His Honour Deputy President Judge F.K. Cawthorne

His Honour Deputy President Judge J.P. McCusker

Appeal - Dispute over payment of entitlement - Production of various erroneous statements of account by Corporation - Severe criticism of the evidence by trial judge - Findings based upon that evidence - Whether the trial miscarried - Whether a question of law - Appeal allowed - Ss.84A, 84B, 84C, 84D, 85A, 94C Workers Rehabilitation and Compensation Act 1986.

Smith v. WorkCover Corporation/MMI WorkCover (S.A.) Ltd. (Underdale Metal Processing) J.D.10/1997.

Commonwealth Bank of Australia v. Quade and Others (1991) 178 C.L.R. 134.

The appellant appeals the Judicial Determination of a Deputy President. The issue before the Deputy President was whether the worker had been underpaid in the period 1 January 1993 to 31 October 1995. The Corporation contended not only was he paid but in fact he had been overpaid.

On appeal the appellant who appeared for himself argued that the evidence before the Tribunal at first instance was so unreliable and unsatisfactory that the learned Deputy President should not have proceeded to make any finding. Rather he ought to have forced the Corporation to produce accurate information. The respondent for its part contended the evidence was a satisfactory basis to make findings and further that the appeal did not raise a question of law in accordance with Section 86(1).

What constitutes a question of law has been considered by this Full Bench in Smith v. WorkCover Corporation/MMI WorkCover (S.A.) Ltd. (Underdale Metal Processing) J.D.10/1997. We will not repeat what was extensively set out in that case. That is the authority we rely upon in determining our approach here.

In his decision, the learned Deputy President pointed to the fact that what was involved was a matter of basic accounting. Moreover the payments having been made by a method that can be independently validated (ie. cheque), the ability to present a complete set of accounts lay with the Corporation. Despite that and despite the obvious capability and resources the Corporation had to present this material, the sorry tale of events is set out in His Honour's decision, as follows:-

`At least three sets of documents were prepared by the Corporation. The first was used in the pre-judicial determination proceedings.

The second was tendered on the first day of the hearing before me on Wednesday 3 September 1997. Three quarters of the way through that hearing counsel for WorkCover conceded that that document was not accurate and could not be accurate.

The third document was a Position Statement which became Exhibit R1 on 2 October 1997 which was said to be the considered view of the Corporation as representing an accurate transcription of accurate computer records. There may have been an additional two sets of figures prepared before (1) above - which were represented to be accurate - which representation was withdrawn from all documents other than (3) ie. R.1 above - making no less than 5 sets of documents in all - each of which in its turn was asserted to be accurate and from each of which (except the last) the Corporation withdrew its imprimatur.'

His Honour then went on to deal with the difficulties that resulted from this. He stated:-

`I do say however that the discrepancies in the three sets of documents that I have seen (and perhaps in the two that proceeded those three) make it very difficult for me to understand what payments have been made to the worker and do little to inspire any confidence in their accuracy.'

He went on to acknowledge the admissibility of the document (Section 45(a) and 45(c) Evidence Act). But his comments about admissibility are to be understood as entirely different from the issue of reliability. He said:-

`Indeed this matter could only proceed on the basis that the document is accepted as accurately reproducing the original records of the compensating authority.

The weight that ought to be accorded to the document, bearing in mind that it is significantly different from two previous documents used in the Tribunal, is a matter for conjecture.'

His Honour then demonstrated the scale of the problem he faced by analysing six separate aspects of the material using the first set of accounts submitted, the second set of accounts and then Exhibit R1. In every aspect the figures differed: (see Appeal Book p.114). We can only say that the degree of inaccuracy demonstrated by His Honour's analysis is beyond comprehension. Having engaged in that demonstration his Honour then made a comment which can aptly be described as an understatement.

`The discrepancy in the totals all of which are said to be faithful transcriptions of the Corporation's computer files and each in its turn asserted to be correct, casts a pall of uncertainty over this whole exercise.'

It is that state of affairs that his Honour had before him and upon which he had to decide whether it or not to employ this material to make a judicial determination. The issue in this case is whether his decision to proceed was an error of law.

