Return to Work Corporation of South Australia v Moore-McQuillan
[2020] SASCFC 119
•9 December 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v MOORE-MCQUILLAN
[2020] SASCFC 119
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bleby)
9 December 2020
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - SUFFICIENCY OF EVIDENCE
COURTS AND JUDGES - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS
Appeal against a decision of the Full Bench of the South Australian Employment Tribunal.
The predecessor to the appellant, WorkCover, paid the respondent income maintenance payments for injuries he received after falling down some stairs at work.
In February 2002, WorkCover suspended and then discontinued the income maintenance payments after determining that the respondent had breached an obligation of mutuality by failing to attend a medical examination and failing to provide an explanation. The respondent filed two notices of dispute regarding the suspension determination, however at trial, the parties consented to an expansion of issues to capture the discontinuance determination.
Since the initial injury, the respondent also made claims relating to 21 secondary physical injuries and 15 stress-related claims. These claims were rejected by WorkCover.
At trial, the trial Judge affirmed WorkCover’s determination to discontinue weekly payments and affirmed WorkCover’s rejection of the respondent’s physical claims and stress-related claims.
The respondent appealed to the Full Bench of the South Australian Employment Tribunal. The majority of the Full Bench (Hannon DPJ dissenting) allowed the appeal against the discontinuance of weekly payments. The Full Bench unanimously allowed the respondent’s appeal against the rejection of claims for physical injuries and stress-related injuries.
The appellant appeals to this Court on three grounds. It is contended that:
1. The Full Bench failed to consider the evidence adduced at trial in respect of the discontinuance issue and erred in finding that there was an error of law due to the failure of the trial Judge to give reasons;
2. In respect of the physical injuries claims, the Full Bench erred in characterising the trial proceedings as a preliminary step to assessing the level of permanent impairment, erred in determining that the issues in dispute did not involve questions of entitlement to compensation and erred in finding that the respondent was not afforded procedural fairness; and
3. The Full Bench erred in interfering with unchallenged findings of fact made by the trial Judge and in its construction of s 30(3) of the Workers Rehabilitation and Compensation Act 1986 (SA).
Held by the Court, allowing the appeal:
1. The Full Bench majority failed to appreciate that the trial Judge had concluded that there had been a breach of mutuality. On proper analysis of the judgment, it can be plainly inferred that the Judge did determine the breach of mutuality and his Honour’s reasons for doing so are adequate to convey by necessary inference that he did so.
2. The factual findings made by the trial Judge would have nevertheless led to the making of an order upholding the discontinuance determination. The failure of the Judge to mention that in the reasons has not resulted in any miscarriage of justice.
3. When the Judge’s findings in relation to the physical serials are considered in the context in which the trial proceeded, there is nothing to support the Full Bench’s characterisation of the trial before the Judge as a two-step phased approach.
4. In concluding that the respondent had been denied procedural fairness, the Full Bench ignored the series of communications between the Judge and the parties, including the Judge’s repeated warnings that the evidence had been closed.
5. The Full Bench erred in concluding that the respondent was not on notice of the orders sought by WorkCover.
6. The expanded definition of employment in s 30(3)(e)(iv) of the Workers Rehabilitation and Compensation Act 1986 (SA) did not obviate the need to establish a relevant causal link between the attendance falling within the expanded definition of employment and the injury.
7. The respondent was unable to demonstrate any relevant causal link between his claimed psychiatric injuries and the ordinary or expanded definition of employment. His stress over the years as the litigation dragged on, and the consequences of that, were not compensable.
8. The Full Bench reached its conclusion as to the merits of the appeal on the basis of bare allegations made by the respondent without properly considering the structure of the Judge’s reasons, the evidence that was before the trial Judge and the claims actually pursued by the respondent at trial.
9. The Full Bench overlooked the fact that it was not open to the respondent to agitate seven of the stress claims that were stayed by operation of an order of a Supreme Court Judge in 2016.
10. Appeal allowed.
Workers Rehabilitation and Compensation Act 1986 (SA) ss 30(2), 30(3)(e), 36(1), 36(1A), 36(4) 38, 43, 88DA; Supreme Court Act 1935 (SA) s 118A; Acts Interpretation Act 1915 (SA) s 33(1); Workers Compensation Tribunal Rules 2009 (SA) r 16; Workers Compensation Tribunal Rules 2005 (SA) r 4, referred to.
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87; Battiste v Mulvaney [1997] SASC 6419; Reisner v Bratt [2004] NSWCA 22; Franklin v Ubaldi Foods Proprietary Limited [2005] VSCA 317; Malouf v Malouf [2006] NSWCA 83; Resi Corporation v Munzer [2016] SASCFC 15; Aldridge v Johnston [2020] SASCFC 31, discussed.
Peet v Workers Rehabilitation & Compensation Corporation (1996) 66 SASR 474; Vanderdoes v WorkCover Corporation [1998] SAWCT 68; Trinne v WorkCover [1999] SAWCT 57; Moore-McQuillan v Workcover/Royal & Sun Alliance (Wolf Air and Dive Shop) [2001] SAWCT 30; Moore-McQuillan v Workcover/Royal and Sun Alliance (Wolf Air and Dive Shop) [2001] SAWCT 99; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212; Archibald v Byron Shire Council [2003] NSWCA 292; Moore-McQuillan v WorkCover /Vero (Wolf Air and Dive Shop) (JD1/680 of 2003) [2004] SAWCT 72; The Waterways Authority v Fitzgibbon [2005] HCA 57; Transport Accident Commission v Kamel [2011] VSCA 110; Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 1; Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14; Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 27; Moore-McQuillan v WorkCover Corporation/Employers Mutual Ltd (Wolf Air & Dive Shop) [2012] SAWCT 36; Moore-McQuillan v WorkCover Corporation/Employers Mutual Ltd (Wolf Air & Dive Shop) [2012] SAWCT 44; Moore-McQuillan v WorkCover Corporation/Employers Mutual Ltd (Wolf Air and Dive Shop) [2013] SAWCT 41; Keith v Gal [2013] NSWCA 339; Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53; WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191; WorkCover Corporation of South Australia v Moore-McQuillan [2017] SASC 78; Moore-McQuillan v Return to Work SA [2018] SAET 139, considered.
RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA v MOORE-MCQUILLAN
[2020] SASCFC 119Full Court: Kourakis CJ, Kelly and Bleby JJ
THE COURT.
Introduction
This is an appeal brought by the appellant, the Return to Work Corporation of South Australia, from a decision of the Full Bench of the South Australian Employment Tribunal (‘the Full Bench’ and ‘the SAET’, respectively). The respondent, Mr Markham Moore‑McQuillan, suffered a compensable work injury to his left knee on 9 September 1990. The Full Bench’s decision concerned determinations made by WorkCover (the predecessor to the appellant) to suspend and discontinue weekly payments being made to the respondent and to reject the respondent’s claims for additional physical injuries and psychiatric injuries. On 24 August 2018, the Full Bench ordered:
1. That the appeal against the suspension of weekly payments in matter 927 of 2002 be dismissed.
2. That the appeal against the discontinuance of weekly payments in matter 927 of 2002 be allowed.
3. That the appeal against the confirmation of the rejection of the claims for physical injuries in matters 5489, 5490, 5497-5510 of 1998 and 6484 of 2001 be allowed.
4. That the appeal against the confirmation of the rejection of the claims for stress injuries in matters 2842, 2845, 2846, 2848, 2851, 2852, 2862, 2864 of 2004 and 2238 of 2005 be allowed.
The appellant appeals against the entirety of the orders of the Full Bench save for the first order, being the dismissal of the appeal against the suspension of weekly payments in matter 927 of 2002.
Background
On 9 September 1990, the respondent fell down some stairs at his work and injured his left knee and three left toes. The respondent lodged a claim dated 21 January 1991 for compensation, which was rejected by WorkCover in March 1991. On 27 August 1991, a Review Officer made a determination setting aside WorkCover’s rejection, that the respondent suffered a ‘compensable disability’ and that he was entitled to income maintenance. The Review Officer did not set a rate for the weekly payments. The parties were unable to reach an agreement as to the rate and, in 1995, another Review Officer set a rate of $1,024.19 notional weekly earnings. WorkCover notified the respondent by letter dated 22 October 1999 that it intended to undergo a review of weekly payments pursuant to s 38 of the Workers Rehabilitation and Compensation Act 1986 (SA) (‘the WRC Act’) (‘s 38 review’). The outcome of the s 38 review, that the weekly payments would be reduced from $1,244.58 to $220.70, was communicated to the respondent through a letter dated 1 December 1999 (‘the 1999 determination’). This figure was based on the respondent’s asserted earning capacity at the time.
The respondent disputed the 1999 determination, which was heard before McCouaig DP. His Honour not only affirmed the 1999 determination but went on to find that the respondent’s weekly payments should be discontinued completely because he was then earning, or able to earn not less than, his notional weekly earnings as a diving instructor.[1] The respondent appealed to the Full Bench of the Workers Compensation Tribunal (‘the Tribunal’). In a judgment delivered on 6 September 2001, the Full Bench of the Tribunal restored the respondent’s weekly payments to $220.70.[2]
[1] Moore-McQuillan v Workcover/Royal & Sun Alliance (Wolf Air and Dive Shop) [2001] SAWCT 30 at [154].
[2] Moore-McQuillan v Workcover/Royal and Sun Alliance (Wolf Air and Dive Shop) [2001] SAWCT 99 at [56].
An annual review saw an increase of the figure to $235.05 on 29 November 2001. The respondent filed a notice of dispute, contending that the review failed to recognise applicable award rates. This was referred for judicial determination on 15 January 2002 but was never listed for hearing.
A second s 38 review was conducted by WorkCover on or about 1 November 2001 (‘the November 2001 determination’). The determination was that the respondent’s weekly payments would be reduced to nil on the basis that he no longer had an incapacity to work. The respondent filed a notice of dispute on 21 November 2001, which was referred for judicial determination on 14 December 2001 but was never listed for hearing.
The respondent’s weekly payments resumed when the dispute in relation to the discontinuance came before Conciliation Arbitration Officer Kohn (‘CAO Kohn’) and CAO Kohn directed that the determination be suspended until further order pursuant to s 36(4)(b) of the WRC Act.
On 23 January 2002, WorkCover served a notice on the respondent. The notice indicated that another s 38 review would be conducted and required the respondent to attend an orthopaedic surgeon, Dr Peter Fry, for an examination on 15February 2002. This occurred while the Tribunal was still considering the dispute over the November 2001 determination. A dispute ensued between WorkCover and the respondent because the respondent refused to be examined by Dr Fry.
