John William Liccione v Workers Rehabilitation and Compensation Corporation No. SCGRG 93/1435 Judgment No. 4368 Number of Pages 21 Workers' Compensation

[1994] SASC 4368

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Workers' compensation - cessation of payments - review by Review Officer of Corporation's decision - unsuccessful appeal to Tribunal from Review Officer's determination - action in Magistrates Court by Corporation to recover payment made pursuant to s.36 of Workers' Compensation Act - whether issued estoppel can ever apply to determinations by Review Officers - whether Review Officer made necessary findings in any event - appeal dismissed. WorkersRehabilitation and Compensation Act 1986. The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6; Cross on Evidence Australian Loose Leaf Edn p 5009; Milojevic v ROH Industries Pty Ltd (1991) 56 SASR 78; Pivovaroff v Adelaide Powder Coaters Pty Ltd and Ors No A39/1993 dated 30 June 1993 Unreported; Cachia v Isaacs (1985) 3 NSWLR 366 and Blair v Curran (1939) 62 CLR 464, applied. Bede v Commonwealth Hostels Ltd (1980) 4 NTR 31, not followed.

HRNG ADELAIDE, 9 December 1993 #DATE 21:1:1994
Counsel for appellant:     Mr T D Bourne
Solicitors for appellant:    Stanley and Partners
Counsel for respondent:     Ms J Grundy
Solicitors for respondent: Thomsons

ORDER
Appeal dismissed.

JUDGE1 MATHESON J This is an appeal from a decision of Mr K.J.Prescott SM sitting in the Magistrates Court (Civil Division), wherein he entered judgment for the respondent against the appellant for the sum of $18,113.92, together with $900 for interest, a total of $19,013.92. 2. It is necessary to look at the pleadings, but before doing so, I will set out the agreed facts (the plaintiff is the respondent herein and the defendant is the appellant):
    " STATEMENT OF AGREED FACTS
    1. At all material times the plaintiff:-
    1.1 was a duly incorporated body;
    1.2 was established pursuant to the Workers Rehabilitation
    and Compensation Act 1986 as amended 'the Act' and, inter
    alia, was authorised and required to pay compensation to
    injured workers in accordance with the statutory criteria
    prescribed in the Act;
    1.3 carried out its function from premises situated at 100
    Waymouth Street, Adelaide in the State of South Australia.
    2. At all material times the defendant was employed as a
    storeman with Caltex Oil (Australia) Pty Ltd, at Birkenhead
    in the said State ('the employer').
    3. On or about the 28th day of March 1989 the defendant
    submitted a claim for compensation to the plaintiff in which
    he asserted he suffered injury to his back on the 28th day
    of March 1989 ('the compensable disability').
    4. Subsequently to receiving and considering the said claim
    the plaintiff determined pursuant to Section 53 of the Act
    to accept the defendant's claim for compensation in respect
    of the compensable disability and thereafter made weekly
    payments of income maintenance to him in accordance with the
    provisions of the Act.
    5. On or about the 4th day of April 1991 the plaintiff gave
    notice to the defendant of its intention to cease weekly
    payments of income maintenance in accordance with Section 36
    of the Act, such discontinuance to take effect within twenty
    one days after receipt of the said notice.
    6. On or about the 17th day of April 1991 the defendant applied
    for a review of the determination to cease weekly payments of
    income maintenance pursuant to Section 95(l) of the Act.
    7. Following the defendant's application for review being
    lodged with the plaintiff the defendant continued to
    receive and the plaintiff continued to make to the
    defendant payments of income maintenance.
    8. The plaintiff was unable to resolve the issues by
    agreement pursuant to Section 95(6) of the Act and maintained
    that its initial determination that the worker had
    ceased to be incapacitated for work as a result of
    the compensable disability was correct.
    9. In default of resolution the defendant's application
    for review was referred to Review Officer Player-Brown
    pursuant to Section 95(7) of the Act who proceeded to
    conduct a review of the plaintiff's determination.
    10. Upon the conclusion of the said review and by a
    determination dated the 13th day of December 1991 the
    said Review Officer confirmed the decision made by the
    plaintiff on the 4th of April 1991 that the defendant
    had ceased to be incapacitated as a result of the
    compensable disability and to discontinue weekly
    payments of income maintenance to the defendant pursuant
    to 36(l)(b) of the Act.
    11. Subsequent to the Review Officer's said determination
    the defendant pursuant to Section 97 of the Act appealed to the
    Workers Compensation Appeal Tribunal against the review
    determination and sought an order that the review determination
    be reversed.
    12. By a decision delivered on the 27th day of April 1992 the
    said Tribunal dismissed the defendant's appeal.
    13. On or about the 6th day of August 1992 the plaintiff
    requested the defendant to repay to it the sum of $18,113.92
    being the aggregate amount of weekly payments of income
    maintenance paid by the plaintiff to the defendant pursuant to
    Section 36(4).
    14. The defendant has declined and refused to pay to the
    plaintiff the sum of $18,113.92 which sum remains unpaid as at
    the date hereof." 3. The plaintiff's Particulars of Claim included the following:
    "14. The defendant has wrongfully declined and refused to
    pay to the plaintiff the sum of $18,113.92 which sum remains
    unpaid and outstanding as at the date hereof.
    15. In the premises the plaintiff says:-
    15.l the defendant has had and received the sum of
    $18,113.92 to the use of the plaintiff;
    15.2 the defendant is indebted to the plaintiff in the said
sum of $18,113.92 pursuant to Section 36(5) of the Act;
    AND the plaintiff claims the sum of $18,113.92 together
    with interest and legal costs." 4. The Defence included the following pleas:
    "2 ... the Plaintiff was liable to pay income maintenance
    payments to the Defendant from the lst day of May 1991 until the
    lst day of January 1992 irrespective of the provisions of
    Section 36(4) of the Workers Rehabilitation and Compensation
    Act 1986 As Amended.
    3-4 ...
    5 The Defendant denies that the Plaintiff is entitled to the sum
    of $18,113.19 together with interest and costs as alleged in the
    Particulars of Claim or at all.
    6 The Defendant says there is no power or jurisdiction in this
    Court to hear and determine the Plaintiff's claim pursuant to
    Section 36(5) of the Workers Rehabilitation and Compensation Act
    1986 As Amended.
    7 The Defendant says that the said amount of $18,113.92 is not
    an amount to which the Defendant would not have been entitled
    but for the operation of Section 36(4) of the Workers
    Rehabilitation and Compensation Act 1986 as amended.
