Barneveld v Hume City Council [2004] VSC 350

Supreme Court of Victoria|2004-09-10|Before: Redlich J

Accident Compensation - Worker's compensation - Appeal from Magistrates' Court - Dismissal by Magistrate of claim for compensation pursuant to s.82(1) Accident Compensation Act 1985 - Whether deemed acceptance of claim under s.109(1) of the Act - Whether Notice of Rejection a sham and invalid. Credibility of appellant - Adverse findings - Significance of finding as to appellant's credit to other issues - Opinion of psychiatric injury by health practitioners dependant on appellant's credit - Clarity of Magistrate's reasons.

The appeal was instituted by ex parte application made by the appellant to Master Wheeler on 19 December 2003. The application was adjourned to the Practice Court and on 23 December 2003 the matter was adjourned for hearing before Master Wheeler on 4 February 2004. On that date the Master made orders framing four questions of law.

(1) Whether any reasonable Magistrate could have failed to find that the Appellant suffered injury arising out of or in the course of her employment and that employment was a significant contributing factor on the evidence of the Respondent's lay witnesses as to the events in the work place and the unanimous medical/psychological opinion to the effect that -

(i) the Appellant suffered stress, anxiety and depression resulting from events in the course of her employment; and

(ii) the Appellant was to the date of hearing, totally incapacitated; and

(iii) the Appellant had incurred reasonable medical and like expenses within s 99 of the Accident Compensation Act 1985.

(2) Whether the learned Magistrate erred as a matter of law in applying findings of credit made against the Appellant to the determination of the ultimate issues in the proceeding;

(3) Whether the learned Magistrate erred by speculating contrary to the evidence and in the absence of any issue made by the Respondent or by cross-examination either of the Appellant or her medical/psychological witnesses that -

(i) there were other factors which the general practitioner looked at which the Magistrate was not privy to;

(ii) the general practitioner had lost the opportunity to identify other stresses;

(iii) members of the Appellant's family were not interviewed and were not called and could have given evidence which would have helped her claim.

(4) Whether the learned Magistrate erred in failing to find that the Appellant's claim was deemed accepted within the meaning of s 109(1) of the Act.

The appellant was born 28 April 1970. She had been employed by the Hume City Council, for approximately ten years prior to 9 October 2002 initially as a mothercraft worker and for the last seven years as a team leader and co-ordinator at the Sunbury Child Care Centre responsible for up to 17 staff.

The appellant instituted proceedings out of the Magistrates' Court at Melbourne claiming that she had suffered anxiety, depression and mental stress as a result of her employment with the Hume City Council. In her particulars she stated that her injuries were sustained during the period of six weeks prior to and including 9 October 2002 when she suffered physical and mental stress arising out of her employment. She complained that she had been incapacitated for work from 10 October 2002 and had no current work capacity within the meaning of the Act.

On 30 October 2002 the plaintiff submitted a claim to the respondent for weekly payments of compensation and medical expenses. The respondent by notice dated 6 December 2002 rejected the plaintiff's claim for compensation pursuant to s.109 of the Act.

The respondent's Notice of Rejection stipulated that the appellant's claim was rejected on the grounds that her injury did not arise out of or in the course of her employment, that her employment was not a significant contributing factor to the claimed injury and that her claimed injury was caused by a stress of a type which did not create an entitlement to compensation under the Act by virtue of s.82(2A). The notice was accompanied by reasons for decisions to which I shall subsequently refer.

The appellant in her particulars of claim pleaded that the Notice of Rejection was invalid and of no effect. She claimed that the respondent relied upon medical material from one, Dr Fail who, in a report dated 29 November 2002 expressed the opinion that the appellant was suffering from an acute adjustment reaction. Dr Fail considered that the appellant's employment was a significant contributing factor to her injury.

The respondent in its defence did not admit the appellant had suffered compensable injury or that she was incapacitated for work or that any alleged incapacity for work was materially contributed to by the alleged injury. The respondent denied that the Notice of Rejection was invalid.

At the commencement of the hearing the respondent abandoned the defence which relied upon s.82(2A) of the Act. In stating its defences the respondent put in issue the extent of the appellant's injury and incapacity, whether or not the appellant had suffered injury arising out of or in the course of her employment and whether her employment had been a significant contributing factor to such injury. It stated that the appellant's credit was in issue in relation to all of these matters.

Mr Kennan S.C. who appeared with Mr Batten for the appellant relied heavily upon the following uncontested facts in support of the first three questions of law. Those facts were to the following effect:

"The appellant as team leader was in charge of some 17 people at the child care centre. On or about the 10th September 2002 information was provided in the work place that there may be a downsizing in student numbers with possible staff reductions. On the 15th September there was an announcement by the respondent about downsizing the Centre. The appellant's superior, Ms Barletta, asked the plaintiff to draft a letter to parents concerning the announcement of downsizing. This was one of a number of discussions which the appellant had with Ms Barletta between the 10th September and the 8th October 2002. Funding for the Centre to enable it to expand and to avoid downsizing had been the subject of discussion for some time. Ms Barletta had said the downsizing could be up to five children and one staff member but that other jobs might be saved if people were relocated to Broadmeadows. The staff at the Centre were anxious about the impact of the downsizing of the Centre. There was rumour going around in the community that the respondent was going to close the Centre. On the 10th September the appellant attended a staff meeting to talk to the staff about such possibilities. On the 8th October a public meeting took place at Sunbury. The appellant was upset and distressed at the public meeting. On the 9th October there was a team meeting which Ms Barletta and the appellant attended. There was tension between them and the appellant appeared to be upset at that meeting. The appellant was angry and emotional. Ms Barletta spoke to the appellant outside and told the appellant her behaviour was inappropriate. The appellant then returned to the meeting and remained silent. The appellant attended her medical practitioner, Dr Coha the following day and was diagnosed as suffering with stress and anxiety and was certified unfit for work." (the uncontested facts)

The hearing which spanned some three days saw the appellant cross-examined at length about the events of 8 and 9 October 2002. Her account of the events of that period were contradicted by numerous witnesses called on behalf of the respondent.