On the following day, the respondent telephoned his case manager, Mr Wall, about the appointment. There is reference to that conversation in a letter from Mr Wall to the respondent dated the same day. In that letter, Mr Wall noted that the respondent had not provided an adequate reason for his inability to attend at the appointment, other than to suggest it might have conflicted with a court appearance. Mr Wall requested that the respondent provide a precise reason with supporting evidence regarding his unavailability to attend. The respondent was reminded that attending the appointment was a ‘priority’. If the respondent were to not attend, without providing alternative availability or an adequate explanation, Mr Wall indicated that this would result in a suspension of the respondent’s weekly payments under s 38(6) of the WRC Act. The payments would only resume once the respondent attended the appointment or upon a successful appeal.
On 30 January 2002, the respondent telephoned Dr Fry’s rooms and spoke with Dr Fry’s secretary, Ms Dansie, stating that he would not attend his appointment on 15 February 2002.
On 7 February 2002, Mr Wall again wrote to the respondent. In that letter, Mr Wall outlined the respondent’s contact with him in January 2002, where the respondent repeatedly advised that he did not want to see Dr Fry and would not be attending the appointment. Mr Wall noted that the respondent had made defamatory remarks about Dr Fry. Mr Wall also wrote that ‘as a result of [the respondent’s] actions Dr Fry has indicated he will not see [the respondent] … and has cancelled the appointment’. The letter made reference to a breach of the obligation of mutuality pursuant to ss 36(1)(f), (1a)(a) and (1a)(g) of the WRC Act. The respondent was given seven days to provide a written explanation as to why his weekly payments should not be suspended pursuant to s 38(5) and/or why they should not be discontinued pursuant to ss 36(1)(f), (1a)(a) and (1a)(g).
Consequently, the respondent filed a notice of dispute dated 14 February 2002, denying any breach of mutuality.
On 15 February 2002, the respondent failed to attend the scheduled examination with Dr Fry.
On 18 February 2002, Mr Wall wrote to the respondent agreeing to grant him an extension of time in which to provide an explanation as to why payment should not be suspended. The respondent was given until 4.00 pm on 20 February 2020 to provide the explanation.
The respondent did not provide an explanation by the extended date. So, on 20 February 2020, Mr Wall again wrote to the respondent. The letter began by summarising Mr Wall’s prior correspondence with the respondent. It referred to the extension of time granted and the lack of a reply from the respondent. Mr Wall then indicated that the respondent’s weekly payments would be suspended, from close of business on 20 February 2002, pursuant to s 38(6) of the WRC Act. That section provided that WorkCover could suspend weekly payments if a worker failed to comply with a requirement to submit to a medical examination under s 38(5) of the WRC Act. The suspension was expressed as continuing until the respondent attended a medical appointment as organised by WorkCover.
The respondent filed two notices of dispute, dated 21 and 23 February 2002 respectively, concerning the suspension.[3]
[3] These notices of dispute became matter 927 of 2002.
WorkCover made a determination to discontinue the weekly payments on 27 February 2002 (‘the February 2002 determination’). The letter, from Mr Wall, advised that the respondent had breached the obligation of mutuality and set out the facts on which the determination had been made, which included his refusal to see Dr Fry or provide alternative available dates and the absence of an explanation by the required date. It said that:
Under Sections 36(1)(f) and 36(1A)(g) of the Workers Rehabilitation and Compensation Act 1986, as amended (the Act), Royal & SunAlliance Workers Compensation (SA) Ltd as claims agent acting on behalf of the WorkCover Corporation may discontinue weekly payments of income maintenance, where it is satisfied that you have breached the obligation of mutuality.
On the basis of the above information, Royal & SunAlliance Workers Compensation (SA) Ltd is satisfied that you have breached mutuality. Therefore, we have determined under Sections 36(1)(f) and 36(1A)(g) of the Act, that your income maintenance payments will be discontinued. Section 36(3a) of the Act requires that you be given 21 days notice before the discontinuance takes effect. This letter serves as notice that your income maintenance payments will be discontinued from 21 days after you receive this letter.
An extract of Sections 36(1)(f) and 36(1A)(g) of the Act are attached for your information.
…
Section 36(1)(f) of WorkCover Act
36.(1) Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless -
(f) the worker breaches the obligation of mutuality; or
Section 36(1A) of the WorkCover Act
(1A) A worker breaches the obligation of mutuality if -
(a)the Corporation has, by written notice to the worker, required the worker to submit to an examination by a recognised medical expert nominated by the Corporation and the worker fails to comply with the requirement within the time allowed in the notice or obstructs the examination; or
(b)the Corporation, has by written notice to the worker, required the worker to submit to the Corporation a certificate from a recognised medical expert certifying that the compensable disability continues, and the worker fails to comply with the requirement within the time allowed in the notice; or
(c)the worker refuses or fails to submit to proper medical treatment for the worker’s condition; or
(d)the worker refuses or fails to participate in a rehabilitation program or participates in a way that frustrates the objectives of the program; or
(e)the worker fails to comply with an obligation under a rehabilitation and return to work plan under this Act; or
(f)the worker refuses or fails -
(i) to undertake work that the worker has been offered and is capable of performing; or
(ii) to take reasonable steps to find or obtain suitable employment, or having obtained suitable employment, unreasonably discontinues the employment; or
(g)the worker does anything else that is, apart from this subsection, recognised as a breach of the obligation of mutuality.
No notice of dispute was ever filed in relation to the February 2002 determination, however, at the trial the parties consented to an expansion of issues to capture this determination.[4]
[4] Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14 at [33].
Subsequent to the initial injury in 1990, the respondent has made numerous claims for secondary physical injuries as well as stress-related claims. Of relevance to the present appeal are 21 physical serials and 15 stress-related claims.
The physical serials are in respect of the respondent’s left toes, left and right ankles, lower back, left and right hips, left lower ribs, right elbow, teeth, disfigurement to both knees and lack of sexual capacity. They are said to have been suffered over the period between 1990 and 2001. Lieschke DP observed that the ‘claims had elements of duplication’.[5]
[5] Moore-McQuillan v Return to Work SA [2018] SAET 139 at [99].
The respondent asserted that he suffered depression, anxiety and post-traumatic stress as a result of interactions with, and the conduct of, various officers of or the solicitor for either WorkCover or its claims agent.
As observed by the trial Judge, Olsson AJ, the physical serials appear to have been rejected by WorkCover on 18 July 1997, due to insufficient provision of supporting documents. The rejections were confirmed in a re‑determination on 30 January 1998, following a medical examination by Dr Fry. The stress-related claims were rejected on 18 July 1997, 28 May 2004 and 10 March 2005.
The trial
The trial before Olsson AJ was in respect of 40 notices of dispute, relating to multiple files, heard over a period of eight years between late 2003 to late 2011 and comprised some 61 sitting days. Olsson AJ delivered judgment on 2 April 2012,[6] which he said was to be read as an extension of, and in conjunction with, reasons he had published in 2004.[7]
[6] Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14.
[7] Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd [2004] SAWCT 72.
Other than those concerning sexual incapacity and teeth, his Honour did not conclusively reject any of the physical serials.[8]
[8] Annexure A reproduces, in part, Olsson AJ’s table, to which appellant counsel refers, that sets out the physical serials and the related matter number: Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14 at [297].
No further hearings were held and, accordingly, no further medical evidence was received by Olsson AJ. His Honour’s reasons on formal orders and costs followed on 26 July 2012.[9]
[9] Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 27.
Olsson AJ made the following formal orders:[10]
[10] Ibid at [19].
(1)That the s 38 determination by the respondent dated 1 November 2001 be set aside;
(2)That the determination by the respondent dated 20 February 2002 suspending weekly payments pursuant to the provisions of s 38(6) of the Act be affirmed;
(3)That the determination by the respondent dated 27 February 2002 related to a discontinuance of weekly payments for breach of mutuality be affirmed;
(4)That the several claims referred to in Files Nos 2841-2843, 2845, 2847-2848, 2851-2853, 2860-2862 and 2864 of 2004 and 2238 of 2005 be dismissed and the relevant determinations by the respondent be affirmed;
(5)That the determinations by the respondent related to Files 5488 and 5493 of 1998 be set aside and that there be substituted for them determinations that the applicant’s claims be accepted for medical expenses properly incurred;
(6)That the determination by the respondent in respect of File 5496 of 1998 be affirmed;
(7)That the determination of the respondent in respect of Files 5497 and 5498 of 1998 be set aside and that the issue of a s 43 assessment in respect of the relevant scarring and disfigurement be adjourned for further consideration;
(8)That the determination of the respondent in respect of File 5494 of 1998 be affirmed;
(9)That the determinations of the respondent in respect of Files 5490 and 5499 – 5510 of 1998 and 6484 of 2001 be affirmed, given the state of evidence at this time.
(10)That the respondent pay to the applicant 60% of the applicant’s costs and disbursements in relation to these proceedings as properly allowable on taxation, to be taxed; and
(11)That the applicant pay to the respondent 40% of its costs of these proceedings to be taxed and the full amount of fees reasonably incurred by it in relation to the preparation for and the giving of evidence by the expert witness Henry Kutek.
The respondent’s notice of appeal against Olsson AJ’s orders was filed in 2012 but the Full Bench did not hear the appeal until 2017, owing to the respondent first seeking to set aside decisions of the Tribunal made in 2001. In 2012 and 2013, that Tribunal refused the application.[11] Following this, the appeal was still not heard because WorkCover commenced proceedings in this Court seeking an order that the respondent be declared a vexatious litigant. Blue J declared the respondent a vexatious litigant, staying certain aspects of the appeal to the Full Bench. His Honour limited the appeal to the following orders made by Olsson AJ:[12]
·orders 2, 3, 5, 6, 8;
·order 9 (except files 5489 and 5490 of 1998);
·orders 10 and 11; and
·order 4 in respect of files 2842, 2845, 2846, 2848, 2851, 2852, 2862 and 2864 of 2004, and 2238 of 2005.
[11] Moore-McQuillan v WorkCover Corporation/Employers Mutual Ltd (Wolf Air & Dive Shop) [2012] SAWCT 36; Moore-McQuillan v WorkCover Corporation/Employers Mutual Ltd (Wolf Air & Dive Shop) [2012] SAWCT 44; Moore-McQuillan v WorkCover Corporation/Employers Mutual Ltd (Wolf Air and Dive Shop) [2013] SAWCT 41.
