Taboada, Monica v Baptist Community Services NSW & Act
[1996] FCA 569
•20 Jun 1996
FOR LIMITED DISTRIBUTION
CATCHWORDS
APPEALS - practice and procedure - proceedings for payment of workers' compensation under s.26 of the Workers' Compensation Act 1951 (ACT) - power of Supreme Court to receive further evidence on appeal under s.391 of the Magistrates Court (Civil Jurisdiction) Act - appeal by way of re-hearing - jurisdiction of Supreme Court to vary or discharge award by arbitral tribunal - appellate jurisdiction conferred upon Supreme Court
Workers' Compensation Act 1951 (ACT), s.26
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), ss.391, 393
Uranerz (Australia) Pty. Ltd v Hale (1980) - cons.
Ferguson v University of New South Wales (1983) 49 ACTR 15 - dist.
Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v Dignan (1931) 46 CLR 73 - cons.
MONICA TABOADA v BAPTIST COMMUNITY SERVICES NSW & ACT
No. ACT G8 of 1996
GALLOP, BEAUMONT AND HEEREY JJ.
CANBERRA
20 JUNE 1996
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G8 of 1996
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MONICA TABOADA
Appellant
AND:BAPTIST COMMUNITY SERVICES NSW & ACT
Respondent
CORAM: GALLOP, BEAUMONT AND HEEREY JJ.
PLACE: CANBERRA
DATE: 20 JUNE 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G8 of 1996
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MONICA TABOADA
Appellant
AND:BAPTIST COMMUNITY SERVICES NSW & ACT
Respondent
CORAM: GALLOP, BEAUMONT AND HEEREY JJ.
DATE: 20 JUNE 1996
REASONS FOR JUDGMENT
GALLOP J.: I will ask Beaumont J. to give the first judgment.
BEAUMONT J.: This is an appeal from a judgment of Miles C.J. sitting in the Supreme Court of the Australian Capital Territory allowing an appeal from an award of a Magistrate pursuant to the Workers' Compensation Act 1951 ("the Act").
In order to understand the issues that arise on the appeal, it will be necessary to give an explanation of the history of the dispute between the parties.
There were before the learned Magistrate two applications.
The first was an application by the present respondent for arbitration under the Act with respect to the review and termination of the weekly payments payable to the present appellant in respect of personal injury, caused by an accident arising out of and in the course of her employment with the respondent. In this application, the respondent sought an award to the effect that the agreed amount of compensation be terminated as of 10 December 1993, and that an order be made for the stay of payments from the date of the application, namely, 7 April 1994. The grounds on which this determination was claimed were, it was said, that the appellant had ceased to be totally incapacitated for work by 10 December 1993. Other grounds were relied on which are not presently material.
The second application before the Magistrate was an application by the present appellant in which she claimed that she had been employed by the respondent, and that on 10 March 1993, whilst working as a nurse, had suffered an injury to her lower back whilst lifting a patient. She claimed that she had been incapacitated for the following periods: first, 14 March to 26 March 1993; second, 1 April to 18 April 1993; and third, 9 September 1993 to date, "and continuing". She claimed as compensation total incapacity benefits from 10 September 1993 to date "and continuing" together with medical and out-of-pocket expenses from 15 March 1994 to date "and continuing".
The dispute came before the Magistrate for hearing in May, 1995, and an award was made later in that month. In her reasons for the award, the Magistrate considered the medical evidence before her and concluded that, on the balance of probabilities, she preferred the evidence given by the medical practitioners called on behalf of the appellant. She went on to say:
"Accordingly, I find that the [appellant] remained totally incapacitated for work as at 10 December 1993, and that that incapacity was as a result of the injury the [appellant] suffered on 10 March 1993 whilst working for the applicant. Further, although all doctors say that the respondent is now physically capable to perform the job of a Recreational Activities Officer that does not involve lifting patients or pushing wheelchairs, that was the only occupation on which there was any agreement and which I am satisfied fits into the respondent's sphere of qualifications.
Mrs. Prindable's evidence [Mrs. Prindable was an officer of the respondent] was that the job was offered in September 1993, but there was no evidence given with regard to the availability of such a position on the day of the hearing. On that basis and the evidence of the respondent's doctors, I am of the view on the balance of probabilities that the respondent remains totally incapacitated to date."