Questions 1 and 2 - the Magistrate should have found the appellant suffered injury arising out of or in the course of her employment

Questions 1 and 2 were for convenience argued together. These questions were treated by the parties as raising the contention that the Magistrate was constrained by the evidence to find that the appellant had suffered a compensable injury under the Act. The parties proceeded upon the basis that these questions were questions of law within the meaning of s.109 Magistrates' Court Act 1989. No attempt was made in oral argument to put a contrary position. As it has not been the subject of argument before me, I do not stay to consider the reservations expressed by Brooking JA in Ericsson (Australia) Pty Ltd v Popovski[1] that a question of this nature may not constitute a question of law.

Counsel for the appellant submitted that on the uncontested facts the learned Magistrate was bound to find that the appellant had suffered the injury in the course of her employment and that the conflict between the appellant and the respondent's witnesses was of no moment to a determination of the ultimate issues. The respondent submitted that the appellant's credit was critical to the resolution of the issues before the Court.

In accordance with the appellant's particulars of claim it was sufficient, the appellant submitted, that the evidence established that she suffered a psychological reaction to the events of 8 and 9 October 2002. The uncontested facts established that the appellant had appeared upset, distressed and emotional at the meeting of 9 October 2002. Such evidence it was contended should have satisfied the Magistrate that there was a proper foundation for the various medical opinions and the psychologists' opinion (the health practitioners) tendered in evidence that the appellant had sustained a psychological reaction as a consequence of these events in the work place. It was argued that the Magistrate's acceptance of the respondent's witnesses' account of the events in preference to the appellant's account did not preclude a finding which the Magistrate should have made that those events caused the appellant's stress, anxiety and depression.

An appeal pursuant to s.109 Magistrates' Court Act 1989 is concerned only with questions of law and it will not be sufficient to demonstrate that the Magistrate was wrong on a finding of fact or that a judge would have come to a different conclusion as to the primary facts found by the Magistrate. An appellate court must observe the natural limitations that exist in appellate proceedings. Pledge v Road Traffic Authority.[2]

The work pressures to which the appellant was exposed could contribute to a stress disorder. The appellant must demonstrate that the Magistrate was constrained to find that they did so. To succeed upon such grounds the appellant must establish that the learned Magistrate was bound as a matter of law, acting upon the uncontested facts and the medical evidence to conclude that the appellant had sustained an injury in compensable circumstances.[3] Where the aggrieved party contends on appeal that the tribunal of fact was bound to make a particular decision on the evidence it must show that it was "the only possible decision that the evidence on any reasonable view can support".[4] The burden of proof lies upon the appellant to demonstrate that the evidence was such as necessitated an affirmative finding by the Magistrate which was not made. This will be a heavy burden in cases where the refusal to make the finding sought is grounded in a refusal, open to the Tribunal, to accept part of the evidence. [5]

The respondent submitted that the learned Magistrate, having formed the view that he did concerning the appellant's credibility was not bound as a matter of law to accept the opinion evidence of those health practitioners who provided support for the appellant's claim. The respondent pointed to the appellant's account given to the medical practitioner in which she used terms such as being "belittled", "harassed", "scared", "overwhelmed", "humiliated", "demoralised", "intimidated" or "shattered" by the events of 8 and 9 October. The reports of Dr Coha, Dr Wood, Dr Kaplan, Dr Fail and Ms Mills were all based, the respondent submitted, on similar accounts of how the appellant alleged she had been oppressed and mistreated by Ms Barletta. The respondent submitted that the appellant's credit had been so damaged that the Magistrate was not prepared to accept the opinion evidence of the medical witnesses, based as they were upon an acceptance of the appellant's account of her symptoms and the history of what had produced them.

Medical opinion based upon an account by a witness as to his or her symptoms may have little or no probative weight where the tribunal of fact determines that such witness is not honest and reliable.[6] The approach of the tribunal of fact will be unexceptionable where the tribunal of fact, having concluded that a witness was untrustworthy and unreliable rejects the opinions expressed by medical practitioners on the ground that the information given to them by the witness could not be trusted or relied upon.[7]

It is not in dispute that much of the three days of the hearing before the learned Magistrate concerned the events of 8 and 9 October 2002. Although the pleadings were expressed in broader terms, the appellant's case was presented on the basis that these events constituted the primary cause of the appellant's injury. The respondent submitted that it was not without significance that the appellant had called no family member or other lay witness to testify as to her mental or emotional condition prior to or after these events. The respondent submitted that the Magistrate was entitled to draw the inference, which he did, that had such witnesses been called they would not have assisted the appellant's case.[8] It was submitted that the learned Magistrate was entitled to take into account the fact that no evidence was called by the appellant from family members to provide support for her allegations regarding the manner in which she had been adversely affected by the events of 8 and 9 October 2002.

Mr Gillies Q.C. who appeared with Mr McKenzie on behalf of the respondent submitted that once the Magistrate had rejected the appellant's florid account of the events of 8 and 9 October 2002 it was but a short step for the Magistrate to conclude that the appellant had not discharged the burden of proof in satisfying him that she had sustained injury. Based upon serious falsehoods in the appellant's account, the respondent submitted that it was clearly open to the Magistrate to find that the history and symptoms provided by the appellant to the health practitioners could not be relied upon, thereby rendering the opinions of little or no value. Each of the practitioners had conceded in cross-examination that they were dependent upon the truthfulness of the appellant's account in forming their opinions.[9] It had been established during the course of the hearing that there was no objective investigation or test which could be conducted in order to assess the nature and extent of her alleged psychiatric injury.

