French v Sydney Turf Club Ltd [2002] NSWADT 24 (27 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: French -v- Sydney Turf Club Ltd [2002] NSWADT 24

PARTIES: APPLICANT

Margaret Winifred French

RESPONDENT

Sydney Turf Club

FILE NUMBERS: 212 of 1996

HEARING DATES: 12/02/2002

SUBMISSIONS CLOSED: 12/02/2002

DECISION DATE: 27/02/2002

BEFORE: Goode P - Judicial MemberMooney L - MemberClayton S - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Anti-Discrimination Act 1977

CASES CITED: French v Sydney Turf Club & Anor [1999] NSWCA 195

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Joyce v GIO (NSW) (21 July 1976 unreported)

Bearns v Bearns-Hayes (unreported 4 September 1996)

Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143

Shannon Luka v Lake Macquarie City Council [1998] NSWLEC 165

APPLICATION: Leave to re-open case

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

R S Warren, barrister

ORDERS: The application is dismissed.

Reasons for Decision:

The Nature of the Application

1 The Applicant seeks leave from the Tribunal to re-open her case for the purpose of presenting additional evidence including three medical reports. The Application is made at a time when the hearing on the substantive case has concluded but the Tribunal's decision has not yet been delivered.

Background to the Application

2 At all relevant times, the Applicant was employed by the Respondent as a casual bar attendant, having commenced employment in 1972.

3 On 10 September 1988, she suffered a work related accident resulting in injury to her back and right leg. At the time, she was employed on full shifts of 7 - 8 hours on each day race meetings were held at Rosehill Gardens and Canterbury Park racecourses.

4 She was absent from work from 3 November 1988 to 24 June 1989, during which period she received workers compensation payments from GIO Australia ("GIO"), the Respondent's workers compensation insurer. She returned to work on restricted hours of 4 hours per race meeting. She received weekly payments of compensation based on a full shift until 18 December 1991, when GIO ceased to make any further payments.

5 The dispute with GIO was eventually resolved by agreement between the parties on 7 May 1993, with the Compensation Court of New South Wales ordering the Respondent to pay the Applicant payment in relation to a 20 percent permanent disability to her back, a 10 percent permanent disability to her right leg, and pain and suffering.

6 After returning to work on 24 June 1989, the Applicant continued to work on restricted hours of 4 hours per race meeting. Her requests to the Respondent to reinstate her for her pre-injury hours of work were declined. The circumstances surrounding the requests, and the reasons for the Applicant not being placed back on full shifts, are in issue.

7 Sometime prior to 16 November 1993, the Applicant contracted a skin condition known as paronychia, affecting the long finger of her right hand particularly around the nail. (The date she contracted the condition is in issue.) She was off work by reason of the skin condition from 16 November 1993 to 13 June 1994. During this time, GIO made payments to her based on a 4 hour shift.

8 Eventually, the Applicant was rostered back at work on 7 September 1994, still on a 4 hour shift. She continued to request that she be returned to full shifts. Again, the circumstances surrounding the requests, and the reasons for the Applicant not being placed back on full shifts, are in issue.

9 In September 1995, the Applicant was involved in a motor vehicle accident. She broke her sternum and suffered other injuries to the left side of her body. She returned to work on 7 October 1995 on a 4 hour shift without experiencing any problems. However, after attending an insurance company doctor for a physical examination in relation to the motor vehicle accident, she aggravated her back injury and was unable to return to work until sometime early in 1996.

The Complaint to the Anti-Discrimination Board

10 On 15 May 1995, the Applicant lodged a complaint of unlawful discrimination with the President of the Anti-Discrimination Board (the "Board"). The President appears to have regarded the complaint as constituting two separate complaints, one, a complaint of discrimination in relation to the reduction in hours worked ("the hours complaint") and the other, a complaint of discrimination in relation to the paronychia ("the paronychia complaint").

11 The President noted in his report that the allegations appeared to involve discrimination on the ground of disability (applicable to incidents of discrimination alleged to have occurred after 8 August 1994) and discrimination on the ground of physical impairment, prior to this time. (When the Anti-Discrimination Act 1977 ("the Act") was amended, with effect from 8 August 1994, disability became the relevant ground of discrimination rather than physical impairment.)

12 It is agreed that for the purposes of the Act, up until 7 August 1994 the Applicant had a "physical impairment" and was a "physically handicapped person". With effect from 8 August 1994, it is agreed that the Applicant had a "disability".

