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Supreme Court of the ACT |
Last Updated: 1 September 2009
MICHAEL JAMES SEERS v THE EXHIBITION CENTRE PTY
LIMITED
[2009] ACTSC 85 (20 July 2009)
WORKERS’ COMPENSATION – claim for compensation –
application to reject claim – whether notice given of injury –
whether present disabilities
entitled worker to compensation – Workers
Compensation Act 1951 (ACT), ss 92, 93, 94, 132
WORKERS’
COMPENSATION – claim for compensation – when claim made –
difference between notice of injury and claim – whether injury
can include
aggravation or development of injury – notice to insurer –
Workers Compensation Act 1951 (ACT), ss 120, 127
PROCEDURE
– court bound to apply ‘equity, good conscience and substantial
merits of matter’ – meaning and application
of that phrase
– Workers Compensation Regulation 2002 (ACT), s 56(5)
APPEAL
AND NEW TRIAL – appeal from Magistrates Court – whether reasons
sufficient
Workers Compensation Act 1951 (ACT), Chs 5, 6, Pts 4.3, 4.4, 4.5, 4.6,
ss 31, 92, 93, 94, 95, 96, 97, 102, 103, 116, 118, 119, 120, 120A, 122, 123,
124, 127, 128, 130, 131, 132, 195, Dictionary
Workers Compensation
Amendment Act 2001 (ACT)
Court of Requests Act 1842 (NSW) (6 Vic
No 15)
Legislation Act 2001 (ACT), s 255
Court Procedures Act
2004 (ACT)
Workers Compensation Regulation 2002 (ACT), Pts 6, 7, ss 38, 48, 50,
51, 56
Court Procedures Rules 2006 (ACT)
Rees N, “Procedure and Evidence in ‘Court Substitute Tribunals’” (1998) 18 ABR 41
M & M Rolfe Cleaning Services Pty Ltd v Schneider [1997] ACTSC 82; (1997) 130 ACTR
61
Moore & White Pty Ltd v Mitojevic (1980) 35 ACTR
39
Sobania v Nitsche and Anor (1969) 16 FLR 329
Western
Australian Coastal Shipping and Anor v Wallner [1980] HCA 22; (1980) 144 CLR
110
Barbaro v Leighton Contractors Pty Ltd [1980] FCA 56; (1980) 44 FLR
204
Devries & Anor v Australian National Railways Commission &
Anor (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR
118
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR
247
Commonwealth Accommodation and Catering Services Pty Ltd v Boceska
(ACTSC, Gallop J, 11 Oct 1991, unreported)
Pettitt v Dunkley [1971] 1
NSWLR 376
Batar v D F Formwork Pty Ltd (ACTSC, Higgins J, 15 July
1994, unreported)
Wattyl Australia Pty Ltd v Ilsley (ACTSC, Gallop J,
7 Nov 1996, unreported)
Ilsley v Wattyl Australia Pty Ltd (1997) 75
FCR 1
The Vera Cruz (No 2) (1884) 9 PD 96
Chamberlain v R (No
2) [1983] FCA 78; (1983) 46 ALR 493
Parkroyal Motor Hotel Pty Ltd v Sullivan
[1985] FCA 358
Scott v Bye [1824] EngR 886; (1824) 2 Bing 344; 130 ER
338
Qantas Airways Ltd v Gubbins and Ors (1992) 28 NSWLR
26
Colliery Employees’ Federation v Northern Proprietors’
Association [1904] AR (NSW) 182
Re Commonwealth Court of Conciliation
and Arbitration & Anor; Ex parte Brisbane Tramways Co Ltd & Anor
[1914] HCA 15; (1914) 18 CLR 54
Peacock v Newtown Marrickville and General Co-operative
Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25
Minister for Immigration and
Multicultural Affairs v Eshetu (1999) 197 CLR 611
Sue v Hill
& Anor [1999] HCA 30; (1999) 199 CLR 462
Eagle Star Insurance Co Ltd v Yewal
Insurance Co Ltd [1978] Lloyd’s Rep 357
Ory & Anor v
Betamore Pty Ltd (in liq) and Ors [1993] SASC 3996; (1993) 60 SASR 393
Griggs v Norris
Group of Companies (Including S A Helicopters Pty Ltd and Captured Pty Ltd)
[2006] SASC 23; (2006) 94 SASR 126
Trittenheim Pty Ltd and Ors v H & H Gill Nominees
Pty Ltd (1994) 63 SASR 434
Townsville City Council v Chief Executive,
Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77
A and Anor v Director of
Family Services (1996) 132 FLR 172
ON APPEAL FROM THE A DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 15 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 July 2009
IN THE SUPREME COURT OF THE )
) No. SCA 15 of
2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE A DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: MICHAEL JAMES SEERS
Appellant
AND: THE EXHIBITION CENTRE PTY LIMITED
Respondent
ORDER
Judge: Refshauge J
Date: 20 July 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal be upheld.
2. The order of the Magistrates Court made on 6
March 2009 be set aside.
3. The respondent’s application for rejection
of the appellant’s claim for compensation be remitted to the Magistrates
Court to continue the hearing in accordance with law.
1. The appellant, Michael James Seers, was employed by the respondent, The
Exhibition Centre Pty Limited (the Exhibition Centre),
in 1994. The Exhibition
Centre conducts a mounting and laminating picture framing business.
2. During
the course of his employment, Mr Seers complained of a painful wrist in about
mid-August 2005 but continued to work. He
ceased work sometime between June and
September 2006.
3. On 17 October 2005, he made a claim for workers
compensation which was paid to him. On 31 March 2008, the Exhibition Centre
applied
for an order giving it leave to reject the claim of Mr Seers and to
cease making compensation payments to him.
4. On 6 March 2009, Magistrate
Campbell made that order. Mr Seers appeals against the order.
The workers
compensation legislation
5. In order to understand the appeal, it is
necessary to understand the statutory context to the claim by Mr Seers. This is
set out
in the Workers Compensation Act 1951 (ACT) (the Workers Compensation
Act) and in the Workers Compensation Regulation 2002 (ACT) (the
Regulation).
6. A general history of the legislation and the position of the
Magistrates Court is set out in M & M Rolfe Cleaning Services
Pty Ltd v
Schneider [1997] ACTSC 82; (1997) 130 ACTR 61 (at 64-7). Since then, there has been a
significant amendment to the Workers Compensation Act enacted in 2001 by the
Workers Compensation Amendment Act 2001 (ACT), the majority of its provisions
commencing on 1 July 2002.
The Workers Compensation Act is, in fact, amended
relatively frequently, to a greater or lesser extent, having been amended by 22
acts since then.
7. The Workers Compensation Act fundamentally provides that
an employer is liable to pay compensation, usually in weekly amounts (Pt 4.3),
under the Act if a worker of the employer suffers personal injury arising out
of, or in the course of, the worker’s employment
(s 31). It also provides
for compensation to be paid for permanent injuries (Pt 4.4), for the cost of
medical treatment (Pt 4.5)
and for death (Pt 4.6). As well, there is a
comprehensive regime for management of injuries with a view to the worker being
able
to return to work (Ch 5). The balance of the Act deals with issues
including the meaning of injury, the mechanism for making a claim,
the level of
entitlement, how those claims are to be managed, insurance against such claims,
the regulation of the insurers, provision
for claims where there is no insurer,
common law damages, resolution of disputes and other matters.
8. The Workers
Compensation Act places obligations on workers and employers. For instance, an
injured worker must “tell the employer” of the injury
as soon as
possible (s 93) and the employer must give a statutory notice (described in s
94) to its insurer within 48 hours after becoming aware of an injury (s 93).
The consequences to an employer who does not give such notice are potentially
quite serious, for the employer then becomes itself
liable to pay the weekly
compensation payments to the worker from the date of the injury until the
employer gives the notice (s 95). Similarly, the insurer is obliged to take
speedy action upon notification and there are criminal sanctions for failure to
do so
(s 96).
9. There appears to be no particular method by which a worker
must tell the employer of the injury under s 93. This is clear from the
following:
(i) section 92(6) is suggested by the note to s 93(1) (though the
two provisions use what might be relevantly different wording) to permit the
employee simply to enter the details of
the injury in the Register of Injuries
maintained under s 92(2);
(ii) the obligation on the employee is expressed as an obligation to “tell the employer” whereas the obligation on the employer is to “give the insurer notice of the injury”; and
(iii) the employer may give that notice “orally, in writing or in electronic form” (s 94(2)), which suggests that the employer may not have received a written document from the employee which (or a copy of which) is merely to be passed on.
10. This case involves the making of a claim for compensation. This is different from giving notice of an injury under s 94. Thus, ss 116, 118 and 119 are important. They provide:
116 Making claim for compensation
(1) A worker may claim compensation under this Act.
(2) A claim for weekly compensation must be accompanied by a medical certificate from a doctor.
(3) Failure to make a claim under this Act does not prevent the recovery of compensation if it is found that the failure was caused by ignorance, mistake or other reasonable cause.
...
(1) To the extent that information or material has been given in the course of the making of a claim for compensation for an injury, it is not necessary to give the information or material when making any further claim for compensation in relation to the same injury.
(2) A medical certificate required to accompany a claim for weekly compensation must –
(a) comply with the requirements for medical assessments prescribed by regulation; and
(b) include a statement of the doctor’s assessment of whether the worker’s condition is consistent with the worker’s employment being a substantial contributing factor to the injury.