Counsel for the appellant, in answer to this submission relies on the evidence given by some of the practitioners that they made observations of the appellant. What they observed and its significance to the opinions they formed was not however the subject of any evidence. In Whisprun Pty Ltd v Dixon[10] Gleeson CJ, McHugh and Gummow JJ were to observe in response to the identical argument:

".....The Court of Appeal held that the trial judge had erred in failing to consider whether Ms Dixon had symptoms that were observable to medical practitioners. The Court said that if such symptoms existed, then her case did not depend entirely on her credibility. However, with great respect to their Honours, none of these symptoms was "objective". They depended on what Ms Dixon told the doctors....."[11]

The Magistrate's findings as to the appellant's credibility as to the events of 8 and 9 October 2002 were not attacked. It was clearly open to the Magistrate to form the view that he did concerning her account of those events.

That is not to say that an appellate court is precluded from concluding that in the light of all of the evidence there was too fragile a basis to support a finding by the tribunal of fact that a witness was unreliable.[12] But a challenge to the primary fact finders conclusions as to credit will normally require the identification of incontrovertible or uncontested facts showing error or some misuse of the advantage in seeing the witness possessed by the trier of fact. Voulis v Kozary[13]; Jones v Hyde[14]; Devries v Australian National Railway Commission[15]; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)[16]; Fox v Percy[17]; Hoyts Pty Ltd v Burns[18]; Shorey v PT Ltd[19].

In the present case the issue raised on appeal is not whether the appellant was proved to have been untruthful or unreliable but the significance of the demonstrated falsehoods to the issues. The weight which the tribunal of fact attaches to the testimony of a witness will often not be capable of rationalisation beyond the statement that the tribunal does not accept what the witness says. Soulemezis v Dudley (Holdings) Pty Ltd[20]. As Nettle J observed in Day v Electronik Fabric Makers (Vic) Pty Ltd & Anor:

".....The weight which a judge gives to a particular fact may be affected by his experience of the significance of that fact in the order of things. Thus his reasons in a particular case may partake as much of intuition based on experience as on formal and deductive reasoning."[21]

There will be cases in which false testimony, viewed within all of the circumstances of the case impels the conclusion that the false testimony should be viewed as immaterial to the ultimate issues requiring resolution. In Whisprun Pty Ltd v Dixon, Kirby J listed the following circumstances in which an appellate court has disturbed findings of fact based upon an assessment of credibility:

"[98] In SRA[1999] HCA 3; , (1999) 160 ALR 588 at 620-2 [93]; [1999] HCA 3; 73 ALJR 306 at 331-332, I listed a number of cases, illustrated by decisions of this and other courts, in which, despite credibility findings, appellate intervention had occurred and been upheld. As I pointed out in that case, the instances cited were `by no means exhaustive'. SRA [1999] HCA 3; (1999) 160 ALR 588 at 620 [93]; [1999] HCA 3; 73 ALJR 306 at 331. They included cases (1) where the primary judge's conclusion, although expressed in terms of credibility, was `plainly wrong' as demonstrated by incontrovertible facts or uncontested testimony; eg, Voulis [1975] HCA 44; (1975) 180 CLR 177; Gray v Motor Accident Commission (1998) 196 CLR 1 at 36-37 [105], 51-2 [149]; 158 ALR 485 AT 513-15, 525; Trawl Industries (1992) 27 NSWLR 326 at 349-50; (2) where the conclusion was based on evidence wrongly admitted, occasioning a substantial miscarriage of the trial; cf Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 at 224; (3) where the reasons, going beyond credibility, indicated a consideration at trial of irrelevant matters or a failure to weigh all relevant issues; Gray (1998) 196 CLR 1 at 37-8 [105], 51-2 [149]; 158 ALR 485 at 513-15, 525; Watt v Thomas [1947] AC 484 at 487; [1947] 1 All ER 582 at 586-7 per Viscount Simon; (4) where the circumstances in which evidence was given, relevant to credibility, was unsatisfactory; Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 92; or (5) where the primary judge had made it plain that credibility considerations or impressions were not determinative for the judgment in question. Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 436-7; [1983] HCA 5; 45 ALR 265 at 274-6. [99] There were two further categories that I mentioned in SRA. They are relevant to the present appeal. They were: (6) where the credibility determination `leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding' SRA [1999] HCA 3; (1999) 160 ALR 588 at 620 [93.1]; [1999] HCA 3; 73 ALJR 306 at 331. See also Gray (1998) 196 CLR 1 at 37-8 [105]; 158 ALR 485 at 513-15 and (7) where, notwithstanding the credibility finding, the `extreme and overwhelming pressure' The Glannibanta (1876) 1 PD 283 at 287; Paterson [1953] HCA 74; (1953) 89 CLR 212 at 219-20 of the rest of the evidence at the trial is such as to render the conclusion expressed at first instance so `glaringly improbable' Brunskill [1985] HCA 61; (1985) 62 ALR 53 at 57; [1985] HCA 61; 59 ALJR 842 at 844 or `contrary to compelling inferences' Chambers v Jobling (1986) 7 NSWLR 1 at 10 of the case that it justified and authorises appellate disturbance of the conclusion reached at trial and the judgment giving it effect. As Callinan J points out in his reasons, Reasons of Callinan J at [166], the categories of appellate intervention listed in SRA are not closed." [22]

