Fennell v Kentz (Australia) Pty Ltd - [2023] NTSC 42

CITATION: Fennell v Kentz (Australia) Pty Ltd [2023] NTSC 42

PARTIES: FENNELL, Terrence

v
KENTZ (AUSTRALIA) PTY LTD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT exercising Territory jurisdiction

FILE NO: 2022-01418-SC

DELIVERED: 30 May 2023

HEARING DATE: 19 September 2022

JUDGMENT OF: Grant CJ

CATCHWORDS:

CIVIL PROCEDURE – Pleadings – Striking out – Amendment – Adequacy of reasons

Whether orders striking out parts of statement of claim made without consideration of evidence – Where the refusal of leave to amend made without proper consideration of evidence or submissions – Whether reasons for refusal of leave to amend inadequate – No error in discretionary determination unless failure to take into account relevant matters, irrelevant matters taken into account or outcome manifestly unreasonable – Order striking out claim for sequelae injuries not actuated by failure to take into account relevant matters or by having regard to irrelevant matters, and outcome not manifestly unreasonable – Although process errors committed the refusal of leave to amend pleadings to replead claim for sequelae injuries was not unreasonable – Paucity of reasons do not warrant setting aside decision – Appeal dismissed.

Return to Work Act (NT) s 116
Work Health Court Rules 1999 (NT) r 8.08, r 18.03, r 18.04

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Brooks v Wyatt (1994) 99 NTR 12, Elders Rural Finance Limited v Tapp [1993] NTSC 20, House v The King (1936) 55 CLR 499, Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, Liddle v North Australian Aboriginal Legal Aid Service Inc [1993] NTSC 78, McDonnell Shire Council v Miller [2009] NTSC 46, Queensland v JL Holdings (1997) 199 CLR 146, Sali v SPC Ltd (1993) 67 ALJR 841, Thorne v Kennedy (2017) 263 CLR 85, Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32, United Super Pty Ltd v Randazzo Investments Pty Ltd [2009] NTSC 50, Wilson v Lowery (1993) 4 NTLR 79, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, Woodhead Australia (SA) Pty Ltd v The Paspalis Group of Companies (1991) 103 FLR 122, referred to.

REPRESENTATION:

Counsel:
Appellant: D Skennar KC with J Nottle
Respondent: JW Roper SC

Solicitors:
Appellant: Hall Payne Lawyers
Respondent: Hunt & Hunt Lawyers

Judgment category classification:             B
Judgment ID Number:  GRA2305
Number of pages:  65

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fennell v Kentz (Australia) Pty Ltd [2023] NTSC 42

No. 2022-01418-SC

BETWEEN:

TERRENCE FENNELL
Appellant

AND:

KENTZ (AUSTRALIA) PTY LTD
Respondent

CORAM: GRANT CJ

REASONS FOR JUDGMENT

(Delivered 30 May 2023)

This is an appeal from interlocutory orders made by the Work Health Court on 7 December 2021, 7 February 2022 and 22 March 2022. The cumulative effect of those orders was to strike out those parts of the appellant’s statement of claim pleading injuries by way of sequelae to the original injury (the sequelae injuries), and to preclude the appellant from amending the statement of claim to replead the claim for compensation in relation to the sequelae injuries. The grounds of appeal are, in essence:
1.that the orders on 7 December 2021 and 7 February 2022 striking out those parts of the statement of claim pleading the sequelae injuries were made without considering whether there was sufficient evidence in support of the claim for compensation for those injuries;
2.that the order on 22 March 2022 refusing the application for leave to amend the statement of claim to replead the claim for compensation in relation to the sequelae injuries was made without a proper consideration of the evidence filed in support of the application;
3.that the order on 22 March 2022 was made without proper consideration of the appellant’s submissions that there was sufficient evidence to support the claim for the sequelae injuries; and
4.that the Work Health Court failed to provide proper reasons for refusing the application for leave to amend the statement of claim to replead the sequelae injuries.
Background and procedural history
On 7 January 2018, the appellant suffered an injury as a result of a fall arising out of, or in the course of, his employment with the respondent. That injury was constituted by fractured ribs. The appellant lodged a claim for compensation pursuant to the Return to Work Act 1986 (NT).
On 28 March 2018, that claim for compensation was accepted by the respondent and compensation was paid to the appellant.
On 24 April 2020, the payment of weekly compensation for loss of earnings was cancelled upon the service of a Notice of Decision pursuant to s 69 of the Return to Work Act on 24 April 2020. The reason given for the cancellation in that Notice was that the rib injury was no longer causative of any incapacity for employment.
On 25 June 2020, the solicitors for the appellant wrote to the solicitors for the respondent giving notice and making claim for compensation in relation to the sequelae injuries, which were particularised to include a head injury causing cognitive impairment; a chronic adjustment disorder; a chest wall injury described as ‘intercostal neuralgia’; a right shoulder injury; a right-sided neck injury; and back pain.
On 26 June 2020, the solicitors for the respondent advised the solicitors for the appellant that the respondent disputed any liability to pay compensation in relation to the sequelae injuries. No formal claim for compensation was subsequently made in relation to the sequelae injuries.
On 6 July 2020, the appellant commenced proceedings against the respondent in the Work Health Court challenging the cancellation of weekly compensation.
On 29 July 2020, the appellant commenced proceedings against the respondent in the Work Health Court challenging the respondent’s disputation of liability to pay compensation in relation to the sequelae injuries, and seeking compensation in respect of those injuries.
On 7 August 2020, the Work Health Court ordered the appellant to file and serve a statement of claim.
On 31 March 2021, the appellant filed a statement of claim in the proceedings challenging the cancellation of weekly compensation. That statement of claim also pleaded the appellant’s case in relation to the sequelae injuries, and at all material times the parties treated the two proceedings as consolidated.[1]
On 10 August 2021, the respondent filed an application to strike out the statement of claim.
On 7 December 2021, the Work Health Court heard the application. At that time the Work Health Court made a self-executing order requiring the appellant to serve any medical reports in support of the claim for the sequelae injuries by close of business on 4 February 2022, failing which the claim in relation to the sequelae injuries would be struck out. That order was made in circumstances in which counsel for the appellant was unable to advise the court what investigations and medical reports the appellant’s solicitors had relied upon in pleading the claim for the sequelae injuries; what medical reports the appellant would be seeking to rely on at hearing of the matter; what efforts had been made by the solicitors for the appellant to procure medical evidence in the eight months since the filing of the statement of claim; or whether any amendment to the statement claim would be made prior to hearing. In addition, the Work Health Court listed the matter for hearing for five days commencing on 9 May 2022, and made a backup listing for five days commencing on 21 March 2022.
On 4 February 2022, the appellant filed an application for an extension of time to 17 February 2022 within which to file and serve the medical evidence in support of the claim for the sequelae injuries. Prior to the filing of that application, the appellant had not served any medical evidence in support of the claim for the sequelae injuries; had not given notice of an intention to rely on any of the respondent’s medical evidence; and had not made any application to vacate the self-executing order.
On 7 February 2022, the Work Health Court heard the application for an extension of time. Following submissions the court refused the application for an extension of time and ordered that any further application in relation to the pleadings be filed by 25 February 2022.
On 14 February 2022, the appellant filed an amended statement of claim which pleaded the injury suffered on 7 January 2018 and asserted that the appellant remained incapacitated for work and required ongoing medical treatment.
On 21 February 2022, the respondent filed an application to have the amended statement of claim struck out.
On 2 March 2022, the Work Health Court heard the strikeout application. At that time counsel for the appellant submitted that the respondent had discovered medical evidence which supported the claim for at least one of the sequelae injuries, and sought leave to amend the statement of claim to replead the sequelae injuries. In response to those submissions the court adjourned the strikeout application to 22 March 2022, and required the appellant to file and serve any application to amend the statement of claim by 16 March 2022.
On 16 March 2022, the appellant filed and served an application to further amend the statement of claim to replead the sequelae injuries.
On 22 March 2022, the Work Health Court heard the application to amend the pleadings. After observing that the solicitors for the appellant had proffered no explanation for the delay in progressing the claim for the sequelae injuries since June 2020, when those injuries were first notified to the respondent, the court refused the application for leave to amend the claim and required the appellant to file and serve an amended statement of claim limited to the appeal against the notice cancelling compensation. That statement of claim was filed on 29 March 2022.
On 27 April 2022, the appellant commenced proceedings in the Supreme Court seeking judicial review of the orders made on 7 December 2021 and 7 February 2022.
On 3 May 2022, the respondent made application seeking the summary dismissal of those proceedings. On 6 May 2022, an order for summary dismissal was made by the Supreme Court.
On 9 May 2022, with the consent of the parties the Work Health Court ordered judgment in favour of the respondent in relation to the appellant’s appeal against the notice cancelling compensation; dismissed the proceedings commenced by the appellant; vacated the hearing dates; and ordered the appellant to pay the respondent’s costs of and incidental to the proceedings. The appellant’s consent to those orders constituted an abandonment of the appeal against the notice cancelling compensation.
