1. On 27 August 1996, the Chief Commissioner of the Workers Rehabilitation and Compensation Tribunal, determined, pursuant to the provisions of the Workers Compensation Act 1988, s81A ("the Act"), that a genuine dispute existed with regard to the liability of the respondent to pay compensation to the applicant by way of weekly payments and the cost of benefits under the Act, PtVI, Div2. The learned Chief Commissioner also ordered in respect of any injury suffered by the applicant on 12 March 1996, compensation and the cost of Div2 benefits not be paid.

2. It was common ground between the parties that, whilst employed by the respondent on 12 March 1996 at the Cradle Mountain Lodge, the applicant was required, in the course of her duties, to travel in a van from one part of the resort to another and that, during the course of that journey, whilst passing another vehicle, the van tilted sideways suddenly throwing the applicant against another passenger. As a consequence the applicant sustained some degree of back injury but she did not immediately report the accident or make a claim for compensation, nor did she claim to be disabled for work and continued performing her normal duties without interruption for about a fortnight before making such a claim. On receipt thereof and in accordance with the Act, s81A, the respondent referred the same to the Tribunal alleging that there was a genuine dispute concerning the company's liability to pay compensation.

3. At the hearing of the matter by the Chief Commissioner, no oral evidence was given by any witness. The only documentary material taken into evidence was a report dated 7 June 1996 by Dr Tim Stewart, a specialist occupational physician. In all other respects, the learned Chief Commissioner was informed of relevant facts and circumstances by counsel appearing for each of the parties.

4. Most of the historical facts relevant to the applicant's injury, the nature of her employment and her continuing discharge of work duties for about fourteen days after the accident, were not in dispute, so, in respect of such matters, there could be (and was) no objection to the learned Chief Commissioner taking and accepting counsels' assertions of fact as adequately and appropriately establishing such facts for the purpose of the procedure in which he was then engaged.

5. However, in respect of one matter asserted by Mr Verney, counsel for the respondent, there was a clear dispute. The relevant passage in Mr Verney's address was as follows:

"Mr Commissioner, my instructions are that during that two week

period, as I understand it, and since the worker has been

observed on several occasions acting in a way or performing

tasks which to us appear inconsistent with someone who is

claiming to be unfit for work because of an injury to the back.

My instructions are that she has been observed, for want of

better terminology and putting it somewhat colloquially,

'horsing around on crutches' in a manner which does not befit

someone who is complaining of a bad back.

COMMISSIONER: You've lost me slightly Mr Verney. When is this

supposed to have happened?

MR VERNEY: My instructions are, sir, that it happened not long

after the worker went to see her GP.

COMMISSIONER: Right. Following the 26th March?

MR VERNEY: Yes, that's my understanding; I can't be more

specific than that at the moment.

COMMISSIONER: I see.

MR VERNEY: In addition since the 26th she has been observed

playing darts and my instructions are that she plays competitive

darts with an RSL Club. And also I understand that she may have

been observed assisting her bricklayer boyfriend in performing

tasks consistent with a brickies' labourer. Again we say that

that is all inconsistent with someone claiming a back injury.

COMMISSIONER: Are you saying the employer has had a loss

assessor, a loss adjuster, investigate this matter?

MR VERNEY: Yes. Yes.

COMMISSIONER: And has received their report?

MR VERNEY: Yes.

COMMISSIONER: And the report contains these sort of

allegations."

6. The assessor's report referred to by Mr Verney was not produced and no servant or agent of the respondent company was called to give evidence of having received such a report or of having formed any opinion that the applicant's claim for compensation should be contested as a result of that report.

7. In the course of his submission to the learned Chief Commissioner, counsel for the applicant, Mr J Walters, made the following observations:

"... I would also point out that my learned friend has referred

to reports but there has been no evidence tendered to the

Commission today, those reports have not been tendered ...

COMMISSIONER: Are you talking about the loss assessor's

reports?

MR WALTERS: Yes. Now what we're dealing with are hearsay

allegations. Those, in my respectful submission, are not

sufficient to allow you, Commissioner, in my respectful

submission, to find a genuine dispute pursuant to S 81(a). To

that end I refer you to the decision of Wright J in Edgells and

Birds Eye v Costello B4 of 1995, and I don't wish to quote it

verbatim but it does point out that there must be a basis upon

which an employer comes to dispute liability. In my respectful

submission in this case we're dealing with a situation where

there are allegations which may lead to a belief, as you say, as

to credit. But there are no allegations or bases in evidence

which lead to a conclusion that there may be a dispute under the

terms of the Workers Rehabilitation and Compensation Act

(1988)."