In Whisprun, the trial judge had treated medical evidence in relation to chronic fatigue syndrome as having no evidentiary value as it was based upon acceptance of the respondent's account. The New South Wales Court of Appeal overturned this finding holding that the trial judge should have acted upon the medical opinions notwithstanding the trial judge's findings as to the respondent's credibility. By a majority the High Court allowed the appeal affirming the approach taken by the trial judge. The majority in Whisprun found that the opinions expressed by the medical practitioners were premised upon an acceptance of the respondent's account of her history and complaints. The medical opinions were contingent upon the respondent suffering from the problems of which she complained.[23]

It was open to the Magistrate to treat the appellant's credibility as fundamental to the discharge of her burden of proof that she suffered injury. The Magistrate concluded that the appellant's claim was either fabricated or so exaggerated that he could not be satisfied that she actually experienced the emotions of which she complained. The foundation for the diagnosis of each health practitioner had not been established to the Magistrate's satisfaction. It was on this basis that the Magistrate determined that the appellant had failed to prove that she had suffered an injury or that it arose from her employment.

The Magistrate formed a most unfavourable impression of the appellant. The Magistrate relied upon her demeanour in Court and in a video taken of the appellant on 24 October 2003. He found this to be in marked contrast to her account of her condition which she gave the Court and her health practitioners.

Counsel for the appellant submitted that the Magistrate had fallen into error by taking such matters into account when the issue was whether the appellant had suffered injury on 9 October 2002. In my view it was open to the Magistrate to take such evidence into account. The appellant's claim was not confined to injury on 9 October 2002, but was a claim for continuing incapacity which would justify continuing weekly payments. Such evidence could also be used by the Magistrate as bearing upon the appellant's credit as she had testified as to her ongoing condition. It was a matter for the Magistrate to determine what he made of the video recording and her presentation in Court. He had observed the appellant in the witness box for over a day. Such inconsistency as the Magistrate found between her evidence of her condition and her account to her health practitioners and her presentation on the video and in Court could be relied upon by the Magistrate in rejecting the appellant's account and that given to her doctors. It was open to the Magistrate to conclude that the appellant was not suffering from a condition which disabled her in the way in which she had described.

The adequacy and clarity of the reasons given by the Magistrate were also attacked by counsel for the appellant during the course of oral submissions. It was said that the Magistrate had made no clear finding that the appellant had not suffered psychiatric injury and that this demonstrated that the Magistrate had not understood the way the Appellant put her case.

To have a strong body of evidence put aside without explanation will give rise to a feeling of injustice in the mind of a reasonable litigant.[24] Where the Court is unable to ascertain the reasoning of the decision maker or where because of the manner of expression justice may not be seen to be done, the Court may be more readily disposed to finding error on the part of the decision maker.

The appellant bears the onus on appeal of demonstrating that the Magistrate did not properly consider the case put by the appellant. Such a burden could only be discharged by reference to material which persuasively suggests that the Magistrate failed to discharge his judicial duty of giving proper consideration to the appellant's case.[25]

The reasons for decision were, the appellant argued, consistent with the Magistrate having concluded that the appellant had suffered injury but that it had not arisen out of or in the course of her employment. The appellant contended that the Magistrate had fallen into error by concluding that unless the appellant could demonstrate that she had been oppressed by her supervisor, Ms Barletta, any psychological reaction to these events would not have arisen in or out of the course of her employment. Counsel for the appellant suggested that because the Magistrate had formed the view that the appellant had misconducted herself on 8 and 9 October 2002 and her employer had acted reasonably, he must have concluded that any injury she suffered as a consequence of these events would not be compensable. Had the Magistrate reached such a view, it was common ground that he would have fallen into error as it was irrelevant to an entitlement to compensation whether it was the respondent's supervisor or the appellant who misconducted themselves.

To support the contention that the Magistrate had fallen into error, attention was drawn to the Magistrate's references to "oppression". It was submitted that this revealed that the Magistrate wrongly focussed upon misconduct. The learned Magistrate viewed the claim of "oppression" as relevant to the appellant's asserted post-traumatic stress disorder. Although a number of the practitioners called by the appellant so described her injury it was also referred to as an adjustment disorder or depression. The appellant's psychologist Ms Mills, who was seeing the appellant on a monthly basis and Dr Kaplan both diagnosed the appellant as suffering from post traumatic stress disorder.

The Appellant's submission cannot be sustained. The appellant in her claim form said that she first noticed her injury on 9 October 2002. She stated that harassment and victimisation by the supervisor had caused her injury. The appellant reiterated the same cause in providing a history and recounting her symptoms to each health practitioner. This cause was characterised by the learned Magistrate as "oppression". The appellant had put her case on this basis before the Magistrate. The opinion evidence upon which the appellant relied at the hearing was premised solely on the appellant's account that she had been oppressed by her supervisor and had as a consequence suffered a disabling psychiatric injury. None of the appellant's health practitioners were asked to express an opinion upon whether the events as described by the respondent's witnesses could account for the appellant's alleged injuries. That is to say, the question of whether her conduct and the stress which may have flowed from it was causative of her condition was not the subject of evidence.

Before me, the appellant contended that it was for the respondent's counsel to have explored this alternate hypothesis with the health practitioners. Why that should be so was not made clear. The respondent's counsel had no obligation under the rule in Browne v Dunn[26] to do so. It was for the appellant to explore alternative explanations for her injury if it were thought forensically prudent to do so.

