Steven Peter Dolphin v WorkCover Corporation of South Australia No. Scgrg-97-222 Judgment No. 6415 Number of Pages 30 Appeal and New Trial

[1997] SASC 6415

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

COX, LANDER AND BLEBY JJ

CATCHWORDS:

Appeal and new trial - appeal - general principles - in general and right of appeal - when appeal lies - Workers' Compensation - appellant appealed against a decision of the Workers Compensation Appeal Tribunal whereby the tribunal overturned the previous decision of a Review Officer in his favour - appeal provisions in the workers' compensation legislation repealed and substituted with new provisions prior to the institution of the appeal to both the Tribunal and to the Supreme Court, but after the commencement of the original proceedings and the determination by the review officer - consideration of whether the appeal was competent to proceed - construction of transitional provisions - whether 'proceedings' were commenced before the new appeal provisions took effect - held that the word 'proceedings' in the transitional provisions includes appeals arising from the original proceedings - appeal competent - in any event s16 of the Acts Interpretation Act would have safeguarded the appellant's right of appeal.

Workers' compensation - proceedings to obtain compensation - determination of claims - appeals and stated cases - Tribunal upheld the appeal on the grounds that the Review Officer may have laboured under a misunderstanding which in turn may have polluted his ultimate findings - consideration of whether the tribunal applied the correct standard of proof in allowing the appeal - held that it did not - merely having some doubt about the Review Officer's findings not sufficient - the Tribunal had to be satisfied that an error had in fact been made - held that the Tribunal also erred in not proceeding to find whether the possible misunderstanding identified by it did in fact pollute the ultimate conclusion reached by the Review Officer and in failing to consider whether the result was nevertheless correct on all the evidence - whether the Tribunal erroneously allowed the respondent to pursue its case in the Tribunal in a manner inconsistent with the manner in which it had pursued its case before the Review Officer - held that it did not - whether the Tribunal erred in remitting the matter to the Review Panel for a rehearing de novo rather than correcting any error itself - held that it did - appeal allowed. Acts Interpretation Act 1915s16; Workers Rehabilitation and Compensation Act 1986 ss3, 4, 8, 36; 88, 95, 97, 100 now repealed; 86, 86A, 89A, 90, 91, 92D, 94, 94A; Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act (No 75 of 1995) s17; Workers Rehabilitation and Compensation (Dispute Rsolution) Amendment Act (No 21 of 1996) s6, referred to. Simpson Ltd v Arcipreste (1989) 53 SASR 9; Churchill v Badenoch's Transport Ltd (1971) 1 SASR 63, applied. Colonial Sugar Refining Co Ltd v Irving [1905] AC 369; Workers Rehabilitation and Compensation Corporation v Harle (1993) 61 SASR 507; Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1, considered.

HEARING:

ADELAIDE, 2-3 September 1997 (hearing) 9 December 1997 (decision)

#DATE 9:12:1997

#ADD 15:12:1997

Appearances:

Appellant:

Counsel: Mrs M E Shaw QC, with her Mr C J Kourakis

Solicitors: Palios, Meegan and Nicholson

Respondent:

Counsel: Mr D M Quick QC with him Dr P M Salu

Solicitors: Lawson Downs

ORDER: appeal allowed.

COX J

Appeal from the Workers Compensation Appeal Tribunal.

This is another case dealing with the possible distinction between "overtime" for the purpose of a particular industrial award and "overtime" in the definition of "average of weekly earnings" in s4 of the WorkersRehabilitation and Compensation Act 1986. I take the following statement of facts from the judgment of the learned Deputy President of the Workers Compensation Appeal Tribunal from which the appeal to this Court has been brought. "In this case, Stephen Dolphin ('the worker') was employed by All Type Scaffold Erectors ('the employer') as a scaffolder on the REMM site at Adelaide. He commenced work in January of 1990 and worked long hours until 29 April 1991 when he sustained an injury in compensable circumstances, and as a consequence, became incapacitated for work. The worker sought and obtained compensation pursuant to the Act. He came to be in receipt of payments of income maintenance which were initially assessed at a level of $1,048.80 per week. As I understand it that figure represented the worker's average weekly earnings at the time of his injury. I also understand the figure comprised of base weekly rate of $668.68 and a further amount of $380.12 paid by way of overtime pursuant to the relevant Award.

The WorkCover Corporation ('the Corporation') took the view that the terms of the worker's employment with the employer comprised of an agreement to work extended overtime. Accordingly, having been advised by the employer that overtime was no longer available to workers such as the worker, it resolved to invoke Section 36(2)(bb) of the Act so as to reduce the worker's payments of income maintenance.

Section 36(2)(bb) relevantly provides that the Corporation can reduce weekly payments of income maintenance upon being 'satisfied that if the worker had continued in the work in which he was last employed before becoming incapacitated, he would not have continued to work overtime .'

And so, by letter dated 14 January 1992, the Corporation advised the worker of its intention to reduce the amount of weekly payments that were being paid to him from $1,048.80 to $668.68 on the basis that $380.12 represented the 'overtime' component that was incorporated into the initial assessment.

The worker successfully sought a review of that decision. The Review Officer concluded that the long hours worked by the worker comprised of an agreed span of hours of 60 per week, such that there was no scope to effect a reduction in weekly payments pursuant to Section 36(2)(bb) of the Act."

The Review Officer found in the worker's favour by applying the decision of the Full Court in Workers Rehabilitation and Compensation Corporation v Harle
(1994) 61 SASR 507. The Corporation was dissatisfied with the Review Officer's decision and appealed to the Workers Compensation Appeal Tribunal. The Tribunal, constituted by a Deputy President, allowed the appeal and remitted the matter to the Review Panel for a rehearing de novo. The worker thereupon sought to appeal to the Supreme Court and leave to appeal was granted by the Full Court on 8 April 1997. Another Full Court heard the appeal itself. We heard argument on the merits of the appeal but Mr Quick QC, for the respondent Corporation, raised a question as to the competency of the appeal which should be dealt with first. It turns on the proper interpretation of the transitional provisions contained in the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 which made very substantial changes to the Act's procedural provisions. They included the abolition of appeals from the Workers Compensation Appeal Tribunal to the Supreme Court. The issue is whether the worker, the present appellant, is entitled to bring his appeal here in accordance with the provisions of the principal Act as in force before the commencement of the 1995 amendment (the "former legislation").

Under Part 6 of the former legislation there was a review and appeal procedure extending from administrative decisions of the WorkCover Corporation of South Australia (or an exempt employer) to a final appeal, by leave, to the Supreme Court. There is no need to describe it in detail. Section 95 made certain decisions of the Corporation "reviewable" - for instance, a decision made on a claim for compensation - and the review would be made to the Corporation which, if the dispute could not be resolved by agreement, would refer it to a Review Officer (s97). The Review Officer would make a fresh determination (s96) and an appeal could be taken from the Review Officer's decision to the Tribunal. (The place of the Medical Review Panel in the scheme can be disregarded for present purposes.) The Tribunal could be constituted of one member or three members (s80). The Act did not provide for an appeal from a Tribunal constituted by a single member to a three member Tribunal. However, a party to the proceedings before the Tribunal might, by leave of the Supreme Court, appeal against the decision of the Tribunal to the Full Court of the Supreme Court on a question of law (s100).

The 1995 amendment made radical changes to those provisions. There are no longer to be Review Officers and appeals to the Supreme Court have been abolished. The emphasis now is on conciliation and arbitration. Section 89A of the principal Act as amended by the 1995 Act (the "new legislation") is the analogue to the old s95. It identifies certain administrative decisions of the Corporation or an exempt employer as reviewable decisions. If the decision is disputed it must first be reconsidered (s91) and, if that does not bring satisfaction to a party, the matter is referred to a presidential member of the Tribunal or to a conciliation officer for conciliation (ss91A, 92-92C). If that does not result in an agreed settlement of the dispute, the matter is referred into the Tribunal for arbitration or judicial determination (s92D). Where arbitration fails and a party who is dissatisfied with the result disputes the arbitrated determination in accordance with the rules, the Tribunal must make a judicial determination of the claim (s94). Any such determination will be made by a single presidential member unless the dispute is referred to a Full Bench of the Tribunal for determination (s94A). An appeal lies on a question of law against a decision of the Tribunal constituted by a single presidential member to a Full Bench of the Tribunal (s86). While there is no further appeal to the Supreme Court, the Full Bench of the Tribunal may state a case on a question of law for the opinion of this Court (s86A).

