Brown v Metro Meat International Ltd
[2000] WASCA 123
•11 MAY 2000
BROWN -v- METRO MEAT INTERNATIONAL LTD [2000] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 123 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:155/1999 | 24 MARCH 2000 | |
| Coram: | KENNEDY J PARKER J WHEELER J | 11/05/00 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Decision of Compensation Magistrate set aside Appeal to Compensation Magistrate's Court dismissed | ||
| PDF Version |
| Parties: | APRIL GAY BROWN METRO MEAT INTERNATIONAL LTD |
Catchwords: | Workers' compensation Appeal from decision of Review Officer to Compensation Magistrate's Court Whether question of law involved in appeal to Magistrate Discretionary decision Evidence Disclosure of video surveillance material Whether party should be compelled to disclose prior to hearing Fairness Credit Prejudice |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 62, s 71, s 84ZA(2), s 84ZB(3), s 84ZI, s 84ZN, s 84ZW |
Case References: | Khan v Armaguard [1994] 1 WLR 1204 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Forsayth NL v Australasian Gold Mines NL (No 1) (1992) 7 WAR 549 Howard Porter 1936 Pty Ltd v Donnelly, unreported; Compensation Magistrate (CM 56/97); 4 March 1998 Kuligowski v Metrobus, unreported; Compensation Magistrate (CM 69/96); 11 March 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BROWN -v- METRO MEAT INTERNATIONAL LTD [2000] WASCA 123 CORAM : KENNEDY J
- PARKER J
WHEELER J
- Appellant
AND
METRO MEAT INTERNATIONAL LTD
Respondent
Catchwords:
Workers' compensation - Appeal from decision of Review Officer to Compensation Magistrate's Court - Whether question of law involved in appeal to Magistrate - Discretionary decision
Evidence - Disclosure of video surveillance material - Whether party should be compelled to disclose prior to hearing - Fairness - Credit - Prejudice
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 62, s 71, s 84ZA(2), s 84ZB(3), s 84ZI, s 84ZN, s 84ZW
(Page 2)
Result:
Decision of Compensation Magistrate set aside
Appeal to Compensation Magistrate's Court dismissed
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Mr T Lampropoulos
Solicitors:
Appellant : D'Angelo & Partners
Respondent : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Khan v Armaguard [1994] 1 WLR 1204
Case(s) also cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Forsayth NL v Australasian Gold Mines NL (No 1) (1992) 7 WAR 549
Howard Porter 1936 Pty Ltd v Donnelly, unreported; Compensation Magistrate (CM 56/97); 4 March 1998
Kuligowski v Metrobus, unreported; Compensation Magistrate (CM 69/96); 11 March 1997
(Page 3)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Wheeler J. I am entirely in agreement with those reasons and with the orders proposed.
2 PARKER J: I respectfully agree with the decision and reasons to be published by Wheeler J.
WHEELER J:
The Appeal
3 This is an appeal under s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") pursuant to leave granted by this Court on 20 October 1999.
4 The appeal is from a decision of a Compensation Magistrate's Court made under s 84ZN of the Act, which section deals with appeal from a decision of a Review Officer. The section relevantly provides:
(1) Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.
(2) A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a Compensation Magistrate's Court against the decision or order."
5 The relevant decisions of the Review Officer were made at a preliminary review hearing held on 31 December 1998, when the Review Officer ordered that the present respondent should forthwith provide the appellant and her general practitioner, Dr P Walkey, with an opportunity to view video surveillance film of the appellant taken by investigators employed by the respondent, and further decided that the respondent's application pursuant to s 71 of the Act should not be considered at the review hearing scheduled for 22 February 1999 together with the respondent's application pursuant to s 62 of the Act, but should be considered subsequent to that hearing.
(Page 4)
6 The Compensation Magistrate reversed both decisions. The present appellant appeals on a number of grounds; however, the ground which, in my view, is sufficient to dispose of this appeal is that in respect of both issues, there was no question of law "involved" in the purported appeal to the Compensation Magistrate's Court.