The Magistrate went on to find that she was satisfied on the balance of probabilities that, in the course of her employment on 10 May (scilicet March) 1993, the appellant had suffered an injury to a lumbar intervertebral disc and that by reason of that injury, she was totally incapacitated for work during the three periods set out above.
In the formal award published, there was set out a statement of the findings previously mentioned, together with a finding that the appellant had been totally incapacitated for work in respect of those three periods, including the "continuing" aspect; and a finding that the appellant had been partially incapacitated and unable to perform normal duties as a nurse for the following periods: 20 April to 13 June, 1993; and 21 July to 8 September, 1993. The formal award went on to order that the respondent pay compensation to the appellant, in accordance with the Act, on the basis of total incapacity for the three periods there specified, including the "continuing" aspect.
The respondent appealed from that award to the Supreme Court.
The grounds of its appeal were that the learned Magistrate had erred in finding that the appellant was totally incapacitated as at 10 December, 1993 and remained so on 9 May, 1995; that the award was contrary to the evidence and to the weight of the evidence; and that the Magistrate took into account irrelevant matters and failed to take into account relevant matters. The respondent sought orders that the award be set aside, that the agreed amount of compensation paid to the appellant be terminated as of 10 December 1993, and that payments of compensation be stayed as from 7 April, 1994.
When the matter came before Miles C.J. in the Supreme Court in October 1995, a question arose as to the power of the Court to take fresh evidence. There was argument on the point, and in circumstances to be described shortly, his Honour permitted the respondent to adduce further evidence about what work was then available for the appellant.
In his reasons for judgment given on 7 February 1996, the learned Chief Justice referred to the passage in the reasons for the award (cited above) in which reference was made to the position of a Recreational Activities Officer, which position had been offered to the appellant. It will be recalled that the Magistrate had then gone on to say that there was no evidence before her with regard to the availability of such a position on the day of the hearing, and that on this basis, and the evidence of the appellant's doctors, the Magistrate was of the view, on the balance of probabilities, that the appellant remained totally incapacitated at that time.
The Chief Justice said:
"I have to say that this was a very unsatisfactory way to determine the two competing applications for arbitration. The case had proceeded for three days before the Magistrate and she handed down her decision with commendable speed four days later. It is understandable that the Magistrate should seek to finalise the applications before her on the evidence that had been given. But the decision itself, far from determining the continuing dispute between the parties, namely whether the worker remained incapacitated by reason of the injury, raised instead new issues about the continuing availability of duties which were found to be within the worker's capacity. This does not appear to have been recognized at the hearing. The Magistrate having decided that there was no evidence that the position of Recreational Activities Officer was available at the date of the hearing (more precisely, at the conclusion of the evidence at the hearing), that particular issue could not be raised again by either party. Whether the position was available after the conclusion of the evidence was a matter raised directly and immediately by the Magistrate's decision. There was an invitation in it, whether intended or otherwise, to the employer to make a further application for termination from a date subsequent to the hearing and on that further application to call evidence as to the then availability of the position."
The Chief Justice went on to say, in effect, that it would have been better if the Magistrate had issued an express invitation to the employer to re-open its case to answer the simple question whether or not the position previously offered was still available. His Honour continued:
"No doubt a court of law has a discretion to invite a party to re-open its case. It is a discretion to be used sparingly but sometimes it has to be exercised in the interests of justice. This is the more so where a tribunal, engaged in the process of arbitration, whether formally constituted as a court or not, is not to be constrained by the usual procedures of a court of law. For whatever reason, the clear policy of the Workers' Compensation Act that proceedings relating to workers' compensation should be conducted expeditiously and cheaply by means of arbitration, appears to have been frustrated by the now entrenched practice of giving such proceedings the full treatment accorded to a case at law, with solicitors and barristers, documentation in the nature of pleadings, further and better particulars, expensive medical witnesses, transcript of evidence and a rigid application of the rules of evidence and other incidentals.
In my view, the Magistrate should have resolved the simple problem of whether the position of Recreational Activities Officer was still available by inviting counsel for the employer to call evidence on the matter."
The Chief Justice then said that, in his opinion, the Supreme Court had the power to receive further evidence, and for that reason, he had invited counsel for the respondent to consider
calling evidence on the current availability of a position in the nature of that offered to the appellant in September 1993. His Honour said that he had done this despite the objection of counsel for the worker. The Chief Justice noted that the employer had accepted the invitation which his Honour thought was a course justified by the observations of Gibbs J. in Uranerz (Australia) Pty Limited v Hale (1980) 30 ALR 193 (at 199).