Section 17 of the 1995 amendment sets out certain transitional provisions that are obviously intended to meet the case of someone who is caught between the new and old schemes. Before turning to those provisions it is convenient to set out a chronology of the procedural steps relevant to this appeal.

14 January 1992 The Corporation made a determination that reduced the appellant's weekly payments.

15 January 1992 The appellant applied to the Corporation for a review.

30 July 1992 to On various dates a Review Officer took evidence and3 April 1996 heard submissions.

17 May 1996 The Review Officer made a determination. It was favourable to the appellant.

3 June 1996 The 1995 amendment came into operation.

12 June 1996 The Corporation lodged a notice of appeal against the Review Officer's determination to the Workers Compensation Appeal Tribunal, apparently under s97 of the former legislation.

22 January 1997 The Tribunal, constituted by Deputy President Gilchrist, having heard argument on the matter, published its reasons for allowing the Corporation's appeal.

31 January 1997 The Tribunal's formal order was made.

8 April 1997 The Supreme Court gave the worker leave to appeal against the Tribunal's order.

16 April 1997 The appellant filed his notice of appeal.

2 September 1997 The appeal was heard by the Full Court and judgment reserved.

No question was raised in the Tribunal about the competency of the Corporation's appeal from the Review Officer, notwithstanding the coming into force of the 1995 amendment in the meantime, and there was no challenge to the worker's right to bring this further appeal to the Supreme Court until the hearing of the appeal itself, although it should be said that in accordance with the usual practice the application for leave to appeal was made ex parte.

The relevant sub-sections of s17 of the 1995 amendment read - "(4) If proceedings before a Review Officer had been substantially commenced under the principal Act as in force before the commencement of this Act (the "former legislation"), the proceedings may be continued and completed under the provisions of the former legislation.

(5) If a reviewable decision had been made under the former legislation before the commencement of this Act but, as at the commencement of this Act, proceedings for review of the decision had not been commenced or had not been substantially commenced, proceedings for dispute resolution may be commenced under the new legislation within one month after the commencement of the new legislation or a longer time allowed by the President or a Deputy President or conciliation officer to whom the President has delegated the power to allow an extension of time.

(6) The question whether proceedings before a Review Officer have been substantially commenced may be determined, in the event of a dispute, by the President or a Deputy President to whom the President has delegated powers under this subsection and the determination is final and without appeal."

It is convenient to start with subs(5). It refers to a "reviewable decision" made under the former legislation - for instance, a decision made by the Corporation on a claim for compensation. If proceedings for review, which under the former legislation first went to the Corporation and then to a Review Officer, had not been "substantially commenced" before the new legislation came into force, they were thereafter to be dealt with instead under the dispute resolution provisions of the new legislation. That cannot assist the present appellant. The reviewable decision here was the Corporation's determination of 14 January 1992 reducing the appellant's weekly payments. His proceedings for a review of that decision had been substantially commenced by the time the 1995 amendment came into force; indeed, the Review Officer had made his determination with respect to it. The determination of a Review Officer under the former legislation was not itself a reviewable decision. The word "review" was a term of art in Part 6 of the former legislation and was contrasted with an appeal. Review and appeal were different and mutually inconsistent procedures. The method of attacking a Review Officer's determination under old s97 was by way of an appeal, not a review. Both parties, correctly, agree that subs(5) can have no application to the appellant's situation.

That leaves subs(4). It allows proceedings before a Review Officer to be "continued and completed" under the former legislation. Mr Quick's submission is that all that may be continued and completed is the matter actually before the Review Officer himself, so that the sub-section's operation will be completely spent when the Review Officer has made a determination. It cannot, in any circumstances, preserve an appeal from the Review Officer to the Tribunal or an appeal from the Tribunal to this Court, because they are not proceedings "before a Review Officer".

If that submission is sound it means that the Corporation's appeal from the Review Officer to the Tribunal, instituted after the 1995 amendment came into force, somehow slipped under the learned Deputy President's guard. However, I do not think that the submission is sound. While at first sight the terms of subs(4) might appear to support it, such an interpretation of the sub-section would deprive a party to proceedings before a Review Officer in the transition period of any right of appeal against an adverse determination. The new legislation does not provide for appeals from Review Officers and, on this argument, neither do the transitional provisions. It is noteworthy that the new legislation is not inimical to appeal-type procedures. There is a reconsideration and determination of a matter by the Tribunal under s94 and there is an appeal, in the strict sense of the word, from a single member of the Tribunal to a Full Bench under s86. It would be surprising if Parliament had for no obvious reason simply extinguished the right of a party, who was dissatisfied with a Review Officer's determination, to appeal to some person or body against it. I do not think that the expressions "proceedings before a Review Officer" and "may be continued and completed" in subs(4) should be construed as narrowly as that. There is a sense in which any appeal against the decision of a court or tribunal may be regarded as a continuance of the original proceedings that culminated in that decision. In my opinion, the sub-section permits in the stated circumstances an appeal from a Review Officer to the Tribunal in accordance with the provisions of the former legislation. Such an appeal will be a continuance of the proceedings before the Review Officer within the meaning of the sub-section.

That leaves the question of any further appeal to this Court. The Corporation argues that, even if subs(4) can support the first appeal, it certainly cannot accommodate the second. It is not as though the appellant had nowhere else to go. The appeal from the Review Officer in this case was heard by a single member of the Tribunal, and s86 provides for an appeal on a question of law from a single member of the Tribunal to the Full Bench of the Tribunal - as wide an appeal, indeed, as the appeal to the Supreme Court under old s100. That, then, is where the appellant should have taken his appeal.

The submission has its attractions but in my opinion it should not prevail. I do not think that the new legislation is intended to have any application to proceedings that had been substantially commenced under the former legislation, except in the situation especially covered by subs(4) of the transitional provisions. It is true that the words of s86 could be adapted to the appellant's situation, but only by applying subs(4) in a selective fashion - by holding that a first appeal under the former legislation, subsequent to the Review Officer's determination, may be treated as "continuance" of the proceedings before the Review Officer, for the purpose of subs(4), but not a second appeal. I think it unlikely that Parliament intended that the transitional provisions should be interpreted and applied in that way. The better view, in my opinion, is that the appellant's appeal to this Court is also authorized by subs(4). The second appeal, no less than the first, is a continuance of the original proceedings. The parties to a review by a Review Officer under the former legislation thus retained their procedural rights, including all rights of appeal, under that legislation notwithstanding the coming into force of the new legislation after the proceedings before the Review Officer had been substantially commenced.

I think the appellant is probably entitled to succeed on his alternative ground as well. The rule of the common law is that "in general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights": Continental Liqueurs Pty Ltd v G F Heublein and Bro. Inc. (1960) 103 CLR 406, per Kitto J at 427. The rule finds expression in s16 of the Acts Interpretation Act 1915, the relevant parts of which read - "(1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not - (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry;

(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.

(2) Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).

(2a) Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as if the repeal or amendment had not been affected, or as if the expired Act or enactment had not expired (as the case may be).

(3) Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.

(4) In this section -

"legal proceeding" includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature."

The rule has been held to preserve a right of appeal against the order of a court or tribunal even though the right of appeal had been abolished before the party in question had had an opportunity of exercising it. In Colonial Sugar Refining Co. Ltd v Irving [1905] AC 369, an action between the parties in the Supreme Court of Queensland that had been instituted on October 25, 1902 had still to be decided when, on August 25, 1903, the Judiciary Act 1903 (C/w) came into force and abolished appeals from the Supreme Court to the Privy Council in actions of that kind. In September 1903 the Supreme Court gave judgment in the matter. Subsequently the Court gave the appellant leave to appeal. The respondent argued before the Privy Council that the appeal was incompetent but the point was rejected. Lord MacNaghten on behalf of their Lordships said (at 372-3) -

"As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."

Colonial Sugar Refining Co. Ltd v Irving was decided on common law principles. More recent cases in this area have turned on the interpretation of the expression "any right accrued prior to the repeal, amendment or expiry" in s16 of the Acts Interpretation Act or some local equivalent.

