McLean v Power Coal [2001] NSWCC 121

Compensation Court of New South Wales

CITATION : McLean v Power Coal [2001] NSWCC 121 PARTIES : John McLean v Power Coal Pty Ltd MATTER NUMBER(S) : 33229 of 1999 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 30 May 2001 EX TEMPORE JUDGMENT DATE : 05/30/2001

FOR APPLICANT:Mr S Lowe instructed by Palmieri Lawyers LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr S L C Flett instructed by Sparke Helmore

JUDGMENT: 1. This is a notice of motion for rescission and/or reconsideration of an application for redemption of the applicant's entitlements, which application was granted by me on 19 March 2001. The motion has been supported by affidavits by the applicant and by his current solicitor. It was a redemption under s 15 of the prior legislation either directly because of an old injury in the applicant's employment history or by the preservation of the applicant's rights under that section for anything that happened under 1987. 2. The submissions put forward by the applicant came down to these. Firstly, it was argued on the evidence before the Court that there was a factual error in the understanding of what was going to occur from the point of view of the Department of Social Security, which error was such as to vitiate the consent that the applicant expressed to the redemption proposal. There was a further submission that on the affidavit evidence and the other material the consent should be found not to be a real consent and this submission was based on confusion on the applicant's behalf and, as I apprehend it, the influence of some medication which he had found it necessary to take on the day in question. It was also argued on the applicant's behalf that the nature of a redemption under s 15 is such that neither party can be compelled to comply with the redemption order even if the Court should make it and that indeed the applicant can change his mind as to consent subsequent to the redemption application being determined. 3. In support of this it was pointed out that the applicant took those steps set out in the affidavit completed by him, leading to the return of the redemption cheque from as soon as the day after the matter was before the Court on 19 March. It was further pointed out that under the authorities the concept of a redemption is not an enforceable order of the Court but is simply a determination within the terms of that section. 4. The respondent, on the other hand, has submitted that the authorities indicate that a redemption is at the option of the employer and that the consent of the applicant worker, once given - as it was in this instance, in the respondent's view - was binding. The respondent stressed that on the evidence before the Court including both the transcript of the redemption application and the consent form executed by the applicant which was with the court papers; the consent expressed by the applicant on 19 March was a real consent and that there was no evidence of anxiety or the effects of medication leading to the Court coming to a view that the consent, so expressed, was vitiated. 5. I have dealt with the submissions of counsel fairly briefly, without disrespect to counsel, and I have been assisted by the provision of certain authorities, some of which I will now discuss. I have considered the authorities in particular of John While and Sons Pty Ltd v Chang Leng (1985) 2 NSWLR 163 and Gosper v Christopherson (1985/6) 160 CLR 423. The factual background in these two decisions was somewhat different to the one facing the Court today. However, the Court of Appeal and the High Court made some helpful remarks on what was meant by the redemption process. In particular, the views expressed in the former case of Chang Leng were specifically affirmed by the High Court. The terms of s 15 should perhaps be set out. S 15(1) provides as follows: Subject to this Act the liability in respect of any weekly payment may, with the consent of the worker, be redeemed either in whole or in part by the payment of a lump sum determined by the Commission (as it then was) having regard to any dispute as to liability to pay compensation under the Act and the injury, age and occupation of the worker at the time of the occurrence of the injury as well as to his diminished ability to compete in an open labour market. 6. It is clear from the decisions in the two cases to which I have made reference that two principles emerge. The first of these is that a redemption award of the Court is a determination and not an enforceable order and the submission of the applicant's counsel to that effect is, in my view, correct. It establishes secondly that once the order has been made the employer has an option as to whether to proceed to effectuate the redemption settlement. 7. It is appropriate at this point to consider the submission of applicant's counsel that that is not a unilateral option but in fact the either party to a redemption order has the option to withdraw from it. This question does not seem to me to be one that has been the subject of any specific judicial determination. Accordingly, following the remarks of Samuels JA in Chang Leng's case, the most convenient course in determining this point is, I think, to look at the terms of s 15(1). The terms of that section make it clear that the consent of the worker is required to a redemption order made by the Court. It follows too, it seems to me quite clearly, from that that the Court cannot make such a redemption order unless the consent of the worker is given at the date the order is made. Were it to be otherwise the situation would be totally unworkable. 8. That then raises the issue of whether or not the worker in the circumstances of this case gave a real consent to what was going on. I am of the opinion that he did. I am satisfied on the evidence that there is no material sufficient to lead to a conclusion that the applicant was either under such a degree of confusion or in any way under the influence of any medication that he was unable to understand or comprehend what was occurring on 19 March. It seems to me quite clear on reading the transcript that the applicant, who is a very clearly expressed person, understood what was going on in court and indeed confirmed the details in the consent form for the redemption proceedings. I do not consider that anything that has been put before the Court suggests that the consent expressed by the applicant on the day of the redemption order is in any way vitiated by extraneous events. 9. It was pointed out by Walker J in Southern Tablelands Health Service v Solomon (1999) 19 NSWLR 235 that mistake or inadvertence of legal advisers is not a ground for reconsideration of an award. His Honour raised the exceptional situations that can occur in cases such as Sorcevski. I think with respect that his Honour's general comment is correct but in relating this remark to the matter raised by the applicant in his affidavit on the social security position I should not be taken as expressing any views that there was any inadvertence or mistake by the applicant's then legal advisers. The applicant has deposed as to his understanding of the situation. It is abundantly clear to this court and to everyone who practises in it that the operation of the social security legislation is complicated in the extreme. The court does not have anything by way of direct evidence before it suggestive of a final determination by that department, whether at first instance or following any appeal procedure. 10. I find the social security position, as it affects the applicant, far from clear. Even if the applicant has changed his mind about wishing to proceed with the redemption, as I find he has, this, in my opinion, is not a ground for the Court exercising its discretion to reconsider or rescind its award any more than it is in the situation where an employer elects not to proceed with a redemption, an order for which has been made. It is true that in Senbakan v James Hardie and Co Pty Ltd 17 NSWCCR 1 the Chief Judge has held that the redemption process has not been completed until the cheque and payment thereof is honoured by the worker's bank. However, the motion before the Court does not deal with the question of whether a redemption process in this instance has concluded and I express no view on this issue. 11. For the above reasons I am of the opinion that no grounds have been made out for the Court to either rescind or reconsider the order for redemption made on 19 March 2001. 12. I have been asked by counsel for the applicant to relist these proceedings for hearing. I think this is appropriate under the circumstances and I direct that the matter be relisted for hearing before his Honour Judge Duck on a date to be arranged by the registry. 13. I will reserve the question of costs.. Mr S Lowe instructed by Palmiere Lawyers appeared for the applicant Mr S Flett instructed by Sparke Helmore appeared for the respondent