    8 The Defendant says that the within application has not
    been brought subject to regulations made pursuant to the
    Workers Rehabilitation and Compensation Act 1986 as required
by Section 36(5) of the Workers Rehabilitation and
    Compensation Act 1986 As Amended." 5. The plaintiff filed a reply which included the following plea, (and it is this plea upon which the argument on the appeal really turned):
    "(The plaintiff)
    3.5 says that the defendant is estopped from asserting an
    entitlement to weekly payments of income maintenance for the
    period 1 May 1991 to 1 January 1992 in these proceedings in view
    of the decisions of the Review Officer and the Workers
    Compensation Appeal Tribunal which are:-
    3.5.1 contrary to such an assertion
    3.5.2 binding on the defendant;" 6. The learned Magistrate ruled, (contrary to the defendant's submission), that the Magistrates Court had jurisdiction to entertain the claim. He then referred to the decision of the Review Officer, and said: "In my opinion the defendant here is bound not only by the utterances however poorly expressed of the Review Officer but by virtue of the order and the determination and certainly by virtue of the sealed order of the Appeal Tribunal from asserting to the contrary." 7. Later he said: "In my opinion the agreed facts and the book of documents establish beyond doubt that the defendant here is estopped from asserting that there has been any entitlement pursuant to Section 35 to payments of weekly income maintenance as and from the 1st May 1991." 8. His Honour then made the following orders:
    "1. An order pursuant to rule 46.1(8) of the Magistrates
    Court Civil Rules 1992 that paragraphs 2 (except in so far
    as it contains admissions), 6, 7 and 8 of the defence filed
    herein on 2nd February 1993 be struck out.
    2. (An) order that summary judgment be entered in favour of
    the plaintiff for the amount claimed in paragraph 15 of the
    Particulars of Claim ..." 9. He subsequently allowed $900 for interest. The appellant (defendant) appeals to this Court on the following amended grounds:
    "1 That the learned Special Magistrate erred in law in
    determining that the defendant had no arguable defence.
    2 That the learned Special Magistrate erred in law in
    determining that the Court and that the defendant were
    estopped from asserting that the worker was incapacitated
    for work during the period from the lst day of May 1991
    until the lst day of January 1992.
    3 That the learned Special Magistrate erred in law in
    concluding that there was no reasonable prospect of the
    defendant's submissions or evidence being accepted.
    4 The learned Special Magistrate erred in law in failing to
    provide the defendant with any opportunity to properly and
    fully present argument and authority on the question of
    whether or not the determination of the Review Officer made
    on the 13th day of December 1991 estopped the defendant from
    asserting that he was incapacitated for work from 1/5/91
    until 1/1/92.
    5 The learned Special Magistrate erred in law in failing to
    allow the defendant to present argument and evidence that he
    was incapacitated for work as the result of injury during
    the period from 1st day of May 1991 until the lst day of
    January 1992." 10. The appellant asks that the judgment against him be set aside, and that the matter be remitted for hearing before the Magistrates Court. 11. On 4 April, 1991 the Manager of the respondent wrote the following letter to the appellant:
    "We have received a medical certificate from Drs. Hallpike
    and North who is a Recognised Medical Expert. We enclose a
    copy of that certificate for your information. You will see
    from that certificate that the above Medical Expert has
    certified that you have ceased to be incapacitated for work.
    Section 36(l) of the Workers Rehabilitation and Compensation
    Act 1986 provides that weeklypayments of Income Maintenance to a
    worker who has suffered a compensable disability shall not be
    discontinued unless the Corporation is satisfied on the basis
    of a Certificate from a Medical Expert, that the worker has
    ceased to be incapacitated for work. On the basis of the
    above medical certificate the Corporation is satisfied that you
    have ceased to be incapacitated for work. The Corporation has
    decided to discontinue your weekly payments of Income
    Maintenance. This letter serves as notice to you that at the
    expiration of 21 days from the receipt by you of this letter
    your weekly payments of Income Maintenance will be
    discontinued. If you dispute our decision to discontinue your
    weekly payments, you have the right to have our decision
    reviewed. Section 95(4) of the Act provides that 'an
    application for review must be in the prescribed manner and
    form and must be made within one month after the person
    applying for the review receives notice of the decision to
    which the review relates unless the Corporation, in its
    discretion, allows an extension of time for making the
    application.' We enclose a pamphlet which sets out in more
    detail the procedures to be followed on an application for
    review and your rights on review. Should you apply for a
    review of the Corporation's decision weekly payments of Income
    Maintenance will continue to be made until the Review Officer
    has made a decision on this matter. However we point out that
pursuant to Section 36(5) of the Act if the Review Officer
    decides that weekly payments of Income Maintenance should be
    discontinued any amount which has been paid to you after the
    above 21 day period as a consequence of your application for
    review may be recovered from you as a debt. Should you have
    any difficulty understanding the content and/or implications of
    this letter, please contact Mr. Schulz on 233-2176 so we can
    discuss this matter. Yours faithfully, (Signed) Michael
    Reardon. Manager." 12. Notwithstanding the wording of the letter, it is agreed that Mr. Reardon enclosed two reports, one from Dr. Hallpike dated 10 December, 1990 and one from Mr. Brian North dated 26 February, 1991. 13. The appellant applied for a review on 17 April, 1991 and his application stated:
    "I, JOHN WILLIAM LICCIONE of 29 Lamorna Terrace, Largs
    North being a person who is dissatisfied by the following
    decision made on the 4th day of April 1991, Determination of
    WorkCover Corporation to discontinue the applicants weekly
    payments of income maintenance. APPLY to the Corporation for
    a review of the decision. The reasons for my application are
    as follows: (a) The applicant is incapacitated for work as a
    result of disability which he sustained in the course of his
    employment with Caltex Oil Pty Ltd in the month of March
    1989." 14. The appellant's application for a review of the respondent's decision was heard on 23 August, 2 and 21 October, and ll November. Review Officer Player-Brown's determination is dated 13 December, 1991. 15. It is convenient to mention here that before the Review Officer commenced her hearing, the claim of the appellant against his employer Caltex Oil (Australia) Pty. Ltd. for damages for the injuries he sustained on 28 March 1989 was heard in the District Court of Adelaide by his Honour Judge Lowrie. His Honour heard evidence on 6 and 7 August, 1991. In addition to giving evidence himself, the appellant called his wife, a surgeon, Mr. Glenn McCulloch, and his general practitioner, Dr. J.A.B. Ramsey. The employer called Mr. North and Dr. J.A. Wayte, a general practitioner, who saw the appellant several times in March and April 1989. 16. Dr. Hallpike was not called, but it appears that he may have been away. Judge Lowrie delivered judgment on 14 August, 1991. He awarded the appellant $18,000 damages, made up of $12,000 for past and $6,000 for future pain and suffering. I note that at the time relevant to his Honour's decision, s.54(1) of the Act then provided:
    "54.(l) Subject to subsection (2), no liability attaches
    to an employer in respect of a compensable disability
    arising from employment by that employer except -
    (a) a liability under this Act; or
    (b) a liability at common law for non-economic loss or
    solatium." 17. His Honour was not required to assess loss of earning capacity (if any). 18. The Review Officer had a copy of the transcript of the hearing before Judge Lowrie and of his judgment. She also had a report from Dr. Ramsey dated 26 December, 1990, and two reports from Mr. McCulloch dated 3 November, 1989 and l5 June, 1990, reports from Mr. Brian North dated 3 November, 1983, 2 July, 1984, 2 October, 1984, 28 March, 1985, 11 December, 1990, 26 February, 1991, and a report from Dr. Hallpike dated 10 December, 1990, together with interrogatories and answers in an earlier action in the Supreme Court of South Australia, No. 1230 of 1985, between the appellant and Messenger Press Pty. Ltd. The appellant gave evidence before the Review Officer, and the respondent called Dr. Hallpike. 19. The Review Officer concluded her determination with these words: "Pursuant to Section 96 of the Act, I confirm the decision of the WorkCover Corporation dated 4th April, 1991 to discontinue weekly payments of income maintenance to the worker pursuant to Section 36(1)(b) of the Act." 20. The appellant appealed from that determination to the Workers Compensation Appeals Tribunal, and sought an order setting aside the determination. The appeal was heard by his Honour Judge Allan (Deputy President), Mrs. L Day (Member) and Mr. K. Doyle (Member). On 27 April, 1992, the Tribunal dismissed the appeal. In the course of their reasons, the Tribunal said:
    "Although the Review Officer did not say so explicitly we
    think the only reasonable inference is that in reaching her
    conclusions she did not accept the evidence of the worker as to
    the extent of his symptoms and disability. She said at p.8 of
    her reasons for determination, that, and I quote: 'In light of
    the worker's less than candid demeanour in relation to providing
    a complete history to doctors, I find that the worker's evidence
    as to incapacity needs to be considered in the context of the
    overall medical evidence presented.'
    It is clear that the Review Officer accepted that the
    applicant had some symptoms but that those symptoms were not to
    the extent complained of by him and did not produce the
    disability complained by him. These findings were open on the
    evidence and they depend largely on the view taken of the
    applicant's evidence. It was a matter of credibility. The
    Review Officer had the opportunity denied to us of seeing the
    applicant give evidence and be cross examined and was in a
    position to form an opinion as to his credibility on that basis
    and after making those observations and against the background
    of the evidence as a whole. In those circumstances we think we
    are unable to interfere with the conclusions reached by her.
    For these reasons the appeal is dismissed." 21. It is convenient now to set out some other relevant sections of the Act, some of which are directly relevant in considering the appeal, and some of which are relevant in considering several of the cases cited in argument on the appeal:
    "77b.(l) The Governor may, on the recommendation of the
    Minister, appoint a person to the office of Chief Review
    Officer and appoint such other persons as the Minister
    considers necessary for the proper administration of the system
    of review established by this Act to the office of Review
    Officer.
    (2) Subject to subsection (3), the Minister may not recommend a
    person for appointment as the Chief Review Officer or as a
    Review Officer until that person has been interviewed by a
    committee established by the Minister (which must include at
    least one member of the board appointed under section 8(1)(b)
    (or the deputy of such a member) and at least one member of the
    board appointed under section 8(1)(c) (or the deputy of such a
    member)), and the committee has reported to the Minister on the
    suitability of the prospective appointee for appointment.
    (3) Subsection (2) does not apply in relation to the
    appointment of a person who has previously held office as a
    Review Officer.
    77c.(1) A Review Officer is to be appointed for a term of five
    years and is, on the expiration of a term of office, eligible
    for reappointment.
    (2) The salary and conditions of office of a Review Officer are to
    be as determined by the Governor.
    (3) A person ceases to hold office as a Review Officer if the
    person -
    (a) resigns by notice in writing addressed to the Minister; or
    (b) completes a term of office and is not reappointed; or
    (c) is removed from office by the Governor on the ground of
    misconduct, neglect of duty, incompetence or mental or physical

    incapacity to carry out official duties satisfactorily.
    (4) A review Officer is not a member of the Public Service.
    (5) Unless otherwise determined by the Governor in the relevant
    instrument of appointment, a Review Officer is an employee within
    the meaning of the Superannuation Act 1988.
    (6) A Review Officer incurs no liability for an honest act or
    omission in carrying out or purportedly carrying out official
    functions.
    78. There shall be a Workers Compensation Appeal Tribunal.
    79.(l) The Tribunal consists of -
    (a) the President of the Industrial Court, who will be the
    President of the Tribunal;
    (b) the Deputy Presidents of the Industrial Court, who will
    be Deputy Presidents of the Tribunal;
    and
    (c) such persons (if any) as the Governor may appoint on the
    nomination of the Minister as additional Deputy Presidents of
    the Tribunal.
    (2) A person is not eligible for appointment as a Deputy
    President of the Tribunal unless that person is a legal
    practitioner of at least seven years standing.
    (3) Before nominating a person for appointment as a Deputy
    President of the Tribunal, the Minister must consult with the
    United Trades and Labour Council and with associations that
    represent the interests of employers.
    * * *
    (5) A member of the Tribunal may be appointed on a permanent or
    acting basis.
    (6) A person appointed to the Tribunal will cease to be a
    member of the Tribunal if that person -
    (a) attains the age of 65 years;
    (b) resigns by notice in writing addressed to the Minister;
    (c) in the case of a member appointed on an acting basis -
    completes the term for which the member was appointed;
    or
    (d) is removed from office by the Governor on the ground of
    misconduct, neglect of duty, incompetence or mental or
    physical incapacity to carry out satisfactorily duties of
    office.
    (7) A member of the Tribunal shall be entitled to such
    fees, allowances and expenses as the Governor may approve.
    80.(1) For the purpose of any proceedings, the Tribunal
    will, in accordance with the direction of the President or
    the rules of the Tribunal, be constituted of -
    (a) one member of the Tribunal; or
    (b) three members of the Tribunal.