In Esber v Commonwealth of Australia (1992) 174 CLR 430, the applicant for the review of a determination under a Commonwealth worker's compensation Act had applied for the review before the Act was repealed. It was held by a majority of the High Court that the repeal did not affect the right of review that had accrued to him under the repealed Act once he had lodged his application for review. The right was protected by the Commonwealth analogue to s16. Esber's Case is distinguishable on the facts from the present appeal, as the appeal from the Review Officer had not been instituted by the Corporation before the 1995 amendment came into force.

In Skorpos v Development Assessment Commission (1995) 64 SASR 51, a planning appeal was instituted before the appeal legislation was re-cast, so that in that respect the case was similar to Esber v The Commonwealth . The repealing Act set up its own appeal tribunal with a further restricted appeal to the Supreme Court. Debelle J held that the appellant, in accordance with the general common law rule which was reinforced by s16 of the ActsInterpretation Act , retained the right to bring an unrestricted appeal to this Court, in accordance with the old procedure. In that case, as in this, the appellant was seeking to rely on a second appeal which was obviously contingent upon the prior determination of a dispute that was not decided until after the amending legislation came into operation.

In all cases such as these the question arises whether the possible application of the Acts Interpretation Act is displaced by the repealing or amending legislation. That was decisive in Yao v Minister for Immigration
(1996) 69 FCR 583, in which there is a discussion of the notion of an "accrued" right in these common form interpretation rules.

There does not appear to be any decision binding on this Court on the question whether, prior to the coming into force of the 1995 amendment, there had accrued to either of the parties who were affected by the Review Officer's determination a right to appeal against that determination and also a right in a party disadvantaged by any such appeal to bring a further appeal by leave to this Court. It seems to me that there is much to be said for giving s16 of the Acts Interpretation Act a liberal construction in that respect, otherwise there may be no way of producing a just result where an amending Act abolishes an existing remedial procedure and replaces it with another, when a person who had litigation on foot under the amended scheme cannot use the procedure of the amending Act and there are no appropriate transitional provisions. The amending Act of 1995, including the transitional provisions, is not inconsistent with applying s16 of the Acts Interpretation Act in this case to the appellant's two appeals. However, there is no need to reach a decision on the point because a just solution may be found in the transitional provisions of the new legislation themselves.

For these reasons I would overrule the Corporation's preliminary objection.

I turn to the substance of the appeal. The learned Deputy President allowed the Corporation's appeal from the Review Officer's determination and remitted the matter for rehearing by another Review Officer because the Deputy President thought it possible that the Review Officer had misunderstood the position of the parties as to the actual hours worked by the appellant while employed at the REMM site. The appellant's complaint is that the material before the Deputy President did not support any such misgivings and that, in any event, the Deputy President's hesitant state of mind on the subject was an insufficient basis in law for setting the determination aside.

The issue before the Review Officer was whether the appellant was entitled to take advantage of Harle's Case . Interestingly that does not appear to have been how the matter was seen when the dispute originated in January 1992. The Corporation's reduction of the appellant's weekly payments under s36 was put on the basis of overtime no longer being available to a worker in the appellant's position due to a shortage of work, and whether that was in fact the case appears to have been the only issue raised by the appellant in his application for a review. However, as I have said, the debate proceeded on a wider front before the Review Officer with a lot of attention being given to the terms and characterization of the appellant's employment. The appellant said in evidence that the REMM site was a "sixty-hour site" and that when he was offered the job it was on the clear condition that he would work sixty hours a week - ten hours a day for six days a week - and that, if he was not prepared to work sixty hours, he should not take the job. A few months after he started work he signed a document headed "Offer of Employment" that was presented to him by his employer. It was in the following terms - "We are pleased to offer you employment as a ... on the Remm/Myer project, Rundle Mall, Adelaide.

Your terms and conditions of employment will be governed by this offer, the Building and Construction Workers' (State) Award and the Remm Site Industrial Agreement.

Hours of Work are as follows:-

From 1 April to 31 August 1990

Day Work 7.00 a.m. to 5.30 p.m. Night Work 7.30 p.m. to 6.00 a.m.

From 1 September 1990 to 31 March 1991 Day Work 6.00 a.m. to 4.30 p.m. Night Work 7.30 p.m. to 6.00 a.m.

You will generally, as required, work six days per week, 10 hours each day/six night shifts per week, 10 hours each shift. It is expected that these hours will be worked for the period of your employment. You are employed for day work/night work.

Work may be performed on the site 24 hours per day, seven days per week. This means that you may be required to work on any day/night of the week, including Public Holidays. Additional overtime as required by the project may be worked from time to time.

You will also be required to comply with the order of Commissioner Perry made in the Industrial Commission on 9 April 1990, (namely; you are not, whether directly or indirectly, to be a party to or concerned in the imposition or continuation of any ban, limitation or restriction on the performance of any work on any day or on night shift (in each case, including weekends)) and the order of the Federal Court made on 9 May 1990.

If you wish to accept employment with and the conditions outlined above you are required to sign the copy of this letter prior to employment.

If, after acceptance and commencement of work, you do not abide by the above conditions for any reason you may be summarily terminated for breach of this contract of employment."

The appellant signed the document. In cross-examination he was questioned about the hours he actually worked. He said that many times he worked a lot more than sixty hours. There were some occasions when he worked under sixty. That would have been because of inclement weather or when there was industrial action on the site. He generally worked sixty hours. Counsel for the Corporation handed him a sheaf of documents he described as "computer pay records" which, taken at face value, suggested that there were a good number of times when the appellant did not work a sixty-hour week. The Review Officer asked the appellant's counsel whether he accepted the computer documents as an accurate record and counsel answered that he did not. The appellant himself said that he had doubts about the document in respect of the hours in various weeks, particularly from early 1991 until the time of injury. He reiterated that, although there were site disruptions over the 1990 Christmas period, he usually stuck around the sixty hour mark in regard to his hours. ("I always remember being around the sixty mark or around that.") There were times when he worked more than sixty hours. The Corporation did not call any evidence before the Review Officer. It made no attempt to prove the computer documents.

It seems that the computer documents were disclosed and possibly produced to the Review Officer in accordance with s96(1a) of the former legislation, and s88 of the Act provides that a review authority is not bound by any rules of evidence. However, while counsel for the Corporation said in the course of his final address to the Review Officer that he wished formally "to place before the Review Officer that material which has been placed in the list because it sets the background" - referring, I take it, to all of the s96 material -, he did not think that he could ask the Review Officer to receive into evidence the computer print-outs "because they're not in accordance with Mr Dolphin's recollection of the matter". There was some discussion about the evidential status of the print-outs, presumably with s88 in mind, but counsel for the Corporation did not submit that the Review Officer should have regard to the computer documents in preference to the appellant's sworn evidence. That is hardly surprising. Counsel did not attack the appellant's credit. His evidence was not inherently implausible and the Corporation had chosen not to call any evidence to establish the reliability of the documents. In those circumstances the documents, though technically admissible, could not fairly be given any weight at all. Significantly, counsel for the Corporation did not address the Review Officer on the subject of the number of hours actually worked by the appellant. The only course the Review Officer could take in the circumstances was to regard the appellant's evidence on the subject, whatever it relevantly signified, as undisputed. As I say, the Corporation did not argue otherwise. It confined its submission to an analysis of the nature of the appellant's terms of employment in the light of Harle's Case .

The Review Officer held that there was no overtime component in the appellant's average weekly earnings. He rejected the respondent's submission to the contrary. He therefore set aside the Corporation's determination and substituted for it his own determination that the appellant's average weekly earnings as previously calculated did not include an overtime component. The Corporation appealed to the Tribunal. It challenged the Review Officer's conclusion but also complained that the Review Officer had misstated its position. The learned Deputy President allowed the appeal on that latter ground. In his reasons for judgment he said - "Although there were a variety of arguments advanced by the Corporation in support of this appeal, I find, that for present purposes, it is only necessary for me to deal with one, namely the complaint that the Review Officer seemed to have proceeded on the assumption that the actual hours worked by the worker was not an issue between the parties.