8. Later on the learned Chief Commissioner asked Mr Walters:

"COMMISSIONER: Would you accept to me that Doctor Stewart had

access to the loss assessor's report, Mr Walters?"

"I'm not in a position to make any admissions in regard to the

loss assessor's report."

9. It is plain that the allegations allegedly contained in the loss assessor's report were at the core of the respondent's assertion that it genuinely disputed the applicant's claim, but it is equally clear that the actual content of the report was not established either by its production for inspection by the learned Chief Commissioner and counsel for the applicant or by any other means.

10. The identity of the assessor was not disclosed. His methods of observation or inquiry were not disclosed. Whether the behaviour of the applicant allegedly referred to in the report was observed by the assessor or reported to him by someone else, was not disclosed. It was, by any standards, the flimsiest of material. It was, at best, hearsay, once removed and possibly twice or even three times removed. The reliability of the allegations could not be tested but, more importantly, in the present context, the extent, if any, to which the report may have underpinned the respondent's decision to contest the applicant's claim for compensation cannot be determined.

11. On 27 August 1993, the learned Chief Commissioner made the determination and order referred to in the opening paragraph of this judgment. His reasons were as follows:

"In this case Mr Verney who appeared for the employer submitted

to me that a genuine dispute existed in relation to the question

of liability to pay compensation under the Act. The main

grounds for dispute were based around a factual investigation

undertaken by a firm of loss assessors and a medical report

produced from Dr Stewart the occupational physician.

The issues raised in the loss assessor's report lead the

employer to question whether or not the worker was seriously

incapacitated as a result of any alleged injury although they

conceded that there was an incident which gave rise to a claim

for compensation being made. They point to the two week period

that elapsed from the date of the alleged incident to the first

presentation of general practitioner and subsequent making of

the claim form. They point to allegations contained within the

investigation report which indicate that the worker was 'horsing

around' on crutches, had been playing darts and may have been

brick laying. They also point to the inconsistency between the

medical certificates and their information that the accident

happened one day after that contained within the medical

certificates and the claim form.

Mr Walters who appeared for the worker however contended that

the employer was being frivolous and vexatious and referred me

to Edgells Birds Eye v Costello B4/1995. He said there were no

allegations before me, that is properly before me, upon which I

could find that there was a dispute in the absence of further

evidence. He submitted to me that the issue of causation was

quite clear and there was no basis for a genuine dispute finding

in those circumstances.

Although I consider the case to be marginal and what I described

as 'borderline' I was satisfied that according to the tests laid

down in De Saye's case there had been appropriate enquiry and

consideration given by the employer to this matter and that on

the balance of probabilities I was satisfied they were not being

frivolous or vexatious about it. The concerns that they have in

relation to the report they have received from the loss assessor

indicate that they do have misgivings as to whether or not the

injury was a compensable one, although as I pointed out to them

it would appear as if Dr Stewart was supporting the worker in

the sense that according to the version given to him there had

been an initial incapacitating event. The real question open to

the employer however was why that did not incapacitate the

worker straight away. The worker explained that she continued

to work although suffering from pain which increased to the

point where it became incapacitating. Given the other matters

that the employer raised the credit of the worker was brought

into question.

I did suggest however that the employer carefully consider its

position in relation to this matter should it go much further.

There appears to me ample opportunity to compromise the matter

and settle it. In the interim a genuine dispute exists and I

determined that it did and that weekly payments and the cost of

benefits not be paid."

12. The applicant has now appealed against that determination and order. The grounds of appeal are as follows:

"1 The learned Chief Commissioner erred in fact and/or in law

in ruling a genuine dispute existed pursuant to Section 81A of

the Workers Rehabilitation and Compensation Act 1988.

2 The learned Chief Commissioner erred in law and in fact in

failing to give any or adequate weight to the admission by

counsel for the Respondent that the Applicant was injured during

the course of her employment on the 12th of March, 1996.

