Toth v Return to Work Corporation of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
TOTH v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2017] SASCFC 83
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Parker)
21 July 2017
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - PROCEDURE - GENERALLY
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - ONUS OF PROOF
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - SUFFICIENCY OF EVIDENCE
Appeal against a decision of the Full Bench of the Workers Compensation Tribunal.
The respondent paid the appellant income maintenance payments for an injury she received while working as a bookkeeper. While the appellant was receiving those payments she attained casual employment as a sales assistant in a health foods store. She later left that casual employment, opened her own health foods store and worked in her own store.
On 5 December 2011, the respondent determined that the appellant had capacity to work as a sales assistant in a health food store and ceased the income maintenance payments. Two documents referred to in that determination were reports prepared by employees of De Poi Consulting Pty Ltd (the De Poi Reports) discussing the availability and suitability of that employment.
Prior to the trial, the respondent demonstrated intention to call the authors of the De Poi Reports to give evidence. During the trial, the respondent decided not to call the authors of those reports and the reports were notionally removed from the trial book as the appellant could no longer cross examine the authors.
At trial, the appellant contended that the failure to call the authors of the De Poi Reports was an abuse of process because the appellant could not know what were suitable duties for a retail assistant in a health food store and that the appropriate remedy was to declare the respondent’s determination invalid.
The Deputy President dismissed the appellant’s argument as to the abuse of process. The Deputy President determined that as at 5 December 2011 the appellant had work capacity. In so finding, the Deputy President found that the worker had an evidentiary onus to produce evidence of efforts of returning to work.
The appellant appealed to the Full Bench of the Workers Compensation Tribunal. The Full Bench found that the appellant was at all times aware of the case put against her irrespective of the status of the De Poi Reports, and did not suffer prejudice. The Full Bench found that while the Deputy President had misdirected himself as to a specific point on the evidentiary onus, his reasons as a whole accurately reflected the appropriate evidentiary onus.
The appellant appeals to this Court on grounds that the Full Bench failed to find that the respondent’s conduct in relation to the De Poi Report was an abuse of process or gave rise to an estoppel by conduct. She also argues that the Full Bench ought to have found there was not enough evidence to particularise the specific duties of a sales assistant in a health food store and that the De Poi Reports so particularised that role. Finally, she argued that the Full Bench erred in finding that the Deputy President’s error as to evidentiary onus did not make a difference to the outcome of the case.
Held per Kourakis CJ (Kelly and Parker JJ agreeing), dismissing the appeal:
1.    The appellant was at all times aware of the case being made against her and did not suffer any detriment from the respondent not tendering the De Poi Reports nor calling the author of those reports (at [59]-[63]; [71]).
2.    The De Poi Reports did not have the status of particulars before the Tribunal (at [66]).
3.    The evidence other than the De Poi Reports was capable of establishing that there was suitable work that the appellant could perform (at [78]).
4.    The appellant has not demonstrated an error of law in the reasons of the Deputy President or the Full Bench in relation to the evidentiary onus (at [84]).
Workers Rehabilitation and Compensation 1986 (SA) s 35B, s 36, referred to.
Toth v WorkCover Corporation [2015] SAWCT 19; Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8, applied.
Batrachenko v WorkCover Corporation (Star Track Express Pty Ltd) [2012] SAWCT 5; Martin v Employers Mutual Limited [2012] SASCFC 36; Police v Pakrou (2008) 103 SASR 124; Police v Sherlock (2009) 103 SASR 147, considered.

TOTH v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2017] SASCFC 83
Full Court: Kourakis CJ, Kelly and Parker JJ

KOURAKIS CJ:    This is an appeal against a decision of the Full Bench of the Workers Compensation Tribunal.[1] On 25 February 2016, the Full Bench dismissed the appellant’s appeal against a decision of the Workers Compensation Tribunal[2] whereby the Tribunal upheld determinations made by Employers Mutual Limited (EML), as agent for the WorkCover Corporation of South Australia (WorkCover)[3], that the appellant, Ms Toth, had work capacity as she was working in her own health foods store. The effect of EML’s determinations was the cessation of the appellant’s weekly compensation payments for a shoulder injury that she suffered in August 2006.
[1]    Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8.
[2]    Toth v WorkCover Corporation [2015] SAWCT 19.
[3]    As the Return to Work Corporation of South Australia was formerly known.
By notice of appeal dated 17 March 2016, the Ms Toth seeks orders setting aside the determinations of the Full Bench, the Tribunal and EML on behalf of WorkCover. Ms Toth also seeks the costs of her appeal.
WorkCover’s determination that Ms Toth had work capacity was based on 17 documents. Particularly relevant are two documents prepared by employees of De Poi Consulting Pty Ltd, one entitled ‘Functional Job Description for a Sales Assistant (Health Food Store)’ and another entitled ‘Labour Market Analysis report for a Health Food Shop Sales Assistant’ (collectively, the De Poi Reports). The appellant prepared for the trial on the basis that those reports would be admitted into evidence and the respondent would call authors of the reports.
During the trial, the respondent informed the appellant that they would not be calling the authors of the De Poi Reports. As a result the reports, which had been included in the trial books, were disregarded by the Deputy President.
The appellant submitted before the Deputy President and the Full Bench that by the respondent abandoning reliance on the De Poi Reports the appellant could not know with sufficient particularity the work capacity which the respondent alleged she had. That submission was maintained before this Court. The appellant contends that the conduct of the respondent was an abuse of process which gave rise to an estoppel by conduct.
Before the Full Bench, the appellant argued that the Deputy President had made an error of law by imposing an evidentiary onus on the appellant to show that she had been unable to secure suitable employment. The appellant appeals against the conclusion of the Full Bench that insofar as the Deputy President might have erred nothing turned on it.
