Pond v WorkCover

POND V WORKCOVER
[1999] SASC 362
Full Court: Millhouse, Lander and Williams JJ

MILLHOUSE J. I agree, for the reasons about to be given by our brother Lander that the appeal be allowed. I agree with the orders he proposes.
I also agree with the remarks of our brother Williams.
LANDER J. This is an appeal pursuant to leave granted to appeal to this Court by a Judge of this Court on 15 January 1999 against an order of the Workers Compensation Appeal Tribunal made on 10 December 1998.
The appellant, who was a worker, claimed to have suffered two work related injuries, one to his neck and one to his back.
On 1 February 1996, the WorkCover Corporation (the Corporation) by its agent, MMI Workers Compensation (SA) Ltd, determined that the appellant was not entitled to a lump sum payment under s43 of the Workers Rehabilitation and Compensation Act 1986 (the Act) in relation to any permanent or residual disability relating to his upper back/neck which he asserted had been injured by strain on 29 January 1993.
On the same day the same agent of the Corporation determined that the appellant was not entitled to any lump sum entitlement for any lower thoracic back disability which was alleged to have been sustained on 16 January 1995.
On 12 February 1996 the appellant applied to a Review Officer for a review of those determinations.
Those decisions were subject to a review determination by Review Officer Fitzgerald on 7 April 1997. The worker, being dissatisfied by that review determination, appealed from the Review Officer’s decision to the Workers Compensation Appeal Tribunal. The appeal was allowed by Deputy President Cawthorne and the matter was referred back to the Review Panel for re-hearing.
In the re-hearing before a different Review Officer, Review Officer Russell, the appellant maintained that he had permanent residual disability in respect of both of those injuries and that he was entitled to a lump sum in respect of both.
On 4 June 1998 the Review Officer determined first that the worker had no permanent disability as a result of the thoracic spine disability. Secondly, she determined that the decision dated 1 February 1996 concerning the worker’s neck disability should be set aside and she determined that the appellant had a 12 per cent loss of full and efficient use of the neck and cervical spine resulting from the compensable disability suffered in January 1993. She calculated that lump sum compensation at $9,024.
The appellant appealed from that decision by notice of appeal dated 6 July 1998.
The decision which he claimed to appeal against was said to be a decision made by the Review Officer on 5 June 1998.
The grounds of the appeal are not important but the orders which the appellant sought included an order:
“2.That the determination of the Review Officer be set aside in so far as it determines the worker’s entitlements pursuant to Section 43 for thoracic spine disability and incapacity for work and in lieu thereof a determination of the worker’s thoracic spine disability.”
The appellant filed an amended notice of appeal on 17 August 1998.
In that amended notice of appeal he corrected the date of the decision of the Review Officer, which had in fact been made on 4 June 1998.
The decision appealed against was said to be: [AB 450]
“1.That part of the decision which confirms a compensating authority’s decision dated 1/2/96 that the worker has no permanent disability as a result of a compensable thoracic spine disability;
2.That part of the decision which varies the compensating authority’s decision dated 19/6/95 to accept the worker’s claim for a lower thoracic spine disability, and to determine that he was incapacitated for work by that disability for a closed period from 6/2/95 to 20/2/95 only.”
The orders which the appellant sought included the following:
“1. ...
2.That those parts of the Review Officer’s decision determining whether or not the worker suffered any permanent disability of the upper back and thoracic spine as a result of the injury suffered in January 1995 and the period of incapacity resulting from that injury be set aside.
3.That a determination be made assessing the worker’s entitlement to lump sum compensation pursuant to Section 43 of the Act in respect of the thoracic spine disability.
4.In the alternative to 3. above, that the issue of the worker’s entitlement to lump sum compensation pursuant to Section 43 of the Act in respect of the thoracic spine disability be remitted to the Workers Compensation Review Panel for re-hearing.”
It is clear enough, in my opinion, from both those notices of appeal that the appellant made no complaint about the finding in relation to his neck disability and the assessment of $9,024 pursuant to s43 of the Act.
The respondent received the amended notice of appeal on 19 August 1998. Its solicitor claimed, in an affidavit, that it became apparent to him by reason of the amended notice of appeal that the thrust of the appeal had materially changed. As a result of that it is claimed that it was necessary to file a “cross appeal”.
