Sarkis & ors v Workcover Authority of New South Wales [2011] NSWSC 78

Supreme Court New South Wales

Medium Neutral Citation: Sarkis & ors v Workcover Authority of New South Wales [2011] NSWSC 78 Hearing dates: 11 February 2011 Decision date: 11 February 2011 Before: R A Hulme J Decision: Extension of time to apply for leave to appeal is granted. Leave to appeal refused. Plaintiff to pay the costs of the defendant on the ordinary basis. Catchwords: APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales - appeal from General Division of Local Court - no question of law or mixed question of law and fact Legislation Cited: Local Court Act 2007 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Category: Principal judgment Parties: Toufic Laba Sarkis (First plaintiff) Maurice Sarkis (Second plaintiff) Chalita Boutros (Third plaintiff) Workcover Authority of New South Wales (Defendant) Representation: Solicitors: Mr T Sarkis in person for plaintiffs Mr L Wilson for defendant File Number(s): 2010/292497

Judgment 1HIS HONOUR : On 21 May 2010 his Honour Magistrate Buscombe determined proceedings in the Local Court identified as 596 of 2008. He gave judgment in favour of the present defendant against the first and third plaintiffs in the sum of $48,528.80. In addition he ordered that the first and third plaintiffs pay the defendant's costs. 2The matter arises from an injury occasioned to a worker employed by a company of which the plaintiffs were directors on 9 February 2000. Apparently the company was not insured for employment contracts arising in New South Wales. 3The injured worker made application to the Workers' Compensation Commission. On 20 December 2004 an arbitrator made a determination on behalf of the Commission. That determination resulted in a payment being made by WorkCover to the injured worker in the sum of $48,528.80. 4The Workers Compensation Act 1987 makes certain provisions in respect of the recovery of an amount so paid from either the employer company or, in certain circumstances, culpable directors of that company: see s 145 and 145A. 5The employer company was Global Cape York Timber Pty Limited. That company was deregistered on 26 November 2006. As a result, the defendant took proceedings in the Local Court to recover from the directors. The proceedings were heard by Magistrate Buscombe on 4 and 11 December 2009 and 28 April 2010 and, as I have said, he gave judgment on 21 May 2010. 6The main issue for the Local Court was whether the statutory scheme in the Workers Compensation Act had been complied with and whether the directors of the company were appropriately to be regarded as "culpable directors". It would seem that in addition there was also an issue as to whether the third plaintiff was a director at the relevant time. Both issues were determined adversely to the plaintiffs. 7The second plaintiff took no active part in the proceedings in the Local Court and default judgment was entered against that party on some date preceding the determination of the Magistrate. 8Nevertheless, all three plaintiffs sought to appeal to the District Court against the Magistrate's decision. Notwithstanding the plaintiffs being advised by the defendant by letter of 24 June 2010 that the District Court had no jurisdiction to deal with such an appeal, the plaintiffs continued to pursue it. Ultimately, however, the summons seeking to appeal in that jurisdiction was dismissed on 6 September 2010. Such dismissal followed a re-listing of the matter before the Judicial Registrar after a judge of that court had previously purported to strike out the summons. 9On 2 September 2010 a summons was filed in this Court seeking leave to appeal from the whole of the judgment of the Local Court. 10The matter came before me for hearing today. Mr Wilson, solicitor, appeared for the defendant. The plaintiffs were not represented. Mr Sarkis spoke on their behalf. 11There are certain provisions of the Local Court Act 2007 and Uniform Civil Procedure Rules 2005 which should be noted at this point. 12Section 39(1) Local Court Act 2007 (NSW) states as follows: A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. 13Section 40(1) Local Court Act 2007 (NSW) states as follows: A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. 14Rule 50.12 Uniform Civil Procedure Rules 2005 states as follows: (1)A summons seeking leave to appeal must be filed: (a)within 28 days of the material date, or (b)... (c)within such further time as the higher court may allow. (2)An application for an extension of time under sub-rule (1) (c) must form part of the summons seeking leave to appeal. (3)The summons must be in the approved form and must contain a statement as to: (a) whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and (b) what decision the plaintiff seeks in place of the decision of the court below. (4)The summons must also contain a statement of: (a) the nature of the case, and (b) the reasons why leave should be given, and (c) if applicable, the reasons why time to apply for leave should be extended, setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below. 15Rule 50.14 Uniform Civil Procedure Rules 2005 states as follows: (1) Unless the Court otherwise orders, the plaintiff must prepare, file and serve on each defendant, not later than 3 days before the date fixed for hearing of the summons, an affidavit to be relied on at the appeal or application for leave to appeal that annexes or exhibits: (a) a copy of the reasons for the decision of the court below, unless the court below has not given, and does not intend to give, written reasons, and (b) a copy of the transcript of the proceedings in the court below, unless a transcript cannot be obtained in respect of the proceedings of that type, and (c) a copy of any exhibit, affidavit or other document from the proceedings in the court below that the plaintiff wishes to be considered at the hearing of the appeal or proposed appeal. (2) ... (3) The higher court may make further directions for the filing and service of an affidavit under subrule (1) or (2) and for the lodging and service of any exhibits to such an affidavit. 