JUDGMENT OF: His Honour Deputy President Judge JP McCusker,

Her Honour Deputy President Judge HW Parsons,

His Honour Deputy President Judge PD Hannon

Appeal - After deciding issue of "suitable employment" and issuing judgment in relation thereto learned Deputy President proceeded to determine issue of LOEC - The exempt employer took issue with a NWL of 65 years - It sought to re-open its case and lead further evidence in relation to this - The worker opposed the re-opening - Application to re-open allowed - The worker appeals challenging jurisdiction - Alternatively the worker contends the exercise of discretion was in error - Worker's jurisdictional argument rejected - Worker's argument as to exercise of discretion upheld - Appeal allowed - Workers Rehabilitation and Compensation Act 1986.

Celestino v Celestino, (unreported) Full Federal Court, delivered 16 August 1990

Cropper v Smith (1884) 26 CHD 710

Re Gaudron; Ex parte Uniroyal Pty Ltd [1978] HCA 3; (1978) 52 ALJR 317

R v Bleby, Olsson and Stanley; Ex parte The South Australian Public Service Board (No 1) (Teachers) Case (1974) 41 SAIR 887

Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5; (2000) 199 CLR 135

Timbarra Protection Coalition Inc v Ross Mining NL and Others [1999] NSWCA 8; (1999) 46 NSWLR 55

Buck v Comcare [1996] FCA 1485; (1996) 137 ALR 335

Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203

Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 SASR 487

Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45

Simpson Ltd v Arcipreste (1989) 53 SASR 9

Linou v Mason and Workers Compensation Appeal Tribunal; Workers Rehabilitation and Compensation Corporation (intervenor) [1992] SASC 3650; (1992) 59 SASR 117

Griffin v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (NSB Staff Pty Ltd) Print No JD 33/1997

Armiento v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Myer Stores Ltd) Print No JD 6/1999

Westmite Pty Ltd v Law Society of SA [1999] SASC 75; (1999) 73 SASR 454

Re Coldham; Ex parte Brideson [1990] HCA 36; (1990) 94 ALR 481

Workers Compensation (Dust Diseases) Board v Veskans (1993) 32 NSWLR 221

Sweeney v Fitzhardinge and Others [1906] HCA 73; (1906) 4 CLR 716

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12

Wear v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77

Kairns v WorkCover Corporation/CGU Workers Compensation (SA) Ltd (Chateau Yaldara Pty Ltd) [2004] SASC 352

Australian Coal and Shale Employees' Federation and Another v The Commonwealth and Others [1953] HCA 25; (1953) 94 CLR 621

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194

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

House v The King [1936] HCA 40; (1936) 55 CLR 499

Natta v Canham [1991] FCA 470; (1991) 32 FCR 282

Londish and Others v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 117 ALR 361

The Silver Fox Company Pty Ltd v Len [2004] FCA 1310

Hines Exports Pty Ltd v Mediterranean Shipping Company SA [2001] SASC 311

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

The Duke Group v Pilmer & Ors (1997) 193 LSJS 204 at 208

1 The Full Tribunal heard and decided the issue of whether there was before it a competent appeal and cross-appeal, (see [2004] SAWCT 96). It found the exempt employer's appeal incompetent. These reasons now address the substance of the worker's cross-appeal which was held competent.

2 The worker appeals the learned Deputy President's decision allowing the exempt employer to re-open its case on the issue of whether the notional working life ("NWL") should be set at 65 years. After giving judgment on the issue of "suitable employment", the learned Deputy President moved to determine the LOEC issue. It was only then that the exempt employer made an issue of the NWL being 65 years for the purposes of calculation. In fact in its original LOEC determination from which the worker had appealed it employed a NWL of 65 years (viz judgment at par 37). The short case for the worker on this appeal is that the exempt employer raised this matter only when it had lost on the matter about which it had joined issue. The worker says this is disingenuous and should not be allowed to occur (tr 47, 49, 50). This Tribunal has described the worker's argument in its previous decision (see pars 17, 18) but we restate that argument in these reasons for convenience.

