Dalby & Others v Better Care Pty Ltd & Others (No. 2) [1996] NSWCC 39; (1996) 14 NSWCCR 48 (29 November 1996)

[1996] NSWCC 39; (1996) 14 NSWCCR 48

DALBY & OTHERS v. BETTER CARE PTY LTD & OTHERS (No. 2)

Compensation Court of New South Wales: Bishop J

29 NOVEMBER 1996

PROCEEDINGS TO OBTAIN COMPENSATION - REPRESENTATIVE PROCEEDINGS - COURT HAS A FLEXIBLE AND PRO-ACTIVE SUPERVISORY ROLE IN SUCH PROCEEDINGS TO ACHIEVE THE EXPEDITIOUS RESOLUTION OF THE CLAIMS - APPROPRIATE FOR COURT TO ORDER PROVISION OF MATERIAL INFORMATION BY RESPONDENT RATHER THAN USE INTERROGATORIES

P.M. HALL QC AND A.P. MONAGHAN, for the applicants

C.R.C. NEWLINDS, for the first respondent and the first, second and fourth-named second respondents

C.J. BIRCH, for the fifth-named second respondent

I.M. KHAN, for the WorkCover Authority (intervening)

CUR ADV VULT

BISHOP J:

INTRODUCTION

On 28 June 1996 judgment was given by me in this matter together with matters of LUPTON and FALZON involving the same respondents [see LUPTON v. BETTER CARE PTY LTD [1996] NSWCC 21; (1996) 13 NSWCCR 246]. That was a judgment in all three matters. On 21 November 1996, orders were made consolidating the three matters. In the first judgment orders were made for amendment of the pleadings on behalf of the applicants. Further directions were given with regard to such amendments on 21 November. There also remains in connection with this litigation an outstanding motion for discovery filed by the applicant and certain other motions filed on behalf of the respondents relative to separate trials of certain issues and as to the validity of a certain subpoena. These motions have not as yet been dealt with and directions relative thereto will appear at the conclusion of this judgment.

This judgment deals with a separate motion filed by the applicants on 18 September 1996. The relief sought in this motion is twofold:

1. An order that the first respondent provide information to the applicants within 28 days in terms of the document entitled "Schedule of Information of the First Respondent", a copy of which was attached to the motion and marked A.

2. Further or in the alternative, an order that an officer of the first respondent be appointed to attend for examination before the Court and production of any document pursuant to Part 23, rule 13(1) of the Compensation Court Rules 1990.

The schedule was in the following terms:

1. Name of client/principal claiming compensation under the Workers Compensation Act 1987.

2. Address of client/principal referred to in 1. above.

3. Date of engagement or appointment by the first respondent as agent of the person referred to in 1. above.

4. In the event of proceedings in the Compensation Court of New South Wales:

(a) Date of commencement of proceedings.

(b) Matter number.

5. Nature of claim for compensation.

6. If a solicitor was engaged in respect of a claim referred to in 5. above, the identity of the solicitor or solicitors.

7. Particulars of all payments received by the first respondent from the person referred to in 1. above:

(a) Amount of the payment received by the first respondent.

(b) Identity of the person making the payment to the first respondent.

(c) Date of receipt by the first respondent of the payment.

(d) Nature of the payment.

(e) Reason for the payment.

8. Details of all payments received from any insurer or self-insurer in respect of the claim referred to in 5. above:

(a) Date of the payment.

(b) Amount of the payment.

(c) Whether the payment was received on account of costs associated with the claim referred to in 5. above. If not, the reason for the payment.

THE SUBMISSIONS OF THE APPLICANTS

The earlier judgment referred to above permitted the continuation of these proceedings as a representative action pursuant to Part 6, rule 19 of the Compensation Court Rules 1990. In that judgment there was a discussion in some detail of a decision of the High Court in CARNIE v. ESANDA FINANCE CORPORATION LTD [1995] HCA 9; (1995) 127 ALR 76. It was inherent, it was submitted, in the nature of such a representative action that the Court should supervise its progress so that it moved efficiently and expeditiously to determine and establish the individual rights of the members of the represented class. There was nothing in the pleadings or the evidence currently before the Court to suggest that the information sought in the schedule was not in the possession of the first respondent. The Court has, it was conceded, powers to achieve not dissimilar objectives in the Rules relative to discovery and interrogatories. However, it was argued !that this alternative way of achieving the supply of the information sought was consistent with the objective of the expeditious conclusion of the litigation. It was further submitted that under the legislation governing this Court there was sufficient power to make the direction sought. Particular reference was made to section 15(2) of the Compensation Court Act 1984 which gives this Court similar functions to those vested in the District Court in respect of compelling witnesses to answer questions which the Court considers to be relevant in any proceedings before it. Reference was made in addition to section 24(1)(b) of the same Act relative to the power of the Court to require a party to make admissions with respect to any question of fact. Particular emphasis was placed on Part 1, rule 7 of the Compensation Court Rules which provides as follows:

" (1) Where a person decides to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act, the Compensation Court Act or the rules, or by or under any other Act, or the person is in doubt as to the manner or form of procedure, the Court may, on application by the person or of its own motion, give directions.

(2) Proceedings commenced in accordance with the direction of the Court shall be well commenced.

(3) A step taken in accordance with the directions of the Court shall be regular and sufficient."