It was an issue, indeed, it was one of the critical issues to be resolved.

There were several passages in the transcript of the review hearing, that suggested that the Review Officer understood this issue to be non-contentious. Moreover there was the following statement in the Review Officer's reasons for decision namely:-

'It is agreed and I find that the worker was required to work and worked six days per week, 10 hours each day.'

I am far from convinced that the comments made by the Review Officer during the review hearing and the above statement as contained in his reasons for decision, necessarily reflect a misunderstanding by the Review Officer as to the position of the parties. I suspect, that they might simply reflect, no more than an understanding on his part that it was agreed that the worker worked long hours.

But, given that this issue was critical to determining the fate of the application for review, it seems to me, that if I am left in any doubt as to whether a misunderstanding might have polluted the ultimate findings of the Review Officer (and I am), I should err on the side of caution and allow the appeal."

The appellant worker now comes to this Court saying that the Tribunal should not have allowed the respondent Corporation's appeal from the Review Officer when the Corporation had not discharged the onus on it of demonstrating a relevant and vitiating error on the part of the Review Officer.

The primary submission of Mrs Shaw QC, for the appellant, was that the learned Deputy President's tentative state of mind was not an adequate foundation for an order allowing the appeal. I think that must be right. Although there does not seem to be any authority directly in point, it is axiomatic, in my opinion, that an appeal court should not set aside the order of a court or tribunal in a matter of this kind unless it is satisfied that the decision was wrong. It cannot be enough that there is a possibility of error; otherwise the parties will become hostage to every omission or ambiguity in the reasons of the court or tribunal that could indicate the possibility of error. I do not think that a judgment can be set aside as readily as that. Compare Churchill v Badenochs Transport Ltd and Devine (1971) 1 SASR 63, 65.

There is a question also whether the learned Deputy President was correct when he described the actual hours worked by the appellant as one of the critical issues to be resolved. (I assume, for present purposes, the relevance of actual hours worked to the matter the Review Officer had to decide.) As I have sought to show, the evidence on the subject was all one way and, in the end, it was not challenged by counsel for the Corporation before the Review Officer. There remained possibly a question as to what findings the Review Officer should make about the actual hours worked, but that could only be a matter of drawing an inference from the appellant's uncontradicted evidence. With respect, it does seem rather strong to call that "one of the critical issues to be resolved."

The particular passage from the Review Officer's reasons that were singled out by the Deputy President has to be understood in its context. The Review Officer had summarized the submissions of the parties and identified the ultimate issue in the dispute. He said -

"It was submitted on behalf of the respondent that in this matter the facts are the same as in Doonan's case. It was agreed that the span of working hours was a minimum of sixty hours per week, but that the structure underpinning the agreement was the award. Essentially the agreement was to work a minimum amount of twenty hours overtime per week "

When the Review Officer used the expression "It was agreed " he was referring, I think, not to the attitude of the parties to the review, but to the Offer of Employment that the appellant had signed and about which most of the argument before the Review Officer had revolved. When he came to his findings the Review Officer said -

"It is agreed and I find that the worker was required to work and worked six days per week, ten hours each day."

There are difficulties in this passage. The word "required" may refer to the terms of the Offer of Employment or to the day-to-day instructions the appellant was given as to his hours of work. I think that the Review Officer, in saying that the appellant "worked six days per week, ten hours each day," was probably drawing his own inference about that from the appellant's evidence (that he generally worked a sixty hour week although sometimes he did not) rather than stating what counsel had agreed on the subject before him. If, however, the words "It is agreed" apply to the second part of the sentence as well as the first - and that is the most likely way to construe the sentence - then the Review Officer should have referred to the appellant's evidence on the matter of hours actually worked as being uncontradicted rather than agreed. What were disputed, of course, were the inferences to be drawn from the Offer of Employment and the appellant's evidence generally, viewed in light of the rules about average weekly earnings and overtime in s4 of the Act. There was also a question of the significance of the expression "generally, as required" in the Offer of Employment. However, those were issues of mixed law and fact which were unaffected by any possible misunderstanding about the Corporation's stand on the actual hours worked.

The learned Deputy President himself was "far from convinced" that the second passage I have quoted from the Review Officer's reasons necessarily reflected a misunderstanding by the Review Officer as to the position of the parties. In my opinion the offending sentence was probably the product of an excessive economy of expression in attempting to state compendiously what was agreed by the parties and what the Review Officer inferred from the material before him. However, any inaccuracies or infelicities of expression on the Review Officer's part did not necessarily invalidate his determination, much less make it necessary for the matter to be sent back for rehearing. Nor, in my opinion, could any possible misunderstanding about what the parties had agreed in this respect be regarded as "critical to determining the fate of the application for review." The evidence, as I have said, was all one way and what was critical was the use that was to be made of it, including any factual inferences to be drawn from it, for the purpose of resolving the Harle issue. The use that the Review Officer made of that evidence may or may not have been correct, but, as I have said, it is unlikely that it was the product of any misconception on his part about what was or was not agreed between the parties about the actual hours worked by the appellant.

For these reasons I do not accept the submission of Mr Quick QC that the Review Officer plainly misconstrued the Corporation's submissions so that, whatever the Deputy President's way of putting it, a successful appeal on that ground was inevitable. The point is of considerable practical importance because the appeal transcript shows that, at the hearing in the Tribunal, counsel for the Corporation tried his utmost to persuade the Deputy President to receive additional evidence on the subject of hours actually worked that the Corporation had not tendered before the Review Officer. There was not the slightest justification, that I can see, for permitting the Corporation to set about improving its case at that stage - cf. Simpson Ltd v Arcipreste (1989) 53 SASR 9 - and the Deputy President was not minded to receive the evidence, at least without further debate. However, sending the matter back for rehearing de novo would enable the Corporation to get the evidence in - a course that it would hardly be permitted to take if restricted to its other grounds of appeal. It would also prolong unnecessarily a dispute that began nearly six years ago. There is every reason, then, for taking a strict view of the only ground upon which the appeal from the Review Officer was allowed.

In summary, I consider that the learned Deputy President applied the wrong test to the disputed passage in the Review Officer's reasons. He should not have set aside the determination without first being satisfied that an error that vitiated the determination had actually been made. He made it plain that he was undecided about that. So far as appears, there were insufficient grounds for setting aside the determination in that respect. The persuasive burden on the Corporation was not discharged.

I would allow the appeal, set aside the Tribunal's order and remit the matter to the Tribunal so that it may consider the Corporation's other grounds of appeal. That, of course, will not prevent the Tribunal, if necessary, from drawing its own inferences about the appellant's actual working hours which may or may not coincide with those apparently drawn by the Review Officer in the somewhat cryptic sentence in his reasons that has led to so much discussion.

Since preparing these reasons I have had the advantage of reading Bleby J's draft judgment and learning of the enactment of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act (1996) with its repeal and replacement of subs(4), (5) and (6) of s17 of the amending Act of 1995. Subsequently counsel for the appellant wrote to inform us of the 1996 amendment. We then received supplementary submissions about that amendment from the parties. The curious proclamation procedure whereby s17 - the transitional provisions - of the 1995 amendment was brought into operation simultaneously with the coming into force of the 1996 amendment, which repealed subss (4), (5) and (6) of s17 and replaced them with a new subs(4) - another transitional provision -, had the effect of applying the new transitional provision to the Workers Rehabilitation and Compensation Act 1986 as in force before the passing of the amending Act of 1995. I do not accept Mr Quick's submission to the contrary. However, it matters little from my point of view, because my reasoning and conclusion with respect to the 1995 amendment, as set out in the main body of this judgment, apply for substantially the same reasons to the new subs(4). The competency submission should be rejected, in my opinion, whichever transitional provision applies.

LANDER J

I agree that the repeal of Part 6 of the principal Act by s13 of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 does not render this appeal incompetent. The appellant's right to appeal to this Court is preserved by the transitional provisions in s17 of the amending Act as further amended by s6 of the Workers Rehabilitation And Compensation (Dispute Resolution) Amendment Act . The proceedings referred to in s17(4) of the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act as amended include the right to appeal to the Workers Compensation Appeal Tribunal under s97 of the principal Act and the more limited right to appeal to this Court pursuant to s100 of the principal Act.