(1) This section applies if a claim is deficient because section 118(2) has not been complied with.
(2) If the insurer (or self-insurer) tells the worker in writing about the deficiency (including details of what is required to comply with section 118(2)) as soon as possible (but in any case within 72 hours) after receiving the claim, the claim is not considered to have been made until section 118(2) is complied with.
(3) However, if the insurer (or self-insurer) does not tell the worker in writing about the deficiency (including details of what is required to comply with section 118(2)) within 72 hours after receiving the claim, the claim is taken to comply with section 118(2).
(4) Subsection (2) does not apply if the insurer (or self-insurer) waives the requirement for the claim to comply with section 118(2).
11. The making of a claim appears to mean simply seeking compensation from the employer (who, of course, will seek indemnity from its insurer unless it is a self-insurer): see the prescribed claim form, ‘Claim for Compensation by Incapacitated Worker’ (AF 2002-88). Nevertheless, Ch 6 of the Workers Compensation Act, despite its title “Claims”, also deals with proceedings for the recovery of compensation. Thus s 120 refers to the time for taking proceedings, though it also deals with an important pre-condition to the making of a claim. It provides:
(1) A proceeding for the recovery of compensation for an injury may continue only if –
(a) notice of the injury (an injury notice) was given as soon as practicable after the injury happened, and before the worker voluntarily left the employment in which the worker was injured; and
(b) the claim for compensation was made –
(i) within 3 years after the injury happened; or
(ii) if the worker was not aware of the injury when it happened – within 3 years after the worker became aware of the injury; or
(iii) if the worker dies – within 3 years after the claimant became aware of the death.
(2) However, a proceeding for the recovery of compensation for an injury may also continue if –
(a) the Magistrates Court allows the proceeding to be maintained under section 120A (Proceedings on late claims); or
(b) the proceeding may be maintained under section 124 (No notice or defective or inaccurate notice).
Note An injured worker may give notice of an injury by making an entry in a register of injuries (see s 92).
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12. There are a number of important things to note about this provision. The
term used, “injury notice”, is the same
as the term used in s 94 but
they are different notices. While this is somewhat confusing, and probably
should be rectified to prevent confusion, it is clear
from:
(i) the
Dictionary to the Workers Compensation Act which makes it clear that there are
different meanings for different chapters in the Act;
(ii) the contents of
the notices are different: s 123 cf s 94;
(iii) the s 94 notice is given by
an employer to an insurer (s 93); the s 123 notice is given by the employee to
the employer; and
(iv) the reference to s 92 in the note to s 93 makes it
clear that this notice is equated to a relevant degree with the obligation
of
the employee under s 93(1) and thus distinct from the injury notice under s 94
which is referred to separately in s 93(2).
13. There are, so far as I could
determine, no approved forms for either notice. Had there been, this would have
assisted in making
the distinction clear.
14. Sections 122 to 124 set out the
provisions relating to making a claim. They are in the following terms:
122 When is a claim made?
(1) A claim is made on the day the claim is given to the employer or insurer.
Note Payment of weekly compensation begins when the worker gives notice of the injury to the employer (see s 38).
(2) If the claim is given to the employer and insurer on different days, the claim is made on the day the claim is given to the first of them.
123 The notice for an injury
(1) An injury notice must contain –
(a) the name and address of the injured worker; and
(b) the cause of the injury (in ordinary language); and
(c) the date and time the injury happened.
(2) The notice must be served on the employer or, if the worker has more than 1 employer, on the employer responsible for the workplace where the injury happened.
(1) This section applies to a claim in relation to which –
(a) an injury notice has not been given; or
(b) the injury notice given was defective or inaccurate.
(2) A proceeding may be maintained in relation to the claim if the Magistrates Court or arbitrator finds, in the proceeding for the claim, that –
(a) the employer’s defence is not, or would not be, prejudiced by the lack of notice, or defect or inaccuracy in the notice, if a notice or amended notice were given and the hearing postponed; or
(b) the lack of notice, or defect or inaccuracy in the notice, was caused by ignorance, mistake or another reasonable cause.
15. An approved form, AF 2002-88, is prescribed for the making of a claim
presumably under s 122 (though the approved forms
in the Legislation
Register regrettably do not refer to the section of legislation to which they
relate) and is different from an
injury notice in content.
16. Thereafter, if
a claim is accepted, as here, then an insurer, who considers that the injury is
a “significant injury”
(namely that the worker is likely to be
incapacitated for a continuous period of more than seven days), must establish a
personal
injury plan (s 97). The worker must nominate a doctor for the
plan (s 102) and the doctor must be authorised to provide relevant
information
(s 102(4)). That information is in the form of a medical certificate (s 103)
which is in the approved form: ‘Medical
Certificate for ACT Workers
Compensation Claims’ (AF 2004-3).
17. Chapter 6 imposes obligations on
insurers to proceed promptly to accept or reject a claim. This is done by
reference to the time
when a claim is “given” to an insurer. This,
however, is defined quite broadly in s 127(2), which provides:
[f]or this part, a claim is given to the insurer if the claim is given to the insurer or the insurer is given notice of the claim by the employer or worker.
Thus, it is clear that a claim may be made either through an employer
(presumably passing on the claim form given to it by the worker)
or directly by
a worker (despite the claim form, AF 2002-88, being addressed to the
employer).
18. Section 128 then provides that an insurer is taken to have
accepted a claim it receives if it has not rejected it at the end of
28 days
after it had been received. I am prepared to find that “receives”
in the section is the correlative of “give”
in s 127(2).
19. When
rejecting a claim, s 129 requires the insurer to give notice of rejection to the
worker and the employer. There are different
procedures depending on when the
insurer wishes to reject the claim: Thus, the Act contains provisions
regulating the rejection
of claims within 28 days (s 130) and between
28 days and one year (s 131) and after one year (s 132).
20. The Workers
Compensation Act provides that, apart from prosecution for offences, all matters
and questions arising under the Act must, absent other provisions
in the Act or
agreement, be settled by conciliation or arbitration conducted under the
“regulations” (s 195). The
regulations referred to in the Act
are the Regulation. Part 6 of the Regulation provides for conciliation. It is
not relevant here,
for there is no pre-condition for conciliation where the
application is to reject a claim: s 38(2) of the Regulation. Part 7 of
the Regulation provides for arbitration.
21. Section 48 of the Regulation
permits either the worker or the employer to file an application for
arbitration, inter alia, of
the insurer’s rejection of the worker’s
claim for compensation. Section 50 provides for arbitration by a committee,
though the committee may refer the matter for arbitration to the Magistrates
Court.
22. Section 51 gives jurisdiction to the Magistrates Court if there is
no committee or, where a party objects to the matter being
arbitrated by the
committee, the committee refers the matter to the Court, or the committee fails
to decide the matter within one
month after the claim is made.
23. There was
no evidence before me about whether there was a committee and no point was taken
about that. It appears that no committee
may ever have been appointed: Moore
& White Pty Ltd v Mitojevic (1980) 35 ACTR 39 (at 41). For the reasons
given by Gibbs J in Sobania v Nitsche and Anor (1969) 16 FLR 329 (at 334-5), I
need not consider this matter further.
24. Section 56 of the Regulation sets
out the procedure to be followed on arbitration. It provides:
56 Procedure on arbitration
(1) This section applies to an arbitration unless the Act or rules expressly state otherwise.
(2) The Magistrates Court or a committee may decide its own procedures.
(3) The Magistrates Court or a committee need not act in a formal way and is not bound by rules of evidence.
(4) The Magistrates Court or a committee may inform itself about anything in the way it considers appropriate.
(5) The Magistrates Court or a committee must act according to equity, good conscience and the substantial merits of the matter being arbitrated, without regard to technicalities and legal forms.
25. Section 56(5) is obviously an important provision. It does not appear to
have received any specific judicial attention in this
Territory.
26. That
provision follows a formula that has a long and interesting history, dating back
as far at least as 1604 to a statute establishing
the Court of Requests, 1 Jac 1
c 14. Its first Australian usage was in 1842 in the Court of Requests Act 1842
(NSW) (6 Vic No 15) which established a court to
deal with small debt claims.
It is a phrase that has attracted recent judicial comment and is dealt with
below.
27. This case is concerned with the application for rejection of the
claim by Mr Seers though the real effect of that would simply
allow the employer
and its insurer to terminate the payments and not recover any payments already
made.
28. The specific application with which this case is concerned was made
under s 132 of the Workers Compensation Act. It provides:
132 Rejecting claims from 1 year
(1) An insurer may reject a worker’s claim for compensation 1 year or later after the claim is given to the insurer only with the leave of the Magistrates Court.
(2) If the Magistrates Court gives leave to the insurer to reject the worker’s claim for compensation –
(a) the insurer need not give the worker notice of the rejection if the worker, or the worker’s lawyer, is present when the court gives leave for the insurer to reject the claim; and
(b) the insurer may stop paying weekly compensation –
(i) on the day stated by the court in the order giving leave to the insurer to reject the claim; or
(ii) 8 weeks after the worker gets notice of the rejection if no day is stated in the order.
(3) For this section, the worker gets notice of the rejection –
(a) if the worker is present when the court gives leave to the insurer to reject the claim – on the day the court gives leave; or
(b) when the worker receives notice of the rejection from the insurer.