I would dismiss the appeal. At the time that the appellant was informed that the authors of the De Poi Reports would not called and the reports themselves were not to be relied on, she had not closed her case. The appellant was informed of WorkCover’s alternative case on work capacity which relied on her own employment in health food stores supplemented by the proposed testimony of a proprietor of a health food store. The appellant had an opportunity to call the authors of the De Poi Reports if she wished to rely on them. Alternatively the appellant could have made a submission that in the absence of the De Poi Reports as evidence the respondent could not make its case. The respondent made that submission and it was rejected because the other evidence adduced by WorkCover discharged its persuasive onus. Furthermore, the Full Bench correctly found that the Deputy President’s reference to an evidentiary onus resting on the appellant was not when read in the context of the entirety of his reasons an error. Moreover, the Full Bench correctly concluded that the Deputy President’s reference to an evidentiary onus did not affect his ultimate conclusion that WorkCover had discharged its persuasive onus.
My reasons follow.
Factual background
In 2003, Ms Toth, the appellant was employed by Bindarra Pty Ltd (Caltex) as a bookkeeper. Caltex employed Ms Toth on a casual basis. Her role included inputting data, completing payroll and other duties relating to accounts payable.
On 18 August 2006, Ms Toth suffered an injury to her right shoulder during the course of her employment. According to the employer report form dated 12 September 2006 that injury was sustained while Ms Toth attempted to retrieve a folder that was falling from a desk, yet the origin of the injury was in repetitive keyboard and mouse work. After consulting with a general practitioner named Dr Mansfield, she was certified unfit for work and made a successful claim for compensation which included income maintenance.
After a period away from work, Ms Toth returned to Caltex undertaking light duties and reduced hours. However, Ms Toth still experienced pain and her right shoulder was not properly functional. Due to Ms Toth’s impediment she left her employment with Caltex because there was no suitable work for her. All the while Ms Toth was receiving treatment including physiotherapy, chiropractic treatment and massage.
From mid-2007, the Ms Toth gained employment with Moana Health Food Store. This employment was on a causal part time basis. Ms Toth found that work difficult due to her physical restrictions. Accordingly, she mainly did the sales assistant work and the owner of the store did all of the more physical work.
Ms Toth’s shoulder problem persisted and so she was referred to Dr Wallwork, an orthopaedic surgeon, for treatment. In around March 2009, Dr Wallwork diagnosed Ms Toth with sub-acromial bursitis as well as an impingement of the right shoulder. Dr Wallwork recommended surgery. Ms Toth had that surgery on 8 May 2009. After the surgery, a letter from Dr Wallwork to WorkCover also records that from around March 2009 Ms Toth had complained of an issue which had developed in her left shoulder as a result of favouring that shoulder.
Ms Toth made a claim in relation to her left shoulder on 7 April 2009. That claim named Caltex as the relevant employer. The injury was said to arise out of the use of her computer, and that because of her right shoulder bursitis her left shoulder also became affected through overuse and repetitive work. WorkCover accepted that claim by letter on 22 June 2009, however WorkCover noted that Ms Toth was already receiving income maintenance on that claim and was therefore limited to her reasonable medical expenses only. WorkCover treated the left shoulder injury as an extension of the right. Although Dr Wallwork recommended surgery for Ms Toth’s left shoulder also, she did not have the operation.
In about August 2009, Ms Toth finished working at the Moana Health Food Store. Ms Toth stated that this was because the store owner told her that with her shoulder restrictions he thought she could not do some of the work and so he could no longer employ her. Ms Toth agreed that she had difficulty completing some of the required tasks.
Ms Toth opened her own health food store on 24 November 2009. She operated the business as a sole trader. She sold her house and used the proceeds of that sale to set up the business. The predominant reason for opening the store was said to be her need for work. Ms Toth thought that if she worked at her own place then she could accommodate her work to the restrictions imposed by her injuries. In operating her shop, Ms Toth said she relied on Mr McGinley (formerly her partner and now her friend), and her son Jason Goodridge. Mr McGinley and Mr Goodridge did much of the heavy lifting for her. She said she was able to pace herself and await assistance for some of the tasks such as sweeping or tidying. Ms Toth employed two part-time assistants in the financial years ending 30 June 2011 and 30 June 2012.
According to Ms Toth, the business initially struggled and this in turn imposed limitations on her lifestyle. She said that the business did not yield her an income until late December 2012. Until that time, she lived off her savings and the proceeds from the sale of her house. The business ceased trading on 31 October 2013.
In around March 2010, Ms Toth felt some abdominal pains and discomfort. Unfortunately on 16 March 2011, Ms Toth was diagnosed with bowel cancer. She underwent surgery for that condition in April 2011, and since then has been hospitalised on a number of occasions. Ms Toth testified that since then she has been hampered by occasional periods of severe and debilitating abdominal pain which rendered her unable to work in her business. This in part led to the closure of her store. Ms Toth testified that stress related to her abdominal condition as well as her shoulder injuries were other reasons.
The determination
On 5 December 2011, WorkCover served Ms Toth with a determination under s 35B and 36 of the Workers Rehabilitation and Compensation Act 1986 (the Act), which is now repealed. In its determination, WorkCover assessed Ms Toth as having current work capacity with the result being that her weekly payments would be ceased after 13 weeks. That declaration was made in relation to Ms Toth’s injury described as ‘Right shoulder (bursitis) sequelae left shoulder’.
The determination stated that in assessing Ms Toth’s claim WorkCover relied on 17 documents, two of which are now particularly relevant:
Attachment PQ Functional Job Description for a Sales Assistant (Health Food Store) prepared by De Poi Consulting Pty Ltd dated 08/10/2010 (updated 10/08/2011)
…
Attachment T Labour Market Analysis report for Health Food Shop Sales Assistant, prepared by De Poi Consulting Pty Ltd dated 24/11/2011
I will refer to the first document as the Functional Job Description and the second document as the Labour Market Analysis. I will refer to the documents collectively as the De Poi Reports.
