Pica v Local Government Association of South Australia Incorporated

[1992] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No All of 1992

B e t w e e n -

GIOVANNI PICA ·

Applicant

and

LOCAL GOVERNMENT ASSOCIATION OF

SOUTH AUSTRALIA INCORPORATED

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 2 SEPTEMBER 1992, AT 3.26 PM

Copyright in the High Court of Australia

Pica 1 2/9/92

MR T.R. ANDERSON, QC: If the Court pleases, I appear with

my learned friend, MR T.L. STANLEY, for the

applicant. (instructed by Duncan Groom Hannon)

MR A.S. MARTIN: If the Court pleases, I appear for the

~espondent. (instructed by Norman Waterhouse)

MASON CJ: Yes, Mr Anderson?

MR ANDERSON:  If the Court pleases. The Full Court, by

majority, decided that the Workers Compensation

Appeal Tribunal was correct when they did not allow

an application which was made pursuant to
section 97(4e)(d), to allow a worker to give
evidence before the tribunal. That section is in

the materials provided - not in the application

book but in the separate book - at page 5, and the

relevant subsection, is at page 6.	I will come
back to that, if I may.

MASON CJ: Yes. But we have read the judgments and we are

familiar with the way in which the case has arisen

and with the question you want to argue. So you

have got to persuade us that the application raises

a question of general principle.

DAWSON J:  You really would rely on what

Acting Justice Zelling said, almost completely,

would you not?

MR ANDERSON:  We do to a very large extent, Your Honour.

But over and above that, if I can put this to the

Court at the outset, we say that this Full Court -

that is, the Full Court dealing with the case at

bar - was the third of a series of Full Courts

which had interpreted, or given effect to, this

subsection. And that from the time of the first of

those decisions, which is mentioned in the
affidavit filed and in our list of cases, namely,

Simpson v Arcipreste - which I want to take the

Court to, briefly - and the second of them,

F.J. Trousers v Farrance, we have had nine judges

of the supreme court who have been involved in the

interpretation of the subsection. With the

greatest of respect, our point is that

Acting Justice Zelling is the only one of those

judges who has given to section 97(4e)(d) the wider interpretation which we say it should be

given. So that we say, that we have, firstly -

DAWSON J: But the facts of this particular case are rather

peculiar, are they not?

MR ANDERSON:  They are, Your Honour, but we say that that is

why you have section 97(4e)(d), and it is because -

and we have to link in to that first point that I

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have made. We have to link in the fact that the

appeal tribunal here, that is the appeal tribunal

at the compensation court level, has had to

consider the adequacy of reasons. Now, in itself

that may not be sufficient. In itself the first

point may not be sufficient. In itself the third

-point, which we adopt from Acting Justice Zelling -

namely the question of the natural justice aspect

of it - may not be sufficient. But, putting it all

together section 97(4e)(d) is clearly meant to be

what we term, perhaps roughly, a safety valve and

it is a safety valve because the tribunal is given

the widest powers in that respect because, once

again, the review officer, who is the one who first

hears this worker's appeal process is unqualified
legally and nevertheless is required to give

reasons.

So that, I am afraid, with some juxtaposition

I have to inter-relate all of those matters, which

are the three points that His Honour

Acting Justice Zelling made.

DAWSON J: But you really say here that the applicant was in

a Catch 22 situation. He could not get in the

opinions of the psychiatrists if his credit was not

established. He could not establish his credit

unless he was allowed to call oral evidence of
himself and the finding as to his credit was

suspect because the appeal tribunal - what is

called the review officer did not give reasons.

MR ANDERSON:  The review officer said that supposed

reasons - what the majority of the Full Court found

were reasons, was that she did not like his

demeanor. I think one of the majority said, "That

may be a reason but what is complained about is

that she did not give reasons for her reasons."	So
then we say the safety valve section is there for instances very much like that, where the tribunal,

constituted of course of an Industrial Court judge	and two lay members, can rehear the matter. Now we	say at the outset, of course, that the decisions of
the Full Court make it clear from the whole of section 97 that it is not to be a hearing de novo.
We accept that. It is that it is to be a hearing
limited to various narrow aspects, it has been
suggested in some cases, of the subsections of new evidence.

