Ettridge v TransAdelaide No. Scgrg-97-292 Judgment No. S6422

[1997] SASC 6422

ETTRIDGE  v  TRANSADELAIDE

Full Court
Coram:  Matheson, Duggan and Nyland JJ

Nyland J:

This appeal is from a decision of the Workers Compensation Appeal Tribunal (“the Tribunal”) whereby it dismissed an appeal with respect to five applications for review, prosecuted by the appellant pursuant to the provisions of the Workers Rehabilitation and Compensation Act 1986 (“the Act”). This matter has an extensive prior history. Accordingly, before considering the issues which arise for determination on this appeal, I set out my understanding of what I believe to be the relevant background.

History of Proceedings:

The appellant was employed by the respondent as a bus driver. 

On 9/2/88, the appellant sustained an injury to his neck.  He lodged a claim for compensation which was accepted by the respondent.  The appellant had eight or nine days off work but then returned to work.

On 2/5/88, the appellant went off work for two days after which he returned.

On 24/6/88, the appellant was again off work for one to two days and then returned.

On 19/7/88, the appellant received a certificate from Dr Wilson certifying that he was fit for alternative duties. 

On 20/7/88, the appellant was provided with alternative duties.  Thereafter he was paid by the respondent the sum of $482.27 as his notional weekly earnings.

On 10/2/89, the appellant lodged an application for review seeking to review the respondent’s decision to exclude cancelled days off (“CDO’s”) from his notional weekly earnings.

On 2/7/90, Review Officer Mostowyj made a determination in which he set aside the decision of the respondent to exclude overtime in the nature of CDO’s.  He determined that the appellant was entitled to have overtime included in the calculation of his entitlement but left the calculation of the entitlement to the parties.

The respondent appealed to the Tribunal.

On 19/12/90, the Tribunal delivered its decision as to this matter.  The Tribunal set aside the decision of Review Officer Mostowyj and held that the calculation of average weekly earnings should disregard the rostered days off.  The appellant then appealed to the Supreme Court.

On 7/2/92, the Supreme Court delivered judgment.  The court dismissed the appeal.  The court held that CDO’s should not be included in the calculation of notional weekly earnings.  At that stage, the matter should have been referred back to a Review Officer but this did not occur.  The respondent made its own calculations which eventually reached $721.28 per week (although this figure appears not to have been advised to the appellant until June 1994).

On 21/12/93, the respondent wrote to the appellant concerning a proposed adjustment to income maintenance.  In the letter the respondent noted that the appellant’s notional weekly earnings were $721.28 per week but indicated that because of certain changes to rosters at the depot at which the appellant had been working, his new notional weekly earnings would be $648.08 per week from 21/11/93.

The appellant lodged two applications for review on the basis that the respondent had wrongly interpreted the provisions of the Act. Those applications were heard by Review Officer Bowering.

On 13/4/94, Review Officer Bowering set aside the respondent’s determination and made a determination that the appellant was entitled to ongoing payments of income maintenance assessed on the basis of notional weekly earning in the sum of $732.28.  The appellant appealed against that decision.

On 26/5/94, the appellant lodged five applications for review to which I shall refer later in these reasons.  A further application was lodged on 14/7/94.

On 23/6/95, judgment was delivered by Judge Cawthorne in the Tribunal with respect to the application to review the decision of Review Officer Bowering.  Judge Cawthorne found that there had never been a valid primary determination as to the level of the appellant’s notional weekly earnings.  He indicated that although, by the litigation between the parties, the role of the CDO’s in the calculation of the worker’s notional weekly earnings was ultimately resolved by the Full Court, it was then the responsibility of Review Officer Mostowyj to determine the precise amount of those earnings.  He said -

“that both the notice sent to the worker and the determination of the Review Officer the subject of this appeal predicated as they were on the assertion that the worker’s notional weekly earnings were $721.88 per week when in fact the foundational figure which formed the basis on which the notional weekly earnings asserted in the notice was based had never been validly determined, were a nullity and the appropriate order is that the decision of the Review Officer be set aside.”