The “cross appeal” which was filed on 4 September 1998, three months after the decision of the Review Officer, sought to appeal from:
“1.That part of the decision which sets aside the Compensating Authority’s decision dated 1/2/96 that the worker was entitled to lump sum payments pursuant to Section 43 for cervical spine and shoulder disabilities.
2.That part of the decision which sets aside the Compensating Authority’s decision dated 1/2/96”
The relief sought in the “cross appeal” was:
“1. That the appeal be allowed.
2.That those part (sic) of the Review Officer’s decision determining that the worker suffered a permanent disability of the cervical spine as a result of injury in January 1993 and the period of incapacity resulting in that injury be set aside.
3.That a determination be made accepting the Compensating Authority’s decision dated 1/2/96 in respect of the cervical spine disability.
4.In the alternative, to the last preceding paragraph, that the issue of the worker’s entitlement to a lump sum compensation pursuant to Section 43 of the Act in respect of the cervical spine disability be remitted to the Workers Compensation Review Panel for further re-hearing.
5.Such further or other orders as the Tribunal deems fit.”
The Workers Compensation Appeal Tribunal rejected the submission made by the respondent that the notice of cross appeal was made necessary by the amendments to the appellant’s notice of appeal.
However, the learned Deputy President granted the respondent’s application for an extension of time within which to appeal.
The Tribunal then considered the substance of the appellant’s appeal and the respondent’s cross appeal. The learned Deputy President dismissed the appellant’s appeal. He allowed the respondent’s cross appeal and remitted the matter to a Review Officer:
“... to make the determination on the basis that the permanent loss of efficient use of the function of the cervical spine is to be assessed after proper allowance has been made for the permanent impairment that existed prior to 1993.”
That order meant that there was to be a third review, after two appeals, in relation to an injury which had occurred in January 1993.
The appellant, on his appeal, has been given leave to advance two grounds of appeal:
“1.The learned Deputy President erred in law in granting the respondent leave to file its cross-appeal when:
(i)there was no or no adequate explanation for the delay in filing the Notice of Cross-Appeal;
(ii)the learned Deputy President failed to consider the appellant’s submission that the respondent, as a statutory corporation, charged with the administration of the Act, should not be granted an extension of time, other than in exceptional circumstances;
2.The learned Deputy President erred in law in interfering with the primary findings of fact made by the Review Officer in relation to the neck and cervical spine disability.”
The failure, by the respondent, to lodge its appeal within time raises two questions. The first is whether the Tribunal has power to extend the time within which to appeal. The second is whether, in the circumstances of this case, the Tribunal should have exercised its discretion to allow an extension of time within which to appeal.
The answer to the first question is undoubtedly yes. Section 97 of the Act provides that an appeal from a Review Officer must be instituted within one month after the appellant receives notice of the Review Officer’s decision unless the appellate authority allows a longer time for institution of the appeal.
Clearly the Tribunal, as the appellate authority, had jurisdiction to extend the time within which the respondent might appeal from the decision of the Review Officer made on 4 June 1998. Section 97, in my opinion, invests the Tribunal with an undefined and therefore unfettered discretion, albeit which must be exercised judicially, to extend the time for the institution of an appeal from a Review Officer. The Tribunal has power to extend the time within which a party may appeal whether or not another party has instituted an appeal within time.
Whether the Tribunal should have extended time leads to the second question which necessitates a consideration of the exercise of the Tribunal’s discretion.
On an appeal from the exercise of discretion it is not a question for the appellate court whether it would have exercised its discretion in the same manner that the Court or Tribunal appealed from exercised its discretion. The question is whether the Tribunal, acted upon a wrong principle or misunderstood the facts or that the Court or Tribunal had regard to irrelevant matters or failed to have regard to relevant matters: House v R (1936) 55 CLR 499.
As I have said the learned Deputy President rejected the respondent’s (Corporation’s) submission that it was the amendment to the appellant’s notice of appeal which necessitated the institution of the “cross appeal”.
With that decision there can be no quarrel. Clearly “the cross appeal” relates to a different injury to the subject matter of the notice of appeal or the amended notice of appeal.
In my opinion, it could not be said, as it was asserted that the cross appeal was made necessary by the amendments to the notice of appeal.