Note Court approved termination is dealt with under the regulations.
29. It is common in workers compensation legislation for there to be a
requirement limiting the power of an insurer to reject a claim.
For example,
under the relevant legislation in a number of other jurisdictions, where the
employer has commenced to make compensation
payments, even voluntarily, these
payments cannot be terminated or diminished except with leave of an appropriate
authority, usually
a court: Western Australian Coastal Shipping and Anor v
Wallner [1980] HCA 22; (1980) 144 CLR 110 (at 115). Provisions to that effect in earlier
versions of the Workers Compensation Act were subject to consideration in
Barbaro v Leighton Contractors Pty Ltd [1980] FCA 56; (1980) 44 FLR 204 (at 205-6), which made
it clear that the weekly payments could only be terminated in accordance with
the Act.
The factual background
30. The basic facts are in relatively
short compass and were found by her Honour, though Mr G Stretton, who ably
represented the employer
(as respondent) before me and the employer (as
applicant) before her Honour, did contend that there was little material to show
that
the work Mr Seers did was repetitive in a way that supported his
claim.
31. Mr Seers had a history of working with photographs, originally in
mounting and laminating and then in a dark room, though he did
work in other
areas.
32. As noted above, Mr Seers commenced work with the Exhibition Centre
in 1994, again in laminating and mounting photographs.
33. His work required
him to take printed photographs and apply a coating to protect them from
fingerprints, dust and the like (that
was the laminating) and to then mount them
on a substrate to which glue had been applied and to which the photographs then
bonded
(mounting). This required, in particular, Mr Seers to trim the resulting
product.
34. It is not necessary to detail the complete work history of Mr
Seers, though it was given fully to her Honour. A detailed document
setting out
his work history was also included in the appeal papers.
35. Mr Seers gave a
detailed explanation of his work. Again, it is not necessary to set that out,
save to say that it seemed to me,
as explained in evidence recorded in the
transcript of the proceedings before her Honour, to involve a degree of
repetitive work
when he was required, amongst other things, to clamp his left
hand on a straight edge and then trim the material by use of a Stanley
knife
which he had to clamp almost as hard with his right hand. He would spend about
four to five hours in such cutting work each
day.
36. Perhaps unsurprisingly,
his left wrist became painful in about mid-August 2005. He continued working
but his wrist became swollen
and tender. He consulted his general practitioner
and was referred to a Dr Wing for a steroid injection and also consulted a
physiotherapist.
37. In a report dated 28 September 2005, his general
practitioner, Dr Elizabeth Challinor, reported her diagnosis of de
Quervain’s
tenosynovitis of the left wrist.
38. Mr Seers took some time
off work then returned to work part-time but the pain in his left wrist became
worse.
39. On 17 October 2005, Mr Seers completed a worker’s compensation claim
form presumably provided by his employer’s insurer
for it had the Allianz
Australia Insurance Ltd logo and address printed on it. In the form, under the
heading “[i]njury details”
he inserted the words “[r]epedative
[sic] strain. Tenosynovitis. 
Wrist”. He inserted under “[d]ate
of injury” the entry “12 Sept”. The form was not in the
prescribed
form AF 2002-88 and did not seek all the information set out in the
approved form. It was, however, clearly notice of the claim
(s 127(2)).
Presumably it could be said to amount to substantial compliance with the
prescribed form (s 255 of the Legislation Act 2001 (ACT)) especially as such
forms were apparently provided by the insurer.
40. No evidence was given of
compliance with the employer’s duties to give notice, but no issue was
raised about that. Liability
for the injury was accepted on 31 October 2005,
within the statutory period of 28 days. See s 128 of the Workers Compensation
Act.
41. Despite returning to work, Mr Seers continued to suffer pain and
disability and by June 2006 was experiencing pain in his left
wrist, left
forearm, left shoulder, neck and head and had vision problems and headaches as
well as pain his right shoulder, right
forearm and right
wrist.
42. Ultimately he ceased working sometime between June and September
2006 and his employment was terminated on 7 February 2007.
43. Since then he
has been unable to obtain employment other than some minor work, about which
there was some controversy which does
not concern me in this appeal.
44. A
personal injury plan was prepared as required by s 97 of the Workers
Compensation Act. It specified the diagnosis/injury as “[l]eft de
Quervain’s tenosynovitis, cervical spine involvement”.
45. In the
comments in relation to that diagnosis appears:
Mr Seers works as a Laminator with the Exhibition Centre (40 hours/week). Mr Seers is right hand dominant.
Mr Seers reports increased pain and swelling in his left wrist and thumb attributed to repetitive work with his left hand.
Mr Seers has consulted Dr Roberts (Orthopaedic Surgeon) in regards to his injury. Dr Roberts suspected involvement of the right shoulder. Review by physiotherapist David Kennard indicated involvement of the cervical spine. Mr Seers consulted Dr Brooks (Rheumatologist) regarding his injury.
46. It further refers to “independent” medical examinations which
had been undertaken by Dr James G Bodell, orthopaedic
surgeon, in May 2006
and by Mr I Kelman, orthopaedic surgeon in November 2006.
47. The plan notes
Dr Challinor as the Nominated Treating Doctor and under the heading
“Actions Required” were included,
inter alia, actions for Mr Seers,
namely “[p]rovision of up-to-date medical certificates to Allianz”
and “[n]otification
of any significant change in injury condition or work
status to Allianz”. I can see no reason why, if appropriate, the latter
notification could not be effected through the provision of the medical
certificates.
48. A series of eighteen medical certificates were in evidence.
The first was dated 12 October 2005. The date of the last one
was not
clear but appeared to be 6 May 2008. These apparently were required of the
Exhibition Centre’s insurers to be provided
in accordance with the
personal injury plan for Mr Seers as noted above. They were provided by
Dr Challinor on prescribed form
AF 2004-3, ‘Medical Certificate for
ACT Workers Compensation Claims’.
49. As one would expect the “[d]escription of Injury/Actionology”
was precisely identical in each form, namely “de
Quervain’s
tenosynovitis – pain, swelling, stiffness radial aspect 
wrist”.
50. The diagnosis, however, varied over time. On 12 October 2005, it was simply
“tenosynovitis”. The next certificate,
however, presumably on 13
January 2006 was more detailed; it stated “de Quervain’s
tenosynovitis left wrist –
with associated 
shoulder ache and 
lumbosacral pain probably due to muscular compensation, increasing ache since
mid-December 2005”.
51. The next certificate in the appeal book was
dated 4 May 2006. It is in similar terms though it refers to “associated
right
shoulder and neck ache” (emphasis added) and “increasing
aching ++ since mid-December 2005.”
52. In general terms, this diagnosis was repeated in each certificate until the
certificate of 20 September 2007 which was briefer
“de
Quervain’s tenosynovitis 
wrist 
shoulder and neck?
[probably “pain”]”. This briefer diagnosis was repeated in
the remaining certificates
The issue before her Honour
53. It seems clear
that the de Quervain’s tenosynovitis had, by the time of the application
before her Honour, ceased to be
the cause of any inability Mr Seers had to
return to work. For example, Dr G Speldewinde, consultant in rehabilitation,
pain and
musculoskeletal medicine, reported that “[h]is earlier problem of
left wrist tenosynovitis has resolved”; Dr Champion,
psychiatrist,
reported “[r]esolved de Quervains [sic] Syndrome (tenosynovitis) of left
thumb”. Even Mr Seer’s
expert, Dr L Leu reported
“the Quervain’s tenosynovitis and probably tenosynovitis of other
forearm extensors
... in my opinion is no longer active having been overshadowed
by the injuries below”.
54. Mr Seer’s position was that he was
still unfit for work because of the symptoms to his neck, shoulder and both
arms, as
well as his headaches, described in the medical certificates noted
above, and described and reported on in more detail in the other
medical reports
provided for the hearing before her Honour. If that were so, it appears Mr
Seers asserted, then the employer, the
Exhibition Centre, and its insurer should
not be permitted to cease making payments.
55. The employer and its insurer,
on the other hand, submitted that the injury reported in the notice of claim,
namely de Quervain’s
tenosynovitis, had ceased to be active, ceased to
prevent Mr Seers from working, or had resolved and, therefore, whatever other
injuries
or disabilities may be suffered by Mr Seers that may prevent him from
working, the entitlement to compensation arising from the notified
injury had
ceased since that was the injury which was the basis for that
entitlement.
56. It seems to me that it is fair to say that this issue did
not become precisely apparent until all the evidence had been adduced
and
counsel for the parties were in submissions. Nevertheless, no application was
made for an adjournment to deal with what might
have been regarded as an
unexpected approach to the application.
57. It is worth noting the following
matters in respect of the proceedings below which contribute to a determination
of this appeal.
The proceedings below
58. The application for arbitration
of the claim by the Exhibition Centre for an order rejecting the claim by Mr
Seers (Court Procedures
Rules 2006 (ACT): prescribed form 3.59:
‘Application for Arbitration by Employer or Insurer’) provided the
following
information:
|
2 Nature of injury |
Alleged injuries to neck, wrists, shoulders, elbows, fingers and bilateral arm pain, together with headaches and a chronic pain syndrome |
...
|
6 Grounds for Application |
(a) The respondent did not suffer any injury arising out of, or in the course of
his employment with the applicant in or about June
2005 and due to the nature
and conditions of his employment. |
59. It can at least be said that the precise issues I have identified above
(at [53]-[55]) were not made crystal clear from the application.