According to the determination, the Functional Job Description ‘was sourced to confirm that this type of employment, which you have been undertaking since November 2009 with Christies Beach Best of Health, continued to be a suitable employment option.’ The Labour Market Analysis was said to demonstrate that ‘the role of Sales Assistant (Health Food Store) exists within the labour market on a full time and casual basis.’ The totality of the information relied on in the determination led WorkCover to the conclusion that:
…you have a current work capacity. Although you are unable to undertake your pre-injury employment as a Book Keeper, you are able to return to work in suitable employment, for example as a Sales Assistant (Health Food Shop).
Ms Toth contested the determination on 13 February 2012. The respondent confirmed the determination on 23 February 2012. As a result the matter proceeded to the Workers Compensation Tribunal. The tribunal also heard two other disputed determinations between the appellant and the respondent. Those two disputed determinations are no longer relevant.
Procedural history
At a directions hearing on 22 March 2013 a Judge of the Workers Compensation Tribunal made a number of directions in relation to how the matter was to proceed. For example, those directions particularised the general issues relating to the dispute. The parties also indicated which medical and or expert reports they would rely on:
6.     (a)     the RESPONDENT will rely on medical/expert reports from:
(i)     Dr Mansfield
(ii)    Ms Saint
(iii)     Ms Tran
Copies of these reports have been provided to the applicant.
Ms Saint was the author of the Functional Job Description. Ms Tran was the author of the Labour Market Analysis dated 24 November 2011.
At a directions hearing on 29 January 2014, the following direction was made:
6.     (a)     the RESPONDENT will rely on medical/expert reports from:
(i)     Dr Mansfield
(ii)    Ms Saint or Ms Mignone
(iii)     Ms Tran
(iv)     Dr Clarke
Copies of the reports of the witnesses referred to in (i), (ii), (iii) have been provided to the applicant.
Dr Clarke’s Report will be provided to the applicant by Wednesday 26 February 2014.
Ms Mignone was to be called because she later edited the Functional Job Description which was initially authored by Ms Saint.
The trial was substantially delayed and commenced on 11 March 2014 before Deputy President Gilchrist. The Trial Books containing the De Poi Reports were tendered at the commencement of the hearing on 11 March 2014. In opening, counsel for the appellant submitted that the compensating authority was directing its case to the specific assessments made in the De Poi Reports. The appellant gave evidence on 11 and 12 March 2014, and gave further evidence briefly on 28 April 2014. At a directions hearing on 5 May 2014, the trial was again adjourned and listed to resume on 7 and 8 August 2014.
On 1 August 2014, a further directions hearing was held, at that directions hearing the hearings listed for 7 and 8 August 2014 were vacated. Importantly for present purposes, at that directions hearing, counsel for the respondent indicated to the Deputy President that they would not be calling Ms Saint or Ms Tran to give evidence. They did so in response to an inquiry made by counsel for the appellant.
There is no record of further discussion relating to the De Poi Reports until 25 November 2014. At that time, counsel for the appellant asked again whether the authors of the De Poi Reports would be called. Counsel for the respondent conceded that they would no longer rely on the De Poi Reports as the authors would not be presented for cross examination. Counsel for the appellant submitted that the De Poi Reports should not remain in the trial book if he could not cross examine the authors of the reports. The Deputy President suggested notionally removing the reports from the trial book. At that point the Deputy President confirmed with the respondent that their case was that the appellant had capacity because she had worked in her own shop and could therefore sell her labour on the open market. It was also confirmed that the respondent’s position was independent of any evidence contained in the De Poi Reports about issues including the state of the labour market. The Deputy President asked the appellant’s counsel whether he wanted to call the authors of the De Poi Reports. Counsel responded that he would consider calling that evidence but also that it now gave him an argument on abuse of process.
The following day, counsel for the appellant foreshadowed a submission which he proposed to make at the close of the respondent’s case. He observed that both the appellant and other medical experts had referred to the De Poi Reports in their evidence and submitted that the failure to call the authors would prejudice the appellant. Counsel for the appellant asked the Deputy President to ignore the reports. The Deputy President informed counsel that he had not read them. It was tacitly accepted that the De Poi Reports would be ignored. Counsel for the appellant made a point of not closing the appellant’s case, and intimated that putting the De Poi Reports into evidence was still being considered.

During its case, the respondent called Mr Salvemini who had worked for most of his life as a health food store operator. He spoke to the work that sales assistants did in the shops that he had owned, for example, cleaning the floor, selling products, stocking shelves and other tasks. He gave evidence as to other tasks in his store which were required of those he employed, including carrying bulk foods. Mr Salvemini also gave evidence that he had previously employed people who were injured, and he was happy to do so. He looked for staff who were enthusiastic, knowledgeable about the industry, and gregarious. Mr Salvemini gave further evidence in cross examination that he would be happy to employ someone who required treatment throughout the day for their injury, such as applying wheat bags, taking panadeine and other things.
The primary issue before the Deputy President was whether Ms Toth’s work in her own store demonstrated that she had sufficient capacity to justify termination of her income maintenance payments. It was Ms Toth’s contention before the Deputy President that her modified work in her own store demonstrated instead that she only had the capacity for a modified role. Unsurprisingly, the majority of the Deputy President’s decision was directed towards the issue of Ms Toth’s capacity.
The Deputy President recognised that, among other collateral issues, there was an issue of whether the respondent’s decision not to call the authors of the De Poi Report was an abuse of process. On that issue the appellant’s counsel submitted that the Tribunal had an inherent power to regulate its own processes to prevent an abuse of process. The appellant submitted that the Tribunal should refrain from a consideration of the merits of the issue relating to her capacity because of the respondent’s conduct of the trial had prejudiced her case.
The appellant contended that the issue was not with the respondent’s failure to call the authors of the De Poi Reports, rather, the issue was the respondent’s conduct during the course of the proceedings. Referring to the matters regarding the De Poi Reports ventilated above, the appellant submitted that the De Poi Reports:
1must have formed an integral part of EML’s determination;
2were considered and specifically addressed by Ms Toth’s first statement; and
3must have been considered in other evidence.
