Traut v Faustmann Bros Pty Ltd

[1983] FCA 137

Re: HANS TRAUT
And: FAUSTMANN BROS. PTY. LTD. (1983) 77 FLR 98
No. NTG 10 of 1983
Workmen's Compensation - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Lockhart(2) and Jenkinson JJ.

CATCHWORDS

Workmen's Compensation - nature of appeal to Supreme Court of Northern Territory from Workmen's Compensation Tribunal - meaning of "such appeal may be by way of rehearing" - onus of proof - whether transcript and exhibits before Tribunal should be evidence in appeal when objection by party.

Workmen's Compensation Act (N.T.) s. 26

Workers' Compensation - Nature of appeal to Supreme Court of the Nothern Territory from Workmen's Compensation Tribunal - Whether appeal was by way of rehearing or a hearing de novo - Whether transcript of evidence and exhibits tendered before Tribunal should be evidence in hearing of appeal - Burden of proof - Suggested appeal procedures - History of workers' compensation legislation in Northern Territory - Workmen's Compensation Act (NT), s 26.

HEADNOTE

Section 26 of the Workmen's Compensation Act provides as follows: "26. (1) Where the Tribunal makes a determination under this Act any party to the proceedings may appeal against the determination on a question of law or fact or both to the Supreme Court of the Northern Territory of Australia within the time and in the manner prescribed by Rules of that Court and such appeal may be by way of rehearing.

(2) The Supreme Court of the Northern Territory of Australia shall decide the matter of the appeal and may either dismiss the appeal or reverse or vary the determination appealed against and may make such order as to the costs of the appeal or the proceeding before the Tribunal or both as it thinks fit."

The respondent employer (the employer) appealed to the Supreme Court of the Northern Territory of Australia (the Supreme Court) against a determination of the Workmen's Compensation Tribunal (the Tribunal) made on 13 May 1982 that the appellant (the workman), who was an employee of the respondent, was entitled to certain payments of compensation under the Workmen's Compensation Act (the Act).

The learned Chief Justice of the Supreme Court made the following interlocutory order (the first order) on 14 April 1983:

"1. That the transcript of evidence from and exhibits tendered before the Workmen's Compensation Tribunal be evidence in the hearing of this Appeal.

2. That the parties be at liberty to call such further evidence as they may be advised.

3. That the costs of and incidental to this application be costs of the Appeal."

At the outset of the hearing of the employer's appeal to the Supreme Court from the Tribunal, the learned Chief Justice of the Supreme Court made a second interlocutory order (the second order) on 18 April 1983, namely that the workman "should begin and be dux litis, he bearing the onus of satisfying the court that he is entitled to the award of compensation which he claims". The workman challenged the second order and during the hearing of the workman's appeal against the second order the Full Federal Court of Australia granted leave to the employee to appeal against so much of the first order as was contained in the first paragraph.

The two appeals were heard together by consent.

It was submitted for the workman that the appeal to the Supreme Court from the determination of the Tribunal was an appeal by way of rehearing in the sense that the Supreme Court reheard the case at the date of appeal; thus the Supreme Court was confined to the evidence before the Tribunal, subject to its power to receive further evidence of any changes in circumstances which may have occurred between the date of the Tribunal's determination and the date of the hearing of the appeal, but not otherwise.

It was contended for the employer that the appeal to the Supreme Court was a hearing de novo in the sense that the court was not confined to the material before the Tribunal; that either party might call whatever evidence it wished subject to its relevance; and that although the employer was appealing, the workman being the claimant for compensation, must start again, make out his case afresh and call his witnesses.

Held: Per curiam - (1) The employer's appeal should be allowed and par 1 of the first order made on 14 April 1983 should be set aside.

Per Toohey J - The order of 14 April 1983 directing that the transcript of evidence from and exhibits tendered before the Tribunal be evidence in the hearing of the appeal should not have been made against the objection of the employer.

(2) Per Toohey and Lockhart JJ, Jenkinson J dissenting - The workman's appeal should be allowed and the whole of the second order made on 18 April 1983 should be set aside.

Per Toohey J - The burden, legal and evidential, lay upon the employer to show that the Tribunal erred. It might do so by adducing evidence or it might by consent rely upon the record of proceedings in the Tribunal. The determination of the Tribunal should have been before the Supreme Court, including its reasons and it may have been possible to demonstrate from the determination itself that error had occurred.

Per Toohey J - Observations concerning the problems and uncertainties that might arise in the case of an appeal under the Workmen's Compensation Act being a matter deserving of attention by the legislature.

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; Phillips v Commonwealth (1964) 110 CLR 347; Commonwealth v Rutledge (1964) 111 CLR 1, referred to.

Dare v Dietrich (1979) 37 FLR 175; Hale v Uranerz (Aust) Pty Ltd (1979) 37 FLR 186; Barclay Bros Pty Ltd v Liaris (1981) 56 FLR 436, followed.

Per Lockhart J - An appeal under s 26 of the Workmen's Compensation Act, being in the nature of a hearing de novo, does not permit the same use being made of the record of proceedings before the Tribunal as it would do if the appeal were in the nature of a rehearing in the accepted sense. The court cannot direct the parties or either of them to tender or rely upon the record of proceedings. Nor can it direct of its own motion or against the wish of any party that the record below be evidence in the hearing of the appeal before the Supreme Court. Such a direction is inconsistent with the nature of the appeal as a hearing de novo.

Quilter v Mapleson (1882) 9 QBD 672; Attorney-General v Birmingham, Tame and Rea District Drainage Board (1912) AC 788; The Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; In re Chennell; Jones v Chennell (1878) 8 Ch D 492; Phillips v Commonwealth (1964) 110 CLR 347; Commonwealth v Rutledge (1964) 111 CLR 1; Dare v Dietrich (1979) 37 FLR 175, referred to.

Per Lockhart J - The determination of the Tribunal stands, notwithstanding the pendency of the appeal, unless and until the Supreme Court decides otherwise. There is no provision for a stay of the Tribunal's determination pending the outcome of the appeal. These are strong indications that, although the appeal is a hearing de novo it is not the workman who has the carriage of the appeal, irrespective of his success or failure below. Rather, it is the appellant, whether he be the workman or the employer, who bears the usual onus of establishing his case on appeal.