In that respect, in my opinion, the “cross appeal” is not a cross appeal at all. It is an appeal from a decision of a Review Officer made independently of the decision of the Review Officer, which was the subject matter of the Notice of Appeal. The respondent was under the same time constraints as the appellant and should have lodged its appeal within one month of the hearing.
The learned Deputy President after rejecting the Corporation’s submission that the “cross appeal” was made necessary by the amendment to the appeal then observed that the appeal was about two months out of time. He said without further explanation:
“I propose to grant an extension of time. There is a long history of this Tribunal taking the view that an extension of time sought for a cross appeal out of time will be granted more easily, unless the Appellant would suffer an injustice by being taken by surprise or otherwise - e.g. if the point had not been clearly raised at the Review. That philosophy accords well with the view of the Full Court in Santos v WorkCover Corporation S6839 (FC 11 September 1998) i.e. that the discretion will be exercised when to do so is in the interests of justice.
The issue of the neck was extensively ventilated at the Review. It would be contrary to the interests of justice if the Corporation was denied the opportunity of its appeal rights.”
I do not believe that it was appropriate for the purpose of a consideration of an extension of time within which to appeal to approach the matter in the way the learned Deputy President did. The approach demonstrates error in principle. It was also inappropriate to have regard to some of the matters considered relevant by the learned Deputy President.
As I have already observed the unfettered discretion given to the Tribunal must be exercised judicially. The discretion exists only for the purpose of doing justice between the parties: Gallo v Dawson (1990) 93 ALR 479 at 480; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. It follows that the ultimate question for the Tribunal on any application of this kind is whether it would be in the interests of justice to extend the time for the institution of an appeal: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
The learned Deputy President fell into error in reaching that conclusion that it is relevant to have regard to:
“...a long history of this Tribunal taking the view that an extension of time sought for a cross appeal out of time will be granted more easily, unless the Appellant would suffer an injustice by being taken by surprise or otherwise.”
The Tribunal’s practice in a consideration of applications to extend time to institute either an appeal or cross appeal is not relevant, it seems to me, in a consideration of whether it would be in the interests of justice to grant an extension of time in any individual case.
The question in every case is whether, in that particular case, it is in the interests of justice to grant an extension of time within which to institute an appeal.
It might be right to say that ordinarily a party who is seeking an extension of time will more easily be able to satisfy the Tribunal that it is in the interests of justice to allow an extension of time for the purpose of instituting a cross appeal rather than an appeal. In that respect I mean a cross appeal in the real sense. I do not believe that this “cross appeal” was anything of the sort. My understanding of a cross appeal involves the respondent to an appeal appealing from the same decision and orders which are the subject matter of the appeal. The respondent in the case of a true cross appeal will be seeking to raise, for argument, an examination of the same facts, reasons and orders as the appellant. The Tribunal will be more easily satisfied in those circumstances that the interests of justice will be served by allowing an extension of time. However the Tribunal could not be satisfied that a respondent should be entitled to an extension of time to institute a cross appeal simply because it is a cross appeal. There must still be an inquiry into any relevant fact or circumstance which would bear upon the ultimate question; whether it is in the interests of justice to allow the extension of time.
It is also not right to approach a respondent’s application for an extension of time upon the basis that it will be granted unless the applicant is “taken by surprise- or otherwise e.g. if the point had not been clearly raised at the Review”. The application to the Tribunal was for the grant of an extension of time. The applicant seeking the extension of time bears the responsibility of satisfying the Tribunal that the Tribunal should exercise a discretion to grant an extension of time. It is not the respondent’s application to refuse an extension of time. The approach taken by the Tribunal seems to suggest that there is some sort of onus upon the respondent to an application of this kind to demonstrate that the respondent would suffer an injustice. That is not so. It is for the applicant to establish that it would be in the interests of justice to grant the extension of time. The evidential onus that may be upon the respondent to such an application is another thing and I shall return to that.
Applications of the kind have to be put in perspective. All procedural time limits in Statutes and under the rules of courts or tribunals should be observed. There are good reasons for time limits in respect of all aspects of litigation and, in particular, in procedural steps after the commencement of litigation including the institution of appeals.