3 The learned Chief Commissioner erred in fact and in law in

acting upon submissions of counsel for the Respondent concerning

a loss assessors report which was neither tendered or admitted

as evidence.

4 The learned Chief Commissioner erred in law in acting upon

submissions of Counsel for the Respondent without any other

material being put before the learned Chief Commissioner upon

which the Chief Commissioner could base a belief of a genuine

dispute pursuant to Section 81A of the Workers Rehabilitation

and Compensation Act 1988.

5 The learned Chief Commissioner erred in fact and in law in

taking into account irrelevant considerations in relation to

Section 81A of the Workers Rehabilitation and Compensation Act

6 The learned Chief Commissioner erred in fact and in law in

failing to give any or any adequate reasons for his ruling of a

genuine dispute pursuant to Section 81A of the Workers

Rehabilitation and Compensation Act 1988.

7 The learned Chief Commissioner erred in fact and in law in

determining there had been due enquiry and consideration by the

employer when no evidentiary foundation had been established to

show such enquiry and consideration.

8 The learned Chief Commissioner erred in law in failing to

afford the Applicant procedural fairness by denying her the

opportunity to be properly heard in that allegations adverse to

her allegedly contained within the loss assessor's report were

not disclosed and she was not given a reasonable opportunity to

contradict or comment upon that adverse material."

13. Ground 8, which was argued separately from the other grounds, can be dealt with first.

14. This ground seems to have its genesis in the observations of Zeeman J in White v FAI General Insurance Co Ltd, A29/1991 at 4 where he said:

"Section 49(1) gives considerable latitude to the Commissioner

in determining proceedings before him. He is not bound by the

rules of evidence. He may inform himself on any matter in such

manner as he thinks fit. He is required to conduct the

proceedings with as little formality and technicality and with

as much expedition as the requirements of the Act and a proper

consideration of the matters to be resolved permit. However,

those provisions provide no warrant for not adhering to basic

rules of procedural fairness."

15. Zeeman J was referring in the first sentence to the Act, s49 which deals with evidence and procedural matters before the Tribunal (previously the Commissioner) and I will return to that section shortly, but the important point which his Honour was making, and with which I respectfully agree, was that an allegation adverse to a party to a dispute should be disclosed to that party and he or she should be given an effective opportunity to challenge any such material before a decision involving consideration of that material is made.

16. The extent of such a requirement and the steps to be taken in furtherance of that obligation by the decision maker will vary depending upon the nature of the issue in dispute; see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585.

17. In the present case however, the applicant was informed of the nature of the allegations said to have been made by the loss assessor. The applicant's counsel did not seek to view the report, to obtain further details of the allegations or to rebut the allegations by evidence from his client or some other witnesses. He chose to rely upon the nature and brevity of the allegations to support his submission to the learned Chief Commissioner that a finding could not properly be made based upon such flimsy material. It therefore seems to me that there was no procedural unfairness in those circumstances. Counsel for the applicant was aware of the allegations and was accorded an opportunity to meet them. In my opinion, ground 8 cannot succeed.

18. The other seven grounds of appeal, although making discrete complaints as to alleged errors by the learned Chief Commissioner, were not argued separately, but were subsumed within the general contention that the utterances by counsel as to the existence and content of the loss assessor's report was not material upon which a finding could properly be made that a genuine dispute as to liability existed. Mr Walters conceded that if an appropriate officer of the respondent company had given evidence before the learned Chief Commissioner, and identified the report and its contents as being material upon which a decision was made by the respondent to contest liability, a proper basis for a finding that there was a genuine dispute may have existed. Having regard to the meaning attributed to the phrase "genuine dispute" by the Full Court of the South Australian Supreme Court in State of South Australia v Wall (1980) 24 SASR 189, affirmed and followed in Schilter v South Australian Institute of Technology (No 1) (1982) 31 SASR 316 and followed in this State in FAI General Insurance Co Ltd v De Saye A23/1992, Edgell Birds-Eye v Costello [1995] TASSC 10; (1995) 4 Tas R 319 and Griffiths v Devonport Youth Accommodation Services Inc A39/1996, this concession was proper and appropriate.

