Sunbuild Pty Ltd v Local Court Judge Therese Austin and Another

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Barr J
• Judgment Date: 19 June 2020
• Neutral Citation: [2020] NTSC 38
• Docket Number: FILE NO: 126 Of 2019 (21943104)
• Date: 19 June 2020

[2020] NTSC 38

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JUDGMENT OF:

Barr J

FILE NO: 126 Of 2019 (21943104)

Sunbuild Pty

Plaintiff

and

Local Court Judge Therese Austin

First Defendant

and

Hayden Bray

Second Defendant

REPRESENTATION:

Counsel:

Plaintiff: M Crawley SC

First Defendant: M Forbes

Second Defendant: B O'Loughlin

Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7, 335 FLR 350; Starke Investments (NT) No 2 Pty Ltd and others v Ware [2018] NTSC 58 (Full Court), 336 FLR 372; Police and State of South Australia v Lymberopoulos (2007) 98 SASR 433; Halliday v ACN 003 075 394 Pty Ltd (Unreported), Supreme Court of Victoria, Appeal Division, Ormiston J, D Phillips and O'Bryan JJ, 11 April 1994; Welsh v The Queen (1996) 90 A Crim R 364, followed

Maddalozzo v Maddick (1992) 84 NTR 27; Work Social Club – Katherine Inc v Rozycki (1998) 143 FLR 224; Albison v Newroyd Mill Ltd (1925) 134 LT 171; Egerton v Moore [1912] 2 KB 308;, Van Dongen v Northern Territory [2009] NTSC 1; MacMahon Contractors v Lee [2017] NTSC 33, referred to

Taylor Enterprises (NT) Pty Ltd v Pointon & Work Health Authority [2009] NTMC 29, approved

Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 410; Spanos v Lazaris [2008] NSWCA 74 distinguished

Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31, referred to

Return to Work Act 1986 (NT) s 3A, s 53 (1)(c), s 71, s 72, s 80 (1), s 82, s 83, s 85, s 110A (1) & (2), s 182 (2)

Work Health Administration Act 2011, s 12

Evidence (National Uniform Legislation) Act 2011, s 4 (1), s 60

Work Health Court Rules, r 1.12, r 8.01 (2), r 12.02

ADMINISTRATIVE LAW — Judicial review — Certiorari — Work Health Court — Application for summary judgment — Applicant's counsel relied on affidavit evidence tendered for limited purpose — Judge took evidence into account for wider purpose without prior indication to parties — Order for summary judgment — Order made without jurisdiction — Alternatively judge failed to accord procedural fairness — Relief in the nature of certiorari granted

EVIDENCE — LEGAL PROFESSIONAL PRIVILEGE — Work Health Court — Interlocutory order for specific discovery — Rule of court required that documents be enumerated “in convenient order” — Employer ordered to enumerate documents “in convenient order by date and time” — Employer claimed legal professional privilege in respect of surveillance reports and film — No issue that privilege existed — Employer opposed giving discovery of date and time of film — Held that order requiring privileged documents to be enumerated by date and time required partial disclosure of privileged material — Impinged employer's legal professional privilege — No legitimate requirement for documents to be listed in a manner which would result in loss of legal professional privilege — Order beyond the power of Work Health Court — Order in the nature of certiorari to partially quash discovery order

REASONS FOR JUDGMENT

(Delivered 19 June 2020)

1 The plaintiff seeks judicial review of an order for summary judgment made by Judge Austin (the first defendant) in the Work Health Court at Darwin on 23 September 2019.

2 The plaintiff also seeks judicial review of an interlocutory order for particular discovery of privileged documents made by Judge Austin on 14 February 2020.

Background

3 The second defendant (to be referred to as “the worker”) injured his lower back in the course of his employment with the plaintiff (“the employer”) in December 2008. He submitted a claim for compensation in respect of his back injury, and the claim was accepted by the employer (or its insurer) in accordance with s 85 (1)(a) Return to Work Act 1986.

4 The chronology provided by counsel for the worker in this proceeding indicates that the worker underwent a two-level spinal fusion (L4, L5 and S1) in November 2012. 1 In December 2014, he was assessed as having a 20% whole of person impairment as a result of his accepted back injury.

