Bessell v AQA Oysters Ltd - [2020] TASSC 29

[2020] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Bessell v AQA Oysters Ltd [2020] TASSC 29

PARTIES:  BESSELL, Shirley-Ann
  v
  AQA Oysters Ltd

FILE NO: 2733/2019
DECISION

APPEALED FROM: B v AQA Oysters Ltd (No 2) [2019] TASWRCT 38

DELIVERED ON:  1 July 2020
DELIVERED AT:  Hobart
HEARING DATE:  12 May 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Workers Compensation – Proceedings to obtain compensation – Determination of claims – Procedure – Appeals, judicial review and stated cases – Question of law – Refusal to allow claimant to recall witness before her case was closed – Order for costs made without affording unsuccessful party opportunity to make submissions.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss 49(1)(a), 63(1).
Medical Board of Australia v Alroe [2016] QCA 120, followed.
Aust Dig Workers Compensation [341]

REPRESENTATION:

Counsel:
             Appellant:  S Taglieri SC, J Bloomfield
             Respondent:  M Wilkins
Solicitors:
             Appellant:  Slater and Gordon
             Respondent:  Page Seager

Judgment Number: [2020] TASSC 29
Number of paragraphs: 55

Serial No 29/2020
File No 2733/2019

SHIRLEY-ANN BESSELL v AQA OYSTERS LTD

REASONS FOR JUDGMENT BLOW CJ

1 July 2020

This is an appeal from a decision of the Workers Rehabilitation and Compensation Tribunal, constituted by its former Chief Commissioner, Mr R Webster. It concerns a claim for compensation by the partner of a worker who became psychotic and committed suicide.
On 23 March 2010 the worker suffered a back injury in the course of his employment by the respondent, AQA Oysters Ltd. He claimed and received compensation in respect of that injury pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"). On 29 July 2011 he ended his life by hanging himself. The appellant, Shirley-Ann Bessell, made a claim for compensation under the Act on the basis that, for the purposes of the Act, she was his surviving spouse. The employer disputed liability. She referred her claim to the Tribunal. After a lengthy hearing, the learned Chief Commissioner dismissed her referral on the ground that the worker's death did not result from his compensable back injury: B v AQA Oysters Ltd (No 2) [2019] TASWRCT 38. This is an appeal from that decision.
By virtue of s 63(1) of the Act, the right to appeal to this Court from decisions of the Tribunal is available only in relation to errors of law. The appellant has relied on seven grounds of appeal. Her contentions can be summarised as follows:
·     That the learned Chief Commissioner erred in law in reaching the conclusion that the worker's death did not result from his back injury. (Grounds 1 to 5.)
·     That the learned Chief Commissioner erred in law in refusing an application for the recall of one of the appellant's witnesses, Dr Evenhuis, before her case was closed. (Ground 6.)
·     That the learned Chief Commissioner erred in law by ordering the appellant to pay the employer's costs without first having given her an opportunity to make submissions in relation to costs. (Ground 7.)
The employer contends that even if the learned Chief Commissioner erred in relation to the causation issue (grounds 1 to 5) or the recall of Dr Evenhuis (ground 6), the appeal should not succeed, for two reasons:
· It contends that the appellant failed to make her claim for compensation within the period of six months after the worker's death that is prescribed by s 32(1)(b) of the Act, and that that failure was not occasioned by "reasonable cause" within the meaning of s 38(1) of the Act.
· It contends that, at the time of the worker's death, he and the appellant had separated, and that therefore she was no longer his "spouse" for the purposes of the Act, and was ineligible for compensation pursuant to the Act.

The law as to causation

Section 25(1) of the Act governs the liability of employers to pay compensation to the dependants of deceased workers. The relevant provisions of that subsection read as follows:

"(1) If in any employment ¾
(a)   a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or
(b)   ... ¾
his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act –
(c)   ...
(d)   if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."