[12] WorkCover Corporation of South Australia v Moore-McQuillan [2017] SASC 78 at [9]; WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191 at [1036].
The Full Bench decision
On appeal, the Full Bench unanimously dismissed the respondent’s appeal against the suspension of weekly payments as a consequence of the determination made on 20 February 2002. By majority (Hannon DPJ dissenting), the Full Bench allowed the appeal against the discontinuance of weekly payments. The Full Bench unanimously allowed the respondent’s appeal against the rejection of claims for physical injuries and the appeal against the rejection of the claims for the stress related injuries. The Full Bench made no consequential orders upon the allowing of the appeal.
The current appeal
On appeal to this Court, the appellant advances three grounds of appeal. In summary those grounds allege:
·That the majority of the Full Bench, in allowing the appeal against the discontinuance of weekly payments, erred in finding error on the basis that the trial Judge failed to provide adequate reasons in support of the decision.
·That the Full Bench erred in allowing the respondent’s appeal against the rejection of the claims for physical injuries in finding:
1. That the issues in dispute with regard to the physical serials did not involve questions of entitlement to compensation;
2. That the respondent was not afforded procedural fairness; and
3. That the explicit basis of the trial before the Judge was a consideration of the compensability and permanency of the physical injuries as a preliminary step to assessing the level of permanent impairment.
·That the Full Bench erred in allowing the respondent’s appeal against the rejection of the stress claims for stress injuries on the basis that the Judge had erred in law by considering the stress claims individually as distinct from a broader or holistic claim arising subsequent to the respondent’s termination of his employment in relation to the whole breadth of his dealings with the compensating Authority, by misconstruing the Judge’s reasons both as to the construction of s 30(3) of the WRC Act and by interfering with unchallenged findings of fact made by the trial Judge.
We turn now to discuss each of the grounds of appeal.
Ground (a) – The discontinuance determination
This ground of appeal articulates two errors said to have been made by the Full Bench in allowing the appeal against the discontinuance determination. First, it was said that the Full Bench failed to consider the evidence adduced at trial in respect of the discontinuance issue. Second, it was said that the finding of an error of law, due to the failure of the Judge to give reasons, was wrong.
The appellant argues in the alternative that, based on the factual findings of Olsson AJ, the Full Bench should have reached the same conclusion as the dissenting Judge, Hannon DPJ, that:
·There was an overwhelming inference that the trial Judge considered the respondent’s conduct to be of such an egregious and extended nature that it overwhelmed any mitigating factors, and thus informed the exercise of his discretion on the discontinuance determination.
·It should have been quite obvious to the respondent before and from the time of the trial Judge’s decision that what was needed to restore mutuality was the respondent’s co‑operation with arrangements to attend a medical review.
·In any event, the inadequacy of reasons was not such as to amount to a miscarriage of justice which requires the intervention of this Court to set aside the trial Judge’s decision to affirm the discontinuance determination.
In making that submission, the appellant’s counsel relied on what fell from this Court in Resi Corporation v Munzer.[13] In Resi Corporation, Lovell J (with whom Sulan and Stanley JJ agreed) conveniently summarised the applicable principles when considering the adequacy of judicial reasons:[14]
[71]Of more recent times there have been many decisions on the question of the adequacy of judicial reasons. Many cases turn upon the facts in issue in the particular case. However, a number of general principles relating to the duty to give adequate or proper reasons may be extracted from the cases:
1. “The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[15] While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.[16]
2. A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.[17]
3. A trial judge has a duty to refer to material evidence and make findings about material issues in the case.[18] It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient.[19] A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.[20]
…
[13] [2016] SASCFC 15.
[14] Resi Corporation v Munzer [2016] SASCFC 15 at [71].
[15] Keith v Gal [2013] NSWCA 339 at [110].
[16] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40].
[17] Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.
[18] The Waterways Authority v Fitzgibbon [2005] HCA 57.
[19] Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.
[20] Archibald v Byron Shire Council [2003] NSWCA 292.
Lovell J relied by implication on the judgment of the Victorian Court of Appeal in Franklin v Ubaldi Foods Proprietary Limited.[21] In Franklin, the Court (Ashley JA with whom Warren CJ and Nettle JA agreed) said:[22]
[38]… Reasons must be such as reveal – although in a particular case it may be by necessary inference - the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.
[Footnote omitted]
[21] [2005] VSCA 317.
[22] Franklin v Ubaldi Foods Proprietary Limited [2005] VSCA 317 at [38].
Franklin was followed in two subsequent Victorian decisions also referred to by Lovell J, Assad v Eliana Construction & Developing Group Pty Ltd[23] and Transport Accident Commission v Kamel.[24]
[23] [2015] VSCA 53.
[24] [2011] VSCA 110.
In these authorities, the Court stated that reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[25]
[25] Transport Accident Commission v Kamel [2011] VSCA 110 at [86].
Those principles are relevant in considering the adequacy of the Judge’s reasons in respect of the discontinuance determination.
Background to the discontinuance determination
An examination of the events which occurred in early 2002 reveals how the two issues of suspension and discontinuance became inextricably entwined very early on. Those events, which are set out at [8]-[17] of this judgment, demonstrate that the issue of suspension and the issue of discontinuance were closely related both in terms of the timing of the relevant events and the conduct which gave rise to the issue of the respective notices.
The narrative thereafter can best be understood by referring to two earlier decisions of Olsson AJ in 2004, to which he himself referred in the opening remarks of his 2012 judgment. It is unsurprising given the complexity of this matter, that in the Judge’s opening remarks in the 2012 judgment he cautioned that his reasons should be read as an extension of, and in conjunction with, his reasons in the earlier decision published on 2 July 2004.[26] In that decision, Olsson AJ first recorded the issues concerning both the determination of suspension of payments and the determination that payments would be discontinued. His Honour noted that although the respondent had filed a notice of dispute in relation to the suspension determination, that he had not done so in relation to the determination to discontinue payments. However, his Honour noted:[27]
[54]It is to be noted that, although the documentation before me does not contain any reference to a notice of dispute in relation to the determination of 27 February 2002, nevertheless, that determination seems to have been treated as one of the matters in dispute at the conciliation conference. It is certainly specifically referred to in the written referral and direction of CAO Palmer.
[26] Moore-McQuillan v WorkCover /Vero (Wolf Air and Dive Shop) (JD1/680 of 2003) [2004] SAWCT 72.
[27] Ibid at [54].
The trial, which involved a multiplicity of issues, meandered on for some years. During the cross-examination of Mr Wall on 5 October 2004, a significant exchange occurred between the trial Judge and the respondent. The exchange is significant because it demonstrates that, by then, in the minds of both parties, the issue of the discontinuance determination was inextricably entwined with the issue of the suspension determination.
In the course of that exchange, the Judge asked the witness (Mr Wall) to withdraw and then spent some time explaining to the respondent the difference between the two determinations and pointed out, by reference to the letter from WorkCover dated 27 February 2002 to the respondent, what the compensating Authority was alleging amounted to a breach of mutuality. Two days later, on 7 October 2004, the topic arose again in the context of the respondent giving evidence‑in‑chief. In an exchange with the trial Judge, the respondent accepted that he had not put in a notice of dispute in relation to the second letter on 27 February 2002 because he thought it was part and parcel of the same dispute in respect of the earlier letters. The trial Judge at the conclusion of that explanation indicated that he understood the point that the respondent was making.
Several more years passed, again with intermittent hearings punctuated by lengthy adjournments.
We pause to observe at this point that the transcript of those hearings, which took place between 2004 and the conclusion of evidence years later, is replete at many points with abusive language and behaviour on the part of the respondent, to the exasperation of the trial Judge.
Finally, in December 2010, WorkCover filed written submissions on all aspects of the issues before the Judge. Importantly, WorkCover made detailed submissions on the topics of the determination to suspend payments and the determination to cease payments, due to a breach of mutuality. After citing the detailed allegations in the letter of determination issued by Mr Wall to the respondent on 27 February 2002, WorkCover’s counsel then invited the trial Judge to consider the breach of mutuality and announced his instructions to consent to an expansion of issues to include consideration of the determination of 27 February 2002.
On 18 July 2011, the respondent also filed written submissions about all aspects of the matters before the trial Judge.
In those submissions, the respondent went into detail about the appointment which had been made for him to see Dr Fry in February 2002 and why he had failed to attend that appointment. He repeated what he had said in evidence, that he had not been rude and abusive to Dr Fry, and in fact counter suggested that it might indeed have been Mr Wall from the compensating Authority who had caused fear in Dr Fry’s office by his own ‘slanderous viewpoint when he rang them’. The respondent made detailed submissions over many paragraphs[28] before addressing the topic under the headings ‘The Determination to Suspend Payments - Section 38(6)’ and ‘The Determination to Cease Payments for Breach of Mutuality’. The respondent then reiterated that he considered both issues to be one and the same issue, and requested that if the second matter (the discontinuance determination) was not before the trial Judge, that he would lodge another notice of dispute ‘to cover the 27-2-02’ and the matter could be reheard at another time. In further written submissions filed on 16 September 2011, WorkCover noted that by his written submissions of 18 July 2011, the respondent appeared to have consented to an expansion of the issues to include the determination for breach of mutuality made on 27 February 2002. On 4 October 2011, the respondent filed further written submissions in a document titled ‘Applicant’s submissions errors re respondent’s reply’. Those submissions canvassed a number of generic matters but did not specifically refer to the suspension or discontinuance determinations.
[28] Respondent’s written submissions at [318]-[385].
On 14 October 2011, the matter came on again for oral submissions before Olsson AJ. Procedural directions made by the trial Judge on 27 October 2011 reveals why that hearing was aborted and why the trial Judge found it necessary to call for any final submissions to be made in writing. In short, the respondent’s tirade of abusive and foul language made it impossible for the hearing to continue.
In light of what occurred during the hearing on 14 October 2011, WorkCover filed its final submissions in writing on 21 October 2011. In the abovementioned procedural directions, the trial Judge gave the respondent until 25 November 2011 to make any further supplementary submissions in writing. The direction concluded with the Judge stating that after that date he would reserve and consider his decision on all the issues currently before him in the proceeding.
On 2 April 2012, the trial Judge delivered the reasons which were the subject of appeal.
At the conclusion of the reasons, the Judge invited written submissions from both parties as to the formal orders which should be made to give effect to the reasons. He requested those submissions to be made within 21 days from 2 April 2012.
