Brown v Department for Education - [2023] SASCA 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
BROWN v DEPARTMENT FOR EDUCATION
[2023] SASCA 138
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice Stanley)
21 December 2023
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - NATURE AND SCOPE OF APPEAL AND REVIEW
On 5 August 2019, the appellant was carrying out her employment duties as a school teacher when she was hit on the back of the head by a soccer ball. She made a claim for weekly payments and medical expenses under the Return to Work Act 2014 (SA) (‘RTW Act’). Her claim was rejected by the respondent. Following unsuccessful conciliation, the proceedings were referred to the South Australian Employment Tribunal (‘the Tribunal’) in Court Session.
The appellant lodged a Statement of Facts, Issues and Contentions on 1 June 2021 contending that she had suffered physical and psychiatric injuries as a result of the soccer ball incident. On 1 March 2022, she lodged a revised Statement of Facts, Issues and Contentions contending that she had sustained compensable, stand-alone psychiatric injuries only.
By its Responding Revised Statement of Issues and Contentions, the respondent’s primary contention was that the appellant had not suffered either a physical or a psychiatric injury as a result of the soccer ball incident. The respondent contended, in the alternative, that any work-caused psychiatric injury was a sequel that did not arise in compensable circumstances. The respondent did not contend for any position premised on the appellant having suffered a compensable work-caused physical injury, even in the alternative.
At trial, while all medical reports were tendered in the Trial Book, the only medical witnesses who gave oral evidence were the psychiatrists. Counsel for the appellant confirmed unequivocally that the appellant did not pursue a brain injury claim. The respondent relied on the medical reports as evidence of a non-falsifiable hypothesis that favoured an opinion that the appellant had suffered an organic brain injury as a result of the soccer ball incident.
During her closing address, the appellant sought to put forward an alternative case of psychiatric harm as a sequel to a head injury. The respondent took issue with this position in reply and maintained that the appellant was not entitled to announce a secondary case that she had not taken to trial.
The trial judge rejected the appellant’s contention that it was open to find for the appellant on grounds alternative to the case of stand-alone psychiatric injury. The judge considered that the appellant’s decision to confine her case to one of pure psychiatric injury was very likely a tactical one. In the event, the judge accepted the medical hypothesis that the appellant’s incapacity was due to physical and psychological causes, but did not find a significant contributing cause of the appellant’s brain injury.
Subsequently, the matter was brought before the judge as the appellant wished to be heard on the orders that should be made. The appellant submitted that the revised Statement of Facts, Issues and Contentions and statements by counsel at trial did not define the issues before the Tribunal and that the Tribunal should make orders identifying an entitlement to compensation by reference to the physical injuries. The judge rejected this submission and confirmed that the appellant’s claim, which confined to stand-alone psychiatric injury, had not been established.
The appellant appealed to the Full Bench of the Tribunal. That appeal was dismissed.
Broadly, the complaint made by the appellant on this appeal was that on the evidence adduced and findings made by the trial judge, the trial judge erred in not determining whether the appellant had entitlements to weekly payments and medical expenses on the basis that the appellant had sustained a work-caused physical injury or psychiatric injury complications as a result of a work-caused physical injury.
Held (by the Court), dismissing the appeal:
1.The Tribunal did not err in not determining whether the appellant was entitled to weekly payments and medical expenses on the basis that the appellant had sustained a work-caused physical injury or psychiatric complications as a result of a work-caused physical injury.

2. The appellant’s present complaints arose only from the forensic choices she made at trial.
3.The review jurisdiction of the Tribunal should be considered in light of the objectives of the South Australian Employment Tribunal Act 2014 (SA) (‘SAET Act’), the de novo nature of the review under s 98 of the RTW Act and the obligations on the Tribunal in s 32(1)(c) of the SAET Act.
4.Equity, good conscience and the substantial merits of the case support the respondent’s complaint that the appellant’s announcement of an alternative case in her closing address did not constitute fair notice.
5.The appellant’s complaint that the respondent was in breach of its obligations as model litigant is without utility or merit.

South Australian Employment Tribunal Act 2014 (SA) ss 5, 8, 27, 32(1), 32(1a), 65, 68; Return to Work Act 2014 (SA) ss 7, 9, 22(8)(e), 22(8)(f), 30, 31, 97(e), 98; Workers Rehabilitation and Compensation Act 1986 (SA), referred to.
The State of South Australia in right of the Department for Education and Child Development v Dolan [2021] SASCFC 30; Simpson v Piwinski (1989) 1 WCATR 227; Wilson v South Australian Meat Corporation [1995] SAWCT 149; Gomez-Soto v Unisure Pty Ltd (1997) 68 SASR 294; Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75; Campbell v Employers Mutual Ltd & Ors (2011) 110 SASR 57; Suvaal v Cessnock City Council (2003) 200 ALR 1; Addenbrooke Pty Ltd v Duncan & Ors (No 2) [2017] FCAFC 76; Kenny v South Australia (1987) 46 SASR 268; ASIC v Hellicar (2012) 247 CLR 345; Dunkerley v Comcare [2015] FCA 392; Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328; Croker v Commonwealth [2011] FCAFC 25, considered.

BROWN v DEPARTMENT FOR EDUCATION
[2023] SASCA 138
Court of Appeal – Civil: Livesey P, Bleby JA and Stanley AJA

THE COURT: This is an application for leave to appeal against a decision of the Full Bench of the South Australian Employment Tribunal. The Court previously determined to hear the application for leave together with submissions on the appeal proper. Pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA) (‘SAET Act’), an appeal lies on a question of law against a decision of the Full Bench to this Court.
On 12 August 2022, a single judge of the Tribunal confirmed the respondent’s determination rejecting the appellant’s claim for weekly payments and medical expenses under the Return to Work Act 2014 (SA) (‘RTW Act’).[1] In the course of doing so, the judge held that the appellant had confined her claim on the review to one of pure psychiatric injury and determined the claim on that basis. A Full Bench of the Tribunal dismissed the appellant’s appeal.[2]
[1] Brown v Department for Education [2022] SAET 107.
[2] Brown v Department for Education [2023] SAET 32.
In this Court, neither the Notice of Appeal nor the appellant in submissions articulated precisely the question of law the subject of the appeal. The Notice of Appeal raises a single ground, asserting error on the part of the trial judge in the following terms:
In the circumstances of the case, on the evidence adduced and findings made by the trial judge, and in the proper exercise of its jurisdiction and application of the principles governing its hearings, the South Australian Employment Tribunal was required, but declined, to determine whether the worker had an entitlement to weekly payments and to medical expenses for a work injury, physical or psychiatric, and as to the latter whether wholly or in part caused by physical injury, arising from being hit on the head by a soccer ball at work on 5 August 2019.
This ground incorporates, but by its wording obscures, the question of law that does arise, the terms of which are made apparent by the history of the proceedings, discussed below. We would formulate the question of law arising on the appeal as follows:
Whether, in the circumstances of the appellant’s and respondent’s conduct on the Tribunal’s review of the appellant’s rejected claim for an entitlement to weekly payments and medical expenses, the Tribunal was required to determine whether the appellant was entitled to weekly payments and medical expenses on the basis that the appellant had sustained a work-caused physical injury or psychiatric complications as a result of a work-caused physical injury.
For the reasons that follow, that question should be answered, ‘No’.
Background
On 5 August 2019, the appellant was carrying out her employment duties as a school teacher when she was hit on the back of the head by a soccer ball. Following that incident, she attempted to return to work but was unsuccessful. She has not been able to return to work since.
The appellant made a claim for compensation under the RTW Act. The nature of the injury was described in the claim as ‘head; - concussion’. On 10 January 2020, the respondent rejected the claim. In its Reasons for Decision, the respondent expressed the conclusion that the appellant did not suffer concussion as a result of being struck by the soccer ball.
