Jorgensen-Hall v Workcover Corporation No. Scgrg-97-523 Judgment No. S6459

[1997] SASC 6459

JORGENSEN-HALL V WORKCOVER CORPORATION

Full Court:  Doyle CJ, Lander & Bleby JJ

Lander J

This is an appeal by leave of a Judge of this Court pursuant to s100 of the Workers Rehabilitation and Compensation Act 1986 (the Act) against orders made by the Workers Compensation Appeal Tribunal on 24 March 1997 and 9 April 1997.

The appellant was employed by Australian Poultry (Steggles) Ltd and on 17 January 1992 she suffered an injury to her back whilst working on the employer’s production line.  In the notice of disability provided by her to her employer on 30 January 1992 she said that she suffered back pain when she picked up tubs of chicken and turned to face the conveyer belt.

She was absent from work from 17 January until 22 June 1992 when she returned to work on alternate duties; light clerical duties.

By letter dated 30 June 1992 Workcover Corporation accepted that she suffered a compensable disability for the period 17 January 1992 until 22 June 1992.  She received weekly payments for that period and the Corporation undertook that it would meet any expenses reasonably incurred by her as a result of the disability.

In the letter advising of acceptance of the claim she was advised that she had the right to apply for a review of the decision and that such an application had to be lodged with the Corporation within one month from the date of the letter.

On 13 July 1992 the appellant left work and commenced maternity leave.

On 14 July 1992 the Corporation wrote to her in the following terms:

“The Corporation has been advised by your employer that you commenced alternate full time duties on the 22/6/92 and that you will be commencing maternity leave on 13/7/92.

This constitutes a breach of mutuality, and therefore you will no longer be eligible to receive Income Maintenance payments.

Section 36(1)(e) of the Workers Rehabilitation & Compensation Act, 1986, as amended, provides for the discontinuance of weekly payments where this is authorised or required by some other provision of the Act.  Section 35(2)(a) of the Act, provides for partial incapacity to be treated as total unless the Corporation can establish that suitable duties are available to the worker.

Since Australian Poultry have made such duties available to you but due to your pregnancy you are unable to undertake these duties, the corporation has determined, pursuant to Section 36(1)(e) as authorised by Section 35(2)(a) of the Act, to discontinue your weekly payments of income maintenance, effective from 13 July 1992.

Should you be dissatisfied with this decision, you may apply for a review.  To apply, a completed Application for Review form must be lodged with the Corporation within one month from receipt of this letter.  Further information about the review process is enclosed with this letter.

It must also be mentioned that once you return to work after your pregnancy that you are deemed to still have a partial incapacity.”

That letter was written, I think, out of an abundance of caution because no application for compensation arising out of any compensable disability was made by the appellant at that time.  I think the Corporation wrote to the appellant to make it clear to her that her absence from work did not give rise to any right to compensation under the Act.

However, the letter effectively included a concession in the penultimate paragraph that on her return to work she would be deemed to have a partial incapacity.  The letter also advised her of her appeal or review rights.

About three months after giving birth to her first child on 7 August 1992 the appellant and her mother attempted to make contact with a counsellor who had become known to the appellant during the appellant’s time off work in early 1992 and who apparently worked at McWork Rehabilitation. The appellant and her mother attempted to approach the counsellor after the birth in an effort to resume the appellant’s employment.

Apparently they were not able to make contact and nothing further was done about that.  The appellant later instructed her solicitor a Mr Peter Russell of Russell & Russell to act for her.  It is not clear when Mr Russell was instructed but the medical reports addressed to him indicate that he must have been instructed prior to May 1994.  Mr Russell was subsequently struck off the role of practitioners for his conduct in relation to delay in other matters.

In the period between July 1992 and June 1995 the appellant gave birth to two children.  She was also involved in a motor vehicle accident.  There was no suggestion that the appellant, during that period, had ever advised her employer that she was ready, willing and able to engage in suitable duties.

In June 1995 the appellant instructed her present solicitors.  They first wrote to the Corporation on 18 June 1995 seeking various documents and in that letter said:

“We advise our client has not been provided with suitable alternate duties since 1992 although our client has been ready, willing and able to engage in suitable duties.”

On 7 September 1995 the appellant sought a review of the decision of 30 June 1992.

The decision which the appellant sought to have reviewed was:

“Decision dated 30th June 1992 accepting the worker’s claim for back injuries sustained on 17th January 1992 and accepting the worker’s claim for weekly payments of compensation for the period 21.1.92 to 22.6.92 only, as the worker had returned to work.”

The reasons for disagreeing with the decision were that “the determination is against the evidence and weight of evidence” and “the worker did not return to her normal duties after the 22nd June 1992 as she remained partially incapacitated for work.”

The appellant also sought an extension of time within which to seek that review on the grounds that “the worker received legal advice in relation to the determination on 31st August 1995” and “the worker did not receive legal advice prior to the 31st August 1995 in relation to the effect of the WorkCover Corporation’s determination accepting the claim for a closed period.”

Both the Review Officer who heard the application for a review and the application for an extension of time, and the Deputy President to whom an appeal was brought refused the extension of time within which to bring the application for a review.  Both were of the opinion that the length of the delay gave rise to incurable and substantial prejudice to the Corporation.  They were both of the opinion that there were insufficient reasons advanced by the appellant to grant an extension of time.