3 The circumstances were carefully detailed by the learned Deputy President and were not challenged by either party. The exempt employer's LOEC determinations made pursuant to s 42A were disputed by the worker (par 1). These were five in number (par 37). The learned Deputy President's reasons show the case proceeded on a basis of whether the worker was capable of performing specified suitable work that he had a reasonable prospect of obtaining. All attention was directed to this topic. The proposed employments of instrumental music teacher and of tertiary lecturer were dealt with in turn by His Honour. Both were found to be unsuitable (pars 121 and 135). His Honour having made some remarks about the doctrine of mitigation and its application to a LOEC determination (par 136), then went on to state his conclusion in the following terms, (in [2004] SAWCT 42):-

"142 In my opinion the employer's various LOEC determinations must be set aside and the worker's capital payments for the various periods should be assessed on the basis that there be no deduction based upon an amount that the worker could earn in suitable employment. I would like to hear from counsel before making final orders."

That was appealed by the exempt employer (AB 328) and as noted we have ruled that appeal incompetent, (judgment [2004] SAWCT 96).

4 The learned Deputy President then proceeded with setting the new LOECs. At that stage both parties acknowledged it appropriate for His Honour to receive into evidence an estimation of the after tax income for the purpose of the assessment, (judgment [2004] SAWCT 82 at par 11). However the worker says that was the totality of the information needed to quantify the LOEC (par 12) and the rate of tax changes. It was at this point the exempt employer stated it disputed the NWL (par 13). It sought leave to re-open its case to lead further evidence. It was agreed leave was needed for the exempt employer to argue this point and introduce evidence in support of it, given that the application to do so had been made at such a late stage in proceedings and well after both sides had completed their respective cases (par 23).

5 His Honour stated the factors against permitting the application as being its lateness (par 25), the ample opportunity the exempt employer had over a considerable period to pursue this line (par 26) and the need for there to be an end to litigation, particularly given the length of time already involved in this case (par 27). His Honour listed factors in favour of allowing the application as being the lack of authority to guide parties in LOEC matters, the public interest that the decision be based on reliable evidence rather than assumptions (par 29) and because in his view the exempt employer's stance was the product of oversight rather than a calculated choice from which it now wished to resile, (par 28).

6 His Honour referred to the decision of Celestino v Celestino (unreported) Full Federal Court, delivered 16 August 1990 at p 7, and in particular to the approach referred to in that authority of Bowen LJ in Cropper v Smith (1884) 26 CHD 710 - 711. That approach stated the overriding principle to be that cases had to be decided upon the rights of the parties and not in effect as punishment for mistakes made in the conduct of the case. His Honour stated, ([2004] SAWCT 82):-

"31 By allowing the employer the opportunity to pursue this, the worker will undoubtedly incur legal fees beyond which that he would have been (sic) incurred had this argument and consequential evidence being (sic) adduced as part as (sic) the earlier hearing. This is an injustice that I must take into account. However, this can largely be cured by the making of an order pursuant to Rule 28(7)(e) that the worker recover costs based on 85 per cent of the Supreme Court scale for the entire hearing.

32 If I grant the application the judgment that the worker awaits will be delayed. This is an injustice that I must also take into account. However this can be ameliorated to some extent by setting quite strict time frames.

33 Having reflected upon the matters for and against the application I have come to the conclusion that the application to argue this point and introduce fresh evidence to deal with it should be allowed. Such evidence may include evidence of facts that have occurred subsequent to the making of the various LOEC determinations. ... Factoring contingences and vicissitudes of life always involves a degree of speculation. I see no logical reason why the Tribunal should be denied evidence that enables that process to be more accurately determined." (The emphasis is ours.)

The highlighted passages confirm the learned Deputy President treated the matter as a re-opening after close of case. His Honour went on to make orders for particulars in line with his conclusion.

7 Mr Di Fazio, of counsel for the appellant worker, contended error involving a question of law. He divided this argument into two general aspects. The first was a jurisdictional argument. The second contended error in the exercise of discretion (tr 37). We deal first with the jurisdictional argument (Outline pars 28 - 40). That argument relied on a reference to Div 6 of the Act. Mr Di Fazio contended that the jurisdiction of the Tribunal depended upon the existence of a dispute in relation to a matter described in the Act, (s 79). Pt 6A of the Act was concerned with the identification of the relevant dispute for that purpose. He drew upon the statement of the High Court in Re Gaudron; Ex parte Uniroyal Pty Ltd [1978] HCA 3; (1978) 52 ALJR 317. He argued the Tribunal's jurisdiction was not contingent upon the matter being related to workers compensation. It was limited to matters that came to the Tribunal in a designated and contemplated way.