The respondent also concluded, in the alternative, that if the appellant did suffer concussion or some other form of head injury, that did not arise out of or in the course of her employment and that her employment was not a significant contributing cause of the injury. This alternative conclusion was based on the appellant’s history, and in particular the reported consequences of a motor vehicle accident the appellant had been involved in on 1 September 2017, following which she had returned to work on a graduated return to work plan.
On 6 February 2020, the appellant applied to the Tribunal for a review of the respondent’s determination to reject the claim. The application for review specified the injury details as ‘Concussion/Closed Head Injury with subsequent development of Post-Concussion Syndrome and exacerbation of pre-existing anxiety’.
On 3 June 2020, the appellant made a further claim for compensation under the RTW Act. That claim identified her injuries as ‘closed head injury, post concussion syndrome, psychiatric injury’. On 20 July 2020, the respondent rejected this claim also.
By order dated 25 August 2020, with the consent of the parties, the Tribunal enlarged the scope of the proceedings the appellant had commenced in February 2020 to include the determination of the respondent to reject the appellant’s claim for psychiatric injury.
The written articulation of the issues before the Tribunal
Following unsuccessful conciliation, the proceedings were referred to the South Australian Employment Court, that is, the Tribunal in Court Session.[3] On 1 June 2021, the appellant lodged a Statement of Facts, Issues and Contentions. The issues the appellant identified included the following:
14. Did the Applicant sustain:
14.1 A physical injury?
14.2 A psychiatric injury?
14.3 Both a physical and a psychiatric injury?
[3] SAET Act, s 5.
The contentions recorded on this form included the following:
19. As a result of the incident, the Applicant suffered:
19.1 Concussion;
19.2 Post Concussion Syndrome;
19.3 A closed head injury, resulting in a Functional Neurological Disorder;
19.4 A psychiatric injury.
20.The injuries referred to at paragraphs 19.1, 19.2 and 19.3 above are physical injuries.
Then on 1 March 2022, the appellant lodged a revised Statement of Facts, Issues and Contentions. This form identified that the appellant was contending that she had sustained compensable, stand-alone psychiatric injuries only. Relevantly, the statement of issues included the following:
12.Whether the Applicant suffered a compensable psychiatric injury pursuant to section 7 of the Return to Work Act 2014 (SA) (the Act), which will require determination of the following issues:
12.1 Whether the Applicant has suffered a psychiatric injury;
12.2 Whether the psychiatric injury arose out of or in the course of the Applicant’s employment;
12.3 Whether the psychiatric injury was:
12.3.1. A stand-alone psychiatric injury; and/or
12.3.2.An aggravation, acceleration, exacerbation or deterioration of a prior or pre-existing psychiatric condition; and/or
12.3.3. Secondary to any physical injury.
The revised Statement included the following contentions by the appellant:
2.As a result of the incident, the Applicant suffered a psychiatric injury.
3.The psychiatric injury arose out of or in the course of the Applicant’s employment.
4.The Applicant’s employment was the significant contributing cause of the psychiatric injury.
5.The Applicant’s psychiatric injury is multi-faceted, consisting of the following stand-alone psychiatric injuries:
5.1    A Functional Neurological Disorder, also known as a:
·Somatic Symptom Disorder, Neurological;
·Conversion Disorder;
5.2    A Post-Traumatic Stress Disorder;
in addition to:
5.3    the aggravation of a pre-existing Adjustment Disorder with Anxiety.
6.None of the psychiatric injuries referred to in paragraph 5 are secondary to physical injury.
The respondent lodged a Responding Revised Statement of Issues and Contentions on 10 March 2022. Relevantly, the respondent said that the issues for the Tribunal to determine included the following:
1.Whether the Applicant suffered a compensable physical injury… which will require determination of the following issues:
a.     whether the Applicant sustained a physical injury, and if so what;
b.    the nature and extent of the physical injury …
…
c.     if the Applicant suffered a physical injury which was an aggravation, acceleration, exacerbation or deterioration of a prior or pre-existing physical condition, whether that has injury [sic] been spent (recovered) and, if so, when;
…
2.Whether the Applicant suffered a compensable psychiatric injury pursuant to section 7 of the Act, which will require determination of the following issues:
a.     whether the Applicant has suffered a psychiatric injury;
b.    if the Applicant has suffered a psychiatric injury, when the psychiatric injury was sustained / developed;
c.     the nature and extent of the psychiatric injury (if any) including whether the injury was:
i.      a stand-alone psychiatric injury; or
ii.an aggravation, acceleration, exacerbation or deterioration of a prior or pre-existing psychiatric condition; or
iii.    a sequel injury to any physical injury;
iv.a continuation of a prior or pre-existing non-work related psychiatric condition.
…
The respondent’s statement of issues was followed by relatively lengthy contentions. The respondent’s primary contention in this document was that the appellant had not suffered either a physical or a psychiatric injury as a result of the soccer ball incident. It contended that the appellant suffered physical and psychiatric injuries as a result of the motor vehicle accident in 2017 and that she continued to suffer ongoing symptoms and incapacity at the time of the claimed work injury.
The respondent then set out its alternative contentions. On the topic of physical injury, it contended as follows:
4.The Respondent contends that the Applicant was struck on the head by a soccer ball at work on 5 August 2019 contends [sic] that the Applicant sustained a mild and short-lived physical injury (at best) as a result of that incident. The Respondent contends that the exact nature of the physical injury will be determined on the medical evidence, but is likely limited to a short-lived aggravation of the pre‑existing and underlying Post-Concussion Syndrome.
5.The Respondent further contends that any ongoing effects from a physical injury (if any) suffered by the Applicant as a result of the work injury was an aggravation at best and has since been subsumed by the underlying and pre‑existing conditions arising from the motor vehicle accident within the meaning of section 7(3) of the Act.
Thus, on the topic of physical injury, the respondent identified an issue of whether the appellant had suffered a compensable physical injury. However, the respondent’s primary position was that the appellant had not suffered any physical injury as a result of the soccer ball incident. In the alternative, if she had suffered a physical injury, it was at best mild and short-lived, and was likely an aggravation of the post-concussion syndrome she had been diagnosed with as a result of the motor vehicle accident. Any ongoing effects had been subsumed by the underlying and pre-existing conditions resulting from the motor vehicle accident.
The respondent then made contentions on the topic of psychiatric injury, in the alternative to its primary position that the appellant had not suffered any psychiatric injury. It first noted that a number of psychiatric diagnoses had been proffered, including a Conversion Disorder. Its first substantive contention was then that if the appellant had suffered a Conversion Disorder, that could only arise as a sequel to a physical injury. It further contended that in the event that a Conversion Disorder could arise as a stand-alone psychiatric injury, in this case the evidence supported that it nonetheless arose as a sequel to physical injury.
Next, the respondent contended that if the appellant did suffer a psychiatric injury, the injury did not satisfy the requirements of s 7(2)(b) of the RTW Act, in that the injury did not arise out of or in the course of the appellant’s employment with the respondent, and/or that employment was not ‘the’ significant contributing cause of the injury. In this regard, the respondent relied primarily on the motor vehicle accident being the cause of any psychiatric injury.
The respondent then submitted:
In the alternative, (if [it] is found that the Applicant sustained a work related psychiatric injury, that the injury arose out of or in the course of the employment with the employment being the significant contributing cause, all of which is denied), the Respondent submits that any injury was a sequel injury to any physical injury sustained by the Applicant on 5 August 2019, and was no more than an aggravation of a pre-existing condition and was subsumed by the underlying psychiatric and pre-existing conditions within the meaning of section 7(3) of the Act.