For example,
the nature of the injury in item 2 was consistent with the diagnosis in Dr
Challinor’s later certificates and
much wider than that set out in the
claim form.
60. Similarly, ground 6(a) would have to be construed as raising
the issue of whether the de Quervain’s tenosynovitis, at least,
had arisen
out of Mr Seer’s employment, a matter not ultimately at issue in the
proceedings as they were ultimately conducted
before her Honour, though Mr
Stretton seemed to want to keep that issue open before me. One could similarly
comment on the other
grounds which seem equally directed to the issue of the de
Quervain’s tenosynovitis and the other disabilities it caused, as
much as
to any other injury or disability.
61. It has to be accepted that the
proceedings for arbitration before the Magistrates Court are not proceedings
that would require
strict pleadings in the technical sense. If it means
anything, s 56(5) of the Regulation must mean that. Good dispute resolution
procedure, however, does normally require as clear an identification of the
issue to be decided as possible. That applies as much
to informal dispute
resolution tribunals and other bodies as to courts.
62. It has also to be
said that Mr Stretton did, in the course of his relatively brief opening, make
references which can now be seen
as identifying what became clear as the issue.
To make this clear, I set out the relevant parts of it:
MR STRETTON: Your Honour, this is an application for termination, or a rejection as we now call it, under section 132 of the Act, which provides briefly that if workers’ compensation has been paid for over 12 months, then the only way it can be terminated, apart from by agreement, is by an application to the court. That’s this application. Your Honour will see that the rejection application sets out a series of grounds.
HER HONOUR: Yes.
MR STRETTON: Paragraph 6 of the application and basically goes through, if you like, the whole gamut of matters; didn’t suffer any employment injury, if he did then it didn’t – if he did suffer an injury it wasn’t employment related. Any incapacity has ceased. If there’s incapacity, it doesn’t arise out of the employment. Capable of earning more, and so it goes on. The answer, your Honour, you will see denies all of those matters in paragraph 6, so obviously paragraph 6 in the denial are what’s in dispute in this application.
HER HONOUR: And he’s been receiving payments since 23 September 2005, is that ...
MR STRETTON: That’s so, yes. He continues to receive payments. I tender, if your Honour pleases, a copy of the workers claim form dated 17 October 2005.
MR SHILLINGTON: No objection.
HER HONOUR: That will be Exhibit 1.
EXHIBIT 1 – WORKERS CLAIM FORM DATED 17/10/2005
MR STRETTON: Your Honour, you will see ...
HER HONOUR: I will in a moment. Thank you.
MR STRETTON: That the claim is made in relation to a repetitive strain, tenosynovitis of the left wrist. So that’s the injury your Honour would understand for which compensation is being paid. Now your Honour there’s a series of medical reports which will be tendered shortly, but it may be convenient just to indicate to your Honour an outline of some of the medical matters and I am reading now from the final paragraph of a report of Dr Burke, B-u-r-k-e. His report is dated 20 February 2008, he, having seen the worker on 12 February 2008, and in answer to the question the extent, if any to which the claimant’s employment with the insured contributed to any condition he may have, Dr Burke says this:
It does appear that work has significantly contributed to the development of the de Quervain’s tenosynovitis.
That’s the matter covered in Exhibit 1.
I consider it unlikely that work contributes to any condition that he may have at this stage. He has underlying cervical spondylosis ...
Spondylosis of course being a degenerative condition of the cervical spine, or of any spine, but in this case the cervical spine.
63. It has also to be said that in a reasonably extensive cross-examination, the
extent of all the disabilities claimed by Mr Seers
was explored, not just the
tenosynovitis.
64. Two visual presentations, presumably as the result of
surveillance, were shown and it was put to Mr Seers in cross-examination
that
his evidence to the court was inconsistent with what was shown when the DVDs of
the presentations were played to the court.
It was put to him that he had given
false evidence. He was also challenged on other aspects of his evidence. Her
Honour found
that those matters damaged his credibility but, as her Honour put
it:
I am not required to make definite findings as to his present level of general incapacity. Determining the application for rejection does not turn significantly on questions of credibility – other than to resolve the question of whether the worker is continuing to suffer from the injury originally referred to in his claim. This is answered by the medical evidence.
65. The only oral evidence in the proceedings came from Mr Seers. The medical
evidence was adduced by the consent tender of medical
reports. This is always a
fraught process where there are differences in the opinions expressed, for the
court often has little
material on which to be able to judge which expert to
prefer or whether apparent differences of opinion are real differences.
Apparently
dissimilar expressions of opinion may be able to be made consistent
when the author of the opinion is cross-examined or the various
formulations are
put to the other experts with an opportunity to explore the differences and
their reasons for them.
66. Of course, it also means that an appellate court
has at least an equal opportunity to assess the opinions since there can be no
special advantage enjoyed by the primary judicial officer who has not heard or
seen the expert give the evidence: Devries &
Anor v Australian National
Railways Commission & Anor (1993) 177 CLR 472; Fox v Percy [2003] HCA 22; (2003) 214
CLR 118.
67. Mr D Shillington, who appeared for Mr Seers before her Honour,
addressed first and addressed the apparently inconsistent evidence,
submitting
that the visual presentations were not inconsistent with oral evidence Mr Seers
had given. He also addressed the other
alleged inconsistencies.
68. In
addressing the medical reports he attacked the opinion most prejudicial to the
case for Mr Seers and analysed a number of the
others, relying on the conclusion
of Dr L Leu who opined that Mr Seers was presently unable to work and
that this was a
result of his work situation. His summary of the evidence
was:
[y]our Honour, in my submission, the evidence is overwhelming that he has until recently been totally incapacitated for work and now he’s obtained after long efforts and efforts to try and obtain work in Goulburn, Yass and in Gunning, says he’s contacted all the businesses in Gunning that he is now hopeful of returning to work in the service station and continuing to work with the young deaf child in the kindergarten. ... So at the very least there is a partial incapacity which the legislation allows to be calculated on a formula depending on the hours worked, your Honour.
69. He then addressed the grounds of the application, noting that a number had
not been the subject of cross-examination.
70. It was clear that Mr
Shillington was aware of the issue of the relation between the original claim
and the present disabilities,
and he relied on the report of Dr Leu,
especially at par 7 (to which I will return) and then said:
[y]our Honour, whilst the initial claim was in relation to the left wrist the symptoms then developed after his graduated return to work to the other parts of his body. Your Honour, as I alluded to in the application for arbitration you will see that the nature of the injuries are set out in that application at paragraph 2. Alleged injuries to neck, wrist, shoulders, elbows, fingers and bilateral arm pain, together with headaches and chronic pain syndrome.
71. Mr Stretton’s submissions went straight to the issue. He said
“[w]hat your Honour, therefore, has to decide is whether
the worker
continues to suffer as a result of that injury [i.e. tenosynovitis of the left
wrist] – that particular injury not
some other injury, but that
injury”.
72. He relied on the reports of the doctors retained by Mr
Seers and submitted that “it’s beyond doubt ... that the injury
for
which workers compensation was paid is no longer in existence, no longer
extant”.
73. He further submitted that Mr Seers had committed perjury
and that, uncorroborated, her Honour should not believe Mr Seers. In
the end,
however, his submission was for her Honour to keep her considerations
simple:
[i]n my submission it’s not a matter where your Honour needs to do anything but keep it simple. So the finding I seek is the worker does not presently suffer from tenosynovitis or repetitive strain injury and has not done so since 29 August 2006 and I’ve taken that from the date of Dr Brooks’ report because he says it’s resolved.
74. He did, however, seek a second finding, namely:
[s]econdly, the worker is not incapacitated, totally or partially from any injury – that should say to the left wrist – arising out of or in the course of his employment with the employer.
75. Her Honour did seek clarification of why the application was so expansive in
its description of the injury and it appears Mr
Stretton suggested that the
additional matters could be ignored and “insofar as it is necessary”
as an application could
be made to amend the application “to bring it in
align [sic]” with the original claim form because, he submitted, the
“claim in this case is that delineated” by what was in that form.
76. One can understand from this her Honour’s comment:
HER HONOUR: Well I’m wondering what – I am. Because I’m wondering why we spent so much time on issues that you’re saying to me are now totally irrelevant.
77. Mr Shillington opposed the application to amend and submitted that there was
plenty of evidence to show that the original injury
had progressed from the left
wrist. The foreshadowed application to amend appears not to have actually been
made or pressed and no
order for an amendment was made.
78. Mr Stretton was
permitted to make a comment on Mr Shillington’s last comment and took the
position that he maintained before
me when he said:
...the question is does the nature of the injury cover the left wrist, the answer is, yes, it does. It covers other things, too, but it covers the left wrist. What is the compensation paid for, Exhibit 1, the left wrist. What does your Honour have to decide, is there some injury to the left wrist for which compensation is paid – that arises out of the employment and continues to be an incapacitated worker and the answer to that is no on both the applicant’s and the respondent’s medical evidence.
The decision below
79. In the light of my description of the course of the
proceedings, I do not have to analyse her Honour’s decision in too much
detail.
80. Her Honour set out the factual background to the matter broadly
as set out above. She described the disabilities now claimed
by Mr Seers,
noting that he “impressed as a man who had genuinely enjoyed, and had been
fulfilled by, his employment...”.