He then ordered that the matter be referred back to Review Officer Mostowyj to set the notional weekly earnings.  In order to set those earnings the Review Officer was required to ascertain the relevant date.    

Although it is irrelevant to this appeal, for completeness I mention that on 30/7/95 the appellant lodged a claim for compensation based on anxiety and depression.  That claim was rejected.  The rejection was upheld by the Tribunal.  The appellant was subsequently refused leave to appeal to the Supreme Court.  He has not returned to work since that date.

On 12/9/95, Review Officer Mostowyj determined that the relevant date was 9/2/88.  He then set the appellant’s notional weekly earnings at $463.89 a week.  The appellant appealed against that determination.

On 23/1/96, that appeal was allowed by the Tribunal and the matter was referred back to Review Officer Mostowyj to redetermine the notional weekly earnings.  A fresh determination was made by him on 15/5/96 in which he set the notional weekly earnings at $498.89.

The appellant appealed against that determination.  That matter was then considered by the Tribunal. 

On 11/9/96, Deputy President Thompson delivered the decision of the Tribunal with respect to that matter.  In his reasons for decision he said that the appellant had asserted that the appeal was not so much against the figure arrived at by the Review Officer but against the Review Officer’s failure to order the production of certain documents from TransAdelaide upon which the appellant wished to base his case.  These documents included about 240 pay slips for nine employees of TransAdelaide.  The Review Officer had refused to make the discovery order on the basis that the material sought was of doubtful relevance in reaching a conclusion as to the notional weekly earnings.  Deputy President Thompson, however, ordered the production of the 240 pay slips “in order to accommodate the appellant”. 

In the course of the hearing before the Review Officer, the appellant had contended that his earnings should have been assessed at $522.83 by reference to comparable earners.  It was conceded by the appellant, however, that after his return to work on 20/2/88, up to the pay period immediately preceding his leaving work, ie 4/7/88, was 20 weeks, during which period his earnings averaged $498.89 per week.

The appellant asserted to the Tribunal that he had been unable to adduce evidence before the Review Officer to justify the $522.83 per week as per his submission because of the exclusion of relevant evidence.

The Review Officer rejected any conclusion based on the evidence of comparable earners.  He found that it was almost impossible to reach a finding that there was a comparison within TransAdelaide due to variations as to shifts.  He founded his decision on the average weekly amount the appellant earned in the 20 weeks after the date of his resumption of work until the time of going on to permanent compensation. 

In the course of the hearing before the Tribunal, fresh evidence was adduced and the appellant gave evidence on oath.  The Deputy President said that the appellant did not establish to his satisfaction that he could produce any group of earners comparable to himself and was not persuaded that there were any true comparisons because there were so many variables.  He therefore rejected the appellant’s evidence that he could produce an earner comparable to himself that would entitle him to $522.83 per week.  He eventually concluded that the appropriate method of calculation was to take the average of 52 weeks back from 9/7/88.  This would take into account the pre-injury and post-injury earnings.  This resulted in a figure of $482 per week.  He therefore fixed the notional weekly earnings in that amount.  This decision has not been the subject of any appeal.

The appellant in the course of argument on the appeal before this court said that he had not lodged an appeal with respect to that decision as it was limited to the nine day period that he was off work from 9/2/88 and it would have been a waste of the court’s time to pursue that matter.

On 26/5/94, however, the appellant lodged five applications for review.  The decisions to which those applications and the reasons for disagreeing with the relevant decisions were stated to be as follows:

00247717/01/08 - The decision to which this application relates:

“The constant miscalculation of my compensation payments and monies not paid in accordance with Act.  Failure to make restitution of back payments.”

Reason for disagreeing with decision:

“A misinterpretation of Act.”

00247717/01/09 - The decision to which this application relates:

“The method used to calculate payments for annual, sick leave and long service leave.”

Reason for disagreeing with decision:

“A misinterpretation of Act.”

