Dennis Ashley Faehrmann v Workers Rehabilitation & Compensation Corporation No. Scgrg-96-1907 Judgment No. 6355 Number of Pages 13 Workers' Compensation

[1997] SASC 6355

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, MATHESON AND BLEBY JJ

Workers' compensation - proceedings to obtain compensation - Review Officer on the third occasion on which the matter came before her, declined to further adjourn the review to enable the worker to produce evidence in support of the claim - Review Officer took the view that the worker had already had a reasonable opportunity to obtain that evidence, and had failed to act with reasonable expedition - the Review Officer made a determination then and there - there was no material of any substance before Review Officer in support of worker's claim that WorkCover Corporation had erred in rejecting worker's claim - Review Officer confirmed the decision of Corporation rejecting worker's claim - worker appealed to Workers Compensation Appeal Tribunal - Tribunal dismissed appeal - whether Tribunal erred in concluding Review Officer had properly exercised discretion in refusing an adjournment - principles of caseflow management - whether such principles applicable to review proceedings under the Act - Held that Review Officer miscarried in exercise of her discretion but the Tribunal was entitled to conclude, that notwithstanding any error on part of Review Officer, the appeal should be dismissed. Workers Rehabilitation and Compensation Act, 1986s53(3)(a), s88, s96 and s97, referred to. Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45; Grassby v The Queen (1989) 168 CLR 1; Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294, applied. Stead v State Government Insurance Commission (1986) 161 CLR 141, distinguished. United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156, discussed. Santos Ltd v Saunders (1988) 49 SASR 556; Simpson Ltd v Arciprests
(1989) 53 SASR 9, considered.

ADELAIDE, 7 Augus t 1997 (hearing), 5 September 1997 (decision)

#DATE 5:9:1997

#ADD 8:9:1997

Appellant:

Counsel: Mrs M E Shaw QC with Mr J Warren

Solicitors: Palios Meegan & Nicholson

Respondent:

Counsel: Mr T Stanley

Solicitors: Lawson Downs

Order: appeal dismissed.

DOYLE CJ

Introduction

This appeal raises the correctness of a decision of a Review Officer conducting a review under the Workers Rehabilitation and Compensation Act 1986 ("the Act"). The Review Officer, on the third occasion on which the matter came before her, declined to further adjourn the review to enable the worker to produce evidence in support of his claim. The Review Officer took the view that the worker had already had a reasonable opportunity to obtain that evidence, and had failed to act with reasonable expedition. The Review Officer proceeded to make a determination then and there. There was no material of any substance before the Review Officer in support of the worker's claim that the WorkCover Corporation ("the Corporation") had erred in rejecting the worker's claim. The Review Officer confirmed the decision of the Corporation rejecting the worker's claim. The worker appealed to the Workers Compensation Appeal Tribunal ("the Tribunal"). The worker complained of the refusal to grant an adjournment and of the decision confirming the Corporation's decision. The Tribunal dismissed that appeal. The appeal has now been brought to this court, on the grounds that the Tribunal erred in concluding that the Review Officer had properly exercised her discretion.

Facts

In August 1994 the worker fractured his leg. The worker made a claim for compensation in respect of that injury, and it was accepted that the injury was a compensable injury. In the course of his treatment the worker was referred to a pain clinic. Morphine and methadone were administered to him.

In July 1995 the worker suffered a cardiac arrest. The worker claimed that the "heart attack" was a compensable disability because, according to one of the claim forms, "morphine reduced causing withdrawal symptoms, resulting in heart attack". A medical report that was provided to the Corporation did not identify any link between the leg injury and the heart attack. For reasons that I need not go into the claim forms were submitted in July and September 1995.

In October and November 1995 an agent for the Corporation wrote to the worker's solicitors requesting that the worker sign an enclosed authority authorising "any medical expert" to provide information relating to the heart attack. There was no response to this request.

In December 1995, as a result of an examination by a doctor carried out at the request of the Corporation's agent, the agent received a medical report expressing the opinion that the heart condition had nothing to do with the treatment for the leg injury.

