Page 5929 - Week 18 - Wednesday, 11 December 1991
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reached, usually after five years; and there is a variant of that in Queensland. The ACT is seen as being bedevilled a bit by the peculiar keenness within the legal profession and, to an extent, the union community to go for a redemption and a lump sum to solve the problem and see it off the books.
The excellent review of the ACT workers' compensation scheme made available to the Alliance Government in August 1990 refers to a key issue, which is the Federal Court's judgment in Barbaro v. Leighton Contractors Pty Ltd, reported in 1980 Australian Law Reports at page 123. I have drawn it to Mr Berry's attention. That is the historical basis of the end of a great deal of uncertainty in town. It did not go the insurer's way. I clearly remember when the judgment was delivered. It said that once payment had commenced an insurer could not stop payments until the court agreed. I have simplified the judgment, but that is it in essence.
That at least brought some certainty to the scene. What is wrong with the situation is that workers' compensation matters go on and on. I could not believe it, sitting next to a legal colleague at a Law Society luncheon today, when I was told that he was still handling a matter that had started in my practice some years ago and that payments simply for medical treatment were already up to $60,000 for this young woman. That is just too long. I am aware that in other circles there is a middle ground for this matter. It is not to put the ball back in the worker's court in less than three months, as Mr Stefaniak proposes; it is to have rules of court that require both parties to get their medical evidence in quickly and stop the long delays that characterise workers' compensation processes, at least in this Territory.
I believe that claims not proceeded with with due expedition should be subjected to a number of disincentives. Only in recent times the courts have created rulings that require litigants to swap medical information. The gambit of taking each other by surprise with differing expert witnesses; flying down a bevy of people to wait out in a back room and then springing noted psychiatrists and surgeons, is stopping to a great extent now, and that is an improvement. The angst of the insurers needs to work its way out in the court procedures that in many instances contribute to this process. We should not forget that in the ACT the magistracy handle very large awards and payments, which is in some respects unusual compared with the judicial process elsewhere.
The issue of whether an insurer should be able to terminate when a worker has shown a great reluctance to proceed with a claim is one that I sympathise with Mr Stefaniak on. We should not forget that practitioners occasionally have clients who do not make appointments and who take a long time to come in. When they do come in they look pretty
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