Rae v Evenhawk Pty Ltd [1997] NSWCC 19; (1997) 14 NSWCCR 509 (23 April 1997)

[1997] NSWCC 19; (1997) 14 NSWCCR 509

RAE v. EVENHAWK PTY LTD

Compensation Court of New South Wales: Neilson J

23 April 1997

Proceedings to obtain compensation - Claim - Order granting leave to discontinue proceedings - Undertaking by applicant not to re-commence proceedings before District Court proceedings concluded - Costs of proceedings paid by respondent - New proceedings commenced in breach of undertaking - Abuse of process - New proceedings stayed

J.W. Dodd, for the applicant

P.M. Morris, for the respondent

Ex tempore

NEILSON J: By an application for determination filed on 19 February 1996, Gail Lynette Rae claims weekly payments of compensation from 19 November 1992 to date and continuing, and certain lump sum compensation for the impairment of her back and her neck as well, no doubt, as a lump sum for pain and suffering pursuant to section 67. That claim is not currently made in the application for determination, but the sums claimed under section 66 would be sufficient to entitle the applicant to succeed in claiming lump sum compensation under section 67.

This is not the first set of proceedings for that relief. Unfortunately the Court's earlier file is not currently available, but the applicant had commenced proceedings in Matter No. 20167 of 1994. Those proceedings came on for hearing before Commissioner Ashford at Parramatta on 4 September 1995. The formal orders made by the Commissioner were that by consent the application was withdrawn and struck out, and it was noted that the respondent agreed to pay the applicant's costs of the proceedings. I have been advised that the costs have been paid in the sum of $5,200.

Counsel for the respondent has tendered a file cover of his instructing solicitors. That says that the matter was called over at 10.00 am and that discussions were had until 10.30 am. The file cover goes on to record:

"Respondent indicates to applicant that it would prefer that applicant pursued third party motor vehicle accident proceedings first and then (if it be the case) come back for workers compensation recovery. Applicant agrees.

Basis: (1) Respondent to pay applicant's costs of the proceedings; (2) applicant discontinued claim; (3) applicant undertakes not to reissue proceedings until third party proceedings are finalised. Finished at 11.30 am."

The identity of the solicitor or clerk who made the notation is not currently known, except that he appears to have been a careful person, or she was a careful person, because he or she correctly used the subjunctive mood.

Also tendered has been the back sheet of the brief held by Mr Stuart Grant, counsel retained by the respondent on 4 September 1995. That clearly refers to an undertaking given by the applicant not to re-commence workers compensation proceedings until after the third party proceedings had been finalised. Notwithstanding those undertakings, as is clear, the applicant re-commenced these proceedings on 19 February 1996. I have been told by counsel that the third party proceedings have not been finalised, but they are listed for hearing in the District Court next week.

Today is Wednesday--Friday is a public holiday--so it is a matter of only days before the District Court proceedings come on for hearing. Mr Dodd, who now appears for the worker, has advised me that he has spoken to the applicant's counsel, as at 4 September 1995, Ms Lydiard, and to the solicitor who had instructed her at that time, Mr Doyle, which solicitor is no longer employed by the applicant's solicitors. Neither of them recall any undertaking being given, nor is there any notation of any such undertaking in the applicant's solicitor's file or on Ms Lydiard's brief.

Of course, failing to remember something does not mean it did not occur. There is contemporaneous evidence from the respondent's solicitor's file and from the respondent's counsel's brief, that an undertaking was given. Furthermore, the Court is well aware that the commencement of motor vehicle proceedings does not disentitle a worker to lump sum compensation under section 66 and 67.

Accordingly, while workers have motor vehicle cases pending, they often bring proceedings in this Court. It is also common to find such proceedings to be discontinued on an undertaking to pay costs in the expectation and on the undertaking not to re-commence proceedings in this Court until after the finalisation of the common law proceedings. Of course the further proceedings in this Court would only be instituted if the worker lost the common law proceedings. Such undertakings are not uncommon, and it is clear that this was one of those cases from the notations on the respondent's solicitor's file and from the respondent's counsel's brief.

The commencement of these proceedings contrary to the undertaking given by the applicant to the respondent is, in my view, an abuse of process. It is true that the applicant is unable to contract out of her rights to workers compensation. However, what happened at Parramatta on 4 September 1995 was not a giving away of the applicant's rights, it was merely her stating that she did not wish to pursue those rights until after the common law proceedings had been finalised, and relying on that undertaking, the respondent moved, to its detriment, by agreeing to pay and in fact paying, $5,200 in legal costs.

If the worker wishes to prosecute her rights to workers compensation, then it is open to her to move this Court to reconsider the orders made at Parramatta on 4 September 1995. The learned Commissioner might discharge the orders, but that would include the costs order as well as the order granting leave to discontinue.

It is the commencement of the second proceedings which in my view is the abuse of process. If the applicant wishes to prosecute her rights, she can do so, but the vehicle for the prosecution of those rights is in Matter No. 20167 of 1994. To pursue that she will need to move the Court for reconsideration pursuant to section 17(4) of the Compensation Court Act 1984.

For those reasons I stay these proceedings.

The formal order is that these proceedings are stayed until the conclusion of the applicant's proceedings in the District Court of New South Wales concerning the motor vehicle accident of 14 November 1992. I qualify the stay application on the basis that if the worker loses her common law proceedings, she would, in accordance with the undertaking previously given, be entitled to commence fresh proceedings, and these proceedings might be a convenient way of doing that. However, if the worker wishes to prosecute workers compensation proceedings prior to the conclusion of District Court proceedings, the appropriate vehicle to do that is Matter No. 20167 of 1994.

The question of the applicant's costs of issuing and serving the current application for determination are reserved. Subject to that, each party is to pay her or its own costs to date. Exhibits 1.1 and 2.2 may be returned to the respondent's solicitors on his receipt therefor and on his undertaking to return them to the Court if called upon to do so.

Proceedings stayed

Solicitors for the applicant: Handcock Alldis & Co

Solicitors for the respondent: Moray & Agnew