00247717/01/10 - The decision to which this application relates:

........ “The use of the depot shift roster to work out my notional weekly earnings.”

Reason for disagreeing with decision:

“A misinterpretation of Act.”

00247717/01/11 - The decision to which this application relates:

........ “Not to advise me of the dates and changes of amount to my notional weekly earnings.”

Reason for disagreeing with decision:

“A misinterpretation of Act.”

00247717/01/12 - The decision to which this application relates:

........ “The starting date for the second year of compensation.”

Reason for disagreeing with decision:

“A misinterpretation of Act.”

A further application for review numbered 00247717/01/15 was lodged on 14/7/94 which asserted “Incorrect payments for make-up pay”.  The reason for disagreeing with the decision was also stated to be “A misinterpretation of the Act”.

This application appears to have been adjourned sine die.  Accordingly it is not the subject of the present appeal.

The five other applications were heard by Review Officer Sargent on15/8/94, 22/11/94, 8/3/95 and 22/9/95.

On 26/9/95, Review Officer Sargent delivered his determination with respect to those applications.  He determined that the applications did not give him the necessary detail in order to be satisfied that there was a reviewable decision.  He dismissed all of the applications and made no order as to costs.

The appellant appealed against that order.

Thereafter the appellant applied to the Tribunal to state a case to the Supreme Court on the construction of s119 of the Act. This related to the issue of the use of the depot shift roster to work out the appellant’s notional weekly earnings. The appellant sought to state a case “as to correct procedure and jurisdiction that s119 of the Workers Rehabilitation and Compensation Act 1986 may be prosecuted under, s119, contract to avoid act, the case to deal with a worker who validly brings an action to the review process and during the review is made aware of the breach of s119 ...”.

On 30/9/96, Deputy President Thompson in  the Tribunal dismissed the application on the basis that the appellant was simply seeking a declaratory judgment.  Further, the appellant’s appeal against Review Officer Sargent’s dismissal of the five applications for review was still pending. 

On 24/1/97, Deputy President Thompson delivered the judgment of the Tribunal with respect to the dismissal by Review Officer Sargent of the aforesaid five applications for review.  He dismissed the appeal but upheld the appellant’s appeal on costs to the extent that he ordered that the appellant should have 50% of the proper costs of the review hearings.  In this appeal, Mr Ettridge has appealed against the whole of that order.

The principal issues raised by the appellant on the hearing of this appeal may be summarised as follows:

1....... The application by the Tribunal of the decision of this court in WorkCover Corporation v Marina[1] to the facts of this case in determining the relevant date and the notional weekly earnings.

[1] (1996) 185 LSJS 230

2.     The issue of “duplicity”.

3.     Bias.

4.     Costs.

The Application of Marina’s case:

In the course of his reasons, the learned President referred to some of the earlier determinations which appeared to suggest that the appellant was totally incapacitated between 9/2/88 and 20/7/88. That suggestion was clearly incorrect.  He reviewed the medical evidence and said:

“On 19 July 1988 the appellant was certified by Dr Wilson as being partially incapacitated by reason of the injury in February.

The contemporaneous medical certificates fix the date of the foundational injury as 9 February 1988 or earlier, for example:

Doctor      Date of Medical Certificate/Report               Date of Injury

1.     Carey                 13/2/88  17/12/88

(misprint should be 17/12/87)

2.     Carey                 9/2/88  17/12/87

3.     Carey                 19/2/88  9/2/88

4.     Carey                 5/4/87  9/2/88

5.     Carey                 27/4/88  ‘This year’

6.     Carey                 2/5/88  ‘This year’

7.     Carey                 24/6/88  Not stated

8.     Carey                 19/7/88  Not stated

9.     Carey                 26/7/88  9/2/87

10.    29/11/88 (sic)   28/11/88  17/12/87

........ The medical reports obtained nearly contemporaneous to 20 July 1988 give the following date of injury and the history.

