Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals and stated cases - Other matters - Tasmania - Competency of appeal - Whether applicant "party aggrieved".

Workers Rehabilitation and Compensation Act (Tas) 1988, s 63(1).

Judgment Number: [2003] TASSC 14

1 The appellant is the employer of the respondent who made a claim for compensation under the Workers Rehabilitation and Compensation Act 1988 ("the Act") in April 1999. After initially disputing the claim, the appellant agreed to accept liability and began paying compensation, including weekly payments. On 8 June 2001, the appellant filed a reference under the Act, s88, seeking a review of the weekly payments being made to the respondent. Shortly afterwards, the appellant terminated the weekly payments pursuant to the Act, s86(1)(c). That termination was based upon a medical certificate provided by a consultant physician who certified that the worker had wholly or substantially recovered from the effects of her injury in respect of which the weekly payments were being made. In the Workers Compensation Tribunal ("the Tribunal"), the respondent challenged that termination by filing a reference pursuant to the Act, s86(4). In the course of the hearing, the appellant called a witness, Mr Pryor, who was a surveillance agent. He gave evidence that on 22 July 2001 he took a video film of the respondent carrying out certain gardening activities that morning up until about noon. The video was taken at a residence occupied by the respondent's adult daughter. On the hearing of the two references (which were heard together), the respondent gave evidence that she had not been the person seen working in the garden, but that it was her daughter, and her daughter gave evidence to the same effect. During the course of the latter's cross-examination, she claimed that she had left the premises for a short time (10 to 20 minutes) to go to the shop, but that on her return she had continued for some hours to work in the garden. At the conclusion of both cases, counsel for appellant sought leave of the Tribunal to recall Mr Pryor to give evidence that the gardener had been absent for some 40 minutes and that no further work had been done in the garden by anybody between approximately 12 noon and 2.30pm, when he took up a position where he could no longer see the garden. The Tribunal adjourned to consider the matter before any addresses were heard, they being the only remaining part of the proceedings to be undertaken before he made a final determination on both references. On 16 October, the Tribunal delivered a ruling dismissing the application of the appellant to reopen its case to adduce the evidence from Mr Pryor. I should record that there was also an application made to reopen the appellant's case by submitting certain industrial awards which were relevant to the kind of remuneration the respondent might arguably procure in the event that the s88 reference resulted in a finding of partial incapacity as opposed to no incapacity at all. This application was likewise refused. By a notice of appeal dated 5 November, the appellant appealed against this ruling, which was described in the notice of appeal as a "determination and order".

2 When the matter came on for hearing before me, I raised with counsel the competency of the appeal, having regard to the fact that no final determination has been made by the Tribunal and that although the opportunity no doubt will have to be given to both parties to present their final addresses, the matter can be concluded without the taking of further evidence. At present the ultimate result is, of course, not known. It may well be that, notwithstanding the refusal of the appellant's applications to submit additional evidence after having closed its case, it will be totally successful in its reference and will suffer no disadvantage by virtue of the refusal.

3 The right of appeal given by the Act is set out in s63, which provides:

"63 (1) If any party to a proceeding before the Tribunal is aggrieved by any determination, order, ruling, or direction of the Tribunal in point of law, that party may appeal to the Supreme Court."

I queried with counsel for the appellant whether his client could, in the circumstances, be said to have been aggrieved by the ruling, order or determination of the Tribunal.

4 Under the appeal provisions of the Justices Act 1959, "a person who is aggrieved by an order of justices" may seek to have the order reviewed. An extended meaning is given to the term "order" by s116 of that Act, which provides that the term includes "conviction, dismissal of a complaint, determination and adjudication". There is a wealth of authority on what constitutes an order for the purposes of those provisions and I have no doubt that an adverse ruling on the admission of evidence could not be said to come within that term. In Hesselman v Reid [1973] Tas SR 93, Crawford J held that a preliminary ruling in an affiliation case to the effect that evidence that the respondent, who was under 14 years of age, had had sexual intercourse with the complainant could not be led was not a reviewable order, although the dismissal of the complaint which logically followed was reviewable. In that case, the notice of motion sought the review of the former and not the latter. It was held to be a nullity incapable of amendment.