The appellant submitted that because of the respondent’s conduct, Ms Toth was entitled to expect that the respondent would limit it case on the question of suitable employment as it was defined in the De Poi Reports. According to the appellant it followed that if the appellant had known that the authors of the De Poi Reports would not be called then the appellant would have made a request for particulars of the suitable employment or considered calling her own medical evidence and labour market analysis about the duties that Ms Toth could perform.
The sum of this, it was submitted, was that absent the articulation contained in the De Poi Reports of the duties Ms Toth could perform there was a radical uncertainty in the respondent’s case. As a result the appellant was denied procedural fairness and the trial was oppressive, unfair, and unconscionable.
The appellant argued that the power to remedy this alleged misconduct lay in the Deputy President’s ability to mould the relief to that which best achieves justice and redresses the injustice occurred by reason of the abuse of process. The specific remedy sought was a declaration by the Deputy President that the respondent’s s 35B determination that the employment had work capacity was invalid.
The respondent submitted simply that the Tribunal’s jurisdiction in considering whether the appellant had work capacity was not confined to the materials relied on to make the determination. Therefore the fact that the respondent did not call the authors of the De Poi Reports was not relevant. In support of that argument the respondent relied on Batrachenko v WorkCover Corporation (Star Track Express Pty Ltd)[4] in which the Tribunal held that the proceedings before the Tribunal for the purposes of making a judicial determination are a hearing de novo.
[4] [2012] SAWCT 5 at [20] per Hannon DPJ.
The Deputy President first determined whether an abuse of process had occurred before making a determination on the appellant’s work capacity. The Deputy President relevantly held in dismissing the appellant’s argument regarding abuse of process:[5]
[172]In this case Ms Toth could have been in no doubt as to the case she was being asked to meet. It was being alleged against her that her work in self-employment at the Christies Beach Best of Health store established that as at 5 December 2011, she had current work capacity on the basis that she could work as a sales assistant in a retail health food store.
[173]Ms Toth was aware well before the hearing was completed that [WorkCover] did not propose to call the authors of the De Poi report. If Ms Toth’s legal advisors thought that in light of that fact it was necessary for her to seek evidence from a rehabilitation expert or an expert in labour market analysis and to then seek evidence from the medical witnesses about that evidence to meet [WorkCover’s] case they had ample opportunity to do so.
[174]In my view Ms Toth’s submission that [WorkCover’s] conduct amounts to an abuse of process that would warrant the Tribunal affording her some form of relief has not been made out.
(citations omitted and emphasis added)
[5] Toth v WorkCover Corporation [2015] SAWCT 19 at [171]-[174] per Gilchrist DPJ.
The Deputy President found that there could have been no doubt as to the case that the appellant was being asked to make, despite the change in position in relation to the De Poi Reports. That case was that, based on appellant’s self‑employment in her health food store, she had current work capacity for the position of a sales assistant in a retail health food store.
The primary issue before the Deputy President was whether by 5 December 2011, that is the date of the first determination, the respondent had established that Ms Toth had current work capacity for the purposes of s 35B of the Act.
As to the nature of Ms Toth’s incapacity and her previous employment, the Tribunal found:[6]
[202]I find that as at 5 December 2011, notwithstanding the limitations and restrictions just expressed, provided she avoided repetitive duties, avoided working at above shoulder height and avoided heavy lifting Ms Toth was able to discharge most of the duties expected of a retail assistant working in a health food store. I find that her previous employment as bookkeeper and her work at the health food store at Moana suggest a capacity to work as a sales assistant in a retail health food store.
[6] Toth v WorkCover Corporation [2015] SAWCT 19 at [202] per Gilchrist DPJ.
The Deputy President then considered the other prerequisites to suitable employment specifically referring to paragraphs (b) to (f) of the definition of suitable employment in s 3 of the Act and determined that Ms Toth had capacity to work for the purposes of that statutory definition.
The Deputy President then turned to consider whether, as at 5 December 2011, Ms Toth was able to return to work as a sales assistant in a retail health food store. In determining that question, the Deputy President considered the South Australian authority discussing the phrase ‘a worker who is not able to return to work’ for the purposes of s 3(1) of the Act as well as a worker’s ‘current work capacity’. The Deputy President concluded that as the Act had been amended, the reasonable availability of work which was suitable for the worker and the state of the labour market were relevant but not determinative considerations for the purposes of determining whether the worker was able to return to work.
On this issue, the Deputy President held:[7]
[226]In conformity with this, although the statutory burden lies with the compensating authority, I think that where a compensating authority has established the fact of suitable employment and the worker is maintaining that he or she is unable to obtain it, there is an evidentiary onus on a worker to produce evidence as to the results of the efforts to obtain it. It might be as Fletcher Moulton LJ foreshadowed that such evidence might do no more than reflect the difficulty of obtaining employment in the same or other trades that has nothing to do with the compensable injury. The Tribunal will need to be aware of that. But such evidence might indicate that the inability to obtain employment does arise from the compensable injury, in which case the Tribunal will find that the worker does not have current work capacity.
(citations omitted and emphasis added)
[7] Toth v WorkCover Corporation [2015] SAWCT 19 at [226] per Gilchrist DPJ.
The Deputy President accepted Mr Salvemini’s evidence and concluded that there was employment as a retail assistant in health food stores for people with psychological and physical limitations if they had good knowledge of the industry and were passionate about the products on offer. Ultimately the Tribunal affirmed the respondent’s determinations that the appellant had capacity for work.
Appeal to the Full Bench
The appellant appealed the Deputy President’s decision by notice of appeal dated 5 June 2015. Relevant to the current appeal are the following grounds of appeal summarised below:
1The Deputy President erred by failing to set aside the s 35B determination on the abuse of process ground. In doing so, the Tribunal took into account irrelevant factors and did not take into account the prejudice occasioned by the tender of the De Poi Reports and the subsequent decision not to call the authors.
2The Deputy President did not give proper effect to the respondent’s failure to call the authors of the De Poi Reports.
…
5The Deputy President erred by finding there was an evidentiary onus upon a worker to show that the inability to obtain employment arises from the compensable disability.