The Videotape
7 It appears that the appellant had at one time been diagnosed with Q Fever, which in the view of some medical experts had led to Chronic Fatigue Syndrome. It is a characteristic of Chronic Fatigue Syndrome that light exercise renders the sufferer incapacitated for some time - often up to several hours - so that the sufferer is unable to perform many sorts of ordinary activities. When examined in April 1998 by Professor Cohen, the appellant gave a description of herself as being essentially "an invalid with a severely limited capacity to participate in everyday work or pleasurable activities".
8 The respondent had caused video surveillance to be carried out on the appellant over a considerable period of time, extending from October 1997 to February 1998. There were almost 30 hours of videotape recording her movements. Viewing of that videotaped material caused Professor Cohen to reach the view that she had been "feigning her disabilities", while Dr Golledge concluded that "if any disability is present, it is of an extremely mild nature, not causing any significant incapacity …".
9 The appellant sought the opportunity to view the video surveillance material together with her general practitioner. The reasons put forward by the appellant were that it would be affording her "natural justice" to allow her to see the video prior to the review hearing and, although the transcript is not entirely clear on this point, it appears that she wished to explain whatever activities might be seen on the videotapes to her general practitioner and, perhaps, to those experts who had expressed views adverse to her.
10 The respondent argued that it would be prejudiced if the appellant were to see the video material as she would have the opportunity to "cut and tailor her evidence" prior to the review hearing; it further asserted that the general practitioner lacked expertise in the area of Chronic Fatigue Syndrome so that there would be no "benefit in the medical sense" from his viewing of that material. The respondent also asserted that there would be no prejudice to the appellant if the video was withheld from her,
(Page 5)
- since the material revealed her activities, about which she must necessarily have known.
11 After hearing argument and adjourning for a short time, the Review Officer gave what he described as extempore reasons for decision, adding that he reserved the "right to amend them should either party request them in writing". This is a reference to s 84ZI of the Act which provides that where requested within 14 days after a decision, the Review Officer is to give a party in writing findings of fact and reasons for decision. At the conclusion of the hearing before the Review Officer, the respondent's representative advised the Review Officer that the respondent would write to the Review Officer seeking written reasons.
12 In the extempore reasons, the Review Officer observed, correctly, that the power to require that a videotape be provided to the other party is (subject to questions of privilege which were not raised on this appeal) a discretionary decision and that, at bottom, the question was one of "overall fairness". The Review Officer observed that whatever Dr Walkey's expertise, and whatever view was ultimately taken of the weight to be placed upon his evidence, he had provided a report on his examination of the appellant which would have "little meaning" if he did not view the video material and comment on it.
13 The Review Officer referred to the issue of credibility, but thought that the significance of that issue had been lessened because both experts who had seen the video referred to the appellant's undertaking "strenuous activity". The Review Officer thought that it would therefore be difficult for the appellant to deny such activity. He considered that without a report from Dr Walkey following viewing and consideration of the video, the appellant would be prejudiced and therefore ordered that the video be released to her and to Dr Walkey.
14 The respondent's sole ground of appeal relied upon before the Compensation Magistrate was as follows:
"The Review Officer erred in law … because
1.1 the credibility of the [present appellant] is very much in issue on the [present respondent's] s 62 application. Providing the [appellant] and or her general medical practitioner with an opportunity to view the video surveillance evidence prior to the review hearing taking place will allow the [appellant] the opportunity to trim and cut her evidence to suit what appears in the video
(Page 6)
- evidence, thus irreparably prejudicing the case of the [respondent] and making an objective assessment of the credibility of the [appellant] impossible."
15 The most striking feature of this ground of appeal is that it does not purport to identify any consideration referred to by the Review Officer which was irrelevant, or a failure to refer to any relevant consideration. It does not focus on the legal issues involved in the exercise of the Review Officer's discretion at all, but merely restates the argument which the respondent put to the Review Officer. Having regard to even the abbreviated reasons of the Review Officer, delivered extempore, it is plain that it could not have been asserted by the respondent that the Review Officer failed to consider the matters set out in the ground of appeal. He plainly did so, but considered their significance to be weakened by the nature of the video material, and to be outweighed by potential prejudice to the appellant.