The learned Deputy President was also of the opinion that the appellant would not be prejudiced if the application for an extension of time was refused because the application for the review of the decision of 30 June 1992 had no prospect of success in that the determination sought to be reviewed did no more than establish that the appellant had been incapacitated for the period stated and had resumed work on alternate duties on the date stated.  There was nothing in fact for the appellant to complain about.

On 20 December 1995 the applicant also sought a review of the determination of 14 July 1992 being:

“Determination dated 13th (sic) day of July 1992 seeking to discontinue weekly payments of compensation”.

The reasons for the seeking of the review were that the determination was against the evidence and weight of evidence and the determination was void.

The appellant also sought an extension of time within which to bring that application for review.  No written application for an extension of time was ever lodged but the Review Officer treated an oral application for an extension of time made on 20 December 1995 as being sufficient compliance with the Rules.  The application for an extension of time suffered the same fate as the previous application and for the same reasons.

On 3 October 1995 the appellant made a claim for compensation seeking weekly payments of compensation “as a result of being incapacitated by a work injury on 17/1/1992.”  It is not clear from the appeal papers in this Court the period over which the claim for compensation was made.  In any event on 29 December 1995 the Corporation responded in the following terms:

“We acknowledge receipt of your claim for compensation dated 03/10/95, seeking entitlement to weekly payments of compensation allegedly as a result of being incapacitated by a work injury on 17/01/92.

Your claim for compensation for ongoing income weekly payments has been rejected in accordance with Sections 52(1)(b) and 52(7) of the Workers Rehabilitation and Compensation Act, 1986, as amended.

....................

The decision to reject your claim is based on the following facts:

·....... You submitted a Notice of Disability/Compensation Claim Form dated 03/10/95 for an injury sustained in January 1992.  You advised us through your representative, letter dated 04/10/95, that this claim was specifically for income maintenance payments to be reinstated from the date of the prescribed medical certificate from Dr Cassar being 15/09/95.

Therefore this claim has been submitted three years and nine months out of time and is therefore rejected on these grounds.

........................  ”

The only reason given for the rejection of the claim for compensation was that it was out of time.

On 5 January 1996 the appellant sought a review of that determination.  The reasons for seeking the review were given as:

“(1).. The determination is against the evidence and weight of the evidence.

(2)... The worker has suffered an incapacity for work as a result of the work injury which occurred on the 17th day of January 1992.

(3)... The worker did lodge a claim for compensation within the prescribed period.”

On 23 November 1995, pursuant to s102 of the Act, the appellant made a further application seeking a review of the delay by the Corporation in making payment of physiotherapy accounts dated 9 October, 20 October and 23 October 1995.

As I have already noted the appellant’s written application for an extension of time within which to bring an application for review of the determination of 30 June 1992 and the oral application made by counsel for an extension of time to bring an application for review of the determination of 14 July 1992 were both dismissed.

In relation to the application for the review of the claim for compensation of 3 October 1995 the Review Officer held that the Corporation was wrong to determine that the application was outside the prescribed period, because the claim for compensation was not in respect of any period prior to the date of the claim but only in respect of the period after the date of the claim.  She found that the claim of 3 October 1995 was therefore within time and had to be considered on its merits, which she did.  After discussing medical evidence advanced by the parties the Review Officer concluded:

“In determining Ms Jorgensen-Hall’s recent claim I have primarily relied upon her evidence and the medical opinions of Dr Eriksen as expressed in his medical report and evidence at the hearing.  Whilst Ms Jorgensen-Hall indicated that there were some activities which would tend to aggravate her condition, in the main she was able to undertake all daily activities experiencing more a feeling of discomfort rather than back pain of any severity.  Consequently, taking the worker’s evidence in its totality in the light of Dr Ericksen’s opinion who is of the view that the worker is not incapacitated for work and may simply be suffering from some muscle deconditioning, as a consequence of being out of the work force for a considerable period of time and for the reasons as outlined earlier in relation to the extension of time applications, I find that Ms Jorgensen-Hall’s claim for compensation dated 3 October 1995 cannot succeed and accordingly, I reject the worker’s claim for compensation.”

Although the Review Officer did not say so, that finding would also have disposed of the application for a review under s102 of the Act.

The appellant appealed from the dismissal by the Review Officer of those applications to a Deputy President of the Workers Compensation Appeal Tribunal.  On 24 March 1997 he dismissed the appeals from the refusal to grant an extension of time within which to bring the reviews and also dismissed the appeal relating to the substantive matter.

After the Deputy President had published his reasons for dismissing all of the appeals from the Review Officer the appellant sought an order for costs from the learned Deputy President.

At the relevant time s92a of the Workers Rehabilitation and Compensation Act provided:

“(1)Subject to this section, a review authority must observe the following principles in relation to awarding costs;

(a)...

(b)a party (other than the Corporation or an exempt employer) who is represented by a legal practitioner or an officer or employee of a registered association is entitled, subject to limits fixed by the regulations, to the cost of representation.

(c)if the proceedings are frivolous or vexatious, costs (which may exceed the limits fixed by the regulations) may be awarded against the party by whom the proceedings are brought.

(2)...

(3)A review authority may decide against awarding costs to which a party may otherwise be entitled under this section, or reduce the amount of such costs, if of the opinion that the party acted unreasonably in bringing, or in relation to the conduct of, the proceedings.

(4)...