…
The Full Bench first summarised the factual background and the decision below. It noted that the breadth of an appeal on a question of law to the Full Bench is very limited and that an appeal complaining of inadequate reasons requires the Full Bench to adopt a constructive approach.
In relation to the abuse of process argument, the Full Bench accepted that the appellant’s preparation for the trial proceeded on the assumption that the respondent intended to call the authors of the De Poi Reports.
The Full Bench analysed the appellant’s contentions as follows:[8]
[45]The learned Deputy President took the view that, notwithstanding the respondent’s change of mind as to its reliance on the De Poi reports, the appellant could have been in no doubt as to the case she was being asked to meet. That is, that her work in self-employment in her health food store established that, as at 5 December 2011, she had a current work capacity for the position of a sales assistant in a retail health food store. The learned Deputy President observed that the appellant was aware well before the completion of the hearing that the respondent no longer proposed to call the authors of the De Poi reports, and that, if her advisers thought it was necessary to obtain evidence from relevant expert witnesses on the matters addressed by the reports, they had ample opportunity to do so.
[46]On appeal, the appellant contended that the learned Deputy President misapprehended her case on the abuse of process point, took into account irrelevant matters, and failed to have regard to the prejudice to the appellant said to result from the respondent’s allegedly unconscionable conduct in changing its position as described. The final submissions made at first instance were repeated and expanded upon.
[47]We observe that there is no doubt that from the outset, given the assertions in the s 35B determination, and accompanying material relied upon, that the appellant knew that her undertaking of paid employment as a retail assistant prior to 2009, and her subsequent work activities in her own health food business, were said to indicate that the sales assistant position was suitable employment.
[48]The change in position of which the appellant became aware during the case was that the respondent, in seeking to establish its case that she had a current work capacity by reference to the nominated position, would not rely on the full extent of the material on which it based the determination that there was such a current work capacity. The advice was that the respondent would rely on a lesser range of material to make out its case than that nominated when trial orders were made, and which the appellant justifiably assumed would be produced, up until 1 August 2014.
[49]That advice did not alter the fact that the suitability of employment in the nominated position remained the sole focus of proceedings, notwithstanding the concern expressed by the appellant’s counsel from time to time that the respondent might seek to rely on the appellant’s fitness for suitable employment in some other positions, and notwithstanding that the respondent seemed to wish to keep its options open in that regard. As the learned Deputy President put to counsel for the appellant during the proceedings, in broad terms the case against the appellant always was and remained that her activities in her own shop indicated that she had a capacity to sell her labour in the open market in suitable employment of that nature. The appellant was on notice from the outset as to the respondent’s intention to call evidence from Mr Salvemini in that regard.
[50]Accepting that on 1 August 2014 the appellant was surprised by the change in the respondent’s approach, she was not then committed to an irrevocable course of conduct in endeavouring to meet the case which she then understood was brought against her. She had not closed her case. If it was her wish to rely upon the De Poi reports in order to demonstrate that the physical activities required of the position, as described in those reports, were beyond her, she was able to give notice to the Tribunal, and the respondent, that she wished to either call the authors of those reports, or to call evidence on the topic from other appropriate experts. It could be expected that an indulgence would have been granted in that regard given the late notice from the respondent as to its change in position. Otherwise the only prejudice to her was the wasted time and expense involved in addressing evidential material upon which the respondent ultimately chose not to rely, a prejudice able to be remedied by her entitlement to claim costs in that regard.
(citations omitted)
[8] Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8 at [45]-[50].
Importantly, the Full Bench noted that once the appellant recognised that the respondent had changed their position on 1 August 2014, she was not bound to a course of conduct which was reliant on the respondents’ case as it was formerly put. Certainly, at that point, the appellant’s case was not closed and any further evidence going to the issues above could have been called.
An alternative submission put by the appellant was also rejected. That submission was that the Deputy President had ignored the De Poi Reports and did not make a finding as to their evidentiary status. Thereby the appellant submitted that the Full Bench could not then know whether the Deputy President had taken the reports into account. The Full Bench found that the Deputy President had referred to the reports in passing and in dealing with the abuse of process issue, but that it was clear they were not taken into account on the capacity for work issue.
The appellant’s appeal on the abuse of process ground was dismissed by the Full Bench.
On the Deputy President’s interpretation of the relevant statutory provisions discussed above, the appellant contended that while the Deputy President’s construction of the term ‘not able to return to work’ was correct, the Deputy President erred in finding that there was an evidentiary onus upon the worker to show that the inability to obtain suitable employment arose from the compensable disability.
It was contended that the reference to the appellant carrying an evidentiary onus was not supported by a plain reading of s 35B and was contrary to the Full Court’s reasons in Martin v Employers Mutual Limited[9] (which was considered by the Deputy President).
[9] [2012] SASCFC 36.
The respondent’s position was that if the Deputy President's reasons were read as a whole the Deputy President had correctly considered whether the respondent had discharged the relevant evidentiary onus. The passage complained of, which is extracted at [44] above, was said to be an observation that the worker did not introduce any evidence rebutting the respondent’s evidence on the availability of suitable employment.
The Full Bench made the following observation about the impugned passage of the Deputy President’s reasons:[10]
[88]The passage from the reasons for decision extracted above, taken in isolation, arguably reveals that the learned Deputy President misdirected himself as to whether an evidentiary onus rested upon the appellant and the nature of it. The learned Deputy President acknowledged, by his reference to Martin in the introductory phrase of the first sentence, that the statutory burden rested on the respondent. Implicit in that acknowledgment was that the respondent bore the onus as to each of the two steps the learned Deputy President identified as being involved in the enquiry as to whether the worker had a current work capacity. However, the balance of the first sentence of the above extract, by indicating that where the respondent has established the fact of suitable employment, the appellant bore an evidentiary onus of producing evidence as to the results of her efforts to obtain such employment, appears to conflict with the earlier acknowledgement that it was the obligation of the respondent to establish its case on each aspect of the enquiry. It suggests that the learned Deputy President approached the matter on the basis that once the respondent had established the first of the two steps of the enquiry, namely that there was suitable employment, there was an onus on the appellant to produce evidence supporting her assertion that she was unable to obtain it in order to avoid a finding against her in that regard.