8 To deal with Mr Di Fazio's argument, it is essential to describe the issue. The matter at issue was the quantification of the LOEC. The worker said those quantifications were erroneous, challenging them on various grounds and asking for them to be properly calculated. The learned Deputy President (in [2004] SAWCT 42) stated what was involved in the following terms:-

"23 S 42A enables a compensating authority to extinguish its liability to pay weekly payments of income maintenance to a permanently incapacitated worker by the payment of a single or series of lump sum payments, the quantum of which must be determined in accordance with the statutory formula prescribed.

24 The statutory formula requires a determination of the worker's notional weekly earnings, an estimation of the income tax payable on such earnings for the relevant period, an assessment of the worker's residual earning capacity and the income that that could produce, an estimate of the income tax payable upon the presumed income and the application of a prescribed discount rate fixed at three per cent."

This is the task the Tribunal had to proceed to determine under s 94C. It had to re-hear the issue without regard to decisions taken in earlier proceedings. While there was no Arbitration conducted in this case the appellant concedes the process of making a decision without regard to the earlier decision includes the decision of the compensating authority (Outline of Argument par 36).

9 What has to be satisfied here was the requisite "jurisdictional fact". The Tribunal had to be satisfied the circumstances for the exercise of its jurisdiction existed: see R v Bleby, Olsson and Stanley; Ex parte The South Australian Public Service Board (No 1) (Teachers) Case (1974) 41 SAIR 887 at 894; Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5; (2000) 199 CLR 135 at 158 per Gaudron J. In Timbarra Protection Coalition Inc v Ross Mining NL and Others [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64 Spiegleman CJ said:-

"Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes 'jurisdictional fact' as some kind of 'doctrine' is, in my opinion, misconceived. The appellation 'jurisdictional fact' is a convenient way of expressing a conclusion - the result of a process of statutory construction."

10 An example in the context of workers compensation is dealt with in Buck v Comcare [1996] FCA 1485; (1996) 137 ALR 335. There the worker had refused to submit to a medical examination. The issue was whether her refusal was "without reasonable cause". If so, the legislation automatically required her workers compensation payments to be immediately suspended. Finn J held whether or not "reasonable cause" existed was a "jurisdictional fact". His Honour held although workers compensation was a statutory entitlement and not a fundamental common law right, it was an entitlement which was sufficiently important to warrant the extra protection to the individual which would flow from the characterising of the reasonable cause issue as jurisdictional.

11 In pursuit of his argument, Mr Di Fazio made reference to the Act prior to the 1995 amendments. In particular the provisions of Pt 6 "Reviews and Appeals". He argued a comparison between the old and new schemes indicated the jurisdiction of the Tribunal in the new provisions was narrower than the jurisdiction of the Review Officer under s 96 of the old provisions. Under those provisions the Review Officer was required to conduct "a review of the decision to which the application relates" and to make a fresh determination "of the matters to which the decision subject to review relates" (Outline of Argument par 39).

12 In Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203, a case decided on the old provisions, it was determined that the worker's payments be reduced pursuant to ss 35 and 36 of the Act on the basis that his incapacity had exceeded two years and he had reasonable prospects of obtaining work as a service technician working ten hours a week. The worker appealed this. The Court noted (at p 206) the case proceeded in front of the Review Officer on a basis, accepted by both parties, that the worker remained partially incapacitated by an aggravation to a back injury in May 1988. On the review, the evidence proffered focused upon and indeed was restricted to the residual disability stemming from that aggravation and the extent to which it was in fact feasible for the worker do to the work described in the s 36 notice. In her decision, the Review Officer found the worker was no longer incapacitated by reason of the aggravation suffered in May 1988.

13 Olsson J, with whom the other Members concurred, held this was a denial of natural justice (208). But besides that, it was outside jurisdiction. He stated (210):-

"It is immediately apparent that, when an application for review is made pursuant to s 95, that application does not, in any sense, cause the situation of the applicant at large to be subject to review. The review may, by the very terms of the statute, only and specifically relate to the particular decision which is sought to be challenged. The jurisdiction of the Review Officer is thus restricted to reviewing the actual decision which is sought to be impugned. The fresh determination to be made by the Review Officer must relate only to the matters upon which the challenged decision bears.