Author                 Date                  Exam                  Date of injury

1.     S S Khera            17/6/88    1/8/88      Just before Christmas 1987

2.     Paul Carney        29/9/88    4/6/88      Late March 1988

(Neurosurgeon)

3.     Peter L Reilly    27/10/88 17/10/88   December 1987

(Neurosurgeon)

4.     G A J McCulloch 11/3/92   9/3/92      December 1987

(Neurosurgeon)

From those histories and from my examination of the plethora of material that is available in the various files - two propositions are quite clear.

1.      The incident which is the ‘compensation foundation’ of Mr Ettridge entitlements occurred on 9 February 1988.  That date is therefore the relevant date.

2.      To the extent that Mr Ettridge work history between 8 February 1988 and 19 or 20 July 1988 is uncertain - he was, and was assumed to be partially incapacitated - or at the very worst, as at 19/20 July 1988 any disability was attributed to 9 February 1988.”

He then went on to consider whether in any event the respondent had ever fixed the average weekly earnings in the course of which he had regard to a letter from the Crown Solicitor’s office dated 1/6/94 which said:

“Mr J Ettridge

53 Bransome Tce

Dover Gardens   SA   5048

Dear Sir  Re: Income Maintenance

Further to our attendance before Review Officer Mostowyj on 19 May 1994, I provide you with the following information regarding your past payments of income maintenance by the State Transport Authority.

Period off work  Base Rate          Notional weekly earnings

9/2/1998 - 21/2/1988         $372.10  $429.76

1983/1988  $372.10  $460.49

24/6/1988  $372.10  $438.76

19/7/1988  $372.10  $439.57

23/7/1988  $372.10  $439.57

You then continued to be either partially or totally incapacitated and your notional weekly earnings continued at $439.57 until a meeting occurred on or about 12/5/1989 between yourself and your employer at which it was agreed that your notional weekly earnings had been calculated incorrectly.  The correct figures were as follows:

Period off work  Base Rate          Notional weekly earnings

9/2/1998 - 21/2/1988         $372.10  $459.97

2/5/88  $372.10  $476.11

24/6/1988  $372.10  $479.00

19/7/1988  $372.10  $482.27

23/7/1988  $372.10  $482.27

Thereafter, your notional weekly earnings continued at $482.27.  You were given a written copy of the corrected figures and paid back pay.

Yours faithfully.”

The Deputy President went on to say:

“The appellant branded that letter as being a confection of lies on two grounds.

(a).. That there never had been a conference regarding his average weekly earnings (outside the context of a meeting at the Review Officer’s rooms).

(b).. The assertion that he was provided either by the Crown Solicitor or his employer with a copy of the ‘corrected figures’ was an invention.

A letter from R D Gleeson (then Compensation Claims Manager of STA) of 10 July 1989 was tendered.  It says inter alia:

......... ‘I refer to your application for a review concerning the rate of weekly payments of worker’s compensation.  I also refer to the meetings held on 12 and 24 May 1989.  Based on a recalculation by our payroll department an additional payment of $1,791.62 gross and $1,052 net was paid to you at the pay period ending 24 June 1989.

This was based on the calculations provided to you on 24 May 1989.’

The original document was produced, it shows a series of figures from 24 January 1987 to 9 July 1988 including these entries:

‘20/2/88 gross figure for W/Comp ave 23.906-62 $459.74 (crossed out) and in red ink inserted $459.97.

For 4/7/88 $482.18 (crossed out) and $482.27 is inserted in red ink’.

Attached to Mr Gleeson’s letter was a pay advice slip in accordance with the assertions made in his letter.  This document and Mr Gleeson’s letter is the direct source on authority for the contents of the letter from the Crown Solicitor’s Office of 1 June 1994.

In the top right hand corner of the ‘calculation document’ this appears:

.......... ‘Tabled and given to John Ettridge amends as shown in red 12/5/89.’

That I understand to be in the hand of Mr Alan Wingrave.

Mr A Wingrave current claims manager of TransAdelaide gave evidence before me.  He deposed to the fact that the document was given to Mr Ettridge on 12 or 24 May 1989.”