Thus compensation became payable in this case only if the back injury "resulted in" the death of the worker. The principles applicable in applying the "results in" test of causation are as summarised by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, where his Honour said, at 463-464:
"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions."
The death or incapacity of a worker often does not have a single cause. The common law recognises that a single tortious act amounts to a cause of a person's injuries if it is established that the injuries were "caused or materially contributed to" by that act: March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 per Mason CJ at 514. The question whether the requisite causal connection exists between a particular event and a particular asserted consequence is a question of fact that has to be resolved "as a matter of common sense and experience": Medlin v State Government Insurance Commission (1995) 182 CLR 1, per Deane, Dawson, Toohey and Gaudron JJ at 6. In this case, the parties are agreed that the learned Chief Commissioner was required to decide whether the worker's back injury materially contributed to his death, and that that was a question of fact that had to be decided in a common sense way.
In the Tribunal proceedings, the appellant bore the onus of proving facts entitling her to compensation on the balance of probabilities by virtue of s 49(2)(a) of the Act. In his reasons, the learned Chief Commissioner correctly noted, at [12], that if he was satisfied that the back injury and its effects "remained material or operative contributors at the time of the death, then the claimant will have satisfied the required onus".

The findings as to causation

In the Tribunal proceedings, there was very strong evidence that the worker was suffering from a psychotic illness at the time when he ended his life. Two experienced psychiatrists gave evidence – Dr Evenhuis for the appellant and Dr Sale for the employer. There was a dispute as to whether the worker's back injury made a material contribution to the onset of his psychotic illness, and as to whether it was a cause of his death, in that way, as a separate contributing cause, or not at all.
The learned Chief Commissioner stated his findings in relation to causation in his reasons at [97], as follows:
"(a)   The worker suffered a back injury which arose out of or in the course of his employment on 23 March 2010.
(b)     He made a claim for compensation in or about early June 2010 which claim was accepted.
(c)     He continued to suffer chronic back pain of varying degrees up until his death.
(d)     His back injury and its symptoms led to a long term incapacity for work and an inability to perform activities of daily living and participate in recreational activities.
(e)     He developed a pain disorder and an adjustment disorder as a result of his back injury.
(f)     The disorders in paragraph 97(e) led him to overdose on Endone in January 2011. He was admitted to the Northside Clinic for treatment on 9 January 2011 and discharged on 13 January 2011.
(g)     Both before the injury at work in March 2010 and after that injury, the worker smoked cannabis. His use of cannabis before the injury was recreational and after the injury his use increased. His use of cannabis had probably increased to daily use in 2011 apart from the periods of time in January and in June/July when he was admitted to the Northside Clinic. However, I am not able to determine on the evidence how much cannabis the worker smoked per day or per week after the injury and particular in 2011, nor am I able to determine its potency. I am therefore not able to determine the actual dosage of the active components of the drug which were consumed by the worker.
(h)     I am prepared to find the worker's increased use of cannabis occurred because, the evidence from a couple of witnesses suggested, his pain was no longer assisted by the medication he was taking. No doubt his use also increased due to boredom and the difficult domestic and financial circumstances he found himself in.
(i)     Although there is a suggestion from the claimant's evidence the worker may have suffered psychotic symptoms in mid to late 2010 I am not prepared to make that finding. The LGH [Launceston General Hospital] medical records and the Northside Clinic medical records do not corroborate that evidence. There were no such symptoms in January 2011 and psychotic symptoms were not reported to Vanessa Bakker [the worker's treating clinical psychologist] in April or May 2011. The first mention of paranoia and irritability in the general practitioner's records is 9 May 2011. I therefore find the onset of psychotic symptoms occurred in or about May 2011. By June 2011 these symptoms were clearly evident and resulted in the second admission to the Northside Clinic. The exact diagnosis; ie whether it was schizophrenia or schizophreniform disorder, does not matter. The worker was suffering from a psychotic illness.
(j)     The medical evidence suggests the worker did not take his own life because of the adjustment disorder. That condition was subsumed by the psychotic illness and was not manifest at the time of the worker's death.
(k)     There is no specific cause of schizophrenia, schizophreniform disorder and schizoaffective disorder. A number of scientific studies have determined there are a number of associations. The most significant association by far is family history. Other associations include intrauterine malnutrition, prenatal infection, increased paternal age, coeliac disease, childhood development problems, childhood abuse and substance abuse. These illnesses are quite common in the community and occur in about 1% of the adult population. The usual age of onset of schizophrenia is between 15 to 25 years but it can occur in later years at which time it is more likely to have paranoid features.
(l)     Given Dr Sale's opinion in paragraph 73 I am not prepared to find the prescription of Gabapentin and Pregabalin caused the worker's psychotic condition. Dr Evenhuis appears to agree with Dr Sale on this point.
(m)    Both Dr Sale and Dr Evenhuis agree stress is not sufficient to cause a psychosis so I am not prepared to find the circumstances which the worker found himself in, which no doubt were very stressful, caused his psychotic illness.
(n)     Because of my findings in paragraph 97(g) and because of Dr Sale's opinion and Dr Evenhuis's concessions in cross-examination I am not persuaded on the balance of probabilities the worker's cannabis use caused his psychotic illness. The psychotic illness is therefore not an effect of his back injury.
(o)     The worker was very unwell due to his psychotic symptoms while an inpatient at the Northside Clinic. That condition resulted in the worker making comments which suggested he may have sexually interfered with one of the claimant's children. As a result of those comments staff at the Northside Clinic made a report to Child Protection Services. The allegations were disclosed to the claimant, her mother and the worker's mother, father and sister at the family meeting on 8 July 2011 prior to the worker's discharge from the Northside Clinic. I find the worker was present at this time but may not have appreciated what was being discussed because of his illness and because of how the allegations were discussed given what is recorded in the notes. I find these allegations were untrue. There is no evidence which supports them whatsoever.
(p)     On his release from the Northside Clinic the evidence is the worker continued to suffer from psychotic symptoms and continued to be treated for those. It appears, given the notes of the case conference of 19 July 2011 with the general practitioner and the rehabilitation provider, there was an improvement in the worker's physical symptoms. The worker's mother suggests the worker was progressing well.
(q)     On 28 July 2011 the claimant's mother spoke to the worker about the allegations in paragraph 97(o) and the worker spoke to his mother on that day and his sister on 29 July 2011 about the allegations. His mother and sister assured him the allegations were not true. The worker also visited Mr Glover on 29 July 2011 on two occasions and expressed concern over the allegations.
(r)     At the time of the worker's death he was suffering from a psychotic illness. That illness is productive of an inability to reason normally. The illness itself is a significant risk of suicide. Dr Sale suggests the risk is as high as a 10% lifetime risk and it is more likely to occur in the early stages of the illness – as in this case. On top of the worker's inability to reason normally he is made aware of the allegations which are circulating about him and of which his close relatives are aware. For the reasons expressed by Dr Evenhuis and Dr Sale this information is likely to have had a devastating effect on the worker. I find his death was due to the worker's psychotic illness and/or the communication of the allegations to the worker which he was unable to mentally process or make rational decisions about because of his psychotic illness.
(s)     Because I have found the worker's psychosis is not an effect of his back injury, his death does not result from his compensable injury."