On 23 April 2012, WorkCover made submissions in respect of the final orders, and requested that the trial Judge, having made all relevant findings of fact to found confirmation of the determination to discontinue payments, make an order confirming the determination of 27 February 2002. On appeal, the respondent maintains that he did not receive these submissions. In the submissions, WorkCover noted that it appeared that by oversight the determination was not mentioned in the trial Judge’s reasons of 2 April 2012. No further submissions were received from the respondent in relation to that issue, although it is apparent from the material filed upon the hearing of this appeal, in the form of the affidavit of Ms Samara Harley, that there was correspondence between the Tribunal and the respondent during the period between May and July 2012. On 26 July 2012, the trial Judge made formal orders consequent on the reasons published on 2 April 2012.
The trial Judge’s reasons
It is apparent from the Judge’s reasons that his Honour went well beyond what was necessary, both in terms of factual findings and inferences to be drawn from the factual findings, to support a suspension, but also included facts and circumstances underlying the respondent’s refusal to attend Dr Fry’s appointment, which related principally to the discontinuance determination. They demonstrate that the reasoning which was necessary to support both the determination to suspend and the determination to discontinue payments was also closely connected.
The Judge commenced by making credit findings about the respondent’s evidence about the refusal to attend Dr Fry. He rejected the respondent’s account about how he came to refuse to attend the appointment and accepted the accuracy of Mr Wall’s account of the events which led to both the notice of suspension of payments and the notice to discontinue payments.
At [33] of the reasons, the Judge expressly acknowledged that WorkCover had expressed its consent to an expansion of the issues before him to include consideration of the determination to discontinue payments, dated 27 February 2002, and announced that he was prepared to adopt that course pursuant to s 88DA of the WRC Act.
In light of what had transpired before, both during the trial and given the implicit consent of the respondent in his written submissions of July 2011, it is unsurprising that the Judge took that course.
In relation to the respondent’s evidence about the circumstances in which he came to refuse to attend the appointment with Dr Fry, the Judge made damning findings as to the veracity and credibility of the respondent generally, but specifically in relation to his explanations as to why he had failed to attend Dr Fry’s appointment. He dealt in detail with the abusive and threatening conduct by the respondent to Dr Fry and his staff, Ms Dansie. These were the very matters relied on by Mr Wall in his letter to the respondent dated 27 February 2002, which went to the heart of the breach of mutuality, being the refusal of the respondent to advise why he was unavailable on the appointed date, his stated intention that he would cause Dr Fry to refuse to see him and subsequently his abusive and threatening conduct to Dr Fry which ultimately led to the cancellation of the appointment. The trial Judge ultimately concluded:[29]
[780]Given my conclusions as to the relevant factual history, the response to the second issue must necessarily be that the applicant clearly failed to comply with the requirement of the respondent that he submit to an examination by Dr Fry, a recognised medical expert nominated by the latter, on 15 February 2002 and also ensured, by his deliberate conduct, that such an examination would not subsequently take place.
[781]The inevitable finding must be that the respondent was therefore lawfully entitled to suspend weekly payments, as it did, as of the close of business on 20 February 2002. I therefore uphold the respondent’s relevant determination to suspend weekly payments.
[782]In so doing it must be said that the applicant has been entirely the sole author of his own misfortune. By persisting in his obstinate refusal to acknowledge his initial refusal and conduct towards Ms Dansie, he has effectively denied himself access to compensation over a long period.
[783]It has always been and is still open to him to cure his breach by a bona fide offer to submit, and by making an actual cooperative submission, to a relevant medical examination by a nominee of the respondent. He has failed to do so.
[29] Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14 at [780]-[783].
With respect to the majority of the Full Bench (Lieschke DP and Farrell DPJ) who interpreted the Judge’s observation at [783] to be inconsistent with anything other than the issue of suspension, we respectfully agree with the observations of Hannon DPJ, who expressed the contrary opinion. Like Hannon DPJ, we consider the statements in [783] are consistent only with a reference to the breach of mutuality.
It is plain from the analysis of the entire transcript of the trial evidence, the written submissions made at the conclusion of the evidence, and the Judge’s own observations at [33] of the judgment, that he always intended to deal with the issue of the discontinuance determination.
We would add that, in light of the written submissions filed by the respondent in July 2011 (to which we have referred to earlier in these reasons) directly in response to WorkCover’s submissions which had been made the previous December, it is difficult to understand how the respondent could fail to have been on notice of WorkCover’s position, which was that it was seeking an order that the Judge uphold the discontinuance determination. It is also difficult to see what the respondent could or would have added to the already fulsome submissions he made in July 2011 about his explanation of the events surrounding the appointment with Dr Fry.
In our view, the Full Bench majority failed to appreciate that in those four paragraphs, [780] to [783], the Judge had in effect concluded that there had been a breach of mutuality. Furthermore, nothing further was necessary as it was clear to all parties, both from the original letter of 27 February 2002 and the submissions made by the appellant, what was relied on to constitute the breach of mutuality. All that the Judge omitted to do was to specifically mention that WorkCover was lawfully entitled to discontinue payments as well as to suspend payments.
In our view, the majority also erred in placing weight on the respondent’s submission during the appeal that, after the 2012 decision, he had approached an officer of WorkCover and offered to be medically examined but got no response.
As Hannon DPJ implicitly noted, the only relevance of that was that in spite of the failure to expressly uphold the discontinuance determination, the respondent was plainly aware why the determination to discontinue had been affirmed.
There is another matter which is relevant to our conclusion. The trial Judge delivered extensive reasons against the background of a trial which had gone on for the best part of a decade, and in circumstances where the persistent vexatious and abusive conduct of the respondent had caused lengthy adjournments, which led the Judge to require written submissions rather than oral submissions. Given the sheer volume and complexity of the material he was dealing with, the failure to specifically mention the second determination pales into insignificance. This is particularly in light of the fact that, on proper analysis of the judgment, it can be plainly inferred that the Judge did determine the breach of mutuality and his reasons for so doing are adequate to convey by necessary inference that he did so.
If we are wrong about that, we would nevertheless find that the factual findings which the Judge did make inevitably would have led to the making of an order upholding the discontinuance determination. Thus, the failure of the Judge to mention that in the reasons has not resulted in any miscarriage of justice.
For these reasons, we consider that the appellant has made out ground (a).
Ground (b)– The physical injuries claims
The second ground of appeal challenges the Full Bench’s characterisation of the proceedings before Olsson AJ as ‘a preliminary step to assessing the level of permanent impairment’ in a ‘phased approach’ to its consideration of the compensability and permanency of the respondent’s claimed disabilities.
The appellant complains that the Full Bench erred in finding that the issues in dispute before the Judge did not involve a question of entitlement to compensation and that the respondent was denied the opportunity of calling evidence and therefore denied procedural fairness.
The appellant submitted that the Full Bench failed to take into account the way in which the trial had been conducted, in particular, the Judge’s repeated rulings that the evidence was closed, the fact that the respondent was not seeking any s 43 entitlement and that he had failed to lead any evidence of medical and like expenses incurred at the trial. The finding that the respondent was never put on notice and was not aware that he needed to call evidence, in the appellant’s submission, was contrary to the overwhelming evidence and the history of this protracted litigation.
To properly consider the appellant’s complaints, it is necessary again to look closely at the way in which the proceedings unfolded.
Again, in the context of considering this ground of appeal, it is relevant to note that the trial in respect of these issues took place over some 61 sitting days, and approximately eight years between 2003 and 2011.
We have previously adverted to the context in which there were many adjournments, cancelled hearings and, in the end, submissions ordered to be made in writing by order of the Judge on 27 October 2011 in consequence of an aborted hearing on 14 October 2011, which resulted in criminal proceedings being brought against the respondent.
However, although the period during which these various and many claims were litigated was very lengthy, the period during which the respondent was said to have been denied procedural fairness focused on the events between October 2011 and 23 April 2012. In considering this ground of appeal it has been necessary to revisit the events which occurred between October 2011 and the date of the final orders in July 2012.
In the Judge’s reasons on 2 April 2012, he indicated that he would be prepared to grant an adjournment to enable the respondent to bring further medical evidence in respect of a number of the physical serial claims.[30] The history of the proceedings up until that point is critical to an understanding of the context in which the Judge made those comments. They are to be contrasted with earlier orders made by him and the statements to the contrary effect.
[30] Moore McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14 at [348], [789].
In 2004, the respondent acknowledged that he was not seeking an assessment pursuant to s 43 of the WRC Act. Nevertheless, as the various extracts from the transcript show, the situation was not always clear.
This is hardly surprising in view of the lengthy adjournments, the repeated provocations of the respondent which caused hearings to be cancelled, aborted or adjourned, and from time to time, long rambling, non-responsive answers given by the respondent during the course of the proceedings.
The Judge made it clear as early as February 2004 that it was up to the respondent to decide what evidence he wished to call as part of his case and it was his responsibility to call it during the course of the proceedings.
Comments to that effect can be seen in the extracted transcript references annexed to this judgment on the following dates: 5 February 2004, 6 February 2004, 3 March 2004 and 6 October 2004.[31]
[31] Annexure B to these reasons.
It can be seen from those extracts that the Judge repeatedly advised the respondent to determine what evidence he wished to put before him by way of appropriate medical evidence to support his many and various claims and that he would not permit that to be done until WorkCover’s evidence had been concluded.
On 14 September 2010, a lengthy exchange occurred between the trial Judge and the respondent during which the trial Judge explained to the respondent that he already had the opportunity of putting the material he sought to put into evidence and that at that stage of the trial he was limited to any evidence in rebuttal.
On the same day, the Judge again declared that the evidentiary phase of the hearing had concluded and stated ‘Mr Moore-McQuillan, I am not going to adjourn these proceedings again. If you have no more material to tender, I declare the evidentiary phase of this hearing’, to which the respondent interrupted as follows:[32]
MR MOORE-McQUILLAN: Well, I have got material ---
HIS HONOUR: --- concluded.
MR MOORE-McQUILLAN: Excuse me – excuse me, I’ve still got stuff to do. If you want to – if you just want to shut this down, feel free. Why don’t you just turn around – you’ve never, ever been on my side ever since you’ve been – when you were down the Supreme Court.
HIS HONOUR: It is not my role to be on anyone’s side, Mr Moore-McQuillan.
MR MOORE-McQUILLAN: No, but you’ve never ever, ever been on my – you’ve never ever come down ---
HIS HONOUR: Mr Moore-McQuillan, I am not ---
[32] Transcript of proceedings, Moore-McQuillan v Workcover – Employers Mutual Ltd (Wolf Air and Dive Shop), (Workers Compensation Tribunal, No. 680/03, Olsson AJ, 14 September 2010) 6828.