Whilst, as has been said in Santos Ltd v Saunders (1988) 49 SASR 556, the Review Officer is required to conduct a review de novo of all the material which was before the Corporation and make a fresh judgment on the matter the subject of review, this does not imply that the Review Officer is entitled to step outside of the question which gives rise to the review - in this case a decision under s 36(2) of the Act to vary payments to reflect the difference between the worker's notional weekly earnings and the weekly earnings that he could earn in suitable employment which, it is said, he has a reasonable prospect of obtaining. The issue of a possible discontinuance under s 36(1) of the Act simply did not ever arise."

14 In Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 SASR 487 the worker made a claim for a low back injury which was rejected. The worker lodged an application for review and succeeded but only for a closed period. The worker appealed to the Workers Compensation Appeal Tribunal from the Review Officer's decision. He argued the Review Officer should have limited consideration to the issue of causation and not the length of the period of incapacity arising therefrom. King CJ, with whom the other Members of the Court agreed, held the Review Officer was entitled to determine the period of incapacity as well as the issue of causation. Having set out the exact legislation the subject of examination in Wiechmann's case and that the consideration was de novo, His Honour said (at p 489):-

"... [The Review Officer] is required, however, to make a fresh determination, that is to say the determination of the matters to which the decision of the Corporation relates, which the Corporation ought to have made having regard to all the information before the Review Officer including information as to matters and events occurring after the determination. The jurisdiction of the Review Officer therefore extends to the making of any determination which can fairly be said to be within the scope of the matters to which the Corporation's decision relates.

The claim envisaged by s 52 is a claim for compensation. It is not a claim to have a disability accepted as compensable. A claim for compensation made pursuant to s 52 must be for one or more of the entitlements to compensation conferred by the Act. ..." (The emphasis is ours.)

15 Under the old provisions as indicated in the cases, the Review Officer was required to make a fresh determination of the matters to which the decision subject to review related: s 96(2). The Review Officer then heard the matter de novo: Santos Ltd v Saunders (above cited) at 568. In contrast when the matter was appealed to the old Tribunal pursuant to s 97, that appeal was an appeal by way of rehearing even though it had hybrid features: Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45 per Olsson J at 67; Simpson Ltd v Arcipreste (1989) 53 SASR 9; Linou v Mason and Workers Compensation Appeal Tribunal; Workers Rehabilitation and Compensation Corporation (intervenor) [1992] SASC 3650; (1992) 59 SASR 117 per King CJ at 123. However s 94C in the new provisions requires the Tribunal to rehear the matter in dispute and to decide the dispute without regard to the decision taken in earlier proceedings. That assumes a role somewhat akin to the role of the former Review Officers: Griffin v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (NSB Staff Pty Ltd) Print No JD 33/1997; Armiento v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Myer Stores Ltd) Print No JD 6/1999. For that reason the approach of King CJ in Cristea should be applied. That being so the dispute is in respect to the assessment of the LOEC which would include the NWL. The NWL falls fairly within the scope of the relevant topic.

16 Such an analysis of s 94C also informs the period to be examined by the Tribunal on judicial determination. In Westmite Pty Ltd v Law Society of SA [1999] SASC 75; (1999) 73 SASR 454 at 455, Debelle J in dealing with the issue of hearings de novo stated:-

"... While the search must always be to glean the legislative intention, it is nevertheless well settled that, when the legislature gives a court the power to review or hear an appeal against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: Re Dash; Ex parte Australian Sporting Club Ltd (1947) 47 SR (NSW) 283 approved in Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 273." (The emphasis is ours.)

Therefore the learned Deputy President was correct in concluding he was not limited to facts which occurred up to the date of the LOEC determinations. He could include facts occurring subsequent to them.

17 Indeed leaving aside the issue of the learned Deputy President's exercise of discretion, the matters raised by Mr Di Fazio are generally resolved by the appreciation that this is a hearing de novo. The point is that the Tribunal on a judicial determination is required to decide the case on the facts and law which exist at the date of its hearing: Re Coldham; Ex parte Brideson [1990] HCA 36; (1990) 94 ALR 481 at 485; Workers Compensation (Dust Diseases) Board v Veskans (1993) 32 NSWLR 221 per Kirby P at 231. All the issues must be retried. The party succeeding below enjoys no advantage and must, if he/she can, win the case a second time: Sweeney v Fitzhardinge and Others [1906] HCA 73; (1906) 4 CLR 716.

