Calvary Hospital v Christensen [2002] NSWCC 7

Reported Decision : 23 NSWCCR 137

Compensation Court of New South Wales

CITATION : Calvary Hospital v Christensen [2002] NSWCC 7 Calvary Hospital PARTIES : v Anissa Christensen MATTER NUMBER(S) : 11749 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/02/02 EX TEMPORE JUDGMENT DATE : 02/11/2002

FOR APPLICANT: Mr MacIntosh of Phillips Fox Lawyers appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Vuletich of Carroll & Associates appeared for the respondent.

JUDGMENT: 1. This is an application for commutation. The matter comes before me because of further difficulties involving the proper construction of Sch 6 Pt 18C cl 11 of the Workers Compensation Act 1987. I have earlier had occasion to consider that provision in three different factual scenarios, those decisions are Bradshaw v Trazmet (NSW) Pty Limited (unreported, 29 January 2002 No 49457 of 2001), Franklins Limited v Richards (unreported, 30 January 2002 No 12052 of 2001) and McGaw v Lowrie (unreported, 30 January 2002, No 12042 of 2001). 2. In this matter, an application for determination seeking a commutation of the employer's liability was filed on 26 November 2001, that is before 9 am on 27 November 2001. 3. The application shows as the applicant, The Calvary Hospital and the applicant's insurer is identified as the GIO Workers Compensation, and the respondent named is Anissa Christensen, who is a worker, now resident in the State of Queensland. The person filing the document however signed himself solicitor for the respondent and he is identified in the place on the application for determination which should disclose details of the applicant's solicitor as "respondent's solicitor" and then gives the details of the solicitor acting for the worker. The solicitor formally on the record as at the time of filing the application for determination was Mr Michael Carroll of Messrs Carroll & Associates. 4. Today, Mr Vuletich, an employee of Carroll & Associates appears for the respondent worker, and Mr MacIntosh, solicitor, employed by Messrs Phillips Fox, appears for the applicant employer. The applicant employer has filed a notice of motion seeking inter alia this order: That the application for commutation filed by Carroll & Associates, Solicitors on 26 November 2001, be maintained. 5. The motion is correctly headed with the name of the applicant employer, the applicant employer's insurer and the insurer's solicitor and gives details of the respondent worker. However, when referring to what is obviously the applicant employer, the document goes on to use the title "Respondent" which is a common enough solecism in this Court where respondents are generally employers and employers, even if they are applicants, often still refer to themselves as "respondents". The same often happens when workers who are respondents refer to themselves as "applicants". However, it is clear that Messrs Phillips Fox have been acting for the employer since 13 January 2002 on instructions received from the applicant employer's insurer. 6. The Court record needs to be regularised by Messrs Phillips Fox filing a notice of change of solicitor on behalf of the applicant employer and Messrs Carroll & Associates filing an appearance on behalf of the respondent worker. 7. In McGaw v Lowrie, I referred to a factual situation where a worker's solicitor had filed an application for determination seeking a commutation at 9.18 am on the morning of 27 November 2002. In par [9] of that judgment I said this: I am aware of matters in which his Honour, the Chief Judge, Justice Campbell, has held where a worker's solicitor has been so authorised by an insurer or insurer's solicitor, that worker's solicitor has the legal capacity to file an application for determination on behalf of the employer. However, in the current matter, there is no evidence that the solicitor who did file the application for determination had either specific instructions or authorisation from the insurer to commence proceedings nor can any such authority be implied. This is not due to a defect in the evidence, as the matter was specifically adjourned for a short while whilst Mr O'Rourke of counsel, who appears for the worker, sought instructions but he was unable to put before me any evidence that his solicitor was so instructed or authorised either specifically or by implication. I then went on to consider the provisions of the Workers Compensation Act 1987 Sch 6 Pt 4 cl 6B and pointed out at the commencement of par [12] that the course of action adopted in McGaw v Lowrie was contrary to the provisions of Sch 6 Pt 4 cl 6B and to a decision of my own referred to in par [12] of McGaw v Lowrie . At the commencement of par [13] I pointed out that the commencement of proceedings by a worker's solicitor without authority from the employer were either a gross irregularity or nullity. 8. It should be noted further, that in McGaw v Lowrie it was the worker who was described as the applicant and it was the applicant worker who sought a commutation. The current matter is quite different to McGaw v Lowrie. Here, Mr Vuletich who was negotiating with the insurer of the applicant employer has sworn that in a telephone conversation on 23 November 2001, he proposed that he: Should file an Application for Commutation on behalf of the Applicant Employer in order to protect the respective positions and interests of both parties. 