    (2) Where the Tribunal is constituted by three members, a
    decision in which any two members concur is a decision of
    the Tribunal." 22. It is convenient here to point out that the phrase "Review Authority" is defined in s.3 of the Act to mean: "(a) a Review Officer appointed for the purposes of this Act; or (b) the Tribunal." 23. I now continue my quotation of the relevant sections:
    "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.
    (2) A review authority may refer any technical or
    specialized matter to an expert and accept that expert's
    report as evidence.
    (3) Where an expert's report is obtained under subsection
    (2), the expert must, if a party to the proceedings so
    requests, be called for examination or cross-examination on
    the subject matter of the report.
    (4) A review authority must, in conducting its proceedings
    under this Act, act as expeditiously as possibly.
    89.(1) Reasonable notice shall be given to a party to
    proceedings before a review authority of the time and place at
    which the authority is to hear those proceedings.
    (2) A party must be afforded a reasonable opportunity to make
    submissions to the review authority and, in the case of
    proceedings before a Review Officer, a reasonable opportunity to
    call or give evidence and to examine or cross-examine witnesses
    (but a Review Officer is not obliged to hear evidence from a
    witness - either generally or on a particular subject - if
    satisfied that the evidence is not relevant, or if of the
    opinion that the evidence would merely provide unnecessary
    corroboration of other evidence admitted by the Review Officer).
    (2a) A review authority may require evidence or argument to be
    presented in writing, and may decide the matters on which it
    will hear oral evidence or argument.
    (3) If a party does not attend at the time and place fixed by
    the notice, the review authority may hear the proceedings in the
    absence of that party.
    90.(1) In the exercise of its powers or functions, a review
    authority may -
    (a) by summons signed by or on behalf of the authority,
    require the attendance before the authority of any person;
    (b) by summons signed by or on behalf of the authority,
    require the production of any relevant document, object or
    material;
    (c) require any person to make an oath or affirmation truly
    to answer all questions put by the authority, or any person
    appearing before the authority;
    and
    (d) require any person appearing before the authority to
    answer any relevant questions put by the authority, any
    member of the authority or by any person appearing before
    the authority.
    ***
    (3) If any person -
    (a) who has been served with a summons to attend before a
    review authority fails without reasonable excuse to attend
    in obedience to the summons;
    (b) who has been served with a summons to produce any
    document, object or material, fails without reasonable
    excuse to comply with the summons;
    (c) misbehaves before a review authority, wilfully insults a
    review authority or any member of such an authority, or
    interrupts the proceedings of a review authority;
    (d) refuses to be sworn or to affirm, or to answer any
    relevant question when required to do so by a review
    authority, that person shall be guilty of an offence and
    liable to a penalty not exceeding $1 000.
    (4) A person shall not be obliged to answer a question under
    this section if the answer to that question would tend to
    incriminate that person of an offence, or to produce any
    document, object or material if it or its contents would
    tend to incriminate that person of an offence.
    (5) In the course of any proceedings, a review authority
    may -
    (a) receive in evidence any transcript of evidence in
    proceedings before a court or tribunal and draw any
    conclusions of fact from the evidence that it considers
    proper;
    or
    (b) adopt any findings, decision or judgment of a court or
    tribunal that may be relevant to the proceedings.
    (6) Where -
    (a) the native language of a person who is to give oral
    evidence in any proceedings before a review authority is not
    English;
    and
    (b) the witness is not reasonably fluent in English, the person
    is entitled to give that evidence through an interpreter.
    (7) A person may present written evidence to a review authority
    in a language other than English if that written evidence has
    annexed to it -
    (a) a translation of the evidence into English;
    and
    (b) an affidavit by the translator to the effect that the
    translation accurately reproduces in English the contents of the
    original evidence.
    92.(1) A person is entitled to appear personally, or by
    representative, in proceedings before a review authority subject
    to the qualification that a person is not entitled to be
    represented by -
    (a) a member, or deputy member, of the board;
    or
    (b) a person whose name has been struck of the roll of legal
    practitioners or who, although a legal practitioner, is not
    entitled to practice the profession of law because of
    disciplinary action taken against him or her.
    (2) Representation will not be allowed before a Medial Advisory
    Panel (although a worker who is to appear before a Medical
    Advisory Panel is entitled to be accompanied by a relative or
    friend to provide advice and moral support).
    95.(1) A person who is directly affected by a decision that is
    reviewable under subsection (2) may apply for a review of the
    decision.
    (2) The following decisions are reviewable -
    (a) - (b) ...
    (c) a decision to vary suspend or discontinue weekly
    payments;
    (d) - (da) ...
    (3) - (5) ...
    (7) Where -
    (a) the Corporation fails to resolve the questions in issue
    by agreement;
    or
    (b) the questions in issue have not been resolved after 14
    days from the date on which the application is first received by
    the Corporation and the applicant requests the reference of
    those questions to a Review Officer, the application for review
    shall be referred to a Review Officer.
    96.(1) Where an application for review is referred to a Review
    Officer, the Review Officer shall conduct a review of the
    decision to which the application relates.
    (1a) A party to proceedings before a Review Officer must
    disclose to the Review Officer and all other parties to the
    proceedings the existence of all material in the party's
    possession or power that may be relevant to the proceedings and
    must, if the Review Officer so requests, produce all or any of
    that material to the Review Officer.
    (2) On a review under this section, the Review Officer shall
    make a fresh determination of the matters to which the decision
    subject to review relates.
    ***
    (4) Where the Review Officer arrives at a decision that differs
    from the decision under review, the decision of the Review
    Officer shall take effect in substitution for that decision.
    97.(1) An appeal lies to the Tribunal against a decision by a
    Review Officer on a review.
    (2) Such an appeal may be instituted by -
    (a) any person directly affected by the decision;
    (b) the employer, or former employer, of a worker directly
    affected by the decision;
    or
    (c) the Corporation.
    (3) An appeal must be in the prescribed manner and form and must
    be instituted within one month after the appellant receives
    notice of the decision of the Review Officer unless the Tribunal
    allows a longer time for the institution of the appeal.
    (4) A notice of appeal must state with reasonable particularity
    the grounds of appeal and the relief sought on the appeal.
    (4a) The Registrar must notify the Review Officer of the
    institution of an appeal.
    (4b) The Review Officer must, as soon as practicable after
    receiving notification under subsection (4a), send to the
    Registrar of Review Authorities -
    (a) any application, documents, written submissions,
    statements, reports, and other papers lodged with, or received
    by, the Review Officer during the course of the earlier
    proceedings;
    (b) any relevant exhibits in the custody of the Review Officer;
    (c) a copy of any notes of evidence made by or at the direction
    of the Review Officer during the course of the earlier
    proceedings;
    and
    (d) a copy of the decision appealed against.