18 The appellant did contend that the actions of the respondent amounted to an abuse of process (Outline of Argument par 72 - 76, tr at 50). The principles for a plea of this kind are not in dispute: see D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12. But we reject that submission. The grounds of this plea go no higher than to complain the application was disingenuous (see Outline of Argument pars 9(7) and (8)), and only taken in response to the respondent's failure on the issue of suitable employment. That does not provide a basis for such a finding that there has been an abuse of process.

19 We turn to the second general aspect of the worker's appeal. The appellant made submissions based on the majority decision in Wear v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77. These were to the effect that the respondent having dealt with the matter on the assumption of a NWL of 65 years should not be allowed to change its stance. That decision has however been overturned. In Kairns v WorkCover Corporation/CGU Workers Compensation (SA) Ltd (Chateau Yaldara Pty Ltd) [2004] SASC 352, Gray J, with whom Nyland J concurred, ruled that WorkCover was not precluded from taking a position at the hearing before the Tribunal contrary to that taken at a prior determination of the worker's claim, unless the circumstances involved estoppel or abuse of process. Besanko J came to the same conclusion.

20 It is conceded that the appeal here is from the exercise of a discretion (tr 46). There is a strong presumption in favour of the correctness of a discretionary judgment and it should be affirmed unless shown to be clearly wrong. The presumption may be overcome if it is shown that there has been error by acting upon a wrong principle, or giving weight to extraneous or irrelevant matters or failing to give weight to or sufficient weight to relevant matters or mistaking the facts: Australian Coal and Shale Employees' Federation and Another v The Commonwealth and Others [1953] HCA 25; (1953) 94 CLR 621 at 627. The Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194 reiterated this rule in the following terms:-

"21 Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process: see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518-519, per Mason and Deanne JJ. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:

'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' [1936] HCA 40; (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ."

21 However the appellant complains that in making the decision to allow the respondent to re-open its case and bring evidence challenging the NWL, the learned Deputy President reasoned upon the fact it was something the respondent "had not fully appreciated was open for it to pursue" (tr 28). And further that the respondent did not deliberately choose to concede the issue of the NWL. The decision was premised upon the respondent's counsel having "made a mistake". The appellant said such a finding was without an evidential basis, (Outline of Argument pars 63, 64, 65, tr 53 and 54).

22 Mr Downs acknowledged "the mistake" was not to be found in an examination of the transcript or the evidence. But he insisted it was something overlooked because the focus of the proceedings had been on liability (tr 63). Nevertheless, he argued, the learned Deputy President was in a position to draw the conclusion he did in the circumstances (tr 66). Moreover there was an overriding principle that dictated the approach, namely to do justice and obtain all evidence that might be available to the Tribunal (tr 68). Mr Di Fazio disputed this issue was something overlooked and rejected the statements of counsel from the bar table (tr 73).

23 We refer to the authorities. In Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, the Court dealt with a claim arising from a factory injury. The defendant's case included the evidence of two witnesses who testified that the injury was a fraud. During final addresses, the defendant's counsel applied to call a further witness to support that evidence. The witness had been available for calling at all times. However counsel conceded a decision not to call him had been made because it was felt his evidence only went to the issue of credit. Reconsideration caused counsel to regard his evidence as probative of an earlier injury some years before with a previous employer. The trial judge refused leave to re-open because the decision of counsel had been deliberately made and also because the evidence was not of great importance.

24 In the Court of Appeal, Clarke JA noted the judge's decision was discretionary. The principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 applied. However there was no prejudice to the plaintiff if the application was granted and it was therefore difficult to justify the refusal. His Honour stated (476):-

"For my part I can see nothing in the facts of this case which would indicate that, provided that the evidence sought to be led was relevant and admissible, the interests of justice would be better served by excluding the evidence. On the contrary on the assumption that the evidence was admissible I would have concluded that all the factors in the case favoured the grant of the application. ..."

25 Having referred to Natta v Canham [1991] FCA 470; (1991) 32 FCR 282 at 294-301 and the statement made there that the exclusionary rule was not absolute and that the categories of exceptions to it were not closed, Clarke JA then stated (478, 479):-

"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. ...

... It is the fact, as Sheppard J observed in Joyce v GIO (NSW), that there are a number of decisions which support the view that the principles relating to the calling of fresh evidence on appeal are relevant when what is under consideration is an application to re-open. That view may be correct where the application to re-open is made after the delivery of judgment but I can see no justification for importing those principles into an application to re-open which is made before the hearing is concluded: see Smith v NSW Bar Association (No 2) [1992] HCA 36; (1992) 66 ALJR 605 at 608-609 ..."

