George Weston Foods Ltd v Return to Work Corporation of South Australia & Anor [2025] SAET 123

And that affidavit was prepared in direct response to paragraph 4 of Ms Ballard's affidavit. The concession I'm instructed to make is that during the meeting referred to in paragraph 4 of Ms Ballard's affidavit on the 4th of February, premium, premiums I should say, may have been discussed, and it is possible that informal advice was given at a high level about the premiums in this matter.

I can't take it further than that, but that is the upshot of having spoken more closely with Ms Ballard and in the light of some material that's also been made available to us in the last couple of days. And I don't propose to read her affidavit or call her as a witness and I understand that that's an acceptable position to my learned friend, Mr Richter but perhaps not. Perhaps (indistinct) respondent's counsel. That's the concession that I'm instructed to make, your Honour.

1. I was also advised that the Corporation did not seek to rely on the affidavit of its other witness who was going to give evidence about what was said to Ms Ballard about the premium impact of the two decisions.
2. The only evidence before the court is that of Ms Ballard and Ms Gonzalez.

1. Ms Ballard's affidavit states that on 14 February 2024 she was told by an employee of the Corporation's claims handling agent that two lump sum compensation decisions made in relation to Ms Gonzalez would have no affect on GWF's premiums. One decision concerned injuries sustained in 2019 and the other concerned injuries sustained in 2021.
2. On 13 June 2024 Ms Ballard was told by the Corporation's claims agent that one of the decisions would affect the employer's premiums. Ms Ballard said that she had received legal advice on 7 June 2024 that there was a basis to dispute the lump sum compensation decisions. Applications for review of each decision were filed on 14 June 2024.
3. In cross-examination Ms Ballard confirmed her evidence that prior to 13 June 2024, she understood that the decisions under review would have no commercial affect on GWF's premiums.
4. In cross-examination, Ms Ballard was challenged about the timing of some events. She had deposed that although she was not told that the decision would have a financial impact on GWF until 13 June 2024, management approved seeking review of the decisions on 11 June 2024. It was put to her that the timing meant the financial impact of one of the decisions could not have motivated the decision to seek review. Ms Ballard denied that but did not explain the timing issue further.
5. It was put to Ms Ballard that the employer was arranging to assess Ms Gonzalez' work capacity at the time. She agreed but said that the employer had concerns about the whole person impairment assessment made by Dr Suyapto given the inconsistencies in her presentations to Dr Suyapto and Dr Munn. Ms Ballard was asked why the employer did not review the decision within time. She said that she was not aware she was able to seek review of such a decision.
6. In re-examination Ms Ballard stated that if Dr Munn had made similar findings to Dr Suyapto she doubted that GWF would have sought review of the decisions. She reiterated that the premium impact of one decision was a motivation for seeking review.
7. An affidavit of Ms Gonzalez was admitted into evidence. Ms Gonzalez was not cross-examined.

1. Counsel for GWF submitted that a cascading series of events led to the decision to seek review. There was the fitness for work issue, the discrepancy between the views of Dr Suyapto and Dr Munn and the erroneous advice about the premium impact of the decisions. All those things need to be taken into consideration, as did the fact that the extension is for a short period of time. Counsel referred to Luke v Department of Primary Industries and Regions.[2]
2. Counsel for the Corporation said his client took a neutral position in relation to the matter.
3. Whilst counsel for Ms Gonzalez was not critical of Ms Ballard because she is a national manager and is not conversant with how lump sum compensation operates in South Australia, he said there were inconsistencies in her account. He submitted that an extension of time is not warranted in the circumstances.
4. Counsel submitted that the report from Dr Munn dealt entirely with return to work issues, not permanent impairment or lump sum compensation. The employer's focus was said to be on what duties Ms Gonzalez could perform if she returned to work. It was said that if there was a compliance issue or peer review issue with Dr Suyapto's report, or if one of the impairment assessment guidelines had not been followed, the application would have much more merit.
5. Counsel acknowledged, properly in my view, that Ms Ballard did not realise the employer could seek review of the decisions in issue.
6. Counsel pointed out that Ms Gonzalez has expended a significant proportion of the lump sum compensation on a trip for her and her mother to visit her grandmother in El Salvador, and that is a relevant consideration in relation to the prejudice she may face if an extension is allowed.