    (4c) The Tribunal may, on an appeal under this section -
    (a) examine any papers, exhibits and notes submitted under
    subsection (4b) and draw any conclusions of fact from them it
    considers proper;
    (b) direct the Review Officer to furnish a report (which must
    be made available to the parties to the appeal) on any aspect
    of the subject matter of the appeal.
    (4d) Subject to subsection (4e), the Tribunal has a discretion
    to rehear the whole or any part of the evidence taken before
    the Review Officer, or to take further evidence.
    (4e) The Tribunal must, on the application of a party to the
    appeal -
    (a) rehear evidence taken before the Review Officer if the
    evidence is relevant to the appeal and the record of the
    evidence is incomplete or inaccurate in a material particular;
    (b) hear oral evidence relevant to the appeal from a witness
    from whom evidence was taken in documentary form by the Review
    Officer;
    (c) take further evidence if the evidence is relevant to the
    appeal and the party seeking to introduce it could not
    reasonably be expected to have done so in the proceedings
    before the Review Officer;
    (d) take evidence if -
    (i) the evidence is relevant to the appeal;
    and
    (ii) there is some substantial reason for admitting the evidence
    in the interests of justice.
    (4f) A party must be afforded a reasonable opportunity to
    examine or cross-examine witnesses appearing before the
    Tribunal.
    (5) On an appeal under this section, the Tribunal may -
    (a) confirm, vary or reverse the decision under appeal;
    (ab) refer the subject matter of the appeal, or any matter
    arising in the course of the appeal, back to a Review Officer
    with such directions or suggestions as the Tribunal thinks fit
    to make;
    (b) make incidental or ancillary orders.
    ***
    (8) On an appeal to the Tribunal under this section against a
    decision of a Review Officer, the Tribunal may, on such terms
    and conditions as it thinks fit, order that the operation of
    the decision subject to the appeal be stayed wholly or in part
    until the appeal is decided or until further order by the
Tribunal." 24. Section 100 states that a party to proceedings before the Tribunal may, by leave of the Supreme Court, appeal against a decision of the Tribunal in those proceedings, but the appeal shall be limited to a question of law and shall be heard and determined by the Full Court. 25. The appellant did not seek leave of the Supreme Court to appeal from the decision of the Tribunal. 26. Counsel for the appellant, Mr. Bourne, first argued that issue estoppel did not apply to decisions of a Review Officer, even when upheld by the Tribunal. He sought to rely on Bede v. Commonwealth Hostels Ltd. (1980) 4 NTR 31, (to be found in 30 ALR). I take the facts from the headnote which reads:
    "The plaintiff alleged that on 19 March 1976, in the course
    of his employment by the defendant, he was lifting and stacking
    cartons of meat in a freezer room when he slipped because of
    the icy and slippery condition of the floor and that, as a
    consequence, he injured his back. The plaintiff claimed
    damages, alleging further that the defendant, by permitting ice
    to form on the floor of the freezer, was guilty of a breach of
    a contract with him. In his reply to the defence the
    plaintiff claimed that, as a result of an award dated 26 May
    1977 made by the Northern Territory Workmen's Compensation
    Tribunal, the defendant was estopped in the present action from
    denying certain facts found by the Tribunal." 27. Forster CJ said at pp.32-33,:
    "Can issue estoppel arise from the findings of the
    Workmen's Compensation Tribunal? What is the nature of the
    tribunal? The president at the time of the relevant hearing was
    a stipendiary magistrate holding office under the Justices
    Ordinance 1970-77. The tribunal must consist of not less than
    three members the other two being appointed by the
    Administrator-in-Council. Section 6B of the Workmen's
    Compensation Ordinance in force at the relevant time was as
    follows:-
    6B.(1) The Tribunal has power to hear and determine claims for
    compensation under this Ordinance and all matters and questions
    incidental to or arising out of claims for compensation under
    this Ordinance.
    (2) The Tribunal may, in writing under the hand of a member of
    the Tribunal, summon a person to attend the Tribunal at a time
    and place mentioned in the summons and then and there to give
    evidence and to produce any books, documents and other papers in
    his custody or control that he is required by the summons to
    produce.
    (3) A summons under sub-section (2) shall be served on the
    person to whom it is addressed by delivering it to him
    personally or by leaving it with some apparently responsible
    person for him at his last or most usual place of abode.
    (4) The Tribunal may -
    (a) summon a medical referee to sit with it as an assessor;
    (b) submit to a medical referee for report any question or
    matter before the Tribunal;
    (c) administer an oath or affirmation to any person appearing as
    a witness before the Tribunal; and
    (d) adjourn the proceedings before it to any time and place.
    6D. At the hearing of a proceeding -
    (a) the procedure of the Tribunal is, subject to this Ordinance,
    within the discretion of the Tribunal;
    (b) the Tribunal is not bound to act in a formal manner and is
    not bound by the rules of evidence but may inform itself on any
    matter in such manner as it thinks fit; and
    (c) the Tribunal shall act without regard to technicalities and
    legal forms.'
    Section 6E provides that parties may appear personally or be
    represented by a barrister or solicitor or by any other person
    authorized in writing. Where a tribunal makes a determination
    awarding an amount of money to a person and the amount is not
    satisfied, then the person may obtain a certificate of the award
    and file it in the local court where on payment of the
    appropriate fee the clerk of the local court shall enter
    judgment for the person as if the award were a judgment of the
    local court (s 6P). Section 6Q provides for the punishment of
    persons served with a summons to attend the tribunal who do not
    attend or produce books, documents and other papers if so
    required. Section 6R provides for the punishment of a person
    appearing as a witness before the tribunal who declines to be
    sworn or make affirmation or declines to answer a question
    except a question tending to criminate himself. Section 6S
    provides for the punishment of a witness before the tribunal who
    gives false testimony. Section 6T proscribes a person from
    hindering, obstructing, deceiving or misleading a member of the
    tribunal in the discharge of his functions under the Ordinance.