The Chief Justice then referred to evidence given by Mrs. Prindable when she was recalled to give evidence for the respondent. She gave evidence of a letter written on behalf of the respondent dated 3 November 1995, offering a position similar to that offered in 1993, but with provision that there be no extensive pushing of wheelchairs, limited bending and squatting and, in any event, within the limits of any medical certificate produced on the worker's return to employment. The job was, according to the evidence of Mrs. Prindable, available immediately as at 16 November 1995, although it was unlikely that it could be held over until February 1996, which was suggested in cross-examination as the appellant's preference because of her advanced pregnancy.
His Honour noted that the appellant did not give evidence as to her response to the offer, although a letter from her solicitors dated 14 November 1995, in this connection, was tendered. In that letter, the solicitors for the appellant indicated that the appellant wished to accept the offer of employment made in the letter of 3 November, subject to three conditions. The first condition dealt with a graduated return to work, as medically advisable. The second condition proposed that the offer of employment be taken up in "February 1995" (scilicet 1996). The third condition proposed was that there be no pushing of wheelchairs as distinct from the "no extensive pushing" proposed by the respondent.
The learned Chief Justice went on to say:
"I consider that this new material is properly before me under the various relevant statutory provisions. Section 26 of the Act provides for appeals to this Court from decisions, orders or awards of the Magistrates Court given or made with respect to matters to be settled by arbitration under the Act and sub-s.26(2) provides that Part XIXA of the Magistrates Court (Civil Jurisdiction) Act 1982 applies as if the appeal were an appeal to which s.387 (formerly s.282C) applies. In such an appeal the Supreme Court shall have regard to the evidence in proceedings out of which the appeal arose, has power to draw inferences of fact, and in its discretion may receive further evidence. On such an appeal the powers of the Supreme Court include the power to:
'(a)affirm, reverse or vary the judgment appealed from;
(b)give such judgment or make such an order as in all the circumstances it thinks fit or refuse to make an order.'
The powers so given are not restricted to making such decision as the tribunal was empowered to make, and without defining the limits of the Supreme Court's powers in this regard, I am of the view that if the Supreme Court receives further evidence, it is bound to act on the facts established by the whole of the evidence and not only the evidence before the tribunal (cf. Petreski v Cargill (1987) 18 FCR 68 at 77.)"
The learned Chief Justice said that the appeal being, in effect, "a re-hearing on all the evidence with due respect being given to the Magistrate's findings on matters affected by credit", it was his task to decide whether the plaintiff's agreed incapacity had "ceased to be total and become partial".
His Honour said:
"In my view, the employer has discharged the onus of showing that she is capable of carrying out the work offered to her. I find that it was reasonably available to her as from 20 November 1995. I leave the matter of the effect of her pregnancy on her capacity to work to be the subject of negotiation between the parties, if necessary, and if not settled by agreement, to be remitted back to the Magistrate. The formal orders are: the appeal is upheld, the award of the Magistrate is set aside and in lieu thereof an order is made that the employer pay the worker compensation for partial incapacity commencing 20 November 1995 to date and continuing. I shall hear from the parties on costs and the question of whether there are any other matters to be remitted to the Magistrate."
At the time of delivery by his Honour of his reasons for judgment, his Honour heard submissions from counsel as to the scope of the remitter mentioned in the reasons. His Honour then ordered that the matter be remitted to the Magistrate to determine the amount of compensation to which the appellant is entitled, and to determine the extent, if any, of her incapacity.
In her appeal to this court, the appellant seeks an order that, in lieu of the orders made by the Chief Justice, the appeal to the Supreme Court be dismissed, and that the award of the Magistrate be restored.
In support of the appeal, the appellant relies on several grounds, and it will be convenient to consider them in turn.
The first ground of appeal, that his Honour erred in permitting the respondent to call evidence on the appeal, is no longer pressed.
The second ground of appeal is that the Chief Justice erred in permitting the appellant to call the type of evidence which was permitted on the appeal. It is submitted on behalf of the appellant that, although it was accepted that the appeal before the Supreme Court was by way of a re‑hearing, it was not open to the Supreme Court to inquire into any matters that occurred after the date of the award. The submission was developed in the course of argument, but as I followed it, it was an argument to the effect that the Supreme Court lacked jurisdiction to inquire into such matters.