16 It is my view that merely to state the ground of appeal is sufficient to demonstrate that it contains no question of law. The appellant assures the court that the point was taken before the Compensation Magistrate that no question of law was involved in the ground of appeal. The Compensation Magistrate should have accepted it and declined to consider this matter further.
17 However, the respondent made a submission on this appeal which requires consideration. It is that whenever a decision results in unfairness to a party, there is necessarily an error of law, because s 84ZA imposes a duty upon the Review Officer, by subsection (2), to "act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise". That submission cannot be sustained in its pure form, since there are necessarily many cases in which whatever course is taken will result in a degree of unfairness to one or another of the parties. The respondent attempted to meet that difficulty by submitting that such error was demonstrated only where the decision was "unnecessarily" unfair; but this qualification creates more problems than it solves.
18 First, it serves to emphasise that what is involved is truly a discretionary decision about which reasonable minds may differ, even where reference is made to all relevant criteria. A discretionary decision reveals no error simply because a different decision was open or even preferable. Second, it draws attention to the other duties imposed upon the Review Officer and the tension which may exist in some cases
(Page 7)
- between acting "fairly" and acting economically, informally and quickly. In many cases, of which this may be one example, a decision which may be seen by a party as the "fairest" may also involve unacceptable delay or cost. In order to make its proposition good, the respondent is forced to argue that, where such tension exists, the overriding importance of "fairness" is such that considerations of speed and cost must be disregarded. There is no indication in the statute that the legislature intended this result. In my view, the respondent's submission based on s 84ZA(2) of the Act must fail.
19 For reasons which are not entirely clear, it appears that the argument before the Compensation Magistrate ranged over a number of issues which do not on their face appear to arise from the notice of appeal in respect of this part of the decision, which was apparently considered by the Compensation Magistrate. The alternative grounds of the appellant's appeal are to the effect that the Compensation Magistrate himself erred, in overturning the Review Officers' decision, in that, effectively, he failed to have regard to questions of fairness to the appellant. Had I been persuaded that there was a question of law involved in the appeal, I would have allowed the appellant's appeal on this basis.
20 The problem with the Compensation Magistrate's reasoning is perhaps revealed if one looks to one of the two reasons which seem to have been those underlying his view that the Review Officer misdirected himself. He considered that the decision of the Review Officer to allow the appellant to see the video surveillance "would result in unfairness to the [respondent] insofar as it may affect the [respondent's] right to legitimately attack the [appellant's] credibility". It is true that if a worker in such a situation is indeed untruthful, a malingerer, and prepared to give false evidence, there will be a real forensic advantage to an employer or insurer in ensuring that the worker does not view the video surveillance evidence before he or she give evidence. As was pointed out by the respondent, a worker who knows that such material is available, but has not seen it, has an incentive to be truthful where he or she otherwise might not, while the worker who persists in being untruthful in evidence can be exposed after he or she has committed to untruthful statements under cross-examination.
21 However, both the respondent, and, with respect, the Compensation Magistrate, appear to consider only this aspect of unfairness. It must be remembered that the question of whether the worker is untruthful and a malingerer is the very issue which the litigation (or under the Act, the application) is designed to determine. Questions of fairness in allowing
(Page 8)
- access to videotaped material cannot then be determined by assuming that only one answer to that question is possible.
22 If one assumes, on the contrary, that the worker is not untruthful and is not a malingerer, then he or she may suffer in some cases significant disadvantage from lack of access to the videotaped material. At the very least, an adjournment to allow the worker and/or the worker's medical advisers to view the videotape partway through the hearing, will result in delay and increased cost. Further, depending upon the nature of the disability which the worker alleges and the nature of the activities shown on the videotape, the worker may be able to give or call evidence which explains the activities carried out on the video; perhaps they were undertaken at a time after certain treatment had been undertaken, or perhaps they were followed by particularly severe renewed symptoms, for example. Generally, this difficulty will be able to be cured by adjournment, but on occasions it may not (if, for example, delay in making the video available means that evidence is lost or memories faded). It may be on occasion that medical advisers of the worker, particularly if assisted by comments or explanation from the worker, will form a view of the videotaped material different from that of the experts to whom the film has been shown by the employer or insurer. The worker will be disadvantaged if that material is not able to be put to the employer/insurer's witnesses during cross-examination. Such disadvantage is particularly likely during the course of litigation involving personal injury, where medical witnesses are generally called in a sequence which is convenient to them. Making the videotape available to the appellant only at a hearing would be likely, therefore, not only to require an adjournment, but also to require the respondent's medical practitioners to revisit the appellant's condition a considerable time after they had last seen her, and to review videotapes which they may (as Professor Cohen indicated in this case) be unwilling to view again. We are informed that in this jurisdiction experts are often "cross-examined" by letter, which may exacerbate such a difficulty.
