Dallimore v Return to Work Corporation of South Australia (No 2)
[2021] SASCFC 8
•4 February 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DALLIMORE v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA (No 2)
[2021] SASCFC 8
Reasons for Decision of The Full Court
(The Honourable Justice Peek, the Honourable Justice Stanley and the Honourable Auxiliary Justice David)
4 February 2021
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - NATURE AND SCOPE OF APPEAL AND REVIEW
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - JURISDICTION OF COURTS, TRIBUNALS, COMMISSIONS AND BOARDS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION
On 4 December 2020 the Full Court published its reasons for allowing the appeal in this matter. The principal judgment was delivered by Stanley J (with whom Peek J and David AJ agreed). The appeal concerned the proper interpretation of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed.) (the AMA Guides). Specifically the appeal concerned the construction of Table 4-6 of the AMA Guides in the context of Chapters 3 and 4 of the Guides.
In this Court Stanley J adopted an interpretation of the AMA Guides not adopted by the deputy president at first instance. However, Stanley J did not wholly adopt the interpretation of the Guides adopted by the Full Bench. Nonetheless, Stanley J concluded that contrary to the approach taken by the deputy president, permanent impairment due to pulmonary hypertension cannot be rated under the AMA Guides where the PAP reading is less than 40 mmHg. However Stanley J noted that that the deputy president found that the appellant suffered a 29 per cent whole person impairment (WPI) due to pulmonary hypertension. Relevantly, his Honour observed that the determination of a level of impairment is a question of fact.
Consequently the Court received submissions from the parties on the issues of remission and costs. In addition, the respondent brought an interlocutory application seeking orders setting aside the orders of the Full Court made on 3 December 2020 [sic]. In the alternative, the respondent sought orders varying the Full Court orders to remit the assessment of WPI for the appellant’s pulmonary hypertension for determination in accordance with the reasons of the Court.
The Court called the matter back on for hearing on the disposition of the appeal and the respondent’s interlocutory application.
Held (per curiam):
1. The appeals to the Full Bench and this Court are confined to a question of law. It is not within the jurisdiction of this Court, or the Full Bench, to decide questions of fact.
2. It is within the limited jurisdiction of the Full Bench and this Court to decide the proper construction of the AMA Guides. It is not within that limited jurisdiction for the Full Bench or the Court to decide Mr Dallimore’s WPI for pulmonary hypertension. The determination of the question of the level of Mr Dallimore’s WPI for pulmonary hypertension must be remitted to the deputy president.
3. It is unnecessary to consider the submissions of the parties in relation to the question of whether the Court should re-open the appeal or set aside the orders made. Those submissions were based on a misunderstanding.
4. While there is a presumption that costs will follow the event, the existence of the wide discretion as to costs means that the Court can depart from that working supposition where good reason exists to do so.
5. In this case we consider there is good reason to depart from the presumption in favour of costs being awarded to the successful party to proceedings. At issue was the proper interpretation of the AMA Guides. That is a matter of particular importance to the respondent and those persons in the general public who may come to bring a claim for compensation for WPI.
6. The respondent is to pay the appellant’s costs of and incidental to the appeal.
Dallimore v Return to Work Corporation of South Australia [2020] SASCFC 115, discussed.
HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311; Frkic v Return to Work Corporation of South Australia (No. 2) [2020] SASCFC 59; Dallimore v RTWSA [2018] SAET 67; Return to Work Corporation of South Australia v Dallimore [2020] SAET 77, considered.
DALLIMORE v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA (No 2)
[2021] SASCFC 8
Full Court: Peek and Stanley JJ and David AJ
THE COURT:
Introduction
On 4 December 2020 the Full Court published its reasons for allowing the appeal in this matter. The principal judgment was delivered by Stanley J. The appeal concerned the proper interpretation of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed.) (the AMA Guides). Specifically the appeal concerned the construction of Table 4-6 of the AMA Guides in the context of Chapters 3 and 4 of the Guides.