The Deputy President accepted Mr Wingrave as a witness of truth and found that “either in May 1989 as asserted by Mr Wingrave or in October 1989 as asserted by Mr Ettridge, it was quite clear to Mr Ettridge that his average weekly earnings had been set at $482.27”.  He then went on to find that 9/2/88 was the appropriate relevant date which he considered was factually consistent with Marina’s case.

The appellant did not appear to dispute that he had sustained an injury on 9/2/88, nor did he dispute the dates on which he was off work and subsequently returned thereafter.  He contended, however, that his return to work full-time in the intervening periods meant that there were four relevant dates and that for the purposes of fixing his notional weekly earnings the relevant date was 20/7/88 and that the calculation should have related to the twelve months thereafter.  In making the latter submission he relied on the comment of King CJ in Francese v City of Adelaide[2] that:

[2] (1989) 51 SASR 522 at 526

“... the concept of weekly earnings which are the measure of the compensation which is payable, is directed to the future and not to the past.”  (emphasis added)

The appellant maintained that Marina’s case did not apply to his situation in view of the four distinct periods to which I have referred.

In Marina’s case the worker was receiving weekly payments for incapacity pursuant to a claim. He returned to work and payment ceased. He was subsequently retrenched. There was a notice of disability and claim for payment effectively in respect to the previous injury. The claim was accepted and interim weekly payments commenced at the old rate. There was a later determination by WorkCover Corporation of a lesser entitlement calculated on different factors. The court considered whether the Act required the determination of average weekly earnings to remain fixed and drew a distinction between incapacity and entitlement to weekly payments. The court held that the incapacity may continue even though there was no entitlement to payments for a time. The period of incapacity did not end upon the worker resuming work. Doyle CJ said at p236:

“In my opinion s35 when it refers to incapacity for work refers to a physical incapacity for doing work, a reduced ability by reason of a physical deficiency to sell work for wages or a reduction in the saleability of labour (these are some of the expressions found in the authorities), but recognises that a worker may be working yet incapacitated for work: see Arnotts Snack Products Pty Ltd v Yacob[3].  The amount which he is able to earn may be such that the provisions under which weekly payments are calculated produce no entitlement for a time, but there may remain an underlying incapacity for work.  In my opinion the language of s35 distinguishes between incapacity to work and an entitlement to weekly payments.  The former conditions the entitlement to the latter, but incapacity for work can exist when there is no entitlement to weekly payments.

[3] (1985) 155 CLR 171

That suggests to me that the reference to ‘the period of the worker’s incapacity for work’ in s4(9)(a)(i) of the Act is to be interpreted in the same sense. That period begins when it is determined under the Act, as it was in October 1990, that the worker is incapacitated for work. That will occur if a claim has been made for payment of income maintenance and the claim is determined in the worker's favour. The period of incapacity continues while certificates of incapacity continue to be provided in respect of the same injury. It does so whether there is a succession of claims for compensation by the worker (as the Corporation would analyse the situation) or a single claim followed by, if necessary, later decisions in relation to the claim. The period of incapacity may continue even though, for part of it, the worker is not entitled to weekly payments because of the operation of the provisions relating to the quantification of weekly payments.

A period of incapacity ends if the worker recovers.  It may be that it ends if the worker ceases to assert incapacity in an appropriate matter, that is, it is not necessarily coincident with the fact of incapacity.  I do not need to decide that.  It may be that it ends or terminates in other ways.  I do not wish to decide that.”

Doyle CJ went on to say that he did not consider this decision to be in conflict with the remarks of King CJ in Francese v City of Adelaide (supra) (quoted earlier) which he considered reflected the fact that the concept of average weekly earnings is directed to the amount which the worker could be expected to have earned if not disabled, which did not assist in deciding the meaning to be given to s4(9)(a)(i).

Section 4(1) of the Act provides that the average weekly earnings of the disabled worker are the average amount that the worker could reasonably be expected to have earned for a week’s work if the worker had not been disabled, and s4(2)(b)(i) provides that for the purpose of determining the average weekly earnings of a worker the actual weekly earnings of the worker over a period of up to 12 months before the relevant date may be taken into account.

