MinterEllison is threatening to sue MWM again while they continue to put their proverbial foot on coal miner Simon Turner’s throat. Michael West reports.
What an irony it is that MinterEllison is threatening to sue us again. We just raised money to help another victim of this law firm pay for his basic living expenses, disabled coal miner Simon Turner, whom they are still suing.
Turner is dead broke. And the reason the former Mt Arthur coal miner has no money is, not only because Minters and their client BHP are suing him, but also because BHP had classified a payment for his broken back in the workplace as a “public liability” claim rather than a workers’ compensation claim. Ergo, no Centrelink benefits.
Much of that lowball payment a few years ago mysteriously vanished anyway but we can’t talk about that as the evidence in the BHP v Turner case is subject to confidentiality orders.
It is muzzled by the Court at the behest of Minters and BHP.
BHP and MinterEllison were suing us (MWM) too until they agreed to a strike-out application a few weeks ago. So we held the “BHP Ball and Inaugural MinterEllison Press Freedom Oration” to raise money for a defence but when the case against us was dropped, we turned the event into a Ten Year Anniversary Dinner.
It was a great night, and half the proceeds have gone to Simon as promised, a modest sum, not just to put food on his table – although that is the primary concern (and he is not well) – but because the public interest in this case is high.
Not that we can say much about it due to the gag orders demanded by BHP and MinterEllison and granted by the Court.
When is workers’ comp “public liability”?
Just on the Centrelink situation, it is bizarre that BHP deemed Simon Turner’s injury to be “public liability”. His injury occurred while was working at Mt Arthur Coal, the largest open-cut coal mine in New South Wales. Members of the public cannot simply walk into the mine.
The public cannot even enter the mine’s car park without authorisation. Turner was not a member of “the public”. He was a worker.
The entire history of his injury – as evinced by his ten years battling for compensation – concerned an injury which occurred in the workplace, and involved workers’ compensation insurers, workers’ compensation claims, workers’ compensation payments and workers’ compensation settlement documents.
Yet Centrelink was officially advised by BHP that the payment for his claim a few years ago, which worked out annually less than he should have been paid as a coal miner in the first place – related to public liability, not workers’ compensation.
What are they covering up? Why go to such lengths to shut down this story? There are implications for thousands of other workers. But that’s for another day.
Minters rides again
Meanwhile, Minters are coming at us again. It is the ultimate indulgence for the humble reporter to write about himself, but if readers may excuse us … no other person is as impeccably sourced.
The firm is even threatening, as well as the author of this story, our 23 year old star journalist Stephanie Tran. We won’t detail this latest claim now. Suffice to say, they are demanding we disclose our sources.
Disclose our sources?
This is hypocrisy of the highest order as this very same law firm has argued to the Court previously, and strenuously, that journalists have an absolute ethical and legal obligation to protect their sources at all costs.
MinterEllison has routinely argued that, not only is the public interest served by journalists keeping their sources confidential, but that the source should be protected too, that his or her motive was irrelevant, and that the ethical code of journalism superseded civil court compliance orders.
Freedom! No not freedom!
Further, the firm has relied rigorously on state and federal “shield laws” (journalist privilege) to argue that courts should exercise their discretion to protect anonymous informants. It’s about freedom of speech! Public interest!
Indeed it is about freedom of speech and public interest. We have written to the partners of MinterEllison reminding them of their volte-face, formerly defending the sanctity of journalists’ sources and now attacking it. They have not responded.
We also reminded them of their conflict of interest too – the concept of partners acting together with a unified purpose, or “one mind”, which stems from the legal principle that each partner is both a principal and an agent for the firm, governed by mutual implied authority under Section 5 of the Partnership Act 1890.
Is it their “unified purpose” to stub us out?
This “one mind” is throttling information on the Turner case while hammering the recent target of their BHP proceedings (us, MWM) now in another matter. Defamation partner Dean Levitan is making the running in these latest claims. Another partner, Trent Forno, who was acting against Turner for BHP, has excused himself from the Turner proceedings as he was also a material witness in the case. Another conflict.
Forno was replaced by another partner Tom Fletcher but the point is, if partners are deemed by law to be “one mind” – to share the same interests – why are they still acting against Turner and why are they threatening to act again, so belligerently, against the main reporter of the Turner proceedings and recent co-defendant?
In the previous matter, they threatened us with BHP’s costs, their costs, in the case which they had brought.
The Turner contradictions
Simon Turner’s case against BHP began with a workplace injury in 2015 when he was working as a coal miner at Mt Arthur Coal, the largest open-cut coal mine in New South Wales. He was employed by Chandler Macleod Group, the company that held the labour hire contract with Hunter Valley Energy Coal, the operator of Mt Arthur Coal.
