Peter Elms Fowler v the Honourable Justice B C Stanley, His Honour Judge Cawthorne, His Honour Judge McCusker and Wayne Brenton Flockhart No. SCGRG 94/140 Judgment No. 4677 Number of Pages 9 Workers' Compensation..

[1994] SASC 4677

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

CWDS
Workers' compensation - offences - whether Rule 102 of Industrial Proceedings Rules operates to apply time limit in Rule 97.04(l) of the Supreme Court Rules to appeals to Full Industrial Court against conviction by magistrate of offence of obtaining compensation by dishonest means - no time limit applicable to such appeal. Workers Rehabilitation and Compensation Act 1986s7(1)(m) and s120; Industrial Proceedings Rule 102 and Rule of Supreme Court 97.04(1).

Judicial review of decision of Full Industrial Court allowing appeal against conviction of offence of obtaining compensation by dishonest means - alleged errors not indicating excess or want of jurisdiction - action for judicial review dismissed. Industrial Relations Act 1972 s92 and Workers Rehabilitation and Compensation Act 1986s120.

Prerogative writs - mandamus, prohibition and certiorari - writs and orders - Action for judicial review of dismissal by Full Industrial Court of appeal against conviction by magistrate of offence against s120 of WorkersRehabilitation and Compensation Act - privative section - alleged errors not in excess or want of jurisdiction - action dismissed. Industrial Relations Act 1972 s92 and Workers Rehabilitation and Compensation Act 1986s120.

HRNG ADELAIDE, 7-8 June 1994 #DATE 9:8:1994

Counsel for plaintiff:  Mr D J Bleby QC
  with Mr D W Smith

Solicitors for plaintiff:   Finlaysons

Defendant The Honourable Justice B C Stanley No Attendance

Defendant His Honour Judge Cawthorne         No Attendance

Defendant His Honour Judge Mccusker         No Attendance

Counsel for defendant:  Mr R C White

Solicitors for defendant:   D Prendegast

ORDER
Judgment for defendants dismissing the action for judicial review.

JUDGE1 KING CJ This is an action for judicial review of a decision of the Full Industrial Court made on 2nd December 1993 whereby it allowed an appeal against a conviction of the defendant Flockhart. The plaintiff is an employee of General Motors Holdens Automotive Limited and was the complainant in the proceedings against Flockhart.

2. Flockhart was charged on a Complaint containing two counts of obtaining payments of compensation under the Workers Rehabilitation and Compensation Act1986 from GMH by dishonest means, contrary to s.120(1) of the Act. Following a hearing in the Magistrates Court, the first count was found not to be proved and was dismissed. Flockhart was convicted on the second count. He appealed to the Industrial Court. A single judge of that Court, Mr President Stanley, held that the appeal was incompetent as out of time. That decision was reversed by the Full Industrial Court on 24th May 1993. The appeal was then referred by the single judge to the Full Industrial Court. On 2nd December 1993 the appeal was allowed and the conviction set aside.

3. The scope of judicial review of decisions of the Full Industrial Court is limited by the provisions of s.92 of the Industrial Relations Act 1972 which is as follows:
    "No order, decision or proceedings of any kind of the
    Full Court can be challenged, appealed against,
    reviewed, quashed or called in question except in
    proceedings before the Full Court of the Supreme Court
    founded on an alleged excess or want of jurisdiction."

4. The first point taken by the plaintiff is that the Industrial Court lacked jurisdiction to entertain and decide the appeal because it had not been instituted within the permitted time. The offences charged were industrial offences under the Summary Procedure Act 1921. Pursuant to s.42(1) and (2) of the Magistrates Court Act 1991 the appeal lay to the Industrial Court and was to be made "in accordance with the rules of the appellate court". The magistrate found the charges proved on the 18th September 1992 and imposed penalty on 9th October 1992. The Notice of Appeal to the Industrial Court was filed on 11th December 1992.

5. The Rules of the Industrial Court, being the Industrial Proceedings Rules, made pursuant to s.175 of the Industrial Relations Act, do not contain a provision limiting the time within which appeals may be brought pursuant to s.42 of the Magistrates Courts Act 1991. Rule 102 is as follows:
    "In any case not provided for in any part of these Rules
    the general principles of the practice of the Supreme
    Court and the Rules of that Court for the time being, in
    force, may be adopted and applied in any particular case
    with such modifications as the circumstances in the
    particular case may render necessary at the discretion
    of the tribunal before which the proceeding is pending
    and in any such case the tribunal shall have the powers
    conferred by the said Rules on a Judge of the Supreme
    Court."