Section 4(2)(b)(i) appears to have remained unchanged throughout the period since the appellant suffered his neck injury.  Section 4(8), however, was amended in 1991 to change the manner in which overtime and other benefits should be taken into account in determining average weekly earnings.

In Francese v City of Adelaide (supra) the principal question for determination was the requirement for overtime to be calculated into average weekly earnings.  After making the comment referred to at p10 (supra), King CJ went on to say at p526:

“[The concept of average weekly earnings] is directed to ‘the average amount which the worker could reasonably be expected to have earned for a week’s work if the worker had not been disabled’ - s4(1).

The average weekly earnings during the previous 12 months are relevant only as a factor which be taken into account for the purpose of determining what could be expected to be earned during the period of disability - s4(2).” (emphasis added)

And later at p526:

“The emphasis is upon estimating what the worker could reasonably have expected to earn during the period of disability.  Average weekly earnings during the previous 12 months are merely taken into account as part of the process of estimation.”

In this case the medical evidence before the Tribunal supported the finding by the Deputy President that the foundational injury occurred on or earlier than 9/2/88.  The subsequent medical certificates all related back to that date.  There was no evidence of a total recovery followed by a further injury or event which would support the argument presented by the appellant.  The approach taken by the Deputy President was therefore consistent with Marina’s case. In fixing the notional weekly earnings, the Deputy President decided to look at the appellant’s earnings for a period before and after 9/2/88 in order to calculate a proper average. This would appear to have been favourable to the appellant and was consistent with s4(1)(b)(i). For the period subsequent to 20/7/88 the appellant was on alternative duties as opposed to his pre-injury occupation of bus driver. Accordingly, to look beyond that date would not provide an accurate reflection of the appellant’s earnings. I therefore believe the method of assessment by the Deputy President was appropriate in the circumstances of this case. The figure reached by the Deputy President was $482, which was the figure reached in the earlier determination which was not the subject of any appeal. As it happens, the figure previously set by the respondent was $482.27.

The issue of “Duplicity”:

The five applications for review were heard together by Review Officer Sargent and the appeals therefrom were similarly considered by the Tribunal at the same time.  The appellant complained that this amounted to duplicity.  In support of his argument he sought to rely on the decision of the High Court in Walsh v Tattersall[4] and Iannella vFrench[5]. 

[4] (1996) 70 ALJR 884

[5] (1968) 119 CLR 84

Walsh v Tattersall was concerned with a prosecution of a complaint laid for an offence contrary to the provisions of s120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA). The issue for determination was whether in a single count the appellant had been charged with more than one offence. Similarly Iannella v French related to a prosecution for offences under s56(a) of the Housing Improvement Act 1940-1965 (SA). In that case the court held that the convictions entered by the court could not stand because of duplicity. In my opinion, the appellant’s reliance on those cases to support his argument is misconceived. Both of those cases were concerned with criminal prosecutions, whereas in this case the appellant’s real complaint is that it was unreasonable to have had all five matters heard together because it created multiplicity of issues which made it difficult for him to present his case in an adequate manner. There is some force in this argument as the learned Deputy President himself commented that:

“Future applications for review and appeals to the Tribunal should be confined to one issue only.  The intellectual difficulties of dealing simultaneously with appeals for determinations in six applications for review impose a burden on the Tribunal that mitigates against the proper disposal thereof.”

The five applications were filed at the same time and for that reason appear to have been listed together as a matter of administrative convenience.  No application was made for them to be heard separately.  The significant issue for determination by the Tribunal was the relevant date and the fixing of the notional weekly earnings which arose with respect to number 01/08. 

The appeal in relation to 01/09 related to the calculation of the appropriate rate for long service leave and sick leave and 01/10 related to the use of the depot shift roster in the calculation of the notional weekly earnings.  01/11 related to the failure to advise of changes in notional weekly earnings.  Each of these matters therefore depended upon the determination in 01/08.

