Dang v Electronic Motor Rewind Service Pty Ltd
[2000] WASCA 83
•3 APRIL 2000
DANG -v- ELECTRONIC MOTOR REWIND SERVICE PTY LTD [2000] WASCA 83
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 83 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:67/1999 | 16 MARCH 2000 | |
| Coram: | PIDGEON J WALLWORK J MILLER J | 3/04/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | TAN KIET DANG ELECTRONIC MOTOR REWIND SERVICE PTY LTD |
Catchwords: | Workers' compensation Review of weekly payments Role of Review Officer Whether officer should have drawn adverse conclusion from applicant's appearance Procedural fairness |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 84 |
Case References: | Blight v Vagg, unreported; FCt SCt of WA; Library No 980551; 23 September 1998 Dunn v Maritime Services Board, unreported; SCt of NSW; CA 40435/97; 9 June 1998 GIO of NSW v Bailey (1992) 27 NSWLR 304 Stojanovski v Gheiti, unreported; NSW Court of Appeal; No 40715 of 1995; 14 May 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DANG -v- ELECTRONIC MOTOR REWIND SERVICE PTY LTD [2000] WASCA 83 CORAM : PIDGEON J
- WALLWORK J
MILLER J
- Appellant
AND
ELECTRONIC MOTOR REWIND SERVICE PTY LTD
Respondent
Catchwords:
Workers' compensation - Review of weekly payments - Role of Review Officer - Whether officer should have drawn adverse conclusion from applicant's appearance - Procedural fairness
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 84
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr K S Pratt
Respondent : Mr E A Panetta
Solicitors:
Appellant : Trewin Norman & Co
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Blight v Vagg, unreported; FCt SCt of WA; Library No 980551; 23 September 1998
Dunn v Maritime Services Board, unreported; SCt of NSW; CA 40435/97; 9 June 1998
GIO of NSW v Bailey (1992) 27 NSWLR 304
Case(s) also cited:
Stojanovski v Gheiti, unreported; NSW Court of Appeal; No 40715 of 1995; 14 May 1996
(Page 3)
1 PIDGEON J: I have read in draft the reasons to be published by Miller J. I agree with those reasons and would dismiss the appeal.
2 WALLWORK J: I agree with the reasons for judgment of Miller J and with the orders proposed by his Honour.
3 MILLER J: This is an appeal against a decision of the Compensation Magistrate's Court on a question of law, pursuant to s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). The single ground of appeal is framed in the following terms:
"2. The Compensation Magistrate erred, in law, by failing to find that the Review Officer had failed to advise the appellant that he intended to rely, in part, on his presentation of the review … thereby precluding the appellant's ability to give evidence in an attempt to persuade the Review Officer to a contrary view. Accordingly, the Review Officer failed to afford natural justice to the appellant and the learned Compensation Magistrate ought to have so found."
4 The history of the matter is that the respondent lodged an application with the Conciliation and Review Directorate WorkCover Western Australia seeking a review of the appellant's weekly payments pursuant to s 62 of the Act. The respondent sought to discontinue the appellant's weekly payments in relation to a condition of bilateral elbow epicondylitis. The application was made on the basis that the appellant's disability no longer prevented him from returning to work. In support of the application the respondent relied on a number of medical reports and a video surveillance film, the effect of which was said to be that the appellant was grossly exaggerating his symptoms of epicondylitis.
5 A review by a Review Officer is regulated by the provisions of Division 3 of Part IIIA of the Act, and s 84ZA directs the Review Officer to act "fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise". He is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent. Pursuant to s 84ZD of the Act, the Review Officer is not bound by rules of evidence but may inform himself on any matter in such manner as he thinks fit. A party is entitled to be represented by a legal practitioner at proceedings before a Review
(Page 4)
Officer only if all parties to the dispute agree or if the Review Officer is of the opinion that a question of law is raised, or is likely to be raised or argued at the proceedings, and allows legal practitioners to appear and be heard (s 84ZE). In the present case, no legal practitioners appeared before the Review Officer. We were informed that proceedings before the Review Officer are essentially in the nature of a round table conference at which the appellant would have been seated in close proximity to the review officer.
6 At the conclusion of the review, the Review Officer gave lengthy reasons for concluding that the appellant was fit to return to his pre-accident duties and was thereby disqualified from further receipt of weekly payments. There was material before the Review Officer in the form of medical reports of a Dr Andrew Marsden, an occupational physician and Mr Colin Hooker, a consultant orthopaedic surgeon to the effect that the appellant was exaggerating his symptoms. Dr Marsden, in a report dated 7 May 1998, was quite critical of the appellant. The Review Officer quoted the following passage from that report in his reasons:
"In terms of his extensor tenosynovitis, from my point of view he could be working now as indicated in my previous report.
In terms of his overall presentation, he has a capacity to return to work. The difficulty for me in these circumstances is that I believe it is difficult to assess the true level of incapacity arising out of the motor vehicle accident or out of his work site injury, because of the significant functional overlay exaggeration or plain malingering. I very rarely write a report as strongly worded as this, but this is my opinion with respect to this man."