(citations omitted)
[10] Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8 at [88].
Ultimately the Full Bench held that the Deputy President’s consideration of the evidence and application of the onus of proof did not result in error:[11]
[11] Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8 at [92]-[98].
[92]If the statement of the learned Deputy President in the first sentence of the above extract arguably demonstrates error, it is not an error that requires the intervention of the Full Tribunal. If the reasons for decision are read as a whole, and in context, as they must be, it can be seen that the consideration of the evidence was in accordance with principle, as we now explain.
[93]Having identified the two steps to the enquiry, and having dealt with certain collateral issues, the learned Deputy President first addressed the question as to whether the appellant had established that the specified position of sales assistant was suitable employment. Although the learned Deputy President accepted the appellant’s evidence that there were certain limitations and restrictions upon movements required of her as at 5 December 2011, after considering the various criteria outlined in the definition of “suitable employment”, he found that the appellant had the capacity to undertake work as a sales assistant in a retail health food store.
[94]The learned Deputy President then turned to the question as to whether the appellant was, as at that date, able to return to such work. After outlining the approach to be taken in this regard, culminating in the statement now complained of as to the existence of an evidentiary onus on the worker as to this aspect of the enquiry, the learned Deputy President had regard to the evidence of Mr Salvemini, which he accepted as being:
“…of probative value in determining whether at the relevant time, notwithstanding her limitations, [the appellant] had a reasonable prospect of obtaining employment as a sales assistant in a retail health food store.”
[95]Specifically, he accepted the evidence of Mr Salvemini that the fact that a person had some physical and psychological limitations would not preclude that person from obtaining work in a health food store, especially if that person had a good knowledge of the industry, and felt passionate about the products on offer.
[96]The learned Deputy President acknowledged that the appellant’s partial incapacity would count against her in obtaining such work. On the other hand, he found that the appellant felt very passionate about the health food industry, and had a sound knowledge of the products on offer in her store, and, as at the relevant date, considerable experience in a range of relevant areas. It was in this context that he took into account that there was no evidence that the appellant had unsuccessfully attempted to find work as a sales assistant in a retail health food store, and that, to the contrary, the evidence was that the appellant had been able, over a period of two years before her self-employment, to find work as a sales assistant in a retail health food store despite her disabilities.
[97]It is our view that, even if there was a misdirection as to the evidentiary onus in the passage complained of, the learned Deputy President ultimately considered the question as to whether the respondent had discharged its onus of proving that the appellant had a current work capacity from the correct perspective. Having satisfied himself that, on the first step of the enquiry, the respondent had established that the sales assistant position was suitable employment, he found the second step relating to the appellant’s ability to return to such work to have been established having regard to his findings on the evidence led by the respondent from Mr Salvemini, and his conclusions on the whole of the evidence as to the extent of the appellant’s partial incapacity. Accordingly, the reference to an evidentiary onus on the appellant can be taken to have been intended as a statement that it was open to the appellant to lead evidence of any unsuccessful attempts to obtain employment as a sales assistant, and that had such evidence been led, it would have been considered in the assessment of whether the respondent had established its case on the point, but that absent such evidence, the learned Deputy President was satisfied the case had been made out.
[98]We conclude there was no error on the part of the learned Deputy President that requires our intervention. Further, the appellant has not demonstrated that she was prejudiced by any error. Whilst counsel for the appellant raised no issue as to a breach of procedural fairness, the suggestion was made nevertheless that the matter ought to be referred back to the learned Deputy President for further hearing as to whether or not there was “some evidence” about the appellant’s efforts to obtain the relevant employment. No submissions were put on the appeal outlining what evidence of this nature could have been given had the evidentiary onus issue been raised at trial. An order in the nature suggested would appear to be futile, and not appropriate, even though it concerns a matter of fact and not law: see Stead v State Government Insurance Commission
(citations omitted)

It is not now necessary to recount other findings made by the Full Bench as they are not the subject of this appeal.
The Appeal in this Court
The appellant appeals to this Court on the following grounds which I summarise:
1The Full Bench erred in law by failing to find that the respondent’s course of conduct by failing to call the authors of the De Poi Reports constituted an abuse of process and or gave rise to an estoppel by conduct;
2The Full Bench misconceived the appellant’s case on appeal in respect of the abuse of process and estoppel and erred by failing to consider and apply the relevant legal principles;
3When considering the respondent’s conduct in deciding not to call the authors of the De Poi Reports, the Full Bench only considered the prejudice to the appellant’s case and capacity to remedy that prejudice. In so doing, the Full Bench failed to take into account other factors relevant to the abuse of process and estoppel by conduct arguments especially that the De Poi Reports particularised the sales assistant position;
4The Full Bench did not properly apply the statutory formula in s 35B(1) and (4) of the Act to the facts of the case. The Full Bench ought to have found that the respondent did not prove its case as there was there was not sufficient evidence going to the specific duties and physical demands of the generic position of Sales Assistant (Health Food Store).
5The Full Bench erred by finding that the Deputy President made an error in law on the question of whether the worker bears an evidentiary onus but that error did not make a difference to the outcome of the case; and erred in applying its own interpretation of s 35B(1) and (4) and ‘current work capacity’.
Grounds 1 and 2 – Abuse of Process
The respondent’s decision not to tender the report De Poi Reports or to call the authors was a decision of a kind which is commonly made in the course of litigation. In some cases an inference might be drawn against a party who opens on, but does not call, a witness or witnesses who are in that party’s ‘camp’ and who are likely to be able to give relevant evidence. However, the appellant does not by ground 1 complain that the Deputy President wrongly failed to draw such an inference. On occasion a failure by one party to call a witness may properly be the foundation for an application by another party to adjourn the hearing so that that party may call those, or other, witnesses, to cover the subject matter on which the cancelled witnesses were expected to testify. Again, it is not the appellant’s complaint that she was refused such an adjournment. Indeed, she did not seek one.