Per Lockhart J - Observations concerning the nature of the three classifications of appeals, namely appeals stricto sensu, appeals by way of rehearing and appeals de novo. The classification of appeals into three categories is sometimes helpful, but it is impermissible to treat each category as being necessarily distinct from the others or as having immutable characteristics or inflexible boundaries. Ultimately the true character of an appeal must depend on the interpretation of the particular legislation; the jurisdiction, powers, composition and functions of the tribunal from whose decision the appeal lies; and the nature of the rights and liabilities of the persons affected by the tribunal's decision.

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, referred to.

Per Jenkinson J - Putting to one side the question of whether and in what circumstances a hearing de novo may be denied an appellant, and ignoring any statutory provisions pursuant to which a written statement may be given in evidence without calling the maker of the statement to give evidence viva voce, any unreasonableness or unfairness of the kind contemplated could be effectively discouraged by the Supreme Court's exercise of the discretionary power with respect to the costs of the proceeding before the Tribunal and of the appeal, which is conferred by s 26(2) of the Workmen's Compensation Act.

Per Toohey and Jenkinson JJ - Observations concerning the history of worker's compensation legislation in the Northern Territory and the right of appeal to the Supreme Court of the Northern Territory of Australia, discussed.

HEARING

Sydney, 1983, June 1, 2; July 8. #DATE 8:7:1983

APPEALS

The respondent employer appealed to the Supreme Court of the Northern Territory of Australia against a determination of the Workmen's Compensation Tribunal that the appellant workman was entitled to certain payments of compensation under the Workmen's Compensation Act (NT). The appellant challenged an order of the Supreme Court and during the hearing of his appeal the Full Federal Court of Australia granted leave to the respondent to appeal against part of another order made by the Supreme Court.

The two appeals were heard together by consent.

P J Deakin, for the appellant.

T I Pauling, for the respondent.

Cur adv vult

Solicitors for the appellant: Mildren Silvester & Partners.

Solicitors for the respondent: J R Withnall.

JDW

ORDER

1. Both appeals be allowed.

2. Paragraph 1 of the order made 14 April 1983 and the whole of the order made 18 April 1983 be set aside.

3. The respondent pay two thirds of the appellant's costs of the appeals.

Orders accordingly

JUDGE1

This appeal raises questions of importance concerning the nature of an appeal to the Supreme Court of the Northern Territory from a determination of the Workmen's Compensation Tribunal, a body constituted by the Workmen's Compensation Act ("the Act"). It also requires consideration of the procedures to be followed on the hearing of such an appeal.

Since the parties have occupied different roles at different stages, it is more convenient to refer to them simply as the employer and the workman.

The workman suffered injury by accident arising out of or in the course of his employment on 24 December 1974. There was no real consequential incapacity until 1979 but on 13 May 1982 the Tribunal made an award in his favour on the basis that he was then and had been since 1979 totally incapacitated for work. The employer appealed to the Supreme Court against that determination.

The appeal was filed on 9 June 1982. In the absence of rules under the Act prescribing the form of appeal, it was in accordance with the practice in the Northern Territory by way of notice of motion. On 17 March 1983 a judge of the Supreme Court refused an application by the employer for an order that the dates fixed for hearing of the appeal - 18, 19 and 20 April 1983 - be vacated and that the appeal be heard in July. The basis of the application was that the employer had recently learned that in proceedings in the Supreme Court, arising out of the accident in which he had been involved in 1974, the workman had been examined by specialists in Adelaide and that those examinations suggested his incapacity to be not the result of the accident in question. The employer appealed from the refusal of the adjournment to the Federal Court which, on 12 April 1983, heard the appeal and in an ex tempore judgment dismissed it.

The appeal now before this court is from an order made by the Chief Justice of the Supreme Court of the Northern Territory on 18 April 1983. That order was made at the outset of the hearing of the appeal to the Supreme Court from the Tribunal and it was in terms that "the Respondent to this Appeal should begin and be dux litis, he bearing the onus of satisfying the Court that he is entitled to the award of compensation which he claims".

Four days earlier, the learned Chief Justice, who as it happened was sitting in Chambers, ordered that the transcript of evidence from and exhibits tendered before the Tribunal be evidence in the hearing of the appeal and that the parties be at liberty to call such further evidence as they may be advised. By what was described as a cross-appeal but was in truth an appeal in its own right the employer challenges that part of the order of 14 April 1983 making the transcript of evidence and exhibits in the proceedings before the Tribunal evidence in the appeal to the Supreme Court.

The key to the nature of such an appeal is to be found in s. 26 of the Act which reads:

"26. (1) Where the Tribunal makes a determination under this Act any party to the proceedings may appeal against the determination on a question of law or fact or both to the Supreme Court of the Northern Territory of Australia within the time and in the manner prescribed by Rules of that Court and such appeal may be by way of re-hearing.

(2) The Supreme Court of the Northern Territory of Australia shall decide the matter of the appeal and may either dismiss the appeal or reverse or vary the determination appealed against and may make such order as to the costs of the appeal of the proceeding before the Tribunal or both as it thinks fit".

The reference to a "determination" arises from s. 6B of the Act which empowers the Tribunal "to hear and determine claims for compensation . . . and all matters and questions incidental to or arising out of claims for compensation . . .".

The Workmen's Compensation Tribunal was created by an amendment to the Act made by Act No. 1 of 1970. Prior thereto awards of compensation were made by a committee, arbitrator or by the Local Court. With some minor changes s. 26 has been part of the Act since its inception in 1949. It was also to be found in the earlier Workmen's Compensation Ordinance 1931, a right of appeal having been introduced in terms similar to s. 26 by Act No. 20 of 1939 of the Commonwealth of Australia. Thus for 44 years there has been in the relevant legislation of the Northern Territory a right of appeal to the Supreme Court on a question of law or fact or both, with a proviso that the appeal may be by way of re-hearing.

Although the learned Chief Justice did not deliver formal reasons, it is apparent from the transcript of the argument before him that he accepted the submissions of the employer's counsel. These were that s. 26 called for an appeal by way of re-hearing de novo (in effect, a re-trial of all issues before the Tribunal and any other issues that might be introduced) and that, notwithstanding the existence of a determination in his favour, an appeal having been brought against that determination the workman bore the onus of satisfying the court that he was entitled to the award of compensation previously sought by him.

Much of the argument before this court focussed on the true nature of an appeal by way of re-hearing, with extensive references by counsel to decisions in which that matter had been considered. Of course the nature of the appeal provided by s. 26 lies at the very heart of the matter before this court. And it is necessary for us to deal with the submissions put concerning that aspect. But the resolution of that issue does not necessarily dispose of the appeal. In the end the question to be answered is - whatever the nature of an appeal under s. 26, does a workman who has obtained from the Tribunal a determination in his favour bear the onus of satisfying the court that he is entitled to that determination? In the circumstances of the present case, that onus relates to both the legal and evidential burden.

In Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 CLR 616 the court was concerned with the nature of an appeal to the District Court from a decision of a licensing board. Mason J., with whom Barwick C.J. and Stephen J. agreed, discussed the effect of a statutory provision that an appeal from a decision of an administrative authority was by way of re-hearing. His Honour referred to a number of considerations that might point towards or away from a conclusion that such an appeal calls for an exercise of original jurisdiction or for a hearing de novo. But, said his Honour:

". . . in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing". (at pp. 621-622)

The nature of the appeal provided by s. 26 is not to be determined by attaching a label to it but rather by trying to discern the intent of the legislature.

Section 26, in its terms, confers a right which is described as an "appeal". And it is an appeal against the determination "on a question of law or fact or both". That would suggest the need to identify in the notice of appeal and, in particular, before the Supreme Court those respects in which it was said that the Tribunal had erred in law or in fact. It is conventional language used when a court is empowered to consider whether there has been error on the part of an inferior court or of a tribunal. Section 26(2) obliges the Supreme Court to decide "the matter of the appeal", suggesting that the court is to decide whether and in what respect there has been an error of law or fact on the part of the Tribunal. The court is then empowered either to dismiss the appeal or to reverse or vary the determination appealed against, presumably depending upon the court's conclusion whether error has been demonstrated.

It is only the existence in s.26(1) of the words "and such appeal may be by way of re-hearing" to suggest that the right of appeal created by s.26 is other than an appeal stricto sensu. Even so, the expression "appeal by way of re-hearing" is ordinarily used to indicate that the appellate court is not confined to the law and facts as they stood at the time the decision appealed from was made and to indicate further that there is in that court a power to receive additional evidence. Standing on their own, the words "appeal by way of re-hearing" are not to be lightly taken to mean that there is in effect a re-trial of the issues between the parties.

But the workman is faced with two difficulties in seeking to persuade this court that an appeal under s.26 of the Workmen's Compensation Act is no more than an appeal by way of re-hearing and that it is not a hearing de novo. The first difficulty lies in the construction placed by the High Court on s. 20 of the Commonwealth Employees' Compensation Act 1930 from which, it is generally accepted, s.26 was derived. In several decisions, in particular Phillips v. Commonwealth (1964) 110 C.L.R. 347 and Commonwealth v. Rutledge (1964) 111 C.L.R. 1, the High Court made clear its view that s.20 of the Commonwealth Employees' Compensation Act did not provide an appeal in the strict sense of that term. In the view of the Court in Phillips' case:

"The use of the word 'may' in the concluding words of the sub-section is somewhat curious but it is clear enough that the form of proceedings for which the sub-section provides is not an appeal in the strict sense at all. What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it". (at p.350)

The second difficulty facing the workman is that, notwithstanding attempts to distinguish the nature of an appeal under s.20 from one under s.26 of the Workmen's Compensation Act, the Federal Court in Dare v. Dietrich (1979) 26 A.L.R. 18 rejected the argument that there was a relevant distinction. At pp.32-33, Deane J., with whom Muirhead and Lockhart JJ. concurred in this respect, said:

". . . I am not persuaded that consideration of the function and procedure of the Workmen's Compensation Tribunal leads to the conclusion that the appeal established by s.26 of the Ordinance was intended to take a different form to the appeal established by the section of the Commonwealth Act upon which s.26 of the Ordinance was plainly based. . . . the statement in s.26 of the Ordinance that 'the appeal may be in the nature of a re-hearing should not be construed in a narrow technical sense as meaning no more than that the appeal is to be determined as at the date of its hearing. The statement should be construed as conveying that the re-hearing may be a hearing de novo upon which it is for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence before it".

It is true that the remarks of Deane J. must be read in the context in which they were made. The question before the court was whether the Supreme Court was right in treating the proceedings before it as a hearing de novo and permitting the appellant before it, who had been held by the Tribunal not to be a workman within the meaning of the Workmen's Compensation Act, to present his case for compensation afresh. Nevertheless, it is not possible to treat Deane J's. comments on the nature of an appeal under s.26 as merely obiter. They were an integral part of the reasoning that lead him to uphold the view taken by the Supreme Court. That judgment, which is in effect a judgment of the Full Court, was adopted in Hale v. Uranerz (Aust.) Pty. Ltd. (1979) 37 F.L.R. 186 and in Barclay Bros. Pty. Ltd. v. Liaris (1981) 56 F.L.R. 436. This court is bound to proceed on the same view of s.26.

It is necessary now to consider, in terms of the burden of proof both legal and evidential, what the implications are of saying that the appeal to the Supreme Court by the employer was a hearing de novo.

When, as in Dare v. Dietrich, a workman has failed before the Tribunal no difficulty arises in holding that before the Supreme Court he has the onus of establishing his entitlement to compensation, an onus that he carried before the Tribunal. But when, as in the instant case, a workman has succeeded before the Tribunal and it is the employer who appeals, the matter may not be so straight forward.

On one view, it is a curious situation in which the workman has satisfied the Tribunal of his entitlement to compensation, yet must assume the onus of satisfying the Supreme Court of that entitlement. On the other hand, the employer argues that if before the Supreme Court the onus lies upon it to show that the award was ill founded and the material before the Tribunal is not automatically before the Supreme Court either as evidence or as the record of proceedings below, it finds himself in the almost impossible position of trying to prove a negative.

In Sperway Constructions, already mentioned, Mason J. concluded his judgment with these words:

"In the result I am of opinion that the majority in the Court of Appeal were correct in holding that the District Court is bound to receive the evidence of the witnesses and that there is an onus on the appellant to present its case in that Court". (at p. 625)

The appellant in question was the company but it was appealing against a determination of the Builders Licensing Board adverse to it.

In Phillips v. The Commonwealth the Commissioner for Employees' Compensation had determined that payment of compensation made on the basis of total incapacity should end because Ms. Phillips was no longer totally incapacitated. On appeal to the County Court Ms. Phillips contended that she was still totally incapacitated or alternatively partially incapacitated. In the view of the High Court, before the County Court the onus lay on the Commonwealth to show that its liability to pay compensation to the employee as a person totally incapacitated should be brought to an end, but that the onus lay upon Ms. Phillips to show that she should be awarded compensation as a person partially incapacitated. The Court said at p. 350 :

". . . the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an amount of compensation will be upon the claimant in later proceedings before the County Court".

