HOBART, 27 November 1997 (hearing), 3 December 1997 (decision)

On 8 June 1997, the respondent worker claimed compensation from his employers (the appellants) in respect of incapacity allegedly due to back injury resulting from a defective seat in a log truck of which he was the driver.

The respondent consulted a medical practitioner on 4 June 1997 who certified that he was suffering from a disease, symptoms of which had become evident on 1 May 1997. The respondent's written report initiating the claim for compensation certified that the "injury or condition" was first noticed or identified on 19 May 1997. He certified also that he first notified the first appellant of this at 6pm on 4 June 1997.

The appellants disputed liability to pay compensation on the stated basis that "there is insufficient evidence to substantiate that the worker's condition arose out of and in the course of his employment." The matter was referred by the appellants to the Workers Rehabilitation and Compensation Tribunal under the Workers Rehabilitation and Compensation Act 1988, s81A ("the Act") seeking a determination that a genuine dispute existed.

Both the appellants and the respondent were represented by legal counsel at the ensuing hearing before the Tribunal which was constituted by the Chief Commissioner.

"The employer has referred this matter to you pursuant to s 81A of the Act. He is seeking an order that there is a genuine dispute in relation to the claim. The basis of my submission for that today is that notice was not given as soon as practicable ...".

The first appellant, Mr Townsend, then gave evidence, during which he said that the respondent had first notified the Townsend partnership that he suffered from pain in his back on 23 May 1997. The first appellant also said that since the claim for compensation had been lodged, he had received information from a loss assessor that the respondent had first claimed to that loss assessor that "he had problems late March -- early April." The plain inference from the context in which this evidence was given is that the "problems" were back problems.

The first appellant's evidence concluded as follows:

"And, Mr Townsend, you are disputing the claim today, the claim that Mr Balmer has made, because he hasn't sufficiently given you notice of the claim, is that what you're saying? ... Yes. And also because you're not satisfied that the injury arose out of his employment? ... No."

Despite the negative answer to the final question, it is fairly clear that the witness was in fact asserting that the claim was being disputed because he was not satisfied that the injury arose out of the respondent's employment.

In cross-examination the witness was asked, "So the reason for your disputing the claim is because of the failure to give notice, and that's the sole reason?" To this question the first appellant replied, "Yes".

At the conclusion of the first appellant's evidence, counsel for the respondent addressed the Chief Commissioner in the following terms:

"MR GRUEBER: In my submission, sir, there is no dispute in this matter. It's quite clear, as Mr Townsend has just said, that the only basis for the dispute is failure to give notice. It's equally clear on the face of the Workers Compensation medical certificates that the condition for which Mr Balmer has made his claim is characterised as a disease. As a result of that, the effect of s 3(5) is to deem that he suffers that disease at the time at which he becomes incapacitated for work and on that basis he must have given notice by obtaining a certificate and putting his claim in. COMMISSIONER: Said to be unfit from the 5th of June. Give notice on the 4th of June at 6 pm. MR GRUEBER: Well then he's given it in advance. COMMISSIONER: That's the problem with statutory fiction like that. But you say it can't possibly be that you could possibly persuade a tribunal that notice hasn't been given as soon as practicable in those circumstances? MR GRUEBER: That's my submission yes."

The learned Chief Commissioner then invited counsel for the appellants to respond. She did so as follows:

"MISS McCULLOCH: Sir, in my submission there is material before you to make a finding that there is a genuine dispute and that the employer is not disputing this claim on frivolous grounds. He has given evidence in chief that the matters that he was talking about in his evidence also led him to the belief that the claim doesn't arise out ... the course of his employment. COMMISSIONER: I'm sorry, who is this? MISS McCULLOCH: Mr Townsend. COMMISSIONER: You're talking about Mr Townsend, are you? MISS McCULLOCH: Yes, yes. COMMISSIONER: His evidence in cross-examination was that the sole reason for disputing the claim was the failure to give notice which was the matter that you ran before me. MISS McCULLOCH: Yes, but my submission is that in the evidence in chief -- it's a matter of [sic] you, of course, but in my submission in his evidence in chief he said that those matters had caused him -- given him reason to dispute the claim because he wasn't satisfied that it had arisen in the course of his employment. In any event, sir, it would be my submission that there is sufficient evidence before you that Mr Balmer was having difficulties with his back well prior to the lodgement of the claim and that he didn't advise his employer of that but he did have opportunity to. Mr Balmer says that he -- well -- COMMISSIONER: He doesn't have to, does he? He's being certified as suffering from a disease, I don't know what it is. Low back pain is not exactly a diagnosis. There's something wrong with the bottom part of his back, he claims that to have suffered as a result of driving a defective truck with a defective seat in it. In accordance with the provisions of the Act he's deemed to have suffered that injury on a certain day, that is when he first becomes totally or partially incapacitated by it and the only time he's done that is when Doctor Thurlow gave him a certificate dated the 4th of June for incapacity arising on the 5th of June. Surely that's when he has to give notice, when he suffers the injury. And you're not seriously going to try and persuade me that he hasn't given notice as soon as practicable in those circumstances. MISS McCULLOCH: No, sir. COMMISSIONER: Do you want to reassess this claim? MISS McCULLOCH: I wonder if I could just maybe have the matter stood down for a few moments, we might be able to deal with it then. COMMISSIONER: I'm happy to do that. THEN FOLLOWED A SHORT ADJOURNMENT UPON RESUMPTION MISS McCULLOCH: Sir, I'm in a position where I'd have to ask whether the witness could be recalled."