13 It is alleged that by its conduct in restricting the Applicant's hours to 4 per shift, the Respondent (up until 7 August 1994) unlawfully discriminated against the Applicant on the ground of her physical impairment, within the meaning of s 49A(1), in contravention of s 49B2(a), (b) and (c) of the Act (as it then was).

14 It is further alleged that by its conduct in restricting the Applicant's hours to 4 per shift, the Respondent (from 8 August 1994) unlawfully discriminated against the Applicant on the ground of her disability, within the meaning of s 49A and s 49B(1), in contravention of s 49D(2)(a), (b) and (d) of the Act.

15 It is the Respondent's case that although the hours complaint is the only complaint presently before us, material relating to the Applicant's paronychia condition is relevant to an assessment of damages (in the event that the hours complaint is substantiated).

16 In its reply to the President dated 4 October 1995, (Tab 3 of the President's Report, Exhibit A, Substantive Hearing), the Respondent admitted that the Applicant was only rostered for 4 hour shifts. It stated that the Applicant had approached management to have her hours increased but because of restrictions specified in medical certificates provided by the Applicant, the hours could not be increased. It was claimed by the Respondent that the restrictions precluded her from duties involving excessive lifting, stooping or bending (as stated by Dr Bamford in his letter of 21 June 1989) and, therefore, that she was not allowed to perform several of the normal duties of a bar attendant.

17 Specifically, the Respondent claimed in its reply to the President (Tab 3):

· "Those normal bar attendant duties that Ms French cannot perform such as lifting trays of glasses to bench height, bending to remove products from the lower shelves of refrigerators, getting ice from hopper, restocking refrigerators, are performed for her by other employees.

· Work before and after the peak period of the day involves to a much greater degree, work which Ms French is unable to perform, such as lifting, restocking refrigerators, and generally, preparation and cleaning up activities. Accordingly, she could not be usefully employed during such periods.

· The Club has accommodated Ms French with her work restrictions by providing work at times when she can be usefully employed and by arranging for other employees to assist her by undertaking those tasks which she cannot perform.

· She cannot be reasonably accommodated to work outside of 4 hours per day as she would be unable to carry out the relevant requirements of a bar attendant's duties to be performed during those extended hours."

18 In her response to the President (Tab 4), the Applicant disputed much of what was said by the Respondent. In particular, she claimed that correspondence to the Respondent from the GIO, dated 13 June 1989, indicated that it was the opinion of the Medical Department that she would be capable of performing her normal pre-injury duties for 4 hours per day and that this could be increased by one hour per day each week until she was working a full day. (The GIO's letter became Exhibit D of the Substantive Hearing.)

19 Neither the hours complaint nor the paronychia complaint was able to be resolved by conciliation. Accordingly, on 21 August 1996, the President referred both complaints to the Equal Opportunity Tribunal ("the EOT").

20 The EOT held an inquiry into the matter by receiving both oral and documentary evidence. The parties were legally represented, the Applicant by Ms N H Rudland of counsel and the Respondent by Mr R S Warren of counsel. On 13 February 1998, it ordered that "the complaint" be dismissed. Reasons for the decision were published on 25 February 1998.

21 The EOT did not inquire into the paronychia complaint. It appears that this occurred as a consequence of an agreement between the parties' legal representatives that the paronychia complaint was "out of time" (in that the relevant incidents of discrimination preceded December 1994) and, therefore, that an estoppel operated from pursuing the complaint before the Tribunal. (In fact, the President had accepted the complaint notwithstanding that it was "out of time".)

22 The Applicant appealed to the Supreme Court on various questions of law. The appeal was heard by Bell A J on 18 June 1998, with reasons delivered on 23 June 1998. The appeal was dismissed.

23 The Applicant then appealed to the New South Wales Court of Appeal. She was represented by Ms S W Winters of counsel. The Respondents were represented by Mr R J Buchanan QC and Mr Warren. On 18 June 1999, the judgment of the Court was delivered by Giles JA (with Priestley JA concurring and Meagher JA dissenting). The Court set aside the EOT's dismissal of the hours complaint and ordered that the matter be remitted to the EOT for the hours complaint to be dealt with according to law : see French v Sydney Turf Club & Anor [1999] NSWCA 195.