81. As I noted (at [64]) above, her
Honour did refer to the damage to the credibility of Mr Seers that the
cross-examination
and visual presentation had achieved but made no specific
finding.
82. Her Honour then identified the question for her decision. She
set out the terms of the claim form (as in [39] above) and then
noted that
Mr Seers had “experienced symptoms or injuries not referred to in his
original claim” and for which no
additional claim had been lodged. She
then continued:
[t]he employer argues that the injury for which the claim was made, and liability accepted, has resolved. Thus the application for rejection must succeed.
83. Her Honour then proceeded:
[t]he worker, who I suspect may have been surprised by this point, argues that there is some connection between the original injury and his present state (e.g. an aggravation) or that the terms of the application for rejection make it clear that the employer was aware of the additional symptoms from which the worker was claiming to suffer and that the employer had continued to make payments for these additional problems.
84. Her Honour then dealt with the first of these points, namely the claimed
connection between the original injury and the present
state. She did not,
however, deal with the second point so far as I could find in her Honour’s
decision, namely that the employer
was aware of the additional symptoms and
continued to make payments.
85. Her Honour refers to the medical evidence in
some detail. She says she preferred some of the reports “because of the
logical
and detailed way in which the worker’s medical history is examined
and analysed”.
86. As I have noted above (at [65]), there was no oral
evidence from or cross-examination of the medical experts, all of their evidence
being tendered in written reports. This leaves me in as good a position to
evaluate their evidence as her Honour. I do not, however,
propose or need to do
that in particular detail as I do not propose to make a final finding on this
point of connection between the
present disabilities and the original injury. I
was not really addressed on that.
87. Her Honour then reproduced
“extracts from some of those [medical reports she] found most
useful”.
88. The passages from the reports extracted by her Honour make
it clear that the de Quervain’s tenosynovitis is “significantly
symptomatically relieved” (Dr Brook) or “no longer active” (Dr
Leu) or “resolved” (Dr Speldewinde,
Dr Burke, Dr Champion).
Another agreed that it had “abated” (Mr Kelman). There can be no
real doubt, and her Honour
was right to find, that the de Quervain’s
tenosynovitis was no longer a proximate cause for Mr Seers’ present
inability
to work, if that latter finding were to be made. I only add that
rider because her Honour, though strongly suggesting that he was
unfit for work,
made no direct finding and that may have to be made at some stage. I would not
want my relatively brief perusal
of the medical reports, without the benefit of
detailed submissions on them, to be suggested as resulting in me having made a
finding
on this matter one way or another, especially as such a finding would
also have to rely heavily on the oral evidence of Mr Seers
which, of course, I
only read in transcript.
89. This left, then, the issues her Honour mentioned
of whether the employer was aware of the additional symptoms and voluntarily
made payments in that knowledge. Her Honour did not address that issue at all.
I am not sure that I would have articulated it in
the way her Honour did, but I
address that below. The fact remains that her Honour did not address the
issue.
90. Her Honour did address a related issue, namely whether the
present, non-de Quervain’s tenosynovitis symptoms were related
to the
de Quervain’s tenosynovitis. Her Honour was not satisfied that they were.
For this finding, however, her Honour gave
no reasons that I could
discern.
91. There were some references in the passages she extracted from
the medical reports, but there is no real analysis of them, so far
as this more
complex and problematic issue is concerned. Unlike the issue of the de
Quervain’s tenosynovitis, there was a
wide divergence of views and no
analysis of how these were to be addressed. I can sympathise with her Honour in
that the absence
of cross-examination of those experts and very limited
submissions on their inconsistencies left her with a challenge.
92. In order
to assess this absence of reasons, I will make a few comments which highlight
the issue.
93. Her Honour makes no reference to the report of Dr J Bodel,
orthopaedic surgeon, who made a logical and detailed analysis of Mr
Seers’
medical history. He found “that the aetiology here indicates that there
is a causal link between the nature and
conditions of work and the development
of widespread discomfort in both upper limbs”. Similarly, the report of
Mr Kelman,
also an Orthopaedic Surgeon, which is a detailed seven-page report is
not mentioned by her Honour. He found that the aetiology of
the symptoms
Mr Seers is experiencing was “a gradual process of excessive
repetitive activity and stress”. In contrast,
she cites from the one page
report of Dr Speldewinde which, though a helpful report, hardly provides
“a detailed analysis”
of Mr Seers’ medical history. I found
it difficult to apply her Honour’s reason for preferring one report over
another
to the reports actually produced.
94. Her Honour also placed
apparently significant reliance on opinions of Dr Champion, a psychiatrist, who
made references, some of
which her Honour reproduced, that were of a more
orthopaedic than psychiatric nature. Dr Champion did concede that
“strictly
speaking these matters are outside my sphere of special
expertise, [but] as a doctor with general practitioner experience, I would
comment” on the contribution of a 1990 incident. This disclaimer could
apply a little more widely to the opinions in Dr Champion’s
report to
which her Honour had regard and needs careful consideration, especially in the
light of differing comments made by those
medical practitioners with the
requisite special expertise, when Dr Champion’s curriculum vitae
shows his general practice
experience was of 18 months duration.
95. Finally,
while her Honour did rely on the opinion of Dr Le Leu, who provided a very
detailed and comprehensive report, the passage
quoted by her Honour was
unaccountably limited and a full reproduction gives quite a different
perspective from the isolated passage
reproduced. The whole passage is as
follows, the part of it quoted by her Honour being only the first “dot
point” below:
[w]ith respect to the injuries:
96. Similarly, Dr Brook’s analysis was not clear cut. He noted that the
initial problem “was associated with secondary
problems, especially the
extensor group”, though he did opine that the cervical spondylosis
“was the main cause of [Mr
Seers’] neck and shoulder pain and
headache.”
97. The issue before her Honour of the cause of Mr
Seers’ present disabilities and their relationship with his work injury
was
clearly one of complexity and the material before her Honour presented real
challenges for her Honour’s obligation to resolve
the issue.
98. I have
not come to any conclusion about the issue of whether the present disabilities
suffered by Mr Seers are causally related
either to the original injury of de
Quervain’s tenosynovitis or to his employment. I have not heard
submissions on that matter
and have not analysed the medical reports in
significant detail.
99. I have, however, been able to form the view that her
Honour’s reasons for finding that the present symptoms from which Mr
Seers
claims to be suffering are not a progression or aggravation of the original
injury are inadequate. See Soulemezis v Dudley
(Holdings) Pty Limited (1987) 10
NSWLR 247. Given what I have said, I am unable to discern how her Honour
resolved the conflicts in the medical reports on this latter issue.
She gave
criteria for accepting some reports, but even those reports that she did say she
found “useful” were conflicting
on this very issue.
100. If what
I have said appears critical of her Honour, it is not intended to be so. I note
that her Honour’s decision was
sought rather urgently, else common law
proceedings would have to be adjourned. Such pressure does not always allow for
the kind
of careful consideration complex issues deserve, and her Honour clearly
made a major effort to meet the time expectations of the
parties.
The
appeal
101. In any event, as I have noted, her Honour ordered that the
employer may reject the claim. An appeal has been brought from that
decision.
(a) The appellant’s contentions
102. Mr R Crowe SC,
who appeared with Mr D Shillington for Mr Seers, argued that her Honour was
wrong to permit the respondent to
reject the claim for two reasons: the medical
certificates, it was argued, were effectively claim forms and should be accepted
as
being in substantial compliance with the approved form as permitted under s
255(4) of the Legislation Act 2001 (ACT) which provides that
“[s]ubstantial compliance with a form is sufficient”; and that, in
the alternative, as there
was a reasonable cause for Mr Seers not having made a
claim and under s 116(3) of the Workers Compensation Act, her Honour should have
considered the other matters.
103. Mr Crowe SC submitted that claim forms are
commonly completed by workers at the workplace without legal advice and, indeed,
perhaps
even medical or union advice. The permitted use of an entry in the
Register of Injuries reinforces that approach. The purpose,
he submitted, was
to give notice to the relevant parties, namely the employer and the insurer. If
that was achieved in another way,
that should be taken to be sufficient. Hence,
substantial compliance with the relevant forms was acceptable.
104. The
medical certificates, Mr Crowe SC submitted, were important documents. They
could clearly add to the information on the
original claim form and, in this
case, did so.
105. He submitted that, as investigation and treatment
progressed, there could be changes or additions in the medical situation.
For
example, he submitted that there was some medical suggestion to the effect
that:
[i]t may be that the De Quervain’s tenosynovitis if properly looked at in, again with the advantage of hindsight looking at all of the evidence was a symptom of an underlying repetitive or occupational over-use injury of a more general type having regard to the physical duties...
106. Here, as I have noted above (at [50]), the medical certificates had clearly
extended the diagnosis after the first one to include
injuries described by Dr
Challinor as caused by “muscular compensation”, a clear suggestion
of a causative relationship
to the originally diagnosed injury.
107. Mr Crowe
SC then further submitted that compensation had been paid by the insurer on
receipt of these certificates and that,
relying on s 56(5) of the Regulation,
technicalities such as those relied upon by the respondent should not have been
decisive.