On 2 June 2022, the appellant filed the subject appeal to this Court.
The nature of the appeal
Appeals from the Work Health Court to the Supreme Court in proceedings brought under the Return to Work Act are restricted under the terms of s 116 of that Act to ‘a question of law’. The nature of an appeal of this type was described by the Court of Appeal in Lee v Macmahon Contractors Pty Ltd[2] with reference to the decisions in Tracy Village Sports & Social Club v Walker[3] and Wilson v Lowery[4]. The governing principles may be summarised as follows:
(a)If in evaluating the evidence of witnesses the tribunal below prefers one account to another, that decision is a question of fact and is not reviewable on appeal. Even where the reason given for preferring one witness to another is patently wrong, no appeal will lie.[5]
(b)When making a finding of fact, if there is evidence which would support that finding, there is no error of law. That is so regardless of the tribunal’s reasons for making that finding.[6]
(c)A finding of fact cannot be disturbed on appeal on the basis that it is wrong, perverse, against the evidence or the weight of the evidence, or contrary to the overwhelming weight of evidence.[7]
(d)There will only be an error of law if there is no evidence at all to support a finding of fact which is crucial to the ultimate determination.[8]
Those principles are concerned largely with the fact-finding process. In the present case, the errors asserted by the appellant largely involve the exercise of judicial discretion in the case management process. An appeal court will not set aside or vary a discretionary determination unless it is satisfied that the sentence is affected by an error of the type identified in House v The King.[9] Those errors include a failure to take into account relevant matters; having regard to irrelevant matters; acting on a wrong principle; and what might compendiously be described as unreasonableness in the outcome. However, a failure to give adequate weight to a relevant matter is not in itself an appellable error. Only a failure to have regard to it at all is an error which justifies interference with the discretion. A failure to give adequate weight to a relevant matter is only of any significance if it has resulted in an outcome which is plainly and manifestly unreasonable.
No consideration of evidence
Against that background, the first ground of appeal is that the orders on 7 December 2021 and 7 February 2022 striking out those parts of the statement of claim pleading the sequelae injuries were made without considering whether there was sufficient evidence in support of the claim for compensation for those injuries;
The relevant order made on 7 December 2021 was in the following terms:
The Worker is to serve any medical reports to support his claim in paragraph 12 of his Statement of Claim by close of business on the 4^th of February 2022 or else the Worker’s claim in relation to the “Second Claim” is struck out.
The pleading in paragraph 12 of the Statement of Claim related to the claim for the sequelae injuries, as did the reference to the “Second Claim”.
The relevant order made on 7 February 2022 was in the following terms:
Worker’s Application for an extension of time to serve medical reports is refused consequently paragraph 12 of Statement of Claim is struck out.
It is necessary to put those orders in their proper context in order to assess the appellant’s contention that the Work Health Court failed to consider whether there was sufficient evidence in support of the claim for compensation relating to the sequelae injuries. As already described, the respondent filed its application to strike out the statement of claim on 10 August 2021. The ground given for the application was ‘want of prosecution’. By that point in time, the proceedings had been on foot for something in the order of 13 months.
The respondent’s solicitor filed an affidavit in support of the application for strike out which was also made on 10 August 2021. In its early parts, the affidavit deposed to the bare chronology of events up to the commencement of the proceedings in July 2020. The affidavit then deposed to the following matters:
(a)pleadings had closed, discovery was complete and the appellant had served only one medical report which had been authored by a neuropsychologist dated 6 April 2021;
(b)the lists of documents which had been filed in the proceedings included a multiplicity of medical reports;
(c)the matter had been adjourned on multiple occasions to enable the appellant’s solicitors to obtain medical evidence and reports in relation to both the original injury and the sequelae injuries; and
(d)the appellant’s solicitors had not provided any additional medical reports or evidence in support of the original injury and the sequelae injuries beyond the report of the neuropsychologist.
The neuropsychologist’s report was annexed to the respondent’s affidavit. The opinion in that report was directed primarily to the question whether the reductions in the appellant’s cognitive capacity were referable to any work-related injury. The author opined that there were validity concerns arising during the course of the assessment because the appellant was not performing adequately on measures designed to detect suboptimal effort or an unreliable responding pattern. The author concluded that there was not good evidence that the appellant had sustained a significant traumatic brain injury in the workplace fall. Neuroimaging taken in the aftermath of the fall did not reveal any acute abnormality, and the appellant did not begin to report any form of cognitive impairment until several months after his discharge from hospital. The appellant also had an essentially unremarkable neuropsychological assessment in December 2018, which was some 11 months after the fall in question, but at the time of the assessment in March 2021 was presenting with apparently profound and generalised deficits across his cognitive profile. The author’s ultimate opinion was that the appellant’s situation was most likely explained as either secondary to a severe set of chronic pain and psychological illness, or the onset and progression of a neurodegenerative disorder.
The neuropsychologist’s opinion was to the effect that the worker had not suffered a head injury causing cognitive impairment during the original fall. It provided no evidence in support of the appellant’s claim in respect of the other conditions said to constitute the sequelae injuries, with the possible exception of the claim for a ‘chronic adjustment disorder’. The neuropsychologist’s reference to the possibility of ‘chronic pain and psychological illness’ might possibly have been characterised as some form of adjustment disorder, but was not described as such in the report. The report also does not suggest any necessary nexus between those conditions and the appellant’s employment. It must also be noted that ‘chronic pain and psychological illness’ was proffered as just one possibility for the appellant’s presentation, with the other being a neurodegenerative disorder. For those reasons, the neuropsychologist’s report provided, at its highest, a potential and equivocal support for one of the conditions pleaded to constitute the sequelae injuries. It is unsurprising in those circumstances that the matter had been adjourned on multiple occasions to enable the appellant’s solicitors to obtain other medical evidence in support of the claim relating to the sequelae injuries, and unsurprising that the respondent was pressing an application for strike out for want of prosecution or, in the alternative, summary judgment.
The application was initially listed for hearing on 14 September 2021, but that hearing date was vacated. The hearing of the application was adjourned on a number of further occasions before it proceeded on 7 December 2021. The matter began inauspiciously on that day, as there was originally no appearance by the town agent for the appellant’s Queensland-based solicitors. The application proceeded once the town agent had been located and had confirmed that there was nothing from the appellant by way of affidavit evidence to explain the continuing delays and the lack of medical evidence in support of the appellant’s claim. The solicitor for the respondent then took the court through the history of the matter and to the state of the medical evidence as deposed in the affidavit which had been made on 10 August 2021. The solicitor for the respondent made the submission that the continuing delay made it increasingly difficult for the respondent to properly defend the matter.
The town agent’s submissions in relation to the further medical evidence were then as follows:
MS GRIMSTER:   … What I can indicate is that unfortunately I haven’t been able to confirm any instructions in relation to progressing the matter forward. But I have had some conversations with my instructor. I am opposing the application today but I have no submissions to make opposing any order requiring any medical reports to be relied upon by the worker to be filed and served by a certain date.
HER HONOUR:   So, you have no instructions as to what investigations or what medical reports your instructing solicitors relied upon when filing that statement of claim in March of this year?
MS GRIMSTER:   I don’t, your Honour.
HER HONOUR:   Because they can’t have filed and served that statement of claim or drafted that statement of claim without evidence.
MS GRIMSTER:   I don’t have instructions on that, I’m afraid, your Honour. And I don’t even have instructions on whether or not they seek to amend their statement of claim prior to proceeding to a hearing, including if there wasn’t medical evidence.
HER HONOUR:   Obviously, you know, if I could, Ms Grimster, I would be standing down this matter down for hearing in three months’ time. That is what I would be doing.
MS GRIMSTER:   Right.
HER HONOUR:   I can’t but that is what I would be doing. And there will be self-executing orders in that if the worker doesn’t do certain things, his claim will be struck out. That is what I am considering.
MS GRIMSTER:   I appreciate that, your Honour. And in the conversations that I have had with my instructor, I proposed attempting to get some consent orders for the worker to do certain things by certain dates, including filing any medical reports. And I proposed three months given the Christmas period at the moment.
HER HONOUR:   But what about the last eight months?
MS GRIMSTER:   I have nothing that I can assist your Honour with in relation to that.