24 The Court of Appeal held that the EOT had not erred in law in acting on the agreement entered into between the parties' legal representatives, notwithstanding the error it made in relation to the complaint being out of time. Accordingly, the paronychia complaint was not remitted to the EOT.

25 Although the Equal Opportunity Tribunal has now been abolished, the general savings provision (clause 17, Schedule 5 to the Administrative Decisions Tribunal Act 1997 ("Tribunal Act") permits the inquiry into the remitted complaint to be completed by the Administrative Decisions Tribunal ("the Tribunal").

26 In due course, evidence in relation to the hours complaint was heard by this Tribunal (differently constituted from the Tribunal which conducted the first inquiry) on 6 March 2001 and 4 May 2001. The Applicant was represented by Ms Winters and the Respondent by Mr Warren. The Tribunal's decision was reserved.

27 By letter dated 8 September 2001, before the Tribunal had handed down its decision, the Applicant notified the Registrar of the Tribunal that she was no longer represented by either Ms Winters or Ms Wright (her former solicitor) and that she would now be representing herself. She also stated in her letter of 8 September that she wished to make an application before the Tribunal to re-open her case. For various reasons, the application was not able to be heard until 12 February 2002.

Material Relied Upon by the Applicant

28 The Applicant tendered a large amount of material in support of her submission that the interests of justice require that her case be re-opened. The material is loosely grouped, in the order handed up by the Applicant, as Exhibits A - O.

29 For convenience, we have categorised the material in the following way:

· Medical Reports written by Dr Bencsik, dated 14 July 1998 (Exhibit A), Dr Honner, dated 28 April 1998 (Exhibit B) and Dr Wilding, 23 May 1989 (Exhibit J).

· General comments, submissions and documents forwarded to the Tribunal Registry (Exhibits C, D, E and O).

· Observations recorded by the Australian Liquor Hospitality and Miscellaneous Workers Union ("the Union") of various bar attendants (including the Applicant and Ms Freebody) at Canterbury racecourse on 20 August 1997, 1 April and 8 April 1998 (Exhibits F and H).

· Correspondence with the Respondent (Exhibits G, H, I M and O).

· Correspondence with the Union (Exhibits I, J and K).

· Correspondence with the Department of Gaming and Racing (Exhibit G).

· Correspondence with Mr R Face, Minister for Gaming and Racing (Exhibit M).

· Correspondence with WorkCover (Exhibits H and M).

· Case Note on the Applicant by CRS Australia (Exhibit L).

· Correspondence with the NSW Thoroughbred Racing Board (Exhibit M).

· Correspondence with Ms Wright, the Applicant's former solicitor (Exhibit I).

· Correspondence with Community Justice Centres (Exhibit M).

· Photographs depicting the bar area at Canterbury (Exhibit N).

· Miscellaneous documents including statutory declarations made by both the Applicant (Exhibits G and J) and Mr Moore (Exhibit I).

30 With the exception of the medial reports written by Dr Bencsik and Dr Honner, the Applicant concedes that the proposed evidence was either in the possession of her legal representatives, or available to them, at the time of the hearing on the substantive issues.

The Respondent's Position

31 With the exception of Dr Bencsik's report, the Respondent was unaware that the Applicant wished to present the proposed additional evidence until the day of the hearing. Mr Warren made the following submissions:

· While the Tribunal has a discretionary power to receive additional evidence, it would not be in the interests of justice to exercise the power in the Applicant's favour.

· With the exception of Exhibits A and B, all the material was available to the Applicant's legal representatives at the time of the hearing on the substantive issues.

· Ms Winters, the Applicant's counsel at the time, is a competent and very experienced practitioner in this jurisdiction, and it is reasonable to assume that the decision not to call the additional evidence was made for legitimate forensic reasons.

· Exhibits A and B can only be relevant to the question of damages. They cannot take the Applicant's claim for damages any further than the existing evidence.

· In relation to Exhibits C - O, although he had not had a full opportunity to examine the material, it appeared that a great deal of it was irrelevant to the issues to be determined by the Tribunal. If the Tribunal were minded to allow the Applicant to re-open her case to present Exhibits C - O (or any of them), the Respondent would wish to have an opportunity to make further submissions as to the relevance of the material.