Both parties had been at pains during the course of the hearing to eschew any suggestion that if the appellant was injured as a consequence of these events, her injuries might not be compensable if she rather than the respondent were at fault. During the course of the appellant's case before the Magistrate, her counsel had submitted that it was of no consequence who was at fault in the meetings of 8 and 9 October 2002 as such matters had no relevance to the question of whether her injury arose in the course of her employment. In response, counsel for the respondent had submitted that the appellant's credit underpinned all of the medical opinions. The respondent's counsel again articulated that the issues concerned the question whether the worker had suffered injury and, if so, to what extent and whether the worker had suffered incapacity and, if so, to what extent.[27] In closing the case counsel for the respondent submitted that the medical evidence was only as good as the appellant's credit underlying it.[28] It was submitted to the Magistrate and not disputed before me that the appellant had tied her case to the meeting of 9 October 2002.[29] Counsel for the appellant had, in his closing submission, reiterated the submission made in the course of the appellant's cross-examination that the Magistrate should be satisfied that the appellant had real concerns about how she was being treated and that it mattered not whether those concerns were based on fact. The exchange between counsel and the learned Magistrate leaves no doubt that it was well understood that the appellant's counsel was submitting that it did not matter what had happened at these meetings so long as the Magistrate was satisfied that the appellant had suffered an injury.[30] In this exchange the learned Magistrate described the respondent's primary defence as being whether there was an injury or not. There was no substance in the appellant's submission developed during the appeal that the respondent had not conducted its defence on the basis that the appellant had suffered no injury.

It was submitted that it was insufficient for there to be only "subliminal" hints as to the reasons for the Magistrate's findings. If the Magistrate's reasons did leave open the reasonable possibility that the Magistrate accepted that the appellant had suffered injury but concluded it was not compensable because the respondent was not at fault, his decision would be vitiated.

I do not think there are doubts attendant upon the Magistrate's reasons which could support the appellant's contention. There may be some infelicitous expressions contained within the learned Magistrate's decision but the Magistrate's reasons plainly disclose the grounds upon which his findings were based.

The appellant failed to satisfy the Magistrate that she was oppressed by her supervisor on 9 October 2002. He found that the conflict occurred because of the appellant's conduct. The Magistrate rejected the cause which she had assigned to her injury. No other cause was explored in evidence with her or her health practitioners.

The Magistrate was not satisfied that the appellant had suffered the emotions which she said she experienced and which she testified were the immediate consequence of and specifically ascribed to that oppression. He was not satisfied she suffered the symptoms of which she complained to her health practitioners and was not satisfied she sustained an injury.

Mr Kennan submitted that the Magistrate ought to have provided reasons for why he was unprepared to act upon the opinion of Dr Fail. In his first tendered report dated 29 November 2002 Dr Fail expressed the opinion that the appellant suffered from an acute adjustment disorder and that the injury arose in the course of her employment. According to the report an investigator's report which highlighted the conflict between the appellant's account of what had occurred on 9 October 2002 and the accounts of the respondent's witnesses was made available to the doctor. The doctor was of the opinion that the appellant had suffered a compensable injury as a consequence of the events of 9 October 2002, whether or not the appellant's account of the events was truthful.

The Magistrate was not obliged to mention every fact or argument relied on by the losing party.[31] The Magistrate gave reasons for why he was not prepared to act upon the opinions of any of the health practitioners, namely that they were all based upon the history and symptoms conveyed to them by the appellant. Dr Fail, like the other practitioners was reliant upon the appellant's description of her symptoms and the Magistrate was not satisfied that the appellant suffered from such symptoms. It was not incumbent upon the Magistrate to make specific reference to Dr Fail's opinion.

Despite Mr Kennan's earnest and comprehensive argument I am unable to detect any incontrovertible facts, contrary compelling inference or glaringly improbable findings which would warrant this Court disturbing the conclusions of the Magistrate based upon his unfavourable assessment of the appellant's credit. The appellant has not demonstrated that the Magistrate was plainly wrong, or that the Magistrate's reasons going beyond credibility involve any error of law. The appellant has not discharged the burden of showing that there was other evidence left untouched by the Magistrate's finding as to credit which required separate evaluation. The appellant has not demonstrated that the Magistrate was bound to make an affirmative finding in her favour.

This question did not receive separate attention during the course of the oral submissions.

As to question 3(i) and(ii) I see nothing in the Magistrate's reasons for decisions which suggests that the Magistrate was influenced by "other factors" which the general practitioner may have looked at. The Magistrate found that there had been a ready acceptance by the general practitioner of everything the appellant had said and that there was a failure by the general practitioner to objectively assess the appellant's condition. The Magistrate found that because of a ready acceptance of the appellant's account there had been no examination by the general practitioner of other causes or stressors which may have explained her claimed symptoms. The medical opinion was rejected by the Magistrate because he was not satisfied as to the history or the symptoms relayed by the appellant to the practitioner.

As to question 3(iii) it was open to the learned Magistrate to take into account the fact that the appellant had failed to call any members of her family to confirm the manner in which she claimed to have been affected by the events of 8 and 9 October 2002. The Magistrate did not seek to draw any impermissible inference from the appellant's failure to call such evidence.

The appellant submits that the Magistrate should have found on the evidence that the appellant's claim had been "deemed to have been accepted" within the meaning of s.109(1) of the Act which reads:

"(1) If the authority, or a self insurer, does not give written notice of the decision to accept or reject a claim for weekly payments within 28 days of receiving a claim -

(b) the authority or self-insurer must pay weekly payments t to the worker subject to and in accordance with this part.

(2) The written notice of a decision to accept or reject a claim for weekly payments must, in the case of a decision to reject the claim, include a statement of the reasons for the decision."