There was then some discussion concerning an application which had previously been made by the solicitors for the appellant for the appointment of a litigation guardian, and subsequently abandoned. The Work Health Court then made its determination on the application as follows:
HER HONOUR:   … I am going to refuse your application to strike out the worker’s claim but I am going to make some working orders. So, if I make the order in relation to the second claim in par 12 of the statement of claim, that would be sufficient? So, I’m proposing the orders that be the application to strike out the worker’s claim is refused. The worker to serve any medical reports to support his claim in par 12 of his statement of claim.
MS CHEONG:   Yes.
HER HONOUR:   By close of business – what do you say is a reasonable time, Ms Cheong?
MS CHEONG:   I think your Honour was talking about March dates, and what have you. I would have thought even with the intervening Christmas holidays, no later than the end of January.
HER HONOUR:   End of January. I’m thinking of second listing it for 21 March and then giving it a first listing date.
MS CHEONG:   A second listing of 21 March, your Honour, would that be a half-day hearing?
HER HONOUR:   Yes.
MS CHEONG:   Thank you.
HER HONOUR:   So, if I make it a second listing on 21 March, then the medical reports are to be served by 4 February.
MS CHEONG:   Which is Friday.
…
HER HONOUR:   I’m talking about the second claim. So, the guillotine order will be made in relation to the second claim. And the claim for the ongoing issues in relation to the first injury will continue.
MS GRIMSTER:   I understand.
HER HONOUR:   And will be set down for hearing.
MS GRIMSTER:   If your Honour is setting the hearing today, and the worker intended to get a further medical report in relation to the first claim, that’s the rib injuries, then we would want leave of the court to serve that report also.
HER HONOUR:   Well, you have under the rules, Ms Grimster, an opportunity to do that within how many weeks?
MS CHEONG:   28 days.
HER HONOUR:   28 days before your hearing date. You don’t need - - -
MS GRIMSTER:   But to instruct a new – I am talking about the practice direction. I think it’s 19. To instruct a new medical professional after the matter has been listed for hearing, a party requires leave of the court. So - - -
HER HONOUR:   Why do you need a new medical practitioner?
MS GRIMSTER:   I don’t know, your Honour. Unfortunately, that is what I am saying. However if it might be easier to deal with that today.
HER HONOUR:   I am not going to give you leave unless there is a real reason.
MS GRIMSTER:   Your Honour is making orders today in relation to the worker serving all of his medical records he intends to rely on.
HER HONOUR:   No, medical reports in relation to the second claim.
MS GRIMSTER:   Right.
HER HONOUR:   Because that is the real complaint that the employer has.
MS GRIMSTER:   Right. I am just noting then for the court, your Honour, that the worker might seek to instruct a further medical professional in relation to - - -
HER HONOUR:   Well, then the worker needs to make a proper application for leave.
MS GRIMSTER:   Indeed. Thank you, your Honour.
…
HER HONOUR:   The application to strike out the worker’s claim is refused. The worker to serve any medical reports to support his claim in par 12 of his statement of claim by close of business 4 February 2022 or else the worker’s claim in relation to this second claim is struck out.
The matter is set down for hearing, second listing of five days commencing on 21 March and the first listing for five days commencing on 9 May. Parties to file and serve up-to-date list of documents within 14 days. And the matter is listed for a directions hearing at 9:30 on 7 February before myself. The costs of today are reserved.
MS CHEONG:   Thank you, your Honour.
HER HONOUR:   Yes?
MS GRIMSTER:   Nothing further. Thank you, your Honour.
HER HONOUR:   Okay, thank you.
A number of matters are apparent from that record. First, the Work Health Court did not conclude that the appellant had no arguable claim in relation to the sequelae injuries, and did not seek to analyse the medical reports which had been discovered for that purpose. Nor was the court requested to do so. Second, there was no submission or suggestion made on behalf of the appellant that he was properly able to prosecute his case in relation to the sequelae injuries on the basis of the medical material to hand, much less on the basis of the neuropsychologist’s report. It is clear that the appellant required the opportunity to obtain and serve further medical evidence in support of that claim. So much is apparent from the express statement by the appellant’s solicitor that the appellant was not opposing the making of an order requiring any medical reports to be relied upon by the appellant to be filed and served by a specified date. Third, the order made by the court was directed to the appellant’s dilatory conduct of the matter, rather than to whether there should be an order for summary judgment on the basis that there was no real question to be tried.
As already described, the appellant did not serve any further medical evidence or reports by close of business on 4 February 2022. Rather, on 4 February 2022 the appellant filed and served an application for an extension of time until close of business on 17 February 2022 within which to serve further medical evidence or reports in relation to the claim for the sequelae injuries. The appellant filed an affidavit in support of the application which was sworn by the principal of the appellant’s Queensland-based solicitors on 4 February 2022. That affidavit deposed that following the making of the orders on 7 December 2021, the deponent made inquiry of a neurologist to determine whether he would be willing and able to provide a supplementary report in the matter. The deponent also wrote to the appellant’s general practitioner requesting an updated copy of the appellant’s medical records to be included in a brief to the neurologist. Those updated records were received on 20 December 2021. The affidavit deposed that the neurologist was absent from work for approximately four weeks over the Christmas holiday period, and that it was anticipated that he would have the report finalised within two weeks. However, the affidavit made no attempt to explain why the letter of instructions was not sent to the neurologist until 4 February 2022, which was the date the application for an extension was filed and the affidavit in support was sworn.
The application was listed for hearing on 7 February 2022, at which time the self-executing order had already taken effect. The solicitor appearing for the respondent opposed the application for extension on that basis; and on the bases that the appellant had not established any proper excuse for the continuing delay and that the report proposed to be procured from the neurologist would carry little weight because it did not involve any further examination of the appellant. The submissions made by the solicitor for the appellant in response were as follows:
MR HALL:   Thank you, your Honour. I might just loop backwards from that point. I wasn’t aware that today was the day we were having the trial. At the end of the day, the weight of the evidence, is going to be a matter for the trial judge. That’s a problem potentially for the worker, in terms of your inability to grant the order today, that is a discretionary aspect that is – that is for your Honour. You have the power to order – make the orders nunc pro tunc, we say. In terms of the (inaudible), the – the fact that it was over the Christmas break, and we all had to deal with that, the only point I would make in relation to that is, I did make some inquiry just as to, for the benefit of the court in terms of the prospects of we are going to able to get that report by 12 February anyway.
There’s probably some – there was probably – it’s probably fair to say that there’s going to be some doubts as to whether that’s going to occur, given we obtained from Professor Chambers’ rooms that he was absent for four weeks, and doesn’t work Thursdays and Fridays. It’s simply there just to give your Honour some, I suppose, context in terms of timeframe, eight weeks. It’s not the case that (inaudible) the point about (inaudible) evidence of Dr Chambers (inaudible) again. I can’t see the relevance of it for today’s purposes. But given it has been raised, I will also note that it’s not some four years, it’s some two-and-a-half years, which is December.
So – and indeed, evidence was given by the experts, constantly, where they hadn’t seen the individual subject to report or opinion a second time. Dr Chambers – Professor Chambers may well say that he needs to see our client – our client has significant agoraphobia issues, as is known. So that would be something that would probably have to occur at the GPs rooms over a video or a conference call, or such situation. In any event, I can’t see why it’s relevant for today’s purposes, as to the weight or the probative value that might attach to a report like that, that’s something that we might have to deal with on the day. But I think, importantly, there is no – there’s no restriction on your Honour’s discretion to allow the application nunc pro tunc.
HER HONOUR:   Yes, and why would I allow it?
MR HALL:   That would (inaudible)
HER HONOUR:   Yes, assuming I say I have the power, and the jurisdiction to make an order nunc pro tunc, why would I make that order, Mr Hall?
MR HALL:   I think the – I suppose, if I could use the expression the (inaudible) plaintiff or the worker im the (inaudible) situation, on the terms (inaudible) in a – in a most timely manner. That’s all I (inaudible).
The solicitor for the respondent then drew attention to the fact that the proposed report from the neurologist did not address the sequelae injuries pleaded in paragraph 12 of the statement of claim in any material sense. During the course of the submission the solicitor for the respondent took the court to the content of the neurologist’s first report. That exchange proceeded as follows.
MS CHEONG:   Yes, your Honour. I don’t know if it would assist your Honour, and I – but I do have a copy of Professor Chambers’ report. I go back to my primary submission. Professor Chambers goes to – if I could hand it up to your Honour, that might assist your Honour, because he only talks about very selective – my friend’s attempt to preserve par 12, with respect, is – well, doesn’t come from Professor Chambers’ report.
HER HONOUR:   Right. So ‑ ‑ ‑
MS CHEONG:   Professor Chambers’ report does not go to any of the matters that are raised in par 12, so ‑ ‑ ‑
HER HONOUR:   Yes, so par 12 relates to cognitive impairment, head injury, chronic adjustment disorder, chest wall injury, neuralgia.
MS CHEONG:   One thing ‑ ‑ ‑
HER HONOUR:   Shoulder injury, right-sided neck injury and back pain, being the further injuries.
MS CHEONG:   The only thing that Professor Chambers says – and he notes some other symptoms, but he deals with intercostal neuralgia as a result of the rib’s fracture. My friend already has that injury, in, I think, par 5 of the statement of claim, which relates to the cancellation, your Honour – par 5.
HER HONOUR:   Paragraph 5 of the statement of claim is the particulars.
MS CHEONG:   Sorry. There is ‑ ‑ ‑
HER HONOUR:   So is par 7.
MS CHEONG:   I apologise. Paragraph 7, which talks about the cancellation ‑ ‑ ‑
HER HONOUR:   Talks about the cancellation of neuralgia ‑ ‑ ‑
MS CHEONG:   Yes, so he still has that. Professor Chambers’ report doesn’t go to any of the others. In fact, it says there’s no – no head injury, minimal cognitive bits and pieces, and if you look at the letter that my friend has attached to his affidavit ‑ ‑ ‑
HER HONOUR:   So basically what you’re saying is that Professor Chambers is not – they’re not going to be precluded by the strike out of par 12 ‑ ‑ ‑
MS CHEONG:   To rely on it.
HER HONOUR:   They’re not going to be precluded in relying on Professor Chambers and/or any addendum report that he might – they might want to ‑ ‑ ‑
MS CHEONG:   But what we have complained about and what has brought about that order, as a result of our strike out application, is this additional injuries that have been pleaded in par 12, that we say there is limited or no evidence of, and doesn’t look like the worker is going to get any more on that, that should not be permitted to remain as the parties proceed towards the hearing – the second list hearing is in March, your Honour, and the first one is in May. So if you – as I said, Professor Chambers goes to the cancellation issue.
Nothing in Professor Chambers’ report support the other – apart from the intercostal neuralgia – that goes to par 12. The employer should not be put to the expense of further last minute medical – there’s no psych report, for example. There is one report about cognitive deficits that my friend already has, but it’s 50/50 whether it’s dementia or whether it’s related – that have that already, but it’s not particularly convincing. But par 12 should not be allowed to stand, given that we are two-and-a-half years after the cancellation, after the worker has commenced these proceedings. The employer ought not be required to meet allegations for which we say – most of which the worker doesn’t have supporting evidence. There may be a final grab of that just before the hearing, and then we are either put to expense or it has got to go off. That’s the difficulty I have.
…
And just lastly, on Mr Hall’s attachment, CJH01, at page 2 of his affidavit, you will see that the only questions asked is to confirm his diagnosis, provide an opinion about incapacity – so on page 2, that’s question 123, and the permanent impairment assessment. Nothing of that touches on the other issues raised in par 12. So your Honour’s order should stand. The purpose of that order was for the worker to get his house in order to be able to prosecute the additional injuries. There’s no evidence before you with respect that the worker has that, or intends to even get that. So the strike out should stand, with respect, and that doesn’t preclude my friend from going to Dr Chambers, and doesn’t preclude the progression of the trial moving forward on the cancellation.
The concession made by the solicitor for the respondent was that the neurologist’s opinion dealt with intercostal neuralgia, that was an assertion of a physical chest wall injury which occurred at the time of the original fall, that assertion was pleaded as part of the appellant’s appeal against the cancellation of weekly compensation, and that it would remain open to the appellant to press the assertion of continuing injury and consequential incapacity in the context of that appeal. The solicitor appearing for the appellant did not take issue with that analysis of the pleadings or that characterisation of the neurologist’s evidence. The substance of the court’s decision on the application was as follows:
HER HONOUR: My view is that the worker’s application for extension of time to serve medical reports ought to be refused. We took into account the Christmas period when I allowed further time for those extra reports. I am not of the view that the request for a report from Dr Chambers addresses those issues in par 12, and the par 12 of the statement of claim is struck out as per the self-executing order of 7 December. Now, arising out of that, the employer is – I’m just trying to find my notes – so the – now we are left with a dispute in relation to the cancellation‑ ‑ ‑
[Discussion of pleadings and programming orders]
HER HONOUR: … So the orders today will be worker’s application for extension of time to serve medical reports is refused consequently. Paragraph 12 of the statement of claim is struck out. The worker to file and serve draft amended statement of claim within seven days, the employer to file and serve amended defence to amended statement of claim within seven days of service – sorry, of amended statement of claim. Any application relating to the pleadings to be filed by the close of business of 25 February, and costs of this interlocutory application is reserved – are reserved.
A number of matters are apparent from that record. First, the Work Health Court again did not conclude that the appellant had no arguable claim in relation to the sequelae injuries, and only gave attention to the prospective neurologist’s report in order to conclude that it would not address the sequelae injuries with the exception of a physical injury which formed part of the appellant’s appeal against the cancellation of compensation for the original injury. Second, there was again no submission or suggestion made on behalf of the appellant that he was properly able to prosecute his case in relation to the sequelae injuries on the basis of the medical material to hand without further medical evidence in support of that claim. Third, the focus of the inquiry was the appellant’s failure to serve medical evidence in substantiation of the sequelae injuries within the time previously ordered. The determination made by the court was directed to the appellant’s dilatory conduct of the matter and the failure to serve the necessary medical evidence in accordance with the terms of the order made on 7 December 2021, rather than to whether there should be an order for summary judgment on the basis that there was no real question to be tried.
It does not now avail the appellant to identify references in the neuropsychologist’s report dated 6 April 2021 to statements by other health practitioners and other reports which might conceivably have sustained a finding that the appellant was suffering from a work-related chronic adjustment disorder. At no time on either 7 December 2021 or 7 February 2022 did the appellant’s representatives suggest that the medical evidence to hand provided a sufficient basis on which to prosecute the appellant’s claim for the sequelae injuries; the references in the neuropsychologist’s report would not thereby become admissible as opinion evidence without the relevant health practitioners being called to give evidence at hearing; and the appellant had not served any of those reports or otherwise indicated that it would be relying on them in order to establish the sequelae injuries. The dismissal of the application for an extension of time was directed to the appellant’s continuing default in serving (or otherwise identifying) medical evidence in support of the claim for the sequelae injuries. Contrary to the appellant’s assertion on appeal, it was not in either substance or effect a ‘summary dismissal’ of the appellant’s claim. The appeal against cancellation remained on foot. It remained open to the appellant to procure evidence in support of the claim for the sequelae injuries, and/or to seek leave to replead the claim for compensation in respect of those injuries. As is discussed further below in the context of the second ground of appeal, although the appellant did not pursue the first course, he did pursue the second.
The appellant does not assert in this appeal that the Work Health Court had no power to make a self-executing order in the form made. The appellant’s contention is that the court’s discretion miscarried in the making of the self-executing order, and that the court had no jurisdiction or power to strike out pleadings or part of a pleading for want of prosecution.
So far as the self-executing order is concerned, it was made in the presence of the parties and there is no doubt that the appellant had clear notice of the terms of the order and its effect. While counsel for the appellant in this appeal draws attention to the fact that the statement of claim had only been filed in March 2021, the worker had commenced proceedings in July 2020 and had first been ordered to file and serve a statement of claim by close of business on 16 October 2020. On 7 December 2021, the solicitor then appearing for the appellant did not oppose an order requiring the medical evidence to be relied upon by the worker in the claim for the sequelae injuries to be filed and served by a certain date. The appellant’s solicitor proposed three months for that purpose. The court allowed two months. The appropriate course for the solicitors for the appellant to take once it became apparent to them that the neurologist would be unable to provide a further report within that timeframe was to make a prompt application to the court for an extension of time. Not only did the solicitors for the appellant not do so until the afternoon on which time for the service of the further medical evidence was to expire, but they also did not provide a letter of instructions to the neurologist until that same day.

