TRIBUNAL: His Honour Deputy President Acting Judge B.P. Gilchrist

Judicial determination - Ruling - Various Notices of Dispute before the Tribunal some of which were lodged after the employer came into possession of surveillance film, the existence of which was not disclosed to a Conciliation Officer - Worker contends that all surveillance film should be declared inadmissible - Discussion of the Tribunal's powers to make orders - The order should be to cure prejudice not to punish - Inappropriate to make order - Matters bypassed conciliation as a result of the parties consent to enlarge the issue of other disputes pursuant to section 88DA - In giving consent worker was unaware of all potential material facts, namely the existence of surveillance film - Worker invited to consider making an application under section 88H for an order revoking the order previously made under section 88DA - Application made - Application allowed - As a result those matters not previously referred to conciliation will now to pursue that path - Hearing adjourned Ss.88DA, 88H, 92(1)(b) and (2), 92D Workers Rehabilitation and Compensation Act 1986; Workers Compensation Tribunal Rules 1996; Supreme Court Rules.

Treleavan v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd. (Ridgepark Nursing Home) J.D. 17/1998.

Workers Rehabilitation and Compensation Corporation v. York Civil

Mazinski v. Bacca (1978) 20 S.A.S.R. 350.

R. v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321.

Miller v. Miller [1978] HCA 44; (1978) 141 C.L.R. 269.

As a result of certain developments that arose during the course of the hearing of a judicial determination in relation to various disputes between Linda Monash (the worker) and the State of South Australia (the employer) it became necessary for me to make various rulings regarding the future of the trial. I set out hereunder my reasons for making those rulings.

The worker's counsel becomes aware of the existence of surveillance film

During the course of the worker's cross-examination and as a result of the nature of certain questions that have been put to her, the worker's counsel, Mr. Griffin, enquired of the employer's counsel, Ms. Mack, whether the employer was in possession of surveillance film that it intended to rely upon during the course of these proceedings. Having been told yes to both of these enquiries, Mr. Griffin made an application to me for an order declaring the surveillance film inadmissible.

In order to understand the basis of the application it is necessary for me to set out some of the history relating to this matter.

The worker allegedly suffered various disabilities in the course of her employment with the employer, in respect of which she sought various species of compensation pursuant to the Act. The employer determined that she was entitled to income maintenance in respect of the disability to her neck sustained on 18 July 1996 and it later determined that she was entitled to compensation pursuant to section 43 in respect thereof. It prepared various rehabilitation plans relating to this disability that were designed to facilitate the worker's return to productive work. The employer rejected the claims for compensation in respect of the other alleged disabilities. It also rejected some claims in relation to compensation sought pursuant to section 32 in respect of the neck disability. The worker disputes the employer's determination of her average weekly earnings. She disputes the quantum of the section 43 assessment. She disputes the reasonableness of the provisions of the rehabilitation plans. She disputes the rejection of her other claimed disabilities. She disputes the rejection of her claims for section 32 expenses.

These disputes were the subject of a number of Notices of Dispute. By 7 May 1998, a number of them had passed through the dispute resolution process and had resulted in an application being made before me for orders pursuant to section 92D of the Act for them to proceed to immediate judicial determination. I was concerned about the ever-increasing number of Notices of Dispute. I thought that the more expeditious way of dealing with this matter was to have the worker file a statement of claim setting out all of the relief that she sought with a view that I would make an order pursuant to section 88DA of the Act to expand the issues in dispute to include the determination of any matters not formally raised in any of the Notices previously filed.

Subsequent to 7 May 1998, the employer came into possession of surveillance film of the worker. In respect of those matters that had already passed through the process of conciliation by 7 May 1998, it was not, in my view, obliged to disclose the existence of that film. For the reasons which I explained in Treleavan v. WorkCover Corporation/ MMI Workers Compensation (SA) Ltd. (Ridgepark Nursing Home) J.D. 17/1998, once the process of conciliation has passed, the obligations imposed by section 92(1)(b), of which I will speak more about shortly, cease to apply. In my view, the position is governed by Rule 1(1) of the Workers Compensation Tribunal Rules 1996 (`the rules') and Rule 58.07 of the Supreme Court Rules.

