General Motors-Holden's Automotive Ltd v Nick Kalogerinis No. SCGRG 93/1239 Judgment No. 4572 Number of Pages 6 Workers' Compensation - [1994] SASC 4572

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND NYLAND(3) JJ

CWDS
Workers' compensation - proceedings to obtain compensation - Calling of evidence on hearing of appeal from Review Officer to Appeal Tribunal - appeal on question of law from Tribunal's decision that if worker and a medical witness are called by the exempt employer as to events occurring after the Review, they are not subject to cross-examination by the exempt employer and of refusal to require them to attend for cross-examination - s.88 of WorkersRehabilitation and Compensation Act not precluding Tribunal from seeking guidance from rules of evidence - no error of law in using such guidance or in making decision without requiring worker to state whether he will call evidence - no legal obligation on Tribunal to require worker and doctor to submit to cross-examination - Exercise of discretion of Tribunal not vitiated by any error of law. Workers Compensation and Rehabilitation Act sections 88, 97, 100.

HRNG ADELAIDE, 12 April 1994 #DATE 7:6:1994

Counsel for appellant: Mr D M Quick QC

Solicitors for appellant: Fountain and Bonig

Counsel for respondent: Mr P D Hannon

Solicitors for respondent: Duncan and Hannon

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal by leave against a decision of the Workers Rehabilitation and Compensation Tribunal whereby that Tribunal ruled that if the appellant called the respondent worker and a Dr Giannopoulos in accordance with the rights conferred by s.97(4e) of the Workers Rehabilitation and Compensation Act to give evidence of certain events occurring after the hearing of the review the subject of appeal, it would do so subject to the usual limitations of a party examining its own witnesses, and would not be entitled to cross-examine them.

2. The respondent claimed worker's compensation for a back injury alleged to have been sustained in the course of his employment by the appellant. He ceased work in February 1991 and received weekly payments of compensation. The appellant, an exempt employer, made a determination to discontinue weekly payments on 8th November 1991. The respondent sought a review by a Review Officer.

3. There was a conflict of medical evidence before the Review Officer. A substantial body of medical evidence was to the effect that the respondent was a malingerer. His general medical practitioner, Dr Giannopoulos, however, expressed the opinion that his condition was serious and his claim for compensation justified. At the hearing a severe attack was mounted as to the credibility of the respondent and Dr Giannopoulos.

4. The Review Officer found the respondent to be a witness of truth and accepted the evidence of Dr Giannopoulos in preference to that of other medical witnesses. He determined that the weekly payments should be resumed. The appellant appealed to the Tribunal.

5. The appellant made an application to the Tribunal to adduce evidence of certain events occurring after the determination of the Review Officer. An affidavit was placed before the Tribunal for the purpose of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: General Motors-Holden's Automotive Ltd v Nick Kalogerinis No. SCGRG 93/1239 Judgment No. 4572 Number of Pages 6 Workers' Compensation [1994] SASC 4572
Case: [1994] SASC 4572
Decision Date: 7 June 1994

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by General Motors-Holden's Automotive Ltd against a decision of the Workers Rehabilitation and Compensation Tribunal. The dispute revolved around the right to cross-examine witnesses called by the exempt employer in a workers' compensation case. The respondent, Nick Kalogerinis, had claimed compensation for a back injury sustained during his employment. The Tribunal had ruled that if the appellant called the respondent and a medical witness, Dr Giannopoulos, they could not be cross-examined by the appellant.

The legal issues before the Court were whether the Tribunal had erred in law by not requiring the respondent and Dr Giannopoulos to attend for cross-examination and if the Tribunal's decision amounted to a denial of natural justice. The Court held that the Tribunal was not bound by rules of evidence but could seek guidance from them. The Court found no error in the Tribunal's decision, as it had exercised its discretion on relevant grounds without making any legal errors. The Court dismissed the appeal, finding that the appellant had no legal right to cross-examine the respondent and Dr Giannopoulos and that the Tribunal had validly exercised its discretion.

The Court's reasoning was that the Tribunal was not bound by rules of evidence but could seek guidance from them, as per section 88 of the Workers Rehabilitation and Compensation Act. The Tribunal had exercised its discretion on relevant grounds, taking into account the dynamic nature of the matters and the ongoing entitlement and medical states that may vary over time. The Court found no denial of procedural fairness, as the appellant was still entitled to call evidence to prove relevant occurrences after the publication of the Review Officer's decision. The Court concluded that the Tribunal validly exercised its discretion, and the appeal was dismissed.

Orders