Keleher, Edward John v Sherrin Hire Pty Ltd (No 2)

[1998] TASSC 133

133/1998

PARTIES:  KELEHER, Edward John
  v
  SHERRIN HIRE PTY LTD (NO 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 21/1998
DELIVERED:  30 October 1998
HEARING DATE/S:  16, 25 September, 23 October 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Evidence and onus of proof - Evidence generally - Tribunal not bound by the rules of evidence - Tribunal entitled to regard a medical certificate as evidence of the truth of its contents - No breach of procedural fairness in so doing.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss49(1) and 57(1).
Osmond v Kemp & Denning Ltd 44/1993; White v FAI Insurance 29/1991, Griffiths v Devonport Youth Accommodation Services Inc A39/1996, followed.
Casey v Repatriation Commission (1995) FCR 510, referred to.
Aust Dig Workers Compensation [148]

REPRESENTATION:

Counsel:
             Appellant:  L K Mackey
             Respondent:  P L Jackson
Solicitors:
             Appellant:  Jennings Elliott
             Respondent:  Griffitts & Jackson

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  133/1998
Number of pages:  4

Serial No 133/1998
File No LCA 21/1998

EDWARD JOHN KELEHER v SHERRIN HIRE PTY LTD (NO 2)

REASONS FOR JUDGMENT  UNDERWOOD J

30 October 1998

Introduction

On 21 November 1996, the respondent's agent sent the appellant notice of intention to terminate weekly payments pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s86(1)(c). Attached to that notice was a certificate from Edward M Schutz, MB, BS, FRACS, consultant surgeon. The certificate stated that it was Mr Schutz's opinion that the appellant had "wholly or substantially recovered from the effects of the injury that he suffered on 28th June 1996". The certificate set out the appellant's history and the grounds for the opinion. The appellant referred the matter to the Tribunal in accordance with the Act, s86(4).

On 1 December 1997, almost nine months after it was lodged, the referral came on for hearing before the Tribunal. Counsel for the appellant took a preliminary point that the notice did not comply with the provisions of the Act. At that hearing, the notice and Mr Schutz's certificate became exhibits. The learned Commissioner reserved his decision. Ten days later, he "determined the preliminary point in favour of the employer [respondent]" and adjourned the further hearing of the referral to a date to be fixed. Written reasons for the decision were published. From that determination there was an appeal to this Court. The appeal was dismissed. See Keleher v Sherrin Hire Pty Ltd 138/1997.

The hearing in the Tribunal resumed on 29 January 1998.  Again, the decision was reserved.  On 11 March 1998, the Tribunal determined that "at the relevant date the worker's condition was, as noted by Dr Schutz, as certified in the termination certificate and that he had wholly or substantially recovered from the effects of his work injury".  The referral was dismissed.  This appeal is against the order of dismissal.

Grounds of appeal

Upon the commencement of the hearing of this appeal, the notice of appeal contained two grounds which alleged the occurrence of the following errors:

"1The Commissioner determined that the certificate of Dr Schutz was an exhibit in the hearing before him on the 29th day of January 1998.

2The Commissioner determined that the Tribunal had before it a medical opinion upon which it could be satisfied as to the Employer's entitlement to terminate weekly payments of workers compensation for incapacity."

At the conclusion of argument, the decision was reserved.  Before the decision was handed down, Miss Mackey, for the appellant, sought to re-open the appeal and to apply to amend by adding a further ground, viz:

"The Commissioner denied procedural fairness to the Appellant by treating the certificate of Dr Schutz as evidence of his opinion without requiring the Respondent to call Dr Schutz to give evidence."

The application to amend was granted, further submissions were heard, and the decision again reserved.

The proceedings in the Tribunal on 29 January 1998

When the proceedings commenced that day, counsel for the respondent, Mr Jackson, reminded the learned Commissioner of the preliminary hearing and said that he relied upon Mr Schutz's certificate tendered in evidence on that hearing.  No other evidence was called by the respondent.  The learned Commissioner then invited Miss Mackey to speak.  She said:

"In light of that position, that we had previously requested, by letter, to Messrs Griffits and Jackson, that Mr Shutz be available to be cross-examined on that certificate.  I'd like to seek a few moments with my client so I might discuss some instructions with him."