7 The Review Officer also quoted from a report of Dr Marsden dated 8 May 1998 which the doctor had written after reviewing a 40 minute video film of the applicant shown on various dates in March 1998. The passage quoted was in the following terms:
"In my opinion the surveillance film confirms my expressed opinion in my latest report that this man is exaggerating his response for the benefit of his local medical practitioner and for me on formal review, but in my opinion he is exaggerating and malingering and the surveillance film confirms this impression.
On the basis of the surveillance film, it is my opinion that he is fit to return to work in his normal duties, and that takes into
(Page 5)
- account the findings of my clinical examination on the 7 May 1998 as well."
8 It appears that the video tape was produced at the review, although whether it was shown then or reviewed by the Review Officer privately is unclear.
9 The Review Officer also placed reliance upon a report of Dr Hooker dated 20 March 1998 in which that doctor expressed the view that the appellant's symptoms had been increasingly, and now grossly, overshadowed by the development of a major functional factor which was the predominant cause of his continuing condition. After viewing the video surveillance film, Dr Hooker reported on 23 April 1998 that it was his impression that the appellant was "probably exaggerating his condition at least to some degree".
10 The Review Officer referred in his reasons to reports of Drs Berrigan and Cheah, which he said did not directly address the capacity of the appellant in relation to his symptoms of epicondylitis, and concluded that because Dr Marsden in his report had addressed the appellant's capacity for work and made clear his opinion as to the worker's presentation, it was the report (sic reports) of Dr Marsden which were to be preferred to those of the other medical practitioners. The Review Officer concluded his reasons by saying:
"I have also seen the video film and while I have relied to a greater extent on the views of Dr Marsden and to a lesser extent on the general observations of Dr Hooker it is evidence from the film taken of Mr Dang particularly on 19 March 1998, that he has no obvious ongoing restrictions from the disability for which he has been receiving weekly payments from the applicant employer.
It is also the case that his appearance and manner in the video film is in striking contrast to his presentation at review. I find that the worker has a capacity to return to his pre-accident duties.
I find he is no longer incapacitated by the arm injuries he suffered with in the employment with the applicant. I therefore order that the worker's weekly payments shall be discontinued as from 7 August 1998, the date of this order."
(Page 6)
11 From the decision of the Review Officer the appellant appealed to the Compensation Magistrate's Court pursuant to s 84ZN of the Act, contending that there was a question of law involved (an appeal not otherwise being open). A number of grounds of appeal were advanced, but relevantly to this appeal it was contended that the Review Officer had erred in law by failing to advise the appellant that he intended to rely in part upon the appellant's presentation at the review and had thereby precluded the appellant's ability to give evidence in an attempt to persuade the Review Officer to a contrary view. The matter came before Mr P G Cockram SM, who delivered reasons on 9 December 1998 dismissing the appeal. Insofar as the relevant ground of appeal was concerned, the learned Magistrate reached the following conclusion:
"My understanding of the passage quoted from the review officer's reasons is that the presentation of the appellant at the hearing was in accordance with his presentation to the various medical practitioners. That presentation was at variance, so it would seem, with his presentation in the surveillance film. It is not suggested that the appellant was denied the chance to give evidence and comment on that variation. In those circumstances I fail to see how the review officer can be criticised for the quoted comment. Further, and in any event, I find it difficult to accept that someone in the position of the appellant would not be aware that his presentation at the hearing would not be noticed and possibly taken into account.
For the above reason this ground of appeal does not demonstrate any error of law on the part of the review officer."
- It is from the decision of the Compensation Magistrate that the appeal comes before the Court.
12 The appellant contends that the decision in Blight v Vagg, unreported; FCt SCt of WA; Library No 980551; 23 September 1998 supports the proposition that in the present case the appellant was denied natural justice by reason of the Review Officer's reliance upon his presentation at review. Reference was made to the principles set out by Kennedy J (at 31 - 32), where his Honour said:
"The principle applicable in a case where a judge contemplates making use of his observations of a party outside the witness box during the course of a trial was considered by King CJ in Angaston & District Hospital v Thamm [1987] 47 SASR 177. He said, at 178-179:
(Page 7)
- 'The principle of law which was expressed in Minagall v Ayres [1966] SASR 151 and which was accepted by the Judges who constituted the Court in Jobst v Inglis (1986) 41 SASR 399, is expressed in a passage in the judgment of Napier CJ, with whom Travers J agreed, at 156 of the report. It is as follows:
"But, while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as 'fair play and common sense'. The condition upon which a Judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it."
The rule, as appears from the passage cited, is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a Judge might make of a party during the course of the trial outside the witness box. Something will depend, no doubt, on the circumstances of the particular case and upon the significance of the particular observations. It is clear, however, that where the Judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using themin the courseof his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way.'
See also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, per Kirby J at 309-317 and per Clarke JA at 322-325."