A further testy exchange took place between the trial Judge and the respondent on the same date and the trial Judge again restated that he was not going to allow the respondent to reopen any examination and that the trial had reached the end of the evidence phase:[33]
[33] Ibid at 6830-6832.
HIS HONOUR: Mr Moore-McQuillan, what you are talking about is evidence by way of examination-in-chief, cross-examination and re-examination. That’s all finished.
MR MOORE-McQUILLAN: No.
HIS HONOUR: You can’t come back and have another go.
MR MOORE-McQUILLAN: Well, I’m telling – well, it’s not a matter of having another go. Excuse me, but the problem with this and I think this is – and the problem that I do face ---
HIS HONOUR: You had every opportunity to ---
MR MOORE-McQUILLAN: No, I have not had every opportunity ---
HIS HONOUR: Mr Moore-McQuillan, you had every opportunity to deal with that ---
MR MOORE-McQUILLAN: You have never given me every opportunity ---
HIS HONOUR: --- by way of re-examination.
MR MOORE-McQUILLAN: Excuse me ---
HIS HONOUR: That is not rebuttal evidence.
MR MOORE-McQUILLAN: I have never had the opportunity through re-examination.
HIS HONOUR: I’m not going to argue with you.
MR MOORE-McQUILLAN: The problem we’ve got – the problem we’ve got – no excuse me, your Honour, but the problem we’ve got is that if you have a look through it, I gave my evidence, he gave his, we went on to the next subject. I gave his, he gave mine, that was the end of it. We went on the next bit and we did it. We never got down to the re-examination part of it, and if you also have a good look at it, all the way through this case ---
HIS HONOUR: You gave ---
MR MOORE-McQUILLAN: --- I have had the problem of trying to get documentation.
HIS HONOUR: You gave evidence by way of re-examination, Mr Moore-McQuillan ---
MR MOORE-McQUILLAN: No, I didn’t.
HIS HONOUR: --- and that’s the end of it.
MR MOORE-McQUILLAN: No, I didn’t.
HIS HONOUR: I’m not going to argue with you. You did.
MR BELL:I have actually read that evidence in the last few days – the re-examination.
HIS HONOUR: Yes. Of course you did. Mr Moore-McQuillan, this is just wasting time. I am ---
MR MOORE-McQUILLAN: No, it’s not and – wait a minute – and the depression – when you kept on asking me about the depression and you kept on saying, “What I would be more interested in knowing – what do you – what is the ongoing effects of your stress and the injuries, and the depression and everything else?” And I can tell you now that after the shit I’ve been through now and the treatment that I have got so far, which has gone a long way – treated – now to put me back on the straight and narrow, which youse couldn’t have cared less about, because you’re quite happy to keep me up there (indistinct) stressed – because I couldn’t sleep ---
HIS HONOUR: Mr Moore-McQuillan, this is nothing to do with rebuttal evidence.
MR MOORE-McQUILLAN: Yes, it is.
HIS HONOUR: It is not and I rule accordingly and that’s the end of it.
MR MOORE-McQUILLAN: So it boils down to that all the – because Mr Downs is now dead and dying – or he’s not here ---
HIS HONOUR: Mr Moore-McQuillan, you’re wasting your time.
MR MOORE-McQUILLAN: No, no. Because he’s here, you just want to shut this down, don’t you?
HIS HONOUR: Mr Moore-McQuillan, I am not going to allow you to reopen your re-examination.
MR MOORE-McQUILLAN: I only want to do a couple of things. They can cross-examine me on it and that’s the end of it, your Honour.
HIS HONOUR: That is not ---
MR MOORE-McQUILLAN: It wouldn’t even have taken 15 minutes, but so far you’re making sure it’s not ---
HIS HONOUR: Mr Moore-McQuillan, that is enough. I’ve ruled that that’s the end of the evidence phase and I am not going to hear you any more, because you are simply seeking to reopen your re-examination. Mr Bell, how long is it required to get ---
On 14 October 2011, the Judge again declared that the evidence had closed and that additional evidence could only go in by consent at that stage. As previously mentioned, the hearing was then aborted.
The proceedings on 14 October 2011 concluded with the Judge advising that WorkCover had until 21 October 2011 to make supplementary submissions in writing and that after those submissions were received, he would determine what would happen from there.
In its submissions dated 21 October 2011, WorkCover submitted:
I note at this point that the evidence is closed. The proceedings have run for many years. Every opportunity has been provided for the parties to present their cases. The proceedings have now reached the final stage; submissions. The proceedings must come to an end. Submissions are not a time for either party to adduce evidence to “plug gaps” in their respective cases. Parties are now bound by the evidence adduced, exhibits and case law.
On 27 October 2011, the Judge issued a number of procedural directions, as a direct consequence of what had taken place on 14 October 2011. At this point, it is necessary to reproduce in full those directions dated 27 October 2011:
1.At the conclusion of the evidentiary phase of the present hearing, I directed that, in lieu of the usual full oral addresses, the parties were to present written submissions.
2.I did so for several reasons, namely:
(1) The evidence was of massive proportions in quantity;
(2) There was a real need to carefully identify and address the core factual issues;
(3) The applicant was a litigant in person and there would have been obvious difficulties in him preparing and presenting a logical and connected oral address; and
(4) His conduct during the evidentiary phase of the hearing suggested that oral presentations in a proper and orderly fashion would be extremely difficult to achieve.
3.However, I intimated to the parties that I would afford each of them an opportunity to speak briefly to the written material for the purpose of highlighting any key aspects to which they would seek to particularly invite my attention.
4.Written submissions were eventually filed by each party.
5.The proceedings were then listed before me on Friday, 14 October 2011 for the purpose of hearing Dr Salu’s oral submissions.
6.What occurred on that occasion is recorded in the transcript bearing that date.
7.Suffice to say that the applicant’s conduct at the time was such that any semblance of a proper and orderly conduct of the proceedings became impossible.
8.As the transcript reveals, the applicant:
(1) having tendered certain documentation by consent, then sought to pre-empt Dr Salu’s supplementary oral address by attempting to raise other evidentiary issues and by launching into what were simply matters of argument,
(2) refused to accept my rulings and embarked on a tirade of abuse and foul language directed to both Dr Salu and myself. He would not cease doing so, to the point that I adjourned for a short time in an attempt to restore some semblance of calm and order,
(3) resumed his tirade of abuse in even more objectionable terms on my resuming the hearing.
9.What the transcript does not reveal was that he was constantly shouting in a most aggressive and abusive manner to the point that, as time went by, it was totally impossible to conduct any semblance of a connected dialogue with anyone or even to gather one’s thoughts in a calm manner.
10.It being apparent that it was not going to be possible for Dr Salu to embark upon his oral supplementary submissions, he sought leave to present his submissions in writing.
11.In the circumstances I discontinued the hearing, giving leave to Dr Salu to present his supplementary written submissions by lodging them with the Tribunal.
12.This was particularly so as the applicant had sent an additional written memorandum to the Tribunal on 14 October 2011 raising a variety of the matters concerning the respondent’s primary written submissions.
13.Dr Salu’s supplementary submissions have now come to hand.
14.It is quite clear that, by reason of the applicant’s conduct, it has become impractical to continue any hearing based on further supplementary oral submissions by him. Neither Dr Salu nor I can reasonably be expected to endure his constant abuse and foul language, to say nothing of his total disregard of rulings or directions given by me.
15.I therefore direct that, if the applicant desires to make any further supplementary submissions in this matter, he must do so in writing and not orally. I will allow him until the close of business on 25 November 2011 to avail himself of that opportunity if he so desires.
16.As of that time I will reserve and proceed to consider my decision on the issues currently before me in these proceedings.
Although the respondent never replied to WorkCover’s submissions of 21 October 2011, the Judge’s procedural directions issued on 27 October 2011 produced an application from the respondent that the Judge disqualify himself for bias. That application was filed by the respondent on 9 November 2011. The application was opposed by WorkCover in written submissions made on 24 November 2011.
On 13 January 2012, the trial Judge made an order refusing to disqualify himself.
Nothing further was heard from the respondent and thereafter on 2 April 2012 the Judge delivered his reasons.
The events after 2 April 2012 have been referred to earlier in this judgment.[34] For present purposes, it is simply necessary to note that WorkCover in its written submissions of 23 April 2012 sought final orders. With respect to the physical serials, WorkCover submitted in particular:
[34] See [23], [25]-[27], [51].
Other Serials - proposed adjournment
The Respondent submits that adjournment for the purpose of eliciting further evidence as proposed is not open. The proposal to hear further evidence does not accord with the progress to finality of the hearing. His Honour’s rulings as to the fact that the evidence was closed (see for example transcript 14 September 2010 at 6813 line 23, 6815 line 45, 6816 line 21, 6816 line 44, 6819 line 35 and following, 6820 line 41 (ruling as to evidence closed, see also 6821 line 7), 6827, 6828 line 27; evidentiary phase of trial concluded; 6830 line 4 and following, 14 October 2011 page 104 line 47 and following) and the fact that final submissions have been made on the evidence as it stands.
Every opportunity has been provided to the Applicant to call such evidence as he wished to place before the Tribunal. The Respondent has relied upon the state of the evidence in making its forensic decisions as to whether further evidence should or should not be called.
On this basis the Respondent submits that orders should be made that accord with the evidence as it now stands, and the facts as determined by His Honour.
WorkCover sought dismissal of the various claims in respect of the physical serials which had not already been conceded by it.
Insufficient evidence produced by the respondent
In light of the Judge’s reasons delivered on 2 April 2012, the issue is whether the respondent may have been misled into thinking that he would be permitted to reopen his case.
To put that another way, the question is whether the respondent was put on notice that WorkCover was seeking final orders. Although the period of time between 2 April 2012 and the date of the final orders in July 2012 is important in answering that question, it cannot be overlooked that over the course of the entire trial between 2003 and 2010 the respondent had been repeatedly warned of the need to discharge the onus upon him and of the need to produce evidence to support his various claims.
It is also necessary to consider the effect of the findings made by the Judge in his reasons of 2 April 2012 as to each detailed physical serial.
In that respect, the effect of the Judge’s findings in relation to all of the contested physical serials was that the respondent had not established the necessary causative link between the relevant work injury and the claimed injuries. Indeed, the Judge found himself unable to make any finding that the claimed injuries were in fact sequela from the original injury and he was not able to make any findings based on the evidence at that time as to the nature and extent of any permanent disability.