(5)...

(6)...”

His Honour heard the parties on the appellant’s claim for costs and on 9 April 1997 he made an order that the respondent pay the appellant’s costs less 15 per cent.

The reason relied upon by the learned Deputy President for the respondent receiving only part of her costs was that her solicitors had not complied with orders of the Court made at a callover presided over by the Judge.  At that callover he had directed counsel for the appellant to provide an outline of argument and directed the appellant to provide a list of authorities to the presiding member’s associate no later than three clear working days preceding the hearing of the appeal.

Neither counsel nor the appellant complied with the order as framed.  Whilst the order required the filing and service of the outline of argument and list of authorities by close of business on Monday 3 March 1997 the outline and the list of authorities did not reach the learned Deputy President until a facsimile was received shortly before 10.00 am on 6 March 1997.

His Honour said this:

“I took the view initially that the Appellant’s costs should be reduced in all the circumstances by 50%.

However, upon consideration, that ought to be ameliorated not the least because the conciliation proceedings did not conclude until seven days before the appeal was heard, and I accept that it was reasonable not to deliver a brief prior to Friday pm February 28th.  Had there been real difficulty about complying with the Orders of the Court, the final Order made was ‘liberty to apply’.  As a matter of prudence if not as a matter of courtesy the Appellant’s solicitors could by Monday the 3rd have telephoned or sent a facsimile to my Associate, and to the Respondent that due to the late conclusion of the conciliation process they were not in a position to file the Outline of Argument, and List of Authorities and thus comply with the Order of the Court.  However they chose not to do so, and simply embarked upon a course of filing the documents late on the basis that either counsel could be blamed or that they were under no obligation to take any steps to comply with the Orders.

This is a serious matter.  It is not simply the obedience per se to the tribunal’s orders that is at stake, - the obedience to this particular set of orders contribute (sic) significantly to the smooth running and intelligent disposition of the appeal list.”

The appellant sought leave to appeal to this Court from the decisions of the Deputy President given on 24 March 1997.  The appellant also sought leave to appeal against the order reducing her costs given on 9 April 1997.  The appellant was granted leave to appeal to this Court against both the orders made by the learned Deputy President on 24 March 1997 and 9 April 1997.

Seven grounds of appeal were included in the Notice of Appeal but I shall set out only ground 4 (in its amended form) and ground 7, being the only two grounds pursued on appeal:

“4.The learned Tribunal erred in failing to allow the worker to call oral evidence from Dr Ormandy, Dr Cullum and Dr Bright (sic) when an application was made to call those medical witnesses as of right pursuant to Section 97(4e)(b) of the Workers Rehabilitation and Compensation Act, 1986 and further erred in failing to allow the worker to tender the further report of Dr Ormandy pursuant to s97 (4e)(d).

7.The Tribunal erred in law in reducing the worker’s award of costs pursuant to Section 92A(3) of the Workers Rehabilitation and Compensation Act, 1986.”

The appellant did not pursue her complaints that the learned Deputy President and the Review Officer erred in law in failing to grant an extension of time within which to seek a review of the determinations made by the Corporation on 30 June 1992 and 14 July 1992.

In relation to the substantive issue the two matters pursued on appeal were that the learned Deputy President failed to allow the appellant to call oral evidence from Doctor Ormandy, Doctor Cullum and Doctor Blight when an application was made to call those medical witnesses in the appeal before the learned Deputy President and that the learned Deputy President erred in failing to allow the appellant to tender, pursuant to s97(4e)(d), a further report of Dr Ormandy dated 5 March 1997. In relation to the order for costs the ground pursued was that the learned Deputy President erred in law in reducing the appellant’s award of costs pursuant to s92a(3) of the Workers Rehabilitation and Compensation Act 1996.

When the appeal first came before the learned Deputy President there was no application before the learned Deputy President to call any oral evidence.  Whilst there were eleven grounds of appeal to the learned Deputy President only two grounds (ten and eleven) were directed to the question of whether the appellant was entitled to compensation after 3 October 1995.  The remaining nine grounds complained of the failure of the Review Officer to grant an extension of time to seek a review of the determinations of 30 June 1992 and 14 July 1992.  The relevant grounds of appeal from the decision of the Review Officer to the learned Deputy President were:

“10.The Review Officer erred in failing to find that the worker continued to suffer a partial incapacity for work as a result of the compensable disability.

11.The Review Officer erred in failing to take into account the opinions of Dr Nagi Guirguis and Dr Suzette Blight, Dr Spizzo and Dr Gordon Ormandy.”

The relief which was sought on the appeal was:

“1.     That the appeal be allowed.

2.That the determination of the Review Officer be set aside and in lieu thereof an order granting the worker an extension of time to review the Corporation’s determinations dated the 30th day of June 1992 and the 13th day of July 1992 and a determination accepting the worker’s claim for compensation dated the 3rd day of October 1995.

4.That the worker be paid her costs of and incidental to this appeal.

5.Such further or other order as the Tribunal deems fit.”

The appellant did not identify, either in the grounds of appeal or in the relief sought, any claim to tender any further evidence on the appeal.

Section 82 of the Workers Rehabilitation and Compensation Act empowers the President of the Tribunal to make rules regulating the practice and procedure of the Tribunal.