However, it is difficult to imagine any case in which the failure to call a witness will constitute an abuse of process or give rise to an estoppel by conduct. Even in a criminal case a prosecution failure to call a witness, or tender real evidence, will rarely constitute an abuse of process.[12] There is certainly nothing in the circumstances of this case that provides any foundation for either contention. The Deputy President ‘notionally removed’ the reports from the trial book. There is no apparent reason why the appellant could not have accounted for any alleged prejudice arising out of WorkCover’s decision by tendering the De Poi Reports or calling its authors if she thought that evidence would assist her case. Moreover the appellant did not seek an adjournment to allow it to adduce that evidence or other witnesses to cover the same subject matter. If the appellant seeks to establish an estoppel then she must fail because there was no real detriment.
[12] Police v Pakrou (2008) 103 SASR 124, cited with approval in Police v Sherlock (2009) 103 SASR 147 at 166 per Doyle CJ.
True it is that the appellant might have derived a forensic advantage if her counsel had an opportunity to cross-examine, rather than lead evidence-in-chief from, the authors of the De Poi Reports. However, a party to civil litigation has no procedural entitlement to have the opposing party make available experts favourable to his or her case for cross-examination by his or her counsel.
Further, the findings of the Full Bench[13] and the Deputy President[14] that Ms Toth was aware that the case against her was that her work in her own and another health foods store proved her work capacity were plainly right. When the question of any abuse of process was raised before the Deputy President on 25 November 2014, the following exchange took place:
[13] Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8 at [45].
[14] Toth v WorkCover Corporation [2015] SAWCT 19 at [172].
MR SAIES: Quite frankly, your Honour, there will be an abuse of process argument I will be raising about this before the end of this week.
GILCHRIST DP: Just hang on a sec. Are you going to rely on their evidence if they're not available for cross-examination?
MR COPPOLA: No, your Honour.
GILCHRIST DP: So they can be notionally removed from the trial book?
MR COPPOLA: Yes, your Honour.
MR SAIES: Well, there is still an issue, because it's in the determination, and quite frankly, the compensating authority ought not to be highlighting the information that emanates from these witnesses around issues of labour market, availability of positions, and the suitability of these positions from a vocational perspective, doing all of that, and then halfway through the judicial determination hearing announce for the first time them not being called. I don't accept what my friend says about the witness schedule last week. It's just not acceptable, your Honour.
GILCHRIST DP: But if it's not part of their case, what are you worried about?
MR SAIES: Because it's in the determination. It's an abuse of process.
GILCHRIST DP: But their case is, I think - well, perhaps I'm misunderstanding, but I thought the whole point of this case is they are 5 contending that the period during which your client worked in her own shop indicates a capacity to sell her labour in the open labour market, and that therefore they say that she's capable of undertaking suitable employment. Is that it?
MR COPPOLA: Precisely, your Honour.
MR SAIES: Well - - -
Ground 2 of the appeal complains that the Full Bench misconceived the appellant’s case on appeal in respect of its contentions in ground 1. The appellant has advanced that same case before this Court. I understand it in the same way as the Full Bench did. It follows that I can apprehend no error in the reasoning of the Full Bench.
Ground 3 - Particulars
The appellant complains by ground 3 that the Full Bench failed to treat the job descriptions in the De Poi Reports as particulars of the respondent’s case at trial. The appellant contends that by providing the report the respondent committed itself to prove that the appellant had a capacity to perform the duties of the generic position of a Sales Assistant (Health Food Store) described in the De Poi Reports, failing which its decision would be set aside.
The provision of a summary of evidence, whether by way of an expert report or otherwise, is not necessarily the equivalent of the provision of particulars. It does no more than foreshadow evidence on which a party will rely. The De Poi Reports were one of a number of such documents annexed to WorkCover’s letter of 5 December 2011.
Nor did the statement of issues delivered by WorkCover give the De Poi Reports the status of particulars. In any event parties are not bound by their particulars. The chains of the archaic pleading and practice rules which once bound common law courts were broken long ago by the Judicature Acts. The appellant’s attempt to have them bind a body like the Tribunal, which is charged to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, must be rejected.
The only prejudice to the appellant that can be said to arise from a lack of ‘particulars’ is that the appellant was not given a set of detailed criteria which defined the role fulfilled by a retail assistant in a health food store. The appellant thereby alleges she did not know the case to meet. This submission must be rejected.
First, for the reasons discussed above the appellant knew, and did so for some period of time, that the case she was required to meet was based upon the work in her own store. Thereby the duties that the appellant undertook in her own store defined the parameters of what was to be expected of a retail assistant.
Second, if the De Poi Reports are to be taken as ‘particulars’ in accordance with appellant’s submissions, part of that evidence was led by the appellant. The evidence led from Ms Toth specifically referred to some of the material contained in the De Poi Reports. By way of example, Ms Toth was asked to refer to specific tasks and requirements contained in the De Poi Reports:
QCould I take you to page 123 please? Again under the heading, “Physical demands”, the third dot point which is, “Occasional to frequent stooping to access the lower levels and access the stock located on ground level”. Again not all that precise but when it refers to occasional to frequent stooping do you think that would be a problem?
AThe reaching forward while stooping, yes.
QWhy is that?
AI didn't have any problem with bending down but constant this kind of thing would have been like
….
QIf I could just go over to page 127, again under the heading, “Physical demands”, the second dot point, “Occasional lifting and carrying of stock generally between 3 to 8 kilograms”. Can I just deal with weights in that range for a start?
AYes.
QWould that be a problem on an occasional basis?
ANo. It would be a problem if I had to reach with them or stoop and that sort of thing with them but by the time I bring the chair down and put the bag on the chair and then fill the bulk bin from there, so, and there is always ways around it.