Chandler Macleod invoiced the mine for his labour, received payment from the mine, paid his weekly wages, deducted his PAYG tax, paid his superannuation and paid his Coal LSL entitlements. Every official employment record identifies Chandler Macleod as the company that employed and paid him.
After he was injured on December 12, 2015 however, the paper trail took a remarkable turn.
On May 27, 2016, more than five months after the injury, Chandler Macleod completed an Employment Separation Certificate for Centrelink. The certificate answered “No” to the question asking whether he had claimed or was receiving workers’ compensation, despite his workers’ compensation claim already being underway.
At the same time, Ready Workforce Pty Ltd (another company, not Chandler Macleod) lodged the workers’ compensation claim with iCare, identifying Turner as an office worker earning approximately $28,000 per year. He was never an office worker. He was employed as a coal miner at Mt Arthur Coal, and his workers’ compensation benefits were paid directly to him by iCare.
The documentary evidence became even more significant in 2017.
In proceedings before the Federal Circuit Court involving Hunter Valley Energy Coal, Chandler Macleod and the labour hire arrangements at Mt Arthur Coal, the Court considered the affidavit of Crix and attached exhibits.
Those exhibits include workforce and payroll records identifying Turner by name. On page 87 of the affidavit exhibits, he is specifically listed as “Turner, Simon”, identified as an Operator, with his employee number and payroll details. His inclusion in those records demonstrates that he formed part of the workforce covered by the labour hire arrangements that were before the Court.
Wrong employer
More importantly, the Federal Circuit Court made a finding that went to the heart of his case.
The judgment states:
“There is no evidence to suggest that there is or at any relevant time was a contractual relationship between Ready Workforce and the Respondent. The only evidence before the Court of a contract between the Respondent and a provider of labour was the contract with CMG [Chandler Macleod Group].”
That is the Court’s assessment of the evidence that was before it. The Court found that the only labour supply contract in evidence was the contract between Hunter Valley Energy Coal and Chandler Macleod Group. It also found there was no evidence of a contractual relationship between Ready Workforce and Hunter Valley Energy Coal.
Despite that finding, what followed raises serious questions. Ready Workforce Pty Ltd later commenced proceedings in the NSW Supreme Court against Mt Arthur Coal to recover workers’ compensation payments under section 151Z of the Workers Compensation Act.
Turner was subsequently required to execute workers’ compensation redemption deeds involving Ready Workforce, even though the redemption payment itself was made by iCare. Those events occurred after the Federal Circuit Court had already considered the labour hire arrangements and found that the only labour supply contract in evidence was with Chandler Macleod.
The paper trail took another extraordinary turn when law firm HWL Ebsworth later completed the official Centrelink Advice of Lump Sum Payment form on behalf of Mt Arthur Coal.
Instead of identifying the settlement as workers’ compensation, the form classified the payment as “Public Liability.” Turner’s back injury occurred while he was working at Mt Arthur Coal, as a miner (although later classified as a clerical worker).
This brings us back to the irregular classification of his claim.
Centrelink was officially advised that the payment related to public liability, not workers’ compensation.
The Turner timeline
When these documents are viewed individually, they may appear to be isolated administrative records. When they are placed in chronological order, however, a very different picture emerges.
* Chandler Macleod Group employed Turner, paid his wages, deducted his PAYG, paid his superannuation and Coal LSL.
* The Federal Circuit Court considered the labour hire arrangements and found that the only labour supply contract in evidence was between Hunter Valley Energy Coal and Chandler Macleod Group, with no evidence of a contractual relationship involving Ready Workforce.
* The Court’s exhibits specifically identify Turner in the workforce records relied upon in those proceedings.
* Ready Workforce later commenced NSW Supreme Court proceedings to recover workers’ compensation payments.
* Turner was then required to execute legal deeds involving Ready Workforce.
* HWL Ebsworth subsequently advised Centrelink that his settlement was “Public Liability” rather than workers’ compensation.
Fast forward to this year. Simon Turner sued BHP and its associates to establish these inconsistencies before the Court and gain compensation. He had no money. The case was dismissed and the evidence suppressed at the request of BHP and MinterEllison.
We wrote about it.
BHP then sued Turner and MWM for breach of confidentiality.
Neither BHP nor Minters had responded to emailed questions. They just sued. Turner then counterclaimed against MinterEllison for conflicts of interest. The Judge dismissed the counter claim. The decision, the reasons for that decision, are yet pending but the Turner evidence was again suppressed.
BHP dropped its case against MWM but the Turner case remains afoot. Turner was hospitalised and the next hearing has been delayed on doctor’s orders. Now BHP’s lawyers are threatening us in a defamation matter and demanding we disclose our sources and pay their client’s costs.
What are they hiding? Why are they prepared to go to such lengths? Could all this kerfuffle have something to do with insurance?
Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.