If the effect of the repeal of Part 6 of the principal Act and the substitution of Parts 6, 6A and 6B by the amending Acts is as Mr Quick QC argued for the respondent, then a person affected by a reviewable decision, who has commenced proceedings before 3 June 1996 has no right of appeal from a decision of a Review Officer. Nor, if the argument is right does that person have any right to have that decision reviewed or considered on appeal under the amending legislation.

The Corporation now argues that the appeal provisions, of which it took advantage, were repealed prior to the lodging of its notice of appeal from the decision of the Review Officer. Indeed if the argument is right, the respondent was not entitled to appeal, as it did, from the Review Officer to the Tribunal. Logically, if Mr Quick's argument is right, the appellant is entitled to have the benefit of the decision of the Review Officer because the Corporation did not at any time have a right to appeal to the Tribunal. The Corporation cannot have it both ways. If it was entitled to appeal then so is the appellant. If the appellant is not entitled to appeal neither was it.

However for the reasons given by both Cox and Bleby JJ that the transitional provisions preserve the appellant's right to appeal I agree that this appeal is competent.

The worker appellant appealed to this Court against the decision of the Tribunal remitting the matter to another Review Officer in circumstances where the Tribunal was unsure that the Review Officer had erred in his understanding of the evidence. It was argued by the appellant that the Tribunal was not entitled to allow an appeal from a decision of the Review Officer unless the Tribunal was satisfied that there was error on the part of the Review Officer which vitiated his decision.

The appellant argued that the matter ought to be remitted to the Tribunal for a consideration of the remainder of the respondent's grounds of appeal to the Tribunal.

The respondent argued that by reference to the evidence it could be demonstrated that the Review Officer had proceeded under a misunderstanding and that the Tribunal was right to allow the appeal and remit the matter to another Review Officer.

The appeal comes before this Court on a limited basis, pursuant to the leave granted by Matheson, Olsson and Williams JJ, on a matter of law only and limited to the grounds of appeal raised. The respondent did not seek to raise by way of alternative contention that the decision was right for any other reason. I do not mean that the Corporation ought to have raised an alternative contention nor even that it could, but I simply observe that none was raised. The appeal therefore falls to be decided only on the matters of law for which the appellant was given leave raised in the Notice of Appeal.

The question before this Court was not whether the Review Officer was right to find that the appellant did not receive overtime within the meaning of that expression in the Workers Rehabilitation and Compensation Act but whether the Tribunal was right to allow an appeal from the Review Officer without first concluding that the Review Officer had acted upon a wrong assumption.

The Tribunal has not yet determined whether the Review Officer was correct in deciding that the appellant did not receive overtime. That is because, as the learned Deputy President said:

"Although there were a variety of arguments advanced by the Corporation in support of this appeal, I find, that for present purposes, it is only necessary for me to deal with one, namely the complaint that the Review Officer seemed to have proceeded on the assumption that the actual hours worked by the worker was not an issue between the parties."

I agree for the reasons given by Cox and Bleby JJ that the learned Deputy President did err.

I agree that the appeal ought to be allowed, the order of the Tribunal set aside and the matter remitted to the Tribunal for a consideration of the respondent's other grounds of appeal to that Tribunal.

BLEBY J

The appellant commenced employment with a firm called Alltype Scaffold Erectors ("the employer") in January 1990 as a scaffolder working on the REMM site at Adelaide. The REMM site was the site of a major retail and office development in the Central Business District of Adelaide. The employer was a subcontractor engaged on the project. The appellant worked long hours. On 29 April 1991 he sustained an injury and became incapacitated for work, as a result of which he was paid compensation by way of income maintenance in accordance with the provisions of the Workers Rehabilitation and CompensationAct 1986 ("the Act"). Those payments were to be equal to his "notional weekly earnings" which was relevantly defined in the Act as meaning his average weekly earnings. They were to be determined in accordance with s4 of the Act. That section relevantly provided as follows:

" 4. (1) Subject to this section, the average weekly earnings of a disabled worker are the average amount that the worker could reasonably be expected to have earned for a week's work if the worker had not been disabled.

(2) For the purpose of determining the average weekly earnings of a worker -

...

( b ) subject to subsection (3) -

(i) the actual weekly earnings of the worker over a period of up to 12 months before the relevant date may be taken into account;

...

(3) (Not relevant)

...

(8) For the purposes of determining the average weekly earnings of a worker -

( a ) any component of the worker's earnings attributable to overtime will be disregarded unless -

(i) the worker worked overtime in accordance with a regular and established pattern;

(ii) the pattern was substantially uniform as to the number of hours of overtime worked;

and

(iii) the worker would have continued to work overtime in accordance with the established pattern if he or she had not been disabled;

and

( b ) any prescribed allowances will be disregarded."

For most weeks the appellant was working approximately 60 hours per week, and that was reflected in the level of weekly payments made. I infer that there was no dispute as to the level of weekly payments made immediately after his injury.

On 14 January 1992 the respondent, acting pursuant to s36(2)( bb ) of the Act, made a determination reducing the weekly payment from $1,048.80 per week to $668.68 per week, effective from 6 February 1992, the difference representing what was said to be the overtime component in his average weekly earnings.

Section 36(2)( bb ) read: "(2) Subject to this Act, weekly payments to a worker who has suffered a compensable disability shall not be reduced unless -

...

( bb ) where the weekly payments include a component for overtime - the Corporation is satisfied that if the worker had continued in the work in which he or she was last employed before becoming incapacitated, he or she would not have continued to work overtime or the pattern of overtime would have changed so that the amount of overtime would have diminished;"

It was said that the appellant's weekly payments included a component for overtime, and that overtime was no longer available with the appellant's employer due to a shortage of work. The reduction in payment represented the overtime component.

We do not know the terms of the original determination fixing the weekly payment, and whether that payment included an identifiable component for overtime. It would not be surprising if it did not, as that would be consistent both with the view that his average weekly earnings did not contain a component attributable to overtime and with the view that they did but were brought into the calculation by s4(8)(a) of the Act.

The appellant successfully sought a review by a Review Officer of the Corporation's determination. That review, although hearings commenced in July 1992, was not completed until 17 May 1996. One of the questions before the Review Officer was whether the weekly payments of compensation included a component for overtime (s36(2)( bb )). Absent any identification of such in the original determination, the question then became whether there was any component of the appellant's earnings attributable to overtime which had not been disregarded for the purpose of calculating the appellant's average weekly earnings (s4(8)( a )). The Review Officer considered that the appellant's average weekly earnings did not include a component which could be said to be attributable to overtime. Accordingly, the determination of the respondent was set aside.

By Notice of Appeal dated 12 June 1996 the respondent appealed to the Workers Compensation Appeal Tribunal. The matter was heard by the Tribunal on 11 November 1996, and by order dated 31 January 1997 the appeal was allowed and the matter remitted back "to the Review Panel" for a re-hearing do novo . I will need to make further reference to the reasons for decision of the Tribunal in due course.

From that order the appellant made application to this Court for leave to appeal to the Full Court, which application was granted by a differently constituted Full Court on 8 April 1997. In accordance with that leave the appeal was argued before this Court. I shall return to the grounds of appeal later.

Mr Quick QC, who appeared for the respondent, argued that the appeal was incompetent by virtue of amendments to the Act contained in the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1995 (Act No. 75 of 1995). Those amendments substantially altered the system of appeals and reviews which had prevailed prior to that date. It is therefore necessary to resolve the question of the competency of the appeal before dealing with the substantive issues.

Prior to that amendment s97 of the Act read as follows: " 97. (1) An appeal lies to the Tribunal against a decision by a Review Officer on a review.

(2) Such an appeal may be instituted by -

( a ) any person directly affected by the decision;

( b ) the employer, or former employer, of a worker directly affected by the decision;

or

(c) the Corporation.

(3) An appeal must be in the prescribed manner and form and must be instituted within one month after the appellant receives notice of the decision of the Review Officer unless the Tribunal allows a longer time for the institution of the appeal.

(4) A notice of appeal must state with reasonable particularity the grounds of appeal and the relief sought on the appeal.

(4a) The Registrar must notify the Review Officer of the institution of an appeal.