There followed a short adjournment.  Upon resumption of the hearing, Miss Mackey sought a preliminary ruling from the Tribunal whether the medical certificate was to be regarded as evidence of the truth of its contents as this was not in issue on the preliminary hearing.  Miss Mackey made submissions to the effect it should not be regarded as evidence of the truth of its contents.  The learned Commissioner said:

"So as I see the evidence at this stage, the employer has produced evidence that it terminated weekly payments, that it did so reliant upon a certificate by Mr Schutz, there was no challenge as to any of that, and that Mr Schutz's opinion, as set out in that document, is that the worker had wholly or substantially recovered.  I think it both limbs.  So it appears at this stage that the employer has satisfied the requirements of its termination.  The matter now purely is whether I ought accept, on the merits of any evidence that's produced, whether that opinion, expressed in the certificate, ought be accepted as to the question of merits.  The employer is not seeking to bolster the certificate by calling further evidence.  So it's really a matter of, as I see it, the worker taking issue with the opinion that's expressed in the certificate.  You can do so by calling evidence or that appears to be the case.  Of course the certificate may well be challenged on the basis that the opinion hasn't been the subject of cross-examination or there may be flaws in any factual matters on which it's relied upon, but I don't know that at this stage" [sic].

Miss Mackey then drew attention to the pre-hearing request for Mr Schutz to be present for cross-examination.  Mr Jackson submitted that he was under no obligation to comply with that request and that if Miss Mackey wanted to adduce evidence from Mr Schutz, she was entitled to call him as a witness.  Mr Jackson added that if this was what Miss Mackey wished to do, he had no objection to an adjournment being granted so that arrangements could be made for Mr Schutz to give evidence.  Miss Mackey did not request an adjournment and the hearing commenced. 

The appellant gave evidence and, on his behalf, evidence was led from the orthopaedic specialist, Mr Binns and a general practitioner, Dr Klonaris.  During the course of the appellant's cross-examination in the Tribunal, virtually the whole of the history and the findings set out in Mr Schutz's certificate were put to him and, except for an insignificant matter, he agreed that they were all correct as at the date of the certificate. 

In closing submissions, Miss Mackey submitted to the learned Commissioner that he should place no weight on the statements in the certificate, because Mr Schutz had not been cross-examined upon it.  In his reasons for the determination, the learned Commissioner declined to accept that submission.  In those reasons, the learned Commissioner referred to the substance of all the evidentiary material before him.  He noted that apart from an insignificant detail, the appellant agreed that Mr Schutz's description of his condition at the date of the examination (16 October 1996), was correct.  However, the appellant gave "contradictory evidence [in the Tribunal] as to the extent of his recovery and work capacity".  The learned Commissioner noted in his reasons that the appellant was not seen by Mr Binns until 17 March 1997.  The learned Commissioner concluded his reasons:

"Taking all this into account I am satisfied that as at the relevant date the worker's condition was as noted by Dr Schutz at his examination on 16 October 1996 and that based on that condition he was wholly or substantially recovered from the injury to his back suffered in June 1996."

Grounds 1 and 2

The gravamen of the submissions in support of grounds 1 and 2 was that:

• the hearing on 29 January 1998 was quite separate from the hearing on 1 September 1997 when the preliminary point was argued;

• there was error of law in the Tribunal regarding Mr Schutz's certificate as evidence of the truth of the contents.

  There was only one justiciable issue before the Tribunal. It arose upon the filing of a notice of referral pursuant to the Act, s86(4). The issue was whether the respondent was entitled to terminate weekly payments pursuant to the Act, s86(1)(c). In support of the referral, the appellant argued two points. One concerned the form of the notice and the other concerned the accuracy of the opinion stated in the attached certificate. Convenience dictated that one be determined before the other, because if the determination on the first point was favourable to the respondent, there would be no need to entertain the other point.

  The Tribunal was entitled to have regard to the certificate as evidence of the truth of its contents. In support of grounds 1 and 2, Miss Mackey made learned and detailed submissions with respect to the law of evidence concerning documents being received as evidence of the truth of their contents. However, all those submissions concerned the common law. The Act, s49(1) has excluded the common law of evidence and the provisions of the Evidence Act 1910.  That subsection provides:

  "49 ¾ (1) The following provisions apply to a proceeding before the Tribunal: ¾

  (a)  the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit;

  (b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters to be resolved permit."