A party should comply with any time limit imposed. In Ratnam v Cumarasamy (1964) 3 A11 ER 933 Lord Guest said at 935:
“The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”
Time limits, after the commencement of proceedings, are imposed so that the litigation proceeds in an orderly fashion and to protect the parties substantive rights so much as they can be by the expeditious disposal of the litigation. Whilst time limits assist the court or tribunal in the orderly disposal of their business they are primarily imposed for the benefit and protection of the parties.
In Jackamarra v Krakouer (1998) 153 ALR 276 Gummow & Hayne JJ said at 283-284:
“It is with these considerations in mind that the rules of court prescribe times for the taking of certain steps in a proceeding. They are not prescribed for the purpose of implementing what Roscoe Pound referred to more than 90 years ago as the “sporting theory of justice”. They are prescribed as aids to the attainment of justice. Just as case management is not an end in itself, but an aid to the prompt and efficient disposal of litigation, so, too, the rules of court and the time limits which are prescribed there are not to be seen as ends in themselves. But they are aids to the attainment of justice and the times that they fix are prescribed as sufficient to take the step or steps identified while maintaining the general momentum of the litigation.”
Some statutes, which impose time limits, also provide for the relaxation of those time limits, as is the case with this Act. So also do the Rules of most courts and tribunals enable those courts and tribunals to extend time to comply with the court’s procedures. That power is given so that the time limit imposed by the Statute or Rules itself does not become an instrument of injustice: Gallo v Dawson (supra).
If a party does not observe a time limit that party must seek an indulgence from the court in respect of that party’s default. The grant of that indulgence will depend upon the applicant satisfying the court or tribunal that it is in the interests of justice to allow the indulgence.
In Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 at 144 Cullen CJ said:
“... when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that the default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules.”
The exercise is not approached upon the basis that an extension of time will be granted, unless the respondent to the application can show injustice. It is always for the party seeking the indulgence of an extension of time to satisfy the court or tribunal that it would be in the interests of justice to allow the application: Gallo v Dawson (supra); Brisbane South Regional Health Authority v Taylor (supra).
Of course, the respondent to the application will have a better chance of defeating the application by demonstrating, if necessary by evidence, that the grant of the application would cause that party prejudice. It is the respondent who can advise the Court of any potential or actual prejudice which the respondent might suffer. That evidential onus is not, however, to be confused with the ultimate onus which is upon the applicant to establish that it is in the interests of justice to grant the application to extend time within which to appeal: Brisbane South Regional Authority v Taylor (supra) per Toohey and Gummow JJ at 547.

Prejudice to the respondent will vary from case to case. One cannot determine in the abstract circumstances which would amount to prejudice such that an application should be refused. The prejudice a party might suffer will depend upon the extension of time sought. For example, if the application is to extend time to bring proceedings, the respondent to the application might be able to demonstrate that the application is brought so late that it is no longer possible to have a fair trial. But that is a matter which will usually only apply when considering an application for an extension of time within which to commence proceedings. Although the principles are the same the time limit which is sought to be extended will determine the type of prejudice that a respondent to the application might suffer: Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83. For example different considerations will apply in an application for an extension of time within which to appeal, than in an application to extend time to set down an appeal which has been instituted within time: Jackamarra v Krakover (supra).
Usually, but not invariably, there will be, at least, four factors that will need to be addressed on an application for an extension of time within which to appeal; the length of the delay, the reason for the delay, whether there is an arguable case on appeal and the prejudice which the respondent might suffer; Palata Investments Ltd v Burt & Sinfield [1985] 2 A11 ER 517 at 520. The consequences to the applicant if the application was refused may also be relevant: Gallow v Dawson (supra).
The length of delay is obviously an important matter. The longer the delay the better reason needed because the more likely the prejudice to the respondent to the application. The shorter the delay the more likely the absence of prejudice to the respondent. Indeed, if the delay is very short, a day or two, the other factors to which I have referred will be less relevant and will require less consideration: Palata Investments Ltd v Burt & Sinfield Ltd (supra).
In every case where an extension of time is sought the applicant must provide a frank and candid explanation for the delay: Revici v Prentice Hall Incorporated [1969] 1 WLR 157. The failure to show a satisfactory reason for the failure to comply with the obligation imposed by Statute or by Rules of Court might of itself mean that it would not be in the interests of justice to allow the application.
