Eastley, Craig v Pickands Mather & Co International T/as Savage River Mines

[1998] TASSC 33

33/1998

PARTIES:  EASTLEY, Craig
  v
  PICKANDS MATHER & CO INTERNATIONAL            t/as SAVAGE RIVER MINES

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 17/1997
DELIVERED:  7 April 1998
HEARING DATE/S:  7 April 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
           Appellant:                   C F McKenzie
           Respondent:  I L Hallett
Solicitors:
           Appellant:  McLean Phillips & Bartlett
           Respondent:  Page Seager

Court Computer Code:  
Judgment ID Number:  33/1998
Number of pages:  2

Serial No 33/1998
File No LCA 17/1997

CRAIG EASTLEY v PICKANDS MATHER INTERNATIONAL
t/as SAVAGE RIVER MINES

REASONS FOR JUDGMENT  UNDERWOOD J

(DELIVERED ORALLY)  7 April 1998

The Workers Rehabilitation and Compensation Act 1988, s49 governs the conduct of proceedings before the Tribunal. Section 49(1)(b) provides:

"49 ¾ (1) The following provisions apply to a proceeding before the Tribunal:¾

(a)...;

(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit."

In this case, the appellant worker suffered a compensable injury to his back in 1989 and again in 1995 in the course of his employment with the respondent.  It seems that compensation was paid with respect to both injuries.

By a letter dated 11 August 1997, and accompanying medical certificate, the respondent gave notice, pursuant to the Act, s86(3), of intention to reduce the weekly payment by ninety per cent on the grounds that the appellant had substantially recovered from the effects of the injury which occurred on 10 September 1995 and/or that the appellant's current incapacity was no longer due wholly or substantially to the injury in 1995.

The appellant made application to the Tribunal.  The application contained eight paragraphs.  Paragraphs 1 - 4 inclusive and 6, alleged, in effect, that the respondent was not entitled to reduce the weekly payments as the notice stated was intended.  Paragraphs 5, 7 and 8 of the application sought compensation with respect to the 1989 injury.  Two of those paragraphs were expressed to be "further or in the alternative" to the other paragraphs.

It appears that the respondent's authorised insurer in 1995 was not the same as its insurer in 1989.  The Tribunal ordered that those paragraphs which concerned the purported s86(3) notice be determined before, and separately, from the issues raised by pars5, 7 and 8.  From that determination this appeal is brought.  The sole ground of appeal is that no tribunal, properly instructed as to the law and acting reasonably, could have made the impugned order or determination or ruling or direction.

The principle upon which I determine this appeal is that before the appellant can succeed he must show that there was an error of law and resultant substantial injustice, for appeals against interlocutory orders are to be discouraged because they delay the proper administration of justice and increase costs.  Authority for that proposition is Adam P Brown Male Fashions Proprietary Limited vPhilip Morris Incorporated & Anor (1981) 148 CLR 170 and National Mutual Holdings Pty Ltd & Ors vSentry Corporation & Anor (1988) 83 ALR 434.

For the appellant, Mr McKenzie submitted that the proper exercise of the discretion required a determination of both claims at the same time.  This submission, as I understand it, proceeds on the basis that there was no dispute that the worker was incapacitated; the only issue was whether that incapacity was due to the 1989 or the 1995 injury and unless both these issues were determined at the same time, there was a risk of substantial injustice, in that the worker might fail in both claims if each were tried separately by a differently constituted tribunal.

It cannot be denied as a matter of general principle that all claims arising out of one incident should be tried at the same time to avoid this risk of conflicting decisions with respect to the same facts.  However, this is not a case where there are several claims against different parties, arising out of a single event.  There are two discrete events with mixed consequences.

Licensed insurers are entitled to be parties in proceedings in the Tribunal, and in this case there are two insurers, each with a completely different interest in the outcome of the appellant's application.  In the determination of a s86(3) notice, the onus falls upon the respondent to justify the action it proposes to take.  In the claim for compensation with respect to the 1989 incident, the onus falls upon the appellant to establish entitlement to weekly payments and other compensation.

This, as Mr Hallett, who appeared for the respondent, submitted, raises a procedural problem of whether the appellant or the respondent begins in the Tribunal which may be difficult to resolve, and its resolution could have a significant effect on the outcome of proceedings if all issues raised on the application are tried together.

If the applicant succeeds on the issue raised by the first paragraph of his application to the Tribunal which challenges compliance with the procedures laid down by the Act, the issue of causation of any incapacity may not arise at all.  If all issues are tried at the same time, there remains a possibility that the appellant might still fall between two stools — as it was put to me — because the Tribunal may be satisfied that the respondent has discharged the onus of proof he carries, but the appellant has not discharged the onus he carries.

It also seems to me that difficulties could attend a hearing of all issues together.  At such a hearing, the appellant will have to attempt to show that the opinion expressed in the certificate is wrong and, at the same time, that it is right, and any disability is consequentially due to the 1989 injury.

The Tribunal adverted to these matters (or some of them) when the learned Commissioner said:

"Both of these claims for compensation deal with quite clearly separate issues and as to those separate issues, they are in themselves complicated.  They impose quite different onuses of proof and they also require the hearing and the taking of evidence in quite different manners.

Given those internal problems, I am not satisfied that it would be appropriate to hear both matters together."

In my opinion, no error is made out by the Tribunal making the impugned order.  It is a case in which the discretion could have been exercised either way.  There was no common ground that the worker was incapacitated, nor, if he was incapacitated, that such incapacity was caused by one or other of the accidents at work.  I accept that there is weight in Mr McKenzie's submission that the course taken by the Tribunal will involve hearing evidence twice and will increase the cost; this is to be regretted.  But I remain unsatisfied that the order was one that no tribunal could make, properly instructed as to the law, and acting reasonably.  I also remain unsatisfied that the order is one that will cause substantial injustice to the appellant.  It must not be overlooked that the Tribunal is given very wide powers to conduct its proceedings as it sees fit without regard to formalities or technicalities.  It will be a rare circumstance where this Court will intervene in proceedings pending in the Tribunal and overturn an order made in the exercise of the discretion with respect to the manner in which the Tribunal proposes to determine a claim before it.  For these reasons, the appeal is dismissed.

I might add, as an aside, that there seems to me to be a lot in the complaint that Mr McKenzie put to the Tribunal about the difficulties caused by the lack of pleadings.  Issues are defined by pleadings and the absence of pleadings prevents issues being properly defined.  So in this respect, the attempt by the legislature to achieve informality and speed often has the reverse effect.