In January 1996 the Corporation, by its agent, rejected the claim. It relied upon s53(3)(a) of the Act and the failure of the worker to furnish information reasonably required, when the worker did not respond to the request for an authority to obtain medical reports. It also rejected the claim on the basis that the heart attack had not arisen out of or in the course of the worker's employment, and on the ground that that employment had not contributed to the heart attack.

By application dated 19 January 1996 the worker sought a review of that decision. The application for review did not, on its face, challenge the ground for rejection based upon s53(3)(a) of the Act, but seems to have been treated before the Review Officer as having done so. I consider that it should be so regarded.

On 13 March 1996 the matter came before a Review Officer for the first time. There was no expert evidence to support the claim that the heart attack was linked to the worker's employment. On that occasion the solicitor appearing for the worker informed the Review Officer that no arrangements had been made to obtain a medical opinion supporting the claim. Not surprisingly, the Review Officer was critical of the delay that had already occurred. It was more than two months since the rejection of the worker's claim. The Review Officer adjourned the matter to 17 April, indicating that she expected a medical report to be before her then.

I interpolate here that I understand the hearing to have been a "short hearing". I understand that such hearings are a form of management conference in the course of which the Review Officer identifies issues, the evidence likely to be put forward, and if there is a need for a full hearing with oral evidence, when that should be and how much time is likely to be required. Nevertheless, such a hearing remains part of the review process.

An appointment must have been made shortly after 17 March, for the worker to see Dr Craig, a cardiologist. He saw him on 26 March.

When the matter came back before the Review Officer on 17 April, for another short hearing, the Review Officer was told that the solicitors were waiting for a report from Dr Craig. The Review Officer asked a number of pertinent questions, including questions about the apparent failure to make any enquiries of the doctors who had been treating the worker. No information was forthcoming from the solicitor representing the worker. The Review Officer expressed understandable concern about the failure to make what seem obvious enquiries, and about the further delay. The Review Officer adjourned the matter to 7 May, indicating that if by then there was no material supporting the worker's claim she "might well feel disposed to hear some submissions made on behalf of the Corporation that I dispose of the matter on that day based on the material I have in front of me ...".

On 18 April Dr Craig wrote to the worker's solicitors. Not surprisingly, he said that before providing a report he would like to have information relating to the worker's treatment and information from the hospital at which he had been treated.

When the matter came on before the Review Officer on 7 May the solicitor who then appeared for the worker was under the mistaken impression that the medical report had not been received. He said that the solicitors were waiting for Dr Craig's report, and sought an adjournment. It seems clear that nothing had been done to follow up Dr Craig's requests for information, nor the pertinent enquiries made by the Review Officer at the previous hearing. When the Review Officer asked whether Dr Craig had been told the importance of the report being available by 7 May, the solicitor was unable to say.

The Review Officer had had enough. Referring to the warnings that she had previously issued, she said that she would proceed to determine the matter then and there. On the information before her she then determined that the worker had not established any link between his employment and the heart attack, and she confirmed the decision of the Corporation rejecting the claim.

The worker appealed to the Tribunal. In its decision the Tribunal was rightly critical of the conduct of the worker's claim. The Tribunal referred to the need for the Review Officer to be able to conduct proceedings efficiently. The Tribunal said that the worker was entitled to a reasonable opportunity to be heard, and under all of the circumstances that entitlement had been accorded. The Tribunal found that there was no error in the decision of the Review Officer not to grant a further adjournment before making a determination.

The Tribunal rejected a submission that the Review Officer should have required the worker to give evidence before making a determination. The Tribunal held that to the extent that the Review Officer was obliged to enquire into the matter herself, she had done so by urging the solicitors to follow the lines of enquiry that she identified.

The Tribunal also rejected a submission that, on the facts, the Review Officer had erred in finding that there was no causal link between the employment and the heart attack. As to that, I agree with the Tribunal.

The Tribunal made the further point that there had been no attempt by the worker before the Tribunal to show that the worker did in fact have evidence capable of supporting the worker's claim.

The Tribunal held that although the Review Officer had made no decision in relation to the ground of rejection based upon s53(3)(a) of the Act, if necessary it would have decided that the failure to sign the authority for the release of information was a failure to furnish information reasonably required by the Corporation.