    Can the tribunal be said to be a 'judicial tribunal' in the
    sense necessary to found an argument that issue estoppel may
    arise with respect to its findings? Unaided by authority I
    should have said that it is such a tribunal. It is true that
    it is not bound by the rules of evidence and should act without
    regard to technicalities and legal forms and its determinations
    require registration in a local court before they can be
    enforced. But in other respects it acts like a court and is
    presided over by a person who is legally trained and qualified
    and who is also at other times a judicial officer. The
    tribunal is competent to decide in the first instance disputes
    as to the compensation of workmen properly before it and indeed
    it is the only tribunal in the Northern Territory to be so
    competent. What then of the authorities? In Somodaj v
Australian Iron and Steel Ltd (1961) SR (NSW) 305 the Full Court
    of the Supreme Court of New South Wales decided that the
    Workers' Compensation Commission in New South Wales exercises
    judicial functions and exercises them as a court. Owen J says
    at p 307: 'It is true that the Commission has a number of
    administrative functions but in hearing and determining issues
    arising between worker and employer as to the right to receive
    and the liability to pay compensation the Commission exercises
    judicial functions and exercises them as a court. It is
    declared to be a court of record (s 31(l)). Its members hold
    office during 'ability and good behaviour'. They are given the
    rank, title, status and precedence and the same salary as a
    District Court Judge and are removable from office in the same
    manner only as a District Court judge is by law liable to be
    removed from office (s 31(3)). They take the judicial oath (s
    31(5)). Their powers to summon witnesses and receive evidence
    are those conferred upon a Commissioner appointed under Division
    l of Part II of the Royal Commissions Act 1923 s 34(l); and in

    addition they are vested with all such powers, rights and
    privileges as are vested in a District Court or any judge
    thereof in or in relation to any action or trial, in respect of
    matters such as compelling the attendance of witnesses,
    compelling witnesses to answer questions and punishing persons
    who disobey an order or summons of the Commission (s 34(2)).
    The Commission is given exclusive jurisdiction to hear and
    determine all matters and questions that arise under the Act and
    its decision is declared to be final (s 36(l)), subject to its
    right to reconsider any matter with which it has dealt and to
    rescind, alter or amend any decision or order previously made (s
    36(2)).' This decision was upheld by the High Court ((1963) 109
    CLR 285). As will readily be seen, the New South Wales
    Commission has more of the characteristics of a court than the
    Northern Territory Tribunal. This Commission may be taken as
    being at the top of the scale of judicial character.
    Considerably lower down, perhaps at the bottom, is the
    Commissioner under the Commonwealth Employees' Compensation Act,
    at least as he existed in 1966. In Pastras v Commonwealth
(1966) 9 FLR 152, Lush J says, at p 155: 'The underlying
    principle of this form of estoppel is that parties who have had
    a dispute heard by a competent tribunal should not be allowed to
    litigate the same issues in other tribunals. When the
    decision-making body is an administrative body not affording the
    opportunity of presenting evidence and argument, it seems to me
    there is no room for the operation of this principle.' The
    Northern Territory Tribunal, of course, whilst falling short of
    the full judicial character of the New South Wales Commission,
    does afford the opportunity of presenting evidence and argument,
    and if these were the sole criteria then the Northern Territory
    Tribunal would have the judicial character necessary to give
    rise to issue estoppel with respect to its essential findings.
    In Dare v Dietrich (1979) 26 ALR l8, Deane J with whom
    Muirhead and Lockhart JJ concurred, says at pp 32-3: 'Section 6D
    of the Ordinance provides that, subject to the Ordinance, the
    tribunal's procedure is within its own discretion, that the
    tribunal will act without regard to technicalities and legal
    forms and that the tribunal is not bound by the rules of
    evidence "but may inform itself on any matter such as it thinks
    fit". These provisions make it clear that, while the tribunal
    is, no doubt, under an obligation to act with judicial
    detachment and fairness, the proceedings before the tribunal are
    not governed by the ordinary principals relating to the
    determination of disputed questions of fact by a judicial
    tribunal.' It is true that his Honour was there considering
    whether or not an appeal from the Northern Territory Workmen's
    Compensation Tribunal heard by this court constituted a hearing
    de novo enabling the parties to call further evidence which had
    not been called before the tribunal, but I find the reasoning
    compelling and I therefore find that the Northern Territory
    Workmen's Compensation Tribunal is not a tribunal with respect
to the findings of fact of which issue estoppel may arise." 28. Unfortunately, Forster CJ was not referred to The Administration of the Territory of Papua and New Guinea v. Daera Guba (1973) 130 CLR 353. In 1954, a Land Board set up under s.9 of the Land Ordinance Act 1911 to decide disputes as to the ownership of land determined that the Administration was the owner of certain land. At p.402, in a judgment with which McTiernan J agreed, Barwick CJ said:
    "In my opinion, therefore, it is abundantly clear that a
    Board appointed pursuant to s.9 of the Ordinance was not limited
    to dealing with waste lands which had been dealt with or fell to
    be considered under s.8. Power was given to the Board to
    decide ownership in the case of all disputes on that question.
    'All' in this context means 'any' dispute where a Papuan was a
    claimant. The significant point of s.9 is that the power is to
    appoint a Board which is to decide. The obligation to act
    judicially comes from the power to decide the rights of
    individuals. The Board was, in my opinion, quite clearly a
    tribunal which, having power to decide such rights, was a body
    to which the prerogative writs would have gone. It was bound
    to observe the rules of natural justice, even though it might
    act according to equity and good conscience and not be bound by
    rules of legal procedure. Though freed of technical rules the
    Board was bound by legal principles in the decision of such a
    question as the ownership of land. It was not given power to
    award land to a person who in its opinion did not own it. Its
    task, if it was to decide ownership, was to ascertain the
    existing facts and apply the existing law to those facts in
    order to decide who did own the land. That, to my mind, is
    clearly work of a judicial nature and a decision as to the
    ownership must of necessity, subject to appeal, be final as
    between the parties before the Court or who, being duly
    notified, could have been before it." 29. Gibbs J, (as he then was), said at p.453 (Menzies and Stephen JJ concurring):
    "In many of the authorities that discuss (issue estoppel)
    it is said that the estoppel is brought about by a judicial
    decision, pronounced by a judicial tribunal. Thus in a recent
    case, Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No.
    2) (1967) l AC 853, at p 933, Lord Guest said: 'The rule of
    estoppel by res judicata, which is a rule of evidence, is that
    where a final decision has been pronounced by a judicial
    tribunal of competent jurisdiction over the parties to and the
    subject-matter of the litigation, any party or privy to such
    litigation as against any other party or privy is estopped in
    any subsequent litigation from disputing or questioning such
    decision on the merits (Spencer Bower on Res Judicata, p.3).'