5 As time went by, the worker suffered symptoms of depression in addition to chronic severe back pain. On 5 January 2015, the worker's general practitioner (Dr O'Dwyer) certified the worker as suffering depression related to the “accepted workplace injury”. The worker was referred to a psychologist. On 7 July 2015, the same doctor provided the employer with a report stating that the worker was suffering from a “depressive illness” as a result of the workplace injury. In March 2016, he was diagnosed by Dr Paul Kornan, consulting psychiatrist, as suffering an adjustment disorder with mixed anxiety and depressed

mood, and a pain disorder associated with psychological factors. 2 Dr Kornan believed that the worker's psychiatric ill-health was the result of his lower back injury and the fact that the surgical procedures undergone by him had resulted in only limited improvement. 3

6 Medical evidence obtained after March 2016 was generally consistent with Dr Kornan's diagnosis and confirmed that the worker had suffered a mental injury as a sequela of his lower back injury. 4 Moreover, the employer, through its insurer, appeared to accept that the worker had suffered a mental injury in consequence of his lower back injury. It arranged a permanent impairment assessment in respect of the worker's mental injury and, on 18 April 2016, without reserving its position, the employer served Dr Kornan's report on the worker with a covering

letter stating that the worker was entitled to a compensation payment “as consequence of the secondary mental (psychiatric) injury”. 5 The letter included the following paragraphs (underline emphasis added): 6

… the percentage of permanent impairment taken into account in relation to your psychiatric condition is 10%. ….

Your degree of permanent impairment of 20% of your whole body in relation to your back injury in 2014, combined with the degree of permanent impairment of 10% of your whole body in relation to your psychiatric condition in 2016, is 28% as per the AMA 4 ^th Edition Guidelines which equates to $88,146.24.

As you have already received a permanent impairment payment of $58,955.52 for your back injury, the amount you are entitled to for your psychiatric condition is $29,190.72. …

We advise that the payment for a permanent impairment has no impact on any other entitlement you may be eligible for under the Return to Work Act.

7 The employer's apparent acceptance of the fact that the worker had suffered a mental injury in consequence of his lower back injury was also reflected in correspondence with the worker's treating psychiatrist. 7

8 On 13 February 2018, the worker was admitted to the Sherbourne Clinic of the Shepparton Private Hospital, suffering severe depression. He had

made what Dr Tawde described as a “serious suicide attempt”. 8 He remained in hospital until 2 March 2018

9 In the circumstances outlined, it would no doubt have come as a surprise to the worker's solicitors that solicitors acting for the insurer wrote to them by letter dated 30 October 2018, as follows (formal parts omitted): 9

We act on instructions from Allianz Australia Insurance Limited trading as Territory Insurance Office (TIO), the workers' compensation insurer of [the employer] in relation to a claim for compensation by [the worker].

We are instructed by TIO that they accepted liability for the worker's claim for compensation dated 12 February 2009 for a lower back injury.

TIO have further instructed us that to date the worker has not made a claim for compensation for a psychological injury and that TIO have never accepted a claim for compensation made by the worker.

In the circumstances, TIO have instructed us to advise the worker that in the future TIO will not reimburse any costs incurred by the worker in relation to any psychological treatment, medication, rehabilitation and/or other costs such as the travel by taxi to hospital for electroconvulsive treatment.

10 The insurer's specific refusal to pay costs for the worker's travel for electroconvulsive treatment is an indication that the insurer was aware that the worker's mental health had declined to the extent that he required such treatment.

11 The employer's solicitors were correct that the worker had not made a claim for compensation. However, the insurer's stance was inconsistent with the manner in which the insurer had been dealing with the

worker's claim since (at least) 2016. One is left to wonder whether the insurer and its legal advisors were aware of the principle stated by the Court of Appeal in Lee v MacMahon Contractors Pty Ltd, 10 that a worker “will not ordinarily be required to make a further claim for workers compensation for the consequences of a secondary or consequential injury which arises from the primary injury for which a claim has already been made and accepted”. 11

12 There was a relevant matter which the employer's solicitors did not raise at that stage. Pursuant to s 80 (1) Return to Work Act 1986, the worker was not entitled to compensation in respect of his mental injury (including compensation for loss of earning capacity as a result of that injury) unless notice of the relevant injury had, as soon as practicable, been given to or served on the employer. 12 The employer's solicitors did not assert in their letter that notice of the worker's mental injury had not been given or served.

13 It is relevant to note that, just as there is no requirement for a worker to follow the statutory procedure set out in s 82 and s 83 Return to Work Act 1986 for the making of a claim in relation to a secondary or

consequential injury, there is no corresponding statutory process akin to s 85 Return to Work Act 1986 for an employer to respond to such claims. As a result, the statement made by the insurer's solicitors that the insurer had...