Our complaint, if I can attempt to encapsulate

it, is that what the Full Courts in Arcipreste and

in Farrance and in what the majority in this

Full Court have done have equated

subsection (4e)(d) with what I can call the

ordinary rules which apply to appeal courts in the

reception of fresh or new evidence. We say that is

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where those decisions and the majority here are

quite wrong. It is something quite different from

the reception of fresh evidence and if the Court

would just look - if you have got that page still

open at page 6 - at the subsection, we say that the

fresh evidence aspect is provided for by the

-legislature best by the subsection immediately

above (d) in (4e), namely (c). We say that is an

attempt by the legislature to encapsulate that sort

of concept.

MASON CJ:	How do you make out that the majority in this case and the Full Courts in the other two cases have equated (d)(ii) to a fresh evidence reception
of evidence?
MR ANDERSON:	I have to take you to the judgments to do

that, Your Honour, and I intended doing that, if

the Court will permit me. It will not take very

long but I need to take you to the actual judgments

to do that.

MASON CJ: As far as I am concerned it would be necessary

for you to do it, because it seems to me that is

the only way in which you are going to be able to

persuade us that this case gives rise to some

question of general application.

MR ANDERSON: With respect, Your Honour, that is why I

hesitated at the start to say that it was necessary

for the three threads, as it were, to be running

through it but I accept, with the greatest of

respect, that the special leave point is

encapsulated in a complaint that the subsection has

been wrongly interpreted. If I can take the Court

to those decisions now: the first is Arcipreste

and in the materials again the judgment commences

~t page 8 of the numbered pages.

Very briefly, the Court does not need to know

the whole background but the case was, as I

understand it, was the first case which came up on
the powers of the tribunal generally.	It came up

particularly in the context of who was to be

dominus litis, but if the Court sees on page 8 from

the headnote, the last comment:

Observations by Cox and Duggan JJ as to the ability of the Tribunal to take further

evidence to that called before the Review

Officer.

I take the Court then to that point, without
wasting the Court's time, and that is at page 11 of

the printed pages, 12 of the actual State Reports.

It is that paragraph which starts:

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No doubt -

and if I can ask the Court to perhaps - I do not

intend reading it all out to the Court - go down to

about the middle of that page where the word

~Subsection (4d)" appears. That -

gives the Tribunal a discretion to rehear the

evidence taken before the Review Officer or to

take further evidence but such evidence is to be admitted at the Tribunal's discretion, not

simply at the option of a party.

Subsection (4e) gives a party the right to tender further evidence -

et cetera. Then -

The right, however, is quite narrowly

circumscribed.

I will not take the Court through the next three or

four lines. But the interesting part is that

subparagraph (b), His Honour Justice Cox says:

allows oral evidence to be given by a

witness - a doctor, say - who simply furnished

a report -

That is in fact what happened in this case. The

doctor's furnished report to the review officer and an application was made to the tribunal to call the

worker again and that was refused. The important

part of this judgment is where the next sentence

starts:

Neither of those paragraphs permits entirely

new evidence. Paragraphs (c) and (d) do that,

but only if the party seeking to lead the new
evidence before the Tribunal could not

reasonably be expected to have done so before

the Review Officer -

His Honour there must be referring, if you go back

to the section in the materials to subsection (c)

of section (4e), and then His Honour goes on:

or if there is some substantial reason for
admitting the evidence on the appeal in the

interests of justice -

and of course that is the very section that we are

asking the Court to interpret. Then His Honour

says - - -

MASON CJ: But the two limbs of that section seem to

correspond exactly to (c) and (d), do they not?

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MR ANDERSON:	Yes, they do, Your Honour. But when

His Honour says:

or if there is some substantial reason for

admitting the evidence ..... in the interests of

-- justice -

he is clearly using (d) too. But His Honour puts

them together, as it were, and says -

much the same sort of test that is applied

under the Supreme Court rules 1987 when the

power to admit new evidence is invoked on an

appeal by way of rehearing.

That is where we say the starting point is for what

we say· is a misconception which has followed from

there. I will not dwell on the rest of that

judgment, with respect; it is probably not helpful

to the point. Justice Duggan is the only other

member of that Full Court who gave a judgment on

the point. If you turn to page 19 of those

materials you will see where His Honour

Justice Duggan set out the section and, in the

paragraph two-thirds of the way down the page, he

again lumped (c) and (d) together, and lumped them

together in this fashion:

Paragraphs (c) and (d) place significant

restrictions upon the calling of evidence

which was not adduced in the proceedings

before the Review Officer.