The appeal came to this Court by permission from a decision of the Full Bench of the South Australian Employment Court. The Full Bench had allowed an appeal from a decision of a deputy president of the South Australian Employment Tribunal who had found Mr Dallimore suffered a 29 per cent whole person impairment (WPI) due to pulmonary hypertension. The Full Bench adopted a different construction of the AMA Guides from that adopted by the deputy president. It set aside the deputy president’s assessment of WPI on account of pulmonary hypertension and in lieu thereof determined that Mr Dallimore did not have a rateable WPI for pulmonary hypertension. The Full Bench also set aside the deputy president’s ruling combining various impairments. The matter was remitted by the Full Bench to the deputy president to make further findings and to deal with the application of s 43(6) of the repealed Act and the issue of combination in conformity with its reasons.
In this Court Stanley J adopted an interpretation of the AMA Guides not adopted by the deputy president at first instance. However, Stanley J did not wholly adopt the interpretation of the Guides adopted by the Full Bench. Nonetheless, Stanley J concluded that contrary to the approach taken by the deputy president, permanent impairment due to pulmonary hypertension cannot be rated under the AMA Guides where the PAP reading is less than 40 mmHg. However Stanley J noted that that the deputy president found that the appellant suffered a 29 per cent WPI due to pulmonary hypertension.[1] Relevantly, his Honour observed that the determination of a level of impairment is a question of fact.[2] Stanley J said:[3]
The appeal to the Full Bench of the South Australian Employment Court from the deputy president’s decision, like the appeal to this Court, is confined to a question of law. It is not open to this Court on appeal to interfere with the factual finding made as to the level of impairment suffered by the appellant due to pulmonary hypertension. Neither was it open to the Full Bench to do so. Accordingly, I would allow the appeal. I would set aside the determination and orders made by the Full Bench that set aside the deputy president’s assessment of 29 per cent WPI on account of pulmonary hypertension and determined that the appellant does not have a rateable WPI for pulmonary hypertension. I would hear the parties on the question of whether it is necessary for this matter to be remitted either to the Full Bench or the deputy president and the orders that should be made given my reasons for judgment. I would hear the parties as to costs.
[1] [2018] SAET 67 at [78].
[2] HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 at [24]; Frkic v Return to Work Corporation of South Australia (No. 2) [2020] SASCFC 59 at [28].
[3] [2020] SASCFC 115 at [54].
Application to set aside the orders made on 4 December 2020
Consequently the Court received submissions from the parties on the issues of remission and costs. In addition, the respondent brought an interlocutory application seeking orders setting aside the orders of the Full Court made on 3 December 2020 [sic].[4] In the alternative, the respondent sought orders varying the Full Court orders to remit the assessment of WPI for the appellant’s pulmonary hypertension for determination in accordance with the reasons of the Court. The respondent also sought directions for the filing or hearing of submissions in respect of the interlocutory application. The application was supported by an affidavit of Maria Billias deposed on 11 December 2020. That affidavit included an outline of proposed submissions of the respondent on the interlocutory application.
[4] The Court did not make any orders on 3 December 2020. The Court delivered reasons for judgment on 4 December 2020 and made orders allowing the appeal and setting aside the determination of the Full Bench. The Court directed the parties to make further submissions on the question of whether it is necessary for the matter to be remitted either to the Full Bench or the deputy president and the orders that should be made given the reasons for judgment, and the question of costs.
The Court called the matter back on for hearing on the disposition of the appeal and the respondent’s interlocutory application.
The respondent’s interlocutory application is predicated on the proposition that the Court allows the deputy president’s assessment of 29 per cent WPI to stand. The respondent submits that the orders made by the Court on 4 December 2020 had the effect of restoring the determination of the deputy president despite the fact the Court held that the determination was based on a misconstruction of the Guides and that it was not open under the Guides, properly construed, to make such a determination. The respondent contended that it was not correct for the Court to conclude that because the deputy president’s determination that the appellant had a 29 per cent WPI due to pulmonary hypertension was a finding of fact, it was not open to the Full Bench to interfere. Moreover, the respondent contended that this was not an issue joined between the parties on the appeals either to the Full Bench or to this Court.