(4b) The Review Officer must, as soon as practicable after receiving notification under subsection (4a), send to the Registrar -

( a ) any application, documents, written submissions, statements, reports, and other papers lodged with, or received by, the Review Officer during the course of the earlier proceedings;

( b ) any relevant exhibits in the custody of the Review Officer;

(c) a copy of any notes of evidence made by or at the direction of the Review Officer during the course of the earlier proceedings;

and

( d ) a copy of the decision appealed against.

(4c) The Tribunal may, on an appeal under this section -

( a ) examine any papers, exhibits and notes submitted under subsection (4b) and draw any conclusions of fact from them it considers proper;

( b ) direct the Review Officer to furnish a report (which must be made available to the parties to the appeal) on any aspect of the subject matter of the appeal.

(4d) Subject to subsection (4e), the Tribunal has a discretion to rehear the whole or any part of the evidence taken before the Review Officer, or to take further evidence.

(4e) The Tribunal must, on the application of a party to the appeal -

( a ) rehear evidence taken before the Review Officer if the evidence is relevant to the appeal and the record of the evidence is incomplete or inaccurate in a material particular;

( b ) hear oral evidence relevant to the appeal from a witness from whom evidence was taken in documentary form by the Review Officer;

( c ) take further evidence if the evidence is relevant to the appeal and the party seeking to introduce it could not reasonably be expected to have done so in the proceedings before the Review Officer;

( d ) take evidence if -

(i) the evidence is relevant to the appeal;

and

(ii) there is some substantial reason for admitting the evidence in the interests of justice.

(4f) A party must be afforded a reasonable opportunity to examine or cross-examine witnesses appearing before the Tribunal.

(5) On an appeal under this section, the Tribunal may exercise any one or more of the following powers -

( a ) confirm, vary, set aside or reverse the decision under appeal;

( b ) refer the subject matter of the appeal, or any matter arising in the course of the appeal, back to a Review Officer with directions or suggestions the Tribunal considers appropriate;

( c ) make incidental or ancillary orders.

...

(8) On an appeal to the Tribunal under this section against a decision of a Review Officer, the Tribunal may, on such terms and conditions as it thinks fit, order that the operation of the decision subject to the appeal be stayed wholly or in part until the appeal is decided or until further order by the Tribunal."

Section 100 conferred a right of appeal by leave of the Supreme Court against a decision of the Tribunal to the Full Court of the Supreme Court, the appeal being limited to a question of law.

By the amending Act No 75 of 1995, a completely different system of dispute resolution was enacted. If a reviewable decision (s89A) is made which is disputed, notice of dispute can be lodged with the Registrar (s90). The compensating authority then has to review the disputed decision (s91). If that review still results in dispute, the matter is referred to conciliation in accordance with Part 6A, Division 4 before a presidential member or conciliation officer of what is now known as the Workers Compensation Tribunal. If conciliation proceedings do not result in an agreed settlement, the conciliator is to refer the dispute to the Tribunal for arbitration or for judicial determination (s92D). A matter can also be referred for judicial determination if a party is dissatisfied with the result of an arbitration (s94). In most cases, the judicial determination comes before the Tribunal constituted of a single presidential member (s94A). By virtue of s86, an appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal. There is no further right of appeal to this Court, but a Full Bench of the Tribunal may state a case on a question of law for the opinion of this Court (s86A).

These new provisions took effect on 3 June 1996 (Government Gazette 30 May 1996 p2636). This was after the determination of the Review Officer but before the date of the Notice of Appeal to the Tribunal.

Act No 75 of 1995 contained some transitional provisions. They relevantly provided as follows: " 17. (4) If proceedings before a Review Officer had been substantially commenced under the principal Act as in force before the commencement of this Act (the 'former legislation' ), the proceedings may be continued and completed under the provisions of the former legislation.

(5) If a reviewable decision had been made under the former legislation before the commencement of this Act but, as at the commencement of this Act, proceedings for review of the decision had not been commenced or had not been substantially commenced, proceedings for dispute resolution may be commenced under the new legislation within one month after the commencement of the new legislation or a longer time allowed by the President or a Deputy President or conciliation officer to whom the President has delegated the power to allow an extension of time.

(6) The question whether proceedings before a Review Officer have been substantially commenced may be determined, in the event of a dispute, by the President or a Deputy President to whom the President has delegated powers under this subsection and the determination is final and without appeal." At the trial it was argued that these provisions did not allow an appeal to this Court. It is not necessary to recite the detail of that argument, because the argument failed to take account of a further amending Act, namely the Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act 1996 (Act No 21 of 1996). That Act made some further amendments to the principal Act and also amended s17 of Act No 75 of 1995 by substituting subsections (4), (5) and
(6) of s17 (quoted above) with some different transitional provisions. Act No 21 of 1996 also took effect on 3 June 1996 (Government Gazette 30 May 1996, p2636), and so the original transitional provisions never took effect. The relevant transitional provisions to Act No 75 of 1995 then became the following: "(4) The new legislation applies to reviewable decisions made under the principal Act before or after the commencement of this Act, but if proceedings were commenced before the commencement of this Act in relation to a reviewable decision -

( a ) the proceedings may only be continued and completed under the principal Act as in force before the commencement of this Act; and

( b ) new proceedings cannot be commenced under the new legislation is relation to the same decision.

(5) The President may make rules, or give directions, governing practice, procedure or evidence in relation to proceedings that continue under subsection (4)."

Since reserving judgment on the appeal we have had the benefit of written submissions relating to the effect of Act No 21 of 1996. Mr Quick QC maintained his argument that the transitional provisions of Act No 75 of 1995 continued to apply to these proceedings. However, it seems to me that that submission fails to take account of the coincidence of the commencement of the relevant parts of the two amending Acts, and I reject the argument.

As I understand his written submissions, Mr Quick concedes that the word "proceedings" in the amended s17(4) refers to the whole of the review/appeals process up to and including completion of the last stage of that process. It does not refer to individual steps in that process. I agree, and as these proceedings (in that sense) were commenced before 3 June 1996, the original provisions unamended by Act No 75 of 1995 would therefore apply. I should perhaps elaborate on my reasons for so deciding.

"A reviewable decision" made under the Act before the amendments took effect was defined by s3 to mean "a decision that is subject to review and includes a provision of a rehabilitation and return to work plan that is subject to review". A decision that was subject to review was a decision either by the Corporation or by an exempt employer on a claim for compensation or a decision to vary, suspend or discontinue weekly payments and other similar types of decisions (s95). Thus, the decision of the respondent made on 14 January 1992 was a reviewable decision for the purposes of s17(4) of the transitional provisions. Proceedings were plainly commenced before 3 June 1996 (the commencement of the amending Act) in relation to that decision. Those proceedings were the proceedings before the Review Officer for a review of that decision. By virtue of s17(4)( a ) of the transitional provisions those proceedings "may only be continued and completed under the principal Act as in force before the commencement of this Act". In my opinion, this includes an appeal (whenever commenced) from those proceedings, including an appeal by leave on a question of law to this Court. If subsequent appeals are not included in the word "proceedings" then the appellant was, by virtue of s17(4) of the transitional provisions, in an anomalous position whereby no further appeal could be taken under the former provisions, and no new proceedings could be commenced under the Act as amended.

However, in any event, even if the word "proceedings" in subs(4)( a ) does not include appeals beyond the proceedings then in train, s16 of the ActsInterpretation Act 1915 would ensure that those rights of appeal were preserved. Section 16 reads: " 16 (1) Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not -

...

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry;

...

(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.

(2) Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).

(2a) Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as if the repeal or amendment had not been effected, or as if the expired Act or enactment had not expired (as the case may be).

(3) Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.

(4) In this section -

'legal proceeding' includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature."

This section preserves a right of appeal from a court or tribunal even where the right of appeal has been abolished before the opportunity arises for its exercise: Colonial Sugar Refining Co Ltd v Irving [1905] AC 369. That decision applied principles of the common law, but in my opinion it has equal application to a right to which s16 of the Acts Interpretation Act refers. If the amending Act did not preserve the appellant's right of appeal to the Tribunal, then s16 of the Acts Interpretation Act did, and it preserved his further right to apply to this Court for leave to appeal against the Tribunal's determination.