In other words, His Honour there has not given any

lip-service, at least, to the difference between

(c) and (d). That is the first decision of the Full Court. That then leads me into the second decision, which is Farrance and if the Court turns

over in this volume to page 104 you will see that

that is a decision of three different members of

the Full Court. There was Justice White, who was

presiding - although he deals with Arcipreste in
passing and not on the topic.	I will not trouble
the Court with that.	But it was Justice Mohr who

wrote the main judgment. The importance of

Justice Mohr, if I can flag this to the Court in

advance, is that he adopted what Justice Duggan

said and then in the instant case you may have

noticed, with respect, that the majority have

adopted what Justice Mohr said about

Justice Duggan. So I say that, with respect, that

if there is the error that I say exists it is being

perpetuated.

The significant part of Justice Mohr's

judgment is to be found at page 123 of this series

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of the materials and it is the part that starts just

above half-way down the page:

In my opinion the whole tenor of the Act is to

the effect that the proceedings before the Review Officer provide the time and place -

et cetera. And:

in giving any relevant evidence then it will

only be in the most exceptional circumstances

that a witness will be able to be called

before the Appeal Tribunal to give further

supplementary evidence.

His Honour has there introduced the concept of the

"most exceptional circumstances". We say, still

effectively equating it narrowly with the concept

of fresh evidence in the ordinary course as it

would be in an appeal. Justice Bollen agreed with

Justice Mohr's reasons. That takes me into the application book where we deal with the judgments

at hands.

I will deal with Justice Millhouse first, if I

may, because I say this is my most obvious example,

the best example I can give to the Court, of where

this error has crept in. If I can take the Court

to His Honour's reasons on this. They appear

fairly late in his judgment at page 55, and at the

bottom of that page His Honour mentioned the

intention of Parliament and the discretion on the

tribunal to rehear any of the evidence already
given; mentioned that it was subject to

subsection (4e) but only in the particular respect

set out; said it was "not relevant to the
situation", et cetera, with the subsections that

did not apply. His Honour, we say, quite

incorrectly:

I should think (d) applies to evidence not

having been before the Review Officer and not

otherwise before the Tribunal -

and His Honour there says it, "fresh evidence".	We
say that is a clear error and that is not
subsection (d), that, if it is anything, is
subsection (c).	We say, therefore, that the

courts so far - and I will take you to

Justice Legoe in a moment. - have placed that

construction upon the subsection which does not

enable it to do what it is meant to do - and I

again, with apologies, call it the safety valve -

to enable that tribunal to sit on appeal in

circumstances just as this where an untrained

legally review officer - poor English, I

apologize - is required to give reasons and in the

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circumstances here gives those reasons and says, as

Acting Justice Zelling points out, the equivalent

of "I did not like the look of him" or whatever,

but "I did not like his demeanor". That is why

subsection (d)(ii) is there, we contend.

:  Many other circumstances, too, would come to

mind, but clearly it is meant to apply to this case

and the tribunal should have heard the worker to

enable them to put to the test the only available

means which this worker had of carrying his appeal

through because as Acting Justice Zelling said, it

was rendered nugatory otherwise. It was no good

letting the doctors be called if you do not have

the worker as well because the whole thing is tied

up because the review officer said "Because I did

not like his demeanor, therefore I cannot believe

anything he said". Therefore what he told the
doctors must have been untrue, therefore he fails.

Despite the fact that, without getting into the

facts, that two of those doctors said that he had a

recognised psychiatric condition related to the

incident and the third doctor, the opposition

doctor, said he was equivocal. He said it was

consistent with that, it was also consistent with

him malingering, he went as far as saying.

Can I take the Court back to Justice Legoe who

deals mainly in his judgement with section 93,

which is the adequacy or otherwise of the reasons.