Ground 4

I will deal with the grounds of appeal in the order in which the appellant's counsel dealt with them in their written submissions. Ground 4 reads as follows:
"The Tribunal erred in law in determining the question of whether the psychotic illness from which the worker was suffering at the time of his death was an effect of the compensable back injury."
The submissions of counsel for the appellant in relation to this ground related to evidence given by Dr Sale when he was cross-examined about the relationship between the worker's overdose in January 2011 and his suicide in July 2011. Dr Sale accepted that in January 2011, because of his work injury, the worker had an adjustment disorder involving a significant risk of harm to himself, and that he then attempted to end his life because of the back injury and the consequences of it. He opined to the effect that if one had had a previous self-harm incident, then the risk of future self-harm incidents or completed suicide was enhanced. He rejected the proposition that the suicide attempt in January 2011 made the worker more "vulnerable" to suicide at a later time. He conceded only that a person with a history of self-harm behaviour would have a higher risk of a further self-harm incident or completed suicide than a person who did not have that history.
In their written submissions at [91], counsel for the appellant said:
"Despite Dr Sale's unchallenged expert opinion that there was a direct causal relationship between a sequelae [sic] of the worker's back injury (a previous attempt at suicide) and the worker's death by suicide, the tribunal gave no consideration at all to the causal relationship between the prior self-harm and the worker's death as it was required to in its decision making."
Dr Sale expressed no such opinion. He went only so far as to concede that a person who had self-harmed in the past was more likely to commit suicide than a person who had never self-harmed. He did not assert that there was a causal connection between the adjustment disorder that led to the January suicide attempt and the completed suicide in July.
It is true that the learned Chief Commissioner did not address this aspect of Dr Sale's evidence in his reasons, but the law did not oblige him to do so. He was obliged by s 61(3) of the Act to provide a statement in writing of the Tribunal's reasons for making its determination, but that obligation did not compel him to address every aspect of the evidence. He did not err in law as submitted, and ground 4 must therefore fail.