26 In Londish and Others v Gulf Pacific Pty Ltd [1993] FCA 470; (1993) 117 ALR 361 the issue was an action for damages for breach of fiduciary duty. During cross-examination of one of the respondent's witnesses, certain information was uncovered that led the appellants on a new course of enquiry. This revealed company names had been switched. An application was made to the Judge for leave to amend the pleadings and withdraw any admission made prior to this discovery relative to these corporations. The application was refused because the information had been available and the appellants' solicitors had not acted on it. That was factually incorrect.

27 The Full Federal Court allowed an appeal and held the trial judge in error. The Court decided the matter by reference to Celestino v Celestino (above cited) and the principle stated by Bowen LJ in Cropper v Smith (above cited), namely the object of Courts is to decide the rights of the parties and not to punish them for mistakes. The Court concluded (376):-

"Courts have frequently emphasised that an appeal against a discretionary judgment will not succeed simply on the ground that the appellate court is inclined towards a different exercise of the discretion. One of the best known statements of this principle is that made by Kitto J in Lovell v. Lovell (1950) 81 CLR 512 at 532-534. But two matters, in particular, which Kitto J sets apart as grounds for reversing even a discretionary judgment, are 'error in point of legal principle' and 'a misapprehension of fact'. In our opinion, both apply here. ..."

28 In The Silver Fox Company Pty Ltd v Len [2004] FCA 1310, the matter before the Court was an assessment of damages for misleading conduct, (s 52 of the Trade Practices Act). Mansfield J had delivered his reasons for judgment but not made formal orders. Counsel for the applicant sought to revisit the assessment despite the judgment because, it said, the accountant's report had been misunderstood (pars 9 and 10). The accountant's report, rather than summarising the whole of the applicant's claim, had sought to summarise only part. Mansfield J said:-

"22 In my view the interests of justice require that the oversight or misunderstanding be rectified. No formal orders have yet been made. It is plain that the Court should not provide a back door method by which unsuccessful litigants can seek to re-argue their cases by giving an opportunity to re-open them: see e.g. per Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303. There is a public interest in the finality of litigation. However, I do not think this case is an example of an unsuccessful litigant seeking by a backdoor method to re-argue a case. The Bakers have in fact been successful in their claims, and they thought they were making a claim for damages on a certain basis which, in the circumstances I have described above, was not the understanding either of the respondents or ultimately of the Court. In ICI Chemicals and Polymers Ltd v Lubrizol Corp Inc (1999) 45 IPR 617; [1999] FCA 662, Emmett J permitted the respondent to make submissions after the publication of reasons in respect of an issue which they had overlooked addressing. His Honour permitted that course of action because the oversight did not flow from the neglect or default of the respondent, and the issue was identified as soon as practicable after the reasons were delivered, and (in that case) no further evidence was proposed to be adduced. Similarly, Lindgren J gave leave to a respondent to re-open argument on a limited issue as to interest in LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 46 IPR 375; [1999] FCA 1114."

29 However, the leave to re-open given by Mansfield J was restricted and conditional. He refused leave to re-open in respect to a proposed claim for capital loss. He stated:-

"25 ... To permit that issue to be ventilated or reventilated would or might open up the foundation for the claimed capital losses further. ... There may be considerations which militate against the direct correlation of capital loss and cross-claim which the respondents may wish to explore. I am not satisfied that could be done without the risk of revisiting the foundation of the assessment of capital loss which I have determined in the judgment. To expose the issue, with that risk, might therefore require revisiting the assessment of damages of capital loss made in the judgment. It would be inappropriate to permit that to happen. The public interest in the finality of litigation points strongly against doing so [authorities omitted]. ..."

30 Finally in Hines Exports Pty Ltd v Mediterranean Shipping Company SA [2001] SASC 311, during the appellant's final submissions, the trial judge brought to counsel's attention the fact that there was no evidence the appellant was yet unpaid for the product he claimed was spoilt by the defendant's breach of contract. This was a formal proof needed to establish the loss suffered. Counsel therefore made application to recall a witness in order to establish that fact. The Judge advised he would deal with the application to re-open once he had delivered his reasons and only if failure to prove the loss was the singular point upon which the appellant failed. In such a case if leave was given, then the respondent would also be given leave to re-open.