23 Finally, disclosure of the videotaped material allows the worker and his or her advisers to consider the possibility of settlement without the spectre of some action which is forgotten or able to be innocently explained being produced at trial in a manner which has a disproportionate impact. It is not an answer to this last contention, that the worker "must know what she/he did", since very few individuals can recall every action undertaken over the period which usually precedes litigation of this kind; the 30 hours of material in this case extending over
(Page 9)
- many months may well contain a number of incidents which have been forgotten by the appellant.
24 I am aware of a number of decisions of the District Court of this State in which, in the analogous situation of an application pursuant to O 36 r 4 of the Rules of the Supreme Court, orders have been made that personal injury plaintiffs not have access to videotaped material. Such an order is certainly one which may be appropriately made, depending upon the circumstances of the individual case. However, there are, equally, many cases in which such an order would not be appropriate. Competing considerations are discussed in Khan v Armaguard [1994] 1 WLR 1204. Not all of the considerations discussed in Khan apply in respect of applications pursuant to the Act, since the ability, via appropriate interrogatories, to have a worker commit him or herself to a particular factual position does not appear to be available. However, a worker will generally have committed to at least some facts both in documentation associated with a claim and in discussions with medical experts, and the degree to which this is so will perhaps be a relevant factor. To the extent that those considerations are applicable, it appears to me that the Compensation Magistrate failed to consider what prejudice might flow to the appellant from non-disclosure of the videotaped material, so as to take that relevant consideration into account.
The Section 71/62 Issue
25 Section 62 of the Act provides that:
(1) Any weekly payment may be reviewed by the Directorate at the request either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the Directorate, having regard to the past or present condition of the worker, sees fit."
26 Section 71 provides that:
"Where … an insurer has paid compensation … to a worker … and that person was not lawfully entitled to that payment or to any part of the amount of that payment, the … insurer … may apply to the Directorate for an order that compensation … so paid be refunded …".
(Page 10)
27 The respondent sought to have its applications pursuant to both of these sections heard together. The Review Officer considered that it was more appropriate to deal with the matters by way of two applications. He expressed the view, in discussion with the parties' representatives (not in reasons for decision, which were neither given extempore nor requested at any time in written form) that if the s 62 application was successful then there could be conciliation and negotiation concerning any repayment pursuant to s 71, whereas a failure in relation to the s 62 application might have the effect that the respondent would take the view that the s 71 should not proceed. He considered that no party would be prejudiced by requiring the respondent to file a separate application to be dealt with later.
28 The ground of appeal in respect of this decision reads:
"The Review Officer erred in law in ordering that the [respondent's] section 71 hearing should not be heard following the [respondent's] section 62 application and that the [respondent] would need to issue a fresh section 71 application depending upon the outcome of its section 62 application."
29 This ground of appeal is even more defective than ground 1.1. It does not identify any error of any kind, let alone an error or issue of law. It is no more than a complaint about the result, for reasons which the respondent did not condescend to describe in its notice of appeal. As it complains of a discretionary decision, it would need to identify some irrelevant consideration wrongly considered, or some relevant consideration wrongly disregarded, or some other legal impropriety in the Review Officer's method of reasoning before it could appear to involve a question of law.
30 In considering this ground of appeal, the Compensation Magistrate took the view that there were three aspects of the Review Officer's reasoning, they being:
1 The Review Officer's view that two applications should not be heard at once because they involved two distinct sections of the Act.