In such a situation the workman comes before the court as appellant and without any determination in his favour. It is of some importance that in Phillips the Court continued :

"Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances".

In the case before this court the workman has an award in his favour. The employer contends that the award was wrongly made. Logic and the language of s. 26 would suggest that it is for the employer to satisfy the Supreme Court that the award was wrongly made. I can find no authority destructive of that conclusion.

In the case of an appeal to the Supreme Court that is by way of re-hearing and not a hearing de novo, for instance an appeal under the Justices Act, the appeal is determined on the record of proceedings in the court below, subject to the reception of further evidence. Gabriel v. Williamson (1979) 1 NTR 6 at p. 9; Davern v. Messel (1983) 45 ALR 667 at p. 684. But in the case of an appeal under s. 26 the position is as described by this court in Barclay Bros. Pty. Ltd. v. Liaris at p. 438.

"It is necessary to point out that material before the Tribunal is not automatically evidence before the Court. It may become so by consent or it may have some evidentiary force of its own because, for instance, it contains admissions or consists of medical reports which are admissible by virtue of some provision of the Evidence Act. But if what otherwise is inadmissible is objected to, evidence before the Tribunal should not be received by the Supreme Court. Where, as in the present case, there are disputed issues of fact, it behoves counsel to give careful consideration to the content and admissibility of material from the Tribunal which is sought to be placed before the Court. If that material is objected to, it can of course be placed before the Court in the ordinary way, by calling the witness".

It follows that the order of 14 April 1983 directing that the transcript of evidence from and exhibits tendered before the Tribunal be evidence in the hearing of the appeal should not have been made against the objection of the employer.

In my view the burden, legal and evidential, lies upon the employer to show that the Tribunal erred. It may do so by adducing evidence (and I do not overlook the practical difficulties this may present) or it may by consent rely upon the record of proceedings in the Tribunal. The determination should be before the Supreme Court and I include in that term the reasons of the Tribunal which are part of it. It may be possible to demonstrate from the determination itself that error has occurred.

This appeal illustrates the problems and uncertainties that may arise in the case of an appeal under the Workmen's Compensation Act. It is a matter deserving of attention by the legislature. A procedure comparable to that under the Justices Act would obviate most of the difficulties and, since the Tribunal is now constituted by a stipendiary magistrate, the analogy is an apt one.

Both appeals should be allowed and para. 1 of the order made 14 April 1983 and the whole of the order made 18 April 1983 be set aside. I agree that an appropriate resolution of the question of costs is to order that the employer pay two thirds of the workman's costs of both appeals.

JUDGE3

These are two appeals which were heard together by consent. One appeal is brought from an interlocutory order of the Supreme Court of the Northern Territory (Forster C.J.) made on 18 April 1983 that Hans Traut 'should begin and be dux litus' in an appeal to the Supreme Court from a determination in his favour of the Workmen's Compensation Tribunal and that he bear the onus of satisfying the Supreme Court that he is entitled to the award of compensation which he claims. Hans Traut was the successful claimant for compensation before the Tribunal, the respondent to the appeal to the Supreme Court and the appellant in the appeal to this Court and to whom, to avoid confusion, I shall refer as 'the workman'.

Faustmann Bros. Pty. Limited (the unsuccessful respondent before the Tribunal, the appellant before the Supreme Court and the respondent in the appeal to this Court and to whom, also to avoid confusion, I shall refer as 'the employer') also appeals to this Court from an interlocutory order of Forster C.J. made on 14 April 1983 that the transcript of the evidence from and exhibits tendered before the Tribunal be evidence in the hearing of the appeal to the Supreme Court.

The appeal to the Supreme Court by the employer is from a determination of the Tribunal made on 13 May 1982 under the provisions of the Workmen's Compensation Act of the Northern Territory ("the Act"). The Tribunal made a determination in favour of the workman whereby he became entitled to the payment to him or on his behalf of an amount totalling approximately $100,000. The workman is a married man with a dependant daughter. He is about 60 years of age. He suffered injuries on 24 December 1974 when a motor vehicle which he was driving to or from work collided with another motor vehicle.

The appeals raise questions as to the nature of an appeal to the Supreme Court of the Northern Territory from a determination of the Tribunal. Section 26 of the Act deals with appeals from determinations of the Tribunal in these terms:-

'26. APPEALS

(1) Where the Tribunal makes a determination under this Act, any party to the proceeding may appeal against the determination on a question of law or fact or both to the Supreme Court of the Northern Territory of Australia within the time and in the manner prescribed by Rules of that Court and such appeal may be by way of rehearing.

(2) The Supreme Court of the Northern Territory of Australia shall decide the matter of the appeal and may either dismiss the appeal or reverse or vary the determination appealed against and may make such order as to the costs of the appeal or the proceeding before the Tribunal or both as it thinks fit.'

The workman submitted that the appeal to the Supreme Court from the determination of the Tribunal is an appeal by way of rehearing in the sense that the Supreme Court rehears the case at the date of the appeal. It is thus confined to the evidence before the Tribunal, subject to its power to receive further evidence of any changes in circumstances which may have occurred between the date of the Tribunal's determination and the date of the hearing of the appeal, but not otherwise.

The employer submitted that the appeal to the Supreme Court is a hearing de novo in the sense that the Court is not confined to the material before the Tribunal. Either party may call whatever evidence it wishes subject to relevance. Even though it is the employer which appeals, the workman being the claimant for compensation, must start again, make out his case afresh and call his witnesses.

Appeals are frequently described as falling into three classifications: appeals stricto sensu, appeals by way of rehearing and appeals de novo. Upon an appeal stricto sensu the Court to which the appeal is brought determines whether the judgment appealed from was right on the evidence before the lower Court. The only judgment that can be given on such an appeal is one that ought to have been given at the original hearing: Quilter v. Mapleson (1882) 9 Q.B.D. 672 per Jessel M.R. (at p.676).