Section 82(2) provides:

“(2)Without limiting the generality of subsection (1), those rules may make provision for—

(a)prehearing conferences presided over by a presidential member of the Tribunal sitting alone;

(b)the disclosure of information between the parties to an appeal before the hearing of the appeal;

(c)recording the terms of any settlement of an appeal;

(d)procedures to be followed in default of the appearance of a party to an appeal.”

The President has made rules pursuant to s82 of the Workers Rehabilitation and Compensation Act.

Those Rules provide for the practice and procedure in relation to appeals to the Tribunal from the decisions of a Review Officer.  The object of the Rules is to prescribe various procedures to facilitate the effective and efficient operation of the Tribunal in relation to appeals under the Act (r4).

Rule 11 requires the Registrar of the Tribunal to advise the parties of a date, time and place of a directions hearing prior to the hearing of the appeal.

Rule 12 provides:

“12(1)The directions hearing shall be conducted on behalf of the Tribunal by a Presidential Member of the Tribunal.

12(2)All parties or their representative shall attend the directions hearing at which the Tribunal may give directions concerning:

(a)Further clarification of the issues in the proceedings.

(b)The filing and service of lists of documents.

(c)The date for hearing.

(d)The venue of the hearing.

(e)Any amendment of the appeal notice.

(f)The giving of evidence or further evidence wholly or in part by affidavit.

(g)Adjournment of the directions hearing.

(h)Pleadings as to fact and law upon the issues.

(i)Any other matter relevant to the hearing of the appeal.

12(3)........ At any time any party shall be entitled to inspect any of the material provided by the Review Officer to the Registrar pursuant to section 97(4B) and to take copies of any such material.

12(4)........ At the directions hearing the Tribunal may call upon a party to:

(a)Report to the Tribunal the stage of preparation for the hearing.

(b)Provide the names of witnesses to be called and details of their availability.

(c)Provide a realistic estimate of the time required for the presentation of the case.

(d)Produce any document provided that document is relevant and admissible in the proceedings.”

As can be seen r12(2) empowers the Tribunal to give directions for the filing and service of list of documents and the giving of evidence or further evidence wholly or in part by affidavit.  The Tribunal is also entitled to call upon a party to provide the names of witnesses to be called and details of their availability and produce any document provided that document is relevant and admissible in the proceedings.  (r12(4))

Whilst the Rules do not specifically empower the Presidential Member, at the directions hearing, to order the parties or their solicitors to file an outline of argument and a list of authorities there can be no doubt that such power is contained within r12(2)(i).

Rule 13 provides for non-compliance with any of the rules and it provides:

“13Where a party fails to comply with any of these Rules or the Tribunal’s directions as to the provision of documents to another party, the Tribunal may on application made orally or in such other manner and on such notice to any other party as the Tribunal shall direct in its discretion:

(a)Adjourn the hearing of the appeal until the documents are provided.

(b)Give such further or other directions, and on such terms, as the Tribunal thinks fit.”

Specifically r13 does not empower the Tribunal to refuse to hear oral evidence or refuse to accept the tender of a document because of any non-compliance with r12 or any other rule.

There was no written application before the learned Deputy President to call any oral evidence or any fresh evidence and none was made when the matter first came before him.

Whilst counsel for the appellant was developing his submissions before the learned Deputy President he said in relation to Dr Ericksen’s evidence (which had been accepted by the Review Officer): 

“1If I can go back now to Mr Eriksen’s evidence, his suggestion is that - and it was raised really for the first time, as I previously indicated, that her condition was a muscle deconditioning difficulty or problem and that that was what was precluding her from the workforce.  That was raised for the first time in evidence before the review officer.  There was no suggestion of that contained within his report.  There’s an easy way to rectify that and that would be to have further medical evidence from one or more specialists and it could be put to them in very simple terms: does their diagnosis take into consideration or is it correct that her condition, her current condition, relates to the muscle deconditioning that Mr Eriksen has referred to?

As a result of that not really being either directly or indirectly referred to in his report, and the fact that it was then raised for the first time at the review hearing, puts this worker in a position where she’s not able to dispute Doctor Eriksen’s suggestion that de-conditioning is the problem.”

Counsel then said that it was important that further medical evidence be received so that the Deputy President could make an informed decision whether her complaint was as a result of the condition described by Mr Eriksen or whether that opinion could be rejected.

At that point counsel did not seek to identify the medical evidence to which he referred or the particular witness (if any) who would give the evidence but put the submission in the general terms which I have described.

A little later counsel said: 

“MR HYDE:And that if she is complaining of pain, he accepts what she’s saying and, indeed, if I can take your Honour to page 102, in answer to this question:

You would agree though at the current moment there is an incapacity for work that she could move towards.

and Dr Eriksen says:

A.Yes, I’ve already said that to your friend, I think, that if she went back to work she would have initial difficulties, but I don’t think she would have long-term difficulties.

QSo there’s a current incapacity for work.

AYes, temporary.

Well, you can’t get much plainer than that.  He’s accepting this lady as genuine, he’s accepting that she’s been injured and he’s accepting that she’s still got some incapacity.

THOMPSON DP:      Yes, all right.

MR HYDE:................. The situation in regard to the additional evidence is this, that further evidence from Dr Ormandy ...

THOMPSON DP:...... What you’re really saying is that I should - I’m not going to entertain an application for additional evidence.  What you’re really saying is that the matter is unsatisfactory and should be sent back to the review panel.