I have difficulty in accepting the submission.
The scope of the appeal was properly described by the Chief Justice in the passage from the reasons for judgment which I have set out, above. By s.391 of the Magistrates Court (Civil Jurisdiction) Act it is provided that:
"391.In an appeal, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence."
By s.393(1) it is provided that on an appeal the Supreme Court may -
"(a)affirm, reverse or vary the judgment or order appealed from;
(b)give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c)set aside the judgment or order appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and determination, subject to such directions as the Supreme Court thinks fit; or
(d)award execution from the Supreme Court or remit the proceedings to the Magistrates Court for the execution of the judgment or order of the Supreme Court."
It is clear, in my opinion, as is accepted by Mr Lunney, counsel for the appellant, that the appeal before the Supreme Court was an appeal by way of a re‑hearing.
It will be recalled that the matter before the Magistrate included, amongst other things, a claim on behalf of the appellant for a continuing award. The Magistrate in fact upheld that claim so that her award also included this. Of course, as a matter of power, the award could continue only until another competent order varied or discharged it. But, until such variation or discharge occurred (if ever) the award would continue. It must follow that when the Supreme Court
entertained the appeal from the award, in all its aspects, one part of the dispute or matter before the Supreme Court was this particular feature of the award. It must further follow, in my opinion, that it lay within the power and competence of the Supreme Court to entertain an appeal against that part of the award.
It is further (and properly) accepted by Mr Lunney, on behalf of the appellant, that in accordance with the provisions of s.391 of the Magistrates Court (Civil Jurisdiction) Act, the Supreme Court has power to receive further evidence. Moreover, in Hale's case, to which reference has already been made, Gibbs J., with the agreement of Stephen, Mason, Murphy and Wilson JJ., said (at 199) that there was no reason why a judge in the position of the Chief Justice should not invite the parties to call oral evidence when neither sought to do so. There is no question in the present case of any issue of the credibility of a witness. Further, the material that was adduced before the Chief Justice as a result of his invitation, although contentious in some of its dimensions, was in a documentary form in which no question of credit in fact arose. I refer to the exchange of correspondence in November 1995, which I have previously summarised.
I have already set out the general observations made by the Chief Justice in which his Honour spoke of the unsatisfactory procedure that occurred before the learned Magistrate. I endorse his Honour's comments entirely and do so particularly in the context of the clear policy of the Act, mentioned by his Honour, that these proceedings should be conducted expeditiously and cheaply. It is accepted generally that judges have the authority and the responsibility in an appropriate case to exercise some managerial role where it is appropriate. In the present case, given the limited scope of the issue, its essentially documentary form, and the large areas within the issue that were not truly contentious, I am of the view that his Honour acted quite properly and appropriately in intervening in the way he did.
The next ground of appeal is that his Honour erred in failing to confine the period of time the subject of the appeal, to the period up to the date of the findings of the Magistrate, or the date of the award. This ground of appeal is really another way of putting the argument which I have already rejected.
I should add that we were referred in this connection to the decision of Kelly J. in Ferguson v University of New South Wales (1983) 49 ACTR 15. In my opinion that decision is clearly distinguishable. That was an attempt, unsuccessfully, to invoke the original jurisdiction of the Supreme Court by seeking declaratory and injunctive relief in a workers' compensation matter. It was held that there was no such jurisdiction. The present case is, of course, concerned with the appellate jurisdiction of the Supreme Court, and that jurisdiction is plainly conferred by the terms of s.26 of the Act. As I have already said, given the continuing aspect of the award, it was open to the Supreme Court, as a matter of jurisdiction and as a relevant consideration, to entertain an appeal from that part of the award in the exercise of the appellate jurisdiction of the Supreme Court.
The next ground of appeal is that the Chief Justice erred in determining an issue, namely, the capacity of the appellant, during a period in respect of which there had been no arbitration in accordance with the Act. Again, this is merely another way of contending that, notwithstanding the continuing nature of the award, any variation or discharge of such an award can only be undertaken by the arbitral tribunal set up by the Act, irrespective of any rights of appeal. In my opinion, the argument is untenable. This is not, of course, to say that in an appropriate case a matter may not be referred to arbitration, the outcome of which is a variation or discharge of a continuing award. That is not the present question. The present question is whether there is a right of appeal in respect of such an award; clearly, s.26 of the Act confers that appellate jurisdiction upon the Supreme Court.