What complicates this matter is that subsequent to 7 May 1998, further Notices of Dispute were lodged. Some of these were in respect of matters not previously in dispute between the parties. One, for example, related to a determination made by the employer on 2 March 1999, to discontinue weekly payments on the grounds of the worker's alleged breach of mutuality and her alleged cessation of incapacity for work. The Notice of Dispute relating to this was filed on 11 March 1999. Following its lodgement, the employer filed a Form 3 `Confirmation of Disputed Decision'. In accordance with rule 2(8), the matter was then referred to a Conciliation Officer. Thereafter, the employer was advised of that referral, at which point the employer had an obligation to file within seven days, in accordance with rule 2(13), an index of all relevant documents.

Pursuant to Rule 24 the President may issue practice directions from time to time which have the force of the rules.

`The index of documents filed by a compensating authority upon referral of a matter to conciliation must include reference to any documentation pertaining to any evidence including video evidence. If a party wishes to object to another party having access to any evidentiary material, that objection should be noted in the index of documents. In such a case it will be a matter for the conciliation officer to determine the manner in which the objection will be dealt with.' (emphasis added)

This practice direction gives effect to section 92(1)(b) and (2). Those provisions provide as follows:-

`(b) each party to the dispute must, in accordance with the rules-

(i) disclose to the conciliator the existence and nature of all evidentiary material in the party's possession relevant to the dispute; and

(ii) at the request of another party to the dispute, give the party access to the relevant evidentiary material.'

(2) However, if the conciliator agrees, a party need not give another party access to evidentiary material if-

(a) the material is a videotape, photographic material, or a report of surveillance; or

(b) the disclosure of the material could prejudice the investigation of a suspected offence.'

It simply applied to have this and the other disputes lodged after 7 May 1998 joined with the disputes that were already before me in the expectation that the proceedings before me would be enlarged to include the resolution of the issues raised by these Notices. That order was duly made and all issues between the parties were placed before for my adjudication by a consent order pursuant to section 88DA. As a result of this, at least in respect of some of the matters before me, section 92(1)(b) of the Act has not been complied with.

The worker contends that the employer's failure to comply with section 92(1)(b) is decisive. Mr. Griffin submits that the non-compliance means that the employer has forfeited the right to rely upon the surveillance film in respect of any of the proceedings before me and that this applies to all film, not just that obtained prior to the date of the alleged non-compliance.

Firstly, that I have a general discretion to exclude evidence. That is undoubtedly correct: Workers Rehabilitation and Compensation Corporation v. York Civil J.D. 22/1997; Mazinski v. Bacca (1978) 20 S.A.S.R. 350.

Secondly, that unless there is some sanction for the non-compliance with section 92(1)(b), the provision will be rendered nugatory. This submission has much merit. The dispute resolution process provided for by the Act is clearly focussed towards the prompt resolution of disputes and contemplates significant intervention by Conciliation Officers to enable that to occur. In relation thereto, Parliament has decided that the Conciliation Officer should be made aware of the existence of surveillance film and that it should be left to the Conciliation Officer not the compensating authority, to decide whether or not the contents of the surveillance film should be disclosed to the worker. If a compensating authority could ignore section 92(1)(b) with complete impunity the objects of the provision will have been effectively negated.

Thirdly, that the most effective sanction to ensure compliance with section 92(1)(b) is to declare inadmissible all surveillance film that the employer wishes to rely upon. No doubt this would be a most effective sanction, but for the reasons which I will explain shortly, I do not think that it is the appropriate one to apply here.

Fourthly, that the proposition just contended for or some intermediate position can be inferred as an implied legislative direction or can otherwise be regarded as the product of the implied power of the Tribunal to prevent abuses of process. There is support for this in R. v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321 at 334 per Barwick C.J.; Miller v. Miller [1978] HCA 44; (1978) 141 C.L.R. 269 at 277 per Gibbs J. (as he then was); and Mazinski v. Bacca (supra) at 381 per Wells J..