The Full Bench considered that it was relevant that during closing submissions, when there was an indication that the respondent may subsequently make an application pursuant to s 43 of the WRC Act, that WorkCover did not object. However, the Full Bench did not appear to take into account that by that stage the evidence was closed. The respondent had been repeatedly warned of the necessity to produce the evidence necessary to discharge the onus upon him.
At that time it was not open to the respondent to withdraw any of the claims without leave of the Tribunal by virtue of the Workers Compensation Tribunal Rules 2009 (SA), which then applied. Rule 16 relevantly provided that the respondent could only discontinue or withdraw an application by consent or with permission of the Tribunal.
Moreover, as the WRC Act then stood, there was no power for the Court to grant declaratory relief. The failure therefore to provide evidence sufficient to make a finding as to the nature and extent of any permanent disability was, as the appellant correctly submitted, necessarily fatal to the claims. As the trial Judge pertinently noted as early as April 2004 in an exchange with the respondent, if the full ambit of the claims in respect of the physical serials were not before the Court then, in reality, there was nothing before the Court which required determination.
The reasons of the Judge for rejecting each of the contested physical serials makes it clear that at the close of the evidence in 2011, the respondent had not produced any evidence to establish the necessary causative link between any of the claimed physical serials contested and any work injury.
The actual findings made by the trial Judge in relation to the physical serials
As to the serials 1 and 4 in respect of the claim for impairment and decreased sensation to three toes of the left foot, the trial Judge said:[35]
[323]Despite my findings of credibility in relation to the applicant, I see no reason to question the existence of this disability, which is consistent with the circumstances of the accident and the evidence generally. More definitive medical evidence will, however, be required before any assessment can be made. I reserve leave to the applicant to call such evidence.
[35] Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14 at [323].
As to the six serials numbered 2, 3, 16, 17, 18 and 19, which all involved claims in respect of decreased sensation and impairment in the left and right ankles, the trial Judge said:[36]
[333]The evidence before me at this stage is far from definitive, both as to the circumstances in which the ankle injuries manifested themselves and the nature and extent of any permanent disability. Further evidence will be needed as to both aspects and I reserve liberty to the applicant to adduce it when he seeks a formal assessment. At this stage I am not in a position to make any specific finding.
[36] Ibid at [333].
As to the two serials numbered 6 and 7 relating to the claimed disfigurement of both the left leg and the right knee as a result of operative procedures, the trial Judge said:[37]
[337]There is no doubt that the scarring described is a product of treatment necessitated by the sequelae of the injury sustained by the applicant on 9 September 1990. No actual assessment is sought by the applicant at this stage and I reserve final consideration of it until a request for assessment is made.
[37] Ibid at [337].
As to serials 8 and 9 which involved claims in respect of the lower back and the lumbar spine, the trial Judge concluded:[38]
[348]The evidence at this stage falls far short of definitively establishing the causation of the symptoms complained of or that they are sequelae to the original injury. It is impossible to arrive at a final conclusion on this topic absent further much more detailed evidence. Further consideration of it must be adjourned pending receipt of such evidence.
[38] Ibid at [348].
As to the serials numbered 10, 11, 12 and 13 involving claims in respect of the left and right hips, the trial Judge concluded as follows:[39]
[360]The medical evidence as to this aspect of the claims is non-definitive as to the nature and extent of any permanent disability and are insufficient to enable me to make a positive finding at this point as to whether the problems described are compensable or not.
[39] Ibid at [360].
As to the serial numbered 20 in respect of a claim involving impairment to the right elbow, the trial Judge concluded:[40]
[370]I am prepared to accept that an incident such as that described did occur and was recorded by the doctor at the time. However, I am not prepared to make any definitive finding in relation to it until such time as the doctor gives evidence as to the nature and extent of any permanent disability and how it is linked to the applicant’s original injury.
[40] Ibid at [370].
The trial Judge rejected serial 21, being the claim in respect of the teeth, concluding:[41]
[377]There is simply no acceptable evidence on the basis of which this claim could be allowed. The respondent’s determination as to it will be affirmed.
[41] Ibid at [377].
When these findings are considered in the context of the way in which the trial proceeded between 2003 and 2011, there is nothing to support the Full Bench’s characterisation of the trial before the Judge as a two-step phased approach. If findings as to permanency and compensability had been regarded as a preliminary step, the Judge would have made findings as to permanency of any capacity.
In concluding that the respondent had been denied procedural fairness before the making of the final orders, the Full Bench appears to have overlooked completely that WorkCover’s submissions on 23 April 2012 made it clear that it was seeking final orders in relation to all claims.
Despite entering into correspondence on other matters during the period of time between April and July 2012, the respondent chose not to make any further submissions in response to either the written submissions of WorkCover on 23 April 2012 or to the reasons of the Judge delivered on 2 April 2012.
In determining this ground of appeal, the Full Bench made no reference to the repeated warnings given to the respondent earlier that the evidence had been closed. In concluding that the respondent had been denied procedural fairness, the Full Bench ignored the series of communications between the Judge and the parties, including the orders made on 27 October 2011, and the order made on 13 January 2012 when the trial Judge, after explaining why it was not necessary to recuse himself, said:[42]
[18]Much of the abusive conduct of the applicant on that occasion arose from my refusal to permit him to agitate various contentious evidentiary matters at that stage of the hearing, after the evidentiary cases of the parties had been closed and written submissions by way of address had been presented.
[19]In the circumstances I directed that, in lieu of speaking to the written submissions, supplementary written submissions be presented by the parties, if they so desired.
[42] Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 1 at [18]-[19].
In concluding the order of 13 January 2012, the trial Judge said:[43]
[39]I will allow the applicant a further 21 days from today to make any supplementary submissions in writing in this matter, in lieu of speaking orally to the written submissions already made.
[43] Ibid at [39].
Nothing further was heard from the respondent. On 2 April 2012, the Judge gave both parties an opportunity to make further submission as to the orders he should make in light of his reasons of 2 April 2012.
The affidavit of Samara Jo Harley affirmed on 17 September 2020 and filed on this appeal reveals that the order of the Judge made on 2 April 2012 was posted to the respondent. It also reveals that a copy of WorkCover’s submissions of 23 April 2012 were forwarded by post on that same day. On 8 May 2012, the Judge wrote to the respondent noting that the respondent’s submissions, regarding the formal orders to be made, had not been received by the Tribunal and gave the respondent a further 21 days from that date to make detailed submissions.
On 31 May 2012, WorkCover filed written submissions in relation to costs. Those submissions were posted to the respondent on 6 June 2012.
On 13 June 2012, the respondent replied, stating that he believed that the correct procedure was to wait until his appeal was heard before submissions on costs be made. In response, the Judge wrote another letter on 18 June 2012 stating explicitly:[44]
In response to your communication dated 13 June 2012 (attached), His Honour AUJ Olsson advises that it is his view that, until he finalises the matter by making a formal order to give effect to his findings, which will need to include an order as to costs, there is nothing to appeal against.
His Honour AUJ Olsson will extend the time for your submission as to costs for 14 days from today’s date, after which His Honour will proceed to a consideration of formal orders.
[44] Affidavit of Samara Jo Harley affirmed 17 September 2020, Exhibit SJH 9.
The Full Bench’s conclusion at [172] that the respondent had been denied procedural fairness, as he had never been put on notice by the trial Judge that he may revoke his adjournment order, which accordingly established two significant errors, appears to have completely ignored these communications between the Tribunal and the respondent throughout April, May and June 2012.
By 2 July 2012, we consider that the Judge was entitled to conclude the proceedings by dismissing all the claims that were bound to be rejected in any event by virtue of the factual findings in relation to each physical serial to which we have previously referred.
Self-represented litigants
We would add whilst on this topic that the respondent in this matter was not by any means an unsophisticated, albeit self-represented, litigant. The history of the respondent’s litigation in various courts in this State set out in the 2016 judgment of Blue J,[45] makes it abundantly clear that the respondent has been engaged in litigation for well over 20 years.
[45] WorkCover Corporation (SA) v Moore-McQuillan [2016] SASC 191.
While he was entitled to represent himself, it does not mean he should be afforded any special privileges beyond those which have been acknowledged by various courts.
The duties of a court before which an unrepresented litigant appears are well known. As Hodgson JA (Ipp JA agreeing) observed in Reisner v Bratt:[46]
[4]Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
[46] [2004] NSWCA 22 at [4].
In a more recent case in this State, in the matter of Aldridge v Johnston, Peek J (Hughes J agreeing) said: [47]
[129]… The Courts have long recognised the need to afford assistance to unrepresented litigants to minimise their forensic disadvantages, including by explaining their substantive and procedural rights. The degree of such assistance that needs to be afforded will depend very much on the particular litigant; the mere fact that Aldridge was unrepresented is not enough to amount to unfairness. Impartiality, and the appearance thereof, must be maintained and the interests of the represented party must be balanced against those of the unrepresented party to ensure a fair trial for both parties.
[Footnote omitted]
[47] Aldridge v Johnston [2020] SASCFC 31 at [129].
However, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented.[48] In Malouf v Malouf, Bryson JA added:[49]
[183]Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers, or to retain none. Nor should courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. …
[48] Malouf v Malouf [2006] NSWCA 83 at [94].
[49] Ibid at [183].
A further hearing on 4 November 2020
In response to the respondent’s assertion that he did not receive WorkCover’s written submissions of 23 April 2012, the Court gave permission to both parties to file further material in support of proof, or otherwise, of service upon the respondent of those submissions.
Before turning to the events which gave rise to the further hearing on 4 November 2020, it is helpful to state the relevant rules which applied to proof of service in the worker’s compensation jurisdiction at that time.
Rule 4 of the Workers Compensation Tribunal Rules 2005 (SA) (‘the Rules’) as amended, applied the general principles and practice of the Supreme Court in its civil jurisdiction as in force from time to time in any case not provided for by the Rules or Act. At the relevant time, the Rules did not provide for service. As originally promulgated in 2005, the Rules picked up the 1987 Supreme Court Rules on service.
On that basis, s 118A of the Supreme Court Act 1935 (SA) applied. Section 118A states:
(1)If it is not practicable to serve any process, notice or other document relating to civil or criminal proceedings in the manner otherwise prescribed or contemplated by law, the court may, by order—
(a) provide for service by post; or
(b) make any other provision that may be necessary or desirable for service.