6. In holding that the appeal was incompetent, Mr President Stanley held that Rule 97.04(1) of the Rules of the Supreme Court applied. That Rule so far as material, is as follows:
    Where under any Act an appeal lies to the Supreme Court,
    then except where otherwise provided:
    the appeal shall be heard by a single Judge;
    the appeal shall be by way of rehearing and shall be
    instituted within twenty-eight days from the giving or
    making of the decision, order, determination or
    direction complained of, or such extended time as the
    Court or tribunal below or the Supreme Court may
    fix;"

7. Rule 96C.02 which came into force on 15th October 1992 the period within which appeals must be instituted under s.42 of the Magistrates Court Act became 14 days.

8. The learned President considered that the effect of Rule 102 of the Industrial Proceedings Rules was to render Rule 97.04(1) of the Rules of the Supreme Court, including the time limit, applicable to an appeal under s.42 of the Magistrates Court Act. The Full Industrial Court, on the other hand, considered that the application of the Rules of the Supreme Court, where the Industrial Proceedings Rules were silent, was discretionary and that the time limit did not apply.

9. Rule 102 does not purport to apply the Supreme Court Rules as though they were the applicable Rules in cases not provided for in the Industrial Proceedings Rules. It is facultative. It merely authorizes the "tribunal before which the proceeding is pending" to adopt and apply the Supreme Court Rules "in any particular case". The effect, is to authorize the particular tribunal to apply the procedures prescribed by the Supreme Court Rules where there is no applicable Industrial Proceedings Rule and to do so "with such modifications as the circumstances in the particular case may render necessary at the discretion of the tribunal". The intention indicated by the Rule is that the particular tribunal may apply the Supreme Court procedure in the particular case before it. That could only be done prospectively. There could be no question of applying a time limit retrospectively so as to defeat an appeal.

10. There is therefore no time prescribed for the institution of a s.42 appeal. Perhaps there should be. The institution of appeals belatedly could have unfortunate consequences particularly in cases of prosecution appeals. Be that as it may, the appeal in the present case is not defeated in consequence of delay in its institution. It is a valid appeal and the Industrial Court had jurisdiction to entertain and decide it.

11. Before leaving the point, I mention two arguments that were put to us. It was argued that if Rule 102 is merely facultative it is purposeless because the Industrial Court would have power to apply Supreme Court procedures without such a Rule. I do not think that the power of the Court to regulate the procedures before it renders the Rule meaningless. The Rule effectively points the judges and magistrates of the Court in the direction of adopting Supreme Court procedures in the cases before them where the Industrial Proceedings Rules are silent. That is a useful indication by the President as the rule making authority of the way in which gaps in the Rules may be supplied. The fact that the application of the Supreme Court procedures is left to the discretion of the particular tribunal does not render the Rule meaningless.

12. The other argument to be mentioned was based on s.17(1)(m) of the Industrial Relations Act which specifically mentions time within which to lodge an appeal and provides that such a time cannot be extended. It was argued that that provision contemplates the existence of times within which to appeal. That may be so but the provision can only operate where some other provision fixes a time for appeal. It cannot supply the absence of such a provision.

13. The second ground raised on behalf of the plaintiff was that the Full Industrial Court had fallen into errors of law which had the effect that its decision was in excess of or in want of jurisdiction. To decide this ground it is necessary to consider the facts of the case and the Industrial Court's reasons for its decision.

14. The relevant facts are set out in the reasons for judgment of the Full Industrial Court.

15. The worker was at the time of the alleged offence about 20 years of age. He commenced employment with General Motors Holdens Automotive Limited ('G.M.H.') in 1989. On 27 August 1991 he was employed in the Trim Shop of G.M.H. as an assembler. Shortly after the appellant commenced work on that day he injured his left thumb whilst attempting to insert a dip stick into an engine whilst the vehicle in question was moving along the production line. He thought he hit a hose or pipe which caused his thumb to be bent back. He worked on for a few minutes and then attended the medical centre at G.M.H. He was seen there by a Nurse D'Orazio at 7.40 a.m. She examined the appellant's left thumb and noticed it was slightly swollen over the proximal end and was tender. There was diminished grip strength in the left hand on testing. She first treated the thumb with ice and Hirudeid to ease the bruising and swelling. She then strapped it and sent the appellant back to work on alternate duties which did not involve gripping or any repetitive action or pushing with his left thumb.

16. Although the appellant was given work in accordance with those restrictions he returned to the medical centre at about 9.25 a.m. and stated to Nurse D'Orazio that he was unable to continue performing even the restricted duties. He was permitted to leave the factory as he requested that he be allowed to consult his own general practitioner in respect of the injury to his left thumb.