Finally, the respondent observed that the appellant had pursued her case ‘on the basis that she suffered a physical injury in the form of a ‘head injury’ or a ‘concussion / post-concussion injury’’. It then contended:
On 1 March 2022, the Applicant changed her case to contend that she did not suffer a physical injury but rather sustained a stand-alone psychiatric injury (noting the August 2019 claim for a ‘head; concussion injury’). The Respondent contends that the Applicant’s own evidence, and the nature of the medical treatment she has obtained since 5 August 2019 is entirely inconsistent with the change of position outlined in the Applicant’s Revised Statement of Issues and Contentions.
At this stage, for the purpose of the issues raised on the appeal, it is sufficient to note two features about the respondent’s contentions. First, the respondent did not contend, even in the alternative, for a position premised on the appellant having suffered a compensable work-caused physical injury.

Second, the respondent contended that if the appellant did sustain a work‑caused psychiatric injury, that was a sequel to any physical injury sustained in the soccer ball incident and was no more than an aggravation of a pre-existing condition and was subsumed by the underlying psychiatric and pre-existing conditions. That is to say, the respondent contended, in the alternative, that any work-caused psychiatric injury was a sequel that did not arise in compensable circumstances. This was in circumstances where the appellant had expressly contended that none of the psychiatric injuries was secondary to physical injury.
The conduct of the review hearing
At the commencement of the trial and prior to opening, counsel for the appellant tendered the Trial Book. This contained the various expert reports that had been obtained over time, relevant to all issues that had been raised since the appellant’s claim was first lodged. That is, it included reports relevant to the incidence of any potential work-caused physical injury. As we will come to, these included a body of evidence that supported the proposition that the appellant sustained a brain injury as a result of the soccer ball incident.
Following some further tenders of material relevant to certain of the expert reports, the judge queried whether the only finding he was asked to make was whether the appellant had compensable injuries. Counsel for the appellant responded that the judge should probably ask counsel for the respondent to speak to that. In the course of the following discussion, counsel for the respondent directed the judge’s attention to the appellant’s revised Statement of Facts, Issues and Contentions and said:
your Honour will see that [the applicant’s] current issues appear to be whether there is a compensable psychiatric injury. That appears to be the only issue that is raised.
The judge then asked whether the respondent conceded that there would be an entitlement to weekly payments and medical expenses if the appellant established compensability. Counsel responded:
That would be my expectation, yes. Well, yes. There is a separate issue here, as your Honour will know from the change in the statements of issues and contentions filed, that we’ve gone from a physical injury with a psychiatric sequala to now a pure psychiatric injury and there are issues that will flow from that, but in general terms, yes.
After some further exchanges regarding the management of the trial, counsel for the appellant opened. From this point it is necessary, given the arguments made on this appeal, to quote at length precisely what was said on behalf of the appellant at various times.
Counsel announced the issues and the appellant’s contentions consistently with her revised Statement of Facts, Issues and Contentions:
Ms Brown’s contention before your Honour is that she suffered a functional neurological disorder, also known as a conversion disorder, as a result of the incident in the schoolyard on 5 August 2019, and that because of her condition she remains totally incapacitated for work. She is seeking acceptance of her claim and arrears of weekly payments from 10 January 2020 when her interim payments were discontinued, until 5 August 2021, which is when the 2-year period after the incident lapsed. And she is also seeking medical expenses and that they will go through to 5 August 202[1].
In due course, if her claim is accepted, there may be an issue about her WPI, but for the purposes of this week and the adjournment of this matter when we get to the expert evidence, the issue will be whether she is suffering a psychological disorder and then the applicant’s contention is that that may be either a new diagnosis altogether, that the functional neurological disorder only arose after the work injury. Alternatively, your Honour might find that there was an aggravation or exacerbation of her pre-existing psychological disorder, and in any event, that employment was the significant contributing cause of either the new injury or the aggravation.
While all the reports were tendered by reason of being included in the Trial Book, the only medical witnesses who gave oral evidence were the psychiatrists. This included evidence called by the respondent.
At the end of the first day, following a discussion about the witnesses yet to be called, the following exchange occurred between the judge and counsel for the appellant:
HIS HONOUR:    Okay. Look, I just wanted to clarify, in terms of your primary claim, do you still maintain the acquired brain injury claim?
COUNSEL:No, your Honour, we don’t.
HIS HONOUR:    Okay.
COUNSEL:It’s a difficult matter though because there are experts who go either way. The preponderance of the evidence however we say, is that it is a functional neurological disorder. Now, experts may differ on how they say that arises. My understanding is it doesn’t necessarily involve a head injury. Your Honour heard the full bench decision of Eagle, where it was exposure to ammonia gas that led to a conversion disorder. If the expert evidence remains as it is on the papers at present, the applicant’s case is that it is a psychiatric disorder.
HIS HONOUR:    In terms of the medical evidence, I mean, I’ve got reports from neurologists and Mr Reid, the neuropsychologist.
COUNSEL:Yes.
HIS HONOUR:    Are they all still going to be required to give evidence?
COUNSEL:My understanding is, subject to my instructor tapping me on the shoulder, that Mark Reid isn’t required if the post-concussion case is not pursued.
(Emphasis added)
The exchange continued for a few more lines on the topic of other witnesses. What is to be noted here is that counsel for the appellant announced unequivocally that the appellant did not pursue a brain injury claim. However, she seemed to hint (and only hint) that this could change if the expert evidence did not remain as it was on the papers.
The respondent having gone into evidence, counsel for the respondent accepted it was for him to address first. On this occasion, counsel for the appellant appeared by video link. Counsel for the respondent handed up an Outline of Closing Submissions. There was an adjournment to enable this to be emailed to counsel for the appellant. Counsel for the respondent then addressed, speaking with reference to the Outline of Closing Submissions he had handed up.
That Outline commenced with the following submission:
1.     This dispute has taken an unusual path to trial.
1.1    It commenced as a claim for a head injury: concussion, and
1.2    Progressed as a claim for both physical and psychiatric injury.
2.At trial it has been prosecuted as a claim for compensation for incapacity arising from a pure psychiatric injury.
(Footnotes omitted)
The Outline contained the following further submission as to the issues:
10.The worker has, it is now clear, abandoned any claim to compensation arising from a physical injury sustained when struck by the soccer ball including both:
10.1 a physical injury; and
10.2 a psychiatric injury secondary to a primary physical injury.
11. In the circumstances, it is necessary to determine at least the following issues:
…
11.5 Did the worker sustain a physical injury when struck by the soccer ball?
11.6 If the worker did sustain a physical injury, noting that the worker does not assert a compensable injury, when struck by the soccer ball:
11.6.1was that injury a standalone injury, or an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition;
11.6.2for how long did that injury continue;
11.6.3is the injury spent and, if so, when was it spent?
11.7 Did the worker sustain a compensable psychiatric injury when struck by the soccer ball?
11.8 If the worker did sustain a compensable psychiatric injury when struck by the soccer ball:
11.8.1was that injury a primary or standalone injury, or
11.8.2was that injury secondary to the physical injury?
The Outline reviewed the various medical reports, placing reliance on expressed opinions that at least some of the clinical findings following the soccer ball incident were consistent with traumatic brain injury. The respondent submitted that in those circumstances, it was not open to a psychiatrist to disregard those findings and attribute the whole of the appellant’s presentation to a functional neurological disorder. It then submitted, critically for present purposes:
39. Ms Brown commenced these proceedings with two competing hypotheses:
39.1 Ms Brown was struck by the soccer ball sustaining a mild traumatic brain injury; or
39.2 Ms Brown was struck by the soccer ball and sustained no organic injury but subsequently developed an entirely new functional neurological disorder or an aggravation of a pre-existing functional neurological disorder.