An appeal by way of rehearing is generally taken to be an appeal which involves rehearing the proceeding at the date of the appeal '....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": per Jessel M.R. in Quilter v. Mapleson (supra). The Court hearing the appeal must decide the appeal by applying the law as it then exists to the circumstances as they then exist: Attorney General v. Birmingham, Tame and Rea District Drainage Board (1912) A.C. 788 at pp. 801-802; Victorian Stevedoring and General Contracting Co. Pty. Limited v. Dignan (1931) 46 C.L.R. 73 at pp. 107-109; Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Limited (1976) 135 C.L.R. 616 per Mason J. at pp. 619 and 620. An appeal by way of rehearing is, generally speaking, a trial over again on the evidence used in the Court below with a special power to receive further evidence, but that evidence is essentially to bring the matter up to date. In the English Court of Appeal 'all appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence': In re Chennell; Jones v. Chennell (1878) 8 Ch.D. 492 per Jessell M.R. at p.505. It is in this sense that the phrase 'appeal by way of rehearing' is generally understood. The reception of further evidence is, however, governed by the particular statutes or rules which define the powers of the appellate Court.

An appeal 'de novo' is really a fresh or original hearing. Sometimes the complainant or informant begins and the appeal is an appeal in name only. The usual onus that lies on an appellant does not lie on him. An appeal to Quarter Sessions in New South Wales, although generally described as an appeal, was really a hearing de novo; the complainant began and proved his case notwithstanding that he may have been the respondent to the appeal. As Mason J. said in Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Limited (supra) at p.620:-

'The appeal to Quarter Sessions is the outcome of historical development and its only utility for present purposes is that it provides an illustration of what is in truth a hearing de novo, although, as I have said, it is frequently described as a rehearing.'

The classification of appeals into three categories is sometimes helpful, but is it impermissible to treat each category as being necessarily distinct from the others or as having immutable characteristics or inflexible boundaries. Ultimately the true character of an appeal must depend on the interpretation of the particular legislation; the jurisdiction, powers, composition and functions of the tribunal from whose decision the appeal lies; and the nature of the rights and liabilities of the persons affected by the tribunal's decision. The following remarks of Mason J. in Builders Licensing Board v. Sperway Constructions (supra) (at pp. 621-622) are apposite:-

'Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the Court will undertake a hearing de novo, although there is no absolute rule to this effect.....There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo....The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."

The appeal in the present case was brought pursuant to s.26 of the Act which provides that the appeal may be on a question of law or fact or both and 'may be by way of rehearing.' The provision that the appeal 'may be by way of rehearing' was based on s.20 of the Commonwealth Employees' Compensation Act 1930 which used similar language in relation to an appeal from the Commissioner under that Act to a County Court.

In Phillips v. The Commonwealth of Australia (1964) 110 C.L.R. 347, the High Court considered sub-s. 20(1) and said (at p.350):

'The use of the word 'may' in the concluding words of the sub-section is somewhat curious but it is clear enough that the form of proceeding for which the sub-section provides is not an appeal in the strict sense at all. What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it. That being so the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court.'

In the Commonwealth v. Rutledge (1964) 111 C.L.R. 1 Taylor J. said of s.20 at (p.8):

'The so-called appeal for which s.20 provides is, in my view, intended as a vehicle by which, in the case of claims for compensation which have been determined adversely to an applicant, such claims may be carried to a County Court for rehearing and determination. Further, in disposing of any such appeal that Court may determine any issue arising in relation to the claim just as the Commissioner might have done in the first instance.'

It is interesting to note that the remarks in Phillips' Case and Rutledge's Case specifically refer to the case where the claimant, being the workman, was unsuccessful before the Commissioner.

In Dare v. Dietrich (1979) 26 A.L.R. 18, a decision of a Full Court of this Court (Muirhead, Deane and Lockhart JJ.), Deane J. considered the nature of an appeal under s.26 of the Act (then called the Workmen's Compensation Ordinance) from the Tribunal to the Supreme Court. The relevant issue in that case for present purposes (an issue not determined in the High Court in the appeal to it in that case _ the High Court's judgment is reported in (1980) 30 A.L.R. 407) was whether the Supreme Court was correct in receiving evidence other than evidence which merely brought the material before the Tribunal up to date. Deane J. held, on this point, in favour of the reception of this evidence on the ground that it was not 'an appeal by way of rehearing' in the accepted sense. His Honour said that the appeal was in the nature of a hearing de novo 'upon which it is for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence before it.' Muirhead J. and I, although each delivered separate judgments, agreed with Deane J.'s reasons for judgment as to the nature of an appeal to the Supreme Court under s.26.

Notwithstanding that Dare v. Dietrich determined that an appeal from the Tribunal to the Supreme Court under s.26 is a hearing de novo where each party is entitled to adduce new evidence touching any relevant issue, it did not decide the questions which are central to the present case. To say that an appeal under s.26 is a hearing de novo does not determine that the claimant for workmen's compensation must necessarily start again before the Supreme Court if he is the respondent to the appeal and that he necessarily bears the onus of proof. It is these questions that arise for determination in this case.

Workmen's compensation legislation is remedial legislation to compensate workmen for injuries suffered in the course of their employment. A determination of the Tribunal gives rise to an entitlement in the workman to be paid compensation and a liability of his employer to pay it (s.7). It is an offence for an employer, without authority, to discontinue, withhold or diminish payments to the employee (s.7A).

If a workman is required to start afresh in every appeal from a determination of the Tribunal to the Supreme Court it would seriously diminish the benefit derived by him from a determination in his favour. Having successfully fought his claim before the Tribunal he would be obliged to start all over again merely because the employer appeals against the determination. Whether the employer wins or loses his case before the Tribunal he would be in a position of unfair advantage on an appeal. The employer could, indeed, conduct his opposition to the workman's case before the Tribunal akin to a committal proceeding, merely testing the workman's case, giving nothing away about his own case, calling no evidence and awaiting the appeal which he will institute, if necessary, mindful that the workman must again be the moving party. I would not be prepared to lend my support to the correctness of this conclusion unless compelled by the terms of the Act or binding authority. There is no binding authority, so I turn to the Act, in particular s.26.

The proceedings before the Tribunal are between two parties in an adversary position. The case is heard on its merits and culminates in a determination. The parties may be represented by counsel or solicitors. The Tribunal's powers, privileges and immunities are akin to those exercised and enjoyed by courts. Section 26 confers a right of appeal against the determination 'on a question of law or fact or both'. The section thus assumes that the determination of the Tribunal is such as to expose questions of fact or law. The Supreme Court determines the matter of the appeal and

'may either dismiss the appeal or reverse or vary the determination appealed against and may make such order as to the costs of the appeal or the proceedings before the Tribunal or both as it thinks fit.'