13 In Blight v Vagg, Kennedy J considered that on the facts of the case it would have been advisable for the trial Judge to have drawn to the
(Page 8)
- attention of counsel observations that he made of a party seated at the rear of the courtroom, but in the circumstances it was considered that failure to do so did not warrant any intervention by the Court and did not affect the trial Judge's findings. His Honour said (at 32):
"It is apparent that his Honour's observations of Mrs Blight in the back of the court were merely confirmatory of her behaviour in the witness box, upon which she was cross-examined, and I do not consider that, having regard to his Honour's other observations of Mrs Blight and the contents of the video, his observations of her in the back of the court had any significant influence upon his decision of the case."
"Justice is not truly blind. A decision-maker (whether judge or magistrate), sitting in a courtroom is not blinkered. The decision-maker observes the drama which his played out in the well of the courtroom. As Jacobs J remarked in Jobst parties and witnesses frequently sit in court and grimace, frown, laugh and otherwise display facial and body language which it is virtually impossible for the decision-maker to fail to see.
…
The appearance of a witness as he or she approaches the witness-box may properly be taken into account where agility and ease of movement are in contest. To require otherwise would be to require a division of the mind quite unrealistic in the case of a jury and equally artificial for judicial officers.
…
So long as the conventional theory reigns that observations of a party or other witness are an important and legitimate element in curial decision-making, it is appropriate to permit at least the observations to be taken into account which occur inside the courtroom. However this conclusion leaves the question of notification to the parties and their representatives where the observations have occurred, as here, outside the actual period of the trial and when the person being observed is at the back of the court behind the representatives of the parties who thus have no opportunity to observe the features in question and by
(Page 9)
- interrogation, evidence or advocacy, to persuade the decision-maker to a different view about them than has been formed;
7. So far as the duty to alert the parties or their representatives of such matters is concerned, it involves, as Davidson J acknowledged in Hodge v Williams (at 492; 203), the drawing of 'a very fine line between what is proper and improper'. Or between what is essential and unnecessary. Inevitably, the point at which that line will be drawn depends upon the circumstances of the case. Matters relevant will include the opportunity which the parties have had to respond to the considerations in question; the significance of those considerations for the decision under challenge; and the apparent importance which the decision-maker attaches to the undisclosed material in reaching the decision."
15 In Dunn v Maritime Services Board, unreported; SCt of NSW; CA 40435/97; 9 June 1998, the trial Judge had in his reasons made reference to the applicant's movements as he had approached the witness box from the vicinity of the bar table, concluding that his gait was such as was intended to mislead the Court. The trial Judge had not drawn her observation of the applicant's gait to the intention of counsel and there was thus no opportunity for it to be dealt with in evidence or submission, although the question of the applicant's limp was canvassed in submissions. Stein JA made the following observations about the principles to be applied:
"In Videski v Australian Iron & Steel Pty Ltd (unreported, Court of Appeal, 17 June 1993) Cripps JA discussed the obligations of judges when making observations of witnesses outside the witness box and out of sight of the advocates. He stated that in Government Insurance Office v Gailey (1992) 27 NSWLR 304, the court expressed the view that it was a fundamental rule that a case should be decided upon evidence which all parties had the opportunity to question. In Videski's case, however, what the judge saw was observable to everyone else in the Court, including counsel. I am not prepared to assume, absent evidence, that what O'Toole CCJ saw was not also observable by the advocates.
The second reason why the appellant's point is not a good one is the question of its significance for the decision. In Angaston &
(Page 10)
- District Hospital v Thamm (1987) 47 SASR 177, King CJ said that when the judge makes observations of a party, which are not observable by counsel, it is only when the use has a significant influence upon the decision that she or he is bound to disclose the matter. This authority was followed in Bailey and Videski."
16 In the present case it is apparent that the Review Officer's observations of the appellant at the review were merely confirmatory of the opinions of medical officers which he had accepted, and in particular the opinions of Dr Marsden, to which I have referred. The observation that the appellant's appearance and manner in the video film were in striking contrast to his presentation at review echo Dr Marsden's conclusions about the contrast between what he saw on the video film and how the appellant presented before him. Because of this, it cannot be said that the Review Officer's observations could have had any significant influence upon his decision at review. Furthermore, the appellant was seated before the Review Officer in circumstances where both he and his representative (a layman) must have been aware that he was in full view of the Review Officer and that his appearance that day was a factor likely to be taken into account.
17 However, the Court should make it clear that in the ordinary course of events, when intending to rely upon observations of an applicant who has appeared before him at a review, a Review Officer should take the precaution of alerting either the applicant or his representative to any aspect of the applicant's presentation upon which he intends to rely. The principles set out in the cases to which I have referred should be borne in mind and followed by review officers conducting reviews in accordance with Division 3 of Part IIIA of the Act.
18 For the reasons which I have expressed, I do not, however, consider the appellant to have made out the ground of appeal advanced before this Court and the appeal will be dismissed.
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