108. In the alternative, Mr Crowe SC submitted that I could rely on
s 116(3) of the Workers Compensation Act to hold that there was a reasonable
cause for the failure of Mr Seers to make a separate claim for the other
injuries (if I was of
the view that his disabilities represented such) and that
that would entitle him to continue to receive compensation.
(b) The
respondent’s contentions
109. Mr G Stretton, representing the
respondent, submitted that the contentions of Mr Crowe SC failed to have
regard to the significant
obligations that were triggered by the making of a
claim. To render the claim too informal or fluid would risk a criminal
prosecution
against an employer or insurer or, as he submitted would apply in
this case, the complete lack of indemnification of the employer.
110. Mr
Stretton submitted that while there was some latitude in extending the injury
for which compensation was payable without a
fresh form, there had to be limits.
In his submission, any injury to the left arm of Mr Seers would fall within
range but injury
outside that such as to the right arm would not.
111. He
also relied heavily on the decision of Gallop J in Commonwealth Accommodation
and Catering Services Pty Ltd v Boceska (ACTSC,
11 Oct 1991, unreported)
(Boceska), which he submitted was authority for the proposition that:
[i]t is not permissible to confuse the determination of the question raised by the worker’s claim form or question whether the worker is incapacitated for work by some other medical condition.
112. In Boceska, a somewhat similar situation pertained as to that here. There,
the application by the employer raised the question
of whether the worker was
still incapacitated because of a sprained left ankle and the worker put that in
issue.
113. As his Honour noted (at 7):
[q]uite clearly the question raised by the application and answer was whether the worker was “no longer incapacitated” from the condition of a sprained left ankle sustained on 25 August 1987. It was the condition of a sprained left ankle which incapacitated the worker and which gave rise to her entitlement to workers’ compensation for the period of that incapacity. It is apparent from the Magistrate’s decision and reasons that he did not answer that question. Unfortunately the parties widened the scope of the proceedings to a more general question as to whether the worker was, at the date of hearing, suffering from other conditions which were totally incapacitating.
114. His Honour then decided (at 8):
[i]n my opinion the Magistrate should have confined the dispute to the resolution of the specific question raised by the application; namely whether the worker was still incapacitated for work by reason of a condition of sprained left ankle as from 3 February 1988. In ruling that the worker could expand the scope of the arbitration to the question of continuing total incapacity from any condition, the Magistrate went beyond the jurisdiction conferred by s 24 of the Act to determine the question which had arisen.
115. His Honour also decided that the Learned Magistrate had failed to give
proper reasons for his decision and, relying principally
on Pettitt v Dunkley
[1971] 1 NSWLR 376 and other cases, held that the reasons did not comply with
the principles in that case.
116. It is true, as Mr Stretton submitted, that
Boceska has been cited in a number of other cases. In Batar v D F Formwork Pty
Ltd
(ACTSC, Higgins J, 15 July 1994, unreported) it was cited as a case where
reasons had not been given for the learned Magistrate’s
decision. It was
not cited as authority for the above proposition.
117. Similarly, in Wattyl
Australia Pty Ltd v Ilsley (ACTSC, Gallop J, 7 Nov 1996, unreported) it was
cited for the same issue, namely
the inadequacy of the reasons of the learned
Magistrate and passages from 22-24 were quoted. That case went on appeal to the
Full
Court of the Federal Court of Australia, in Ilsley v Wattyl Australia Pty
Ltd (1997) 75 FCR 1, but Boceska was not cited in the judgment of the
court.
118. That is not to say that the principle enunciated by Gallop J in
Boceska is not a good law and, unless convinced it is wrong,
which I am not, I
should follow it: The Vera Cruz (No 2) (1884) 9 PD 96 (at 98); Chamberlain v R
(No 2) [1983] FCA 78; (1983) 46 ALR 493 (at 498). Indeed, it seems to follow from the
decision of the Full Court of the Federal Court of Australia in Parkroyal Motor
Hotel Pty Ltd v Sullivan [1985] FCA 358 (at 4).
“Equity, good
conscience and the substantial merits of the matter”
119. These words,
with the addition of “without regard to technicalities and legal
forms” are the statutory obligation
of the Magistrates Court under s 56(5)
of the Regulation when acting in an arbitration.
120. There has been
significant judicial consideration of this phrase since it was first used in
about 1604. As recently as 1824,
it was held to permit a wide level of
discretion to those enjoined to apply it. Thus, in referring to the Court of
Requests, Best
CJ said in Scott v Bye [1824] EngR 886; (1824) 2 Bing 344 (at 347-8); [1824] EngR 886; 130 ER 338
(at 339):
[i]n the Court of Requests, pleadings in writing are not required, and would be highly inconvenient. A party may be examined as a witness, and the judgment is to be according to equity and good conscience, that is such as plain men, ignorant of the rules of law, which the judges of that court must be, shall think just. If the expence and delay that must be occasioned by an appeal to the Common Pleas did not entirely defeat the object of the legislature in creating courts of request, can a court, the decisions of which are wisely subjected to fixed rules, be a proper tribunal to correct the proceedings of courts where judges are left to the guidance of their own arbitrary discretion?
121. The concern of his Lordship about how an appeal from a body operating in such a way can actually be heard has a quite modern ring as the courts have sought to grapple with the concept behind the phrase. Thus, in Qantas Airways Ltd v Gubbins and Ors (1992) 28 NSWLR 26, Gleeson CJ and Handley JA said (at 29):
[t]he precise effect of this section [i.e. s 108(1)(b) of the Anti-Discrimination Act 1977 (NSW) which required the tribunal to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms] is not immediately clear. Section 118(1) [of that Act] provides that a party aggrieved by a decision of the tribunal may appeal to the Supreme Court on a question of law and subs (3) provides that the Court shall hear and determine the question of law arising on the appeal and may make such order in relation to the appeal as to it seems fit. It is apparent therefore that s 108(1)(b) does not release the tribunal from the obligation to apply rules of law in arriving at its decisions. If that had been the effect of s 108(1)(c) there would have been no point in conferring a right of appeal to the Supreme Court on a question of law.
122. There were suggestions even early last century of a wider approach to the position. Thus, Cohen J in Colliery Employees’ Federation v Northern Proprietors’ Association [1904] AR (NSW) 182 said (at 185):
... the words “equity and good conscience” leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man...
123. Early in the Commonwealth, however, there were strong suggestions that such
provisions were procedural and could not affect
substantive rules of law; see
per Isaacs J in Re Commonwealth Court of Conciliation and Arbitration &
Anor; Ex parte Brisbane
Tramways Co Ltd & Anor [1914] HCA 15; (1914) 18 CLR 54 (at
72). That approach was confirmed by a majority of the High Court in Peacock v
Newtown Marrickville and General Co-operative
Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25,
per Latham CJ (at 36) and Starke J (at 46-47), with McTiernan J agreeing (at
47).
124. The exact meaning and application of the phrase has caused
difficulties, with courts not coming to an easy resolution of what
the precise
meaning is to be. In Qantas Airways Ltd v Gubbins, the majority stated (at
30):
[t]he words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found: see generally, Santos Ltd v Saunders (1988) 49 SASR 556 at 564 per Legoe J. In some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245.
In other contexts such words have been construed as requiring the tribunal to apply the ordinary law. ... In Ex parte Herman; Re Mathieson (No 1) (1959) 78 WN (NSW) 6 at 9; [1961] NSWR 139 at 1142, Kinsella J said:
... I am not sure what the magistrate meant to imply in using the words ‘according to equity and good conscience’ in his brief judgment, but I am clearly of opinion that as used in s 7 of the Small Debts Recovery Act they do not give the court power to depart from established principles of law nor do they give it power to dispense justice otherwise than according to law.
125. More recently, the High Court has had occasion to deal with the phrase or a variant of it. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gleeson CJ and McHugh J said (at [49]):
[t]he history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at lest to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.
126. Later, in Sue v Hill & Anor [1999] HCA 30; (1999) 199 CLR 462, Gleeson CJ, Gummow and Hayne JJ said (at [42]):
[p]rovisions of this type are not inimical to the exercise of the judicial power of the Commonwealth. They do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.
127. Gaudron J expressed a similar view. After noting that the power granted by the legislation, which included such a phrase, should be exercised according to law, Gaudron J stated (at [149]):
[i]ndeed, a court would be acting neither in accordance with the substantial merits of the case nor in good conscience if it were to determine the issues raised otherwise than by application of the relevant law to the facts. Nor would it be acting in good conscience if it were to find facts other than on evidence probative of them, evidence which may or may not accord with the rules of evidence.
128. Thus, it would appear now clear that the phrase does not relieve a body,
subject to the obligation to decide in accordance with
equity, good conscience
and the substantial merits of the case, of the duty to apply the substantive
rules of law when deciding a
case and in accordance with the relevant
law.
129. A rather bleak, but not inappropriate summary was expressed by
Professor N Rees in “Procedure and Evidence in ‘Court
Substitute
Tribunals’” (1998) 18 ABR 41 where (at 66) he said (footnotes
omitted):
[a]n ‘equity and good conscience’ clause does not permit a ‘court substitute’ tribunal to set aside the relevant substantive law and determine cases by reference to what appears to be fair and just in the circumstances, either generally or in those cases where the application of unduly technical rules of law may produce what appears to the tribunal to be an unfair result. Also, an ‘equity and good conscience’ clause is not a grant of jurisdiction to a tribunal to apply the principles of equity when determining the outcome of proceedings. It is no longer meaningful to speak of equity in such a fashion that it could constitute a discrete body of law over which a tribunal had jurisdiction. As Justice French recently pointed out when writing extra-judicially, equity is a body of law which is historically defined and now forms ‘part of the single body of unwritten law administered by most, if not all, courts of the land, albeit it retains its distinctive character and functions’.