The determination of the Tribunal stands, notwithstanding the pendency of an appeal, unless and until the Supreme Court decides otherwise. There is no provision for a stay of the Tribunal's determination pending the outcome of the appeal. These are strong indications that, although the appeal is a hearing de novo, it is not the workman who has the carriage of the appeal, irrespective of his success or failure below. Rather it is the appellant, whether he be the workman or the employer, who bears the usual onus of establishing his case on appeal.

I approach the remaining question before us on the basis that, in an appeal to the Supreme Court pursuant to s.26 of the Act, it is for the appellant, whoever he be, to establish his case. That question concerns the status of the material before the Tribunal upon an appeal to the Supreme Court.

The appeal to the Supreme Court is from the 'determination' of the Tribunal, a word the meaning of which is not defined by the Act or readily ascertained by reference to its provisions. In my opinion the word 'determination' in s.26 implies an ending or finality to the proceeding before the Tribunal, the ending of the controversy. It is a decision which is decisive of the issue raised before it. Where, as here, the workman seeks a determination of his entitlement to compensation and an amount of compensation to be paid by the employer to him for injuries sustained arising out of or in the course of his employment, the determination is not merely the order made but also the reasons which support it. They together answer the description of the determination.

What constitutes the record before the Tribunal will doubtless vary from case to case but generally it will consist of the determination of the Tribunal, the depositions or transcript of the evidence of witnesses and exhibits. There are no provisions in the Act for the delivery to the Supreme Court of any record of proceedings before the Tribunal. The Supreme Court is entitled to read the determination of the Tribunal. But what use can it make of the record of proceedings, in particular the transcript of evidence and exhibits?

If the appeal to the Supreme Court were an appeal by way of rehearing in the usual sense, the record of proceedings would necessarily constitute the material upon which the Supreme Court would base its decision, subject to it being supplemented by evidence to bring it up to date, where necessary. As the appeal to the Supreme Court under s.26 is a hearing de novo the record of proceedings cannot be used this way. It is for the parties to present their cases as they wish. They may consent to the whole or any part of the record below being evidence in the appeal. This may be the convenient and sensible course to pursue and in many cases undoubtedly will be. But they may not consent to this course, in which case the appellant must start afresh.

In my view an appeal under s.26, being in the nature of a hearing de novo, does not permit the same use being made of the record of proceedings before the Tribunal as it would do if the appeal were in the nature of a rehearing in the accepted sense. The Court cannot direct the parties or either of them to tender or rely upon the record of proceedings. Nor can it direct of its own motion or against the wish of any party that the record below be evidence in the hearing of the appeal before the Supreme Court. Such a direction is inconsistent with the nature of the appeal as a hearing de novo. It follows that the order made by the Supreme Court on 14 December 1982 in this case cannot stand.

I would allow both appeals and set aside the orders appealed from. As to costs, the argument related mainly to the workman's appeal so I think the fair order is that the employer pay two-thirds of the workman's costs of both appeals.

JUDGE3

Appeals against two interlocutory orders made by the Chief Justice of the Supreme Court of the Northern Territory of Australia.

The proceeding in that Court in which the orders were made is an appeal by an employer, Faustman Bros. Pty. Ltd., ("the employer") against a determination of the Workmen's Compensation Tribunal that Hans Traut, an employe of that employer ("the workman") was entitled to certain payments of compensation under the Workmen's Compensation Act of that Territory. The first order, made by the learned Chief Justice on 14 April 1983, was:

'1. That the transcript of evidence from and exhibits tendered before the Workmen's Compensation Tribunal be evidence in the hearing of this Appeal.

2. That the parties be at liberty to call such further evidence as they may be advised.

3. That the costs of and incidental to this application be costs of the Appeal.'

Leave was granted by this Court to the employer, during the hearing of the workman's appeal against the other order, to appeal against the order made on 14 April 1983. The other order, made by Forster C.J. on 18 April 1983, was that the workman 'should begin and be dux litis, he bearing the onus of satisfying the Court that he is entitled to the award of compensation which he claims.' On that day the appeal to the Supreme Court had been called on for hearing before the learned Chief Justice and submissions were addressed to him on the questions which the order answers. The transcript of that day's proceedings does not indicate that his Honour expressed his conclusions about those questions in the verbiage of curial order, but the order has been taken out in the terms I have quoted and no point was taken before this Court that what fell from the learned Chief Justice in those terms was not a 'judgment', within the meaning of that word in s.24(1)(b) of the Federal Court of Australia Act 1976. Immediately after his Honour had expressed those conclusions the hearing of the appeal was adjourned to a date to be fixed, and has not been resumed. In those circumstances I think that this Court may entertain the appeal against the order that the workman 'begin and be dux litis'. The opiniative additions _ 'should' and 'he bearing the onus of satisfying the Court that he is entitled to the award of compensation which he claims' _ were no doubt not intended by his Honour as any part of his order, but were mistakenly copied from the transcript of what his Honour said by those who prepared the order.

It was the submission of Mr. Deakin, of counsel for the workman, that the order of 18 April 1983 proceeded from an incorrect appreciation of the nature of an appeal to the Supreme Court against a determination of the Tribunal. That is a subject with which Deane J. dealt in Dare v. Dietrich (1979) 26 A.L.R. 18 at 30-33 and the other two members of this Court who decided that appeal concurred in what his Honour there said. Mr. Deakin did not question the correctness of anything Deane J. said. He submitted that the appeal from the Tribunal to the Supreme Court was by way of rehearing, not an appeal stricto sensu and not a hearing de novo. To the objection that the reasoning of Deane J. contradicts such a submission in the plainest terms Mr. Deakin responded that the Full Court was concerned in Dare v. Dietrich only to determine the question whether on the hearing of an appeal from the Tribunal to the Supreme Court evidence not adduced before the Tribunal might be admitted in addition to the evidence before the Tribunal, which had been tendered and admitted into evidence before the Supreme Court, and that so much of what was said by Deane J. as suggested a conclusion that a hearing de novo might be had before the Supreme Court ought to be understood as suggesting no more than an affirmative answer to that question.