Miss McCulloch's application to recall the witness was opposed by Mr Grueber. A discussion took placing involving the Chief Commissioner, counsel and the respondent, during which Miss McCulloch at first indicated that she would withdraw her application to re-open her case, but then sought to do so, not by recalling the first appellant, but by tendering "a report from Websters who inspected the seat". The nature of the report was not disclosed.

Miss McCulloch indicated that she was not in a position to deal with Mr Grueber's objection to her re-opening her clients' case. She sought the opportunity to consider the matter further. The learned Chief Commissioner said, "... the matter will stand adjourned for a decision as to whether I should permit you to reopen and I think I can do that fairly quickly and fax the decision to both of you."

After a further brief discussion with counsel, the learned Chief Commissioner said:

"Okay. Well that doesn't overcome the problem of whether there's a genuine dispute or not or whether I should permit the employer to reopen his case, which I will determine shortly and I will let you know what happens after that. Okay, the matter will stand adjourned until then, thank you."

On 14 August 1997, without having invited or received further submissions, the learned Chief Commissioner made an order under the Act, s61 in the following terms:

"After hearing the parties herein I determine that there is no genuine dispute in relation to this matter and order that weekly payments and the cost of benefits be paid."

In his published reasons, the learned Chief Commissioner ruled that the appellants should not be permitted to re-open their case on the basis that they had not satisfied the preconditions for doing so discussed in Murray v Figge (1974) 4 ALR 612 which he enumerated as follows:

"'1 The evidence could not by reasonable diligence have been discovered before; 2 The evidence is so material that the "interests of justice" require its admission; 3 The evidence will have an important bearing on the result; 4 Where invertence [sic] (clearly this should be "inadvertence") is the reason for the need to reopen, there is no prejudice to the other party by its late introduction'."

The learned Chief Commissioner then went on to consider the appellants' reference on its merits. He took the view that the attempt to dispute the worker's claim for lack of reasonable notice was misconceived as no notification was required by the Act until incapacity had resulted from the relevant disease. He observed that this had not occurred until June when the doctor gave his medical certificate to that effect. He refused to determine that there was a genuine dispute and made the order which has been set out above.

The appellants have appealed on the following grounds:

"1 The Tribunal found that the employer was not genuine in its dispute of the worker's claim on the basis that the employer did not consider that the worker had given notice as soon as practicable as is required by Section 32(1)(a) of the Workers Rehabilitation & Compensation Act 1988 when there was no evidence, or no adequate evidence upon which a Tribunal acting reasonably could so determine. 2 The Tribunal was wrong in law and in breach of the rules of procedural fairness in refusing to allow the employer to reopen its case."

When the appeal came on for hearing, a third ground of appeal was added without objection:

"3 The learned Chief Commissioner erred in law in that he failed to afford to counsel for the employer a proper opportunity to address him following the close of evidence."

In my opinion, each ground of appeal may be dealt with shortly.

It seems to me that the learned Chief Commissioner was correct in saying that there could be no legitimate complaint by the employer that notice had not been given as soon as practicable. On the facts there was simply no room for such an argument. That, however, was only one part of the employer's case. Obviously some confusion crept into the proceedings but, in my opinion, it is plain enough that the employer was seeking to dispute the allegation that the back injury was caused during the respondent's employment. The references which were made to the date of the initial complaint of back pain and the report by Websters, all suggest quite clearly to me that the employer was suggesting that the complaint of pain in March/April to the loss assessor indicated that the causative injury or onset of symptoms had occurred even earlier than the worker was alleging when he made his claim. The nature of the Webster's report was not explained, but if, as alleged, it related to the seat, it may have suggested that the seat was not defective and therefore could not be the cause of the respondent's condition as asserted by him.

The learned Chief Commissioner adverted to these matters in his reasons but concluded, wrongly, in my opinion, that the sole basis of the employer's challenge was related to the sufficiency of the worker's notification of his condition to the employer. Obviously the issue upon which the employer sought to dispute liability went well beyond that.

Secondly, in directing himself as he did in relation to the decision in Murray v Figge (supra), the learned Chief Commissioner was in error, in my view. A party seeking to re-open his case may do so on the basis that new evidence has become available since closing his case during the trial, or he may do so on the basis that he inadvertently overlooked calling relevant evidence contained in his brief. The approach to resolving such an application would be different in each case.