There is far less certainty about what an ‘equity and good conscience’ clause actually permits a ‘court substitute’ tribunal to do which it could not do if it did not have that statutory power. If ‘equity and good conscience’ clauses do not permit ‘court substitute’ tribunals to depart from applying the relevant substantive law it seems that they must be a grant of procedural power in the sense that they allow the tribunal to excuse a party’s failure to comply with some procedural requirements. As Gleeson CJ and McHugh J said in Eshetu, these provisions are ‘facultative’ because they are designed ‘to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law’.
It is challenging, however, to identify any modern procedural constraints applicable to courts of law which may be overcome by a tribunal’s use of an ‘equity and good conscience’ clause. It is self-evident that an ‘equity and good conscience’ clause cannot permit a ‘court substitute’ tribunal to give itself jurisdiction to hear and determine a particular matter when jurisdiction does not otherwise exist. While such a provision may be employed to excuse non-compliance with some statutory procedural requirements and, presumably, all of the tribunal’s own procedural requirements, modern courts invariably possess the power to excuse non-compliance with rules of procedure and modern tribunals usually have a separate power to excuse procedural irregularity. It may well be the case that everything which can be done by a ‘court substitute’ tribunal pursuant to an ‘equity and good conscience’ clause may be done by a modern court pursuant its power to excuse non-compliance with rules of procedure.
The outer limits to the procedural flexibility granted by an ‘equity and good conscience’ clause are uncertain as there are some statutory procedural requirements, invariable associated with the notion of a fair hearing, which are beyond the reach of an ‘equity and good conscience’ clause because compliance with them is mandatory. It is also apparent that an ‘equity and good conscience clause’ cannot be relied upon to excuse a tribunal’s non-compliance with its natural justice obligations, regardless of whether the content of those obligations is specifically described in legislation or falls to be determined by common law rules.
130. Despite this overview, the courts have more recently been prepared to apply
the phrase a little more confidently. Nevertheless,
the wider range of
ameliorative and dispensatory powers, and the courts’ willingness to use
them, especially “in the
interests of justice”, has converged the
approach of traditional courts and that of those bodies subject to the
injunction
to act with equity, good conscience and the substantial merits of the
case.
131. Thus, in Eagle Star Insurance Co Ltd v Yewal Insurance Co Ltd
[1978] Lloyd’s Rep 357, Goff LJ said (at 363-4) that
such a provision
in an arbitration agreement enabled the arbitrator “to view the matter
more leniently as having regard more
generally to commercial consideration than
would be done if the matter were heard in court”. See also Ory & Anor
v Betamore
Pty Ltd (in liq) and Ors [1993] SASC 3996; (1993) 60 SASR 393.
132. As White J said
in Griggs v Norris Group of Companies (Including S A Helicopters Pty Ltd and
Captured Pty Ltd [2006] SASC 23; (2006) 94 SASR 126 (at 140), “[i]n short, a just claim is
not to be defeated by technical difficulties.”
133. Similarly, Olsson J
pointed out in Trittenheim Pty Ltd and Ors v H & H Gill Nominees Pty Ltd
(1994) 63 SASR 434 (at 442):
[w]hat must firmly be borne in mind is that what is appropriate in a particular case must derive from a consideration of the nature of the issues involved and, where appropriate, the clear intendment of any statute applicable. These may patently demand an application of strict principles of law or of a statute either because the notion of equity, good conscience or the substantial merits of the case unerringly points to the need or desirability of so doing, or the statute expressly or impliedly mandates such an approach...
However, in certain types of case... there remains scope for the court... to adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. If it were otherwise then a mandate to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities ...’ would have little or no room to operate at all.
134. In Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77, Keane JA, with whom McMurdo P and White J agreed, said (at 95):
[43] The authorities suggest that a statutory obligation to have regard to the ‘substantial merits of the case’ means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.
[44] In my opinion, where there is reason to suppose that the outcome of the rehearing may substantially affect the parties in terms of the ultimate result, then the possibility of injustice in the sense of a decision which does not reflect the ‘substantial merits of the case’ if leave is not granted, inevitably emerges as a consideration material to the exercise of the discretion conferred by s 12 of the Act.
[45] It may be that, in the circumstances of a particular case, considerations of justice require that the desirability of a ‘perfect’ outcome give way to the practical consideration that ‘justice delayed is justice denied’; and, in some cases, the conduct of the applicant may have been so egregious as to lead to a refusal of a rehearing without considering the impact of the resolution of the issue sought to be reagitated. But to say this is merely to acknowledge that the discretion falls to be exercised as a matter of balancing competing considerations having regard to all relevant circumstances. Generally speaking, the likely impact of the alleged error on the outcome of the case will be a consideration relevant to that balancing exercise.
135. In my view, this brief analysis of the authorities shows that when the
Magistrates Court is conducting an arbitration under
the Workers Compensation
Act, it should proceed with the following matters in mind:
1. the court is
obliged to apply the substantive law and apply the provisions of the relevant
statutory provisions.
2. One statutory provision to which it must give
effect is s 56(5) of the Regulation, to act with equity, good conscience and the
substantial merits of the case without regard to technicalities and
legal
forms.
3. This permits and requires it to take these enumerated issues into
account when exercising any discretion. This would, for example,
be
particularly apt when considering applications under sections of the Workers
Compensation Act which confer a discretion such as ss 116(3), 120A and
124(2).
4. The Magistrates Court in an arbitration under the Act should
avoid technicalities such as are required by courts in relation to
the
formulation of claims, which are not traditional pleadings.
5. While the
court, when arbitrating, is not bound by the rules of evidence (s 56(3) of
the Regulation), it is often said that
the courts should nevertheless have
regard to them as appropriate: A and Anor v Director of Family Services (1996)
132 FLR 172 (at 177). Nevertheless, where a body is required to act in
accordance with equity, good conscience and on the substantial merits
of the
case, a wider opportunity exists for the body to depart from the technicalities
of the rules of evidence and permit appropriate
information to come before it so
long as fair process is preserved.
6. Clearly procedural fairness is
required but in achieving that it is a matter of substantive fairness and not
merely the application
of rules. Thus, for example, cross-examination which
wastes time or is not clearly addressed to issues in a case might more readily
be curtailed.
7. The court should focus on the real issues in the
proceeding. It cannot assume jurisdiction it does not have, nor can it refuse
to address the jurisdiction it has, but it should take such procedural steps as
are fair to ensure that it addresses the real issues
in the case.
8. While
bearing in mind the obligation to apply the law and respect the statutory
obligations on it, the Magistrates Court needs
to ensure that technicalities do
not prevent a just claim being made and fully heard. That does not, of course,
require the court
to determine the claim first, but to identify that there is a
claim that, if properly made, could in accordance with law be heard
and
determined by the court and then ensure that such technicalities are removed,
overcome or, if appropriate, left aside as would
prevent that claim being fully
heard and determined, even if ultimately to be
rejected.
Conclusions
136. In my view, there were really three issues
before her Honour:
(a) was there the proper notice of the claim relating to
his current disabilities made by Mr Seers so as to attract the jurisdiction
of
the court?
(b) Were his current disabilities caused by an injury arising out
of or in the course of his employment?
And
(c) was Mr Seers still
incapacitated from work and, if so, to what extent?
137. Her Honour only
really addressed the first issue in any detail. She made a finding on the
second issue but for reasons set out
above did not provide adequate reasons.
She did not address the third.
138. In relation to the first issue, in my
respectful view, her Honour was wrong in her conclusion for the following
reasons.
139. I do not accept the submission of Mr Crowe SC that the medical
certificates were substantially compliant claim forms. They were,
however,
forms that were prepared by the medical practitioner of Mr Seers, nominated by
him and completed on each occasion after
examination. In a real sense, they
were submitted in fulfilment of an obligation placed on Mr Seers under the
personal injury management
plan to undertake that they were
done.
140. Insofar as they gave notice of the diagnosis of an injury suffered
by Mr Seers, they complied with the notice provision under
s 127(2) of the
Workers Compensation Act as giving notice to the insurer of the claim to
compensation for the matters listed in addition to those in the original
claim.
141. Assuming for the moment that the prescribed form AF2002-88 is the
required claim form it is clear that the medical certificates
do not provide all
the information included in such a claim. That information was, however, given
in the original claim form and
s 118(1) relieves the worker from providing the
same information multiple times. The only new information was the extended
symptoms and this
was clearly set out in the certificate.
142. Of course,
this approach only applies if one accepts that the current disabilities are
relevantly associated with the initial
injury which caused the de
Quervain’s tenosynovitis. That was the only injury, but if it caused more
widespread symptoms,
whether those were occurring on the other side of Mr
Seers’ body, they could be encompassed in the claim that was being
made.
143. The first certificate including the extended diagnosis was well
within the period set out in s 120 of the Workers Compensation Act. The injury
notice had already been given. If, of course, there was another injury, then a
fresh injury notice would have been
required: s 120(1). That, however,
may not prevent a claim being made. In any event, failure to give such a notice
does not
absolutely bar proceedings: s 124.
