IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE
C11459300
AKRAM KARAM Plaintiff v
PALMONE SHOES PTY LTD & VICTORIAN WORKCOVER Defendants AUTHORITY
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MAGISTRATE: Magistrate B.R. Wright WHERE HELD: Melbourne DATE OF HEARING: 29 August 2014 DATE OF DECISION: 12 September 2014 CASE MAY BE CITED AS: Karam v. Palmone Shoes
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Termination of Weekly Payments – Occupational Asthma - Award of Common Law Damages in Supreme Court – Previous Order Striking out Magistrates Court Statement of Claim – Application to Set Aside Strike Out Order – Accident Compensation Act s134AB(36)
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APPEARANCES: Counsel Solicitors
For the Plaintiff In person
For the Defendant Mr I Gourlay Minter Ellison
LEGAL TRANSCRIPTS PTY LTD !Undefined Bookmark, I SUITE 18, 600 LONSDALE STREET MELBOURNE - Telephone 9642 0322
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HIS HONOUR:
1 Mr Karam has applied to set aside my order made on 10 April 2013 striking out his Statement of Claim in these proceedings. On the application by Palmone Shoes (“Palmone”), it was struck out as an abuse of process.
2 On that date I found that Mr Karam was not entitled to seek weekly payments of compensation under the Accident Compensation Act 1985 (“the Act") for occupational asthma, pursuant to s.134AB(36) of the Act.
3 Section 134AB(36) of the Act states “ If judgment is obtained, . . in respect of proceedings referred to in subsection(1) in respect of an injury, the Authority, the employer . . is not liable – (a) where pecuniary loss damages are awarded, to pay weekly payments in respect of the injury; . .”.
4 Mr Karam was not at court when I heard Palmone's application (“the strike out application”) on 10 April 2013. Unbeknown to me at the time, Mr Karam had filed an application on 5 April 2013 to adjourn Palmone's application on the ground he was having glaucoma treatment at the Royal Eye & Ear Hospital.
5 Mr Karam has issued two separate Complaints in this court. He issued these proceedings on 24 May 2012. Substantially his claim is for asthma, though the Statement of Claim does refer in part to a cancer condition. The Complaint seeks an order for weekly payments for his asthma condition, which is alleged to have arisen out of or in the course of his employment with Palmone.
6 There is a separate Complaint numbered X036036618 issued by Mr Karam’s former solicitors on 19 December 2008 (“the cancer Complaint”) seeking weekly payments and reasonable medical and like expenses for plasmacytoma (a bone marrow cancer, sometimes known as “single myeloma”)).
7 The two Magistrates Court files, including various appeal decisions, are together more than 10 centimetres thick. Because of this court’s system for
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applications bearing the same case number as the Complaint, it is often difficult to match up each document with its respective application. This difficulty has been compounded by the very many notices, applications and sundry other documents filed at this court over the years by Mr Karam since he became self represented in September 2009.
8 On 17 April 2013, Mr Karam filed the present application to set aside my strike out order. However, since then he has apparently had further treatment and surgery to his eyes. This has resulted in several adjournments of both Complaints.
9 On 4 August 2014, he advised me that he wished to proceed with the application to set aside the strike out order of 10 April 2013. I explained to Mr Karam and Counsel for Palmone of the previous misplacement of Mr Karam's application to adjourn the strike out proceedings.
10 I explained to Mr Karam that in order to set aside the order, I would have to be satisfied that he had at least an arguable case on the merits. Otherwise, there was no point in setting aside my strike out order of 10 April 2013. This was particularly relevant because of the special defence involving s.134AB(36). At Mr Karam's request, I adjourned his application to 29 August 2014.
11 I will give a short history of the relevant damages proceedings between Mr Karam and Palmone.
12 On 23 February 2010, His Honour Justice T Forrest entered judgment for Mr Karam against Palmone for the amount of $196,315 (see, [2010] VSC 82) ("the Supreme Court judgment"). He had already handed down his reasons for judgment on 18 February 2010 (see, [2010] VSC 10). Apparently, there is an amount of approximately $200,000 held in court subject to a lien exercised by Mr Karam's former solicitors (see, [2014] VSC 378).