It is not necessary that a party must be shown to be in default of some specific rule of court or previous order before a self-executing order may be made. It is only necessary that there be a relevant degree of fault on the party against whom the order is made. In the present matter, there was no suggestion on either 7 December 2021 or 7 February 2022 that the appellant was not in default in terms of procuring and serving medical evidence in support of the claim for the sequelae injuries, nor was there any explanation proffered for the failure to do so in the period up to December 2021. The final point to be made in this respect is that the self-executing order was not one which resulted in a summary judgment or summary dismissal.
So far as striking out the pleadings is concerned, although the Work Health Court Rules 1999 (NT) make no specific provision for striking out a pleading or part of a pleading, and although the Work Health Court has no inherent jurisdiction, it does have such implied jurisdiction as is necessary to regulate its own proceedings. That jurisdiction and power extends to striking out a pleading in the circumstances which presented in this case. That was an exercise of the court’s discretionary power in service of the objectives of case management. The content of r 21 of the Work Health Court Rules does not lead to any different conclusion. It provides that the court may order default judgment on the basis of a failure to comply with the Rules or an order of the court, or summary judgment on the basis that there is no real cause of action or no real defence or that the proceeding is frivolous, vexatious or an abuse of process. The express provision for the summary determination of a claim or defence on those grounds does not suggest a legislative intention to displace or curtail the implied jurisdiction in relation to pleadings and case management.
The nature and scope of the case management discretion is discussed further below in the context of the second ground of appeal. It suffices to say for these purposes that neither the order made on 7 December 2021 nor the order made on 7 February 2022, either alone or in combination, was actuated by a failure to take into account relevant matters or by having regard to irrelevant matters, and the outcome was not plainly and manifestly unreasonable. Accordingly, no error in the exercise of the discretion has been established and this ground of appeal must fail.
No proper consideration of evidence
The second ground of appeal is that the order on 22 March 2022 refusing the application for leave to amend the statement of claim to replead the claim for compensation in relation to the sequelae injuries was made without a proper consideration of the evidence filed in support of the application. The application was made in Form 6A dated and filed on 16 March 2022. It sought the following order:
Leave for the Plaintiffs [sic] to file and serve Amended Statement of Claim in accordance with Annexure A to this interlocutory application.
The proposed Amended Statement of Claim was not annexed to the application, but in subsequent correspondence it was confirmed that the document was annexed at ‘CJH-10’ to the affidavit sworn by the appellant’s solicitor on 16 March 2022 in support of the application. The proposed amended pleading claimed that the appellant had sustained injury secondary to the rib injuries, that the worker remained incapacitated for work as a consequence of the rib injuries and the secondary injuries, and that the worker had incurred medical, treatment and rehabilitation expenses in relation to the rib injuries and the secondary injuries. The pleading did not particularise the ‘secondary injuries’, but annexure ‘CJH-11’ to the affidavit provided a schedule of the secondary injuries and the evidence said to sustain a finding that they were secondary to the rib injuries. That schedule listed ‘cognitive impairment injury’, ‘chronic adjustment disorder’, ‘chest wall injury (intercostal neuralgia)’, ‘right shoulder injury’, ‘right-sided neck injury’ and ‘thoracic spine injury’. That is essentially a catalogue of the injuries pleaded as the sequelae injuries in paragraph 12 of the original statement of claim, and as pleaded ostensibly as injuries sustained as the result of the initial fall in paragraph 7 of the proposed amended statement of claim.
In order to assess the contention that the Work Health Court refused the application to replead without a proper consideration of the evidence filed in support of the application, it is first necessary to identify what that evidence was. The schedule of secondary injuries has five columns which describe: (1) the relevant paragraph of the statement of claim; (2) the relevant injury; (3) the medical report or other document providing opinion in relation to that injury; (4) the relevant excerpt containing the opinion; and (5) ‘MY OBSERVATIONS’ in relation to the opinion. The author of the schedule of secondary injuries is not identified. Having regard to the context and the content of the observations column, the author would appear to be a barrister or solicitor engaged on behalf of the appellant to analyse and provide advice in relation to the evidence discovered by the respondent which might support a claim for the sequelae injuries. The medical reports or other documents referred to in the schedule and subject to those observations are contained at annexures ‘CJH-1’ to ‘CJH-9’ to the affidavit.
The first matter to be noted in relation to the analysis is that none of the opinion evidence identified was admissible unless the author was called by the appellant to give evidence at trial. The respondent had indicated in the hearing of the previous application that it intended to rely only on the medical report and certification which had been served in support of the notice cancelling benefits. Rule 18.03 of the Work Health Court Rules specifies a procedure by which a party who is provided with a medical report by the other party as part of the discovery processes must, if that receiving party intends to rely on the whole or a part of the medical report at hearing, serve the other party with a notice of intention to rely on the report as soon as practicable. Rule 18.04 of the Work Health Court Rules provides that a party served with such a notice (in this notional example, the respondent) may require the serving party (in this example, the appellant) to arrange for the attendance of the medical expert for cross examination at the hearing. If the medical expert is not made available by the serving party for that purpose, the court may not, and ordinarily will not, receive the medical opinion in evidence. As already noted, at no time up to and including the application to replead the sequelae injuries had the appellant served the respondent with notice pursuant to r 18.03 of the Work Health Court Rules that it intended to rely on the whole or a part of any of the documents referred to in the schedule.
The second matter to be noted in relation to the observations contained in the schedule is that they provide a frank and unvarnished assessment of the shortcomings in the evidence said to support a claim for the sequelae injuries. The first entry in the schedule is typical. It identifies the relevant injury as ‘cognitive impairment head injury’, it identifies the supporting material as a letter from a neuropsychologist dated 18 February 2019, and it describes the relevant excerpt as ‘significantly reduced information and psycho motor processing speed’. The observations column then records the following entry in relation to the letter:
1.    This is a letter rather than a formal report.
2.    The letter was for the purpose of treatment rather than as an [independent medical expert].
3.    The letter is 3 years old. Its weight would be minimal.
To those observations might be added the fact that the relevant excerpt extracted in the schedule does not identify any relevant nexus between the cognitive deficits reported and the initial work-related injury. There are similar observations made in relation to a number of the other medical reports. Yet other reports attract observations such as ‘[t]here is no formal diagnosis of a cognitive impairment head injury’, and ‘[h]er conclusion is that his adjustment disorder … does not have a significant impact on his capacity to return to work’. The one feature the medical reports catalogued in the schedule share is that they are all dated and say nothing directed to the appellant’s condition at the time of cancellation or at the time of the application to replead. Those matters may go some way to explaining why the appellant had not served the respondent with notice pursuant to r 18.03 of the Work Health Court Rules that it intended to rely on the whole or a part of any of the documents referred to in the schedule. In fact, because the content of the schedule would appear on its face to be subject to legal professional privilege, and its incorporation in the affidavit material was so unsupportive of the appellant’s case, it might be queried whether its inclusion was made in error. However, no suggestion of inadvertent waiver was made either during the course of proceedings in the Work Health Court or in this appeal.
Although this ground of appeal is cast in terms that the refusal to allow the appellant to replead the claim for compensation in relation to the sequelae injuries was made without a proper consideration of the evidence filed in support of the application, it is in essence a contention that the Work Health Court erred in the exercise of the discretion by failing to take into account relevant considerations and/or by unreasonably refusing to allow the appellant to prosecute an arguable case. The principles described above in relation to the identification of error in discretionary determinations have application.
The amendment of pleadings is governed by r 8.08 of the Work Health Court Rules. It provides:
Amendments and orders as to form, filing and service
(1) Amendments are to be made to the pleadings that are necessary for determining the real questions at issue between the parties even though the effect of those amendments is to add or substitute a cause of action that arose after the commencement of the proceeding.
(2) At any stage of a proceeding, the Court may:
(a) allow a party to amend his or her pleadings in a manner and on terms the Court considers appropriate;
(b) order that the pleadings be in a particular form; or
(c)make orders in respect of the filing and service of pleadings.
That provision gives the Work Health Court a broad discretionary power to allow amendments, or to refuse to allow amendments, where appropriate. Although the exercise of the discretion potentially brings into consideration many and diverse factors, the authorities draw attention to three particular factors in determining whether leave to amend is properly granted.[10] The first is whether the applicant has made the application in good faith. The second is whether the proposed amendments are so obviously futile that they should not be allowed. The third is the question of prejudice. Provided the party seeking to amend has not acted in bad faith and that any prejudice occasioned by the amendment can be ameliorated by an award of costs or otherwise, an amendment should be allowed unless it is obviously futile.[11]