144. In this way, the scheme of
the legislation makes allowance for what must be a relatively frequent
occurrence, namely that the original
injury gives rise to a series of medical
issues not all of which are apparent at the time of the original
claim.
145. The medical certificates are not mere bureaucratic paper; they
are, and are intended to be, informative and to give notice of
the progress of
the worker’s condition. Sometimes they will give notice of an improvement
which, no doubt, the insurer will
be keen to know so as to consider whether an
application for rejection should be made. At other times, as here, they will
give notice
of additional matters referable to the injury originally suffered or
appropriately associated with it. In this respect, I note that
the prescribed
claim form requires not only the nature of that injury but also how, when and
where it was caused, so that the insurer
will already know much of the
information from which to understand any additional matters included in the
certificates as here.
146. It was clear that the insurer had notice of the
claim relating to the neck, right shoulder, right arm and headaches of Mr Seers.
The following evidence shows this:
1. the medical certificates were prepared
under the personal injury plan established by the insurer and they were required
under
it to be submitted to the insurer. An officer of the insurer sent a copy
of the plan to Dr Challinor, noting “I will
monitor the progress of
this plan and contact you as required”.
2. The plan itself noted the
opinion of Dr Roberts that he “suspected involvement of right
shoulder” and the cortisone
injection to his right shoulder on
7 June 2006.
3. The plan also noted that reports of an
“Independent Medical Examination” had been received from Dr Bodel
and Mr Kelman.
In their reports, both reported and commented on pain in the
right shoulder and on theright side of his body.
4. The more recent reports
commissioned by the insurer, from Dr Burke, Dr Bornstein and Dr
Champion, all referred to right
shoulder and right arm pain and disability.
Though I do not have the letters of referral, it appears from the reports that
they
almost certainly included the wider claims made by Mr Seers.
5. The
application (see [58] above) stated that the injury included both shoulders,
arms, elbows and wrists.
147. The problems identified in his submissions by
Mr Stretton on this issue do not seem to me to be maintainable. As I have
noted,
there is a difference between the two types of injury notice and these
are also different from the claim. The injury notices under
s 120, being
the pre-condition to making a claim, must be served on the employer. There was
no apparent evidence of this but
it did not seem to be a point taken in the
proceedings. I do not have to consider the effect of not giving such a
notice.
148. The injury notice under s 94 is given by the employer. It
relies, of course, on the worker telling the employer of the workplace injury
under s 93. It is this latter occasion which triggers the obligation on the
employer which has serious consequences for the employer under s 95 and the
insurer ultimately under s 96. None of these are referable to a claim,
though it may be that the making of a claim might fulfil a worker’s
obligation under
s 93 at the same time. A claim, however, is normally
temporally separate: the worker’s “telling” has to be
“as
soon as possible after being injured” (s 93(1); the claim can
be made “within three years after the injury happened” (s
120(1)(b)(i)).
149. Thus, I reject the submission that the making of a claim
triggers obligations and criminal sanctions. Were that so, it would be
a good
reason for ensuring that there was certainty in the time and manner of making a
claim. In fact, these sanctions arise because
of what the legislation itself
provides as a trigger, which is by no means easily identifiable: it is the
“telling”
to the employer under s 93(1) which can be oral or by
entry into the Register of Injuries or, presumably, in writing, such as by
making a claim.
150. Indeed, the medical certificates are much more certain a
method of giving notice, since to the insurer they are, or should be,
important
documents which are intended to convey important information. The claim, of
course, can be given to either the employer
or the insurer (s 122); the
“telling” (s 93) and the injury notice (s 120), which arguably can
be the one occasion, has to be given to the employer (ss 93, 123).
151. Mr
Stretton also relied on Boceska and submitted that this was an authority
directly contrary to the submissions of Mr Crowe SC.
That submission would, if
sustained, also appear to be contrary to the view I have taken.
152. It seems
to me, however, that it is not so constraining. What was there in issue was a
discontinuity between the application
for arbitration and the course of the
hearing. There was no reference in Boceska in terms to the original claim. I
accept that
it might be inferred that the original claim there was for an injury
to Ms Boceska’s ankle when she fell while negotiating
some steps as
she was carrying linen.
153. In Boceska, the issue in dispute, as first
claimed by the employer and traversed by the worker was “whether the
worker
was ‘no longer incapacitated’ from the condition of a
sprained left ankle sustained on 25 August 1987” (at 7).
The Learned
Magistrate there widened the inquiry to consider other issues of incapacity.
That is a far cry from this case. Here,
the claim of the employer was that the
claim of the worker in respect of the injury specified in the application
(namely “[a]lleged
injuries to neck, wrists, shoulders, elbows, fingers
and bilateral arm pain, together with headaches and a chronic pain
syndrome”)
should be allowed to be rejected. This did not permit the
Learned Magistrate to confine “the dispute to the resolution of
the
specific question raised by the application” (to use the words of Boceska)
by rejecting anything other than de Quervain’s
tenosynovitis of the left
wrist. That would be to commit the obverse error to that identified in Boceska,
namely to refuse to answer
the specific question in the application by refusing
to address issues squarely raised by it.
154. There are some similarities
between this case and Boceska. In Boceska, the worker claimed initially a
sprained ankle, but at
the hearing (and, apparently, without any kind of notice
of the additional issues) claimed that the incapacity arose from sympathetic
dystrophy. The application was limited to the sprained ankle. The answer of
the worker was simply to put in issue that she was
“no longer
incapacitated as a result of injury caused to her arising out of and in the
course of her employment”. This,
in his Honour’s view limited the
question, as I have noted above (at [114]).
155. His Honour did suggest that
the question raised by the application and the issue of the other injury could
have been heard together.
His Honour said (at 9):
[i]t may have been appropriate to allow the worker to make application for compensation on the basis of total incapacity due to a condition other than a sprained left ankle and to have had that question determined contemporaneously with the question raised by the employer’s application. That could have been done in an informal way (Fourth Schedule, r 6A(b)), but it was not permissible to confuse the determination of the question raised by the employer’s application with the question whether the worker was incapacitated for work by some other medical condition.
156. That approach would certainly accord with equity, good conscience and the
substantial merits of the case.
157. In my view, were the employer here to
have narrowed the application to the left wrist injury only, the worker could
have either
issued a separate application for arbitration for the other
disabilities as suggested in Boceska or could have included in the answer
(Form
3.67, made under the Court Procedures Act 2004 (ACT)) a kind of confession and
avoidance by accepting that the original tenosynovitis had resolved but that the
other disabilities
continued to render Mr Seers incapacitated. This too would
have been an approach that accorded with equity, good conscience and
the
substantial merits of the case.
158. In any event, I am also satisfied that
the alternative basis argued by Mr Crowe SC was sound.
159. It seems to me
that, applying the obligation to proceed in accordance with equity, good
conscience and the substantial merits
of the case without regard to
technicalities and legal forms, her Honour should have permitted the other
disabilities to be considered
at the hearing.
160. If, for example, the
present disabilities suffered by Mr Seers are, in fact, argued to be a separate
injury, such as caused by
an occurrence or occurrences when he attempted to
return to work, then a separate injury notice should have been given.
161. In
my view, however, s 124(2)(a) would apply (so long as a notice was given and any
reasonable adjournment granted or required
by that paragraph) because it would
be extremely unlikely that the employer’s defence would be prejudiced,
especially having
regard to the notice it already had and the matters referred
to (in [146]) above, particularly the medical reports already obtained,
and also
the terms of the application form that was before her Honour made by the
Exhibition Centre.
162. If, on the other hand, as seems more likely on the
basis of the medical reports already tendered, it is argued that the present
disabilities arise out of or are an aggravation of the injury already notified
or are a co-manifestation of an underlying injury
of which the de
Quervain’s tenosynovitis is also a manifestation, then it would appear
that s 116(3) would apply. The
original notice would comply with the
requirement under s 120(1)(a). On the basis of the matters set out (in [146])
above and the
terms of the application form that was before her Honour made by
the Exhibition Centre, it would appear that, at least to that stage,
both
parties thought that the ambit of the claim was the wider view of the
disabilities suffered by Mr Seers. This would make
it a reasonable cause
justifying any hypothetical failure of Mr Seers to make a formal claim,
were it held he should have done
so.
163. This then would be the claim that
the Exhibition Centre was seeking leave to reject.
164. In the result, her
Honour should not have permitted the Exhibition Centre to reject the claim on
the basis claimed. That having
disposed of the first issue of the three issues
I identified (in [136]) above, and in the light of my finding about the second
issue
(at [99]) above, the proceedings should be remitted to the
Magistrates Court for determination of the application in the light
of these
reasons.
Order
165. Accordingly, I propose to order that:
1. The
appeal be upheld.
2. The order of the Magistrates Court made on 6 March 2009
be set aside.
3. The respondent’s application for rejection of the
appellant’s claim for compensation be remitted to the Magistrates
Court to
continue the hearing in accordance with law.
166. I shall hear the parties
about costs and any consequential orders.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 20 July 2009
Counsel for the appellant: Mr R Crowe SC & Mr D Shillington
Solicitor
for the appellant: Pappas J - Attorney
Counsel for the respondent: Mr G
Stretton
Solicitor for the respondent: Sparke Helmore
Date of hearing: 15
May 2009
Date of judgment: 20 July 2009
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