The Tribunal undoubtedly possesses a general power to mould such orders and remedies as are necessary to ensure compliance with the Act and rules, if to do otherwise would result in an injustice and/or prejudice to the other parties to the dispute.

But other than in respect of the power to fine for contempt, there is no power in the Tribunal to impose sanctions as a form of rebuke against the defaulting party, the purpose of which is not just to cure the default but also to penalise the defaulter.

It is likely that the employer's non-compliance with section 92(1)(d) was not calculated to avoid the obligations imposed by that provision but rather it was unintended consequence of the way that this matter proceeded. But even if that were not so I think that to grant the worker the relief that she seeks would go further than what is required to cure any prejudice that the worker may have suffered as a result of the employer's non-compliance with the Act and rules. If the worker has suffered any prejudice, that prejudice could be cured by adjourning these proceedings, revoking the order that was made pursuant to section 88DA and allowing those disputes that have not proceeded in the normal way to now be referred to a Conciliation Officer to enable that to occur.

The worker applies to have the section 88DA order revoked

Having indicated that I would not make an order declaring the surveillance film inadmissible and as a result of discussions with counsel, the worker's counsel sought instructions and then made a formal application pursuant to section 88H of the Act for the order that I made pursuant to section 88DA to be revoked. Section 88H relevantly provides as follows:

`88H. (1) The Tribunal may amend or set aside a judgment or order of the Tribunal-

(c) if the interests of justice require that the judgment or order be amended or set aside.

The basis of the application was that the worker's consent to the order was not a valid consent because at the time of giving it, she was not in possession of all relevant facts, had she been aware of those facts she would not have given her consent and, having done so, she might be prejudiced.

The employer did not oppose the application but I did not understand it to be consenting to it. I therefore dealt with the application on the basis that if the order was to be made I had to be satisfied with in accordance section 88H(1)(c) that the justice of the case required it. The employer submitted that the worker has suffered no prejudice as a result of her giving consent. That may or may not be so. However in my opinion if a party has consented to an order under section 88DA without possession of all relevant facts and upon becoming aware of all relevant facts seeks to withdraw that consent, even if there is no actual prejudice demonstrated, provided that the revocation of the section 88DA order would not cause a manifest injustice to the other party, favourable consideration should be given to revoking the order.

In this case, the way the trial unfolded, it was never going to be completed within the time set aside. In other words further time would have to be set at a later date for the trial to be completed. Whilst a delay in these proceedings to enable the dispute resolution process to proceed through its normal path in relation to those disputes that were the subject of the section 88DA order, will undoubtedly will cause the employer some inconvenience, in all of the circumstances I thought it appropriate to revoke the section 88DA order.

Mr. Griffin submitted that having made an order revoking the section 88DA order, I should award costs of the proceedings to the worker. The employer opposed the making of that order but indicated that it would consent to an order for the worker to receive the costs of the application and the costs thrown away as a result of the adjournment of these proceedings (given that such adjournment is an evitable consequence of the successful application to revoke the section 88DA order).

I think that the employer was right to have indicated its preparedness to consent to some costs being paid by it. Irrespective of the ultimate outcome of this case, the worker in making this application has not acted unreasonably. In any case, even if one accepts that the employer did not deliberately seek to avoid the potential disclosure of the film, it should have been aware that the worker's lack of knowledge of its existence might have been a factor that influenced her decision to consent to the section 88DA order.

In all the circumstances I thought the appropriate order to make as to costs was for the costs of the proceedings to be reserved; the employer to pay the worker's costs of the application and costs thrown away by reason of the adjournment, in any event.

The trial is adjourned to a date to be fixed. I grant the parties liberty to apply.

Parties are advised that if a party wishes to appeal against any part of this decision, which is appealable pursuant to Section 89(1) of the Act, such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.