The particulars of the appellant's claim did not include an allegation that the respondent was "deemed to have accepted" the appellant's claim. The first reference to the argument that there was a deemed acceptance of the appellant's claim emerged in the closing address of counsel on behalf of the appellant. Having noted that the claim was lodged on 30 October 2002 and that the Notice of Rejection was dated 6 December 2002 counsel observed that the rejection seemed to be outside the 28 day period required by s.109. Counsel then stated:

"The claim is deemed to be accepted. Claims that are deemed to be accepted then leave the opportunity for an employer to come along later and say `you were never entitled' so the plaintiff has not pursued that point with any vigour."[32]

To establish that there had been a deemed acceptance of her claim it was necessary for the appellant to establish that no written notice of a decision to reject the claim had been given within 28 days of the claim being received by the authority. Authority is defined in s.5 of the Act to mean the Victorian Workcover Authority.

The evidence called at the hearing established that the appellant's claim for compensation dated 30 October 2002 was received by her employer, the respondent, on 1 November 2002. The respondent's claim report was dated 6 November 2002. A letter was addressed by the respondent to the relevant agent of the Victorian Workcover Authority and an employee of the respondent placed the date 4 November on a copy of the letter. No evidence was led as to when the letter was in fact posted to the Victorian Workcover Authority or received by it or its authorised agent.

The respondent rightly submitted that there was no evidentiary basis upon which the date from which the 28 day period referred to in s.109(1) could be calculated for the purposes of determining whether the claim was deemed to have been accepted. The respondent further submitted that even if s.109(1) applied, the appellant had abandoned any reliance upon any deemed acceptance of her claim. It relied upon the submission of her counsel which I have quoted that the point had not been pursued with any vigour. This submission was said by the respondent to be based upon the right of the employer to question the appellant's entitlement on the merits. The respondent submitted that even if the appellant's claim could be said to have been deemed to have been accepted, the case proceeded to be heard and determined by the Court on its merits. Such a course was endorsed by the Court of Appeal in Victorian Workcover Authority v Brewster.[33] As the judgments of Winneke P[34] and Phillips JA[35] indicate, though s.109 confers a substantive right capable of enforcement by a Court of competent jurisdiction, where an application for weekly payments has been rejected by the Authority for reasons given and a hearing on the merits takes place seeking compensation generally under the Act, the Court must give careful consideration to whether its discretion should be exercised to convert the proceedings into one where consideration is only given to the plaintiff's entitlements under s.109.

In Brewster the Court considered it would not have been surprising if the trial Court's discretion as to procedure would have been exercised in favour of proceeding with a final determination of the employer's liability where the worker had come to Court to establish a general entitlement to compensation and was aware of the attitude of the employer. The Court made reference to the ephemeral character of an entitlement under s.109(1), such entitlement being subject to proof of entitlement generally if and when notice of termination is given under s.114(2). The Court regarded it as open to a worker at any time to seek to establish entitlement once and for all and could see little against the trial Court pressing on with a hearing of the main claim.[36]

I am not satisfied that an evidentiary basis existed upon which the Magistrate could have concluded that there had been a deemed acceptance of the appellant's claim. In any event the appellant elected to have the claim determined on its merits and this seems to have been acknowledged by her counsel in closing address. If the appellant did have a substantive entitlement arising from s.109(1) it was open to the appellant to have sought an order in relation to that entitlement. Having made no such application before the Magistrate the matter cannot now be raised on appeal.

Additional question 5 - "The Magistrate was in error in failing to make a decision on whether the Notice of Rejection was defective"

At the commencement of the appeal counsel for the appellant foreshadowed that it wished to amend its notice of appeal to add question five. The respondent opposed the addition of this question. As it was accepted by both parties that the decision as to whether a further question should be permitted might turn upon the extent to which the issue had been raised during the course of the hearing, I have permitted the parties to argue the question in full.

The appellant in her particulars of claim pleaded that the respondent's rejection notice dated 6 December 2002 was invalid and of no effect. In opening, counsel for the appellant identified the invalidity as based upon the absence of any probative material that could support the respondent's decision to reject the applicant's claim. Counsel stated that the respondent purported to rely on the report of Dr Fail dated 29 November 2002 in which the doctor opined that the appellant was suffering from an acute adjustment disorder and that the appellant's employment was a significant contributing factor to her injury.

Before the Magistrate, the appellant's counsel in opening, placed reliance upon the decision of Rendit J in Drovis v VWA & Anor[37] in which his Honour had observed that the purpose of the rejection notice was to alert the worker to the nature of the case that had to be met if the matter was further litigated. Subsequently in FAI Workers' Compensation (Vic) Pty Ltd v Brewster[38], Smith J held that the requirement that the notice provide reasons is designed to ensure that the authorised insurer deals with claims in a careful and reasoned manner and reveals to the claimant the basis upon which the decision has been reached.

Neither party referred to the question of the validity of the notice in closing addresses before the Magistrate. As I have already observed in dealing with question 4, counsel for the appellant made passing reference to the question of whether the Notice of Rejection had been given within time but no other submissions were made. It was not disputed in argument before me that if the matter rested there, the respondent would be deemed to have accepted the claim if one assumes that the notice was invalid and of no effect because it did not disclose that it was based upon supporting probative material. This question would then have been disposed of on the same basis as question 4.

The appellant now seeks to establish the invalidity of the Notice of Rejection on a different basis to that referred to in the appellant's opening before the Magistrate. The decision in Stubbe v Jensen & State of Victoria[39] upon which counsel for the appellant relied is distinguishable from the present case. It was a case in which the trial was conducted on the common basis that the issue as pleaded and explained in opening had not been altered or abandoned.