The Legislation

The provisions of the Act that regulated the proceedings before the Review Officer are no longer in force. I will refer to them relatively briefly.

By s95 the worker has a right to apply for a review of the Corporation's decision. That review is to be conducted by a Review Officer: s96. The Review Officer is required to make "a fresh determination" of the matter: s96(2). Proceedings before a Review Officer involve a complete re-hearing, and are not by way of appeal: Santos Ltd v Saunders (1988) 49 SASR 556.

A Review Officer is not confined to the role of a judge in court proceedings. I agree generally with what Olsson J said on this in Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45 at 66. Each party must disclose to the Review Officer all relevant material: s96(1a). A Review Officer is not bound by the rules of evidence, and must act without regard to technicalities: s88(1). A Review Officer is under an affirmative obligation to "... act as expeditiously as possible": s88(4). A Review Officer must give to each party "...a reasonable opportunity to make submissions ... and ... a reasonable opportunity to call or give evidence ...": s89(2). A Review Officer has fairly wide powers to control the manner in which a hearing is conducted: s89.

On the other hand, an appeal to the Tribunal is an appeal of the traditional type in which error must be shown: Simpson Ltd v Arcipreste (1989) 53 SASR 9. However, the Tribunal is not bound by the rules of evidence and must also act without regard to technicalities: s88. The Tribunal has fairly wide powers to re-hear evidence taken before a Review Officer: s97(4d). In addition, on application by a party the Tribunal must re-hear evidence or hear further evidence under certain specified circumstances: s97(4e). Those circumstances include the presence of "some substantial reason for admitting the evidence in the interests of justice".

The Decision of the Review Officer

In my opinion the Review Officer had discharged any obligation cast upon her by the Act to enquire into the matter. She had reviewed the information before the Corporation's agent. She had indicated lines of enquiry that could and should be pursued by the worker. The worker was legally represented, and she was entitled, by and large, to rely upon the worker's solicitors to identify and produce relevant material.

The statutory duty of the Review Officer to act expeditiously implied an obligation to set time limits and to require the parties to conduct their cases efficiently. The Review Officer did that.

At the hearing on 17 April she warned the worker's solicitor that at the next hearing she might proceed to determine the matter if no evidence to support the claim was forthcoming.

On 7 May the Review Officer was faced with an application for a further adjournment. The basis of the application was that the worker had been seen by a specialist, but, (although this was erroneous information) no medical report had been provided. That state of affairs has to be considered in the context of some four months having elapsed since the application for review was made, and in the context of apparent almost complete inactivity on the part of the worker's solicitors despite prodding by the Review Officer. It was in that setting that the Review Officer declined to adjourn the proceedings.

As the application for review was, in my opinion, doomed to failure upon the information then before the Review Officer, it was clear that the refusal of the adjournment would be tantamount to determining the outcome of the review in favour of the Corporation.

There was no suggestion of any prejudice to the Corporation if the matter were to be further delayed. Adjourning the matter would not have disturbed any listing arrangements already made. On the other hand, the solicitor for the worker gave no indication of just when, if at all, the worker would have evidence in support of the claim.

I interpolate here the point that if the Review Officer had, on 7 May, known that a report had been received from Dr Craig, I think it is likely that she would have adjourned the matter. On the other hand, she might have taken the view that the failure to follow up the matters referred to by Dr Craig left her still with no material in support of the claim.

Relevant Principles

In my opinion, the Review Officer had power to refuse an adjournment. The worker's entitlement to have the decision reviewed, conferred by s95 of the Act, did not entitle the worker to control the process of review. In my opinion the obligation of the Review Officer to act expeditiously is a sufficient authority for the existence of a power to control the pace of the review proceedings, provided that the worker was afforded a reasonable opportunity to present his case: s89(2).

I am also satisfied that the Review Officer had power to decide that, having refused the adjournment, she would make her determination then and there. Although that could be said to be a summary disposition of the review, in the end it was, in my opinion, an exercise of a power to bring the proceedings to an end, a power that is conferred by implication by the statutory provisions that regulate the review procedures. Although a Review Officer does not have the inherent powers of a superior court, a Review Officer nevertheless has those powers that by necessary implication are conferred by the relevant statutory provisions: Grassby v The Queen (1989) 168 CLR 1 at 16-17 per Dawson J. In my opinion it is implicit in the powers and obligations conferred upon a review authority that a Review Officer has power to fix limits to the continuation of review proceedings.