MR HYDE:................. I am saying that, but my preference is for your Honour to hear the evidence and to make your own assessment.

THOMPSON DP:...... It’s not mine and you’ve got some real problems with that course, because the authorities of FJ Trousers v Farrance and Linou v Mason and Local Government v Pica are quite clear that the review hearing is where all the evidence has to be trotted out.  It’s not a dry run.

MR HYDE:................. As I understand it, section 97 does give your Honour a discretion in appropriate circumstances to entertain more evidence.

THOMPSON DP:...... Yes, but there’s nothing that you’ve put to me this morning that couldn’t have been cured at the review...”

To that point counsel had identified Dr Ormandy as being a source of further evidence.  Counsel had also made it tolerably plain that he wished to call Dr Ormandy.  He spoke in terms of hearing the evidence.  Whilst reference was made to this additional evidence no application appears to have been made to that point.  A little later counsel said that he persisted with his application but did not identify the application.

In reply to that the Deputy President said:

“THOMPSON DP:     You see, you have a horrendous problem in trying to run a section 97 application now, because at the callover it was quite distinctly given - that’s a point that has to be addressed, because they are always the subject of, if they’re not consented to - I mean, one has to sort out between 97(4)(d) and (4)(e) and there are different  considerations that apply to both of those and in the very nature of things, they’re invariably preliminary points that must be decided and there’s a consequential order that I always make, and I assume that my colleagues make the same thing, that if further evidence is to be called or is sought to be called, then an outline of the nature of the evidence in accordance with a proof that would satisfy examination-in-chief should be compiled and sent to the other side a fortnight before the application or a few days before the application is to come on, so all of those things, Mr Hyde, are totally absent in this case.

Counsel then said:

MR HYDE:Your Honour, can I perhaps suggest this as an avenue, and no doubt your Honour will soon tell me whether it’s appropriate or not, but Dr Ormandy has provided a more recent report of 5 March 1997.  That was forwarded to my friend in the last day or so and it may be appropriate for your Honour to receive this as a further medical report which will, in my submission, go some way although still falling far short of the more appropriate approach in terms of the worker, that being to call the doctor, but certainly I would ask your Honour to receive this medical report.

THOMPSON DP:      Well, Mr Hyde, I would only do that if it was consented to.  Have you got your opponent’s consent?”

There was then some further discussion and the learned Deputy President said that he would not receive the evidence.  He then formally rejected the tender of the medical report and refused to allow counsel for the appellant to call “additional medical evidence”.

In his reasons the learned Deputy President said:

“It is fair to say that at the Tribunal counsel for the Appellant sought leave to adduce further evidence from Mr G Ormandy.  I refused that application because:

(i)     such an application was not mentioned at the callover.

(ii)nor had there been an application prior to the hearing to call further evidence pursuant to s97,

(iii)the report that was to be tendered had been served on the Respondent’s solicitors only the previous evening.”

I have referred to the whole of the transcript dealing with the question of the calling of evidence before the Deputy President.  There was no application to call any oral evidence from Doctor Cullum or Doctor Blight and in those circumstances that complaint in the ground of appeal cannot be sustained.

I think that it can be said that an application was made to call Dr Ormandy to give oral evidence.  The transcript suggests that the learned Deputy President believed so because he referred to s97(4d) and s97(4e).  It is plain that in referring to these subsections and in saying that he has a practice of making orders requiring an outline in the nature of evidence in a proof which would satisfy examination in chief that the learned Deputy President did consider the question of oral evidence.

It must be said however, that at best the application to call oral evidence was made obliquely.  Whilst the application did identify the witness to be called, namely Dr Ormandy, it was not made clear what evidence would be given.  It may be that counsel, having regard to the exchange with the learned Deputy President, saw no point in putting the application more clearly or forcefully.  Indeed after the exchange with the learned Deputy President counsel suggested an alternative procedure which was the tender of Dr Ormandy’s latest report, which had been served the previous day.  I think, however, in offering the report counsel did not abandon his application for oral evidence because he said the receipt of the written report would “go some way although still falling far short of the more appropriate approach in terms of the worker, that being to call the doctor...” 

I am prepared to proceed upon the basis that there were two applications made.  There was an application to call Dr Ormandy to give oral evidence and an application to tender Dr Ormandy’s report dated 5 March 1997.  That report had been written two days before the hearing and was served on the respondent the next day, the day before the hearing.

At the relevant time s97 gave a right of appeal to the persons described in the section to the Workers Compensation Appeal Tribunal from a decision of a Review Officer.  That section also provided for the procedure to be adopted on the hearing of an appeal.  Relevantly it provided:

“(4d) Subject to subsection (4e), the appellate authority 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 appellate authority 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 appellate authority.

(5)On an appeal under this section, the appellate authority may—

(a)confirm, vary or reverse the decision under appeal;

(b)make incidental or ancillary orders.;”

I shall deal firstly with the complaint that the learned Deputy President erred in failing to receive the written report of Dr Ormandy of 5 March 1997.   The appellant says that the learned Deputy President was obliged to receive the report under s97(4e)(d).  No complaint was made that the learned Deputy President was obliged to receive the document under s97(4e)(c).