1. In Luke, much of the focus was on balancing the competing interests of litigants within the framework of s 100 of the RTW Act. It was an important exercise because the extension of time required in Luke was 4 years, a very long time in the context of a 1 month limitation period.
2. The delay in seeking review in this case is less than 8 weeks. That is still material in the context of a one month limitation period, but a very different proposition to the extension of time required in Luke.
3. Section 100(2) of the RTW Act has two requirements. A 'good reason' must exist to grant an extension of time, and another party must not be 'unreasonably disadvantaged' by an extension being granted..
4. In Luke, Rossi DPJ focussed on what the expression, 'unreasonably disadvantaged' means. His Honour observed that the legislature uses the word 'disadvantaged' rather than the word 'prejudiced' used in s 48 of the Limitation of Actions Act 1936 (SA), a limitation provision, and in s 30 of the RTW Act to determine whether a claim for compensation made outside of the prescribed period of six months operates as a bar to making a claim.
5. In Ulowski v Miller,[3] Bray CJ described what was required to extend time under s 48 of the Limitation of Actions Act 1936 (SA). Whilst the observations made are not directly relevant, his Honour's observations remain useful when considering an extension of time:[4]

...It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.

1. In Luke, Rossi DPJ described how s 100 operates in this way:[5]

The conditions associated with the exercise of the power are intended to ensure the Tribunal addresses the matters identified to ensure a fair trial on the merits of the case. There cannot be a fair trial on the merits if another party is unreasonably disadvantaged because of the delay in commencing the proceedings. The use of the word "unreasonable" is in the context of the ordinary Macquarie Dictionary meaning of "exceeding the bounds of reason, immoderate, exorbitant". It recognises that any delay may produce some measure of disadvantage. It is where the extent of the disadvantage operates against the prospects of a fair trial that an extension of time must not be allowed...

1. That explanation shows that the unreasonable disadvantage consideration in s 100(2) is directed to the quality of the evidence being affected by the passage of time if an extension of time is granted. There is a palpable deterioration in the quality of justice when witnesses are asked to recall events and discussions that occurred some time ago. Sometimes there is a deterioration in the recollections of witnesses in an action brought within the applicable limitation period. McHugh J observed that the effect of delay on the quality of justice is a major reason why limitation periods are necessary in Brisbane South Regional Health Authority v Taylor:[6]

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have conceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.

(citations omitted)

1. There is no concern about a deterioration in the quality of justice in the context of an assessment of permanent impairment made by a medical expert. In addition, any concern about Ms Ballard's evidence that GWF was told there would be no effect on its premiums evaporated when the Corporation's two witnesses essentially recanted their accounts. It would have been far kinder for all concerned, and the hearing may have been avoided, if that had happened earlier.
2. Counsel for Ms Gonzalez makes the point that approval was given by GWF management to seek review on 11 June 2024, 2 days before GWF learned that one of the decisions in issue would have an impact on its premiums. The point is valid, but GWF had other concerns, and workers and employers can seek review of RTW Act decisions for a very broad range of reasons.
3. Any concern about the motivation or bona fides of the application was resolved during Ms Ballard's evidence. It became apparent that Ms Ballard did not appreciate that GWF was able to seek review of the decisions. I find that Ms Ballard's misunderstanding was genuine, as counsel for Ms Gonzalez accepted. That consideration provides a good reason for the review within the meaning of s 100(2)(a).
4. Ms Gonzalez opposed the application on the basis that she may have to repay monies if the extension is allowed. The submission was that would amount to unreasonable disadvantage in the relevant sense. Whilst that might be a theoretical outcome of the proceeding, it is only theoretical, and there is no disadvantage on the quality of justice.

1. There was a good reason for GWF to seek review. Ms Ballard did not appreciate that she was able to seek review until 7 weeks after the limitation period had expired. The delay is relatively minor and the belated change of account of the Corporation's witnesses warrant the grant of an extension of time. The potential disadvantage to Ms Gonzalez is not to the quality of the justice that will be delivered. In all the circumstances, the extent of any potential disadvantage is not unreasonable.
2. I will hear from the parties in chambers about the orders that should be made in relation to the application and more generally.

[2] [2024] SAET 28.

[3] (1968) SASR 277.

[5] [2024] SAET 28 [239].

[6] [1996] HCA 25; (1996) 186 CLR 541, 552.