Ground 3

This ground reads as follows:
"The Tribunal erred in law by failing to determine that because the effects of the pain and adjustment disorders continued to be operative contributors and the adjustment disorder was subsumed by the psychotic illness, the death resulted from the compensable injury."
In relation to this ground, the appellant contends that the learned Chief Commissioner erred in law by failing to consider the possibility that the worker's death resulted not just from his psychotic illness, but also from his work-related adjustment disorder. It is clear from his finding at [97](j) that he considered and rejected the possibility that the adjustment disorder was a cause of the suicide. He said, "The medical evidence suggests the worker did not take his own life because of the adjustment disorder. That condition was subsumed by the psychotic illness and was not manifest at the time of the worker's death."
Furthermore, this ground relates to fact-finding. Bearing in mind that the appellant bore the onus of proof, a wrong finding of fact as to the significance of the adjustment disorder could involve an error of law only if there was evidence of the adjustment disorder making a material contribution to the suicide that was so strong that the Tribunal could not reasonably have failed to be satisfied that it played such a role. It is clear that the evidence supporting such a proposition was far too weak to compel that conclusion. Dr Sale gave evidence to the effect that if the adjustment disorder remained present after the development of the psychotic illness, it would not be detectable because of the severity of the psychotic illness. He said, "I don't see how you could actually find an adjustment disorder when someone's got acute florid psychosis." He likened the relative severity of the two conditions to a hypothetical situation in which a person with indigestion was shot in the chest.
"There is no error of law simply in making a wrong finding of fact": Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77. Thus when a tribunal makes a finding of fact that is reasonably open on the evidence before it, it does not err in law if that finding happens to be incorrect: Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Tanase v Acme Engineering (Tas) Pty Ltd [2006] TASSC 100 at [25]; X v Guardianship and Administration Board [2020] TASSC 11 at [17]. It is only when a finding is made, or an inference is drawn, in the absence of any supporting evidence that there is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-356.

This ground does not relate to a finding of fact, but to the learned Chief Commissioner not making a finding desired by the appellant. However it must follow from the cases I have just referred to that he could not have erred in law by declining to make a finding that it was reasonably open to him not to make.
On the evidence before him, it was reasonably open to him not to be satisfied on the balance of probabilities that the adjustment disorder materially contributed to the death of the worker. It follows that he did not err in law as this ground asserts. It must therefore fail.

Ground 1

This ground reads as follows:
"The Tribunal erred in law by determining that the psychotic illness was not an effect of the compensable back injury and ignored that there were multiple inter-related and non-divisible effects of the back injury which together resulted in the worker's death."

Causation of the psychotic illness

This ground contains two assertions. The first relates to the learned Chief Commissioner's finding at [97](n) that the worker's psychotic illness was not an effect of his back injury. That was a finding of fact. It was reasonably open on the evidence. The learned Chief Commissioner did not err in law in making it.
The appellant contended that the worker's back injury resulted in him experiencing stress and using cannabis, and that both his stress and his cannabis use materially contributed to two psychotic episodes – the first at the time of his overdose in January 2011, and the second at the time of his death. Her counsel submitted to me that, in the words of their written submissions at [127], "the Tribunal failed to consider all of the evidence and make required findings, to correctly determine the causal relationship between each or combined sequelae of the back injury and death".
In his reasons, the learned Chief Commissioner carefully reviewed the evidence as to stress and cannabis use, as well as evidence of the opinions of Dr Evenhuis, which tended to suggest that the worker's psychotic illness was contributed to by his cannabis use and stress. However there was evidence from Dr Sale to the effect that the worker's psychosis could not be "linked with any confidence to the effect of his back injury". In his reasons at [79], the learned Chief Commissioner quoted at length from Dr Sale's proof. In that proof Dr Sale opined that back problems and chronic pain as a factor in the development of schizophrenia could not be advanced as a "more probably than not" proposition; and that in the majority of cases of psychotic illness it is not possible to identify a specific cause or causes. In his reasons at [84], the learned Chief Commissioner summarised Dr Sale's evidence as to the significance of cannabis use. At [97](m) he reached a conclusion to the effect that it had not been established that stress materially contributed to the worker's psychosis. He made a similar "non-finding" at [97](n) saying that he was "not persuaded on the balance of probabilities the worker's cannabis use caused his psychotic illness". Having regard to the evidence, particularly that of Dr Sale, it was reasonably open to him to conclude that neither stress nor cannabis use had been established to have materially contributed to the psychotic illness. The first part of ground 1 must therefore fail.