The next ground of appeal is that the Chief Justice erred in determining that the Supreme Court on appeal was not limited to evidence before the Magistrates Court. Again, I cannot accept this submission. It is plain that the Supreme Court was exercising a jurisdiction by way of the rehearing of an appeal. As had already been noted, s.391 of the Magistrate Courts (Civil Jurisdiction) Act provides that the Supreme Court is not limited to the evidence before the Magistrates Court.
Finally, it is contended that the Chief Justice erred in finding that there had been a change in the appellant's capacity for work at a time at which there was no evidence of a change in capacity. In my opinion, this submission must also be rejected. Once it is accepted that it was, as I have held, proper and appropriate for the Chief Justice to receive evidence of the renewal, in November 1995, of the offer of employment made in September 1993, the suggestion that there was no evidence before the Supreme Court in this area, must be rejected. For those reasons I would propose that the appeal be dismissed.
GALLOP J: I agree with the reasons of Beaumont J. and with the order he proposes. I only wish to say a few words of my own about the way the Chief Justice treated the appeal, and the nature of the appeal. He said, at page 149, that the new material was properly before him, and he then went on to consider the actual provision in the Act conferring the right of appeal, the incorporation of the Magistrates Court (Civil Jurisdiction) Act provisions on appeals in that Court, and the powers of the Supreme Court on appeal. His Honour correctly cited the relevant statutory provisions. He then expressed the view, in the passage cited by Beaumont J., that the Supreme Court is bound, if it receives further evidence, to act on the facts established by the whole of the evidence, and not only the evidence which was before the Tribunal.
With respect, his Honour was perfectly correct in that statement: "An appeal is not a common law proceeding. It is a remedy given by statute" (see Builders Licensing Board v Sperway Constructions Pty. Ltd. (1976) 135 CLR 616 per Mason J., as he then was (at 619); Victorian Stevedoring and General Contracting Company Pty. Ltd. and Meakes v Dignan (1931) 46 CLR 73 (at 108); Commissioner for Railways of New South Wales v Cavanough (1935) 53 CLR 220 (at 225)).
An appeal stricto sensu is to be distinguished from an appeal by way of rehearing (see Builders Licensing Board v Sperway Constructions Pty. Ltd., above, per Mason J. (at 619)). If the nature of an appeal to the Supreme Court is an appeal stricto sensu, such a judgment can only be given as ought to have been given at the original hearing. Put another way, the Supreme Court's function on the hearing of an appeal stricto sensu, would be to decide whether the judgment complained of was right when given on the material which the lower court had before it. (See Ponnamma v Arromamorgan [1905] AC 383 (at 388).
In Victorian Stevedoring and General Contracting Company Pty. Ltd., above, Dixon J., as he then was, cited (at 107) Jessel M.R. in Quilter v Mapieson [1882] 9 QB 672 at 676:
"...but, on a rehearing, such a judgment may be given as ought to be given if the case came at that time before the Court of first instance."
An appeal by way of rehearing is, generally speaking, a trial over again, on the evidence used in the court below, and as in this case, there may be special power to receive further evidence.
So, not only was the Chief Justice right to admit the further evidence, in my opinion, he was also correct in the way he treated the whole of the evidence in determining the rights of the parties, i.e., by reference to the circumstances as they then existed, by reference to the law as it then existed, and in giving such judgment as ought to be given if the case at that time came before the Magistrates' Court. Plainly, that is what the Chief Justice did and he was correct.
The only other matter not referred to by, I think, Beaumont J., was the last argument that there was no evidence relating to the physical capacity for work of the employee as at 20 November 1995. I respectfully disagree with that argument. There was such evidence before the Magistrate. And his Honour determined the matter on the whole of the evidence, supplemented by the offer of employment and the response to that offer. For those reasons, I too, would dismiss the appeal.
HEEREY J: I agree with both the judgments that have been delivered.
GALLOP J: The other order of the Court is that the appeal be dismissed with costs.
I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Court.
Associate
Dated:
Counsel and Solicitors Mr. G. Lunney instructed
for Applicant: by Gary Robb & Associates
Counsel and Solicitors Mr. J. Purnell SC instructed
for Respondent: by Colquhoun Murphy
Date of hearing: 20 June 1996
Date Judgment delivered: 20 June 1996
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