The real issue in this case is whether the discretion to refuse an adjournment, and then to proceed to determine the matter then and there, was properly exercised.

These days, courts in Australia accept, as one of their responsibilities, a duty to do what they can to limit delay in the conduct of litigation before them, and to limit the incurring by the parties of costs in the conduct of litigation. In doing so the courts have regard not just to the interests of the litigants. The courts also accept a responsibility for the efficient use of the public resources that are committed to the maintenance of the courts, and to the provision of judicial officers and the support staff that they require. Their responsibility to the litigants and to the public lead to the one outcome - a responsibility to ensure that justice is administered efficiently.

The approach of earlier times, that delay in litigation calls for intervention from the court only when a party complains of prejudice, no longer applies. Nor does the approach that delay is considered from the point of view only of its impact upon the opposing party. Courts now consider the impact of inefficiency and delay in litigation upon other litigants who wish to be heard. The courts recognise that the entitlement to be heard may be affected by inefficiency by other litigants. That consideration arises because of the fact that the resources available to courts are limited. They cannot allow litigants to make inefficient and wasteful use of the resources that the courts provide, if that has the consequence that other litigants will suffer. The courts must also consider the general public interest.

I agree with what King CJ said in United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156 when he said (at 158):

"It is now well recognised throughout the judicial system that courts owe it to the community to adopt and apply effective procedures in order to make the maximum use of the resources committed to them and to contain, so far as possible, the escalation of costs and delay."

He also said (at 160):

"It cannot be over-emphasised that the capacity of courts to provide expeditious justice in the face of heavy workloads, depends upon the maximum utilisation of the courts' resources. This can only be achieved by the orderly processing and disposal of cases in accordance with the now recognised principles of case flow management."

However, the High Court has held that these considerations cannot displace the ultimate responsibility of the court to administer justice, and in that context, I think that the High Court meant as between the immediate parties. In Queensland v JL Holdings Pty Ltd (1997) 71 ALJR 294, Dawson, Gaudron and McHugh JJ said that the court's earlier decision in Sali v SPC Ltd (1993) 67 ALJR 841 was not to be taken as sanctioning any departure from principles established in earlier cases. They went on to say (at 296):

"Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But is ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

These remarks were uttered in a case in which there had been an application to amend a defence, and the application had been refused on the grounds of delay and a possible interference with a trial date that had been fixed. The High Court was not satisfied that the trial would in fact be unable to proceed on the fixed day. The court was also influenced by the fact that the proposed amendment raised a matter that might be a complete answer to the plaintiff's claim. It was in that context that the High Court reversed a decision of the Full Federal Court, upholding a decision of a single judge refusing leave to amend.

The fact that the High Court took the unusual step of interfering with a procedural decision such as that indicates that it considered the point of principle to be an important one. Kirby J, in a separate judgment, agreed with the other members of the court. He said (at 307):

"A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved."

I do not consider that this decision means that the matters to which I adverted above are not important considerations. But the High Court has made it clear, and other courts must accept, the importance of the attainment of justice in the individual case. The courts must act with particular care when the application of principles of case management is likely to result in a party being shut out from putting the substance of that party's case.

I see no reason why those principles of case management, applied and understood in the light of what the High Court decided in Queensland v JL Holdings Pty Ltd (supra), should not operate in review proceedings under the Act. In that respect, I agree with what was said by the Tribunal when dealing with the appeal to it.

Application of Principles

I can well understand the frustration expressed by the Review Officer over the inefficient conduct of the case for the worker. Perhaps, as counsel for the worker argued on the appeal, it was reasonable for the worker to wait to see whether the claim was accepted by the Corporation. But, once the claim was rejected, it was obvious that a range of enquiries would have to be made to obtain material in support of the claim. Almost nothing seems to have been done.