If the fault for the failure to comply with the time limit is that of the applicant’s legal adviser the court should be informed of that. In the absence of such information the court or tribunal would ordinarily infer that the delay has been caused by the applicant. The applicant’s legal advisers must understand that they have a duty to their client and a duty to the court to inform the court if it was their delay which necessitates the application for an extension.
In a consideration of an application to extend time for the institution of an appeal the appellant’s prospects on appeal will usually be important: c.f. Palata Investments Ltd v But & Sinfield Ltd (supra). If the applicant’s prospects on appeal are not good that may be enough itself to refuse the application.
The question of prejudice is at large and cannot be considered in the abstract. In respect of this factor the respondent to the application has, as I have already said, an evidential onus to show actual or potential prejudice. True, it is, some prejudice might be able to be assumed by the court. In a consideration of any prejudice which the respondent to the application might have suffered regard has to be had to the fact that the respondent to the application has a “vested right to retain the judgment”: Vilenius v Heinegar (1962) 36 ALJR 200; Gallo v Dawson (supra). That, however, could not of itself be decisive. It could not be said that the right to retain a judgment without more must mean that the application should be refused. Otherwise no application could ever be allowed. Of course, if the judgment has been in place for a long period of time and the respondent to the application could reasonably have expected that he or she would enjoy the fruits of the judgment then that may mean that it would not be in the interests of justice to allow the application.
The orders sought on the appeal might also be relevant in a consideration of prejudice. If the applicant seeks an order for a retrial then that would be a matter to which regard would be had for the purpose of determining whether a retrial or re-hearing would mean that the order should be refused in the interests of justice. A retrial might well expose a respondent to prejudice. The delay might be such that witnesses are no longer available or some other event as intervened to mean that a re-trial could not be conducted fairly. It will be usual for the respondent to point to some prejudice which will or might be suffered if the extension of time was granted.
The Court might have regard to the consequences to the applicant if the application was refused. The consequences to the applicant might be so serious that notwithstanding the delay and the prejudice to the respondent to the application it is in the interests of justice that the application should be allowed. Those consequences could only be serious, of course, if the applicant had good prospects of success on appeal.
However, it will always depend upon the facts and circumstances peculiar to the particular application whether it is in the interests of justice to allow the application.
Because the discretion is unfettered, except to the extent that it must be exercised judicially, the dicta of Bowen LJ in Gardner v Jay (1885) 29 Ch D 50 at 58 is apt:
“...when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”
In this case, in my opinion, the appellant’s contention that the learned Deputy President erred in the exercise of his discretion has been made out. I am satisfied that the learned Deputy President erred in principle and had regard to irrelevant matters and failed to have regard to relevant matters. It falls to this Court then to consider whether it would be in the interests of justice to allow the extension of time.
In this case the one reason for the failure to file a notice of appeal was not accepted by the learned Deputy President. In that respect, in my opinion, he was correct. I would also reject the only explanation brought forward for the delay in the institution of the respondent’s appeal. I do not believe that the respondent could ever have sensibly thought that the appellant’s original notice of appeal complained about the Review Officer’s decision in relation to the neck injury of 29 January 1993. The amendments to the appellant’s notice of appeal do not suggest that the thrust of the appeal had materially changed. There is therefore no satisfactory explanation for the delay.
The notice of “cross appeal” was lodged three months after the decision complained of and two months out of time. The decision complained of related to a claim for lump sum compensation pursuant to s43 of the Act in respect of an injury which occurred five years before. The amount awarded the worker was only $9,024. The award was made on a second review hearing after a previous review hearing had been set aside following an appeal from the first review hearing. What the Corporation sought was a second appeal from the second review hearing in relation to a claim for $9,024 arising out of an injury which occurred on 29 January 1993. The “cross appeal” sought the setting aside of the Review Officer’s determination and the substitution of the Tribunal’s determination. In the alternative it sought a remitter of the worker’s application to the Review Panel for a third hearing.
In fact the Deputy President allowed the application for an extension of time and allowed the appeal and made an order remitting the workers claim under s43 to the Review Officer for further determination.