His Honour deals in two different parts with

section 97. The first is at page 19 of the

application book, and I do not think the Court need

to be troubled by reading that, with respect, but

it just sets it out. On page 20, His Honour

mentions Arcipreste's case. His Honour mentions at

page 21 the decisions in Arcipreste of Justice Cox
and the decision of Justice Mohr in the Farrance

decision which I referred to and, indeed, quotes

from Justice Mohr who, in turn, is quoting in that

section from Justice Duggan and Justice Mohr again

down the bottom of the page and at the top of page	22. In particular Justice Mohr's, that part of his
reasons which I took you to before, which relate to
the exceptional circumstances.
His Honour then goes back on to section 93 and then, I think, resumes discussions of section 97 at
page 30, if the Court pleases. That is in a
general context and then His Honour comes back to
it again at page 33 at the bottom of the page where
again Arcipreste and Farrance are mentioned, and at the top of 34 where His Honour deals again with
Justice Mohr citing Justice Duggan. And at line 13 on page 34 His Honour then goes into the same statement that has been made by Justice Mohr:

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It is only in exceptional cases that "a

witness will be able to be called before the

Appeal Tribunal it give further supplementary

evidence" -

ptopping there before I deal with Justice Zelling

-and adopt effectively what he says. I have to say

that if you go to the bottom of that page that

Justice Legoe at least of the judges in this court does mention, and actually quote the words of the

subsection, namely:

"some substantial reason for admitting the

evidence in the interests of justice".

And talks about how restrictive that is. So

His Honour has actually mentioned the words of that subsection, whereas my complaints about the judges

in the earlier Full Courts, that they seem to

equate the two earlier subsections. So that is the

way that His Honour Justice Legoe dealt with it.

Finally, dealing with it at page 39, again,

where after having considered the facts, the top of

the page in line two, His Honour said:

there was no fresh issue either factual or

upon credibility to be determined by the

Tribunal -

and at line, about 7:

In my judgment the appellant has failed to

satisfy me that there was " ... some

substantial reason for admitting the

evidence" -

so that is how His Honour deals with it.

There is one passage I omitted to give the

Court in Justice Millhouse's judgment. If I could

just quickly find that for the Court, because it

does show, in our respectful contention, that

His Honour has missed the point, with respect -

that is Justice Millhouse - and it ties in with the

passage I put to you on page 56 where I said

His Honour had the concept confused and His Honour

was clearly talking about fresh evidence in the

terms of the ordinary rules.

At page 47, in discussing another aspect of

the matter, at line 23, His Honour says this:

Mr Stanley -

who, of course, appeared for the worker -

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could have argued that there was "some

substantial reason for admitting the evidence

in the interests of justice", (to quote from

section 97 (4e)(d)(ii)).

Well, that is exactly what the argument was.	We
-say that is why His Honour is confused and has
missed the point, with the greatest of respect,

when he then comes to sum it up at page 56. So
with some comfort we take the Court to His Honour

Acting Justice Zelling's reasons and perhaps

page 71 as the starting point.

MASON CJ:  You do not need to take us through all this, do

you?

MR ANDERSON:  No, Your Honour. My point on it is simply

this: that Acting Justice Zelling is the only one,

as I said at the outset, of the judges who has

directed attention to the wider interpretation, as

he puts it, which is required in the circumstances

of this case. We say that the decisions in

Arcipreste and Farrance, to the extent that they

have been followed on that narrow interpretation,

are wrong, that the majority in this Court was
wrong, and that of course if leave were granted on
appeal that would all tie in with the adequacy of

reasons and the other points that His Honour

Acting Justice Zelling made.

It is page 76, if I can just finish my

submissions to the Court, asking the Court to note

the comments of His Honour and that we adopt the

first two of those paragraphs. That, we say in

essence, is how the subsection is meant to be used,

given that it may be an unusual situation where a

tribunal cannot reduce the ratio of the rejection

of the appellant's credibility, as His Honour puts

it, because of the way that the appeal procedure is

set up. Because of what we say are the wide powers

that are given to the tribunal, it is necessary,

with the greatest of respect, for this Court to

correct the misapprehension which has flowed

through the Full Court decisions on this aspect.

If the Court pleases.

MASON CJ: Thank you, Mr Anderson. Mr Martin.

MR MARTIN: If the Court pleases. It is my submission that

the Full Court dealt with this matter as an

examination of the exercise of discretion and that

there was never a misapprehension on the part of

any members of the court that there was a

discretion to admit this evidence and that they

were not bound by some artificial rules as to the

reception of new evidence. It is true that

His Honour Justice Millhouse appears to have

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regarded subsection (4e)(d)(ii) as relating only to

fresh evidence, but that was by no means the

unanimous view of the court. It is clear from the
decision of His Honour Justice Legoe, at page 39 of

the application book, that His Honour saw it as

falling for decision as to whether

~ubsection (4e)(d)(ii) had application, where he

says that his judgment, at page 39, line 7:

the appellant has failed to satisfy me that
there was " ... some substantial reason for

admitting the evidence" of the appellant before the Tribunal "in the interests of

justice."