In the course of the hearing before the learned Deputy President, the respondent conceded that, at least since 1990, the method of calculation had been incorrect and also conceded that the depot shift roster should not have been used as part of those calculations.  As a result of those matters the respondent offered to re-calculate the appropriate amounts. 

It was not possible to calculate the appropriate sum for long service leave and sick leave until the notional weekly earnings were fixed.  Similarly, it would not have been possible to advise of changes in the notional weekly earnings until they had been set.  They were not fixed until the judgment of the Tribunal was delivered on 11/9/96. 

Accordingly, Review Officer Sargent correctly found that at the time he delivered his determination on 26/9/95 there was no reviewable decision before him and it follows therefrom that the Tribunal was correct in upholding that decision.

The appeal in relation to 01/12 was also affected by the issue of the determination of the relevant date.  That date was set by the Tribunal in its decision of 11/9/96 as reconfirmed in the present matter.  Despite the practical difficulties which occurred in this case, I do not believe that it was inappropriate for the applications to be heard together. 

The appellant was critical of the delay by the respondent in attending to the recalculation of these various matters but Mr Telfer, who appeared as counsel for the respondent on the hearing of the appeal, assured us that the respondent was simply awaiting the finalisation of this appeal to avoid a recurrence of problems arising as a result of a number of parallel proceedings.  In view of the history of this matter that is understandable, but I would urge the respondent to finalise these matters expeditiously upon the delivery of judgment herein.

Bias:

The appellant contended that the learned Deputy President should have disqualified himself because of bias.  In the course of his argument as to this matter the appellant eventually conceded that he had not at any time made a specific application to the Deputy President for him to disqualify himself.  He suggested, however, that the various comments made by him in the course of the hearing should have alerted the Deputy President to the fact that he was biased which would have had the consequence of him desisting from the further hearing of the matter.

The test to determine whether a judicial officer ought to disqualify him or herself on the ground of bias is set out in the High Court authority of R v Watson; ex parte Armstrong[6], where the majority, Barwick CJ, Gibbs, Stephen and Mason JJ said at 264 that:

[6] (1976) 136 CLR 248

“The question is whether it has been established that it might reasonably be suspected by fair minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind.”

There are a number of situations in which a “fair minded person” might have doubts that a judge will resolve the issues before him or her with a “fair and unprejudiced mind”.  These may include where the judicial officer, or someone related in some way to the judicial officer, has a material interest in the outcome of the case; where the judicial officer has previously expressed views reflecting a bias against either litigant (Mann v Northern Territory News[7]); where the judicial officer has had some communication with either party, or has acted in some other way so as to raise the possibility of an appearance of bias (Re JRL; ex parte CJL[8], at p350 per Mason J) or where the judicial officer has given a decision on the issue being litigated previously.

[7] (1988) 88 FLR 194

[8] (1986) 161 CLR 342

In Hinton v Mill[9] King CJ considered whether the remarks of a magistrate during a trial might give rise to a claim for bias.  Referring to Vakauta v Kelly[10], he said:

[9] (1991) 57 SASR 97 at 100

[10] (1989) 167 CLR 568

“It is an important  part of the role of a magistrate in a busy court to endeavour to prevent the prolongation of a hopeless case by indicating his provisional views to counsel at an appropriate stage in the hearing.  It is important, of course, that he should not close his mind to other views, and, if the case proceeds, be able to retain an open mind until the conclusion of the case.

Later, discussing the requirement that a specific application be made by the aggrieved person that the judge disqualify himself, King CJ (at p236) said:

“I note that counsel at the hearing before the magistrate did not ask the magistrate to disqualify himself.  That, to my mind, is of itself fatal to this point on appeal.  A party is not entitled to stand by until the final judgment is known, and then, if its contents are unpalatable, attack the decision on the ground that, by reason of the earlier comments, there has been a failure to observe the requirement of the appearance of impartiality.”