2 That there was no prejudice to the [respondent] in dealing with the matter separately because if the [respondent] were successful pursuant to s 62, payments would cease; and
(Page 11)
- 3 the Review Officer's view that at that time the matters could not have been properly conciliated (conciliation being one of the apparent aims of the Act).
31 As to the first point, the Compensation Magistrate acknowledged that there were distinct sections of the Act, and acknowledged that although the evidence in relation to both applications was likely to be the same, the legal issues arising may not. As to the second point, the Compensation Magistrate noted that there might be prejudice to both parties by way of lost time and legal fees, notwithstanding that evidence taken for the s 62 application might be used for the s 71 application pursuant to s 84ZB(3) of the Act. His Worship does not appear to have adverted to the possibility that there might be prejudice arising from hearing two applications together if that resulted in a lengthening of the hearing in circumstances where, because of the failure of the s 62 application, the s 71 issue might not arise.
32 So far as point three was concerned, his Worship took the view that there was nothing to indicate that there was information before the Review Officer suggesting that the conciliation process had been flawed or adversely affected because the application to date had apparently sought to raise both s 62 and s 71. His Worship appears to have missed, with respect, the Review Officer's view (which may or may not be correct) that a s 62 application would be better conciliated if it were established as a fact that at some time the worker had ceased to be entitled to payments.
33 Having had regard to matters to which I have referred, the Compensation Magistrate took the view that "the Review Officer misdirected himself" when considering the future conduct of the proceedings.
34 It appears to me that, even if one disregards the form of the notice of appeal and has regard to the substance of the matters referred to by the Compensation Magistrate, there is nothing in those matters which reveals an error of law, or any issue of law involved in a review of the Review Officer's decision. It may well be that, balancing the various matters to which the Review Officer referred, it was open to a reasonable person to arrive at a different result, as the Compensation Magistrate in fact did, but this does not suffice to indicate any issue of law.
35 On the hearing of this appeal, the respondent sought to raise an issue of law by submitting that the Review Officer's view was based upon a "pedantic or idiosyncratic objection" to hearing certain applications
(Page 12)
- together, which was contrary to the express requirements of the statute. It does not appear to me that this submission was put to the Compensation Magistrate. The Compensation Magistrate does not appear to have taken that view but rather, appears to have based his reasoning upon the proposition that the Review Officer's dislike of hearing the applications together was based upon the fact that different legal issues might be involved.
36 In the absence of a ground of appeal, which suggested that the Review Officer perversely had regard to an irrelevant consideration (the meaning which I understand is to be attributed to the respondent's characterisation of "idiosyncratic"), and in the absence of any material in the Review Officer's exchange with the parties, which indicated that such was the case, the Compensation Magistrate was, in my view, in error in considering this ground of appeal.
Section 84ZI
37 Because it has been possible to dispose of this issue on other grounds, it has not been necessary to deal with the issue raised by the appellant concerning s 84ZI. Submissions in relation to this issue were to the effect that the Compensation Magistrate erred to the extent that he had regard to the Review Officers' failure to mention certain considerations, when no written reasons had been requested by the respondent.
38 It is, however, perhaps desirable to note that the Review Officer's duty to act expeditiously and economically is likely to mean that, at a hearing, parties will be advised only of his or her decision, without supporting reasons or will be told, at most, of the most significant factors which were taken into account. The Review Officer will often fail to mention either those factors which were obvious (because they formed the primary thrust of the submissions of one or other of the parties) or which were, although considered, thought to be of peripheral significance.
39 An allegation that a Review Officer failed to have regard to a relevant consideration will raise, generally, an issue of law. However, it should not be assumed, as appears to have been the case before us, that the case law relevant to inadequacy of judicial reasons can be applied unmodified where a party has not availed itself of its rights pursuant to s 84ZI to seek written reasons.
(Page 13)
Conclusion
40 For the reasons given, it is my view that the decision of the learned Compensation Magistrate should be set aside and that in lieu thereof there should be orders dismissing the appeal to the Compensation Magistrate's Court.
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