Of course the worker had already given evidence

before the review officer that this was an

application not to call some new evidence but to

recall and rehear the whole of the worker's

evidence before the review officer. It is clear

that His Honour Justice Legoe did not see that

subsection (4e)(d)(ii) as being restricted to cases

of new evidence.

MASON CJ: But is that clear? For example, at page 38

His Honour refers to the two previous cases and

refers to them in the sense of discussing and
laying down the principles concerning the powers of

the appeal tribunal under section 97.

MR MARTIN:  I will turn to those two cases now, because it

is my submission that it is important to bear in

mind the precise matters that were for decision in

those cases. Because although some general

observations have been made, it is my submission

that the precise observations that are now the
subject of argument were not essential to the

qecision in either of those cases. Firstly, the

case of Simpson v Arcipreste, in my respectful

submission, was stated on a particular question and

was decided only that a respondent to an appeal

before the tribunal may be called upon to go first,

although a respondent to the appeal but that that

order had to be made upon a proper consideration of

what evidence may be called. The observations that

were made were general observations with a view to

establishing that in fact the argument before the

tribunal - the appeal before the tribunal was a

rehearing on the documents supplemented by new

evidence and not a hearing de novo.

If I can turn to the case of Farrance, in my

submission - - -

MASON CJ: Just before you do that, if you look at the top

of page 39, line 2. Is the statement made in that sentence, commencing with the word "accordingly" a

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correct view of the power, or at least the

obligation of the tribunal under

subsection (4e)(d). His Honour takes the view that

there was no fresh evidence, no fresh issue, before
the tribunal that precluded the calling of evidence

necessarily. Can that be right?

MR MARTIN:  It cannot be right that there must be a fresh

evidence in all circumstances before

subsection (4e)(d)(ii) can operate because there

may be cases where there is a substantial reason in

the interests of justice to reopen an issue.

MASON CJ:  Does that not suggest that Mr Justice Legoe, like

Mr Justice Millhouse, was proceeding on a

misconceived view?

MR MARTIN:  Not, I say with respect, if the case was seen as

I say it was as an examination of the exercise of

the discretion and, of course, it is pertinent in

determining whether the discretion was correctly

exercised to see whether there was some new fresh

issue. His Honour says that there was no fresh

issue. It is not suggested by His Honour in that

passage, in my submission, that that is the only

way in which the exercise of a discretion could be

invoked. But on the circumstances of this case,

clearly there had to be something shown to invoke

the exercise of the discretion and where the worker

has been called already before a review officer and
no fresh issue arises, it is difficult to see on

what basis the discretion would properly be

exercised.

DAWSON J: But he has no appeal at all really if you do not

hear of him again, in this case, because the evidence of the psychiatrist is inadmissible

because it is based on facts which are given by

someone who is disbelieved.

MR MARTIN: Yes. It is an unusual circumstance that a

person is disbelieved in the absence of any other

evidence, but there is nothing inherently wrong

with such a position and, in my submission, that is

effectively the end of a practical right of appeal,

because findings on credibility have been made that

would not normally, and certainly not in these

circumstances, be disturbed on appeal.

It is my submission, shortly put, that the issues that were raised on the appeal as to the

re-calling of the witness, were simply issues as to

the correct or incorrect exercise of a discretion

by the tribunal that are particular to the facts of

this case and that this is not an appropriate

vehicle, I say with respect, for the Court to lay

down principles for the future as to what

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circumstances the discretion ought properly to be

exercised, particularly when the decisions of the

Full Court of this State, in so far as they bear

upon the issue of the exercise of this discretion
or the meaning of subsection (d)(ii), deal with

those issues only as a matter of obiter dicta.

-Those are my submissions.

MASON CJ: Yes, Mr Anderson.

MR ANDERSON: There is nothing else I can put, Your Honour.

MASON CJ: The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 4.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.05 PM:

MASON CJ:  The Court considers that the decision in this

case turns upon its own particular facts and, as

such, gives rise to no question of general

principle. The application for special leave is

therefore refused.

AT 4.06 PM THE MATTER WAS ADJOURNED SINE DIE

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