Multiple effects of the back injury

The second part of ground 1 involves two assertions:
· That, as a matter of fact, "there were multiple inter-related and non-divisible effects of the back injury which together resulted in the worker's death".
· That the Tribunal ignored that fact.
The second part of this ground in essence asserts an error in fact-finding. The expert opinion evidence of Dr Sale was inconsistent with the fact asserted in the second part of this ground. It was therefore reasonably open to the learned Chief Commissioner not to make a finding that the worker's death resulted from "multiple inter-related and non-divisible effects of the back injury". This part of ground 1 must therefore also fail.

Ground 2

This ground reads as follows:
"The Tribunal erred in law by failing to conclude that the worker's death resulted from the compensable back injury, when it also found that at the time of taking his life the worker was still suffering from the compensable back injury which itself resulted in:
(a) him continuing to suffer chronic back pain to varying degrees;
(b) long term incapacity for work and inability to perform activities of daily living and participate in recreational activities;
(c) suffering a pain disorder and adjustment disorder; and
(d) had [sic] increased cannabis use due to pain and adjustment disorder, boredom and difficulties with his domestic and financial circumstances all due to back pain."
This ground in substance repeats assertions made in grounds that I have already dealt with. It relates to fact-finding. It was reasonably open for the learned Chief Commissioner not to make findings that this ground asserts he should have made. He did not err in law by not making such findings.
The learned Chief Commissioner was entitled to take into account evidence as to improvement in the worker's physical condition, the remission of his adjustment disorder as a result of him being less troubled by pain, and some increase in his physical activity and physical capacity.
This ground must also fail.

Ground 5

This ground reads as follows:
"The Tribunal erred in law in determining whether the worker's death resulted from the compensable back injury by focussing on consideration of the sole or immediate cause of the death."
In their written submissions at [231], counsel for the appellant argued "that the Tribunal took the wrong approach ... in effect using a sole or immediate test of causation". Ground 5 is based on such an assertion. As I have already said, the learned Chief Commissioner noted in his reasons, at [12], that if he was satisfied that the back injury and its effects "remained material or operative contributors at the time of the death, then the claimant will have satisfied the required onus".
It is of course possible for a decision-maker to identify the correct test of causation, but then err by applying an incorrect test. The learned Chief Commissioner made no such error. He carefully evaluated the evidence as to whether or not the back injury materially contributed to the worker's death, assessing the evidence in relation to his pain, his adjustment disorder, stress, and his cannabis smoking. In the end he was only satisfied as to one cause of the worker's death, namely his psychotic illness. But he did not reach that conclusion as the result of applying a "sole or immediate cause" test. He did not lose sight of the correct test. This ground must fail.