19. In considering the applicant's submissions it is necessary to start with the Act, s49(1), which provides:

"49 (1) The following provisions apply to a proceeding before

the Tribunal:

(a) the Tribunal is not bound by the rules of evidence but may

inform itself on any matter in such manner as it thinks fit;

(b) the proceeding shall be conducted with as little formality

and technicality, and with as much expedition, as the

requirements of this Act and a proper consideration of the

matters to be resolved permit."

20. As Zeeman J observed in White v FAI (supra), this provisions gives "considerable latitude to (the Commissioner) in determining proceedings before him". However it does not give the Tribunal carte blanche to act in a completely unfettered manner, in my opinion. At the very least the Tribunal must have before it evidence which is relevant to the issue in dispute. Material which is not logically capable of bearing upon that issue cannot be regarded as relevant evidence.

21. It appears to me that it is implicit in s49(1) that the material used by the Tribunal must be capable of being regarded as evidence (see Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at 537). This conclusion is strengthened by a consideration of the Act, s56(1) which provides:

"56 (1) In a proceeding before the Tribunal

(a) evidence may be taken on oath or affirmation;

(b) subject to any lawful claim or (sic) right of (sic)

privilege, the Tribunal may, by notice in writing served on a

person, require that person to appear before it to give evidence

and to produce such documents, books, and things (if any) as are

specified in the notice; and

(c) evidence may be given orally or in writing."

Section 56(1) does not seem to contemplate that information may be acquired by the Tribunal which does not meet the description of "evidence".

22. Nonetheless "evidence" is a very broad concept. Cross on Evidence, 5 ed, at 1 says, "the evidence of a fact is that which tends to prove it something which may satisfy an enquirer that the fact exists." This is a definition consistent with the judgment of Isaacs and Gavan Duffy JJ in Cheney v Spooner (supra). Hearsay evidence would be receivable by the Tribunal. Whilst sometimes cogent and reliable, hearsay is frequently of little, if any, weight, but that is not the determinative factor. So long as the material relied upon satisfies the test of being evidence rather than a mere supposition, guess or intuitive hypothesis, it may be received by the Tribunal. It must also be remembered that s49(1)(b) obliges the Tribunal to give "a proper consideration" to the issue to be resolved. In the present case, the source and content of the allegation relied upon by the learned Chief Commissioner was never identified. At best, he had a mere summary of the principal adverse allegations which someone had seen fit to make against the applicant. It was not incumbent on the learned Chief Commissioner to require the person at the source of this information to repeat it before him but, had this been done, he may well have had a sufficient basis for holding there was a genuine dispute, even in the absence of an officer of the respondent saying he had given weight to the report in deciding to contest the claim. The evidence of the alleged behaviour of the applicant may have been sufficient per se to enable the learned Chief Commissioner to infer the genuineness of the dispute. Had an officer of the respondent given evidence before the Commissioner and given hearsay evidence as to the nature and content of the report, that also may have been sufficient for the learned Chief Commissioner to have concluded that there was a genuine dispute. But it seems to me that where, as here, the fact of disputation and the supposed basis of that disputation are merely reported to the learned Chief Commissioner by counsel for the employer, that is not evidence and a fortiori it is not evidence upon which any Tribunal of fact, giving "proper consideration" to the issue involved, could reach a determination adverse to the applicant.

23. I am therefore of opinion that the motion to review should be allowed and the determination and order of the learned Chief Commissioner should be set aside.

24. Counsel for the respondent properly conceded that without placing reliance upon the material presently under challenge, the learned Chief Commissioner could not properly conclude that there was a genuine dispute as to his client's liability but he did submit that on the basis of Dr Stewart's report there was a dispute as to the severity and duration of the applicant's disability. However such a dispute is not an issue which can be determined by the Tribunal in the present proceedings which were instituted under s81A(1). A separate application seems to be necessary under s81A(5).

25. As a result, it seems to me that the present matter should not be referred back to the Tribunal for further consideration or rehearing. On the material before the learned Chief Commissioner, a determination and order favourable to the respondent should not have been made. The applicant should have been successful.

26. The appropriate method of disposition is therefore as follows:

1 The determination that a genuine dispute exists is set aside.

2 The order that weekly payments and the cost of benefits not

be paid is set aside.

In lieu thereof:

(a) it is determined that a genuine dispute does not exist;

(b) it is ordered that the respondent make weekly payments and

the cost of benefits from 26 March 1996.