify the conciliation process as been completed. 3. On 30 March 2001 the application for determination was filed. This was more than 42 days after the referral for conciliation. The respondent sought an order that the application be struck out for non compliance with s 102(1) of the Workplace Injury Management and Workers Compensation Act 1998. The motion came on for hearing before Assistant Registrar Cox who on 21 August 2001 made that order. 4. On 5 September 2001 the Assistant Registrar prepared a report pursuant to Compensation Court Rules 31.6 setting out the reasons for her decision and a copy of her report was made available to the parties. The basis of her decision is encapsulated in the following paragraphs:- In my opinion s 102(1)(b) means that if the matter has not proceeded to conciliation within the 42 day period the applicant can then proceed to file with the court. As this was not the case I considered that the applicant was not entitled to lodge an Application with this court in reliance on that section. The applicant submits that my interpretation is incorrect and that the section allows for the applicant to file with the court after 42 days has elapsed after the dispute was referred for conciliation. The wording of the section does not make this particularly clear and may lead to different interpretations. However, the applicant's interpretation seems problematical to me as it would allow any proceedings to be filed with the court after the 42 days and without showing a commitment to the mechanism and procedure set up for conciliation proceedings. It would not appear to me to be the legislative intention of this section. 5. S 102 of the Workplace Injury Management and Worker's Compensation Act 1998 provides:- 102 Restrictions on commencing court proceedings for lump sum compensation (cf former s 106FC) (1) A worker cannot commence court proceedings in respect of compensation under section 66 of the 1987 Act unless a dispute about that compensation has been referred for conciliation under Division 3 and either: (a) the conciliator has issued a conciliation certificate that indicates that conciliation was wholly or partially unsuccessful, or (b) a period of 42 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was referred for conciliation, whichever happens first. 6. It is also necessary to refer to s 84 of the same Act which provides:- 84 Certificates as to conciliation of disputes (cf former s 98D) (1) A conciliation certificate is a certificate referred to in subsection (5) that is issued by a conciliator with respect to the conciliation of a dispute free of charge to the parties to the dispute. (2) A conciliator is to issue a conciliation certificate for a dispute only when directed to do so by the Principal Conciliator. (3) The Principal Conciliator must direct the issue of a conciliation certificate as to the matters referred to in subsection (5) (a) and (b) if any person who is or has been a party to conciliation of the dispute applies for such a certificate. (4) The Principal Conciliator may, either on the recommendation of the conciliator or on his or her own initiative, refer a conciliation certificate to the registrar of the Compensation Court to form part of any file of the Court on proceedings commenced, or that may later be commenced, in relation to the dispute concerned. (5) A conciliation certificate is a certificate as to such of the following matters as the Principal Conciliator directs: (a) whether a dispute with respect to a claim under this Act is or has been the subject of conciliation under this Division, (b) the date of referral of the dispute to conciliation, (c) the current position (as at the date of the certificate) with respect to conciliation of the dispute, (d) any final outcome of the conciliation (including, if applicable, matters identified as remaining in dispute at the conclusion of the conciliation), (e) if conciliation was unsuccessful (wholly or partially) the reasons for that, (f) whether (and, if so, how) a particular party to the dispute has unreasonably failed to participate in conciliation. (6) A conciliation certificate is evidence of the matters that it certifies. 7. It is abundantly clear that the object of the conciliation provisions is to facilitate early resolution of disputes. The applicant submits that the Assistant Registrar erred in law in her interpretation of s 102(1) in particular by limiting s 102(1)(b) to situations where no conciliation has been held. It was submitted on behalf of the respondent that the applicant's actions in failing to cooperate at the conciliation was contrary to the spirit of the legislation in that she did not genuinely seek to conciliate the matter and there is some force in this submission. However that is not necessarily determinative. The respondent further submitted that if the court were to adopt the literal approach to s 102(1) urged upon the Court by the applicant this would involve ignoring the intent of the legislation and it making a way open for workers who seek to avoid compliance with the conciliation requirements. 8. It was submitted on behalf of the applicant that whatever the spirit or objectives of the legislation may be, she has complied with s102(1) in that:- (a) the matter was referred for conciliation. (b) a conciliation conference was held. (c) the conciliator failed to comply with s 84 in that she should have issued a certificate thereunder instead of writing the letter to which I have referred. A certificate under either subs 5(e) or s 5(f) would have been appropriate. (d) forty two days have elapsed since the referral to conciliation. (e) although due to the actions of the conciliator in failing to issue a certificate the applicant was unable to comply with s 102(1)(a) she has satisfied s 102(1)(b) and was therefore entitled to file the application. 9. Whilst being mindful of the objectives of the conciliation provisions, the court is nevertheless required to apply the words of the statute, which in my view are unambiguous. There is no absolute requirement that a party reasonably participates in conciliation. Such a situation is envisaged for example by s 84(5)(f). However whilst the Act does not provide a prohibition against commencing proceedings where there has been has unreasonable failure to participate in conciliation, it does impose is a penalty for not doing so and that is the costs penalty contained in s 112(6) which provides:- (6) The Court may order the payment of costs by any party to the proceedings who has unreasonably failed to participate in a conciliation of the dispute under this Act if it appears to the Court that the failure has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker. which is where the respondent's remedy lies. For these reasons I am satisfied that the applicant has satisfied the requirements of s 102(1). I set aside the Registrar's decision and in lieu I dismiss the respondent's motion. I order the respondent to pay the applicant's costs of the motion and of this application for review, including a fee for counsel. Mr R Petrie instructed by P K Simpson & Co appeared for the applicant Mr Kennedy of P W Turk & Associates appeared for the respondent