    The use of the phrase 'judicial tribunal' in this context is
    convenient as indicating that an estoppel of this kind does not
    result from a mere administrative decision, but the question
    whether such an estoppel is raised is not answered by inquiring
    to what extent the tribunal exercises judicial functions, or
    whether its status is judicial or administrative: see Caffoor v
    Commissioner of Income Tax, Colombo, per Lord Radcliffe (1961)
    AC 584 at pp.597-599. A fairly obvious example is the case of
    a court-martial, whose sentence might in some circumstances be
    pleaded as an estoppel (Hannaford v. Hunn (1825) 2 C and P
148, at p 155 (172 ER 68 at p 71)), although not made in the
    exercise of judicial power (cf R. v. Bevan ; Ex parte
Elias and Gordon (1942) 66 CLR 452, at pp 466-468; R. v. Cox; Ex
    parte Smith (1945) 71 CLR l, at p 23). The doctrine of
    estoppel extends to the decision of any tribunal which has
    jurisdiction to decide finally a question arising between
    parties, even if it is not called a court, and its jurisdiction
    is derived from statute or from the submission of parties, and
    it only has temporary authority to decide a matter ad hoc: see
    Halsbury's Laws of England, 3rd ed., vol. 15, pp.212-214;
    Spencer Bower and Turner on Res Judicata, 2nd ed. (1969),
    pp 21-28. It will accordingly not be necessary to canvass the
    authorities to which we were referred, and which deal either
with issue estoppel or with the nature of judicial power." 30. I note that the Editors of the loose leaf "Cross on Evidence", Aust. Edn., after referring to the case just cited, state at p.5009: "In so far as Bede v. Commonwealth Hostels expresses a contrary view, it should not be considered good law". And I note that it was not followed in David Jones (Canberra) Pty Ltd v. Zapasnik (1982) 42 ACTR 6. Gallop J there held that the ACT Court of Petty Sessions exercising jurisdiction under the Workmen's Compensation Ordinance is a court of competent jurisdiction for the purpose of the doctrine of issue estoppel. At p.14 he said:
    "In my view the fact that the procedure of the court is not
    governed by the ordinary principles relating to the disputed
    questions of fact by a judicial tribunal does not conclude the
    question whether the Court of Petty Sessions exercising
    jurisdiction under the Workmen's Compensation Ordinance is a
    court of competent jurisdiction. It is a competent court
    exercising judicial functions." 31. I was also referred to the case of Milojevic v ROH Industries Pty Ltd
(1991) 56 SASR 78, where Debelle J held that the principles concerning the question of issue estoppel applied to judgments of the former Industrial Court, (pp.81-82). He was concerned there with a claim for compensation pursuant to the Workers Compensation Act 1971, s.21 of which provided that the Industrial Court of South Australia had jurisdiction to hear and determine claims for compensation under the Act. That Court was constituted by the Industrial Conciliation and Arbitration Act, and bore substantially more resemblance to the New South Wales Worker's Compensation Commission considered in the Somodaj case (supra), (see ss.21 and 24 of the Workers Compensation Act 1971 and see s.8(2) of the Industrial Conciliation and Arbitration Act, pursuant to which the Court was continued as a court of record, and s.9 thereof, dealing with the appointment of the President and one or more Deputy Presidents). I also note that although s.28(5), which applied to the Industrial Commission, is in similar terms to s.88 of the WorkersRehabilitation and Compensation Act 1986, there was no similar provision applying to the Industrial Court. 32. Finally, I was referred to a decision of the Workers Compensation Appeal Tribunal, namely, Pivovaroff v. Adelaide Powder Coaters Pty Ltd and Others No. A39/1993 dated 30 June, 1993, where the Tribunal (constituted by Stanley J and two lay members) held that a worker was estopped by an earlier decision of the Tribunal. 33. I add a reference to Cachia v. Isaacs (1985) 3 NSWLR 366 where the Court of Appeal had to consider findings of the Consumer Claims Tribunal, (see per Kirby P at p 368, per Hope JA at pp 380-382 and per McHugh JA (as he then was) in dissent at pp.386-390). 34. Having carefully considered the authorities and the arguments on either side, I have reached the conclusion that issue estoppel does apply to decisions of a Review Officer. It matters not, on the High Court's decision, supra, that a Review Officer is freed of technical rules (s.88). A Review Officer has power to receive evidence (s.89), to summon witnesses (s.90(l)(a)), to compel a witness to answer questions (s.90(l)(d)) and to punish a refusal to answer (s.90(3)). Parties before a Review Officer have the right to be represented (s.92). A Review Officer decides the rights of individuals, and subject to appeal, the decision is final as between the parties before him. 35. Next, Mr. Bourne argued that even if issue estoppel does apply to such decisions, the Review Officer had not made a finding that the appellant was incapacitated for work as a storeman between l May 1991 and l January 1992. I observe here that this argument was not made a ground of appeal to the Tribunal. Mr. Bourne referred me to the well-known and illuminating passage in the judgment of Dixon J (as he then was) in Blair v. Curran (1939) 62 CLR
464 at pp 531-533, where his Honour said:
    "A judicial determination directly involving an issue of
    fact or of law disposes once for all of the issue, so that it
    cannot afterwards be raised between the same parties or their
    privies. The estoppel covers only those matters which the
    prior judgment, decree or order necessarily established as the
    legal foundation or justification of its conclusion, whether
    that conclusion is that a money sum be recovered or that the
    doing of an act be commanded or be restrained or that rights be
    declared. The distinction between res judicata and
    issue-estoppel is that in the first the very right or cause of
    action claimed or put in suit has in the former proceedings
    passed into judgment, so that it is merged and has no longer an
    independent existence, while in the second, for the purpose of
    some other claim or cause of action, a state of fact or law is
    alleged or denied the existence of which is a matter necessarily
    decided by the prior judgment, decree or order. Nothing but
    what is legally indispensable to the conclusion is thus finally
    closed or precluded. In matters of fact the issue-estoppel is
    confined to those ultimate facts which form the ingredients in
    the cause of action, that is, the title to the right
    established. Where the conclusion is against the existence of
    a right or claim which in point of law depends upon a number of
    ingredients or ultimate facts the absence of any one of which
    would be enough to defeat the claim, the estoppel covers only
    the actual ground upon which the existence of the right was
    negatived. But in neither case is the estoppel confined to the
    final legal conclusion expressed in the judgment, decree or
    order. In the phraseology of Coleridge J in R. v. Inhabitants
    of the Township of Hartington Middle Quarter (1855) 4 E and B
780, at p 794 (119 ER 288, at p 293), the judicial determination
    concludes, not merely as to the point actually decided, but as
    to a matter which it was necessary to decide and which was
    actually decided as the groundwork of the decision itself,
    though not then directly the point at issue. Matters cardinal
    to the latter claim or contention cannot be raised if to raise
    them is necessarily to assert that the former decision was
    erroneous. In the phraseology of Lord Shaw, 'a fact
    fundamental to the decision arrived at' in the former
    proceedings and 'the legal quality of the fact' must be taken as
    finally and conclusively established (Hoystead v Commissioner of
Taxation (1926) AC 155). But matters of law or fact which are
    subsidiary or collateral are not covered by the estoppel.