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13 The Supreme Court judgment involved in part a claim for damages for occupational asthma sustained as a result of his employment with Palmone. In paragraph 157 of His Honour's reasons, he summarises his award of damages for loss of earning capacity at $73,753 (past earnings) and $13,000 (future) together with an amount of $7543 as a Fox v. Wood component.
14 His Honour also rejected a claim for damages for cancer (multiple myeloma) by Mr Karam against Palmone, which was heard and determined at the same time.
15 Since the entry of judgment, there have been a large number of appeals instituted by Mr Karam , which are detailed in Karam v. Palmone Shoes [2014] VSCA 148 at page 17 and following. In fact, since then there have been a number of further appeals instituted by Mr Karam.
16 Some of the appeals were in respect of a number of interlocutory orders previously made by me in Mr Karam's Magistrates' Court proceedings.
17 The long and protracted history of Mr Karam's litigation against Palmone is one relevant factor in looking at the present application and, in particular, his initial application before me on 29 August 2014 to adjourn his application to set aside the strike out order.
18 Mr Karam applied to adjourn the hearing of this application until after his cancer Complaint is finalised on the merits. He also wants to have the cancer Complaint heard speedily. He gives no specific reason to delay the present application.
19 Counsel for Palmone agrees that Mr Karam's cancer Complaint should be heard speedily, but maintains the basis for the strike out order in these proceedings. Counsel stated his client did not want the hearing of the cancer
Complaint delayed by any further appeals in relation to these proceedings.
20 I refused Mr Karam's application to adjourn the present application. There was
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no point in adjourning it. Adjourning the application until after hearing the cancer Complaint would only add further delay and costs to the litigation between him and Palmone.
21 At present, the Statement of Claim in these proceedings has been struck out. If in fact Palmone's special defence is wrongly claimed, then this Complaint should be dealt with at the same time as Mr Karam alleges both medical conditions arose out of the same employment at Palmone. Hearing both proceedings separately would duplicate the hearings and involve similar evidence in both.
22 To do that would infringe a number of principles of case management set out in the Civil Procedure Act 2010, for example ensuring the civil proceeding is conducted promptly and efficiently (s.47(3)(a)) and dealing with as many aspects of a civil proceeding as a court can on the same occasion, (s.47(3)(e) (iii)).
23 Mr Karam then made submissions as to Palmone's special defence pursuant to s.134AB(36) of the Act. It was agreed that Mr Karam had received 130 weeks of weekly payments of compensation for his asthma condition, such weekly payments ending in about September 2008. He submitted he was entitled to claim continuing weekly payments as he was totally and permanently unable to return to work because of his asthma condition.
24 He submitted that he had only received a small amount of damages for his loss of earnings. At one stage he said that he had only received $12,000 in this regard. He said that he should receive a proper amount of weekly payments.
25 Counsel for Palmone pointed out the figure of $12,000 did not accord with the express term of Justice Forrest's judgment that quantified his award of past and future loss of earnings/earning capacity at about $87,000. In addition, Justice Forrest had expressly entered judgment in the amount of $196,315 for
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Mr Karam's asthma condition in the Supreme Court proceedings.
26 As counsel pointed out, whatever the quantum, judgment was "obtained" for that sum. Consequently, as part of that amount was for pecuniary loss damages, continuing the present proceedings would be an abuse of process.
27 When I sought Mr Karam's view as to the phrase "judgment is obtained" he repeated his earlier submission that he was entitled to continuing weekly payments for his asthma condition pursuant to the provisions of the Act.
28 I agree with counsel for Palmone that Mr Justice Forrest 's reasons and entry of judgment clearly indicate that Mr Karam "obtained judgment" for pecuniary loss damages for his asthma condition, the same injury as that in the present Complaint.
29 Consequently, pursuant to s134AB(36) of the Act, Palmone is not liable to pay weekly payments for his asthma condition., The Prayer for Relief in the present Complaint only seeks weekly payments for his asthma condition.
30 Thus, I refuse his application to set aside my order striking out the Statement of Claim in the present proceedings.
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