  The extent to which the common law of evidence has been excluded from application to hearings before the Tribunal was discussed in Connelly v P & O Resorts Pty Ltd A73/1996.  At 6 of his reasons for judgment, Wright J said this:

  "Nonetheless 'evidence' is a very broad concept.  Cross on Evidence, 5 ed, at 1 says, 'the evidence of a fact is that which tends to prove it ¾ something which may satisfy an enquirer that the fact exists.'  This is a definition consistent with the judgment of Isaacs and Gavan Duffy JJ in Cheney v Spooner (supra). Hearsay evidence would be receivable by the Tribunal. Whilst sometimes cogent and reliable, hearsay is frequently of little, if any, weight, but that is not the determinative factor. So long as the material relied upon satisfies the test of being evidence rather than a mere supposition, guess or intuitive hypothesis, it may be received by the Tribunal. It must also be remembered that s49(1)(b) obliges the Tribunal to give "a proper consideration" to the issue to be resolved."

  Those observations are apposite to this case. The Act, s49(1), in effect, expressly permitted the Tribunal to regard the contents of Mr Schutz's certificate as evidence of the truth of the facts and opinions therein stated. Of course, the weight to be given to the contents of a written document untested by cross-examination and contrary to sworn oral testimony, is usually very slight. However, in this case, its weight was increased by the appellant's evidence given in cross-examination that, apart from an insignificant matter, the factual matters stated in the certificate and upon which the opinion was based, were correct. Further, the oral expert orthopaedic evidence called on behalf of the appellant spoke only of the appellant's condition some five months after the time referred to in the certificate. Grounds 1 and 2 are not made out.

Ground 3

Relevant to ground 3 is the Act, s57(1) which provides:

"57 ¾ (1)    Subject to this section, the matter to be resolved in a proceeding before the Tribunal shall be resolved by the Tribunal on such evidence as is placed before it after all parties have been given a reasonable opportunity to be heard, and an order made by the Tribunal in relation to the proceeding is lawful and effectual whether or not all parties to the proceeding have presented their cases."

The rules of natural justice apply to hearings before the Tribunal.  See Osmond v Kemp & Denning Ltd 44/1993; White v FAI Insurance 29/1991, Griffiths v Devonport Youth Accommodation Services Inc A39/1996. 

Ground 3 complains that there was non-compliance with those rules.  It is not made out.  The transcript of proceedings makes it clear that the receipt of the certificate as evidence of truth of its contents came as somewhat of a surprise to counsel for the appellant.  However, an adjournment was offered to enable counsel for the appellant to call the maker of the certificate to give evidence, should she wish to do so.  Any disadvantage arising out of counsel's surprise was thereby dispelled.  The offer was not taken up.  The appellant in this case was in a position similar to that in which the appellant found himself in Casey v Repatriation Commission (1995) FCR 510, a case to which Mr Jackson referred. In that case the Administrative Appeals Tribunal received as part of the evidence, written material prepared by persons not called as witnesses. The Appeals Tribunal, like the Workers Rehabilitation and Compensation Tribunal, was not bound by the rules of evidence. It was held that the written material was properly received as evidence. The complaint that the receipt of this evidence was a breach of the rules of procedural fairness, was dismissed upon the basis that counsel for the appellant "made no attempt to seek an adjournment, nor did he seek to cross-examine witnesses thereafter called by the respondent on the material." (515.) The Court continued, "He cannot now complain that he was given no opportunity to deal with the material." In any event, it seems that little arose out of the absence of Mr Schutz and the treating of his certificate as evidence of the truth of its contents because of the appellant's agreement in cross-examination that the factual matters in the certificate on which the opinion was based were correct.

In these circumstances, there was no denial of procedural fairness as alleged in ground 3 of the notice of appeal.  The appellant's proceedings in the Tribunal failed, not because of any breach of the rules of natural justice, but because his evidence corroborated the contents of Mr Schutz's certificate and he was unable to adduce evidence acceptable to the Tribunal to suggest that, at the relevant time, his condition was not as described in the certificate, viz, that he had wholly or substantially recovered from the effects of the injury that he suffered on 28 June 1996.

Conclusion

The appeal is dismissed.