40.Both hypotheses find support from qualified medical experts. Neither hypothesis is, strictly speaking, falsifiable.
41.Ms Brown has abandoned the first hypothesis in favour of the second. It remains for Ms Brown to prove, on the balance of probabilities, that the soccer ball directly caused a functional neurological disorder and that any such disorder is or was not secondary to an organic injury.
(Footnotes omitted)
The Outline then explained why, in the respondent’s submission, the weight of the evidence favoured the appellant having sustained an organic injury as a consequence of being struck by a soccer ball. It then concluded:
43.This dispute is unusual not least because the worker’s case has altered from a claim for physical injury with a sequalae to a pure psychiatric injury claim. The reasons for and the merits of the alteration in strategy are a matter for the worker and her advisers. Nevertheless, Ms Brown is constrained by that forensic decision.
44.On the evidence before the Tribunal, on the claim for a pure or primary psychiatric injury sustained as a consequence of being struck by the soccer ball on 5 August 2019, the proceeding … ought to be dismissed.
It has been necessary to set out some of these submissions in detail, to demonstrate exactly how the respondent relied on the medical reports. Consistently with the respondent’s Responding Revised Statement of Issues and Contentions, the respondent relied on these reports as evidence of a non‑falsifiable hypothesis that favoured an opinion that the appellant had suffered an organic brain injury as a result of being struck by the soccer ball. It submitted that the weight of these reports warranted a conclusion that the appellant had failed to demonstrate, on the balance of probabilities, that she had suffered no organic injury but had developed a functional neurological disorder that was not secondary to any organic injury.
Counsel for the appellant then made oral submissions. At the outset, she confirmed the appellant’s position as announced in the revised Statement of Facts, Issues and Contentions and in opening:
In my submission, the evidence overwhelmingly establishes that the incident has caused the applicant to suffer a severe psychiatric injury. And my friend has just made comment on the fact that this case has been pursued as a psychiatric injury, rather than a physical one.
Indeed, the applicant is seeking a finding from your Honour that the preponderance of the medical evidence establishes that Ms Brown did not suffer a head or brain injury, but rather she suffered a psychiatric injury as a result of the incident.
However, shortly after this, counsel for the appellant made the following submission:
Your Honour also queried a moment ago the consequential mental harm is there sequela [sic] must your Honour dismiss the entire case.
Well, the applicant’s submission would be no, if the sequela hadn’t incapacitated Ms Brown from work, and she should still be entitled to weekly payments if that incapacity has led to the sequela, but of course there will be an impact on her permanent impairment assessment. That is not the applicant’s primary case, though. The applicant’s primary case is that there was no head injury.
This appears to have been the first expression at trial of an alternative case of psychiatric harm as a sequel to a head injury. Later in the course of addresses, the following exchange occurred between the judge and counsel for the appellant, and then counsel for the respondent:
HIS HONOUR:    [Counsel], do you accept that your client’s case stands or falls on whether I can find that the psychiatric injuries are pure psychiatric injuries and not secondary to physical injury?
COUNSEL FOR THE APPELLANT: Your Honour, the respondent has sought a finding that Ms Brown suffered a head injury, so …
COUNSEL FOR THE RESPONDENT: Sorry, your Honour, I need to interrupt because I’m being verballed yet again. We’re not seeking any finding at all.
HIS HONOUR:    No. They’re saying you haven’t discharged that onus. That’s what they’re saying.
COUNSEL FOR THE APPELLANT: (indistinct) a psychiatric injury.
HIS HONOUR:     Yes.
COUNSEL FOR THE APPELLANT: We say (indistinct).
HIS HONOUR:    I get that, but I mean, do you accept that your case stands or falls on whether or not you can establish that the psychiatric injury is not secondary to physical injury?
COUNSEL FOR THE APPELLANT: No, I don’t accept that.
HIS HONOUR:    Okay. What am I to do with paragraph 6 of your contentions on page 53?
COUNSEL FOR THE APPELLANT: The statement of facts, issues and contentions is not a pleading and not binding, and it may be that that’s not quite the way that the evidence has come out at trial, and that that’s not a finding your Honour can make based on evidence.
Counsel for the respondent took issue with this position in Reply. He accepted that the Statements of Facts, Issues and Contentions were not pleadings, but maintained that the appellant was not entitled to announce a secondary case that she had not taken to trial. He explained the basis for this position:
If this case is a case about compensation, as it is, and it’s a case about entitlements, my client is entitled to know what is the basis of the claim for compensation. It’s entitled to consider its position in light of the basis for compensation, and to take action accordingly. That might be a compromise, it might be an acceptance, it might be a trial in the way a trial is run. There is no claim, as I understand it, extant at the moment from the worker for a physical injury leading to a physical – sorry, a psychiatric sequela that my client could accept.
So, for whatever reason the worker has taken this particular strategy to trial, it must be bound by that strategy.
Counsel for the respondent then referred to expert reports that were in evidence, but whose authors were not called and cross-examined. He explained the consequence of the failures for the trial by reference to the respondent’s case that if there was any traumatic brain injury, it would have resolved by now:
That is important, because that then doesn’t give the basis for the ongoing impairment in terms of functioning, the ongoing incapacity. My client doesn’t dispute there is an ongoing incapacity for work. It doesn’t dispute that the ongoing incapacity likely arises at the current time from the conversion disorder or the FND. It may or may not have been some level of incapacity back at the outset arising also from the physical injury, but we are not in a position now to deal with that, and with respect, the way the case was run, it wasn’t a matter that needed to be canvassed in evidence, because it wasn’t being run that there was an entitlement to compensation based on a physical injury.
It can be seen from this submission that counsel for the respondent disputed that the appellant was entitled, after the close of evidence, to raise a case based on physical injury or psychiatric injury as a sequel to physical injury sustained in the soccer ball incident. The respondent’s position was that it had made forensic decisions at trial based on the confined nature of the case.
The appellant did not apply to reopen her case in light of the respondent stating its position.
The trial judgment
The trial judge rejected the appellant’s contentions that it was open to find for the appellant on grounds alternative to the case of stand-alone psychiatric injury. He accepted that a case might be expanded beyond the pleaded case if the parties choose to restrict or enlarge them in the course of a trial,[4] and that it would be a triumph of form over substance if the other party was fairly on notice of the case it had to meet and was not prejudiced by the lack of correlation between that which was announced on a statement of issues and contentions and that which was contended at trial.[5]
[4] [2022] SAET 107 at [157].
[5] [2022] SAET 107 at [158].
The judge considered, however, that different considerations applied when there was an attempted late change. Parties must ordinarily be bound by their conduct in the litigation.[6] A change will not readily be entertained, especially when there was a forensic or tactical reason for not pursuing the belated alternative case initially, and where if that point had been taken earlier, it might have been met by further evidence.[7]
[6] Citing The State of South Australia in right of the Department for Education and Child Development v Dolan [2021] SASCFC 30 at [73].
[7] [2022] SAET 107 at [159].
In the present case, the judge considered that it was very likely that the decision to confine the case to one of pure psychiatric injury was tactical:[8]
… with an eye towards any assessment of whole person impairment and the potential for that to result in Ms Brown fitting the criterion to be a seriously injured worker. I expect that the decision might have been influenced by ss 22(8)(e) and (f) of the Act which provide:
(e)in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f)in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
[8] [2022] SAET 107 at [161].
The judge accepted that it was reasonable to infer that had the appellant announced the alternative case from the outset, the Court might have received oral evidence from other medical witnesses and the respondent might have conducted its case differently.[9] He concluded that to allow the appellant to succeed on a basis not disclosed until closing submissions would violate the principle of ensuring a fair trial and preventing surprise. He accepted that the alternative claim had prospects of success. While he ‘felt unease’ in saying it, he concluded that it would not be in the interests of justice to allow the appellant to make that change at such a late stage.[10]
[9] [2022] SAET 107 at [162].