The appellant’s complaints of bias in this case all appear to have arisen in the context of his disaffection with rulings made by the Deputy President which were adverse to arguments presented by the appellant. These included such matters as the refusal of the Tribunal to state a case to the Supreme Court on the interpretation of s119, the refusal to allow the appellant to rely upon comparators and the limitation upon the appellant’s ability to cross-examine Mr Wingrave. The learned Deputy President correctly found, however, that he had no power to make a declaratory judgment with respect to s119, in addition to which s119 is irrelevant to the issues to be decided herein. Accordingly, his refusal to state a case was justified. The Deputy President considered the submissions by the appellant as to the comparable earners but was not persuaded that this was an appropriate method of calculation in view of the many variables to which he referred. I am not therefore persuaded that he was in error in reaching that conclusion.

When Mr Wingrave was called it was expressed to be for the limited purpose of proving the receipt by the appellant of the letter dated 1/6/94.  Nevertheless, the Deputy President allowed the appellant considerable latitude in the course of his cross-examination although he endeavoured to limit the cross-examination to matters which appeared relevant to the issues before the Tribunal.  As the appellant was unrepresented this caused some difficulty but looked at overall, the Deputy President, I think, endeavoured to do the best he could in what were patently difficult circumstances. 

For example, at AB 301, following a direction by the learned Deputy President as to the lack of relevance concerning a matter which was not before the Tribunal, the appellant stated “Well, I do, sir, I feel I’m being treated about as fairly as a Jew might have expected in Nazi Germany at the moment, I can tell you.”

The Deputy President permitted the appellant the opportunity to withdraw that comment and continued to deal with the matter.  At no time did the appellant ask the Deputy President to disqualify himself and, having looked at the transcript of the hearing before the Tribunal, I am not persuaded there is anything contained therein which might cause a reasonable observer to apprehend that the Tribunal might not or would not resolve the issues with a fair and unprejudiced mind.

Costs:

There remains the question of costs.

Review Officer Sargent appears not to have made an order as to costs on the basis that there was no reviewable decision before him and therefore he lacked jurisdiction to make the orders sought.  The Deputy President commented that although there was no reviewable decision this did not of itself mean there was no jurisdiction to award costs but then took the view that the appellant should only receive 50% of the costs to which he was entitled.

Section 95(1) provides:

........ “A party (other than the relevant compensating authority) is entitled, subject to this Part and to limits prescribed by regulation, to an award against the relevant compensating authority for the party’s reasonable costs of -

........ (a)     the initial reconsideration of a disputed decision; and

(b)... any subsequent proceedings for resolution of the dispute under this Part (but not proceedings by way of an appeal or case stated to a Full Bench of the Tribunal or the Supreme Court).”

But s95(3) of the Act provides:

“If the Tribunal is of the opinion that a party acted unreasonably, frivolously or vexatiously in bringing or in relation to the conduct of proceedings, the Tribunal may -

(a)..... decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(b)..... reduce the amount of the award to which the party would otherwise have been entitled.”

The Deputy President clearly felt that the proceedings should have been conducted more expeditiously and he attributed the delay to the appellant’s attitude towards the proceedings generally. It is clear that the proceedings have been protracted, and the appellant’s unwillingness to accept various findings by the Tribunal has contributed to that matter.  I am mindful, however, of the fact that the appellant is unrepresented.  The history of the matter set out herein demonstrates a degree of confusion and some errors made by the respondent in the calculation of the appellant’s entitlement .  This undoubtedly contributed to the confusion which has arisen in respect of the matter and added to the appellant’s difficulty in presenting his case to the Tribunal.  In all the circumstances, I would not deprive the appellant of his costs.  I would allow the appeal to the extent that I would make an order in favour of the appellant to receive all of the costs to which he is entitled.

Matheson J:

I agree with the judgment and reasons of Nyland J.  I would only allow the appeal on the question of costs.

Duggan J:

I agree that this appeal should be allowed only in relation to the issue of costs.

I agree with the reasons given by Nyland J.