An applicant for leave to amend bears the onus of establishing that it does so in good faith. This will require a consideration of the circumstances in which the application was made, the conduct of the proceeding so far on behalf of the applicant, and the nature of the claim (or defence) sought to be added by the amendment.[12] When considering the question of futility, the merits of the matter are not determinative. The fact that a claim may appear not to have much chance of success is not sufficient reason in and of itself to refuse leave to amend. Provided the case is arguable, whether it ought to succeed or not is a matter for determination at trial.[13] Prejudice in the relevant sense is not limited to the prejudice the other party to the proceedings would suffer if the amendment was allowed, and whether that prejudice may be overcome by an appropriate award of costs.[14] The question of prejudice and injustice necessarily requires a consideration of any interference with case management objectives, and the public policy of ensuring the efficient and expeditious completion of litigation.[15]
Against that background, the application came on for hearing on 22 March 2022. At that time, counsel for the appellant’s submissions proceeded as follows:
MR NOTTLE: Yes, your Honour.   In support of that application I do read the affidavit of Cameron John Hall dated 16 March 2022.
HER HONOUR:    Yes. I have that. Mr Hall, is that right?
MR NOTTLE:   Yes. Yes, your Honour, dated 16 March.
HER HONOUR:   Yes, I have that.
MR NOTTLE: Where the matter was left on the last occasion, your Honour, your Honour gave the worker a further opportunity to apply to amend the statement of claim and as I understood the proceedings, that was on the basis that the employer had previously sought to strike out the parts of the statement of claim that related to the secondary - the sequelae - - -
HER HONOUR:   Well, no, they have been struck out.
MR NOTTLE: Yes, sorry, in December there was that application and then because no further evidence had been filed on 7 February - - -
HER HONOUR:   The second claim was struck out.
MR NOTTLE:   Yes. And on the last occasion, as I understood it, your Honour, the worker was given the opportunity to seek leave to amend a statement of claim to include the sequelae injuries and to identify the evidence that could be relied on in support of those injuries.
HER HONOUR:   None of these medical reports have come into being since December of last year?
MR NOTTLE:   No, that's right.
HER HONOUR:   And in fact, when was my order? Was it December of last year?
[Recounting of procedural history by counsel for the respondent]
MR NOTTLE:   In my submission it can't be the fact that there is no additional evidence filed after 7 December - or before 7 February that should result in the worker being unable to progress his claim based on all of the injuries that he says he has. If there is already evidence in existence that could support each of those claims, that's the fundamental position that I advance, your Honour.
And, as I understood it - and I am not sure that my friend and I are on common ground, but as I understood it the employer was saying that there is no evidence in support of the sequelae injuries and in my submission there is, that has been exchanged between the parties and a lot of it served on the worker and that is all annexed to Mr Hall's affidavit. The various reports that refer to the sequelae injuries that the worker would rely on in support of his application.
HER HONOUR:   The difficulty with that argument, Mr Nottle, is that it was argued and I can't remember - it wasn't you - but it was argued before me that we need to get further evidence basically, and the evidence was not obtained and the worker is now asking for another chance to plead sequelae and get further medical evidence because there was a recognition that there was a need for further medical evidence.
MR NOTTLE:   I was instructed that the further report that the worker was going to obtain was an updated report from Professor Chambers, who has already provided a report. My instructor doesn't propose to continue to seek that updated report, so we are where we are in terms of the evidence that is to be obtained.
HER HONOUR:   Are you saying that your client's incapacity if he has any - and I haven't obviously looked at all the evidence - are you saying that your client's evidence will be - or your client's case is that (1) he continues to suffer an incapacity and the incapacity is caused by both the original injury and the sequelae?
MR NOTTLE:   Yes.
HER HONOUR:   And are you saying that his incapacity is caused by both or are you saying his incapacity is only caused by sequelae? What is the original injury? Was it a fall or something wasn't it?
MR NOTTLE:   It was - in terms of - it was Mr Fennell fell over with his arm outstretched in the shower and fractured some ribs.
HER HONOUR:   Yes.
MR NOTTLE:   And the worker's case is as a consequence of that that he suffered some complications including intercostal neuralgia, which is one of the pleaded other sequelae injuries and most perhaps significantly, has also developed a chronic adjustment disorder as a consequence of the pain and inability to go back to work.
HER HONOUR:   What about all this delay that we have had in this matter? It doesn't explain - Mr Hall doesn't explain that in his affidavit. I mean when you are getting seeking leave to amended pleas at this, you know, after all this delay, one would expect something in the affidavit to explain the delay - and there is nothing in there. All he does is attach the medical reports.
MR NOTTLE:   Yes. I don't know that I have an adequate answer for the delay, without speculating and so I don't propose to do that. The essential position again that I'd raise is that the hearing is listed for May. I am instructed that there is going to be no further evidence obtained and relied on, so the evidence already that the worker is intending to rely on is already available and much of it has been obtained by the employer, so the worker simply wants the opportunity to press his claim for his original injury and the sequelae injuries.
[Recounting by counsel for the respondent of date notice of cancellation served and date notice of sequelae injuries given]
MR NOTTLE:   So it is an unusual situation and perhaps to touch on the delay, your Honour, is a slightly unusual situation that the worker is going back to essentially, the original statement of claim.
HER HONOUR:   So this is the original statement of claim which I struck out?
MR NOTTLE:   On the basis that there has been no further evidence obtained.
HER HONOUR:   And why would I allow you to do that, Mr Nottle?
MR NOTTLE:   As I understand it, when that occurred there was no identification of the evidence to be relied on in support of those sequelae injuries. And that's why ‑ ‑ ‑
HER HONOUR:   That what is just that - what is reflected in the correspondence?
MR NOTTLE:   That is what the worker has sought.
HER HONOUR:   Does the correspondence reflect that? I think the correspondence would reflect that your client would have served Ms Cheong's office with all of those medical reports that you have referred to and were attached to Mr Hall's affidavit.
As I understood it, what Ms Cheong has put to me is that while there has been some medicals, there really isn't anything that is going to fully support - or support these claims anyway, and that's one of the reasons why the claim was unsuccessful.
MR NOTTLE: My concern, your Honour, is that for the worker to be prevented from advancing his claims for both the original and - or prevented from advancing the sequelae injuries where he says that there is evidence in support of those injuries, the strike-out is more what has happened is more analogous to summary judgment and - - -
HER HONOUR: Well it isn't because you've still got the employer having to prove that their s 69 is valid and supported.
MR NOTTLE:   But in relation to the sequelae injuries. It seems to me, your Honour, that he is now prohibited from advancing those claims where he says he has evidence in support of each of the claims.
HER HONOUR:   So apart from the fact you say it’s not fair, your client should be able to put these forward, even though he hasn't put this claim forward until after he was cut off.
MR NOTTLE:   Yes, well that's - and that creates some - - -
HER HONOUR:   And he supposedly has had these difficulties for some time and yet the employer is put on notice for them after the cancellation.
MR NOTTLE:   The authorities do support the position, your Honour, and just in terms of that chronology, the cancellation occurred in April and the mediation certificate for the original injury was issued on 19 June, 25 June, so accepting it is after the worker wrote to the employer identifying these other injuries and the following day those - the employer wrote back to dispute those claims and a second Certificate of Mediation was then issued. Subsequently, the statement of claim containing everything was then filed.
In my submission the authorities support the position that even after the statement of claim has been filed, if other disputes arise, that they can be joined, the court has discretion - - -
HER HONOUR:   I don't have a difficulty with that, Mr Nottle.
MR NOTTLE: Yes.
HER HONOUR:   I don't have difficulty with that at all but the situation is here your client's statement of claim for the sequelae injuries has been struck out, then you have to put before me an argument why it should not be reinstated. That is what you are asking me to do - reinstate his claim for a sequelae injury which is - there was a delay in making the claim in the first place. I haven't looked at the medical evidence but I understand the medical evidence is not necessarily strongly supportive of your client and he failed to comply with the court orders, not only my order in relation to the medical reports, but orders prior to that. There was an application to strike him out for want of prosecution basically.
MR NOTTLE:   Yes.
HER HONOUR:   It was only until then - it was only then that your client - and I knew nothing of your client - that your client has instructed his solicitor to actually do something like brief you, for example.
MR NOTTLE:   The matter is - in my submission the want of prosecution certainly has been overtaken by events. The matter has been listed for hearing. It comes back to what issues should properly be ventilated in that hearing and I am repeating myself to say that - I mean if perhaps if I can pause there and take a slightly different tack, if on the December application, on the strike out for want of prosecution, if the worker's position had been, "No, we don't propose to file any further evidence, we want it listed for hearing as soon as reasonably - as soon as the court is available" there would have been no guillotine order that was made on that occasion and the matter just would have proceeded to trial.