Nevertheless, as things stood, when the Review Officer made her decision, she was not in a position to conclude that material in support of the claim could not be obtained, or was not likely to be obtained. The conclusion open to the Review Officer was that so far the worker had failed to act with reasonable expedition in seeking that material. Indeed, looking at things overall, that is probably too kind. A more accurate description of the situation is that there had been lamentable inefficiency on the part of the worker.

I should add, that in referring to "the worker" I do so as a matter of convenience. I am unable to tell whether it was the worker or the solicitors who were to blame, although it is at least clear that the firm of solicitors concerned showed a regrettable lack of attention to detail in the appearances before the Review Officer.

Despite all this, I consider that the Review Officer erred. As I have already said, there was no basis for concluding that the worker would be unable to obtain evidence in support of the claim. There was no suggestion of prejudice to the Corporation were the matter to be delayed further. A further delay would not disrupt existing arrangements made. By that I mean that no hearing date had been fixed which would have to be put off. The basis for the Review Officer acting as she did was, in essence, the need for and desirability of the Review Officer being able to fix a timetable and ensure that it was in fact observed. I do not in any sense underestimate the importance of that. Nor do I fail to realise that the failure to impose sanctions on those who do not observe timetables can lead to a general disregard of timetables. Having regard to the terms of s92A of the Act and the limited impact of an order for costs, the use of that sanction was not likely to prove particularly effective.

Despite all those considerations, I consider that in this case the proper exercise of the discretion that the Review Officer had required that the worker be given a further opportunity to get his case in order. The Review Officer knew that the worker had seen a medical specialist. On the information given to the Review Officer (admittedly mistaken) the non-receipt of the medical report might have been the fault of the doctor in question. I think that the Review Officer should have insisted upon the firm of solicitors providing more precise information about the state of the case, and should have given the worker one more chance. As I have said, in so deciding I am influenced by the absence of any prejudice to the Corporation and by the absence of any disruption to existing arrangements made in relation to the case.

I should add that I reject the submission made on appeal that, as things stood before the Review Officer, her obligation was to fix a hearing date at which the worker could then present such evidence as the worker might have found meantime. In my opinion, the Review Officer was quite entitled to decline to fix a hearing date unless and until the issues had been identified and the evidence to be led on either side indicated with reasonable precision. I do not consider that the worker has a right simply to demand a hearing come what may.

I also reject the more extreme submission advanced that the Review Officer was not entitled to proceed to make a determination unless and until the worker had in fact presented such evidence as the worker wished to present. In my opinion, the Review Officer was entitled to exercise overall control over the timetable, and her obligation was no more than to allow the worker a reasonable opportunity to present his case.

For those reasons, I consider that the exercise of the discretion miscarried. It follows, in my opinion, that the Tribunal erred in dismissing the appeal on that ground.

That, however, is not the end of the matter.

Appeal to Tribunal

By his Appeal Notice the worker sought an order setting aside the determination of the Review Officer, and in substitution for that a determination that the worker had suffered a compensable disability. That order suggested that the worker intended to present a case before the Tribunal, supported by evidence, that would lead to that outcome. The Appeal Notice did not seek an order under what was then s97(5)(b) of the Act, referring the subject matter back to a Review Officer. That order was not sought even though one of the grounds of appeal complained that the Review Officer had erred in refusing to grant an adjournment. Nevertheless, it may be that an order referring the matter back was encompassed by the claim for any other order that the Tribunal saw fit.

I have already referred to the powers and duty that the Tribunal had to hear evidence under s97 of the Act.

No attempt was made before the Tribunal to present a case, supported by evidence, that would lead to a determination in favour of the worker.

When the matter was before the Tribunal, the Deputy President specifically enquired why the appellant did not make an application under s97 for leave to adduce evidence to the effect that enquiries along the lines suggested by Dr Craig had been made, or were being made. No satisfactory explanation was forthcoming for the absence of such evidence. Counsel appears to have conducted the appeal before the Tribunal on the basis that the matter should simply be referred back to the Review Officer under s97(5)(b) of the Act, on the basis that an error had been made by the Review Officer, and without presenting any evidence to indicate that if that were done the state of the evidence before the Review Officer would be any different.