· Considerable prejudice would be occasioned to the Respondent if witnesses, such as Ms Freebody, needed to be recalled. Given that Ms Winter deliberately chose not to cross-examine her on her statements of evidence, when she was specifically made available for that purpose, it would be a travesty of justice to now recall her.

· If the Applicant's case were to be re-opened, the Respondent would unfairly incur additional costs.

Section 73 of the Tribunal Act

32 The Tribunal's procedural powers are set out in s 73 of the Tribunal Act. Relevantly, s 73 provides:

"73 Procedure of the Tribunal Generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

. . . ."

33 We are satisfied that s 73 gives the Tribunal the discretionary power to allow a party to re-open his or her case, even after the hearing has concluded and the Tribunal's decision has been reserved, provided it does so in accordance with equity, good conscience and the substantial merits of the case. This approach is consistent with the views expressed by the High Court, the NSW Court of Appeal and other relevant authorities.

Relevant Case Law

34 The judgment of Clarke JA (which had the concurrence of Mahoney JA and Meagher JA) in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 provides considerable guidance to the Tribunal in relation to the manner in which the discretionary power to re-open a party's case should be exercised. The Court of Appeal was called upon to consider whether to grant an application to re-open the defendant's case for the purpose of calling another witness after the evidence had closed but the hearing had not concluded. The trial judge had refused the application. In allowing the appeal, Clarke JA said at 478:

"The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision [to] not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel."

35 Clarke JA expressly observed that the plaintiff would not have been prejudiced in any way by the grant of the application or been subjected to additional costs. His Honour was of the view that counsel's original decision not to call the witness in question flowed from a misapprehension as to the relevance and admissibility of the evidence rather than a deliberate decision based on tactical grounds. In the circumstances, it was held that the interests of justice would be furthered by allowing the case to be re-opened for the purpose of calling evidence which was clearly relevant to, and may have had an impact on, the issues in the case.

36 Similar views to those expressed by Clarke JA (see para 35 above) were expressed by the High Court in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256. The joint judgment of Brennan, Dawson, Toohey and Gaudron JJ contains the following passage at 266-267:

"It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application . . . But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete . . . or one in which reasons for judgment have been delivered . . . It is difficult to see why, in the former situation, the primary consideration should not be of embarrassment or prejudice to the other side . . . In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called."

37 Many other authorities confirm the existence of a court's power to permit a party to re-open its case at various stages in the litigation before judgment has been given. In the decision of Joyce v GIO (NSW) (21 July 1976 unreported) Sheppard J said:

"The essential principle which I should apply . . . is that I should do justice to the parties."

In exercising his discretion to permit the plaintiff to adduce further evidence after the case had closed, Sheppard J stated:

"I think in arriving at a conclusion as to what I should do I must take very much into account the need to ensure that cases are properly presented and, further, that if risks are taken by counsel consciously, strong reasons must be shown why their clients are, after all, to have a second chance. But I must also take into account the fact that the defendant in this case has expressly disclaimed that any prejudice will be occasioned to it by allowing the evidence in."

38 Similarly, in Bearns v Bearns-Hayes (unreported 4 September 1996) Young J in the Equity Division of the Supreme Court said:

"The application for re-opening is an unusual one. Ordinarily one expects that the Court will be given the first time round the evidence which is available which the lawyers for the plaintiff think should be put before the Court in support of their case, and it is usually only if the evidence is not then available, or is available but is overlooked, that an application is made. However, the principle is wider than this and, as Sheppard J said in Joyce v GIO (NSW) 21 July 1976, unreported but noted in Ritchie's Supreme Court Practice Volume 2 case [13028], the prime consideration is the due administration of justice."

Applying the above principles, Young J allowed the plaintiff to re-open her case to read an affidavit which had been prepared in response to a question he had raised with the parties after reserving his judgment.

39 In Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143 the NSW Court of Appeal refused to exercise its discretion in favour of re-opening an appeal which had been "perfected" some 4 years earlier. Kirby P (as he then was), at 152-154 emphasised that even in cases where the Court's judgment or order has not been perfected, special circumstances must be shown to enliven the Court's jurisdiction because:

"(T)he purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases or simply for the purpose of giving a party the opportunity to present a case to better advantage."