[10] [2022] SAET 107 at [163].
In the event, the judge accepted the medical hypothesis that the appellant’s incapacity was due to physical and psychological causes:[11]
I find that Ms Brown’s incapacity for work and need for medical treatment is the result of a combination of things: a brain injury; and a conversion disorder and other psychological issues that are partly caused by the brain injury, partly caused by emotional stressors related to the soccer ball incident and its aftermath, and partly caused by other stressors, such as the lingering consequences of the 2017 motor vehicle accident.
[11] [2022] SAET 107 at [211].
It should be noted here that the judge did not go so far as to find a significant contributing cause of the appellant’s brain injury. With respect to the claims for weekly payments and medical expenses, the judge concluded:[12]
In connection with these claims, Ms Brown made a tactical decision to prosecute her case on the basis that her incapacity for work and need for medical treatment were as a result of, and only as a result of, a pure psychiatric injury that was caused by the soccer ball incident. I am not persuaded to the requisite degree that she has made out that case.
[12] [2022] SAET 107 at [213].

The judge consequently confirmed the respondent’s determination rejecting the appellant’s claim.
The second trial judgment
The judge delivered his reasons for judgment summarised above on 12 August 2022. On 6 December 2022, the matter was the subject of a further hearing, as the appellant wished to be heard on the orders that should be made. On this occasion, the appellant was represented by senior counsel.[13] Senior counsel submitted that notwithstanding the judge’s conclusions, the Tribunal should make orders identifying an entitlement to compensation by reference to a head injury, concussion, a closed head injury, post-concussion syndrome and a head and brain injury.
[13] Brown v Department for Education (No. 2) [2022] SAET 164.
The essence of this submission was that the revised Statement of Facts, Issues and Contentions and the various statements by counsel at trial, set out above, did not define the issues before the Tribunal. Rather, the issues raised in the original Statement of Facts, Issues and Contentions remained on foot until they had been formally withdrawn.[14] In aid of this submission senior counsel referenced s 8(f) of the SAET Act, which requires the Tribunal to ‘act with as little formality and technicality as possible’.[15]
[14] [2022] SAET 164 at [15]-[19].
[15] [2022] SAET 164 at [20].
The judge rejected the submission that the appellant had not confined her case in the manner he had initially found. He said:[16]
Section 8 of the SAET Act expects this Court to be accessible and responsive to parties, to process and resolves [sic] applications as quickly as possible while achieving a just outcome, to keep costs to parties involved in proceedings before it to a minimum insofar as is just and appropriate, to use straightforward language and procedure, to act with as little formality and technicality as possible, to be flexible in the way in which it conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.
If this Court were unable to act upon the statements of counsel in court in respect of workers compensation disputes as to what matters are conceded, what matters are no longer pursued, what issues are contested, and what issues are to be determined, and formal documentation at each step of the way was required, these objectives would be seriously undermined.
I therefore reject the contention that the issues that the Court determined included any issues raised in claim forms that the worker had submitted, determinations responding to those claims and prior statement of issues and contentions. I also reject that in the case, something more was required in this case to formally abandon a claim for compensation based upon a physical injury.
[16] [2022] SAET 164 at [29]-[31].
The judge confirmed the respondent’s determinations, on the basis that the identified injury was a psychiatric injury that was not secondary to a physical injury, and that claim had not been established.
The appeal to the Full Bench
The appellant appealed to the Full Bench of the Tribunal.[17] That appeal lay on a question of law only. In essence, the appellant complained that the trial judge had misapplied the statutory mandate in s 32(1)(c) of the SAET Act and had misapplied or impermissibly constrained ‘the conferral and exercise of jurisdiction on and by the Tribunal in making the finding and the order’.
[17] Brown v Department for Education [2023] SAET 32.
Section 32 of the SAET Act provides, in part:
32—Principles governing hearings
(1)On the hearing of any proceedings, but subject to the provisions of a relevant Act—
(a)     the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of formality; and
(b)     the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and
(c)     the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.
(1a)However, the rules of evidence and other formal procedures of a court of record apply to the South Australian Employment Court to the extent that the Court considers it necessary or appropriate and the Tribunal (in the exercise of any jurisdiction) may give directions about any question of evidence.
The appellant submitted that the concession made by counsel at trial had not been formal and was not maintained. She submitted that the issue of what should happen, if the judge were to find a physical injury, should have been discussed with counsel.
Calligeros DPJ wrote the lead judgment of the Full Bench. His Honour referred to the procedural history of the matter, noting the expansion of the claim to include a psychiatric injury. Section 65 of the SAET Act provides:
65—Power to enlarge scope
The Tribunal may, with the consent of all parties to proceedings, enlarge the scope of the proceedings to include questions that are not presently at issue in the proceedings.
His Honour then observed:[18]
Enlarging the scope of a proceeding, and altering the basis of the claim made and determined, is consistent with a number of objectives in s 8 of the SAET Act including; being expeditious, keeping costs to a minimum, acting with as little technicality and formality as possible and being flexible and adjusting ‘procedures to best fit the circumstances of a particular case or a particular jurisdiction’.[19] Given that parties are able to enlarge the scope of a proceeding, it would be odd if they were not allowed to agree to confine the ambit of the claim.
(Footnote in original)
[18] [2023] SAET 32 at [38].
[19] SAET Act s 8(g). See also ss 8(c), (d) and (f).
His Honour then reviewed authority indicating that the Court should have regard to the case presented by a party, rather than the strict terms of a claim and its determination.[20] In Wilson v South Australian Meat Corporation,[21] the South Australian Workers Compensation Tribunal deprecated any process that would confine the review process to the allegations strictly contained in the claim form, provided that none of the parties were prejudiced by the expansion. That approach was approved by the Full Court of the Supreme Court in Gomez-Soto v Unisure Pty Ltd:[22]
In cases such as the present it may be necessary to determine the true nature of the claim accepted by an employer by reference to the surrounding circumstances and the basis upon which the employer and employee proceeded. As was pointed out in Wilson v South Australian Meat Corporation … the claim form is not a pleading and should not be treated as such.
[20] [2023] SAET 32 at [39], referring to Simpson v Piwinski (1989) 1 WCATR 227 and Wilson v South Australian Meat Corporation [1995] SAWCT 149.
[21] [1995] SAWCT 149.
[22] (1997) 68 SASR 294 at 300.
Calligeros DPJ rejected the submission that it was necessary for there to be a ‘formal’ abandonment of the physical injury claim considering that it was unclear what this meant. He held that it was clear that the appellant was not pursuing a brain injury case.[23]
[23] [2023] SAET 32 at [43].
His Honour accepted that the compensation sought can change with time, as the claim form does not usually require detail in relation to the compensation sought. He considered that there must be limits. If a party claimed to be taken by surprise, regard could be had to the Statements of Facts, Issues and Contentions. He accepted that these were not as detailed as pleadings and did not bind the parties in the way that pleadings do.[24] However, in this case, he held that the appellant, acting on legal advice, had made a deliberate forensic decision not to pursue the claim for a brain injury.[25] He concluded that the judge had not contravened s 32 of the SAET Act by holding the appellant to have confined her case to pure psychiatric injury.[26]
[24] [2023] SAET 32 at [44]-[45].
[25] [2023] SAET 32 at [48].
[26] [2023] SAET 32 at [50].