This Court was told that the appellant will be paid his costs of that appeal to the Deputy President. The parties were not able to say whether the appellant will be wholly indemnified in respect of past and future costs. That is a matter that needed to be addressed in circumstances where the appellant was to have to undergo a third review hearing after two appeals in respect of an award of $9,024.
The reasonably lengthy delay is not explained. The respondent could suffer prejudice if the matter was, as the learned Deputy President thought it should, remitted for further hearing by another Review Officer. I am not satisfied that the respondent would not also suffer prejudice on costs. The consequences of a failure to extend time within which to appeal to the Corporation are negligible.
All of those reasons are enough to show that the extension of time must, in the exercise of the discretion, be refused. So far I have not considered the prospects of success which ordinarily would be a relevant factor. In this case I think even if the respondent’s prospects of success were good I would still refuse the application for an extension of time for the reason already given.
However, on this appeal the appellant not only appealed against the order extending time but also against the decision allowing the respondent’s appeal. In case I am wrong about the ground of appeal relating to the extension of time I will consider that aspect. If I conclude that the appeal should be allowed on that further ground then clearly no extension of time could be granted because, if I believed that the appeal should be allowed on that other ground, that would show that the respondent’s prospects of success on appeal to the Tribunal were poor.
The appellant also complains that the learned Deputy President fell into error in allowing the cross appeal.
The appellant, in this case, had previous injuries to his neck which had arisen out of whiplash injuries in 1990 and 1991. His general practitioner, Dr Columbo was of the opinion that those previous injuries were operating to cause disability before he suffered the further injury which was the subject of the claim for compensation. He said that of the 25 per cent disability, which the appellant had in his neck after that work related incident, 10 per cent of it could be ascribed to permanent disability which operated at the time of the work related incident.
He went on to say that 15 per cent disability could be ascribed to the 1993 incident.
Dr Cohen, a general surgeon, examined the appellant at the instigation of the appellant’s solicitors and first reported to them on 11 December 1995.
He did not obtain the same history of whiplash injuries in 1990 and 1991 as Dr Columbo. He referred, in his report, to a motor vehicle accident about twelve years previously in which the appellant had suffered an injury. Dr Cohen offered the opinion that the appellant had a 12 per cent impairment “of his cervical spine and neck as a result of the injury to it as described”: He provided a second report on 5 September 1996 but that did not add anything by way of history nor did he modify his opinion.
Dr Cohen was called to give evidence before the Review Officer. His examination in chief was somewhat perfunctory but he was asked the following questions and gave the following answers:
“QDoctor, if I could concentrate for a moment upon the neck and cervical spine, you gave an assessment in your report of a 12 per cent impairment.
AYes.
QAre you able to say or did you form an opinion as to what Mr Pond’s overall impairment of cervical spine was, taking into account all factors.
AWell, it was greater - I didn’t put a percentage on it. This percentage is the one that I believe is the appropriate one in regard to the injuries and the further disability in regard to the incident that he described to me as occurring sometime in 1993.”
The factors to which the examiner referred were not identified. However, Dr Cohen made it clear that his assessment of disability related only to this work related incident.
In further examination he gave the further evidence:
“QIf I could return just briefly, doctor, to the neck and cervical spine, did you make any diagnosis as to the condition of the neck and cervical spine.
AWell, he’s had some pre-existing degenerative changes. He’s had those symptoms over - and symptoms in relation to it over years. The effect from that appears to have been minor and not inhibitory of any significant function in the past. It would be consistent with aggravation of areas of pre-existing degenerative changes; in other words, affecting soft tissue structures of the cervical spine.
QAnd just to be clear, doctor - and I think it is clear in your first report - the assessment that you give for the neck and cervical spine is your assessment as it relates only to the work incident. Is that correct.
AYes, that’s right.”
The evidence made clear, if there was any doubt, that Dr Cohen’s assessment of disability related only to the work incident. In making that assessment Dr Cohen took into account pre-existing degenerative changes and aggravation of those degenerative changes.
The evidence to which I have referred was the whole of his evidence in chief in relation to the cervical injury.
It was put to Dr Cohen in cross examination that the appellant had had problems with his neck for sometime prior to 1993. He said that the function of the neck as it progressed over the years prior to the incident in 1993 would be important.
He was cross examined on Dr Columbo’s notes which recorded the two earlier whiplash injuries.