In my opinion the resolution of the question concerning further evidence which was before the Full Court in Dare v. Dietrich was achieved by that Court's concluding that, except in an appeal where only 'questions of law or inferences from undisputed facts are involved' (26 A.L.R. at 33), an appeal from the Tribunal to the Supreme Court is a hearing de novo in the sense expounded by the High Court in Phillips v. Commonwealth (1964) 110 C.L.R. 347. If that be so, and if the Full Court's conclusion be accepted as correct, the onus of proof of an issue of fact in such an appeal will be borne by that party on whom the onus lay, or would have lain, before the Tribunal: Building Licensing Board v Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 C.L.R. 616 at 620, 618; Phillips v Commonwealth (1964) 110 C.L.R. 347 at 349-351; cf. McCormack v Federal Commissioner of Taxation (1979) 143 C.L.R. 284 at 300. Thus the onus of establishing, on the hearing of Muriel Phillips' appeal to the County Court against a determination that she had ceased, as from a specified date, to be entitled to compensation under paragraph 1(b) of the First Schedule to The Commonwealth Employees' Compensation Act 1930-1956, that she had in fact ceased to be so entitled as from that date was held by the High Court to be on the Commonwealth, just as it had lain on the Commonwealth before that determination was made. Neither the circumstance that it was she and not the Commonwealth who appealed against the determination nor the circumstance that the determination asserted what it was for the Commonwealth to prove affected 'the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals'. (See Phillips' Case 110 C.L.R. at 349-351.) In my opinion, the order of the learned Chief Justice that the workman begin was correct. I do not doubt that what I take to have been the Full Court's conclusion in Dare v. Dietrich is correct, notwithstanding the careful and persuasive argument for a contrary conclusion by Mr. Deakin. To the reasons of Deane J. in that case I would only add the following observations about the phrase, 'on a question of law or fact or both', which defines the ambit of the appeal given by s.26 of the Workmen's Compensation Act, but which is not found in s.20 of the Commonwealth Employees' Compensation Act 1930. As Deane J. observed, many of the provisions of the Workmen's Compensation Ordinance 1931, from which the present Northern Territory Act derives, were based upon that Commonwealth Act, and Mr. Deakin sought to distinguish Phillips v. Commonwealth, supra, by reference to that phrase, which in his submission indicated a legislative intention to confer a right of appeal similar to that which is commonly ordained in respect of curial judgments and orders.

Neither the Commonwealth Workmen's Compensation Act 1912 nor the Workmen's Compensation Ordinance 1931, as enacted, contained any provision similar to s.20 of the Commonwealth Employees' Compensation Act 1930 or s.26 of the Northern Territory Act as presently in force. In the Act of 1912 proceedings for compensation were regulated by s.4(3) and the Second Schedule, clauses (1.) and (2.) of which provided:

'(1.)For the purpose of settling any matter which under this Act may be settled by arbitration, the matter may be settled by a single arbitrator agreed on by the parties, or, in the absence of agreement, appointed by a County Court.

(2.) The provisions of any Act or State Act relating to arbitration shall not apply to any arbitration under this Act; but an arbitrator may, if he thinks fit, submit any question of law for the decision of a County Court, and the decision of the County Court on any question of law, either on such submission, or in any case where a County Court settles the matter under this Act, or where it gives any decision or makes any order under this Act, shall be final, unless within the time and in accordance with the conditions prescribed by the regulations either party appeals to the High Court or to the Supreme Court of the State in which the County Court is situated.'

The Commonwealth Act of 1930 repealed those provisions, constituted the Secretary to the Treasury as Commissioner for Employees' Compensation and conferred on him and his delegates 'power to examine, hear and determine all matters and questions under this Act and the Regulations'. Section 20 of that Act provided:

'Any person affected by any determination or action of the Commissioner under this Act may, within thirty days of the date of the determination or the taking of the action or within such extended time as the Court upon application in that behalf allows, appeal to a County Court against the determination or action and the Court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a re-hearing."

Although many of the provisions of the Act of 1930 were copied in the Workmen's Compensation Ordinance 1931, proceedings for compensation were regulated by provisions, similar to those of the Commonwealth Act of 1912, for arbitration. The first three clauses of the Second Schedule to the Ordinance of 1931 were in these terms:

'1. For the purpose of settling any matter which, under this Ordinance, is to be settled by arbitration, if any committee representative of an employer and his workmen exists with power to settle matters under this Ordinance, in the case of an employer and workmen, the matter shall, unless either party objects by notice in writing, sent to the other party before the committee meet to consider the matter, be settled by the arbitration of such committee, or be referred by it in its discretion to arbitration as provided in this Schedule.

2. If either party so objects, or there is no such committee, or the committee so refers the matter or fails to settle the matter within six months from the date of the claim, the matter shall be settled by a single arbitrator agreed on by the parties, or, in the absence of agreement, by a Local Court, according to the procedure prescribed by Rules of Court.

3. The Arbitration Act, 1891 of the State of South Australia in its application to North Australia shall not apply to any arbitration under this Ordinance; but a committee or an arbitrator may, if it or he thinks fit, submit any question of law for the decision of the Supreme Court of North Australia, and the decision of that Court on any question of law shall be final, unless within the time, and in accordance with the conditions prescribed by Rules of the High Court, either party appeals to the High Court.'

By an amending Ordinance of 1939 (No. 20 of 1939) the Supreme Court of the Northern Territory was substituted in clause 3 for the High Court and a Local Court was substituted for the Supreme Court of the Northern Territory (which had since 1931 replaced the Supreme Court of North Australia.) Those clauses were not otherwise amended, but by the same amending Ordinance of 1939 a new appeal provision was added, as s.13, to the Workmen's Compensation Ordinance 1931-1939. Section 13 provided:

'13.-(1.) Where a committee or an arbitrator or a Local Court gives a decision or makes an order or award with respect to any matter which may or is required to be settled by arbitration under this Ordinance, either party to the arbitration may appeal from the decision, order or award, on a question of law or fact or both, to the Supreme Court of the Northern Territory within the time and in accordance with the conditions prescribed by Rules of the Supreme Court of the Northern Territory and such appeal may be in the nature of a re-hearing.

(2.) The Supreme Court of the Northern Territory shall decide the matter of the appeal and may either dismiss the appeal or reverse or vary the decision, order or award appealed from and may make such order as to the costs of the appeal or of the proceedings before the committee, arbitrator or the Local Court, or both, as the Supreme Court thinks proper.'

Section 26 of the present Act derives from that s.13.

I think that the phrase, 'on a question of law or fact or both', was included in s.13 in order to make plain the distinction between the nature of the right of appeal conferred thereby and the nature of the right of appeal conferred by clause 3 of the Second Schedule.