That report was not put before this Court.  Indeed it was apparently not handed up to the learned Deputy President.  In those circumstances neither the learned Deputy President nor this Court could be satisfied that the report satisfied the criteria under s97(4e)(d).  All the learned Deputy President knew was that it was a report written by Dr Ormandy but he was not to know that the report was relevant to the appeal.  However even if it could have been assumed that it was relevant to the appeal there was nothing before the learned Deputy President to say that there was some substantial reason for admitting the evidence in the interests of justice.  The respondent’s position could not be overlooked in a consideration of the interests of justice and there was evidence that the respondent had only been served with the report the previous day.  I do not believe the appellant satisfied the necessary criteria in s97(4e)(d) in relation to this report and the learned Deputy President did not err in refusing the tender.

It would be fair to say that the main complaint on this appeal was that the learned Deputy President erred in not hearing oral evidence relevant to the appeal from a witness from whom evidence was taken in documentary form by the Review Officer.

Three reports, dated 11 May 1994, 6 December 1994 and 20 April 1995 of Dr Ormandy were tendered and admitted before the Review Officer.  Dr Ormandy was therefore a witness from whom evidence was taken in documentary form by the Review Officer.

The evidence sought to be led from Dr Ormandy was to rebut the opinion of Dr Eriksen which was that the appellant suffered only from muscle de-conditioning brought about by inactivity. Exactly what he might say was not stated. Indeed it was not even clearly stated that his evidence would rebut Dr Eriksen’s opinion but I am prepared to assume that he was to be called for that purpose. That evidence would, on a re-hearing, be evidence relevant to the appeal. Dr Ormandy’s proposed evidence therefore satisfied s97(4e)(b).

It was submitted that s97(4e) is mandatory in its terms.  If on appeal the evidence sought to be adduced came within any of the subparagraphs of s97(4e) it was submitted the evidence had to be heard.  It was submitted that s97(4e) had to be contrasted with s97(4d) where a discretion was vested in the Tribunal to re-hear the whole or any part of the evidence taken before the Review Officer or to take further evidence.

An appeal before the Tribunal is an appeal by way of re-hearing:  Simpson Ltd v Arcipreste (1990) 53 SASR 9. It is therefore a hearing on the documents although the Tribunal in its discretion may re-hear the whole or part of the evidence and may admit further evidence (s97(4d). On that re-hearing the Tribunal must admit any evidence which satisfies any of the criteria in s97(4e).

King C J said in Linou v Mason and Another (1993) 59 SASR 117 at 120:

“It was held by the Full Court in Simpson Ltd v Arcipreste (supra) that the appeal to the Tribunal is not an appeal by way of rehearing de novo but a rehearing on the documents enlarged by the powers of the Tribunal to hear evidence.  Those powers are very wide.  Subsection (4e) states the circumstances in which the Tribunal is bound to hear evidence.  It is not only bound to rehear evidence if the record is incomplete and to hear oral evidence from a witness from whom evidence was taken in documentary form by the Review Officer, but it is bound to take further evidence, that is to say evidence which was not given before the Review Officer, if the party seeking to introduce it could not reasonably be expected to  have done so in the proceedings before the Review Officer.  In addition the Tribunal is bound to take evidence, that is to say evidence already given before the Review Officer or further evidence not given before the Review Officer, if “there is some substantial reason for admitting the evidence in the interests of justice”.  Those provisions mandate the Tribunal to take evidence in a wide variety of circumstances.  Over and above all that, there is an unfettered discretion in subs (4d) to rehear the whole or any part of the evidence taken before the Review Officer or to take further evidence.”

Clearly enough s97(4d) and s97(4e) may be contrasted.  Section 97(4e) is mandatory and must be observed by the Tribunal.  Linou v Mason (supra); Workcover Corporation v Rodis (1992) 60 SASR 172. If a party before the Tribunal can establish a right to call evidence because the evidence complies with the particular criteria of s97(4e)(a), 97(4e)(c) or 97(4e)(d) or the witness is within the class of witnesses in s97(4e)(b) then that party is entitled to call that evidence. That evidence might make the appeal appear to become a hearing de novo but that is a consequence of the legislation which must be complied with.

Section 97 (4d) on the other hand allows the Tribunal in the exercise of its discretion to re-hear the whole or any part of the evidence taken before the Review Officer, or to take further evidence.  Whilst the Tribunal must hear any of the evidence which complies with s97(4e)(a), s97(4e)(c) or s97(4e)(d) or a witness from whom evidence was taken in documentary form by the Review Officer [s97(4e)(b)] it has a residual unfettered discretion to hear evidence that does not satisfy the criteria in any of the subparagraphs of s97(4e) whether that evidence was given before the Review Officer or not.  If it was to exercise that discretion again the appeal would take on the character of an appeal de novo but that again is the consequence of the legislation.

Of course whether the Tribunal re-hears evidence or takes further evidence, either under s97(4d) or s97(4e), the evidence will only be taken in circumstances where the parties are given the opportunity of examining or cross examining the witness to be called before the Tribunal [s97(4f)].

The Rules of the Tribunal to which I have referred do not purport to limit the circumstances in which the Tribunal must hear, take or re-hear evidence under s97(4e). Nor do they purport in any way to limit the discretion to re-hear or take further evidence under s97(4d). There is nothing in the Rule making power in s82(2) of the Act to suggest that the President could make such a Rule, but in any event no such Rule has been made.