He said that the information after the 1993 incident was consistent with his understanding. In respect of the appellant’s pre-1993 condition Dr Cohen’s evidence was that Dr Columbo’s record of the appellant’s “pre-1993 background” was also consistent with his understanding.
The respondent called medical evidence before the Review Officer but, for reasons which are unimportant, the Review Officer declined to accept that evidence.
The evidence, therefore, before the Review Officer, was from Dr Columbo of a 25 per cent neck disability, 15 per cent of which was attributable to the 1993 incident and from Dr Cohen’s of 12 per cent neck disability due to this incident. There were some inconsistencies in the history given to the medical practitioners but Dr Cohen did not modify his opinion that the appellant had a 12 per cent disability. The appellant’s pre-1993 condition was consistent with his understanding.
The Review Officer concluded: [AB442]
“In relation to his neck and cervical spine I note that the worker’s history of neck pain and restriction is generally consistent with the medical records that his neck disabilities before 1993 namely, in 1985, 1990, and on two occasions in 1992) were temporary in nature, being aggravations of his pre-existing degenerative condition of the cervical spine which had no permanent effect on the functioning of the cervical spine. However since the January 1993 incident his complaints have been persistent and suggestive of a permanent problem. I have reached this conclusion principally on the evidence of the worker and Dr Columbo.”
There is no doubt, in that respect, the Review Officer had regard to previous injuries to the appellant’s neck. There is no doubt that the appellant had suffered those previous injuries. That much was supported by the evidence of Dr Columbo to which I have already referred. There was also evidence from Dr Cohen and a report of Professor Reilly to the same effect.
The Review Officer was wrong to conclude, however, that the worker did not have a permanent impairment at the time of the work related injury. The overwhelming evidence was to that effect. The appellant worker, on this appeal, accepts that the Review Officer was wrong.
The Review Officer then assessed the loss relying upon Dr Cohen’s evidence.
The Deputy President correctly, in my opinion, referred to the error made by the Review Officer. The Deputy President said:
“The course adopted by the Review Officer was to embrace the permanent loss of function certified by Dr Cohen at 12 per cent flowing from the work incident; that assessment itself was predicated on the factual basis that there was permanent pre-1993 impairment - but that 12% was the loss independent of the pre 1993 impairment. To adopt that assessment, but to ignore the factual basis is not open.
The learned Deputy President, acting upon the error, determined that it was appropriate to send the matter back to a Review Officer to determine the extent of loss having regard to the pre-existing injury.
I believe the Deputy President was wrong to seize upon the error made by the Review Officer and allow the respondent’s appeal.
The evidence was, as I say, that the appellant had a pre-existing neck injury. Dr Cohen said that was consistent with his understanding.
The Review Officer ought to have found, contrary to her finding, that there was a pre-existing neck injury. Having made that finding she would then have been entitled to rely upon Dr Cohen’s evidence to assess the appellant’s permanent cervical spine disability at 12 per cent. Dr Cohen’s evidence was not inconsistent with a finding that there was a pre existing neck injury.
In the alternative she would have been entitled to accept Dr Columbo’s evidence and conclude that there was a 15 per cent disability arising out of the work related incident.
Either way there was evidence available to her, which she ought to have accepted, to have reached the conclusion which she did or alternatively to reach the conclusion that the appellant had a greater disability than the 12 per cent referred to by Dr Cohen.
In those circumstances, whilst accepting the Review Officer made an error in finding that there was no pre-existing neck disability the appeal to the Deputy President should have been dismissed.
There was no reason, in my opinion, to conclude that the matter needed to be referred back to a further review officer for the purpose of a re-hearing for a determination on the basis that the permanent loss of efficient use of the function of the cervical spine is to be assessed after proper allowance has been made for the permanent impairment that existed prior to 1993.
On the evidence which was accepted the appellant had a residual disability of the cervical spine of between 12 and 15 per cent.
For those reasons, in my opinion, the appellant was also entitled to succeed on the alternative ground.
In those circumstances the Deputy President should not have allowed the respondent an extension of time within which to appeal. The reasons earlier referred to were enough to conclude that the application should have been refused. Those reasons coupled with my view of the appellant’s prospects of success in the appeal to the Tribunal inevitably means that the application for an extension of time should have been refused.