In 1950 the Ordinance of 1931 and the Ordinances which had amended it were repealed, and substantially similar legislation was enacted as the Workmen's Compensation Ordinance 1949 (No. 1 of 1950). In 1970 the provisions with respect to arbitration were repealed and the Workmen's Compensation Tribunal was constituted and empowered 'to hear and determine claims for compensation under this Ordinance and all matters and questions incidental to or arising out of claims for compensation'. The amending Ordinance (No. 1 of 1970) repealed s.26 and inserted in its stead another s.26. The two sections may be compared:

No. 1 of 1950

'26(1.) Where a committee or an arbitrator or a Local Court gives a decision or makes an order or award with respect to any matter which may or is required to be settled by arbitration under this Ordinance, either party to the arbitration may appeal from the decision, order or award, on a question of law or fact or both, to the Supreme Court of the Northern Territory within the time and in accordance with the conditions prescribed by Rules of the Supreme Court of the Northern Territory and such appeal may be in the nature of a re-hearing.

(2.) The Supreme Court of the Northern Territory shall decide the matter of the appeals and may either dismiss the appeal or reverse or vary the decision, order or award appealed from and may make such order as to the costs of the appeal or of the proceedings before the committee, arbitrator or the Local Court, or both as the Supreme Court thinks proper."

No. 1 of 1970

'26(1.) Where the Tribunal makes a determination under this Ordinance, any party to the proceeding may appeal against the determination on a question of law or fact or both to the Supreme Court of the Northern Territory of Australia within the time and in the manner prescribed by Rules of that Court and such appeal may be by way of re-hearing.

(2.) The Supreme Court of the Northern Territory of Australia shall decide the matter of the appeal and may either dismiss the appeal or reverse or vary the determination appealed against and may make such order as to the costs of the appeal or the proceeding before the Tribunal or both as it thinks fit.'

Even if the appeal from the Tribunal to the Supreme Court were a re-hearing in the sense for which Mr. Deakin contended, the order of the learned Chief Justice would in my opinion have been correct. In my opinion the legal burden of proof of an issue of fact is not on the hearing of such an appeal any different from what it was before the decision was made against which appeal is brought. The observation by Gibbs J. in McCormack v. Federal Commissioner of Taxation (1979) 143 C.L.R. 284 at 300 is applicable to such an appeal, as well as to an appeal stricto sensu:

'From the decision of a board of review on any such reference an appeal may be brought to a Supreme Court (provided that the decision is one that involves a question of law): s.196(1). From an order of the Supreme Court made on any appeal brought directly to that Court a further appeal may be brought to the Federal Court or, by special leave, to this Court: s.200. There can be no doubt that on an appeal under s.200, which is a true appeal, the appellate court is required to apply the same rule as to the burden of proof as that which governed the decision of the court from which the appeal was brought. Although an appeal to the Supreme Court from a decision of a board of review is not a true appeal, but a proceeding in the original jurisdiction of the court, it is not only called an appeal, but has some of the characteristics of an appeal, and it is natural to conclude that it was intended that the court of appeal would apply no different rule as to the burden of proof from that which the board was required to apply.'

The considerations by reference to which the appellate 'rehearing' function is to be exercised may be thought, in a metaphorical sense, to place an onus upon the appellant, and the word 'onus' was used, in that sense, by Lord Atkin in a passage quoted by the three justices of the High Court who constituted the majority in Warren v. Coombes (1979) 142 C.L.R. 531 at 539. But the legal burden of proof remains, on an appeal of the kind which the High Court was considering in that case, where it was in the court from which the appeal is brought. In such appeals an order to the effect of that which Forster C.J. made would be appropriate if both parties were adducing fresh evidence. Mr. Deakin did not seek to displace the order contained in paragraph 2 of the order made by the learned Chief Justice on 14 April 1983. The legal burden of proof lying on the workman, it was for him to adduce his evidence first and the order made on 18 April 1983 was in my opinion the appropriate order to make, even if the appeal were of the character which Mr. Deakin's submission assigned to it. The workman's appeal against that order should, I consider, be dismissed.

The employer's appeal was against so much of the order made on 14 April 1983 as is contained in paragraph 1 thereof. There was no suggestion that any of the material specified in that paragraph was admissible in evidence, before any oral evidence had been adduced, in the Supreme Court according to any common law rule of evidence or any statutory provision with respect to documentary evidence. There are issues of fact involved in the appeal to the Supreme Court and the credibility of witnesses will or may affect the resolution of those issues. The employer did not consent to the order nor to determination of the appeal upon the record of what had been the evidence before the Tribunal. (Cf. Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 30 A.L.R. 193 at 197-199.) In those circumstances no ground could in my opinion be found for denying a party to an appeal under s.26 a hearing de novo. (I express no opinion whether a discretionary power to deny that hearing may be deduced from the word 'may' in the clause, 'and such appeal may be by way of rehearing', in that section.) Upon that hearing de novo it will in my opinion be for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence which the parties choose to adduce and which is admissible on the trial of an issue joined in an original curial proceeding. (See Dare v. Dietrich (1979) 26 A.L.R. 18 at 33; Krew v. Federal Commissioner of Taxation (1971) 71 A.T.C. 4213 at 4216; Rowdell Pty. Ltd. v. Federal Commissiooner of Taxation (1963) 111 C.L.R. 106 at 119; McCormack v. Federal Commissioner of Taxation (1977) 17 A.L.R. 73 at 75; (1979) 143 C.L.R. 284).

Mr. Deakin pointed out that, if the legal conclusions I have stated be correct, an employer might with impunity misuse a proceeding before the Tribunal to discover the full extent of the evidentiary material available to the claimant for compensation, while withholding from the Tribunal evidence available to the employer so that it could be more effectively utilised on appeal to the Supreme Court. He also referred to the heavy burden of expense which the isolation of the Northern Territory from cities in which many medical specialists practise, as well as the substantial distances between Northern Territory towns, might impose on a workman who succeeded in his claim for compensation before the Tribunal and was then forced to prove his claim a second time on appeal before the Supreme Court.

Putting to one side the question whether and in what circumstances a hearing de novo may be denied an appellant, and ignoring any statutory provisions pursuant to which a written statement may be given in evidence without calling the maker of the statement to give evidence viva voca, I would think that any unreasonableness or unfairness of the kind contemplated by Mr. Deakin could be effectively discouraged by the Supreme Court's exercise of the discretionary power with respect to the costs of the proceeding before the Tribunal and of the appeal, which is conferred by s.26(2).

However that may be, my conclusion is that the order contained in paragraph 1 of the order of Forster C.J. ought not to have been made and should be set aside. I would allow the employer's appeal and would dismiss the workman's appeal and would order that the employer's costs of the workman's appeal be paid by the workman, but I would make no order with respect to the costs of the employer's belated appeal.