40 In Shannon Luka v Lake Macquarie City Council [1998] NSWLEC 165 Bignold J of the NSW Land and Environment Court was called upon to determine whether allowing the Applicant's case to be re-opened, for the purpose of tendering additional expert evidence on the question of compensation, would amount to an exercise in futility because (as contended by the Council) there were serious misconceptions and deficiencies in the evidence. In determining what was the proper test to apply in the circumstances of the case, Bignold J stated:

"[I]n my respectful opinion, it is considerations of fairness (or as Young J expressed in Bearns v Bearns-Hayes "the prime consideration is the due administration of justice") coupled with the absence of real prejudice to the other party, that explain the decisions to permit a re-opening of the case in Joyce, in Bearns v Bearns-Hayes and in Urban Transit Authority"

41 Bignold J found that the application to re-open the Applicant's case had "in truth" been made before the hearing had concluded because his earlier judgment in the matter had not finally concluded all issues raised in the litigation (the question of the determination of additional compensation on account of any added value in the road improvements had been expressly reserved).

42 His Honour rejected the Council's contentions in relation to the alleged deficiencies in the additional evidence. Applying the guiding principle as to whether the interests of justice would be better served by allowing or rejecting the application, he exercised his discretion in favour of allowing the Applicant to re-open her case.

Relevant Factors in the Exercise of the Tribunal's Discretion

43 Based on the decided cases and s 73 of the Tribunal Act, we consider that relevant factors to take into account in the exercise of the Tribunal's discretion to re-open a party's case, in circumstances where the hearing has concluded but the Tribunal's decision is reserved, include:

· The nature and relevance of the proposed additional evidence.

· The extent to which it could affect the outcome of the case.

· Whether the evidence is important or peripheral to the main issues in the case.

· The reasons why it was not presented at the hearing (if known) eg, whether it was overlooked, the result of error or misunderstanding, or a deliberate tactical decision.

· The nature and extent of the surprise, embarrassment and prejudice (if any) to the opposing party.

· Whether additional costs would be incurred by the opposing party. If so, to what extent.

· Whether reception of the evidence would unduly prolong proceedings and / or require witnesses to be recalled or new evidence to be gathered by the opposing party.

· The extent to which fairness and the interests of justice would be better served by allowing or rejecting the evidence.

Our Findings

44 Having carefully considered all the matters raised by both the Applicant and the Respondent, we are satisfied that the interests of justice would be better served by refusing the application. Our reasons follow:

Exhibits A and B

45 Given that we have no jurisdiction to hear the paronychia complaint, the reports of Dr Bencsik and Dr Honner are only relevant in the sense that at the hearing of the substantive case, the Respondent submitted that, should the hours complaint be substantiated, any damages which might have been incurred by the Applicant were significantly reduced as a result of the Applicant's finger injury (see Exhibit 1).

46 The Respondent's submission was contested by the Applicant, at the substantive hearing. In doing so, she relied on Dr Isaacs' medical report, dated 10 July 1994, which stated the following:

"I examined Ms French on the 14 June 1994.

I was pleased to see that her long standing problem with paronychia has finally cleared completely.

I feel that she is fit to return to work in her previous occupation (bar work)."

(See Exhibit 1, Annexure H, Substantive Hearing).

47 Contrasted with Dr Isaacs' report, the Respondent relied on 2 reports of Dr Patrick, each dated 6 July 1998, wherein he expressed the belief that it was "very likely" that recurrence of the Applicant's symptoms could accompany attempted increase in working hours (see Exhibit 1, Annexure KK, Substantive Hearing).

48 However, subsequent reports written by Dr Patrick stated the likelihood of recurrence somewhat differently. In his report of 10 August 1998, he states:

"Further to my report . . .dated 6 July 1998 regarding Ms Margaret Winifred French, I believe it would be reasonable to state that, at this stage, the chronic paronychia affecting the long finger (right hand), does not in any way affect her ability to work; in fact, if further shifts were offered to her, Ms French believes she would be able to manage.

She would, however, need to continue to remain vigilant in relation to the early signs of development or recurrence of the fungal infection."

(See Exhibit H, Substantive Hearing.)

49 In his further report, dated 1 November 2000, Dr Patrick concludes:

"With regard to symptoms complained of when seen by me on 20 February 1998 (under "present symptoms" on page 2 of my report of 6 July 1998 - item number 5) - it is clear that Ms Margaret French does not believe that if she were to work more than four hour shifts, then symptoms at the middle finger right hand would be likely to flare up.