Ground 6

This ground reads as follows:
"The Tribunal erred in law by refusing leave to the applicant to recall Dr Evenhius."
Dr Evenhuis gave evidence on 17 April 2018. Two lay witnesses gave evidence for the appellant later that day. The next morning, counsel for the appellant obtained an adjournment, saying that there may be a need to recall Dr Evenhuis. The adjournment was granted. On 2 May 2018 counsel for the appellant applied to recall Dr Evenhuis. That application was opposed. The learned Chief Commissioner heard argument from both counsel. Two days later he delivered a reserved decision refusing the application: B v AQA Oysters Ltd [2018] TASWRCT 9. At that stage the appellant had not closed her case.
The application to recall Dr Evenhuis related to some answers that he gave at the very end of his evidence in relation to the possibility that the worker's adjustment disorder had been a contributing cause of his death. After his re-examination, the learned Chief Commissioner asked him some questions as to that topic. The appellant's counsel then asked some questions to clarify his answers. The employer's counsel was offered an opportunity to ask further questions, and declined.
When applying for the recall of Dr Evenhuis, counsel for the appellant argued that he had been asked questions that did not focus on the totality of the symptoms of the worker's adjustment disorder; that he had misunderstood a question from the learned Chief Commissioner; and that his answer required clarification and qualification. In his written reasons for refusing the application, the learned Chief Commissioner reviewed material relating to the adjustment disorder in two reports by Dr Evenhuis that had been tendered, and in his oral evidence, and concluded, at [40], that he would not be assisted if Dr Evenhuis was recalled.
At the hearing of this appeal, counsel for the appellant conceded that the learned Chief Commissioner had a discretion to refuse the application to recall the witness, but argued that the Tribunal was bound by the rules of natural justice and that the refusal to permit the recall of the witness was contrary to the interests of justice. In their written submissions, at [238], they argued that the learned Chief Commissioner had "misapprehended the principles upon which his discretionary decision ... should have been based", and argued that he had therefore erred in law.
By virtue of s 49(1)(a) of the Act, the Tribunal "may inform itself on any matter in such manner as it thinks fit". It follows that it has a discretion to permit or refuse the recall of witnesses. Section 49(1)(b) requires a proceeding before the Tribunal to "be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit".
In ordinary civil litigation, it would ordinarily be considered outrageous if a judge were to prevent a litigant from recalling one of that litigant's own witnesses before the close of that litigant's case. Ordinarily, in a situation like that faced by the learned Chief Commissioner, one might reasonably expect that counsel would be permitted to recall the witness. One would ordinarily expect the interests of justice to be best served by receiving the additional interest and evaluating it. It seems highly unlikely that the recall of Dr Evenhuis would have resulted in a significant lengthening of the hearing. However I am not required to decide whether the refusal of the application for his recall was unreasonable. I am required to decide whether that refusal involved an error of law. It is therefore necessary to consider whether it involved a denial of procedural fairness or some other type of error of law.
The Act does not contain a general statement to the effect that the Tribunal is bound by the rules of natural justice or procedural fairness. Section 57(1), amongst other things, contains a somewhat limited provision, requiring the Tribunal to resolve matters "after all parties have been given a reasonable opportunity to be heard". However, since the Act does not contain any provisions modifying or excluding the common law obligation to afford procedural fairness, that obligation must apply to the proceedings of the Tribunal: Kioa v West (1985) 159 CLR 550 at 576-584, 632; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574-575; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 57. The fact that the Tribunal is bound by the rules of procedural fairness has been acknowledged, without dispute, in the past: Griffiths v Devonport Youth Accommodation Services Inc A39/1996, [1996] TASSC 70; State of Tasmania v Beadle [2001] TASSC 122, 10 Tas R 302 at [37]-[40].
In dealing with the application for the recall of Dr Evenhuis, the learned Chief Commissioner afforded the appellant procedural fairness. He listed the matter for the making of submissions in relation to the question of recall. He permitted submissions to be made by Ms Taglieri SC for the appellant, then by Mr Wilkins as counsel for the employer, and then by Ms Taglieri in reply. He addressed and considered the relevant arguments in his reasons for refusing the application.
In those reasons he noted the provisions of s 49 of the Act. He noted that, by virtue of s 49(1)(a), the Tribunal was not bound by the rules of evidence, but commented, at [11], that the Tribunal was often guided by those rules. He considered the principles applied by courts in relation to applications for the recall of witnesses. He noted the provisions of ss 46 and 192 of the Evidence Act 2001. At [16]-[22], he reviewed a number of cases in which judges discussed factors that are relevant to applications to courts for parties to re-open their cases and recall witnesses. The considerations referred to included the interests of justice, the likelihood or otherwise of the additional evidence affecting the result of the case if believed, whether or not the evidence had not been called previously because of inadvertence, and whether or not there was a danger of prejudice to any party. At [23], he acknowledged the Tribunal was bound to observe the rules of natural justice. At [36], he rejected a submission that Dr Evenhuis was under pressure on the day he gave evidence because of an appointment at 1.30pm. At [38], he noted that there was no suggestion that Dr Evenhuis had inadvertently misled him. At [39], he considered the possibility of prejudice to the appellant, and concluded that no prejudice had arisen from him asking the witness questions after re-examination, nor from the appellant subsequently being asked questions by her own counsel. At [40], he concluded that in the end the question he was required to consider was whether or not he would be assisted if Dr Evenhuis was recalled. He concluded that there was "no utility in recalling him", and that the interests of justice were best served by refusing the application.
I reject the submission that he misapprehended the principles upon which his discretionary decision should have been based. He understood the relevant factors and addressed them all. He made no error of principle. If he was wrong in concluding that there was "no utility" in recalling Dr Evenhuis, that was an error of fact. It follows that ground 6 must fail.