It follows that not only was the appellant’s evidence in and of itself particularising the relevant characteristics of her employment (as partially it was her employment was said to demonstrate that she had capacity), in pre-empting the material that was to come from the respondent’s tender of the De Poi Reports the appellant led evidence as to the role of a retail assistant and provided a level of particularity to those duties. That is evidence in chief of the appellant which was accepted by the Deputy President regardless of the evidential status of the De Poi Reports or their classification as particulars.
Both Gilchrist DPJ and the Full Bench found that the appellant could have been under no misunderstanding as to the case she was being asked to meet.[15] The material overwhelmingly supports that conclusion. In any event no question of law is raised by the challenge to it. No error is shown in paragraphs [45] to [50] of the reasons of the Full Bench.
[15] Toth v WorkCover Corporation [2015] SAWCT 19 at [172]; Toth v WorkCover Corporation (Bindarra Pty Ltd) [2016] SAWCT 8 at [47].
Ground 4 – Failure to Prove a Job Description
WorkCover determined to discontinue the appellant’s income maintenance pursuant to s 35B of the Act. Section 35B of the Act relevantly provided:
35B—Weekly payments after expiry of designated periods—no work capacity
(1)Subject to section 35C (and to the other provisions of this Act), a worker’s entitlement to weekly payments under this Division ceases at the end of the third entitlement period under section 35A (unless brought to an end before this time) unless the worker is assessed by the Corporation as—
(a) having no current work capacity; and
(b) likely to continue indefinitely to have no current work capacity.
(2)If a worker qualifies under an assessment under subsection (1), the worker is entitled to weekly payments while incapacitated for work in respect of a particular injury equal to 80% of the worker’s notional weekly earnings as though the third entitlement period were continuing.
…
The expressions ‘no current work capacity’ and ‘suitable employment’ were defined in s 3(1) of the Act as:
no current work capacity in relation to a worker, means a present inability arising from a compensable injury such that a worker is not able to return to work, either in his or her employment at the time of the occurrence of the injury or in suitable employment;
…
suitable employment in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a)the nature of the worker’s incapacity and previous employment;
(b)the worker’s age, education, skills and work experience;
(c)the worker’s place of residence;
(d)medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e)if rehabilitation programs are being provided to or for the worker;
(f)the worker’s rehabilitation and return to work plan, if any.
…
WorkCover notified the appellant that it had made its determination on the ground that she had a current work capacity ‘including work as a Sales Assistant (Health Food Store)’.
The Deputy President held, and the Full Bench proceeded on the basis, that WorkCover carried the onus of proving that there was work for which the applicant was suited, and to prove that there was no obstacle to the appellant returning to that work. The appellant contends that WorkCover necessarily failed to discharge that onus because it did not adduce evidence identifying what might be described as a job description of the position of Sales Assistant (Health Food Store) generally accepted by that industry.
This ground of appeal attempts to establish formalistic and bureaucratic requirements for satisfying s 35B of the Act. It is common for employment positions to have a relevant duty statement for the purposes of the regulation of a worker’s employment. However, there is no universally applicable job description for a health food store assistant or any other employment position. The nature of the work which health food store assistants perform can only be established by evidence. The evidence may take many forms but most obviously it will be evidence from employers or workers in the industry or their customers. Their testimony may be aided by business records setting out those duties for contractual or management purposes but that documentary evidence is largely ancillary.
The evidence which persuaded Gilchrist DPJ that the appellant was able to obtain work as a sales assistant in a retail health food store included evidence that:
●the appellant had operated her own health food shop with only limited assistance from family and others;
●the appellant had worked as both a bookkeeper, and sales assistant in a retail health food store;
●the worker’s relevant physiological restrictions were her lifting and reaching capacity;
●an employer in a health food retail industry could work around restrictions of the kind from which the appellant suffered.
That evidence was capable of establishing that there was suitable work which the appellant could perform. No error of law which would vitiate the finding of fact to that effect has been made out.
Ground 5 – Evidential Onus
The appellant contends that Gilchrist DPJ wrongly imposed an evidential onus on her on the issue of her incapacity for work as a retail assistant in a health food store and that the Full Bench erred in holding that that alleged error did not materially affect the Deputy President’s ultimate conclusion.
The approach of Gilchrist DPJ on the question of onus is extracted at [44] above. The Full Bench’s consideration of that passage is extracted at [55] above.
I have already observed in [56] above that the Full Bench did not decide that Gilchrist DPJ had erred in his application of the onus of proof.
The evidential burden, strictly so called, and the role it plays is best explained by reference to trials by judge and jury. A party who bears an evidential burden will have the issue withdrawn from the jury by the judge if he or she does not adduce any evidence on that issue. Examples are the evidential onus carried by an accused in a murder trial to adduce evidence of provocation. If the evidential onus is not discharged, the issue of provocation will not be left to the jury. If the evidential onus is discharged, the prosecution must then disprove provocation beyond reasonable doubt by the prosecution. Similarly, in a testamentary capacity case, the presumption of capacity on due execution of a will applies unless the party challenging testamentary capacity adduces some evidence to call it in doubt. If that evidentiary onus is discharged, but not otherwise, the propounder of the will must prove testamentary capacity on the balance of probability.
The imposition of an evidential burden in the strict sense, arises out of the practical approach of the common law to the problem of applying the legal burden to prove a negative or to prove matters which are peculiarly within the knowledge of another party.
The reasons of Gilchrist DPJ do not use the expression ‘evidentiary onus’ in that technical sense. Both the Deputy President and the Full Bench accepted that the burden throughout remained on WorkCover to prove the appellant’s suitability for work. The observations of the Deputy President simply reflect the practical reality that the inference that there was suitable work which the appellant was capable of performing as a retail assistant in a health food store was a compelling one in the absence of any evidence from the appellant that she had attempted, but was unable, to secure such work. The Full Bench correctly described the approach of the Deputy President in the passages I have cited above. The appellant has not demonstrated any error of law in the reasons of the Deputy President or the Full Bench.
Conclusion
I would dismiss the appeal.
KELLY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
PARKER J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

[2017] SASCFC 83

21 July 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Abuse of Process

Procedural Fairness

Remedies