On the question of whether the appellant had presented an alternate case, Calligeros DPJ reviewed the transcript and concluded that she had not. Because of the way the appellant had conducted her case prior to addresses, there had been no cross-examination of the medical experts.[27] The appellant needed to apply to reopen her case and advance it on a different basis.[28] He rejected a submission that it was incumbent on the judge to raise the potential consequences of confining the case.[29] Even if counsel’s comment in address could be seen to be seeking to raise an alternate case, there were good reasons to refuse that request.[30]
[27] [2023] SAET 32 at [62].
[28] [2023] SAET 32 at [62].
[29] [2023] SAET 32 at [66].
[30] [2023] SAET 32 at [67].
The appellant also submitted that the judge should not have permitted the respondent to alter its position to contend that the appellant had sustained a physical injury to her brain. As noted above, the respondent’s Responding Revised Statement of Issues and Contentions contended that the appellant had not suffered a physical or psychiatric injury. However the respondent also contended, in the alternative, that:
any injury was a sequel injury to any physical injury sustained by the Applicant on 5 August 2019, and was no more than an aggravation of a pre-existing condition and was subsumed by the underlying psychiatric and pre-existing conditions within the meaning of section 7(3) of the Act.
The respondent had also contended:
that the Applicant’s own evidence, and the nature of the medical treatment she has obtained since 5 August 2019 is entirely inconsistent with the change of position outlined in the Applicant’s Revised Statement of Issues and Contentions.
Calligeros DPJ held that the last sentence quoted above was sufficient to put the appellant on notice that the respondent may contend at trial that there had been a physical brain injury.[31] Ultimately, his Honour concluded that there had been no denial of procedural fairness: counsel for the appellant had the opportunity to consider the consequences for her case after receiving the respondent’s Responding Revised Statement of Issues and Contentions, at the end of the first day and then during the appellant’s closing address.[32] He further observed that the findings of fact may have taken a different course if the question of a compensable physical brain injury had been pursued and the evidence tested.[33]
[31] [2023] SAET 32 at [74].
[32] [2023] SAET 32 at [79].
[33] [2023] SAET 32 at [82].
His Honour also rejected a claim that the respondent had acted contrary to its obligations as model litigant. He held that the appellant had not identified the model litigant obligation said to have been breached. More importantly, the appellant had been accorded procedural fairness. The respondent’s position had been foreshadowed in its Responding Revised Statement of Issues and Contentions.[34]
[34] [2023] SAET 32 at [91].
Dolphin PJ and Crawley DPJ reached similar conclusions. The Full Bench dismissed the appeal.
The present appeal
The appellant’s thesis of jurisdiction
The appellant’s starting point of principle before this Court was that what was being considered on review was a statutory cause of action. She submitted that this cause of action was not established by statements of issues and contentions, or submissions made at trial. Rather, the Tribunal was engaged in the review of a reviewable decision pursuant to s 98 of the RTW Act. It was that statutory cause of action that proceeded to the Tribunal, not some independent cause of action based on the cause of injuries.
In the appellant’s submission, viewed in this way, the Tribunal’s jurisdiction was to review the compensating authority’s rejection of the claim for entitlements to weekly payments or medical expenses. It was therefore incumbent on the Tribunal to determine, on review, that claim for entitlements by reference to any issue agitated at trial. As long as there was an issue of brain injury raised at trial, to not determine whether this was a compensable injury amounted to an impermissible fettering of the Tribunal’s jurisdiction.
On that basis, what went on review was the determination of a claim for both physical and psychiatric injuries. Each was made the subject of the review jurisdiction of the Tribunal. Then, on the evidence that was adduced before the Tribunal without objection, the Tribunal found that the appellant had suffered an injury, resulting in incapacity and a need for medical treatment arising from the particularised incident of employment. Notice had been given; claims had been made for loss of wages and medical expenses. These had been rejected. The Tribunal found that the injury had been caused, at least in part, in the way for which the appellant had contended.
In those circumstances, the appellant submitted that the ‘substantial merits of the case’, as contemplated by s 32(1)(c) of the SAET Act, were concerned with whether the appellant had suffered an injury arising from the soccer ball incident, giving rise to entitlements to medical expenses and income maintenance under the RTW Act. They were not concerned with whether she had suffered an injury arising from the incident in the way for which she had contended.
In this way, the appellant linked the concern of s 32(1)(c) with the ‘substantial merits of the case’ to the review jurisdiction of the Tribunal, focusing on the claim that was the subject of the review. However, the appellant did not dissociate the ‘substantial merits’ from the contentions of the parties entirely. In particular, she emphasised the statement in the respondent’s Responding Revised Statement of Issues and Contentions that the exact nature of any physical injury will be determined on the medical evidence. She also referred to and relied on the respondent’s contention that the appellant’s own evidence and the nature of the medical treatment the appellant had received since the date of the incident were inconsistent with her change of position.
In order to assess this submission, it is necessary to characterise the review jurisdiction of the Tribunal. That is not simply a matter of identifying the jurisdiction as a statutory review jurisdiction of a determination of a claim. As the respondent accepted, a claim under s 30 of the RTW Act is a claim for an entitlement to a financial benefit. However, as the respondent also submitted, pursuant to s 30(1)(c), such a claim must be supported by a certificate certifying the nature of the injury. That is a critical element of the claim: pursuant to s 7, the RTW Act applies to an injury only if it arises from employment. Similarly, s 9 provides that subject to that section, an injury is not compensable under the RTW Act unless it is established on the balance of probabilities that it arises from employment.
It follows that any claim for entitlements to weekly payments or medical expenses must be grounded in an identified injury that is sufficiently particularised in order to be assessable by the compensating authority.
Section 31 of the RTW Act then provides for the determination of a claim upon its receipt. Pursuant to s 31(3), a claim may be rejected if a claimant fails or refuses to furnish information reasonably required for the claim to be assessed or determined or fails or refuses to submit to an examination.
Sub-section 97(e) of the RTW Act provides that a decision on a claim under s 31 is a reviewable decision. Section 98 then provides that despite s 27 of the SAET Act, the Tribunal will conduct a review of a reviewable decision as a hearing de novo. This was an important matter for the respondent’s argument. Sub-section 27(3) of the SAET Act provides that on a review, the Tribunal will examine the decision of the decision-maker by way of rehearing. Sub-section 27(4) provides that on a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to the decision of the original decision-maker. Sub‑section 27(5) imposes certain requirements for the procedure on a hearing. There is to be an examination of the evidence or material before the decision-maker and a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the case, to admit for the purposes of rehearing the matter.
By providing that the review is to be by way of hearing de novo, s 98 of the RTW Act dispenses with these statutory strictures that attend upon a rehearing. It effectively allows a fresh opportunity to articulate the claim in its entirety.
It is in that jurisdictional and procedural context of the RTW Act that s 32(1)(c) of the SAET Act operates, when it requires the Tribunal to act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms. On a hearing de novo, either of the worker or the compensating authority must be able to change position from that which was formed at the stage of the original claim.
In Mitsubishi Motors Australia Ltd v Harbord,[35] the Full Court accepted that on a claim under the Workers Rehabilitation and Compensation Act 1986 (SA), a determination to accept a claim did not prevent the Corporation from later putting it in issue in the Tribunal.[36] Relevantly, Doyle CJ observed that, against the obvious unfairness to a worker in the event of a change in position after the original determination and the desirability of consistency:[37]
The importance of expeditious decision-making, and the fact that at the first level of decision making there is limited scope for testing the worker’s claims, support an argument that the Corporation should not be bound by an expeditious decision made on limited information. There is also reason to think, as the judge below said, that in the case of relatively small claims, for example for medical expenses, there would be everything to be said for the Corporation simply paying the claim without spending too much time investigating the occurrence of the disability. It would be odd if a consequence of that was that it could no longer put the occurrence of the compensable disability in issue, even in the face of a much larger claim. In the environment in which the Act operates, one could expect that, particularly in the early stages, a disability will be identified in quite general terms, and often in terms that will require revision as the worker undergoes further treatment. Treating the determination of a claim as decisive as to the occurrence of the compensable disability upon which it is based, may give rise to rather unprofitable debate when later claims are made, in relation to the terminology used by the worker in identifying the disability in the early stages and the disability at the later stages. There would often be argument that what is identified as the disability later, is not the same thing as the subject of the earlier determination.