A party cannot be prevented from calling a witness which that party would otherwise be entitled to call under s97(4e) because of a practice of the Court in relation to direction hearings where directions are made for the exchange of proofs of evidence.  The failure of counsel for the appellant at the callover to mention the application or the failure to make the application prior to the hearing of the appeal could not prevent the appellant requiring the Tribunal to hear the evidence of Dr Ormandy.  The right to call that evidence is given by Parliament and cannot be taken away by a practice of the Court.

In my opinion Dr Ormandy was a witness from whom evidence had been taken in documentary form by the Review Officer and his evidence was relevant to the appeal. He is within the class of witnesses, namely medical witnesses who would usually qualify, to give evidence on appeal, if their medical report had been tendered to the Review Officer. Cox J believed that a medical witness would be a person who would qualify under s97(4e)(b): Simpson Ltd v Arcipreste (supra).  So also did King CJ and Debelle J in Workcover v Rodis (supra) at 176.

It follows in the circumstances of this case that the learned Deputy President was bound, upon request, to hear the evidence of Dr Ormandy.  His refusal to hear that evidence means that the appeal must be allowed and the matter remitted to the Tribunal for further hearing.

The appellant was also granted leave to appeal against the order for costs.

The learned Deputy President incorporated in his reasons for judgment on costs comments which he had made during the appeal.

He said:

“... this is the fourth case I’ve had before me in the last fortnight from your instructing solicitors - (Messrs. Palios, Meegan and Nicholson) and in none of those cases were the directions as to the filing of an outline of argument and list of authorities been complied with. Indeed in two of them they didn’t bother to file them at all. I have in the past had to utilise Section 92A(3) to reduce the costs payable to the appellant because of misconduct and it seems to me that there’s become - a policy decision taken by those that instruct you that those orders are simply not being complied with.”

Those remarks demonstrate, with respect, error on the part of the learned Deputy President.  The application for costs was not made by the solicitors on behalf of the solicitors, it was an application made on behalf of the appellant for her costs.  The solicitors’ conduct, in other proceedings in which this appellant had no interest could never be grounds to deprive this appellant of her right to costs. 

In proceedings before a review authority (which includes proceedings before a Tribunal (s3)) the review authority must observe the principles in s92a of the Act. The relevant principle the Deputy President was obliged to observe was that a party represented by a legal practitioner is entitled, subject to limits fixed by the regulations, to the cost of representation.

The appellant was therefore entitled to her costs unless, in the exercise of the Deputy President’s discretion, he decided that he would not award costs or would reduce the amount of the costs because he was of the opinion that the appellant acted unreasonably in bringing or in the conduct of the proceedings.

The discretion to not award costs or reduce costs must be exercised judicially that is to say for the purpose for which the discretion is conferred.

The discretion given in s92a(3) is to ensure that parties other than the Corporation or an exempt employer do not behave unreasonably in bringing proceedings or in the conduct of these proceedings. It is the parties’ conduct in the proceedings which needs to be examined to determine whether the discretion should be exercised. For that reason alone the conduct of the parties’ legal advisers in other proceedings could never be relevant to the exercise of the discretion. Another reason, of course, why the conduct of the legal adviser in other proceedings could never be relevant in a consideration of an order under s92a(3) is that that conduct, whatever it might have been, was never as agent for the appellant and it was never in the appellant’s power to prevent or regulate the conduct.

I do not believe that it is appropriate to use s92a to reduce the costs to which a party would otherwise be entitled as punishment of a legal practitioner or as a method of regulating the conduct of legal practitioners, in so far as that conduct impacts on the Court.

The Act provides for a mandatory award of costs to the limits fixed by the regulations in favour of a worker in all cases whether the worker is successful or not in the proceedings brought.  To that extent costs are a reimbursement for work done by a legal practitioner or an officer or employee of a registered association on behalf of the worker.  They are thus a partial indemnity for costs incurred in the conduct of the proceedings.

At the same time the Act imposes no liability upon the worker to pay the costs of the Corporation or an exempt employer except if the proceedings are frivolous and vexatious and, in the exercise of its discretion the Review Authority considers it appropriate to award costs against the worker.

The position may be summarised thus:

1)..... A worker is entitled, subject to the limits fixed by the regulations, to the cost of representation by way of partial indemnity for the cost of that representation unless a review authority is of the opinion that the worker acted unreasonably in bringing the proceedings or in the conduct of proceedings and in the exercise of its discretion decides against awarding the worker costs or decides to reduce the worker’s costs.

2)..... An order will not be made that a worker pay the costs of the Corporation or an exempt employer unless the review authority is of the opinion that the proceedings brought by the worker are frivolous and vexatious and in the exercise of its discretion awards costs against the worker.

In these circumstances it can be seen that ordinarily the worker will receive a partial indemnity for costs and the Corporation and the exempt employer will receive no award of costs.

Unfortunately there are times when legal practitioners do not observe orders and directions of the Court.  The failure to observe such orders and directions will mean delay and adjournments and will often disrupt the orderly business of the Tribunal.  The delay and the necessity for adjournment will sometimes put the opposing party to additional cost.

There is no power for the Tribunal to award costs against a legal practitioner for that legal practitioner’s default. Section 41(1b) of the repealed legislation, Workmen’s Compensation Act 1971, provided:

“(1b)Where it appears to the Court that costs to a party have been improperly or without reasonable cause incurred by reason of the misconduct or default of a legal practitioner the Court may call on the legal practitioner to show cause why those costs should not be paid by the legal practitioner personally or, as the case requires, be repaid by the legal practitioner to the party incurring them and thereupon the Court may make such order as the justice of the case may require.”