Mr. Stanley has contended that apart from the demonstrated discrepancies (ie. those identified by his Honour) there is no evidence to indicate R1 is not reliable (48). Moreover the only issue was the basis for concluding the worker's claim for underpayment was not made out, the issue of overpayment not being pursued by the Corporation. We reject both of these contentions. The learned Deputy President was addressing his disquiet to Exhibit R1, the basic material for a contention of overpayment or underpayment. He stated at the end of his judgment as follows (119):-

`At the end of the day I must say that I am left in a state of confusion about the figures supplied by the Corporation because:-

1. There are significant differences in the critical totals.

2. The amount paid by WorkCover has been overstated by $3,372.46.

3. There is the curious discrepancy in Schedule B.

4. Schedule A is clearly wrong to the extent of $3,372.46.

I am unable to say with any confidence what the true position of the parties for the period January 1993 to October 1995 (sic).'

The duty imposed on the Tribunal is contained in Division 6 of Part 6A. Section 94C sets down the approach to be taken.

`94C. (1) In proceedings under this Division, the Tribunal must rehear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings.

(a) the Tribunal may accept in evidence transcripts of evidence and other evidentiary material introduced in proceedings for arbitration of the dispute; and

(b) the Tribunal will not take evidence that should, in the Tribunal's opinion, have been introduced in proceedings for arbitration of the dispute unless -

(i) there is an adequate reason why the evidence was not introduced in the earlier proceedings; or

(ii) the interests of justice require admission of the evidence; and

Additional to this duty are the various provisions as to how the Tribunal must deal with evidence set out in Divisions 8 and 9 of Part 6 and we set those out.

`84. The Tribunal is not bound by the rules of evidence but inform itself in any way it considers appropriate.

`84A. (1) The Tribunal may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Tribunal at a specified time and place to give evidence or to produce evidentiary material (or both).

(2) A summons to produce evidentiary material may, instead of providing for production of the material before the Tribunal, provide for production of the material to an officer of the Tribunal nominated in the summons.

84B. (1) A person who is called to give evidence or to produce evidentiary material before the Tribunal and -

(a) refuses or fails to make an oath or affirmation when required to do so by the Tribunal; or

(b) refuses or fails to give evidence on a subject on which that person is compellable to give evidence; or

(c) refuses or fails without reasonable excuse to produce evidentiary material that that person is required by the Tribunal to produce,

(2) This section applies whether the person was summoned before the Tribunal, brought before the Tribunal on a warrant, or came to the Tribunal of his or her own volition.

84C. (1) The Tribunal may enter any land or building and carry out an inspection that the Tribunal considers relevant to a proceeding before the Tribunal.

(2) The Tribunal may authorise an officer of the Tribunal to enter any land or building and carry out an inspection that the Tribunal considers relevant to a proceeding before the Tribunal.

(3) A person who obstructs the Tribunal, or a person authorised by the Tribunal, in the exercise of a power of entry or inspection under this section commits a contempt of the Tribunal.

84D. (1) A summons under this Part may be issued on behalf of the Tribunal by -

(2) However, the Registrar may only issue a summons at the direction of a presidential member or a conciliation and arbitration officer or as authorised under the Rules.

85. The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

85A. (1) The Tribunal must hear proceedings (other than interlocutory or conciliation proceedings) in a place open to the public.

(2) However, the Tribunal may, in the interests of a party to proceedings hear the proceedings, or a particular part of the proceedings, in private.

In our view those provisions ought to be sufficient to avoid a situation of the Tribunal being held to ransom by the behaviour and failures of the Corporation. (See also the powers contained in Rule 5 of the Workers Compensation Tribunal Rules 1996).

It is important to appreciate the circumstances of this case. The answer to the question at issue hinged upon the accuracy of the accounts provided. The appellant strenuously protested the accuracy of the figures and accounts in R1. The Deputy President, as indicated by the comments he made felt entirely unhappy about the accuracy of the material. His reasons for this were utterly justifiable. In those circumstances as a matter of law what course should he have taken. As indicated he had means to seek the answers from other sources than the source which had proved so regularly unreliable. He could have had an officer of the Tribunal conduct an independent examination and audit of the records. That would have relieved His Honour of making comments that could only throw a permanent shadow over the result.

Though in a different context, (failure to discover certain relevant documents), the approach of the Court in Commonwealth Bank of Australia v. Quade and Others (1991) 178 C.L.R. 134 is instructive in the general approach required of the Courts in matters of this kind. The issue dealt with there was the issue of reconciling the demands of justice with the policy in the public interest in bringing suits to finality. The Court held the former as paramount.

The trial in our opinion has for this reason miscarried. The appeal is allowed. The result is set aside and the matter remitted for rehearing.