It is apparent that the interlocutory application is based on a misunderstanding of the reasons of Stanley J set out above.[5] His Honour did not decide that the assessment of Mr Dallimore’s WPI for pulmonary hypertension was to stand. Rather, having decided the proper interpretation of the AMA Guides, his Honour’s reasons were confined to the question of whether this Court could substitute its finding of fact for that made by the deputy president.
[5] [2020] SASCFC 115 at [54].
The impugned reasons of Stanley J are concerned with the jurisdiction and power of the Full Bench and this Court. An appeal to this Court, like an appeal to the Full Bench, is not at large. The appeals to the Full Bench and this Court are confined to a question of law. It is not within the jurisdiction of this Court, or the Full Bench, to decide questions of fact. The proper interpretation of the AMA Guides is a question of law. The determination of a level of impairment is a question of fact.[6] It is within the limited jurisdiction of the Full Bench and this Court to decide the proper construction of the AMA Guides. It is not within that limited jurisdiction for the Full Bench or the Court to decide Mr Dallimore’s WPI for pulmonary hypertension. Accordingly, it was open to the Full Bench, having decided the proper construction of the AMA Guides, to conclude that the deputy president had erred in assessing Mr Dallimore’s WPI for pulmonary hypertension otherwise than in accordance with the proper construction of the Guides, and set aside the orders he made in that regard. However, it was not open to the Full Bench to determine Mr Dallimore’s level of impairment. That is a question of fact and beyond its jurisdiction.
[6] HJ Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311 at [24].
Likewise, this Court’s jurisdiction on the hearing of an appeal from the Full Bench is limited to a question of law. On an appeal from the Full Bench this Court lacks jurisdiction to determine questions of fact. It is not open to this Court, any more than it was to the Full Bench, to decide the level of Mr Dallimore’s WPI. That is a matter that can only be decided by the deputy president.
The determination of the question of the level of Mr Dallimore’s WPI for pulmonary hypertension must be remitted to the deputy president for that purpose.
Accordingly, it is unnecessary to consider the submissions of the parties in relation to the question of whether the Court should re-open the appeal or set aside the orders made. Those submissions were based on a misunderstanding.
Costs
The question of the costs of the appeal to this Court is a matter of discretion. The Court is conferred with a broad discretion, the only limit on which is that the discretion must be exercised by reference to matters connected with the litigation. On this appeal while the Court will allow the appeal, the appellant’s claim has not succeeded. While there is a presumption that costs will follow the event, the existence of the wide discretion to which we refer means that the Court can depart from that working supposition where good reason exists to do so. In this case we consider there is good reason to depart from the presumption in favour of costs being awarded to the successful party to proceedings. At issue was the proper interpretation of the AMA Guides. That is a matter of particular importance to the respondent and those persons in the general public who may come to bring a claim for compensation for WPI. While Mr Dallimore was pursuing in this Court his own private interests, the judgment of the Court had broader significance. Moreover, he pursued his appeal in circumstances where there were two judgments of the Full Bench on his claim which arrived at contrary interpretations of the AMA Guides. It was important that this Court authoritatively stated the proper interpretation. In these circumstances we consider it is appropriate to order that the respondent pay the appellant’s costs of and incidental to the appeal.
Conclusion
Having heard from the parties we consider that the appropriate orders are:
1.that the appeal be allowed;
2.that the order of the Full Bench determining that Mr Dallimore does not have a rateable WPI for pulmonary hypertension be set aside, but otherwise leaving intact the other orders made by the Full Bench;
3.that the matter be remitted to the deputy president for him to determine the level of Mr Dallimore’s WPI for pulmonary hypertension in accordance with the reasons of this Court; and
4.that the respondent pay the appellant his costs of and incidental to this appeal.
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