The appellant relies upon the fact that Dr Fail produced two reports both dated 29 November 2002 expressing different opinions. Both reports are identical save as to their conclusion. Each report refers to the fact that the doctor had available to him a copy of circumstance report of DP Thomas & Associates dated 26 November 2002 concerning the events of 9 October 2002. The report of Dr Fail tendered before the Magistrate concluded as follows:

"I found the claimant to be suffering from an acute adjustment reaction. It appears that the claimant is reacting to a conflict with her supervisor. It is unclear to me where the truth lies however there is no doubt that there is a conflict in the work place. The claimant has not been subjected to any disciplinary warnings and I do not understand how s 82(2A) would be applicable. Hence the worker's employment is a significant contributing factor to the claimant's current state. The claimant is receiving counselling and this is appropriate. The claimant has a partial work capacity although she will be unable to return to work with her supervisor, she feels quite capable of working in another area." (The tendered report supportive of the appellant).

Dr Fail's second report produced on the appeal contains the same first and third paragraphs but a different second paragraph of its conclusion which reads as follows:

"It appears that what precipitated the claimant going off work was the staff meeting on 9th October. The circumstance report is quite clear that all the other people present in this meeting deny that Rose behaved in an inappropriate manner, in fact, all the witnesses statements confirm but it was the claimant that was behaving inappropriately. The circumstance report does not substantiate the claimant's version of events that she was harassed, in fact it seems that some of the workers have complained of harassment by the claimant's husband. Hence there is no evidence that the claimant has been subjected to unreasonable behaviour in the work place and hence the worker's employment is not a significant contributing factor to her current state." (The second report).

The second paragraph of Dr Fail's second report was reproduced in the reasons for decision sent by the respondent to the appellant in support of its Notice of Rejection.

The appellant's solicitor has filed an affidavit on this appeal in which he has annexed a facsimile passing between the respondent's insurer and the respondent dated 20 February 2003. The important part of the facsimile reads:

"Please find attached amended medical report by Dr Leon Fail dated 29 November 2002. Unfortunately, Mr Fail's first report had not taken into consideration the circumstance report by DP Thomas & Associates, we therefore requested a supplementary report. Instead, he provided us with a whole new report dated the same date as the initial report. QBEMM only sent you the first report by Mr Fail which does not correspond with the rejection notice. I apologise for any inconvenience."[40]

It was submitted on behalf of the appellant that there was no apparent explanation for the difference between the two versions of Dr Fail's report of 29 November 2002. It submits that the Notice of Rejection was a sham which is demonstrated by the two reports of Dr Fail containing diametrically opposed conclusions. It was submitted that the Notice of Rejection was intended to deceive it being based upon an opinion provided by Dr Fail after he was requested to reconsider his opinion. In support of the contention that it was a sham counsel also relied upon evidence given to the Magistrate that it was a general policy of the respondent to resist stress claims. It was submitted that the respondent by not disclosing both reports and the reasons for the second report, had deliberately withheld relevant information from the appellant's legal advisers and that in accordance with the principle expressed in Commonwealth Bank of Australia v Quade[41] there was a real possibility that the result would have been different had such material been produced.

Counsel for the appellant submitted that the respondent's decision to reject the appellant's claim was a sham and invalid, because it was not a careful and reasoned one made in good faith. Counsel relied upon the following passage from the judgment of Smith J in FAI Workers' Compensation (Vic) Pty Ltd v Brewster:

".....It would follow that the legislature intended that implied limits be placed on the authority of the decision maker. In particular, the decision should be made on a reasoned basis on the materials and the opinions available to the decision maker and not a capricious basis. In addition, in giving Notice of Rejection and reasons, the legislature impliedly required the decision-maker to state accurately, the material and opinions before him or her, relevant to the decision." [42]

".....The scheme imposes on the Authority or self-insurer, an obligation to sit in judgment on claims made against it. It was not intended that the consideration of claims be sham. Rather, the statutory scheme plainly depends upon a careful, reasoned and bona-fide exercise of statutory powers and duties imposed to and imposed upon the persons authorised to consider claims. It would be a mockery of the statutory scheme for a decision and a notice in reasons like those in question in this case, to be accorded any validity......"[43]

Counsel for the respondent submitted that the appellant's argument misconceived what had occurred before the Magistrate. The respondent's Notice of Rejection did not rest upon Dr Fail's tendered report which was produced and tendered in evidence as part of the appellant's case. Its Notice of Rejection rested upon Dr Fail's second report. The Notice of Rejection from the insurer to the appellant dated 6 December 2002 faithfully quoted the second paragraph from Dr Fail's second report.

The respondent submitted that the present circumstances were readily distinguishable from those in Brewster's case where the rejection notice positively mis-stated the conclusion of the doctor. The respondent relies upon the view expressed by Smith J in Brewster that a successful attack upon the validity of a Notice of Rejection "would be confined to extreme cases ..... where arguable decisions and insignificant misstatements would not vitiate any decision or notice or reasons".[44]

The appellant placed particular reliance upon the advice to the respondent contained within the facsimile as to how Dr Fail had come to provide a second opinion. This was said to constitute "fresh evidence". I do not accept that I should so view it. The appellant could have pursued the question of how the opinion of Dr Fail set out in the "reasons for rejection" came about. Her counsel chose not to do so and in circumstances where the prominent hypothesis was that the doctor must have been requested to do so. These are facts which were or could have been, upon reasonable inquiry, discovered by the appellant had it been considered desirable to do so.

This was not a case in which a party was unaware of the existence of relevant material prior to the commencement of the hearing. The appellant's lawyers had in their possession the substance of both of Dr Fail's reports. One report was that which was tendered whilst the substance of the second report was set out in the reasons for Notice of Rejection which had been provided to the appellant.

