Holmes v Wollongong University Union [2001] NSWCC 94

Compensation Court of New South Wales

CITATION : Holmes v Wollongong University Union [2001] NSWCC 94 Kathleen Holmes PARTIES : v Wollongong University Union MATTER NUMBER(S) : 35778 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 03/04/01 EX TEMPORE JUDGMENT DATE : 04/03/2001

FOR APPLICANT: Mr C Stewart instructed by Milicevic Solicitors appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr D Stiles (clerk) instructed by Pieterse & Pieterse appeared for GIO General Ltd. Mr G Niven instructed by Pieterse & Pieterse appeared for GIO WC (NSW) Ltd.

JUDGMENT: 1. These proceedings were commenced by application for determination filed on 25 June 1999, nearly two years ago. On 14 July 1999 Messrs Pieterse & Pieterse filed an answer on behalf of the respondent in the interests of GIO General Ltd in respect of the period from 10 November 1967 to 30 June 1987. On the same day they also filed an answer on behalf of the respondent in the interests of GIO Workers Compensation (NSW) Ltd at risk from 30 June 1987 to 31 December 1995. Accordingly, Messrs Pieterse & Pieterse were acting for the two named insurers of the respondent. 2. The matter was mentioned before the Assistant Registrar on 22 March 2000 when the matter was stood to the bottom of the Pending List here at Wollongong. The matter was then given a call-over date for the Moss Vale circuit on 31 August 2000 - but, by variation order, issued on 1 June 2000, the matter was taken out of the Moss Vale call-over list, Moss Vale being a mining circuit only. The matter was then issued with a preliminary notice of listing on 16 November 2000 for the current listing and a confirmation advice went out on 6 February 2001 for yesterday's hearing on 2 April 2001. 3. When the matter was called over yesterday, Mr Niven, of counsel, announced his appearance in the interests of GIO Workers Compensation (NSW) Ltd. He was under some confusion as to who was appearing for the earlier insurer of the respondent, GIO General Ltd. It was only subsequently drawn to his attention that those instructing him had also filed an answer on behalf of the earlier insurer. Yesterday's listing was visited with confusion throughout the day. Mr Niven, when the matter was eventually reached after conclusion of the part-heard matter at approximately 3.30 pm, indicated that he appeared only for the second insurer of the respondent and was unaware as to who was appearing for the first insurer of the respondent. There was some then confusion as to whether Messrs Pieterse & Pieterse were acting on behalf of both insurers. I adjourned the matter to this day because I anticipated I would have time available to hear it after concluding giving judgment in the part-heard matter. I ordered the respondent pay the applicant's costs thrown away on 2 April - in any event on a full-refresher basis - and grant liberty to the respondent to apply for an order as to which insurer was liable to indemnify it for the costs order which I made on that day. 4. When this matter was called over at 10 o'clock this morning there was still confusion in the respondent's camp - no instructions having been given as to who was to represent the earlier insurer for the respondent. I reached this matter at approximately 12.40 pm today when Mr Stiles, a clerk in the employ of Messrs Pieterse & Pieterse, sought leave to file a notice of ceasing to act on behalf of the first insurer of the respondent. However, it is common ground that the Messrs Pieterse & Pieterse have not complied with the various provisions of Pt 33 of the rules relating to ceasing to act. I indicated to Mr Stiles that I would refuse to grant leave to file in Court the notice of ceasing to act unless the insurer in whose interests he sought leave to file the notice agreed to pay interim compensation to the worker and the costs thrown away by an adjournment, and that I would list the matter before me when I am next in Wollongong during the week commencing 7 May 2001. 5. That position was reached at about 12.55 pm. When I came back to this matter again today at approximately 2.15 pm Mr Stiles has no instructions to agree to the course of action I proposed - nor, it would seem, any instructions. No-one is here present on behalf of GIO Australia Ltd to represent its interests except Mr Stiles who is a clerk in the employ of the solicitors still on the record for that insurer. 6. When one looks at the application for determination one can see that a number of frank injuries are alleged both before and after 30 June 1987. I can only assume that Messrs Pieterse & Pieterse when they filed the answer on behalf of each insurer had cognisance of Pt 33 r 2 which provides as follows: Where a solicitor or his partner acts as solicitor for any party to any proceedings, or as a party to any proceedings, that solicitor shall not, without leave of the Court, act for any other party to the proceedings not in the same interest. 7. Of course, an insurer is not a party to the proceedings - although the insurer is the effective defendant. I am prepared to construe Pt 33 r 2 as applying inter alia to a solicitor acting in the interests of more than one insurer of the same employer. However, the fact that two answers were filed by Messrs Pieterse & Pieterse can only indicate that, at that time, it was thought that there was no conflict of interest between the two insurers. It appeared yesterday - and it appears patently clear today - that there is such a conflict and probably the conflict was only drawn, I suspect, to the attention of the respondent's solicitors by Mr Niven, of counsel, who turned up yesterday in the interests of GIO Workers Compensation (NSW) Ltd. 8. This is a very sorry position to be reached, caused by someone's incompetence - whether it be the incompetence of the solicitor or the incompetence of the insurer, I do not know. Such incompetence merely causes costs to be thrown away unnecessarily and inconveniences the applicant who claims compensation. It has been submitted that if I refuse leave to Messrs Pieterse & Pieterse to file a notice of ceasing to act on behalf of the first insurer, I am denying that insurer natural justice. I would point out that that insurer has since the service of the application for determination upon it, which is sometime prior to 14 July 1999 - that is for a period of at least 21 months - had every opportunity it wished to protect its own interests and have solicitors acting for it. 9. If I grant Messrs Pieterse & Pieterse leave to file the notice of ceasing to act, then, there being no solicitor on the record for the insurer, and the insurer being required by the rules to act through a solicitor, I would have to adjourn the matter to the detriment of the applicant. However, the detriment may only be a delay of a month, and considering the applicant's age, she probably would not be entitled to weekly payments, in any event, in more recent times. 10. Weighing up the balance, it appears to me that the appropriate order is that I grant leave to file the notice of ceasing to act, stand the matter over for hearing before me during the week commencing 7 May 2001, order the insurer who will no longer be represented to pay costs and if that insurer is aggrieved by the costs order, and if proper cause be shown, I will reconsider the order pursuant to s 17(4) of the Compensation Court Act 1984, but I would indicate that it appears, inferentially, from the conduct that I have observed myself that it may be the insurer has a remedy for negligent advise against a solicitor. 11. I grant leave to Messrs Pieterse & Pieterse to file in Court a notice of ceasing to act on behalf of GIO General Limited. 12. Adjourned, stood over for hearing before me at Wollongong, Wednesday 9 May 2001 at 10 am. 13. Order GIO General Limited to pay costs thrown away by today's adjournment on full refresher basis. In any event liberty to that insurer to apply under s 17(4) of the Compensation Court Act 1984 for reconsideration of that of the costs order. Mr C Stewart instructed by Milicevic Solicitors appeared for the applicant. Mr D Stiles (clerk) instructed by Pieterse & Pieterse appeared for GIO General Ltd. Mr G Niven instructed by Pieterse & Pieterse appeared for GIO WC (NSW) Ltd.