    Findings, however deliberate and formal, which concern only
    evidentiary facts and not ultimate facts forming the very title
    to rights give rise to no preclusion. Decisions upon matters
    of law which amount to no more than steps in a process of
    reasoning tending to establish or support the proposition upon
    which the rights depend do not estop the parties if the same
    matters of law arise in subsequent litigation. The difficulty
    in the actual application of these conceptions is to distinguish
    the matters fundamental or cardinal to the prior decision or
    judgment, decree or order or necessarily involved in it as its
    legal justification or foundation from matters which even though
    actually raised and decided as being in the circumstances of the
    case the determining considerations, yet are not in point of law
    the essential foundation or groundwork of the judgment, decree
    or order." 36. To understand the arguments, it is necessary to set out s.36 of the Act, in so far as it is material:
    "36.(1) Subject to this Act, weekly payments to a worker
    who has suffered a compensable disability shall not be
    discontinued unless -
    (a) ...
    (b) the Corporation is satisfied, on the basis of a
    certificate of a recognized medical expert, that the worker
    has ceased to be incapacitated for work by the compensable
    disability;
    (c) - (e) ...
    (2) ...
    (3) Where the Corporation decides to discontinue or reduce
    weekly payments in pursuance of this section, the
    Corporation must give notice in writing to the worker
    stating the reasons for the Corporation's decision and
    informing the worker of the worker's right to have the
    decision reviewed.
    (3a) ...
    (4) Where a Review Officer is, on the application of a
    worker, to review the Corporation's decision under this
    section, the decision is inoperative until the review is
    completed and if the decision has already taken effect, the
    Corporation must immediately -
    (a) reinstate the weekly payments to their previous level;
    and
    (b) pay to the worker any amounts withheld in consequence of
    the decision under review.
    (5) Where on a review referred to in subsection (4) weekly
    payments are discontinued or reduced, any amounts to which
    the worker would not have been entitled but for the
    operation of subsection (4) may, subject to the regulations,
    be recovered from the worker as a debt.
    (6) - (12) ..." 37. At the commencement of her determination on 13 December, 1991, the Review Officer said
    "The application seeks to review a decision of the Workers'
    Rehabilitation and Compensation Corporation ('the
    Corporation') dated 4th April, 1991 with respect to the
    discontinuance of weekly payments of income maintenance.
    Pursuant to Section 36(l) of Workers' Rehabilitation and
    Compensation Act, 1986 ('the Act'), the Corporation determined
    to discontinue weekly payments of income maintenance on the
    basis of medical certificates from Mr. Hallpike and Mr.
    North." 38. Later, the Review Officer said:
    "On the basis of his pain experience and consequential
    restrictions and limitations, the worker maintains that he is
    partially incapacitated for work. He considers himself fit to
    undertake lighter work of a supervisory or sales nature and
    over the last 18 months has actively sought such employment but
    states that he is unable to return to storeman duties ... In
    reaching my determination, I take into account all of the
    evidence and submissions put to me at the hearing, the documents
    on file and tendered at the hearings and the demeanour of the
    applicant worker." 39. Later, she said:
    "The question is whether the worker has ceased to be
    incapacitated for work as a result of the compensable disability
    sustained on 28th March, 1989. In light of the worker's less
    than candid demeanour in relation to providing a complete
    history to doctors, I find that the worker's evidence as to
    incapacity needs to be considered in the context of the overall
    medical evidence presented. I accept that the worker suffers
    pain on occasion when manual tasks are undertaken but pain of
    itself it not incapacitating. Dr Ramsey continues to provide
    prescribed medical certificates but there is no evidence of any
    continuing treatment or medication and the worker reports that
    he is able to relieve any ensuing pain by lying down for a
    period of 5-20 minutes. On the evidence before me the worker
    has not seen either Mr North or Mr McCulloch for approximately
    12 months, nor has he sought any further treatment. Dr North
    last examined the worker on 10th December, 1990 and recorded
    the worker's complaints of continuing lower back pain related
    to lifting and heavy work and noted mild restriction of back
    flexion. Even so, on the basis of his findings he formed the
    opinion that the worker had recovered from the effects of the
    temporary aggravation. Two months previously, Mr. Hallpike
    examined the worker on 18th October, 1990, and again recorded
    relatively slight persisting symptomology but on 22nd December,
    1990 certified that the worker had ceased to be incapacitated
    for work. The worker sought no further treatment from Mr
    McCulloch after 23rd January, 1990. At that time Mr McCulloch
    found the worker 'partially incapacitated for work in that he
    is unable to perform heavy labouring duties. Work of a moderate
    nature is within his ability.' In giving evidence in the
    District Court, Mr McCulloch was still 'optimistic given time
    it will settle', but as he had not had the opportunity to review

    the worker in relation to his continuing complaints as recently
    as Mr North or Mr Hallpike, I prefer and give greater weight to
    their opinions. In weighing the evidence, I find that the
    worker suffers relatively mild restriction and persisting
    symptomology but that it does not preclude him from undertaking
    manual labouring work. On the balance of probabilities, I am
    satisfied that the worker has ceased to be incapacitated for
    work as a storeman. DETERMINATION Pursuant to Section 96 of
    the Act, I confirm the decision of the WorkCover Corporation
    dated 4th April, 1991 to discontinue weekly payments of income
    maintenance to the worker pursuant to Section 36(1)(b) of the
    Act." 40. I agree with Mr. Bourne that the Review Officer's determination lacks precision, and that it might have been preferable for her to have stated expressly that the appellant had ceased to be incapacitated for work as a storeman as and from 4 April, 1991. However, what she did say has to be understood in context, a context which includes the decision of the Corporation and the reasons therefor, (see its letter dated 4 April, 1991, supra), the application by the appellant for a review and the wording thereof (supra), the role of the Review Officer under s.96 and the wording of that section, and a proper understanding of sub-sections (4) and (5) of s.36. So understood, her determination was, in the relevant sense, conclusive, and the learned Magistrate, in my view, correctly decided that the appellant was estopped. 41. Finally, upon the view I have taken, there is no substance in the appellant's argument that the learned Magistrate did not afford the appellant a proper hearing. 42. The appeal is dismissed.