A number of observations should be made about that exchange and the position adopted by the appellant. First, as the court identified, at all times up to that point the appellant had maintained that it required further medical evidence in order to support the claim for the sequelae injuries. In these submissions, the appellant for the first time indicated that he was not going to obtain and rely on any evidence other than the material adverted to in the affidavit filed in support of the application. Counsel for the appellant also advised that the appellant would not be pursuing the further report from the neurologist which had previously been commissioned on 4 February 2022, without giving any reason for that position.
Second, counsel for the appellant conceded by implication that the appellant was unlikely to be able to assert a continuing incapacity as a result of the physical rib injury for which the claim was originally made and accepted, and that the most significant limb of the appellant’s claim for continuing incapacity would be a chronic adjustment disorder as a consequence of pain and the inability to go back to work. That inability to establish a continuing incapacity as a result of the physical injury is reflected in the fact that in May 2022 the appellant consented to judgment in favour of the respondent in the appeal against the notice cancelling compensation.
Third, the appellant’s indication of an intention to rely on the medical material, evidence and opinion adverted to in the affidavit filed in support of the application did not come to grips with the inevitable consequences of that position. Of the medical evidence adverted to in the affidavit, only the report of the neuropsychologist dated 6 April 2021 had been commissioned by the appellant for the purpose of the proceeding. The content of that report has already been described above, including, most significantly, that it provided no evidence in support of the appellant’s claim in respect of the sequelae injuries with the possible exception of the claim for a ‘chronic adjustment disorder’. However, ‘chronic pain and psychological illness’ was proffered as just one possibility for the appellant’s presentation, with the other being a neurodegenerative disorder. On the assumption that the appellant intended calling this neuropsychologist to give evidence in support of the claim for the sequelae injuries, it would have been practically and forensically necessary to procure further evidence from that neuropsychologist directed to whether there was any neurodegenerative disorder and what, on the balance of probabilities, was the cause of the appellant’s neuropsychological presentation. Once that had been done, and even if it was not, the respondent would inevitably have required opportunity to seek evidence in response to the proposition that the appellant’s presentation might be referable to chronic pain and psychological illness arising out of the initial injury. Given the timing of the appellant’s application, that inevitably would have required the vacation of the trial which had been fixed to commence on 9 May 2022.
Fourth, and as has already been described at some length above, the appellant’s stated intention of relying upon the other medical material, evidence and opinion which had been provided during the discovery processes had a number of significant consequences. That material was not admissible unless and until the appellant complied with the procedures in rr 18.03 and 18.04 of the Work Health Court Rules, which it had apparently made no attempt to do to that point in time, and unless the appellant arranged for the attendance of each of those medical professionals at trial to enable cross-examination. There was no indication given by counsel for the appellant during the course of submissions that the appellant recognised those requirements or that the appellant was prepared and able to arrange for the attendance of those medical professionals. Those requirements were recognised in the court’s query whether the appellant’s representatives had served the respondent’s representatives ‘with all of those medical reports that you have referred to and were attached to Mr Hall's affidavit’. It might also be noted in this respect that the appellant’s submissions did not at any time descend into the observations made concerning the limitations of that medical opinion in this schedule contained at annexure ‘CJH-11’ to the affidavit. Those limitations would have required the appellant’s solicitors in the proper discharge of their professional duties to procure updated and clarifying opinions from the medical professionals concerned. Even if the appellant had been able to comply with those requirements and was prepared and able to arrange for the attendance of those medical professionals, the respondent would have required opportunity to procure evidence in response, again with the inevitable vacation of the trial listed for May 2022.
This examination of the consequences of the position adopted by the appellant in the application is not for the purpose of assessing the merits of the claim for compensation for the sequelae injuries which the appellant sought leave to plead, or replead. Its purpose is to show that although there was no fault or inappropriate submission on the part of counsel on the application, the position adopted by the appellant in the application was, on an objective assessment, inconsistent with the position he had previously adopted, inconsistent with the content of the medical evidence on which he was now purporting to rely, and inconsistent with a genuine intention to have a matter proceed to hearing on the date for which the trial had been fixed. It was an attempt to reassert the claim for the sequelae injuries in circumstances in which the appellant had previously and repeatedly failed to fulfil his stated intention to procure the further evidence which it was accepted (at least implicitly) was necessary to support that claim; it acknowledged (at least implicitly) the absence of any cogent evidence in support of the appeal against cancellation of compensation for incapacity referable to the original physical injury; it ignored the very significant problems attending the medical evidence adverted to in the affidavit which had been expressly identified by the appellant’s representatives in the schedule at annexure ‘CJH-11’ to the affidavit, which of themselves would have required further evidence; and it failed to acknowledge the requirements necessary in order to adduce the medical opinion adverted to in the affidavit, and the inevitable consequences of those requirements in terms of case management.
Sali v SPC Ltd[16] is the first of the High Court cases in recent times which gives expression to the place of case management objectives in the exercise of discretion. In that case, the High Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’. Brennan, Deane and McHugh JJ stated:[17]
What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
In that same case, Toohey and Gaudron JJ (in dissent) stated:[18]
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. (footnote omitted)
It was acknowledged in that case that the trial judges called upon to exercise discretion of that type will have particular knowledge of the state of the court’s lists. It is also clear in the present matter that the judge constituting the Work Health Court had particular knowledge of the state of that court’s lists.
The subsequent decision of the High Court in Queensland v JL Holdings (1997) 199 CLR 146[19] explained that the decision in Sali had not displaced the proposition that justice remained the paramount consideration in determining applications to amend, in that case management principles could not ordinarily be employed to shut a party from litigating a case which was fairly arguable. However, it remained the case that the interests of justice required a balancing of all of the considerations identified in Sali. The factual situation under consideration in JL Holdings involved an application to amend to plead a fact which had only just been discovered, the matter had not been fixed for trial, and the fact and issue sought to be pleaded could not be avoided at trial.
As French CJ observed in Aon Risk Services Australia Ltd v Australian National University[20], JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions to allow amendments and adjournments. The discretion must be exercised not only with regard to the interests of both parties, but also with regard to ‘the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or … because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation’. Subject to overriding considerations of justice, courts must ensure ‘that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates on which they have had proper notice’. The pressure on the courts means that indulgence cannot be shown towards the negligent conduct of litigation, and costs are no longer considered to be a panacea for delay and prejudice.
The plurality in Aon Risk Services Australia Ltd took the same view of the operation of the decision in JL Holdings, and stated that ‘[s]ubject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party’s claim is dependent upon the exercise of the court’s discretionary power’. The exercise of the discretion will depend in turn upon factors such as delay and expense, because they are essential to a just resolution of proceedings. For that reason, it cannot be said that a just resolution requires that a party be permitted to raise any arguable case at any point on the proceedings, subject only to the payment of costs. The plurality concluded:
Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
The case management consequences of the appellant’s application for leave to replead in the present matter formed part of the court’s consideration, as is apparent from the following exchange:
HER HONOUR:   It always had those hearing dates, Mr Nottle, but the dates in may have been set. They certainly were set in December.
MR NOTTLE:   Yes.
HER HONOUR:   They were already there. So, they were there because it is obviously very hard to get hearing dates in this court. That doesn't mean that it can't be struck out for want of prosecution.
MR NOTTLE:   I accept that. But had the date been - or the date was listed in December, but if on that occasion the worker had said, "No, we are ready to go, we don't propose to file any further evidence" in my submission there would have been no need for that guillotine order in the first place.
HER HONOUR:   No. The guillotine order was made - it already had a hearing date and the guillotine order was made because the employer was entitled to know what it was facing and at that stage in December even though they already had May dates, what the employer was saying to me is, "We haven't got that - we don't know what that is and until such time, because the worker is saying that they are going to provide us with this, this and this, particularly updated medicals, we don't know what we are going to answer and that's why we want a guillotine order because if he doesn't produce them then we should be entitled to run the hearing in May as a strict appeal." And that's what the reasoning was because it already had a date in May.
[Counsel for the respondent describing listing history]
HER HONOUR:   … But anyway, so it was listed in May because your client still wanted to proceed, obviously, yes.   It still doesn't explain the delay, Mr Nottle. What is the reason for from January - sorry - from June 2020 to today, why has there been such a delay in the worker progressing his claim for the sequelae injuries? And why did he not complain of them prior to June 2020?
MR NOTTLE:   I can't proffer any evidence in support of that, your Honour. My instructions are that because of some of the psychological difficulties that our client has that has impacted the progression of the claim. That is about the highest I can put it.
HER HONOUR:   Yes. For example, cognitive impairment head injury and it has certainly been one that would have presented itself within months of the original injury. Not so much the chronic adjustment disorder. That can present itself a long time, but right shoulder injury, right neck - right-sided neck injury and back pain, that would have presented itself within months. We are looking at years here.
MR NOTTLE: No, I accept that, your Honour. And there is a reference to all of those injuries scattered throughout the documents that did become apparent prior to June 2020.
HER HONOUR:   Yes.
MR NOTTLE:   I find myself having some difficulties trying to respond adequately to your Honour's questions in relation to the delay. I accept that there has been some delay in both in the worker notifying the employer of his further claims for other injuries - or his claim for other injuries - sequelae injuries. That's one aspect but that has now been - it was completed two years ago - almost two years ago. A statement of claim has been filed with both the original injury and the sequelae injuries in March last year. In my submission that's not an extraordinary delay. There has, I accept, also been some delay between when the statement of claim was filed and through to now, but in any event, the worker is ready to proceed to his hearing.
HER HONOUR:    Mr Nottle, can I just - in relation to the hearing dates, this matter was second-listed on 21 March, so it actually had hearing dates in March and then relisted by myself, first listed on 9 May. I think it was - I am not sure why we did that. I think probably to give the worker time to get its medical reports sorted.
MR NOTTLE:   No, it was an application because of my unavailability.
HER HONOUR:   Okay, so the fact is, is that they actually did have - you actually did have early hearing dates, 21 March, and that's why the guillotine order was made, because we were looking at - in December we were looking at Christmas and then the hearing.
MR NOTTLE:   About six weeks, yes.
HER HONOUR:   Yes. So that's why the guillotine order - - -
MR NOTTLE:   My instructions are the worker doesn't intend to file any further evidence.
For the reasons already given, the appellant’s assertion that he did not intend to file any further evidence did not address the practical realities of the matter, and the impact that would have on the course of the proceedings and the trial listing.
During the course of the hearing of the application, counsel for the respondent made a number of responses to the application. The first was that the proposed statement of claim sought to plead that the sequelae injuries were caused at the time of the initial injury, but that no claim had been lodged in respect of the sequelae injuries. In the respondent’s contention, the appellant was not permitted in those circumstances to plead the sequelae injuries as forming part of the initial injury which had been accepted by the respondent. The respondent’s second response was that the appellant had not explained the delay in procuring evidence in support of the claim for the sequelae injuries, and that the already existing evidence adverted to in the affidavit in support of the application was more than two years old and did not establish any nexus between employment and the appellant’s complaints about pain and cognitive difficulty. The thrust of that submission was that the respondent would suffer prejudice if the appellant was permitted to plead and argue the sequelae injuries by simply pointing to complaints which had been made by the worker and recorded in medical reports which were significantly outdated. The import of the submission was that the respondent would necessarily be required to procure evidence to rebut those complaints notwithstanding the lack of cogent evidence to be adduced by the appellant, and that the trial dates would need to be vacated as a consequence. The respondent’s third submission was that notice of the sequelae injuries had not been given to or served on the respondent as soon as practicable as required by s 80 of the Return to Work Act. In making that submission, counsel for the respondent implicitly acknowledged that matter could not be determined without a hearing, and that it was at most an incidental matter informing the exercise of the discretion.
Although the court had given various indications of its considerations and reasoning during the exchanges with counsel in the course of submissions, the ultimate dispositive findings were as follows:
MR NOTTLE:   The application to strike out the entire statement of claim of the proceedings is obviously opposed. I think, your Honour, I am at risk of repeating myself of what I said earlier in relation to the worker being entitled to advance his claims in their entirety.
HER HONOUR:   Yes, and I might be with you, Mr Nottle, if the worker actually had explained the two-year delay on injuries which he says happened on the day and/or - I mean the cognitive is the one that sticks out like a sore thumb, as you say. Cognitive impairment would have certainly produced itself within a couple of months and would have been involved in any compensation claim I would have thought - and it hasn't been.
MR NOTTLE:   And of course, one of the difficulties that the worker - - -
HER HONOUR:   But that hasn't been explained, Mr Nottle. It hasn't been put in the affidavit. You need to put in an affidavit by Mr Hall and it would have been better if it was put in an affidavit by Mr Fennell.   "I am the worker, I suffered this injury, I've seen the doctors, my doctors tell me this and the reason why I haven't done it is because of this." He hasn't given us anything to - except - and there is a huge delay in my view, that if you don't make a claim in 2018 and then you are cut off from the original claim and then you decide that you are going to make a claim in 2020, there is some issue there.
MR NOTTLE:   Yes.
HER HONOUR:   A large issue.
I am going to refuse the worker's application to file and serve an amended statement of claim as attached to Mr Hall's affidavit CJH10.
The difficulty I have now is how this statement could - the statement of claim at the moment, which is par 12 removed is confusing in the least. Have you got any instructions in relation to the suggestion that the statement of claim be drafted and amended by Ms Cheong?
Certainly the worker is entitled to pursue his appeal of the original decision to cancel his benefits.
MR NOTTLE:   I don't have any instructions on that, your Honour.
HER HONOUR:   All right. I can't force the worker to plead his case in a certain way.
MS CHEONG:   Well, it is his pleading, with respect, your Honour. I am only cutting out the paragraphs that are not applicable. I have not changed any words. It is just that I am concerned, your Honour, we have had now two or three goes at this. Your Honour provided leave to file a different statement of claim but it may be back here again - no disrespect to my friend, he is doing what he must, but I don't really want another application to further further amend the statement of claim so as I said, it is the worker's statement of claim, we merely took out the references that relate to the sequelae injuries. I certainly haven't re-drafted it for him in that sense and, as your Honour know, statement of claim in relation to mere appeal are short. I think what it says is - and your brother Judge, Mr Neill as he was, is to (indistinct) we accepted all the worker says for the appeal - full stop.
I go beyond - I am just concerned, I do not wish to be before you again, your Honour on another application to deal with another statement of claim.
HER HONOUR:   All right, so what I am going to do is require the worker file an amended statement of claim with no reference to secondary or sequelae injuries, within seven days.
MR NOTTLE:   Yes, your Honour.
MS CHEONG:   Yes, your Honour.
HER HONOUR:   There is no need for me to make an order in relation to your defence to that?
MS CHEONG:   No. It may be we wouldn't need to do anything with that, but we will see what comes. And it would be very - - -
HER HONOUR:   And then I will confirm the hearing dates.
MS CHEONG:   Yes.
HER HONOUR:   So it's five days commencing when?
MS CHEONG:   9 May, yes.
HER HONOUR:   9 May.
MR NOTTLE:   Your Honour, I simply ask that you reserve costs.
HER HONOUR:   Costs reserved. Anything else?
MS CHEONG:   No, thank you, your Honour.
HIS HONOUR:   Mr Nottle?
MR NOTTLE:   No.