31 Upon judgment the Court found there was no evidence whether the property in the product had passed before it was spoilt. Further there was no evidence of the purchase price to be paid or whether the appellant had been paid. Thereupon the appellant applied to re-open its case as previously indicated. The respondent applied to re-open its case. The application was made on the grounds that the omission was due to oversight and inadvertence on the part of counsel. In response opposing, the respondent argued that the appellant's counsel had made a deliberate decision to rely upon the report prepared by the loss assessors instead of adducing evidence. He argued the matter could not be re-opened on a discrete issue without opening other issues which would deny fairness to his client. The trial judge refused both applications.

32 On the appeal to the Full Court, Bleby J, with whom Doyle CJ and Perry J agreed, noted different principles applied when determining whether or not to allow a re-opening, depending on the timing of the application (par 32). His Honour referred to Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 and Urban Transport Authority of New South Wales v Nweiser (above cited) and The Duke Group v Pilmer & Ors (1997) 193 LSJS 204 at 208. He was of the view the trial judge erred in not dealing with the application before reserving judgment in the first place. Whether or not a case should be re-opened depended on whether the decision not to call the evidence was a deliberate decision of counsel. If it was a deliberate decision, then the trial should not be re-opened, though that was not as immutable a rule as it once was (par 40). He then stated as follows:-

"41 In this case, the trial Judge never properly addressed the right questions in ruling on the appellant's application. He never resolved whether or not the omission by counsel for the appellant was due to inadvertence or was a deliberate choice - a factor highly relevant to the ultimate decision on re-opening. By the time he came to consider the issue, his Honour was deflected by considering the respondent's application and the possibility of both parties seeking to overcome their respective shortcomings which had already been the subject of his reasons for decision. The trial Judge ought to have dealt with the appellant's application to reopen before reasons for decision were published, thus avoiding the consequences referred to by his Honour that further evidence might then require an alteration of those reasons.

44 In determining whether or not to allow the application when it was first made, the trial Judge should have required the appellant to identify precisely what evidence was to be led and on what topic or topics, in order to assess the propriety of the application and in order to set the parameters of the further evidence in chief if the application were to be granted.

51 In the first place, any reopening must be within the confines of the present pleadings. Secondly, as in any reopening case, either party wishing to take advantage of such reopening should be required to state to the trial Judge with some precision what further evidence it proposes to call, and on what nominated topics. The evidence-in-chief then led would have to be confined to those topics, unless leave of the trial Judge were obtained to extend the scope of such evidence. Thirdly, cross-examination would inevitably be at large: R v Beckett [1986] Qd R 170; Wallace v Wallace (1898) 24 VLR 859." (The emphasis is ours.)

The Full Court allowed the appeal against the trial judge's exercise of discretion.

33 In the case at hand the appellant strenuously challenges the respondent's now assertion of mistake. The appellant contends that at no time did the respondent submit to the learned Deputy President it had "made a mistake". Nor was there evidence of a mistake. The respondent knew this was a re-trial of the LOEC and that obviously involved the NWL. Indeed at no time prior to the delivery of reasons was there any indication that it took issue with a NWL of 65 years. Any other interpretation of the facts was wholly improbable, particularly in the case of a practitioner familiar with the provisions of s 42A (pars 63, 64 of the Outline of Argument). Mr Di Fazio submitted there was no basis for suggesting the Tribunal had embarked on a two-tiered process, of hearing the case on the issue of liability only and thereafter another trial as to quantum. We think that must be so and the learned Deputy President's statement in par 33 makes it clear he was also of that understanding.

34 The central matter of concern on this appeal is the basis, or rather the absence of one, for drawing the conclusion of mistake and lack of deliberate choice. On all the authorities the fact of "mistake" should be duly established. While not an absolute rule, the interests of justice are not seen to be served where the application is to accommodate the adoption of a new position after an earlier one has been unsuccessful. Thus "mistake" should have been clearly detailed by the respondent and an opportunity afforded to the appellant to dispute the basis or otherwise make submissions to the contrary. That did not happen. For that reason there was an error in the exercise of discretion. Such a result flows from the authorities and in particular Hines' case (above quoted).

35 The appeal should be allowed and the matter returned to the learned Deputy President to deal with the application afresh.