In the hypothetical circumstances first described, the first three principles in Murray v Figge (supra) stated by the learned Chief Commissioner would be applicable. In the circumstances second described, principles 2, 3 and 4 would apply. The four principles are not cumulative. Principle 1 and principle 4 are alternatives which will apply or not apply, depending on the nature of the case.

In Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471, Clarke JA said at 478:

"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. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel."

"Where, as here, a defendant announced the closing of its case and, there being no case in reply, a short time later sought leave to re-open because its counsel realised he had made a mistake it is difficult to discern how the interests of justice would be furthered by disallowing an application to re-open to call evidence which was clearly relevant to, and may have had a significant impact on, the issues in the case. It is true that the fact that there has been a deliberate decision not to call the witness whose evidence it is later sought to lead in a re-opened case is a relevant consideration. But there may be a number of reasons why a deliberate decision is made. It may, for instance, be made for tactical reasons.

On the other hand it may be that in the heat of the moment counsel has inadvertently overlooked facts proven in the opponent's case or has otherwise acted on some misapprehension. Where the failure to lead evidence from a witness whom it is afterwards desired to call results from a tactical decision by counsel the courts will usually be disinclined to grant an application to re-open. Even in these circumstances, however, the court has a discretion to grant an application by a party to re-open its case and the interests of justice may dictate that the application be allowed. In short the fact that a deliberate decision was taken for tactical reasons is not decisive but remains an important factor.

If, however, counsel inadvertently fails to call a witness different considerations arise and, as it seems to me, if counsel makes a deliberate decision based on a mistaken apprehension of the nature of the evidence called against his client or the admissibility of the evidence which he seeks to call the justice of the case may well point to the granting of the application. The decision made by counsel in this case although a deliberate one stands in a very different category from one based on tactical grounds. It is more appropriately regarded as one in which counsel had made a mistake or failed to appreciate the relevance and admissibility of the evidence which he omitted to lead."

In my opinion, the learned Chief Commissioner misapprehended the principles upon which his discretionary decision to permit or refuse a re-opening of the appellants' case should have been based and, as a consequence, his discretion miscarried.

There is a positive requirement in the Act for the Tribunal to exercise procedural fairness (s57(1)).

"The Tribunal is required to afford procedural fairness to all parties seeking determination. The wide powers afforded by the Act, s49 must be exercised in accordance with the rules of procedural fairness which require that no findings of fact should be made 'unless each party has had a proper opportunity of putting before [the Tribunal] material to such issue of fact and of challenging and testing any such material put before [it] by any other party ...' (White v FAI General Insurance Co Ltd & Anor A29/1991, Zeeman J at 8)."

In Ridgeway v Hanlon A65/1994 (unreported, available in SCALEplus), Zeeman J said:

"In particular, it is fundamental to fair proceedings in a court that a party to those proceedings must be afforded a reasonable opportunity to persuade the court as to the merits of that party's case (Escobar v Spindaleri (1986) 7 NSWLR 51 at 55). The ability of parties to address at the close of the evidence is conducive to ensuring that the judicial officer will be positively assisted towards a fair and just exercise of his jurisdiction (cf Salemi v Mackellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 442). It cannot be doubted that the appellant was entitled to address the learned Commissioner at the close of the evidence and that he ought to have been afforded the opportunity to do so. I do not consider that the failure of counsel for the appellant to expressly assert a right to address the learned Commissioner amounted to a waiver of that right. It follows that the ground of appeal is made out."

In the last mentioned case, his Honour was dealing with proceedings in a Court of Requests but, in my opinion, the principle stated applies equally to any Tribunal acting judicially to determine the rights and liabilities of parties. The Tribunal was so acting in this case.

In my opinion, it is clear that the learned Chief Commissioner indicated that he was adjourning to consider only the issue whether or not he should permit the appellants to re-open their case. This was a discrete issue. Although the initial submission by counsel for the respondent was that "there is no dispute in this matter", it is not clear to me whether this was, in effect, a no case submission or a preliminary opening observation. If overruled, he may well have decided to call evidence. Opposing counsel did not ask that he be put to his election whether to submit "no case" or go into evidence.

In my opinion, the substantive issue upon which the reference had been made to the Tribunal was well and truly alive when Miss McCulloch applied to re-open her case. She was given an opportunity to deal with the respondent's submission, it is true, but in the course of doing so she made her application to call further evidence. Until she knew the fate of that application, she would have been unable to deal properly with the respondent's submissions.

By denying her this opportunity and in making the determination which he did, I think that the learned Chief Commissioner failed to accord her procedural fairness. For these reasons I am of opinion that all three grounds of appeal have been made out.

1 the appeal is allowed;

2 the order and determination of the Tribunal upon reference No 713/1997 is set aside;

3 reference No 713/1997 is remitted to the Tribunal to be heard and determined in accordance with law.