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 that preliminary application. It stated that Dr Giannopoulos gave evidence before the Review Officer during the currency of his certificate of total incapacity. Dr Giannopoulos then certified the respondent as fit for a work trial from 20th May 1992. The respondent returned to light duties approved by Dr Giannopoulos. The respondent continued with light duties and was reviewed from time to time by Dr Giannopoulos. On 27th July 1992 the Review Officer made her determination and that was forwarded to the parties. The Review Officer found that the respondent "continues to be totally incapacitated for work." On 6th August, Dr Giannopoulos provided a fresh medical certificate that the respondent was unfit for any work from 6th August 1992 to 6th November 1992. The respondent has not performed any work since that time.

6. The appellant's application to the Tribunal was "that the worker, Dr Giannopoulos, and any other witnesses whom it is considered appropriate be called to give evidence in relation to the worker's return to work during the period from May 1992 until August 1992, in relation to his cessation of work on or about 6th August 1992 and in relation to any other matters incidental thereto."

7. The Tribunal held on 10th June 1993 that the appellant was entitled pursuant to s.97(4e)(c) of the Act to adduce any relevant evidence of events occurring after delivery of judgment. The Tribunal declined to require the respondent and Dr Giannopoulos to enter the witness box for cross- examination and ruled that if the appellant called the respondent and Dr Giannopoulos it "must do so under the usual limitations" applicable to the questioning of witnesses by the party calling them and would not be permitted to cross-examine them. The appellant has appealed to this Court against the refusal to call the respondent and Dr Giannopoulos for cross-examination and the ruling that, if called by the appellant, they could not be cross-examined. The appeal to this Court is on a question of law only (s.100). Mr Quick QC who appeared for the appellant argued that the decision was wrong in law in that it was influenced by an erroneous understanding or application of a rule of evidence, and that it amounted to a denial of natural justice.

8. After the delivery of the Tribunal's decision on 10th June, it acceded to a request to hear argument in relation to the decision. After hearing argument it delivered further reasons for its decision, to which it adhered, on 20th August 1993. In these reasons the Tribunal referred to s.88(1) which is as follows:
    "88. (1) In proceedings under this Act, a review authority -
    (a) shall act according to equity, good conscience and
    the substantial merits of the case without regard to
    technicalities and legal forms; and
    (b) is not bound by any rules of evidence, but may
    inform itself on any matter in such manner as it thinks
    fit."

9. It then quoted a passage from the judgment of Evatt J in The King v The War Pensions Entitlement Appeal Tribunal and Another ex parte Bott (1933) 50 CLR 228 at p.256:
    "Some stress has been laid by the present respondents
    upon the provision that the Tribunal is not, in the
    hearing of appeals, 'bound by any rules of evidence'.
    Neither it is. But this does not mean that all rules of
    evidence may be ignored as of no account. After all,
    they represent the attempt made, through many
    generations, to evolve a method of inquiry best
    calculated to prevent error and elicit truth. No
    tribunal can, without grave danger of injustice, set
    them on one side and resort to methods of inquiry which
    necessarily advantage one party and necessarily
    disadvantage the opposing party. In other words,
    although rules of evidence, as such, do not bind, every
    attempt must be made to administer 'substantial
    justice'."

10. The Tribunal went on: "While Evatt J's dictum quoted above was expressed in a dissenting decision, it was not rejected, nor was the notion that the rules of evidence were worth having regard to in such exercises. Regard to the rules of evidence operates as some check on the arbitrary exercise of the power. In other words, it is not wrong to be guided by them in concluding what in a given circumstance accords with equity, good conscience and the substantial merits of the case. Evatt J's dictum has been accorded some recognition by text writers: see Dr G.A Flick, 'Natural Justice', Butterworths
(1979) at 44. The validity of having regard to the rules of evidence is confirmed in the cases: see Walkley v Dairyvale Co-op Ltd. (Preliminary Issues) (1972) 39 SAIR 327 at 357, Pastry Cooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers' Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60 at 68, Pochi v Minister for Immigration and Ethnic Affairs
(1979) 36 FLR 482 at 492, SA Health Commission v. Spurling WCAT A 12/1992. However we emphasize that at the end of the day, the obligation is to obey the provisions of the Act. The Act provides a discretion, which, while not unfettered, is a wide one permitting us to act on evidence which would not be admissible in a Court or to act where no legally admissible evidence exists to support the finding: see Qantas Airways Ltd .v. Gubbins (1992) 28 NSWLR 26 at 32."