As the Deputy President pointed out during the course of argument, the worker had the opportunity before the Tribunal to show that the evidence, in the absence of which the Review Officer proceeded to make a determination, either was then available or was likely to become available. That being so, and no attempt having been made to do so before the Tribunal, despite a specific enquiry from the Tribunal, in my opinion the Deputy President was entitled to conclude, as he did, that "... the further evidence simply does not exist."

That being so, was the Tribunal entitled to dismiss the appeal to it, even though, as I have found, it should have found that the Review Officer erred?

The Tribunal was in a position to hear further evidence and to decide the very question that the Review Officer had to consider before refusing to adjourn the review proceedings before her. That question was whether there was reason to think that the worker had, or might reasonably soon obtain, sufficient evidence in support of the worker's claim to warrant at least deferring a decision on the review application and, perhaps in addition, the fixing of a date for a full hearing at which evidence on either side would be adduced. Because of the powers that it had, the Tribunal was able to consider that very question, had the worker sought to put the necessary material before it. The Tribunal, in effect, invited the worker to do so, but that invitation was not taken up. In effect, the worker was asking the Tribunal to remit the matter to a Review Officer for further hearing, even though, so far as the Tribunal was aware, to do so would be futile because there was no change in the available evidence, and even though the worker had had an opportunity to establish that there had been a change.

In those respects the present case is, in my opinion, distinguishable from the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. In that case it was held that the right of appeal to the Full Court, that the appellant had and had exercised, did not cure the failure of the trial judge to give the appellant an opportunity to make submissions on certain issues of fact. The point was made that the Full Court was in a significantly different position from the trial judge, and that submissions made to the Full Court on the point at issue were no replacement for the opportunity to make submissions to the trial judge. But, as I have indicated, in the present case the worker was in a position to lead the very evidence that could and should have been led before the Review Officer, and to require the Tribunal to decide the very question that the Review Officer could and should have then decided. Indeed, the worker was in a better position, because with the time that elapsed between the decision by the Review Officer and the hearing before the Tribunal, one might have thought that the worker would have been able to pursue lines of enquiry arising from Dr Craig's letter that there had not been time to pursue before the Review Officer.

Under those circumstances, in my opinion the Tribunal was entitled to conclude, as it appears to have done, that notwithstanding any error on the part of the Review Officer, the appeal should in any event be dismissed.

Other matters

The circumstances of the case suggest that the solicitors for the worker failed to seek evidence to support the worker's claim with reasonable expedition. Whether there is some good explanation for that apparent failure I do not know. The Review Officer was not given the assistance and reliable information that she was entitled to expect from the solicitors for the worker. When the matter came before the Tribunal, on appeal from the Review Officer, there was the opportunity to lead evidence to show that relevant enquiries into the worker's claim had been made, and that there was then evidence to support the worker's claim. That opportunity was not taken, and was the subject of criticism by the Tribunal. I endorse that criticism. I notice further that leave to appeal to this Court was given in September 1996, but that the appeal was not set down for hearing until May 1997, with the benefit of an order for an extension of the time for the setting down of the appeal. Once again, I appreciate that there may be significant facts unknown to me, but all I can say is that the matter has an unhappy appearance of inefficiency, which reflects poorly on the legal profession.

It is not necessary to express an opinion on the decision of the Corporation to reject the claim under s53(3)(a) of the Act. The matter was not dealt with by the Review Officer. Although the Tribunal indicated its agreement with the decision of the Corporation, it seems to me that there might be relevant facts which have not been brought out. For those reasons, subject to one point, I express no opinion on the point. However, I should say that I do not accept the sweeping submission advanced before the Tribunal that the request for information was an unwarranted intrusion on the relationship between the worker and his doctor.

Orders

In my opinion the appeal should be dismissed.

MATHESON J

I agree with Doyle CJ that the appeal should be dismissed, but I am also of the view that the Tribunal did not err in dismissing the appeal from the Review Officer on the ground that the exercise of her discretion to refuse a further adjournment miscarried.