In my opinion, therefore, "proceedings" referred to in s17(4) includes not only proceedings then in train before a review officer, the Tribunal or this Court as the case may require, but any appeal against the decision, which can properly be regarded as a continuance of the original proceedings. That would include an appeal to this Court. However, if the transitional provisions did not have that effect, his rights were preserved by s16 of the ActsInterpretation Act.

In my opinion therefore, the appeal is competent and may properly be entertained by this Court.

I turn then to the merits of the appeal.

Before I deal with the decision of the Tribunal, the immediate subject of the appeal, it is necessary to return to the proceedings before the Review Officer. For the purposes of the Act, the Review Officer was a "review authority". Section 88 of the Act provided: " 88. (1) In proceedings under this Act, a review authority -

(a) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms;

and

(b) is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks fit.

(2) ...

(3) ...

(4) A review authority must, in conducting its proceedings under this Act, act as expeditiously as possible."

Section 96(1a) and s97(4b)( a ) also envisage that the Review Officer will receive documents and other material other than formally marked exhibits.

The appellant gave sworn evidence before the Review Officer, and the Review Officer had a number of documents before him, presumably made available by the Corporation, but comprising the documents on which it had made its original determination. The appellant gave evidence of his original engagement in January 1990. According to him the representative of his employer described the REMM site to him as a "60 hour site". He was asked what his understanding of that term was, as used in that conversation. He said:

"My understanding was that I would be required to work 60 hours a week and if I wasn't prepared to work 60 hours, then I shouldn't take the job or if I was going [to] work under 60 hours I would be sacked."

As to the hours actually worked, he acknowledged that he did not work 60 hours every week but generally did so. On the occasions that he worked fewer than 60 hours he said it would have been due either to inclement weather or being sent home because of industrial action on the part of other workers or because some occupational health and safety issue had arisen at the site. By reference to a set of computer produced wage records, apparently relating to the applicant and covering the period November 1990 to 10 June 1991, it was put to him that there were many weeks in which he had in fact worked fewer than 60 hours. He was not prepared to accept that the records accurately represented the hours that he worked, although he did not dispute that the wage records were those of his employer. There was no attempt by the respondent to prove the accuracy of the hours worked as indicated on the wage records.

Documents before the Review Officer indicated that following the settlement of some industrial problems at the site, a Site Agreement between the head contractor and all unions involved had been reached. That portion relating to hours of work read as follows: "HOURS OF WORK

Work may be performed on the site 24 hours per day seven days per week.

On completion of gantry erection, demolition, excavation and retention stages, the following is the spread of hours within which ordinary working hours may be worked:- TABLE
F rom 1 st April - 31 st August
From 1 st September - 31 st March
Day work
7.00 a.m. - 5.30 p.m.
Day work
6.00 a.m. - 4.30 p.m.
Night Shift
7.30 p.m. - 6.00 a.m.
Night Shift
7.30 p.m. - 6.00 a.m.
Each employee will generally , as required , work six days per week 10 hours each day or six night shifts per week, 10 hours each shift. It is expected that these hours will be worked for the balance of the Project." (my emphasis)

The appellant gave evidence that he had also signed a document some time after 9 May 1990 entitled "Offer of Employment". Although the signed copy was not before us, it was in the following form: " OFFER OF EMPLOYMENT (1)

TO: ..............................................................

We are pleased [to] offer you employment as a ............................... on the Remm/Myer project, Rundle Mall, Adelaide.

Your terms and conditions of employment will be governed by this offer, the Building and Construction Workers' (State) Award and the Remm Site Industrial Agreement .

Hours of Work are as follows:-

From 1 April to 31 August 1990

Day Work - 7.00 a.m. to 5.30 p.m. Night Work - 7.30 p.m. to 6.00 a.m.

From 1 September 1990 to 31 March 1991

Day Work - 6.00 a.m. to 4.30 p.m. Night Work - 7.30 p.m. to 6.00 a.m.

You will generally , as required , work six days per week, 10 hours each day/six night shifts per week, 10 hours each shift. It is expected that these hours will be worked for the period of your employment. You are employed for day work/night work.

Work may be performed on the site 24 hours per day, seven days per week. This means that you may be required to work on any day/night of the week, including Public Holidays. Additional overtime as required by the project may be worked from time to time.

You will also be required to comply with the order of Commissioner Perry made in the Industrial Commission on 9 April 1990 (namely; you are not, whether directly or indirectly, to be a party to or concerned in the imposition or continuation of any ban, limitation or restriction on the performance of any work on any day or on night shift (in each case, including weekends)) and the order of the Federal Court made on 9 May 1990.

If you wish to accept employment with ............................................... and the conditions outlined above you are required to sign the copy of this letter prior to employment.

If, after acceptance and commencement of work, you do not abide by the above conditions for any reason you may be summarily terminated for breach of this contract of employment.

Signed ...........................................

I accept employment with .................................................................... on the terms and conditions as set out above.

Signed ........................................... Date / / ." (my emphasis) The Review Officer did not have before him a copy of the Building and Construction Workers' (State) Award. It appears that the REMM Site Industrial Agreement was the agreement, portion of which in relation to hours of work I have quoted above. Just as the phrase "ordinary time rate of pay" is well known in the industrial relations field in Australia ( Scott v Sun Alliance Australia Ltd (1993) 178 CLR 1 at 5), so the phrase "spread of hours in which ordinary working hours may be worked" is also as well known as referring to the prescription of times of the day between which ordinary time hours may be worked without incurring overtime penalties, subject to not exceeding a stated maximum number of hours within that period, and that hours worked outside that spread are paid at overtime rates.

From the oral evidence of the appellant and the documents (other than the computer pay records) to which I have referred, none of which were disputed before the Review Officer, the following conclusions of fact could readily be drawn: 1. That the appellant would not have been offered employment at the site unless he was willing to work at least six days per week, 10 hours each day;

2. The obligation to work those hours was "as required";

3. The terms and conditions of employment were not only contained in the offer of employment and signed by the appellant but were also contained in the relevant award and the REMM Site Industrial Agreement;

4. The appellant was not always required to work the hours specified. There were some occasions, albeit attributable to inclement weather or industrial disputes or occupational health and safety matters, whereby the employer reserved the right not to offer work to the appellant. There may well have been other reasons why work was not performed from time to time, relating either to the employer's requirements or to some form of leave granted by the employer;

5. During most weeks the appellant did in fact work 60 or more hours per week.

6. It was not possible to say with any precision just how many hours were worked each week by the appellant.

The appellant also gave evidence as to the method of payment to the effect that he was paid in accordance with the award. Although the award was not formally before the Review Officer, there was no doubt from the appellant's evidence that he was paid at a greater rate for hours worked in excess of 40 per week, or 8 per day. Although he disputed the number of hours worked as shown on the computer pay records produced to him, those pay records were nevertheless part of the material before the Review Officer. Counsel for the respondent did not ask the Review Officer to receive them "because they're not in accordance with (the appellant's) recollection of the matter" (relating to hours worked), but the Review Officer shortly thereafter stated that they were evidence as far as he was concerned. Without further proof, and in the light of the appellant's evidence as to the hours he worked, they were of limited value in proving the actual hours worked by the appellant. But for each week they also gave a breakdown of how the pay for that week was made up. It included the number of hours, the hourly rate and the amount for each of "normal pay", "time and a half" and "double time", together with other items. The appellant never disputed, and indeed seems to have accepted that his weekly pay was calculated to include those components.

The issue before the Review Officer was whether, in those circumstances, the decision of this Court in Workers Rehabilitation and Compensation Corporation v Harle (1993) 61 SASR 507 applied. The Review Officer considered that it did. He said: "It is agreed and I find that the worker was required to work and worked 6 days per week, 10 hours each day. He was paid in accordance with the Building and Construction Workers (State) Award and the Remm Site Industrial Agreement.