The alternative order was pressed but with less enthusiasm. This was the order requiring an officer of the first respondent to be appointed to attend for examination before the Court and production of documents. While this was put forward, it was submitted that this would be a much more cumbersome procedure than that which was envisaged under the first order and would suffer from the same complexities and time restraints as would be involved with utilisation of the procedures involved in discovery and interrogatories.

SUBMISSIONS OF THE FIRST RESPONDENT

Whilst not raising any significant issue as to the provision of the names and last addresses of the individuals referred to in clauses 1 and 2 of the schedule, the respondent submitted that the preferable course was for the information to be ascertained by discovery and interrogatories. It was further submitted that the form of a number of the questions would be invalid as far as interrogatories were concerned. It was further argued that it was, in the alternative, open for the documents to be provided to the applicants so that the time and expense involved in sorting out the information was at the applicants' door and not that of the respondent. With regard to the second order sought, similar objections were made but in addition it was argued that the requirement for a representative of the first respondent to attend and be examined might well raise complex issues of privilege against incrimination. A final general objection was that, even if this information were! to be obtained, a lot of it may not be admissible. A more appropriate course for the Court to adopt at the moment would be to develop the means of the progress of the litigation by requiring the applicants to outline their proposed programme rather than let them take advantage of a procedure such as this in order to solve that question.

CONCLUSIONS

In general terms, the submissions of senior counsel for the applicants with regard to the primary relief sought in these proceedings are in my view to be preferred. The submission that the decision in CARNIE requires the Court to adopt a flexible and pro-active approach to the litigation in a supervisory role is correct. This supervisory role continues as long as the Court continues to permit the litigation to continue as a representative action. See for example the more recent developments in the matter that went to the High Court reported as CARNIE v. ESANDA FINANCE CORPORATION LTD (1995) 38 NSWLR 465. Further the submission that there is nothing before the Court to indicate that the first respondent is in anyway unable to answer the questions in the schedule is well founded. There is a broad degree of flexibility in the Compensation Court Act and Rules as far as the procedure of this C!ourt is concerned and to take a flexible approach to the powers therein in accordance with the principles outlined by the High Court gains some support from the remarks of Hutley JA in BOGETA PTY LTD v. WALES [1977] 1 NSWLR 139 at 148 and 149 and also from the comments of Kirby P in LINPRINT PTY LTD v. HEXHAM TEXTILES PTY LTD (1991) 23 NSWLR 508 at 514-515. Such a conclusion makes the suggested course of action preferable to the complexities of discovery and interrogatories. The absence of any evidence of undue difficulty in providing the information sought points to a similar conclusion. The question of the timing of the development of a programme for the conclusion of the litigation is a discretionary matter further dealt with at the end of this judgment. With regard to the form of the questions in the schedule annexed to the motion, it was made clear by sen!ior counsel for the applicants that the information sought was directed toward both the establishment of and identification of the members of the class and also to evidence in the substantive proceedings. The schedule is in a way analogous to the situation with interrogatories and certain of the objections taken by counsel for the first respondent in my view have some force.

The applicants having surmounted the preliminary requirement of establishing the nature of the representative class consistent with the decision of the High Court in CARNIE, clauses in the schedule directed towards the names and last known address of potential members of the represented class meet the test of materiality referred to in COAL CLIFF COLLIERIES PTY LTD v. CE HEATH INSURANCE BROKING (AUSTRALIA) PTY LTD (1986) 5 NSWLR 703 at 709 and 710. In general terms, the other clauses also meet, in my view, the test of materiality relative to the substantive issues in these proceedings.

However, there is a valid objection as to form in clauses 3, 7 and 8.

With regard to clause 3, the reference to appointment "as agent" is open to the objection of requiring a conclusion of law. This part of the clause is in my view severable and a permissible form making allowance for the typographical error therein would be as follows:

" 3. Date of engagement or appointment of the first respondent by the person referred to in 1. above."

Clauses 7 and 8 contain reference to the reason for the payments referred to therein. This is a case of uncertain drafting which may involve an assessment of the minds of those making the payments. In my opinion that provision should be severed from each of these clauses so that clause 7(e) and the last sentence of clause 8(c) should be deleted.

ORDERS

1. I order that the applicants serve on the first respondent within seven days an amended Schedule of Information of the First Respondent.

2. I further order that the first respondent supply the information sought therein to the applicants on or before 20 January 1997.

3. I make no order at this stage with regard to the alternative order sought in the motion but reserve liberty to apply in respect thereof.

4. The costs of this motion will be costs in the cause.

FURTHER DIRECTIONS

The matter is listed for mention before me on 3 December 1996 for the following purposes:

(a) Fixing a timetable for written submissions by the applicant, and responses thereto by the respondents if so advised, as to how the orders sought, if made, will enable the expeditious resolution of the claims of the persons represented without protracted litigation and in accordance with the jurisdiction of this Court: see LUPTON v. BETTER CARE PTY LTD [1996] NSWCC 21; (1996) 13 NSWCCR 246 at 253. It is proposed that this timetable will conclude by the end of February 1997.

(b) Fixing a date in March 1997 for the resolution of all outstanding interlocutory motions whether by way of written submissions or otherwise.

(c) Fixing a hearing date of the substantive issues in April 1997.

ORDERS AND DIRECTIONS ACCORDINGLY

Solicitors for the applicant: CARROLL & O'DEA

Solicitors for the first and second respondent (other than A.A. Newland): KEMP STRANG & CHIPPINDALE

Solicitors for the second respondent (A.A. Newland): HUNT MUSGRAVE & PEACH (as NSW agents for MULCAHY MENDELSON & ROUND (Victoria)