The background leading up to the decision of the Review Officer to confirm the decision made by the Corporation's agent is set out in the judgment of Doyle CJ but there are several aspects that I wish to highlight. The appellant's myocardial infarction allegedly occurred on 20 July 1995. His solicitors forwarded a medical report from Dr Phillip Aylward dated 4 September 1995 in a letter to the Claims Manager dated 8 September 1995. There is not the slightest suggestion in that report that there was any connection between the appellant's myocardial infarction and his leg injury. On 27 October 1995 the Case Manager of the Corporation's agent wrote to the appellant care of his solicitors stating that they wished to obtain a medical report from his treating doctor and enclosing a form of authority for him to sign. That letter apparently crossed with a letter from his solicitors dated 25 October, and on 2 November 1995 the Case Manager wrote to the appellant's solicitors again referring to the letter dated 27 October requesting further information. The form of authority was not returned, nor was any explanation advanced for the failure of the appellant to comply. On 4 December 1996 the Case Manager wrote to the solicitors again, enclosing another form of authority, and asking that it be signed and returned within seven days. It was not returned.

The appellant attended for an examination with Mr Donald Beard at the respondent's request. In a report dated 6 December 1995 Mr Beard said:

"I understand that a claim has been made for his heart condition. This has absolutely nothing to do with the injury, the subsequent treatment nor the medication. He developed a blocked coronary artery which is not caused by stress, medication, etc.."

The Corporation rejected the claim on 9 January 1996.

The determination was not made by the Review Officer until 7 May 1996 notwithstanding that the matter had been before her on 13 March and 17 April upon which dates she had pressed for medical evidence in support of the claim.

I stress that in addition to the complete absence of any material to support the claim, the Review Officer was entitled to take into account the improbability of any connection between the leg injury and the heart attack. In my opinion, this was not a case where the Review Officer "shut a party out from litigating an issue which is fairly arguable" (compare Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294 at 296). In my opinion, she was justified in refusing to grant a further adjournment.

BLEBY J

I agree that the appeal should be dismissed.

Not without some hesitation, I agree that the proceedings before the Review Officer miscarried and that there was a premature rejection of the appellant's claim at that level. This was a borderline case, but in the end I am persuaded, for the reasons explained by the Chief Justice, that the Review Officer acted too soon.

I also agree with the Chief Justice and with the reasons that he gives that the decision of the Review Tribunal was nevertheless correct.

By the time the appellant brought his appeal to the Review Tribunal, it must have become abundantly clear to him and his advisers that if he was to succeed before the Review Officer or the Tribunal, some medical evidence would have to be obtained to provide the causal link between his myocardial infarction which gave rise to the medical expenses he was claiming and his acknowledged work-caused injury sustained in August 1994. His Notice of Appeal to the Tribunal sought an order reversing the Review Officer's determination "and determining that the worker has suffered a compensable disability arising from the heart attack dated (sic) 20th July 1995". Yet, despite a delay of almost two months from the date of the Review Officer's determination until the filing of the Notice of Appeal (4 July 1996), and a further period of almost six weeks before the hearing before the Tribunal, no steps seem to have been taken to obtain the necessary evidence, despite the clear warning of Dr Craig, then some four months old, that he could not give a report without much more information which needed to be released by or with the authority of the appellant.

Had the Tribunal correctly decided that the proceedings before the Review Officer miscarried, it would, in the circumstances of this case, have been within the power of the Tribunal to reach its own conclusion and to have determined the claim in favour of the appellant if the evidence justified so doing. By virtue of the way the matter proceeded before the Review Officer, fresh evidence would have been receivable by the Tribunal pursuant to s97(4e)(c) or (d). Indeed, the Tribunal itself received Dr Craig's report and a statement of the appellant pursuant to that sub-section. During the course of argument the Tribunal even suggested that that very course was open. Yet it was not taken up.

The Tribunal could also have remitted the matter to the Review Officer. However, the Tribunal was also able to determine the matter for itself. The Tribunal was justifiably critical of the appellant and his advisers for the way the matter had proceeded before the Review Officer. In all those circumstances the Tribunal would have been justified in not remitting the matter without some indication that there was medical evidence to support the appellant's claim, or that such evidence was in the process of being obtained. No such indication was given.

In those circumstances, even though the Tribunal erred in the reasons it gave for dismissing the appeal from the Review Officer, the decision was nevertheless correct, and this appeal should be dismissed.