Dariverenli v South Eastern Sydney Local Health District

1. [1]

   THE COURT: By summons filed on 2 April 2019, the Applicant seeks leave to appeal from two interlocutory decisions of Weber SC DCJ made in the course of a hearing which commenced in the District Court in early March of this year in which the Applicant seeks damages for personal injury, alleging that his employer breached its common law duty to provide a safe system of work. The Applicant had previously obtained compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) in an arbitration award delivered in 2015.

2. [2]

   The two relevant orders which, by reference to the Applicant’s summary of argument, are challenged both pertain to matters which are quintessentially matters of practice and procedure. These are:

3. [3]

   Neither the summons seeking leave to appeal nor the draft notice of appeal is in particularly satisfactory form. The appeal grounds are stated in the form of submissions and at least one of the orders sought in the draft notice of appeal seeks relief in a final form despite the fact, as already noted, that the orders of Weber DCJ which are the subject of challenge were interlocutory in nature and were delivered in the course of a trial that was underway at the time they were made, and which currently stands adjourned.

Separate trial

1. [4]

   As to the application for a separate trial, Weber DCJ referred to the well-known observations of Kirby and Callinan JJ in their joint judgment in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 (Tepko) at [168]-[170] and expressed the conclusion – which was open to him and fully supported by detailed written submissions filed on behalf of the First Respondent in opposition to the proposed separate question – that he was far from satisfied that it was “beyond question” (the language used in Tepko) that there would be utility, economy and fairness in making an order for a separate question.

2. [5]

   In his reply submissions in this Court, the Applicant notes that Tepko involved an application to separate liability and damages. That fact does not confine the significance of what was said in that case about the risks and potential inefficiency of separate questions to such cases.

3. [6]

   The Applicant also submits that Tepko was decided prior to the commencement of the Civil Procedure Act 2005 (NSW) and s 56 of that Act, in particular. To the extent that the Applicant submits that Tepko is in some way qualified by the need to consider what is “just, quick and cheap”, the central point of the reasoning of Kirby and Callinan JJ in Tepko was that ordering a separate trial will often result in an entirely false economy, and be productive of greater cost and a less efficient disposition of proceedings. Their Honours said at [168]:

4. [7]

   The Applicant accepts that the primary judge’s decision whether or not to order a separate question was discretionary. He points to no error of principle in the primary judge’s exercise of discretion in respect of his decision.

5. [8]

   In addition, the decision was one of practice and procedure and this Court’s approach to the grant of leave to appeal in respect of such matters is necessarily informed by the observations of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39. There the Court (at 177) remarked upon the caution required of appellate courts in reviewing decisions pertaining to practice and procedure, and endorsed Sir Frederick Jordan’s concern in In the matter of the Will of F.B. Gilbert (dec) (1946) 46 SR (NSW) 318 (at 323) to keep a “tight rein” upon interference with first instance exercises of discretion on points of practice and procedure.

6. [9]

   It is also pertinent that the decision under challenge does not deprive the Applicant of his issue estoppel argument. It simply means that it will fall to be decided in the course of the trial.

7. [10]

   No case for leave on this ground has been made out.

Medical examination

1. [11]

   In relation to the challenge to the primary judge’s order directing the Applicant to attend a further medical appointment, again this was quintessentially a matter of practice and procedure falling within the primary judge’s discretion. Significant hurdles lie in the Applicant’s way in challenging such a decision.

2. [12]

   It was submitted on the Applicant’s behalf that he has been seen by two psychiatrists and three psychologists at the direction of the First Respondent and that it is now proposed that the Applicant be examined by a further medical specialist in the same area of expertise. The Applicant submits that compelling him to attend a further medical specialist in the same area of specialty as doctors who have previously qualified is contrary to reg 44 of the Workers Compensation Regulations 2016 (NSW) (Workers Compensation Regulations).

3. [13]

   Regulation 44(1) of the Workers Compensation Regulations relevantly provides:

4. [14]

   In response to the Applicant’s submission in relation to reg 44 (and which is more correctly described as an assertion than a submission because it was not supported by any written argument), the First Respondent submitted that the primary judge did not act contrary to reg 44 for the following reasons:

5. [15]

   Although the Applicant filed detailed reply submissions, none of them related to the medical examination issues or sought to reply to the Respondent’s submissions in relation to reg 44.

6. [16]

   Regulation 44 of the Workers Compensation Regulations does not, in our opinion, have any operation on the facts of the present case so as to preclude or stand in the way of the order of the kind made by the primary judge. That order involved a matter of practice and procedure and we do not think it appropriate to interfere with it.

Conclusion

1. [17]

   The application for leave to appeal involves no question of principle or of public importance, and no error of law has been exposed. Both decisions involved an exercise of discretion on procedural rulings and no cogent reason has been advanced to suggest that the learned primary judge’s discretion miscarried.

2. [18]

   The application for leave should be dismissed with costs.