Before the Magistrate the appellant was content to rely upon Dr Fail's tendered report which stated that the appellant had suffered a compensable psychiatric injury. The appellant could have argued that the Notice of Rejection, based upon the substance of Dr Fail's second report referred to in the reasons supporting the Notice of Rejection, did not provide a sound legal basis upon which to reject the appellant's claim. Her counsel could have attacked the validity of the notice by submitting that the fact that the respondent's employees may have conducted themselves reasonably did not entitle the respondent to rely upon Dr Fail's opinion as a basis for concluding that the appellant's injury was not compensable. Such an argument was not advanced, the respondent submits, for good reason. The appellant chose to rely upon the opinions of Dr Fail that were tendered supporting the conclusion that the appellant had suffered an injury in the course of her employment.

The Magistrate was not invited to determine this question. The contended error of law is not made out.

No suggestion was made that I could amend the Master's orders. The power conferred by Order 58 Rule 13 of the Supreme Court Rules permits additional questions of law to be argued where this is necessary to achieve "the effective complete prompt and economic determination of the appeal" and is otherwise just and convenient. Mandie J in DPP v Hinch[45] considered that this may well be appropriate in a case where the questions of law were squarely argued below and by oversight had not been stated in the Master's orders.

The powers of an appellate court with respect to amendment are ordinarily exercised within the framework of the issues pursued at trial. The respondent called in aid the well recognised principle that it is fundamental to the administration of justice that the substantial issues between the parties are ordinarily settled at the trial at first instance.[46]

In the absence of argument about the extent of the Court's power I would adopt the approach suggested by Ashley J in Hodgkinson v Yarra Valley Country Club Inc[47] where his Honour said:

"I do not consider, on the other hand, that the approach taken by myself and other judges in reliance on Rule 58.13 of Chapter 1 can be confined to cases in which a particular issues can be discerned within questions framed by a Master. In the end, I think that the key matters are whether a particular issue of law was sufficiently identified below, was an issue concerning which the possible evidence was at an end, and was an issue of significance to the Magistrate's decision."

Hansen J in Jones v Purcell[48] expressed a similar view. This approach is consonant with the general principles that a party will not be permitted to raise a point on appeal which was not taken at trial if evidence could have been adduced which may have prevented the point succeeding[49] or where it would not be in the interests of justice.

Applying these considerations I am not persuaded that the appellant should be permitted to pursue the further question of law even if I were in error as to the arguable merit of the ground. The invalidity upon which the appellant relies was never raised. Had it been placed in issue it is not possible to say what evidence may have been adduced which would have had a bearing upon the resolution of the question. The appellant should not now be permitted to pursue the proposed question.

As the appellant has failed to demonstrate error by the Magistrate, the appeal must be dismissed.

[3] Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197; Green v Victorian Workcover Authority [1997] 1 VR 364 at 372-373; Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 46.

[4] Young v Paddle Bros Pty Ltd [1956] VicLawRp 6; [1956] VLR 38; Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346; Eastern Truck Services Pty Ltd v Gibo JL Nominees Pty Ltd [2004] VSC 46.

[6] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 at 647; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85; (1985) 59 ALJR 844 at 846; Day v Electronik Fabric Makers (Vic) Pty Ltd & Anor [2004] VSC 24 at [55-56].

[7] Arian v Nguyen (2001) 33 MVR 37; [2001] NSWCA 5 at [25].

[8] O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[9] See Transcript of Proceedings in Magistrates' Court on 24 November 2003 - Dr Coha (Transcript of Evidence at 117); Dr Wood (Transcript of Evidence at 128); Ms Mills (Transcript of Evidence at 138) Exhibit KAB-31.

[12] Apand Pty Ltd v Kettle Chip Co Pty Ltd [1994] FCA 1370; (1994) 52 FCR 474 at 496-7.

[20] (1987) 10 NSWLR 247 at 273 per Mahoney JA; Day v Electronik Fabric Makers (Vic) Pty Ltd & Anor, supra Footnote 6 per Nettle J at [38].

[22] Supra Footnote 10 (2003) 200 ALR per Kirby J at [98-99].

[23] Supra Footnote 10 (2003) 200 ALR at [60].

[24] Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18.

[25] Whisprun supra Footnote 10 (2003) 200 ALR at [63].

[26] (1893) 6 R 67; Heydon, J.D. (2004) Cross on Evidence (7th Ed.), Sydney, LexisNexis Butterworths at [17.450].

[27] Transcript of Magistrates Court Proceedings 21 November 2003 at 71, lines 15-22 Exhibit KAB -31.

[28] Transcript of Magistrates Court Proceedings 25 November 2003 at 259 Exhibit KAB -31.

[29] Transcript of Magistrates Court Proceedings 25 November 2003 at 260 Exhibit KAB -31.

[30] Transcript of Magistrates Court Proceedings 25 November 2003 at 271-282 Exhibit KAB -31.

[31] Whisprun supra Footnote 10 [2003] HCA 48; (2003) 200 ALR 447 at [62].

[32] Transcript of hearing on 27 November 2003 at 268-269.

[36] Supra Footnote 33 per Phillips JA at [34].

[37] Unreported County Court 15 July 1994.

[38] [1999] VSC 388 per Smith J at [37].

[45] [1994] MC 302 Unreported Supreme Court of Victoria 5 August 1994.

[46] Metwally v University of Wollongong (1985) 60 ALR 68; (1985) 59 ALJR 481; Geelong Building Society (in liq) v Encel [1996] VicRp 44; [1996] 1 VR 594.

[48] Unreported Supreme Court of Victoria 19 July 1995.

[49] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491; Whisprun supra Footnote 10 [2003] HCA 48; (2003) 200 ALR 447at [51].

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Cases Cited (36)