I would agree, that if she has been symptom free for some six years now, then there is no medical contra-indication to her returning to eight hour shifts of work."

(See Exhibit I, Substantive Hearing.)

50 In his report of 14 July 1998, Dr Bencsik expresses the following views in relation to the Applicant's paronychia complaint:

"[She] I believe would have been fit to return to work from the reports enclosed in June 1994 without causing any safety problems to other people.

. . .

Today she had no evidence of infection and only minor stiffness of the middle finger. There is no indication for her to require any treatment and I would certify her completely fit for the normal part-time bar work which she is now doing." (See Exhibit A.)

51 Although the reports mentioned by Dr Bencsik are not attached to the report which is Exhibit A, the Applicant informed us that it was likely that the reports were those of Dr Honner (Exhibit B) and Dr Wilding (Exhibit J). Dr Honner states in his report of 28 April 1998:

"DIAGNOSIS : The diagnosis for Mrs French is the development of a chronic paronychia in the right middle finger, which in my opinion was due to her activities at work, and this caused her to be off work from November 1993 to September 1994. In my opinion she was completely incapacitated for work in the bar from November 1993 until June or July 1994 and there then appeared to be a couple of months where there was some administrative confusion or misunderstanding which prevented her from returning to work until September 1994 according to her history (our emphasis).

In my opinion she has been fit for her normal job, working 2 days per week at the time of race meetings in a bar.

PROGNOSIS : Her prognosis is fair, paronychia in bar workers can recur, but she has had no trouble since she returned to work in September 1994. At this stage she requires no further specific treatment, and as far as the incident concerned in early 1991 she has reached a stable permanent end point."

52 In our view, neither Dr Bencsik's report nor Dr Honner's report take the case for the Applicant any further than Dr Isaacs' report of 10 July 1994, written some four years earlier. He stated unequivocally that her long standing problem with paronychia had completely cleared. Admittedly, the Respondent relies on Dr Patrick's report of 6 July 1998 to show that it was "very likely" that recurrence of the Applicant's symptoms could accompany an attempted increase in her working hours. However, Dr Patrick's subsequent reports of 10 August 1998 and 1 November 2000 seem to suggest that the likelihood of recurrence of the Applicant's symptoms may have been overstated. The Applicant's evidence at the substantive hearing was that, as of July 1994, the paronychia had cleared.

53 If the Applicant's case is re-opened for the purpose of admitting the two medical reports in question, the Respondent has indicated that it will wish to cross-examine both doctors. Necessarily, this will entail expense for both parties and will prolong the hearing.

54 While the proposed medical reports are relevant to the question of damages, we are unable to say that their reception into evidence would, in the event that the Applicant is able to substantiate her case, lead to a different assessment of damages. Accordingly, we are satisfied that the interests of justice do not require that the Applicant's case be re-opened for the purpose of admitting the reports into evidence.

Exhibits C - O

55 The vast bulk of the documents in Exhibits C - O appear to relate to events from 1995 onwards. Exhibit J is a clear exception in that it includes a report from Dr Wilding, dated 23 May 1989, and a report from the Commonwealth Department of Community Services and Health, dated 10 July 1989. The latter mentioned report is clearly relevant. In fact, it has already been admitted into evidence as Exhibit F of the Substantive Hearing.

56 Dr Wilding states in his report of 23 May 1989 that the Applicant is suffering from "lumbar disc lesion with right sciatica" and that she will be unfit for work from 6 April 1989 - 23 May 1989. Directly following, he adds the comments:

"To return to work as Bar Attendant 4 hours a day for 6 weeks. Not to undertake any heavy lifting, prolonged stooping or bending."

57 The history related earlier in this decision indicates that the Applicant did not return to work until 24 June 1989 (paras 4 - 6 above). Presumably Dr Wilding's certificate related to the 6 week period from 6 April 1989 - 23 May 1989 and was forwarded to the GIO for the purposes of obtaining payment for an 8 hour shift rather than a 4 hour shift. This interpretation is consistent with Exhibit E of the Substantive Hearing, which is a letter from the Respondent's Payroll and Personnel Manager, Mr Bishop, to the GIO, dated 29 June 1989, stating that certificates from Dr Wilding and Dr Bamford were enclosed. (The certificates are not part of Exhibit E.)