(2)Any process, notice or other document served in accordance with an order under subsection (1) will, despite any other law, be taken to have been duly served.
Accordingly, the Tribunal was permitted to order service by post to the respondent. Section 33(1) of the Acts Interpretation Act 1915 (SA) then applied:
(1)Where any Act passed after the passing of this Act authorises or requires any document to be served by post (whether the expression “serve”, “give”, “deliver” or “send”, or any other expression is used), then, unless the contrary intention appears, the Act will be taken to provide—
(a) that the service is effected by properly addressing, prepaying and posting a letter or packet containing the document; and
(b) that, unless the contrary is proved, service will be taken to have been effected at the time at which the letter or packet would be delivered in the ordinary course of post.
In Fancourt v Mercantile Credits Limited,[50] the High Court of Australia discussed the Queensland equivalent to s 33(1) of the Acts Interpretation Act 1915 (SA). In Fancourt, the Court said:[51]
The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of nonservice, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed: see Beer v. Davies; Hewitt v. Leicester Corporation; Saga Ltd. v. Avalon Promotions; A.I.S’. Cathrineholm v. Norequipment; cf. Lombard Australia Ltd. v. Mohrwinkel.
[Footnotes omitted]
The Court continued:[52]
As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.
[50] (1983) 154 CLR 87.
[51] Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 96.
[52] Ibid at 97.
Fourth, insofar as the ‘broader claim’ rested upon the ‘expanded scope of employment’, all which was before the trial Judge were complaints and frustrations about the course of litigation which the respondent had become embroiled,[61] none of which provided any requisite connection between psychiatric illness and employment. There was a clear finding to that effect by the trial Judge.[62] Notwithstanding the attempt on appeal to extend the concept of employment to ‘attendance at a place’ within s 30(3)(e)(iv), that was not pursued at trial and does not render compensable any alleged psychiatric injury caused by litigation with the compensating Authority.[63]
[61] Moore-McQuillan v Return to Work SA [2018] SAET 139 at [123]-[124].
[62] Moore-McQuillan v WorkCover/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2012] SAWCT 14 at [687]-[706].
[63] Peet v Workers Rehabilitation & Compensation Corporation (1996) 66 SASR 474 at 481 per Doyle CJ; Vanderdoes v WorkCover Corporation [1998] SAWCT 68; Trinne v WorkCover [1999] SAWCT 57.
For all of these reasons, we consider that the Full Bench erred in setting aside the orders, rejecting the appellant’s claims and proposing to hear from the parties as to further orders which should be made.
Disposition of the appeal
In light of the foregoing, we consider that the orders of the Full Bench made on 24 August 2018 should be set aside, save and except for the order dismissing the appeal against the suspension of weekly payments in matter 927 of 2002.
The orders made by Olsson AJ on 26 July 2012 should be restored with the result that:
·The appeal against the discontinuance of weekly payments in matter 927 of 2002 is dismissed.
·The appeal against the confirmation of the rejection of the claims for physical injuries in matters 5489, 5490, 5497-5510 of 1998 and 6484 of 2001 is dismissed.
·The appeal against the confirmation of the rejection of the claims for stress injuries in matters 2842, 2845, 2846, 2848, 2851, 2852, 2862, 2964 of 2004 and 2238 of 2005 is dismissed.
We will hear the parties as to costs.
Annexure A – Physical serials
Serial
Matter Number
Claim
1
5488/98
Three toes of left foot – decreased sensation
2
5489/98
Left ankle – impairment
3
5490/98
Left ankle – decreased sensation
4
5493/98
Three toes of left foot – impairment
5
5496/98
Sexual intercourse – reduced capacity
6
5497/98
Left leg – disfigurement
7
5498/98
Right knee – disfigurement
8
5499/98
Lower back/lumbar spine – decreased sensation
9
5500/98
Lower back/lumbar spine – impairment
10
5501/98
Right hip – decreased sensation
11
5502/98
Right hip – impairment
12
5503/98
Left hip – decreased sensation
13
5504/98
Left hip – impairment
14
5505/98
Left lower ribs – impairment
15
5506/98
Left lower ribs – decreased sensation
16
5507/98
Right ankle – decreased sensation
17
5508/98
Right ankle – impairment
18
5509/98
Right ankle – impairment
19
5510/98
Right ankle – decreased sensation
20
6484/01
Right elbow – impairment
21
5494/98
Teeth – sensation/impairment
Annexure B – Transcript excerpts
Transcript of Proceedings, Moore-McQuillan v WorkCover – Royal and Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) (Workers Compensation Tribunal, No. 680/03, Olsson AJ, 5 February 2004) 1253-1254:
MR MOORE-McQUILLAN: Yes, but the problem is the onuses – don’t forget the onus in 680, if I have got you correct, falls onto me to present all the evidence.
HIS HONOUR: Yes, it does.
MR MOORE-McQUILLAN: But in 680 the evidence was supplied to them when they made their determination, and it’s their evidence from their determination that I’ve challenged, because they have already got the facts. They have made a determination, and before I get up and have to say, “I lead off” – they should be leading off, why they made that determination for the matter and their redetermination, because the problem with that is ---
HIS HONOUR: That would fly in the face of the way in which the tribunal has always conducted its business.
MR MOORE-McQUILLAN: No, because what happens is – what happens is, it doesn’t fly in the face of it, it flies in the face of fairness, because what happens is WorkCover get up and say, “Take us to court.” When you get in there and you’re trying to fight the problem out WorkCover turn around – and especially Downs – say they’ve made a determination, which they don’t tell you about – they have made a redetermination.
They have got files and evidence that they have collected on it, which they don’t tell you and give you, and then you turn around and you argue with them, and they say, “Right, what we can do is we can cut that bit out and we can cut that bit out,” and they actually try and use it and see what minimised bits they can argue on, instead of arguing the point, and the problem with it is that a lot of these things, of the act, and a lot of these things that have been made – and when you make a notice of dispute, you make it a notice of dispute against a determination made by then.
So they have made the determination, right. I have got to make the – I have to get up and argue the point why their determination is wrong.
HIS HONOUR: Mr Moore-McQuillan ---
MR MOORE-McQUILLAN: They have made the determination and I should argue the ---
HIS HONOUR: Mr Moore-McQuillan, there is no use debating that with me because that is the normal and usual procedure.
MR MOORE-McQUILLAN: No, well, it’s not the normal but this is not a normal situation.
Transcript of Proceedings, Moore-McQuillan v WorkCover – Royal and Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) (Workers Compensation Tribunal, No. 680/03, Olsson AJ, 6 February 2004) 1347-1350:
MR MOORE-McQUILLAN: Yeah, all right, but I get the feeling that before I even - I get the feeling and whether you like it or not that, (1) I am being biased and prejudiced by this and, (2) that when it comes to the argument or whatever I am going – I am ripped off by this because I – it is evidence that is not substantiated but with – its point that it’s there so therefore we’ll use it and I can’t - I have not got the ability to alter, change or manipulate or whatever, that they have got the opportunity to do of that sheet, of that sheet of WC8.
HIS HONOUR: Mr Moore-McQuillan, you’ve made ---
MR MOORE-McQUILLAN: And that really upsets me.
HIS HONOUR: You’ve made this point many times this morning ---
MR MOORE-McQUILLAN: Well, how do you ---
HIS HONOUR: --- and I understand it.
MR MOORE-McQUILLAN: Yeah, but how can you, and this is my other concern. My other concern is I’m raising this point but I don’t think you realise the concern I’ve got that when it comes down to you ---
HIS HONOUR: I ---
MR MOORE-McQUILLAN: --- making a decision
HIS HONOUR: I ---
MR MOORE-McQUILLAN: --- you can’t make a decision because you haven’t got the evidence.
HIS HONOUR: I fully understand the point you are raising and in the end the case will have to be decided as best I can decide it on the evidence and who has discharged what onus of proof. That’s a situation that arises in many cases that come before the courts and tribunal. If it were otherwise we just couldn’t function.
MR MOORE-McQUILLAN: Well, your Honour, I don’t think you’ve been given, or myself have been given, a fair go in this tribunal with the evidence that should have been presented. They were quite happy to put it in their back pay, because remember the first one came in, in back pay 7 ---
HIS HONOUR: Mr Moore-McQuillan, it is pointless going on with this argument. You’ve made your point.
MR MOORE-McQUILLAN: All right.
HIS HONOUR I understand it. The assurance has been given by WorkCover ---
MR MOORE-McQUILLAN: Yes, but ---
HIS HONOUR: --- that there are no other documents.
MR MOORE-McQUILLAN: Yes, but, your Honour, that assurance, that assurance that you get from WorkCover, you must also remember that in 1998 WorkCover made assurances and then they walked out of that to the tribunal and to McCusker and they walked straight out of that tribunal, out of that meeting, and went straight along, and then Downs hired and went and did undertakings and the assurances were given by WorkCover and by Mark Lutterus and they walked straight out and then Downs was then hired to then covertly, so it couldn’t go through the books so it couldn’t be seen.
So he did it dishonestly and then they went from there and they went out and then they hired Frank Carbone who is not on their approved people on the list then and then they had a undercover agents and surveillance and were knocking gear off left, right and centre for the next two years and when they said, “Take it to the police. It couldn’t be us. It wouldn’t be us. We weren’t doing it,” and then they turn around and go after two – when it suits them they come out and say ---
HIS HONOUR: Mr Moore-McQuillan ---
MR MOORE-McQUILLAN: --- “If you’re saying insurance is not” – their word is proven ---
HIS HONOUR: Mr Moore-McQuillan ---
MR MOORE-McQUILLAN: --- to not be honest.
HIS HONOUR: Mr Moore-McQuillan, you have made your point. I understand what your point is and I have told you that I can’t take the evidentiary situation any further.
MR MOORE-McQUILLAN: And the other point I’ve got, your Honour, is we can’t take Faggotter’s word for it either because the evidence that came out in Harry’s, which you have got here. You have got Fred Morris’s transcript of the matter before Magistrate Harry. Fred Morris said about the issue – is that in 1998-99 Faggotter and his mates in fraud were manipulating and mucking around with my claim file and accessing it without a – and doing things that weren’t proper to the act. Now ---
HIS HONOUR: Mr Moore-McQuillan ---
MR MOORE-McQUILLAN: No, but, your Honour, look at this: this is evidence that has come up, right, and who are the main players? We have got the person who sat around in 1998-99 and played with it. We have got Lutterus and Downs, who actually lied and was contempt of the Workers Compensation Tribunal for two years and then when they had the chance to produce the evidence when it was asked of them, they turned around and went, “I’ve got to go to Port Augusta. I’ve got to go somewhere else now,” and got somebody else to do it for them. They have lied to this court so many times.