17. On the following day he consulted Dr. Soo, his general practitioner at his surgery. After taking a history from the appellant, and conducting an examination of his thumb, Dr. diagnosed that the appellant had suffered a strain to a ligament at the joint of the left thumb. He issued him with a certificate of incapacity for work on and from 28 August 1991 to 31 August 1991. The following day 30 August 1991 the appellant attended work where he spoke to Mr. Nuske, the compensation officer. At the same time he lodged a claim for worker's compensation in respect of the thumb injury. G.M.H. is an exempt employer under the Act. Later that day the appellant was filmed lifting, with the help of his brother, a writing desk off a trailer and carrying it into a house. Still later on that same day the appellant attended Dr. Soo's surgery where he received acupuncture treatment to relieve the pain in the thumb. On 31 August 1991 the appellant was filmed carrying a cardboard box in his left hand. Early in the morning of 2 September 1991 the appellant attended Dr. Soo's surgery. According to Dr. Soo the appellant complained that the thumb was still painful in the joint and around it but he informed Dr. Soo that he wanted to go back to work. Dr. Soo examined the left thumb and found tenderness in the same area as on the previous visit. He then issued the appellant with a worker's compensation medical certificate which certified that in Dr. Soo's opinion he was suffering a 'strain (L) thumb' and that he will be fit for alternative duties on 2 September 1991 with the following limitation; '2.9.91 to 7.9.91 light duties with use of only (R) hand. No left hand work'.

18. The worker attended the workers' compensation office on the same day. He gave the certificate which Dr. Soo had issued to him to Mr. Nuske. At that time he informed Mr Nuske 'My thumb's still sore. I can't do much'. There is a conflict about what happened either immediately before or just after the presentation of the certificate to Mr. Nuske concerning the appellant asking for work, but that is of little concern. The only important factor is that G.M.H. through a responsible officer some time that morning informed the appellant that it had no work to offer him within the limitations expressed by Dr. Soo in the certificate, and he was sent away.

19. Later that morning the appellant was filmed mowing a lawn and cutting the edge thereof for a total period of about 15 minutes. On 4 September 1991 the appellant returned to G.M.H. and again spoke to Mr. Nuske. The appellant upon being asked how he felt stated words to the effect that his thumb was still sore and he could not do much. He then made application for and received the $250 which formed the basis of the first charge.

20. On 9 September 1991 the appellant returned to G.M.H. to commence work. He saw a Mr. Harley who told him to go to the company's medical centre to obtain a clearance for a return to work. He went to the centre and again saw Nurse D'Orazio who examined him and found that he still had some pain in the left thumb, and that he also had diminished grip strength in that hand. The appellant was, subsequently that morning, informed by a superior officer that he could not commence work until he obtained a clearance from his local general practitioner, so he left the factory.

21. Early the next day, 10 September 1991, the appellant saw Dr. Soo who again examined him and found tenderness in the left thumb, but less so than previously. The appellant informed Dr. Soo he was better. Dr. Soo then issued the appellant with a medical certificate which indicated that he was fit for all duties except work which involved pushing or pulling the left thumb. Later that morning the appellant presented the abovementioned certificate to G.M.H. and was given work commensurate with that certificate, fitting road wheels. On 12 September 1991 the appellant attended the compensation office of G.M.H. and obtained the payment of $150 which is the subject of Count 2.

22. The learned Stipendiary Magistrate in his published reasons for decision found that the appellant suffered an injury to his thumb as he alleged on 27 August 1991. That finding was based, at least in part, on the acceptance of the evidence of Dr. Soo, and to a lesser extent to Nurse D'Orazio. The first count in the Complaint related to the payment of $250 and the dishonesty alleged was pretending to be "incapacitated for work as an assembler in the trim assembly plant from the 27th August 1991 to the 31st day of August 1991." The learned magistrate stated that he was unable to find that Flockhart was fit for all of his work during the period specified in the first count and he dismissed that charge. The second count related to the payment of $150 on 12th September. As to the second count, the magistrate found, erroneously, that Flockhart had tendered the medical certificate of Dr Soo on 12th September. In fact it was tendered on 2nd September. The magistrate found that Flockhart obtained the payment on 12th September "well knowing that he was and had been fit for his normal employment from 2nd September". He convicted him on that charge.