The employer's contentions

As all of the grounds relating to the appellant's entitlement to compensation have failed, I need not address the employer's contentions to the effect that she was ineligible because she did not claim compensation within six months after the worker's death, and because she had ceased to be his "spouse" for the purposes of the Act. I note that the learned Chief Commissioner considered both of those issues and rejected the employer's submissions.

Ground 7

This ground reads as follows:
"The Tribunal erred in law in making an order for costs in the terms it was made and without affording the applicant opportunity to be heard."
At the conclusion of the hearing, on 25 June 2019, the learned Chief Commissioner reserved his decision without inviting counsel to make submissions as to costs. Counsel informed me that it was ordinarily the practice of the Tribunal not to invite submissions as to costs at that stage, but to deal with costs applications after substantive determinations were made.
On 4 October 2019 the learned Chief Commissioner dismissed the appellant's referral to the Tribunal and made an order that read, "The worker [sic] is to pay the employer's costs of the referral." In the Tribunal proceedings the appellant was a claimant, not a worker, but that order was obviously meant to apply to her. The learned Chief Commissioner provided a lengthy and thorough statement of reasons in relation to the dismissal of the referral. However he made the order for costs without affording the appellant any opportunity to make submissions. The appellant contends that an order for the payment of all the employer's costs would have been inappropriate because she succeeded on the notice and dependency issues.
Counsel for the employer submitted to me that the appellant could have sought to have the costs order set aside under s 62(2) of the Act. Section 62(1) provides that an order made by the Tribunal is final and binding on all parties, subject to s 63, which relates to appeals to this Court. Section 62(2) makes an exception to s 62(1). It provides that nothing in s 62(1) prevents the Tribunal from, amongst other things, "varying or revoking an order previously made by it". I was informed by counsel to the effect that the Tribunal does not routinely make costs orders first without submissions and then leave it to the parties to invoke s 62(2) if they want those orders varied or revoked.
It is extremely clear that the learned Chief Commissioner denied the appellant procedural fairness by ordering her to pay the employer's costs without having first afforded her an opportunity to argue against the making of an order in those terms. That failure amounted to an error of law: Medical Board of Australia v Alroe [2016] QCA 120 at [23].
I accept that the appellant could have applied under s 62(2) for the costs order to be varied or revoked. However she decided to appeal in relation to the issue of her entitlement to compensation. It was therefore preferable that her grievance as to costs be the subject of a ground of appeal, and not the subject of a s 62(2) application, which would have fragmented the proceedings. The availability of a s 62(2) application is therefore not a reason to reject ground 7.
Ground 7 must therefore succeed.

Disposition of the appeal

The learned Chief Commissioner is no longer a member of the Tribunal, having been appointed as a magistrate. I think it would be undesirable to remit the question of the costs of the Tribunal proceedings for redetermination by a differently constituted tribunal. It is open to me to allow the appeal, set aside the order for costs, and make some other order in substitution for it, if I determine that that course is appropriate: Supreme Court Rules 2000, rr 693(8), 709(1).
I will hear counsel as to whether I should take that course. One possible outcome is that I might be persuaded that the appellant should pay the whole of the employer's costs of the Tribunal proceedings, in which case this appeal should be dismissed. A denial of natural justice does not necessarily warrant the granting of relief: State of Tasmania v Beadle (above) per Underwood J (as he then was) at [37]-[40]. At the same time, I will hear counsel as to the costs of this appeal.