5 Under the Act, however, rulings are expressly included in the list of matters which are appealable. No doubt had the same expression appeared in the Justices Act, the appellant in Hesselman v Reid (supra) would have had a right of appeal. However, there is a further requirement in the Act, s63, namely that the appellant must be a person aggrieved by the ruling. This expression has also been the subject of considerable discussion in previous cases, although they seem to be confined to the discrete issue whether or not a person not party to the proceedings, and hence not immediately affected by it, can be said to be aggrieved. In McCarthy v Xiong (1993) 2 Tas R 290, Green CJ said at 295:

" ... Parliament intended that in order to qualify as 'a person who is aggrieved' it is not necessary for a person to show that the rights or interests which he or she claims to have been adversely affected by the order are confined to strictly legal rights or interests. In my view therefore statements in earlier cases which had the effect of restricting the scope of the expression to persons who had suffered a strictly legal grievance are not applicable to s107 [of the Justices Act 1959] ... ."

He referred to the decision of the Privy Council in the Attorney-General of the Gambia v Pierre Sarr N'Jie [1961] AC 617 disapproving of the following dictum of James LJ in Ex parte Sidebothom (1880) 14 Ch D 458 at 465, where his Lordship said:

"A 'person aggrieved' must be a man who has suffered a 'legal grievance', a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."

Lord Denning, delivering the judgment of the Privy Council, said:

"... the words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests." (at 634)

In McCarthy v Xiong (supra), the Full Court agreed that the owner of property allegedly trespassed upon by the defendant to a complaint issued by a police officer who was not party to the appeal, had a sufficient interest in the proceedings to be aggrieved by the dismissal of the complaint. Underwood J said, at 308:

"In the present case then, the respondent has a sufficient interest in the order of dismissal to give him the status of being 'person aggrieved' within the meaning of the Justices Act, s107. Each case will turn upon its own facts, in particular the terms of the order in respect of which the review is sought. Whether or not a person is aggrieved will depend not only on the nature and extent of the interest relied upon, but also the effect the impugned order has on that interest."

6 However, even giving the expression a liberal interpretation as it has been in cases relating to standing, I cannot see how, in the circumstances of the present case, the appellant can be said to be aggrieved by the Tribunal's ruling when no adverse consequence has been shown to flow from it. All the evidence has been heard and subject only to the making of final addresses, all that remains is for the Tribunal to make its findings and ultimate order. Until that is done, it cannot be determined whether or not the appellant has been shown to have been aggrieved. If the appellant is successful in its reference, it will have suffered no disadvantage at all; if it fails, but the findings indicate that the Tribunal could not have been influenced by the foreshadowed evidence, it will likewise have suffered no disadvantage.

7 It is not, as a general rule, in the public interest that rulings on adjectival matters, which may not affect the outcome of proceedings, should be the subject of appeals to this Court before the hearings to which they relate are concluded in the Tribunal. It would lead to great inconvenience if proceedings before a Tribunal were to be interrupted or prolonged by a succession of appeals on adverse rulings concerning the admissibility of evidence or the like. There may be some cases where such a ruling may necessitate a lengthy hearing and thereby cause a detriment sufficient to make the appellant a person aggrieved. For example, had the respondent's submission in Hesselman v Reid (supra) that no evidence that he had engaged in sexual intercourse was admissible been rejected, it may be that he could have successfully claimed to be aggrieved at the loss of an entire line of defence and at being effectively required to resort to another, even before the case was ultimately decided and irrespective of the possible result. In International Catamarans Tasmania Pty Ltd v Stewart, an unreported decision of Zeeman J, B19/1994, one Commissioner ruled as a preliminary matter in favour of the employer on the sufficiency of a medical certificate. When the case came on for hearing on the merits, he had retired and another Commissioner became seized of the case. The worker sought to reargue the sufficiency of the certificate and the Commissioner ruled that he had jurisdiction to entertain such an argument. An appeal by the employer against that ruling was accepted as being competent, although the appeal was dismissed. It would appear that the appeal was accepted as competent because the employer was aggrieved at the loss by virtue of the ruling of the benefit of the earlier ruling that its certificate was sufficient, a matter which was essential to the success of its defence.

8 In the present case, the appellant has not been shown to be disadvantaged or denied any benefit at all. If the Tribunal erred in its ruling not to allow it to reopen its case and to adduce the foreshadowed evidence and that error influences the ultimate result, the appellant can be said to be a person aggrieved, but at this stage it cannot be so described. I hold that the appeal is incompetent. It is dismissed.