23. The Full Industrial Court reached a different conclusion as to Count 2. It considered the learned magistrate's reasoning and conclusion to be unsound for two main reasons. The first reason was that the Court could not satisfactorily reconcile the acquittal on Count 1 with the conviction on Count 2. The periods covered by the two counts were different but the particulars of the alleged dishonesty in relation to the charges, which were supplied, were identical. The particulars comprised the original claim on 27th August of having been injured and to have been unable to continue working, remaining absent until 9th September, lodging the notice of disability and claim forms on 27th August, and lodging of medical certificates of Dr Soo on 28th August and 2nd September. The Particulars as to both counts relied upon pretended incapacity for the periods covered by the medical certificates namely between 28th August and 31st August, and between 2nd September and 7th September, and alleged "that the pretence was dishonest in that the defendant was capable of carrying out his normal duties as an assembler and in particular the duties of affixing tape on the door opening flanges." The Particulars in respect of the two counts were identical because the prosecution alleged "one compendious lie". The Full Industrial Court Stated its conclusion as follows:
    "It seems to us therefore that as the very acts,
    incidents or circumstances which were said to constitute
    the crucial mental element (i.e. the dishonest means) by
    which the payment of compensation mentioned in Count 1
    had not been proved beyond reasonable doubt, they were
    hardly therefore capable of forming the basis of a
    conviction on Count 2."

24. The second reason given by the Full Industrial Court for disagreeing with the learned magistrate related to Dr Soo's certificate which was furnished on 2nd September and was the basis of the payment on 12th September. Flockhart told Dr Soo that he wished to return to work. Nevertheless Dr Soo gave a certificate for restricted duties only. The theory of "one compendious lie" having been negatived by the finding on the first count, the view was open that in tendering the certificate Flockhart was not representing it as his own opinion as to his capacity but was merely relying on a professional assessment as to his physical condition. In those circumstances the Full Industrial Court considered that an essential step in proving Flockhart's guilt must be proof that he deceived Dr Soo. It said:
    "It seems to us that given the fact that the appellant
    on 2 September 1991 asked Dr. Soo to be allowed to
    resume work, that the complainant in order to establish
    the commission of this offence needed to prove, beyond
    reasonable doubt, either that the appellant's actions,
    or the statements or answers which he gave to Dr. Soo on
    that day, when examined, and the certificate of a return
    to work issued (but with restrictions on the use of his
    left hand), were false or misleading. There is no
    finding to that effect."

25. The Court's conclusion was crystallized in the following passage:
    "In our view, as the evidence does not prove that on 2
    September 1991 the appellant made false representations
    to Dr. Soo in respect of his capacity for work, or the
    use he could make of his left hand, or gave him
    dishonest or untruthful information at that time in
    respect of those matters, or otherwise conducted himself
    so as to deceive Dr. Soo into issuing the medical
    certificate concerning his capacity for work, the Court
    ought not have been satisfied beyond reasonable doubt
    that on and from 2 September 1991 to the 7 September
    1991 he was not partially incapacitated for work, and
    that he subsequently obtained the payment of
    compensation for that period by dishonest means."

26. It was argued for the plaintiff that the Full Industrial Court acted in excess or want of jurisdiction in interfering without justification with the magistrate's findings of fact. The appeal is a full appeal on facts and law. It was the duty of the appellate court to examine the facts found by the magistrate and to reach its own conclusions. In so doing, of course, it was required where the findings depended upon credibility to pay proper regard to the advantage which the magistrate enjoyed in seeing and hearing the witnesses; Coghlan v Cumberland (1898) 1 Ch 704; Hunter v Walsh (1928) SASR

336 at 339; Warren v Coombes (1979) 142 CLR 531; Laurie v Nixon (1991) 162 LSJS 16; DeVries v ANR Commission (1993) 112 ALR 641. The Full Industrial Court did not disturb or disregard any findings as to the credibility of witnesses. Its differences with the magistrate arose from its questioning of the soundness of his reasoning. In examining the magistrate's reasoning and reaching its own conclusions where it considered that reasoning to be at fault, the Court did no more or less than its duty as an appellate court.

27. There was a further argument that the Court had exceeded its jurisdiction by substituting a test of whether Flockhart had deceived Dr Soo for the true test, that is to say whether he had obtained the payments dishonestly. It is clear to me from the Court's reasons as a whole that it understood the true test. Its view that to arrive at a conclusion of guilt it was necessary to find that Flockhart had deceived Dr Soo was a view formed having regard to the circumstances of the case. It was not put forward as the legal test of criminal liability but as a necessary factual step in the chain of reasoning leading to a conclusion of guilt.

28. I am unable to find anything of a jurisdictional nature in the errors supposedly made by the Full Industrial Court. It is unnecessary for this Court to pronounce on the criticisms made of that Court's reasoning. It was reasoning as to the soundness of the magistrate's factual conclusions. Whether or not the reasoning of the Full Court is sound, it relates to conclusions of fact. No error of law has been shown, still less any error indicating an excess or want of jurisdiction.

29. In my opinion there should be judgment for the defendants dismissing the action for judicial review.

JUDGE2 PRIOR J I agree with the reasons published by the Chief Justice. The proceedings should be dismissed in the manner proposed.

JUDGE3 PERRY J I agree that the proceedings should be dismissed for the reasons given by the Chief Justice.