The Supreme Court Rules allow the Court to make orders in relation to costs against solicitors where it considers a solicitor has been responsible for incurring costs improperly or without reasonable cause or by reason of undue delay, neglect or otherwise.  [R101.06]

Under the repealed legislation or under the Supreme Court Rules if a solicitor has failed to comply with orders or directions the Court could order the solicitor to pay costs or to forego costs.  But, as can be seen, that power would only be exercised where the default has caused the solicitor’s own client or another party to have incurred costs.  The power is not to be exercised for the purpose of disciplining the solicitor for failing to observe orders and directions and thereby inconveniencing the court.

If as a result of the default of a legal practitioner an order was made by the Tribunal depriving a worker of costs or requiring a worker to pay the costs of the Corporation or an exempt employer the Tribunal cannot be sure that the burden of that order will not fall upon the worker. One would expect that a legal practitioner who has been guilty of default which gives rise to an order depriving the legal practitioner’s client of all or part of an entitlement to costs would not pass that burden onto the client but a court cannot be sure that that will occur. In those circumstances it is not appropriate to use the procedure under s92a as a means of punishing workers’ legal practitioners. Another reason for that procedure not being used as a punishment of legal practitioners is because the same procedure cannot be used for the punishment of legal practitioners who act for the Corporation or an exempt employer. That is because it is only in circumstances where the proceedings are frivolous or vexatious that the Corporation or an exempt employer is entitled to costs. Therefore the Court can rarely make an order depriving the Corporation or exempt employer of an entitlement to costs.

Except where a statute or rules of court provide, costs are not awarded or withheld as a punishment.  They are compensatory and for the purpose of indemnifying the party who has an entitlement to costs: Latoudis v Casey (1990) 170 CLR 534.

In my opinion an order for costs would be made disentitling a worker to all or part of that worker’s costs if, because of the default of that worker’s legal practitioner, that default occasioned costs to the Corporation or an exempt employer, who would otherwise usually be obliged to pay that worker’s costs.  It seems to me that it would not be appropriate to mulct a worker in costs, the limits of which are governed by regulation, unless the party who would otherwise be obliged to pay the worker’s costs has itself been put to some cost by reason of the workers conduct or the worker’s legal practitioner’s conduct.  Unless the Corporation or the exempt employer has been put to cost by reason of the conduct of the legal practitioner there is nothing for which they should be compensated in costs.

In my opinion the exercise of the discretion in relation to costs miscarried and is therefore properly subject to review.

The learned Deputy President was told that counsel had been briefed about a week before the appeal.  On 4 March 1997 that counsel returned the brief because he was not able to appear on the appeal.  At the time the brief was returned the time for the filing of the outline of argument and list of authorities had already expired.  The brief was in fact delivered to another counsel in the same chambers.  A conference took place between instructing solicitors and counsel on 5 March 1997 and the instructing solicitors impressed upon counsel the necessity for filing the documents that afternoon.  In fact the documents were faxed to the learned Deputy President’s chambers before 10.00 am on 6 March 1997.

The outline of argument was not received by counsel for the respondent until just before lunch on 6 March 1997.  She said that she had previously spoken to counsel for the appellant and believed that an application under s97 to call evidence would be made.  She said that when she received the outline she became aware for the first time that it raised two matters not included in the Notice of Appeal.  She said that as a result she was obliged to carry out further research into the points raised.  There was a submission therefore before the learned Deputy President that the respondent’s counsel had to carry out further researches, presumably at cost to her client.

However the further researches were not caused by the lateness of the documents.  Even if the outline had been on time she would have been put to the same trouble.  The further research was caused by the arguments in the outline, not the lateness of that document or the list of authorities.

The respondent’s counsel was also late in filing her list of authorities but no complaint was made of that by either her opponent or the learned Deputy President.

In my opinion this was not an appropriate case to reduce the appellant’s costs and that part of the order reducing the appellant’s costs by 15 per cent ought to be set aside.  The respondent should pay the appellant’s costs of the appeal to the Tribunal.

I am not unsympathetic to the remarks of the learned Deputy President which shows a frustration on his part in witnessing orders of the Court made for the orderly disposal of this and other matters in the list being ignored.  I can understand that disobedience of the kind to which the Deputy President refers interferes with the smooth running and disposal of the list.  Therefore disobedience of the kind to which he refers not only interferes with the rights of the opposing party but also, because of delays, with the rights of all parties waiting to have their matters to be heard.

I would make the following orders.

1.     Appeal allowed.

2...... Set aside the order of the Workers Compensation Appeal Tribunal of 24 March 1997.

3...... The order depriving the appellant of 15 per cent of her costs in the appeal before the Workers Compensation Appeal Tribunal be set aside.

4...... The respondent to pay the appellant’s costs of her appeal to the Workers Compensation Appeal Tribunal.

5...... The matter remitted to the Workers Compensation Appeal Tribunal for the further hearing of the appeal.

DOYLE CJ

In my opinion the appeal should be allowed, as proposed by Lander J.  I agree with his reasons for allowing the appeal, and there is nothing that I wish to add to those reasons.

BLEBY J

I agree with the orders proposed by Lander J and with the reasons that he has given.