The applicants offer of employment (Exhibit 1) clearly determines the relationship between the worker and the employer. It indicates the employer's minimum requirement that the work will be performed 60 hours per week. Employment is conditional upon the acceptance of this requirement. Given this requirement I consider that the worker's regular or usual hours of work are those negotiated as part of his contract of employment as set out in Exhibit 1 (see Harle's Case op cit). The workers ordinary hours of work means the regular, normal, customary or usual hours of work that he performs (see Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362). In this case, clearly the applicant's normal or regular hours of work were 60 hours per week. In calculating the rate of remuneration for the negotiated span of hours to be worked, the parties had reference to the award overtime prescriptions, but the use of rates specified in the award does not establish that the time worked was overtime for the purposes of the Act (see Harle's case op cit). It is the ordinary hours provided for in a particular award or contract which is important (see Harle's case op cit). It is the actual span of hours ordinarily worked which is definitive rather than any award prescription or the provisions of a contract based on the award (see Harle's case op cit).

Given the facts of this matter and the principles outlined in Harle's case, I find that the span of hours for which the worker was engaged (ie sixty hours per week) were his regular or ordinary hours of work. A worker engaged on such terms, notwithstanding the terms of the relevant award can contend that his normal hours of work are defined by the arrangement that he entered into with his employer (see Harle's case op cit). Overtime within the context of this matter means time worked beyond the worker's normal hours of work, ie. Beyond the minimum sixty hours per week. I find that the applicant is entitled pursuant to Section 4 of the Act, to the ordinary wage he would have received if he had not been incapacitated for work as a consequence of the compensable disability (see Kezich's case op cit)."

For reasons which will become apparent, the passage of the Review Officer's decision which received most attention in argument before us was the first sentence in the extract quoted. I have little difficulty in concluding that the use of the present tense indicated that the Review Officer was reciting that counsel for the parties had agreed with what followed. It is equally clear from the proceedings, that counsel did not agree that the worker had in fact worked six days per week, 10 hours per day. Even the worker admitted to some exceptions from that general rule. The phrase "I find that the worker was required to work ..." can have a number of meanings. Three possible meanings occur to me: 1. That the worker was required to agree to work 60 hours every week or he would not be offered employment;

2. That the worker was required to agree to work 60 hours per week if required; or

3. That the worker, having been engaged to work on the site, was in fact required to work 60 hours each week. There can be little doubt that the first two alternatives were factually correct, and I think it is correct to say that such matters were agreed. It was not agreed, however, that the third alternative was correct.

What follows from that does not much matter for present purposes. I only mention it because it assumes some significance in the proceedings which later took place before the Tribunal. However, if the Review Officer intended the third alternative, not only was it wrong (because the requirement was sometimes relaxed), but it seems to have been influential in the determination that 60 hours represented the worker's "regular or usual" hours of work which, for that reason, so the Review Officer found, brought him within Harle's case .

A number of grounds of appeal were argued on the appeal before the Tribunal, most of which were directed to challenge the applicability of Harle's Case to the facts of this case. The Tribunal found it necessary to deal with only one ground. The Tribunal said: " Although there were a variety of arguments advanced by the Corporation in support of this appeal, I find, that for present purposes, it is only necessary for me to deal with one, namely the complaint that the Review Officer seemed to have proceeded on the assumption that the actual hours worked by the worker was not an issue between the parties.

It was an issue, indeed, it was one of the critical issues to be resolved.

There were several passages in the transcript of the review hearing, that suggested that the Review Officer understood this issue to be non-contentious. Moreover there was the following statement in the Review Officer's reasons for decision namely:-

'It is agreed and I find that the worker was required to work and worked six days per week, 10 hours each day.'

I am far from convinced that the comments made by the Review Officer during the review hearing and the above statement as contained in his reasons for decision, necessarily reflect a misunderstanding by the Review Officer as to the position of the parties. I suspect, that they might simply reflect, no more than an understanding on his part that it was agreed that the worker worked long hours.

But, given that this issue was critical to determining the fate of the application for review, it seems to me, that if I am left in any doubt as to whether a misunderstanding might have polluted the ultimate findings of the Review Officer (and I am), I should err on the side of caution and allow the appeal."

No doubt it was because of the apparent confusion in the findings of the Review Officer that the Tribunal was persuaded to remit the matter for re-hearing.

It is unfortunate that the Tribunal limited itself, in its consideration of the appeal, to one question, namely the complaint that the Review Officer seemed to have proceeded on the assumption that the actual hours worked by the worker was not an issue between the parties. It is equally unfortunate that the Tribunal merely expressed some doubt about whether the Review Officer misunderstood the position and some doubt as to whether the misunderstanding (if it occurred) might have polluted the ultimate findings of the Review Officer. It seems that it was only because of those doubts that the Tribunal allowed the appeal.

I turn to the grounds of appeal to this Court. Ground 1 reads as follows:

"1. The Tribunal erred in allowing the appeal when, on its own finding, the respondent (Appellant in the Tribunal) had not discharged the onus on it to demonstrate that the Review Officer had in fact erred."

Despite the fact that this appeal was by way of re-hearing on the documents ( Simpson Ltd v Arcipreste (1989) 53 SASR 9) the appellant nevertheless bore an onus to persuade the Tribunal that the Review Officer had erred ( Simpson Ltd v Arcipreste ( supra )). It follows that the Tribunal had to be satisfied as to the necessary error before interfering. The Tribunal's mode of expression suggests that it did not enjoy the necessary degree of satisfaction that there were errors of fact or reasoning which could have affected the result ( Churchill v Badenoch's Transport Ltd (1971) 1 SASR 63 per Bray CJ at 65). In other words, the Tribunal did not go far enough in what it said to justify the allowing of the appeal against the Review Officer's decision. In my opinion, this ground is made out, and this appeal must be allowed.

Ground 2 reads as follows:

"2. The Tribunal, having found that it was left with a 'doubt as to whether a misunderstanding might have polluted the ultimate finding of the Review Officer', erred in not proceeding to find whether that misunderstanding actually polluted the ultimate findings of the Review Officer."

The "misunderstanding" referred to in this ground appears to be referring to what the Review Officer considered to be the agreement between the parties recorded in the sentence "It is agreed and I find that the worker was required to work and work to six days per week, 10 hours each day.". As I have pointed out, insofar as it relates to an agreement concerning the requirement to work, it refers to three possible states of affairs. In any event, the agreement, as to which the Tribunal said there was a misunderstanding, appears to have referred also to an agreement that the appellant in fact worked six days per week, 10 hours each day.

The allegation in this ground is that the Tribunal erred in not proceeding to find whether that misunderstanding actually polluted the ultimate findings of the Review Officer. I agree. The Tribunal did err in that manner. What the Review Officer should have found if he had correctly applied the law is a matter yet to be resolved.

Ground 3 reads as follows:

"3. The Tribunal erred in that it failed to consider whether, irrespective of the statement in the Reasons for Decision of the Review Officer which may have reflected a misunderstanding, the result was none the less correct on all of the evidence."

This ground is also made out. The Tribunal did fail to consider whether the result was nonetheless correct on all of the evidence. That question is still unresolved. In my view it is still an open question as to whether the worker's hours were regular or usual was ever a relevant inquiry in the circumstances of this case. That has not been argued before us.

Ground 4 reads as follows:

"4. The Tribunal erred in allowing the respondent (Appellant in the Tribunal) to pursue its case in the Tribunal in a manner inconsistent with the manner in which it had pursued its case before the Review Officer."

This was not argued as a discrete ground before us. As far as I can see, from a review of the proceedings before the Tribunal, the only attempt by the respondent to pursue a different case before the Tribunal was by means of an attempt to introduce computer pay records additional to those which had been before the Review Officer and covering an earlier period. The tender of those records was rejected by the Tribunal after substantial argument. I do not believe that this ground is made out.

Ground 5 reads as follows:

"5. The Tribunal erred in remitting the matter to the Review Panel for a rehearing de novo by a different Review Officer when the error on behalf of the Review Officer identified by the Tribunal could and should have been corrected by the original Review Officer making findings on the evidence before him, or by the Tribunal making findings on the same evidence."

I agree with this ground. The remittal to another Review Officer was premature and may not be necessary at all on a proper consideration of the grounds of appeal.

I would therefore allow the appeal and quash the order that the matter be remitted back to the Review Panel for rehearing. I would remit the matter to the Tribunal for further consideration of the respondent's appeal. By doing so I would not wish it to be thought that the decision of the Review Officer was necessarily correct or that Harle's Case was correctly applied by the Review Officer. That question has not been argued before us.