58 Dr Wilding's opinion is consistent with that given by Dr Bamford in his "letter" of 21 June 1989, referred to by the Respondent in Tab 3 of the President's Report - Exhibit A) wherein he states:

"The restrictions are that she is now fit for modified duties not involving excessive lifting, stooping or bending."

59 The evidence shows that aside from his certificate of 23 May 1989, Dr Wilding did not forward any further certificates to the Respondent. Instead, the ongoing medical certificates were all written by Dr Bamford (see Exhibit 1, Annexures A - F, Substantive Hearing).

60 Dr Bamford's certificate of 1 August 1989 states that from 5 August - 19 August 1989, the Applicant will be fit for 4 hour shifts only without heavy lifting, stooping or bending (our emphasis). The only other certificate to make any mention of the Applicant's "restrictions" is that dated 7 September 1989, wherein Dr Bamford states that from 19 August 1989 to 25 August 1989, the Applicant was:

"[F]it for modified duties only involving 4 hour shifts avoiding lifting, stooping or bending." (Our emphasis.)

61 We acknowledge the existence of minor differences in the way the Applicant's "restrictions" are expressed in the various medical certificates. Dr Wilding's view for the period he was certifying, was that the Applicant was not to do any prolonged stooping, whereas Dr Bamford's view for the periods he was certifying, was that she not do any stooping. (Both doctors were in agreement that she not do any heavy lifting or any bending.) In our view, nothing turns on this distinction.

62 We do not know why Dr Wilding's certificate was not tendered by Ms Winters. In any event, we are not satisfied that it advances the Applicant's case or that it would make any difference to the outcome of the case. Accordingly, we do not propose to order that the Applicant's case be re-opened for the purpose of receiving Dr Wilding's certificate into evidence.

63 We understand the Applicant to be submitting that many of the documents in Exhibits C - O show that she was unfairly treated by the Respondent's employees. Whilst naturally of concern to the Applicant, we are not satisfied that the material which deals with complaints made by the Applicant against other employees is relevant to the issues to be decided by this Tribunal. Material which falls into this category includes:

· Details of a complaint against Mr McKenzie (one of the Respondent's charge hands) for allegedly physically and verbally assaulting the Applicant on 22 June 1996 (see Exhibits G and H).

· Details of a complaint against Mr Jacobs (described as a "Catering and Liquor Manager" at Canterbury) alleging that he verbally assaulted the Applicant in 1999 (Exhibits I and K).

· Correspondence relating to a written warning given to the Applicant by Mr Michael Kenny, Manager Catering, on 11 October 1999 (Exhibits G, J and I).

64 Exhibit H contains material relating to the personal security of workers behind the bar and various occupational health and safety issues. In our view, this material is of marginal relevance and we are not satisfied that it would affect the outcome of the case.

65 Exhibits H and K contain correspondence between the Respondent and the Union in relation to the Applicant's requests to work a full shift. The Respondent does not say anything in its correspondence to detract from its position that it is unable to offer the Applicant a full shift and goes no further than the written response provided to the President (Tab 3, Exhibit A, Substantive Hearing). Accordingly, in our view, the material takes the Applicant's case no further than the existing evidence.

66 Exhibit F contains observations made by the Union at Canterbury in August 1997 and April 1998, first, in relation to the Applicant's ability to carry out her duties efficiently and secondly, in relation to the duties performed by bar attendants, such as Ms Freebody, who worked a full shift. As we understand it, the Applicant's ability to carry out her duties efficiently (within her "restrictions") is not in issue. In relation to the observations of other bar attendants, we do not know why this material was not put to Ms Freebody. Given that the material was available at the time of the hearing, it is reasonable to infer that Ms Winters made a deliberate decision not to cross-examine her.

67 We accept that if the material were admitted, it would necessitate recalling Ms Freebody. In circumstances where her evidence was unchallenged at the hearing, it would cause considerable prejudice to the Respondent. In any event, we consider that the material is only of marginal relevance to the issues to be determined by the Tribunal and that it is difficult to see how it could affect the outcome of the hearing.

68 We have carefully examined the balance of the material in Exhibits O - C, including all the correspondence referred to in para 29 of this decision. However, we do not consider that the material (including the photographs) takes the case for the Applicant any further than the existing evidence and is generally peripheral to the main issues.

Conclusion

69 We find that the interests of justice do not require that leave to re-open the Applicant's case be granted.

ORDERS

70 The application is dismissed.