11. The Tribunal quoted the following passage from the judgment of Cox J in Simpson Ltd v Arcipreste (1989) 53 SASR 9 at 14 dealing with the topic of which party to an appeal should be dux litis before the Tribunal:
    "Fairness and common sense, rather than rigid adherence
    to any rule of thumb, should provide the right answers,
    but it is obviously desirable that the respondent to an
    appeal, at that stage holds an order of the Review
    Officer in his favour, should not be put at any
    substantial tactical disadvantage by being required to
    open up any factual issue on which both sides will be
    calling witnesses."

12. The Tribunal then looked for guidance to the rule governing the recall of a witness during a trial by a party other than the party originally calling the witness and quoted a passage from Stone and Wells Evidence, Its History and Policies (Butterworths 1991) as follows:
    "When, under the foregoing rules, a witness is permitted
    to be recalled and again examined, the question will
    arise which party is to examine in chief and which to
    cross-examine. First, if the same party recalls the
    witness, it is clear that he examines in chief only, and
    the opponent cross- examines, as on the original call.
    Secondly, if the party who recalls the witness is the
    opposite party to the one who originally called him,
    then if he is recalled to speak as to matters on which
    he originally testified, the recall is a mere
    continuation of the prior examination. Hence the
    recalling opponent may cross-examine, and the original
    calling party re-examined (sic). (Dickinson v. Shee
(1901) 4 Esp 67). In the rarer case, however, in which
    the recalled witness is to speak on some new matter, he
    is, in effect, a new witness. Hence the recalling party
    must examine-in-chief only, while the original calling
    party may now cross-examine. (Lord v. Colvin (1855) 3
    Drew 222; Dawkins v. Mortan (1961) 1 JH 339; Allen v.
Allen (1894) P 248."

13. I can see no error of law in the foregoing. The Tribunal recognized that it had a discretion to allow cross-examination of the respondent and the doctor. It recognized that it was not bound by the rules of evidence but must apply s.88. Nevertheless it correctly took the view that it could obtain assistance in the manner of the exercise of the discretion from the rules of evidence, including rules governing the cognate situation of the recall of witnesses during a trial, as well as from the principles governing the approach to the question of which party is to be dux litis.

14. Mr Quick contended that the Tribunal erred in law in not requiring the respondent to state whether it intended to call evidence before exercising its discretion. The Tribunal was under no legal obligation to take that course. The appellant was properly dux litis. It sought to call evidence. The Tribunal was entitled, perhaps bound in procedural fairness, to allow the respondent to hear that evidence before deciding whether to call evidence.

15. The contention that the decision of the Tribunal denied natural justice or procedural fairness to the appellant is based on the proposition that the decision would prevent the appellant from properly presenting its case. If that were so, there would be denial of natural justice which would amount to an error of law; Escobar v Spindaleri (1987) 7 NSWLR 51, Australian Postal Commission v Hayes and Another (1989) 87 ALR 283. I do not think, however, that the decision involves any denial of procedural fairness. Having adverted to the various considerations referred to above, the Tribunal expressed its reasons for the exercise of its discretion as follows:
    "It is our opinion that if we were to give leave to the
    appellant to cross-examine these two witnesses, we would
    be providing the appellant with a tactical advantage.
    We have traversed the circumstances of this case in some
    detail in the first judgment. We have set down, we hope
    in some detail, the various matters relied on by the
    appellant's counsel, describing the events that have
    occurred following the hearing before the Review
    Officer. We do not regard the course of events as
    exceptional. Given the dynamic nature of the matters
    the concern of the legislation, required as it is to
    deal with an ongoing entitlement and medical states that
    may vary from time to time, we find nothing irregular in
    the course of events. Certainly nothing which persuades
    us that equity, good conscience and the substantial
    merits of the case warrant the worker and his family
    doctor to be subjected to cross-examination in respect
    of further events at the very outset of the Tribunal
    hearing of the appeal from a decision favouring them."

16. The appellant is entitled as of right to call evidence to prove relevant occurrences after the publication of the decision of the Review Officer and perhaps after that decision was reserved. Those occurrences are capable of proof by witnesses other than the respondent and Dr Giannopoulos. The question whether the appellant should be entitled to call the respondent and the doctor for the purpose of cross-examining them is a separate issue. It is a matter which is within the discretion of the Tribunal. The Tribunal has exercised its discretion on relevant grounds and has made no error of law in the process. Whether this Court would have exercised the discretion in the same way is not to the point. The appellant has no legal right to have the respondent and the doctor produced for cross-examination and the Tribunal validly exercised the discretion which reposed in it. No denial of procedural fairness is involved.

17. I would dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 NYLAND J I agree.