Those reasons must of course be read in conjunction with the discussion between counsel and the bench that ensued during the course of submissions. On their face, the reasons identify a number of considerations going to the refusal to grant leave to replead the sequelae injuries.
The first is that the appellant had provided no evidence in support of the application that would indicate the reason for the two-year delay between the occurrence of the initial injury and the first notice of any alleged cognitive injury, and the failure to make a formal claim in respect of the sequelae injuries. That delay, together with the fact that notice of the sequelae injuries was not given until compensation for the original injuries had been cancelled, militated against the grant of leave. Although not framed in those terms, that reasoning seems to have been directed to the genuineness of the appellant’s proposed claim for those injuries. The second consideration expressed as informing the decision to refuse leave is that the proposed amended statement of claim was ‘confusing’. This seems to be a reference to the respondent’s complaint that the sequelae injuries were impermissibly pleaded as part of the original injury when no claim form had been submitted in relation to the sequelae. The respondent’s contention was that they could only be pleaded as injuries arising at some later time as a consequence of the initial injury. The third consideration which seems by implication to have informed the decision to refuse leave is the need to maintain and confirm the trial dates commencing on 9 May 2022.
On a fair reading of those dispositive findings, the Work Health Court’s reasons for refusing the appellant’s application for leave to amend the pleadings were infected by two irrelevant considerations and a failure to take into account a relevant consideration. The questions whether the failure to make a formal claim and the delay in giving notice of the sequelae injuries precluded the prosecution of the claim for those injuries could only be determined during the course of a hearing directed to those issues. It was not a relevant basis for refusing leave, except to the extent that it grounded a finding that the pleading of the claim was not genuine. The fact that the proposed amended statement of claim arguably pleaded the sequelae injuries as forming part of the initial injury did not of itself warrant the refusal of leave to replead. It would have been possible to give leave to plead the sequelae injuries as injuries arising at some later time as a consequence of the initial injuries. It is also the case that the court expressly stated that it had not given close consideration to the medical evidence adverted to in the affidavit in support of the application, and had only a general understanding that it was not ‘strongly supportive’ of the appellant’s claim. While it was not necessary for the court to give consideration to that medical evidence for the purpose of assessing the merits of the matter, it was necessary to consider that medical material in order to determine the effect that the attempt to addduce it, and the effect of the appellant’s position that he did not intend to adduce or procure any further evidence, would have on the future conduct of the proceedings. While counsel for the respondent submitted that the likely consequence was the need to procure further medical evidence in the vacation of the trial dates, those consequences of the appellant’s application and position were not expressly considered by the court in its determination to refuse leave.
That finding of error in the discretionary determination by failing to take into account a relevant consideration and taking into account irrelevant considerations is not the end of the matter. Section 116 of the Return to Work Act relevantly provides that in deciding the appeal the Supreme Court may:
(a) confirm or vary the decision or determination; or
(b) set aside the decision or determination and substitute its own decision or determination; or
(c) set aside the decision or determination and remit the matter to the Work Health Court.
In the exercise of that dispositive power, the Supreme Court may make the orders and give the directions it considers appropriate. The statutory avenue of appeal does not permit an appeal against the reasons for the decision of the Work Health Court. It permits an appeal against the correctness of the order or judgment made by the Work Health Court, although that challenge may involve attacking the reasons given for the order or judgment.[21] The order made by the court in this case was to refuse the application for leave to amend the pleadings. In order to succeed in this appeal the appellant must establish that order was wrong. The Supreme Court will only vary the decision or substitute a different decision in the event that the order was incorrect. Although the Work Health Court committed the process errors described above, I do not consider that the outcome – being the refusal of leave to amend the pleadings to plead a claim for the sequelae injuries – was unreasonable, or that the order refusing leave was wrong. The reasons for their conclusion have already largely been described above.
The Work Health Court had a broad discretion to either allow or refuse to allow the pleading amendments. In making that determination, the court was entitled to take into account the circumstances in which the application was made, the conduct of the proceeding by the appellant to that point in time, and the fact that the claim sought to be pleaded had already been struck out once for what was effectively a want of prosecution. The court was also bound to take into account both the prejudice to the respondent, the court’s case management objectives, and the need to ensure the efficient and expeditious completion of litigation.
The application for leave to replead the claim for the sequelae injuries was a complete volte-face on the appellant’s previous position. The appellant had previously maintained that he required further medical evidence in order to support the claim for the sequelae injuries, but in the application to replead the appellant maintained that the existing evidence was sufficient for that purpose despite the fact that it had adduced observations in a schedule to quite the opposite effect. The suggestion that the existing evidence was sufficient was given against a background in which the appellant had previously and repeatedly failed to fulfil his stated intention to procure the further evidence in support of the claim. On its face, and taken together with the dearth of any medical evidence in support of the appellant’s appeal against cancellation, the application had the appearance of a tactical move designed to keep the appellant’s claim for compensation on foot despite his continuing failure to marshal cogent evidence in support of that claim. That appearance was amplified by the fact that the opinions expressed in the neuropsychologist’s report dated 6 April 2021, if they were to be of any utility in the appellant’s case, obviously necessitated the procurement of further evidence and opinion directed to the cause of the appellant’s neuropsychological presentation.
In expressing the intention to rely only on the medical material, evidence and opinion adverted to in the affidavit filed in support of the application, it was incumbent on the appellant to have already served, or to then serve, that material on the respondent in accordance with the relevant rule. That is so even though the material had originally been discovered by the respondent. The appellant had made no attempt to do so, and in the course of the application to replead made no acknowledgement of an obligation to do so, or the consequences of that service. That process would inevitably have required the respondent to be given opportunity to procure further evidence, despite the obvious and manifest difficulties attending the evidence upon which the appellant purportedly relied, and would inevitably have required the vacation of the trial which had been fixed to commence on 9 May 2022.
For those reasons, the order refusing leave to amend the pleadings to replead the claim for the sequelae injuries should not be varied or set aside on the basis of the process errors described above, and this ground of appeal must fail.
No proper consideration of submissions
The third ground of appeal is that that the order on 22 March 2022 was made without proper consideration of the appellant’s submissions that there was sufficient evidence to support the claim for the sequelae injuries. Again, this is in essence a contention that the Work Health Court erred in the exercise of the discretion by failing to take into account relevant considerations and/or by unreasonably refusing to allow the appellant to prosecute an arguable case. The relevant principles have been described, and the appellant’s submissions have been extracted and dealt with above in the context of the second ground of appeal.
As I have found in relation to that second ground of appeal, the Work Health Court committed a number of errors in its reasoning when determining to refuse the application for leave to replead the claim for compensation in relation to the sequelae injuries, but the order refusing leave was not unreasonable or otherwise incorrect in the circumstances. For the same reasons, the same conclusion follows in relation to this ground of appeal.
Failure to provide proper reasons
The fourth and final ground of appeal is that the Work Health Court failed to provide proper reasons for refusing the application for leave to amend the statement of claim to replead the sequelae injuries. The reasons of the court have been extracted and discussed above in the context of the second ground of appeal.
In past times when workers compensation claims were determined by tribunals and commissions, an appeal court would be loath to set aside determinations on the basis of the inadequacy of reasons. The general approach was that regardless of the adequacy of the tribunal’s reasons, if there was evidence which, if accepted, would support the finding of fact, there is no error of law. In Nicolia v Commissioner of Railways (NSW), Barwick CJ observed:
Much has been said in argument as to the meaning of the learned [Workers’ Compensation] Commission’s reasons for judgment. It may be conceded that those reasons lacked clarity. But, in the first place the appeal will not turn on what his Honour said: it will turn on whether or not there was evidence before the Commission which, if believed, would support the award actually made…. The Commission’s award found that the deceased died as a result of injuries received by him in the course of his employment. In my opinion there was evidence to support that award and, therefore, in my opinion, the Supreme Court, Court of Appeal Division was in error in setting aside that award.[22]
In that case, Windeyer J came to a similar conclusion in the following terms:
The judge of the Workers’ Compensation Commission expressed his reasons for his conclusion in somewhat elliptical phrases, which have been subjected to critical analysis before us, but his Honour’s conclusion of fact was clear enough …
There was, I consider, evidence on which that decision could be based. It was not for us, as it was not for the Supreme Court to say whether it was correct in fact. To quote what was said in St George Club Ltd v Hines (1961), 35 ALJR 106, at p 107, that has been mentioned, “our problem is simply whether there was evidence that, if believed, was sufficient to warrant the decision of the Commission”.[23]
As already observed, those principles are concerned largely with the fact-finding process and the present appeal relates to the exercise of judicial discretion in the case management process. It is also the case that the Northern Territory legislature has vested jurisdiction for determining workers compensation claims in a court of record and pleadings, rather than a tribunal or commission. Different considerations arise in relation to the exercise of judicial power by a court. That is because the giving of adequate reasons lies at the heart of the judicial process, there is a common law duty on courts to give adequate reasons, and the standard of reasons required of a court is higher than that required of an administrative tribunal.[24]
However, the reasons given for a discretionary judgment do not need to be lengthy or elaborate in order to be adequate.[25] That is particularly so where the decision is not one which finally determines the rights or entitlements of the parties. The refusal of leave to replead, although no doubt an important interlocutory decision, did not finally determine the appellant’s entitlement to compensation for the sequelae injuries in the sense of giving rise to res judicata or an issue estoppel. It only precluded the appellant from agitating a claim for compensation for the sequelae injuries in the context of those proceedings. It remained, and still remains, open to the appellant to lodge a claim in respect of the injuries asserted and to make a primary application to the court in the event that liability to pay the compensation was disputed.
The necessary content and detail of reasons will also vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision. In this case, the exercise of the discretion did not require the determination of any contested finding of fact, there was no need for any credit issues to be determined and there was no need to explain why evidence had been rejected. In this context, an assessment of the merits of the medical evidence to which the appellant had adverted was both unnecessary and impermissible. The court was clearly cognizant of the fact that the appellant had identified medical evidence which provided at least arguable, if not strong, support for his claim. Moreover, where, as in this case, the appeal is limited to a question of law, the purpose of requiring reasons is to permit the appellate court adequate opportunity to see whether the finding does or does not involve error on a question of law.[26] The only essentiality is that the reasons expose in broad terms why a point critical to the application has been resolved in a particular way. The reasons were adequate for that purpose.
The appellant’s real complaint in relation to the order made on 22 March 2022 is that the decision was wrong for the reasons already addressed in the context of the second ground of appeal. The Work Health Court did commit error for the reasons there described. The court also failed to direct its attention expressly to the considerations informing whether leave should be granted, viz the circumstances in which the application was made, the conduct of the proceeding by the appellant to that point in time, the prejudice to the respondent, the court’s case management objectives, and the need to ensure the efficient and expeditious completion of the litigation. While those considerations no doubt flavoured the exchanges between counsel and the bench during the course of submissions, and the ultimate decision, they were not given express consideration in the dispositive findings. Despite that, I do not consider that the order refusing leave was itself in error, or that the paucity of reasons warrant setting aside the decision. That is because even were I to do so I would substitute the same determination for the reasons which I have given. This ground of appeal must also fail.
Disposition
For these reasons, the appeal is dismissed and the orders made by the Work Health Court on 7 December 2021, 7 February 2022 and 22 March 2022 are confirmed.
I will hear the parties in relation to costs if need be.