9. Hearsay evidence has been adduced without objection from the claims officer of the Government Insurance Office with whom Mr Vuletich was negotiating. That lady, Ms Karen Apikotoa, confirms that there was a conversation in which Mr Vuletich proposed that he file an application seeking commutation to which she consented. The only "discrepancy" in the evidence put before me by Mr Vuletich and that put before me from Ms Apikotoa is that Ms Apikotoa does not depose to the fact that Mr Vuletich said that he would file the application for determination on behalf of the employer. However, it is clear that the form of application for determination which he did file was in the name of the applicant employer and that application for determination was sent to Ms Apikotoa on 27 November 2001. In this matter, agreement as to the lump sum proposed for commutation was not reached until 31 January 2002 and Messrs Phillips Fox were not instructed until 13 January 2002. 10. However, clearly in this matter, there was an application for determination filed on behalf of the applicant employer in this court prior to 9 am on 27 November 2001. The question then becomes whether the filing of that document preserves this Court's ability to grant the relief of commutation under the former s 51 of the Workers Compensation Act 1987. In this matter, it has been noted that no agreement had been reached prior to 9 am on 27 November 2001, but both parties desired that there be a commutation. 11. The factual position in Franklins Limited v Richards was that agreement had been reached prior to 9 am on 27 November 2001 but no application for determination had been filed. In Franklins Limited v Richards, I held that it was insufficient that agreement had been reached prior to 9 am on 27 November 2001, but that it was necessary that an application for determination seeking commutation had been filed. 12. Here when one considers the terms of Sch 6 Pt 18C cl 11(2) par (a), it can be seen that there was an application for determination under s 51 in respect of the employer's liability for weekly payments pending immediately before 9 am on 27 November 2001, which, on a reading of the provision, gives this Court power to approve a commutation provided that such approval is given prior to 31 March 2002. 13. In Franklins Limited v Richards, I pointed out that the discrimen of the Act was not the fact of a prior agreement, but the fact of a filing of an application for determination in this Court. There is nothing in Sch 6 Pt 18C cl 11 which requires any prior agreement between the employer and the worker. If there be such a requirement, it must be gleaned from the terms of s 51 itself. 14. The terms of s 51 I have set out in full in Bradshaw v Trazmet (NSW) Pty Limited and I do not intend to recite them in this judgment. However, the operative part of subsection (2) is this: A liability in respect of any weekly payment of compensation may, with the consent of the worker, be commuted . . . to a lump sum, determined by the Compensation Court, . . . 15. It is to be noted from the very terms of s 51(2) that it is not up to the parties to determine the lump sum, the determination of the lump sum is to be made by the Court. The parties might agree on a lump sum, but the Court might think it inadequate and reject it. However, the structure of s 51 and the structure of its predecessor, s 15 of the 1926 Act, were that the lump sum was determined by the Court, not by the parties. Of course, the practice arose of the Court only considering sums agreed between the parties because of practical considerations. Often a worker would seek a redemption or a commutation, but an employer was unwilling to grant that relief. As the authorities stand, an employer could not and has never been able to be compelled to pay a lump sum determined by the Court either by way of commutation or redemption. It therefore became the practice to only consider sums proposed by the parties because little point was served in the court making a determination of a lump sum which the employer had no intention of ever paying. That is practically what happened. 16. However, the Act still requires that the Court determine the lump sum and there is no requirement in law for there to be a prior agreement, even though in practice that agreement was generally sought because no-one could force an unwilling employer to pay a lump sum by way of redemption or commutation. Notwithstanding that practice, the terms of the Act are quite clear. In my view, it is not necessary for there to be any agreement prior to the filing of an application for determination seeking a commutation; it is only necessary that the application for determination be filed prior to 9 am on 27 November 2001. 17. Accordingly, I hold that the application for determination filed on 26 November 2001 was regular. I direct Messrs Phillips Fox to file a notice of change of solicitor. I direct Messrs Carroll & Associates to file an appearance on behalf of the respondent worker. Set down for hearing at Brisbane, Monday, 11 March 2002, 10.00 am local time. Mr MacIntosh, of Phillips Fox Lawyers, appeared on behalf of the applicant. Mr Vuletich, of Carroll & Associates, appeared on behalf of the respondent.