HIS HONOUR: Mr Moore-McQuillan, this has got to come to an end.
MR MOORE-McQUILLAN: Yes, it does, but the point is I wear the guilt.
HIS HONOUR: You have made your point. I have told you that there is nothing further I can do about the evidentiary side of it. Now, it is for you to decide what further evidence, if any, you wish to call as part of your case. Now, what evidence, if any, do you wish to call?
Transcript of Proceedings, Moore-McQuillan v WorkCover – Royal and Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) (Workers Compensation Tribunal, No. 680/03, Olsson AJ, 3 March 2004) 1444-1449:
HIS HONOUR: Well, Mr Downs, what’s your attitude to the position with the doctors?
MR DOWNS: We fell extremely prejudiced by this approach. The situation is, I think, that we need to find out, as quickly as possible, and I accept that, what matters that need to be litigated after the conclusion of this matter. There’s a – we’re talking about medical evidence. The current situation is that the corporation arranged for the worker to be examined by Dr Fry and he failed to attend.
MR MOORE-McQUILLAN: No, I didn’t. Correction, your Honour. Correction.
HIS HONOUR: No.
MR MOORE-McQUILLAN: No. No. Objection. Objection right now, before he says, “I failed to attend,” let’s get down to the correct wording. Dr Fry said “I don’t want you to attend and I don’t want to see you.” That is what was said. I didn’t fail to attend. I was told prior to attending that he didn’t want to see me, and not only that, it came back to the complaint that Dr Fry, as Dr Acott will tell you, is only an orthopaedic surgeon for the back. He is not a knee expert for a start, and (2) he’s not a diving physician.
HIS HONOUR: Well, let Mr Downs finish.
MR MOORE-McQUILLAN: So, when – and if he’s going to – if he’s going to start spreading lies from the – because he’s good at doing this from the bar – then let’s get the wording right, because it wasn’t – I was not ever refused to go and see him. He didn’t want to see me.
HIS HONOUR: Well, let – yes, okay.
MR MOORE-McQUILLAN: Get your facts right.
HIS HONOUR: Let Mr Downs finish, Mr Moore-McQuillan.
MR DOWNS: So we don’t know if there were any medical reports. My instructing solicitors have received one from Dr Acott – a very short report, not alluding to the matters which Mr Moore-McQuillan has referred to from the bar table, may I say, but we don’t want to be caught by surprise and let’s – doing these matters on an adhoc basis, jumping from one thing – it’s about time, in my respectful submission, that we had some orderly approach to this litigation, so that your Honour, as well as us, can understand what are the issues, what evidence is required for those particular issues, otherwise we’re going to be all over the place like a dog’s breakfast, with respect, and ---
MR MOORE-McQUILLAN: Well, you ought to know, because you did it last time ---
HIS HONOUR: Don’t interrupt, Mr Moore-McQuillan.
MR MOORE-McQUILLAN: Well, this is the dog’s – this is the pot calling the kettle black. They did this last time to their own advantage, and now it goes to my advantage, we’re prejudiced.
HIS HONOUR: We can’t conduct a hearing with you interrupting all the time.
MR MOORE-McQUILLAN: Well, we can’t conduct a hearing when the prejudicial keeps going against me.
HIS HONOUR: Well, just be quiet for a moment. Yes, Mr Downs.
MR DOWNS: Yes. So that’s basically it. We would be extremely prejudiced. We don’t know if there are any medical reports that Dr Begg has provided. We don’t know what reports, if any, in the past he’s relying upon. We don’t have any idea other than he comes before this tribunal and says “Well, I’ve arranged Dr Begg and I’ve arranged Dr Adcock.”
MR MOORE-McQUILLAN: Same as you did with Dr Reid and Dr Fry. You didn’t bother to get a report then, did you?
HIS HONOUR: Don’t interrupt, Mr Moore-McQuillan.
MR MOORE-McQUILLAN: Well, it’s the same pot calling the kettle black. He has done this before.
HIS HONOUR: Well, that’s what you’ve said before.
MR MOORE-McQUILLAN: I’m only going by the way you taught me how to do it.
HIS HONOUR: Now, just be quiet. Yes.
MR DOWNS: So it would be my submission to the tribunal that we should, at the completion of this case, which hopefully will finish today, that we then go through the matters that are potentially outstanding and then look at them and we can quickly, I would hope, come to a conclusion those matters that are still in dispute between the parties. We have no difficulty in embarking upon those matters that will have any reflection upon the income maintenance of the worker proceeding first. But it is not to be at the prejudice of my client.
MR MOORE-McQUILLAN: You ought to know – you – how can it be prejudiced? You’re holding back the money. You’re causing the prejudice and ---
HIS HONOUR: No.
MR MOORE-McQUILLAN: --- then you’re saying, “We want to continue the prejudice,” you stupid git.
HIS HONOUR: Mr Moore-McQuillan, please stop interrupting. The situation is quite clear. In relation to the claims which are for income maintenance, based upon a series of disabilities which you say you have been suffering, you have to give evidence yourself about the nature and extent of those before the doctors are called. That is normal procedure, and without it a sensible cross-examination of the doctors cannot be conducted.
I would have thought that bearing in mind the number of claims involved, your evidence will occupy some time.
MR MOORE-McQUILLAN: Whilst you’re saying that and you’re assuming that, and you’re taking holidays and he doesn’t turn up and they don’t pay me, I’m broke, and I don’t have an income. Now, whilst you’re saying, “This is the way we’re going to do it,” the point is that you’re being prejudicial against me because I’m not getting any income. Even if you have a look at bloody serial number 86, they were told to reinstate the income. They refused. They were told ----
HIS HONOUR: Mr Moore-McQuillan, I will not ---
MR MOORE-McQUILLAN: I know why you’re saying things, but at the moment nothing is happening.
HIS HONOUR: I’m not going to debate that.
MR MOORE-McQUILLAN: No, because you’re not doing anything to hurry this matter along. You’re quite happy taking your poxy holidays.
HIS HONOUR: All you’re doing is to occupy valuable time in useless debate, Mr Moore-McQuillan.
MR MOORE-McQUILLAN: Excuse me. I would like to get an income. I would like to be able to come in here without economic duress ---
HIS HONOUR: Mr Moore-McQuillan, I’m not going to argue with you.
MR MOORE-McQUILLAN: Yes, but – yes, you will.
HIS HONOUR: I am not going---
MR MOORE-McQUILLAN: You can leave if you like, but at the moment – you can leave and do what you like, but at the moment you are causing economic duress to get your own advantage.
HIS HONOUR: I am not going to ---
MR MOORE-McQUILLAN: Yes, you are.
HIS HONOUR: I am not going to permit the doctors to be called until you give evidence, and that’s the end of it.
MR MOORE-McQUILLAN: Well, then let’s get the fucking thing on the – start now and we’ll do it now and we’ll do this one later, because until – I’m quite happy to start with 680 now, because I need income.
HIS HONOUR: If you carry on like that, I will simply adjourn until you calm down.
MR MOORE-McQUILLAN: Well, fuck off then, because you’re not doing anything to assist this matter, You’re doing everything to hinder it.
HIS HONOUR: I’ll adjourn for 10 minutes while you sort yourself out.
MR MOORE-McQUILLAN: You go and sort yourself out. You’re doing nothing but to hinder the whole process, you stupid idiot. I don’t care, because it’s going to cost you an arm and a leg either way, and I don’t have to pay it.
Transcript of Proceedings, Moore-McQuillan v WorkCover – Royal and Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) (Workers Compensation Tribunal, No. 680/03, Olsson AJ, 6 October 2004) 3368-3369:
HIS HONOUR: Well, it relates to about that period and also – it certainly relates to that and what followed. Now, if you give evidence, your evidence should be confined to the facts that you wish to talk about and not argument, because that’s a matter for addresses afterwards. Insofar as your stress claims are concerned, you should – I would suggest to you that you ought to give evidence on each of those – I think there are 20-odd files related to it – as to the various aspects that are referred to in those files as to the stress that you have suffered, the effect that it has had upon you ---
MR MOORE-McQUILLAN: Hold it. Stress. The – can you do them again, your Honour. Stress?
HIS HONOUR: The various stresses to which you have been subjected as referred to in those various files and the practical effects that it has had on you and in particular, upon your capacity to work and just how the whole situation has developed in terms of your stress claims. You really should put before me appropriate medical evidence to support what the effect of the stress has been. We have, I think a couple of medical reports already.
MR MOORE-McQUILLAN: Lukacs and Gauvin.
HIS HONOUR: Yes, but it’s a question of whether you need to amplify that in any way, either in writing from them or by calling them. I would suggest that it would be advisable to call them if you possibly can.
MR MOORE-McQUILLAN: Well, no, see, that’s a – we dealt with that. That’s the reason why I can only rely on the transcript because I can – for me to call them, I have to pay them and I haven’t got money to pay them.
HIS HONOUR: Well, that’s entirely a matter for you to ---
MR MOORE-McQUILLAN: No, no, see, that’s the problem with – because I haven’t got an income and I can’t go and claim – I can’t call them if they’re going to – because they’ve already asked for payment.
HIS HONOUR: Yes, I understand that, Mr Moore-McQuillan ---
MR MOORE-McQUILLAN: And that’s prejudism that I have to suffer.
HIS HONOUR: --- but there’s nothing I can do about that.
MR MOORE-McQUILLAN: Well, you can get the Workers Compensation to call.
HIS HONOUR: I can’t. I can’t demand that they call witnesses on your behalf. That’s a matter for you.
MR MOORE-McQUILLAN: McCouaig did.
HIS HONOUR: So you’ll have to consider that, the extent that in relation to your stress claim that you want to call any of the people that have been subpoenaed, that’s again a matter for you. I should make it perfectly clear to you that if you call any of those people, having subpoenaed them and because you’re calling them to give evidence-in-chief, you are only entitled to ask questions designed to get them to tell their version of the appropriate facts. You are not entitled to cross-examine your own witnesses.
MR MOORE-McQUILLAN: Some of that, your Honour, would be that – there is a problem with that. If I don’t call them, you will never know the truth, but if I – because they will not call them. They’ll just say “hearsay”. That’s it. “You haven’t got any proof. You didn’t bring them.” And if I do call them I run that corner and I’d rather go the other way where if I do call them, they should be called by them and I should be able to cross-examine them.
3
15
1