_________________________

[1] An order formally consolidating the proceedings was made on 8 October 2021.

[2]Lee v Macmahon Contractors Pty Ltd [2018] NTCA 7, [15]-[19].

[3]Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32.

[4]Wilson v Lowery (1993) 4 NTLR 79.

[5]R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644, 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156; Haines v Leves (1987) 8 NSWLR 442, 469-470.

[6]Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.

[7]Waterford v Commonwealth (1987) 163 CLR 54, 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6; Haines v Leves (1987) 8 NSWLR 442; Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.

[8]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6; Haines v Leves (1987) 8 NSWLR 442.

[9]House v The King (1936) 55 CLR 499, 504-5.

[10]See, for example, Brooks v Wyatt (1994) 99 NTR 12, [33]-[36].

[11]See, for example, Elders Rural Finance Limited v Tapp [1993] NTSC 20, [4]; Woodhead Australia (SA) Pty Ltd v The Paspalis Group of Companies (1991) 103 FLR 122.

[12]See, for example, Brooks v Wyatt (1994) 99 NTR 12, [37]-[38].

[13]See, for example, McDonnell Shire Council v Miller [2009] NTSC 46, [9].

[14]See, for example, Brooks v Wyatt (1994) 99 NTR 12, [51].

[15]See, for example, Brooks v Wyatt (1994) 99 NTR 12, [22]; Liddle v North Australian Aboriginal Legal Aid Service Inc [1993] NTSC 78, [34]-[36]; United Super Pty Ltd v Randazzo Investments Pty Ltd [2009] NTSC 50, [23]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [24]-[35], [96]-[103].

[16]Sali v SPC Ltd (1993) 67 ALJR 841.

[17]Sali v SPC Ltd (1993) 67 ALJR 841, 844.

[18]Sali v SPC Ltd (1993) 67 ALJR 841, 849.

[19]Queensland v JL Holdings (1997) 199 CLR 146.

[20]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [24]-[35].

[21]Lawrie v Lawler [2016] NTCA 3, [49].

[22]Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465 at 466.

[23]Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465 at 466.

[24]See Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [56]; Byrne v Legal Services Commissioner [2009] VSC 210, [12].

[25]Thorne v Kennedy (2017) 263 CLR 85, [61].

[26]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [54]-[55].