[35] (1997) 69 SASR 75.
[36] Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 86 (Doyle CJ, Matheson and Olsson JJ agreeing).
[37] Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 84-85.
These observations do not speak directly to the thesis advanced by the appellant in this case. They do, however, offer some guidance as to the required approach of the Tribunal when exercising its review jurisdiction under the RTW Act. The requirement of a de novo hearing exists against the backdrop of the main objectives of the Tribunal set out in s 8 of the SAET Act. These include objectives of:
·natural justice and procedural fairness (s 8(a)(ii));
·ensuring that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes (s 8(c)); and
·keeping costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate (s 8(d)).

The appellant’s thesis, grounded in the observation that the Tribunal’s jurisdiction is one of statutory review of a determination of a claim to entitlements, does not only fail to recognise that a claim is rooted in the identification of injury. It also fails to take account of how the RTW Act and SAET Act populate that review function. The appellant’s thesis would require the Tribunal to not accept the practical confinement of the issues by the parties and to investigate anything raised on the original claim. Contrary to the appellant’s argument, this would undermine the obligation to act according to the substantial merits of the case and would be antithetical to efficiency and the confinement of costs. We endorse the following observation of the trial judge:[38]
If this Court were unable to act upon the statements of counsel in court in respect of workers compensation disputes as to what matters are conceded, what matters are no longer pursued, what issues are contested, and what issues are to be determined, and formal documentation at each step of the way was required, these objectives would be seriously undermined.
[38] [2022] SAET 164 at [30].
More fundamentally, however, the appellant’s thesis is antithetical to the mandated requirements of procedural fairness. The Full Court has observed, in the past, that on a hearing before the Tribunal, sitting as the South Australian Employment Court, the compensating authority:[39]
primarily adopts the role of an adversarial party in contrast to its functions with respect to the earlier phases involving investigation, determination, reconsideration and conciliation.
[39] Campbell v Employers Mutual Ltd & Ors (2011) 110 SASR 57 at [81].
In its role as adversarial party, the compensating authority is entitled to know what is put against it in the review proceedings as constituted before the Tribunal. That is not to say that a trial judge has no facility, on a review, to allow the issues to be expanded if that is what equity, good conscience and the substantial merits of the case require. However, that does not create permission to depart from the necessarily mandated requirements of procedural fairness. Rather, it requires an assessment of the demands of fair notice in the particular case:[40]
If a party participates in a trial to meet a particular case which that party has pleaded and presented in only one way, it would be unfair to the other party to decide the case on a different basis of which the losing party had no fair notice and which it had no proper opportunity to defend. Although rigid adherence to pleadings is no longer uniformly practised and not a few cases stray from the pleadings without consequential amendment, such practices cannot excuse procedural injustice. It is elementary that a party is entitled to know the issues of fact that are to be decided in a trial where these are determinative of its success or failure.
(Footnotes omitted)
[40] Suvaal v Cessnock City Council (2003) 200 ALR 1 at [102] (McHugh and Kirby JJ (dissenting in the result)).
Fair notice is not subservient to the requirements of equity, good conscience and the substantial merits of the case. It is an essential ingredient of those requirements.
The appellant’s characterisation of the jurisdictional function of the Tribunal on a review fails to have proper regard to the purposive operation of the review scheme characterised by the objectives of the SAET Act, the de novo nature of the review under s 98 of the RTW Act and the obligations on the Tribunal in s 32(1)(c) of the SAET Act. The appellant’s more specific contentions were, however, informed by this broader thesis. It is therefore necessary to consider those contentions in light of the approach we have taken, above, to that thesis.
Whether the appellant ‘abandoned’ claims of physical injury or psychiatric sequelae to physical injury
The appellant submitted that when ‘read in their entirety’, her revised Statement of Facts, Issues and Contentions and counsel’s statement at the end of the first day ‘were not in the language of abandonment’ of either a claim of physical injury or psychiatric injury as a sequel to physical injury. She submitted:
Rather, they reflected an evaluation of the strength of the medical evidence anticipated to be adduced at trial on the issue of physical injury from the incident.
The appellant referred to Addenbrooke Pty Ltd v Duncan & Ors (No 2).[41] In that case, Mr Duncan had contended that Addenbrooke had abandoned a case of non-disclosure to potential investors. The Court identified passages in transcript that indicated, positively, that Addenbrooke had not abandoned that case. In this regard, counsel for the appellant on this appeal pointed to the statements made by counsel in closing.
[41] [2017] FCAFC 76 at [439]ff.
The appellant’s contention that her counsel had not used the language of abandonment is unsustainable. At the commencement of the trial, counsel for the respondent raised squarely that the claim had gone from a physical injury with psychiatric sequela to a pure psychiatric injury. Counsel for the appellant did not contradict this at the time. She then opened only on the basis that the appellant had suffered a functional neurological disorder, being a Conversion Disorder. At the end of that first day, the judge asked whether the appellant still maintained the acquired brain injury claim. Counsel replied, ‘No, your Honour, we don’t’.
Counsel did then submit that the ‘preponderance of the evidence’ supported a functional neurological disorder. She then hinted, as we have already described it, at the possibility of a later change in case, saying, ‘If the expert evidence remains as it is on the papers at present, the appellant’s case is that it is a psychiatric disorder’.
To submit that these statements only ‘reflected an evaluation of the strength of the medical evidence anticipated to be adduced at trial on the issue of physical injury from the incident’, ignores the reality of the situation. It might be that counsel was trying to keep one foot in an alternate door. However, we do not draw such an inference from such a tentative statement. Counsel had already announced that the appellant did not pursue a case based on physical injury. The appellant’s revised Statement of Facts, Issues and Contentions was clear.
In this regard, senior counsel for the appellant submitted that what had occurred at trial was ‘somewhat of a mess’. He accepted that the alternative case announced only in closing should have been announced from the outset, whatever the motive was for pursuing a primary case of pure psychiatric injury.
This description of the appellant’s case at trial has the hallmarks of re‑casting what had occurred. There is nothing to suggest that, at the outset of the trial, the appellant’s approach of confining the claim to one of pure psychiatric injury was anything other than a considered forensic position. This was the position announced both in the revised Statement of Facts, Issues and Contentions and by counsel on the first day.
The conduct of the respondent at trial
The appellant further pointed to the respondent having ‘caused, permitted or allowed medical evidence of a brain injury from the incident to be received into evidence in documentary form without objection’. In this regard, she also drew attention to the cross-examination of the psychiatrist called by the appellant, directed to whether the appellant had sustained a mild, traumatic brain injury from the incident. The respondent also led evidence from a psychiatrist to that end. Consistently with this, counsel for the respondent at trial submitted that the weight of the evidence favoured the appellant having sustained an organic injury in consequence of the soccer ball incident.
The appellant submitted that the respondent had therefore not simply adopted a defensive posture and only called evidence directed at negating the appellant’s announced case of pure psychiatric injury. Rather, in the appellant’s submission, the respondent had positively agitated, in contrast to its original determination of the claim, that evidence supportive of the existence of a brain injury should be accepted. The appellant submitted that the respondent could not then assert surprise if it were to be held that the consequence of this was that there was a compensable injury.