16There has been a significant number of failures to comply with those requirements. They include: * failure to comply with UCPR 50.12(2) (although an application for an extension of time may be implied in paragraph 6 of the summons which purports to provide some reason for the delay); * failure to comply with the requirements of UCPR 50.12(3) and (4); * failure to prepare, file and serve the documents referred to in UCPR 50.14(1); and * failure to raise any issue of law, or mixed law and fact (ss 39 and 40 Local Court Act ). 17The matter came before Registrar Bradford on 13 September 2010. The Registrar on that occasion made a number of orders, including that an amended summons be filed and that the plaintiffs file and serve all affidavit evidence that they intended to rely on by 11 October. The Registrar also noted in the court record that the plaintiffs had been advised of the need to set out grounds of the appeal in a proper form in the amended summons; that there was a need to file affidavit material; and that the plaintiffs had been advised of avenues through which they may obtain legal advice in relation to the proceedings. The plaintiffs only complied with one of these orders and that was by filing an amended summons on 11 October 2010. That amended summons still failed to comply with a number of the requirements of UCPR 50.12 and 50.14. It also still did not raise any issue of law, or mixed law and fact. 18The matter came before the Registrar again on 25 October. On that occasion the plaintiffs were directed to file and serve an amended summons by 15 November. The first plaintiff was directed to obtain a written authority of the other plaintiffs that he was authorised to appear on their behalf if no legal representation had been obtained. The Registrar also noted that in the event those orders were not complied with the amended summons was to be dismissed. Finally, the Registrar ordered costs against the first plaintiff to be paid by the defendant for that day's proceedings to be assessed forthwith on an indemnity basis. 19Finally, the matter came back before the Registrar on 19 November 2010. On that occasion a number of orders were made, including that the plaintiffs file and serve any affidavits by 10 December and that the plaintiffs file and serve any further amended summons which properly set out the grounds of appeal by 10 December. There was also an order that all documents be filed and served by the plaintiffs, including the transcript of the Local Court proceedings, by 21 January 2011. The matter was listed for determination of the application for leave to appeal on 11 February, that is today. Some other ancillary orders were made. Finally, the Registrar ordered: "In the event no further amended summons is filed and served in accordance with order 2, the summons be struck out and the proceedings dismissed with costs in favour of the defendant." 20Notwithstanding that this has the hallmarks of a self-executing order, noting that no further amended summons was filed by 10 December, the defendant has approached the matter, rather generously I would have thought, on the basis that the matter could be subject to further argument today. 21I have earlier referred to a number of deficiencies in compliance with the requirements of the Local Court Act and Uniform Civil Procedure Rules. T he lack of merit of the appeal is self-evident from the grounds sought to be agitated by the plaintiffs in the amended summons which are as follows: The plaintiffs believe that the Arbitrator originally made an error of law by allowing the matter to be dealt with by Workcover Authority of New South Wales while the injured person was injured in Queensland and the company had workers compensation cover in Queensland at the time of the incident. Workcover Authority of New South Wales agreed to take the responsibility and there was no hearing before the Arbitrator nor a commitment from the plaintiffs to take liability as to the issue that the matter be brought to Workcover Authority of New South Wales. The plaintiffs had Workcover insurance in Queensland and the matter should have never been brought in New South Wales. The original judgment of the Arbitrator as well as the judgment of His Honour of the Local Court of NSW are not one which could be formed by a reasonable person as no rational or logical decision maker could form that opinion on the evidence provided. 22It is quite apparent that any grievance that the plaintiffs have is not at all to do with the determination of the Magistrate. Indeed, in the affidavit sworn by Mr Toufic Sarkis, the first plaintiff, on 9 December 2010 it is said in para 5: "The plaintiffs do not wish to challenge Magistrate Buscombe's judgment as to whether the first and third defendants are culpable directors..." 23It is clear from what then appears in the affidavit, together with what was agitated before the Magistrate and from what the first plaintiff has put to the Court today, that there is a grievance held in relation to the determination of the Workers' Compensation Commission rather than with the determination of the Magistrate. Clearly, in that case the appeal does not have any merit, even aside from the fact that there have been the failures to comply with the requirements I have set out earlier. 24The defendant today seeks that the Court refuse an implied application for extension of time to appeal and, in the alternative, that the Court refuse leave to appeal. 25In view of the inability of the plaintiffs to obtain legal advice, although I should note they had ample opportunity to do so, I am prepared to accept that there is an implied application for extension of time which I would grant but I would refuse leave to appeal. 26The defendant applies for costs to be ordered on an indemnity basis. I have heard brief oral submissions from Mr Wilson in addition to what he has helpfully put in his written submissions. It would be well open to me in my discretion to order costs on that basis but I have some sympathy for the position of the plaintiff. I do acknowledge that the Authority has extended considerable help to the plaintiffs and has pointed out on a number of occasions the lack of merit of the proceedings that they have taken. It is unfortunate that the plaintiffs have not accepted such helpful assistance. 27Mr Sarkis, the first plaintiff, has informed me today of the difficulties he has experienced. On balance, in my view it would be overly harsh to order costs on an indemnity basis so I make an order that the plaintiffs pay the costs of the defendant on the ordinary basis.