I would therefore make the following orders:
1.The appeal from the Workers Compensation Appeal Tribunal to this Court be allowed.
2.That the orders of the Workers Compensation Appeal Tribunal made on 10 December 1998
(1)That the (Corporation’s) Appeal against the Review Officer’s Section 43 determination of 12% loss of efficient use of the neck and cervical spine be upheld; and
(2)that the matter is remitted to a Review Officer to make the determination on the basis that the permanent loss of efficient use of the function of the cervical spine is to be assessed after proper allowance has been made for the permanent impairment that existed prior to 1993,
be set aside
2.That the Corporation’s application for an extension of time within which to appeal to the Workers Compensation Appeal Tribunal be dismissed.

I would hear the parties on the costs of this appeal and any orders for costs in the Tribunal from which this appeal has been brought.
WILLIAMS J. In my opinion this appeal should be allowed. I agree with the reasons given by Lander J.
The discretion of the Appeal Tribunal to extend time in this instance is unfettered. However, general statements of principle or practice as to the matters which might be expected to be addressed in seeking an indulgence as to time limits cannot circumscribe the unfettered nature of the discretion which, typically, is to be found in the various rules of Court and Statutes of Limitations. Such statements should be approached with some caution. I draw attention to the qualified expression of principle by Edmund Davies LJ in Revici v Prentice HallIncorporated (supra) - “Prima facie, if no excuse is offered, no indulgence should be granted”. This statement is to be compared with the statement of Cullen CJ in Morres v Papuan Rubber & Tracting Co Ltd (supra) that the applicant “must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules” (emphasis added). In my opinion this latter statement, if treated as a matter of general principle, is too strong.
Those who are dealing with an application to extend time will guard against treating any general statement as a rule of thumb so as to restrict, in an impermissible fashion in a particular case, the exercise of the discretion. The Appeal Tribunal’s reasoning in the present case shows that it did resort to such a rule of thumb, although expressed as a long standing Tribunal practice. Therefore the exercise of the statutory power miscarried.
Acting under s96(2) of the Workers Rehabilitation and Compensation Act (1986) (the Act), the Review Officer determined, as now relevant, that the worker “has a 12 per cent loss of full and efficient use of the neck and cervical spine, resulting from a compensable disability suffered in January 1993. He is therefore entitled to lump sum compensation of $9024.00 (12% x 80% x $94,000).”
In seeking two months out of time to bring an appeal against that determination, the Corporation contends that through the appeal process it has some prospects of reducing its liability to about $7000. It is not in dispute that the Corporation can only expect to improve its position, if at all, in this comparatively slight way. Nevertheless, Mr AS Martin, counsel for the Corporation, submitted that his client should be entitled to have the matter decided according to law.
The Court can assume that the worker will be looking at the prospect of further expense if the Corporation is granted an extension of time. This prejudice is relevant to the exercise of discretion to extend time.
During the course of argument the Court asked Mr Martin whether in order to achieve the outcome which his client was seeking, the Corporation would be prepared voluntarily to accept a liability for costs so as to ameliorate the prejudice to the worker to which I have already referred. The parties are aware that the Review Officer who last handled this matter is no longer available. They will have been able to assess, inter alia, the likely impact of that fact upon costs if the matter should become the subject of a further review.
Counsel for the Corporation was afforded an opportunity to obtain instructions and he responded in writing as follows:
“...the respondent will not make an undertaking to pay the appellant’s costs of a further Review hearing, other than as provided for by the Workers Rehabilitation and Compensation Act 1986.”
That answer, which no doubt involves a commercial judgment, provides some assistance when bringing to account on the one hand the speculative hopes of the Corporation and on the other hand, the potential prejudice to the worker in terms of future costs.
Upon the facts of this case, when considering the exercise of the discretion to extend time, it is relevant to consider the extent of the benefit which might accrue to the Corporation from further proceedings. To my mind, the question as to whether the Corporation has “an arguable case” is subsumed within this wider enquiry. It has not been demonstrated that the likely benefit to the Corporation from further proceedings is sufficient to justify an indulgence.
I would refuse to extend time for the institution of appeal from the Review Officer’s determination.

[1999] SASC 362

24 September 1999