It followed, in the appellant’s submission, that the issue of physical injury was ‘in play’ and litigated at trial. There could be no procedural unfairness in the judge finding that there was a physical injury and/or that such a physical injury contributed to a psychiatric injury. Rather, any ‘unfairness’ arose from the respondent effectively tailoring its case to answer a claim of psychiatric injury only.
Related to this, the appellant also submitted at the hearing of the appeal:
That is if one is looking at the issues that are fairly and squarely raised at any stage before closing submission it cannot be said that the compensating authority ever put the position that your claim will be defeated outright for weekly payments and medical expenses if an organic brain injury from the incident that’s the subject of the claims and the discussion before and evidence before the trial judge is established.
The appellant’s submissions about the conduct of the respondent are acontextual and misplaced. As explained above, the respondent relied on the reports that were tendered, but not cross-examined upon, as evidence of a non‑falsifiable hypothesis favouring an opinion that the appellant had suffered an organic brain injury from the soccer ball incident. Its case, relevantly, was that the weight of those reports warranted a conclusion that the appellant had failed to demonstrate, on the balance of probabilities, that she had suffered no organic injury but had developed a functional neurological disorder that was not secondary to any organic injury.
Similarly, the appellant’s submission that the respondent had not put, before closing submissions, the position that the appellant’s claim would be defeated if an organic brain injury was established, is highly problematic. Accepting that the respondent did not put the position in those terms before addresses, that failure was in the context that the appellant had already expressly confined her claim to one of pure psychiatric injury.
Related to this is the observation that if the appellant had maintained a contention, at the outset, that she pursued a claim grounded in a physical injury or psychiatric sequelae to a physical injury, the respondent would have conducted its case differently. It was open to the respondent to make a forensic decision to rely on evidence supporting a non-falsifiable hypothesis that contradicted the appellant’s case. It was not incumbent on it to pursue that hypothesis to a forensic determination of any entitlement based on physical injury or psychiatric sequelae. The respondent having tailored its case to that announced by the appellant, equity, good conscience and the substantial merits of the case support its complaint that the appellant’s announcement of an alternative case in her closing address did not constitute fair notice.
Model litigant obligations
The appellant’s complaint of unfairness on the part of the respondent extended to a submission that the respondent had acted inconsistently with its obligations as model litigant. This submission also fails. The appellant submitted in writing that the issue of physical injury being ‘in play’ at trial, it was unfair of the respondent simply to reject the claims on the basis of an invitation to find work‑caused physical injury:
This is inconsistent with a compensating authority required, even at trial, to do more than consult its own interests and with a model litigant.
We have already discussed the adversarial role of a compensating authority at trial and our consequent acceptance that the respondent’s forensic response to the appellant’s announced case was unremarkable. As to the respondent’s obligation to act as a model litigant, it is difficult to see that this accusation amounted to anything more than a rhetorical flourish attached to those rejected arguments.
Calligeros DPJ considered this complaint in detail.[42] His Honour analysed carefully the obligations attending upon the model litigant, primarily by reference (necessarily by analogy) to the Commonwealth Model Litigant Policy. He concluded:[43]
The basis of the complaint made about the respondent in this case is relatively narrow. Mr Warren submitted the respondent should not have been permitted to contend that Ms Brown had suffered a brain injury after contending otherwise by determination and in its original SFIC. That complaint does not come within any of the Commonwealth model litigant obligations set out above. More importantly, and for the reasons already given, Ms Brown was afforded procedural fairness and the position taken by the respondent in its closing submissions had been foreshadowed in its Revised SFIC.
(Footnote omitted)
[42] [2023] SAET 32.
[43] [2023] SAET 32 at [91].
The present appeal is limited to a question of law. Any genuine complaint that it was incumbent on the Tribunal to find that the respondent had breached its obligations as model litigant required proper articulation of the obligation said to have been breached and the utility of such a complaint on the appeal. This Court takes the obligation of the Crown to act as a model litigant seriously.[44] That is a function of the responsibilities of the Attorney-General as first law officer of the Crown. However, that does not mean that the cry of ‘model litigant’ can simply be deployed against a Crown agency to support a contention that it has some special procedural obligation, enforceable within the litigation.
[44] See Kenny v South Australia (1987) 46 SASR 268 at 273 (King CJ).
First, if a party asserts, in any context, a deficiency in model litigant behaviour on the part of an agency of the Crown, it would be expected that they would locate that deficiency in the accepted expressions of the obligation. In the situation of the Crown in right of the State of South Australia, the Crown Solicitor’s Legal Bulletin No. 2, Issued on 10 June 2011 by the then Crown Solicitor and later judge of this Court, the Honourable Greg Parker, is recognised as an authoritative statement.
The appellant did not rely on this document on this appeal. Neither did she engage with the analysis of Calligeros DPJ in the Full Bench judgment. More fundamentally, she did not explain the utility of this complaint, unparticularised as it was, to her appeal on a question of law. The complaint seems merely to be directed to adding rhetorical force to the broader complaint, which we have rejected, of procedural unfairness arising from the posture taken by the respondent with respect to the evidence of a brain injury.
As Heydon J observed in ASIC v Hellicar:[45]
The Solicitor-General for the Commonwealth correctly submitted that the duty to act as a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act fairly, with complete propriety and in accordance with the highest professional standards, but within the same procedural rules as govern all litigants. But the procedural rules are not modified against model litigants – they apply uniformly.
[45] (2012) 247 CLR 345 at [240].
Further, as Perram J observed in Dunkerley v Comcare:[46]
In any event, a breach of the model litigant requirements has no consequences in terms of civil litigation. Such a breach may be relevant to other inquiries, such as discipline, but it is not relevant to the case in which the breach is said to arise: Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328 at 357 [110] (FC); Croker v Commonwealth [2011] FCAFC 25 at [19].
[46] [2015] FCA 392 at [26].
Insofar as the appellant maintained a complaint to the effect that the respondent was in breach of its obligations as model litigant, the complaint is without utility or merit.
Conclusion
As identified above, the trial judge made the following finding:[47]
I find that Ms Brown’s incapacity for work and need for medical treatment is the result of a combination of things: a brain injury; and a conversion disorder and other psychological issues that are partly caused by the brain injury, partly caused by emotional stressors related to the soccer ball incident and its aftermath, and partly caused by other stressors, such as the lingering consequences of the 2017 motor vehicle accident.
[47] [2022] SAET 107 at [211].
This did not go so far as to find that the appellant’s employment was a significant contributing cause of the brain injury or of the Conversion Disorder as found, as required by ss 7(2)(a) and (b) of the RTW Act. Those questions were not litigated. Had they been in issue, it is possible that findings of compensability might have been made. That creates no unfairness in the result. As Calligeros DPJ observed, findings of fact are made in civil cases to resolve disputes on the balance of probabilities, by reference to the evidence adduced and the arguments advanced.[48] However, as the trial judge noted in connection with the claims for weekly payments and past and ongoing medical expenses:[49]
Ms Brown made a tactical decision to prosecute her case on the basis that her incapacity for work and need for medical treatment were as a result of, and only as a result of, a pure psychiatric injury that was caused by the soccer ball incident. I am not persuaded to the requisite degree that she has made out that case.
[48] [2023] SAET 32 at [81].
[49] [2022] SAET 107 at [213].
There was no error in this conclusion. In the circumstances of the appellant’s and respondent’s conduct on the Tribunal’s review of the appellant’s rejected claim for entitlements to weekly payments and medical expenses, the Tribunal was not required to determine whether the appellant was entitled to weekly payments and medical expenses on the basis that the appellant had sustained a work-caused physical injury or psychiatric complications as a result of a work-caused physical injury.
The appellant’s present complaints arise only from the forensic choices she made at trial. While we grant leave to appeal, we dismiss the appeal.