Moore-McQuillan v Workcover/Royal and Sun Alliance

"1. You are presently in receipt of weekly payments of income maintenance in respect of a left knee strain sustained on 9/9/90.

2. You have been incapacitated for work for a period exceeding two years.

3. By Notice dated 22/10/1999 you were advised of a pending review of your weekly payments and the evidence relating to it.

4. However, you have admitted performing diving work to assist a friend in the course of proceedings in the Supreme Court of South Australia.

5. We have not received any submission from you on the matter.

6. In light of the apparent inconsistency between what you have asserted and your admission of performing diving work, we are satisfied that you are capable of performing work as either a diver, or as a diving supervisor or as a diving instructor.

7. The Corporation is of the view that you are capable of earning $968.71 gross per week from employment of the relevant kind namely as a diving supervisor pursuant to the Ports Corp South Australian Enterprise Bargaining Agreement, 1997 - 2000 pursuant to Schedule 1 Classification Salaried Employees as a diving supervisor earning $50372.80 gross per annum as a diving supervisor and that is the precise basis of the proposed reduction. In the alternative it is proposed to reduce weekly payments of income maintenance to you on the basis that you be treated as a diver pursuant to the Ports Corp South Australia Enterprise Agreement 1997 - 2000. In the further alternative, it is proposed to reduce weekly payments based on what you are capable of earning as a diving instructor.

8. On the basis of the information at present held by the Corporation and the facts described above, the Corporation proposes to make a determination which refers to s 35(2) of the Act that your entitlement to weekly payments of compensation will decrease to an amount of $220.70 gross per week. This amount will represent 80 percent of the difference between your notional weekly earnings and the amount you are capable of earning in employment of the relevant kind. Annexed hereto is a copy of the provisions of s 35(2) of the Act ...".

3 The appellant disputed this determination by notice of dispute filed on 3 December 1999. After the matter progressed through the dispute resolution process provided for by the Act it ultimately came on for determination before the learned Deputy President.

4 After making a preliminary ruling that the appellant was capable of conducting this litigation, despite protests from him to the contrary, the learned Deputy President conducted a hearing that took place over some 10 sitting days.

5 At trial, the respondent placed evidence before the learned Deputy President for the purpose of persuading him that the worker was in fact performing scuba diving instruction work similar to that which he had been doing prior to sustaining the compensable disability. This evidence comprised of many hours of videotape surveillance taken over a period of time from late 1998 to early 2000, the testimony of investigation agents and the testimony of orthopaedic surgeons, Mr Moss and Mr Fry.

6 The learned Deputy President described evidence of the video surveillance and the evidence of the investigators as follows thus (par 38):-

"The testimony and video evidence of the investigation agents was, to say the least, very damaging to the worker's contention that he has been and remains incapacitated for scuba diving and diving instruction of the sort that he engaged in pre-injury, and to his contention that he has an ongoing disability of consequence in relation to these activities. It was also seriously damaging to his credibility."

7 An issue that arose before the learned Deputy President was whether this evidence should be received into evidence. It was noted that the appellant contended that this evidence should be excluded on the grounds:-

"(a) that no authority had been issued by the Corporation under s110 of the Act to enable surveillance of him.

(b) that the surveillance was conducted in breach of undertakings made by the Corporation and/or its agents that there would be no surveillance.

(c) that the deployment of the agent Rorie under the guise of being a diving student meant that all of the observations had been obtained by entrapment and should be exclude on that basis.

(d) that all of the agents had committed the offence of stalking the worker in breach of s 19AA of the Criminal Law Consolidation Act 1935."

8 Having noted these objections, the learned Deputy President resolved to admit the evidence.

9 On appeal, the appellant contends that the learned Deputy President erred in so doing.

10 As the course of the hearing unfolded it became clear that the Corporation's case was not limited to its assertions about the appellant's alleged capacity to undertake commercial diving, but it included an assertion regarding his capacity to undertake work as a diving instructor. At trial, the appellant took issue with this before the learned Deputy President. The learned Deputy President dealt with this in his judgment at par 155 - 156 as follows:-

"In the course of the hearing the worker claimed to have been taken by surprise to learn that the Corporation's determination was concerned with his capacity to work as a diving instructor and was not limited to `commercial' diving. The determination makes no mention of commercial diving and makes it plain enough that what is being asserted is that the `suitable employment' within the worker's capacity is work either as a diver, or `in the alternative as a diving supervisor', or `in the further alternative as a diving instructor'. It cites the Ports Corp South Australian Enterprise Bargaining Agreement to provide a weekly earnings figure for the allegedly suitable employment as a diving supervisor.

Even if it be true that the worker was initially under any misapprehension about the determination, it is clear that by the start of the fourth day's hearing on 15 December 1999 (sic 2000) he was aware that the matter was not limited to a consideration of his capacity to work as a diving supervisor at Ports Corp. The Corporation's case was closed at the end of the sixth day's hearing on 9 January 2001. The worker proceeded with his case on the following morning. He had ample opportunity to address the issues in their entirety."

11 The appellant contends that as he had not consented to an order pursuant to s 88DA of the Act agreeing to expand the issues in dispute between the parties to include this, the learned Deputy President erred in giving consideration to the appellant's capacity to undertake work as a diving instructor. He submitted that the learned Deputy President should have limited his inquiry solely to the issue as to whether or not the appellant was capable of working as a commercial diver and had he done so, the only conclusion that could reasonably have been reached was that the appellant did not have that capacity such that the respondent's determination should have been overturned.

12 As will become apparent, the hearing before the learned Deputy President was at times conducted in a very acrimonious manner. The appellant was on a number of occasions disrespectful of the learned Deputy President, and abusive to counsel for the respondent and to witnesses that were called before the Tribunal. The learned Deputy President commented upon this in his judgment. He said at par 159:-

"The hearing of these matters was rendered an ordeal for everyone by reason of the worker's disruptive and aggressive behaviour, threats to counsel, appallingly crude language and total lack of respect for anyone. The transcript speaks for itself. If the worker intended by his conduct to demonstrate some inability to control himself and/or inability to conduct the proceedings, he failed. To the contrary, it was patently clear to me that his conduct was contrived and that he could control himself when he wanted to. Having now had the advantage of hearing and observing the worker over another ten hearings days, I am reassured in my earlier judgment that he was not by reason of any medical condition disadvantaged in any way in the conduct of his proceedings."

13 On occasions the learned Deputy President made rulings on evidentiary issues against the appellant and censured him for his conduct. During the course of the trial the appellant asked the learned Deputy President to disqualify himself. The learned Deputy President refused to do so.

14 The appellant contends that the learned Deputy President should have disqualified himself on the grounds that he was actually biased. Although he did not exactly articulate it in this way, we also understand his submissions to contend that even if the learned Deputy President was not actually biased, a fair minded lay observer would have concerns about the learned Deputy President's capacity to bring an impartial mind to the case and consistent with the relevant authorities, that of itself, was sufficient ground to conclude that the learned Deputy President should have disqualified himself in which case, his decision should not be allowed to stand.

15 Although the Corporation's determination simply sought to reduce the worker's weekly payments of income maintenance to reflect the appellant's alleged capacity to earn $968.71 per week, the learned Deputy President concluded that the appellant was earning income as a scuba diving instructor and that because it was within the appellant's capacity to disclose how much income he was earning from undertaking that work and because the appellant was unwilling to make disclosure of that "it is reasonable to infer that he is now earning or able to earn not less than his notional weekly earnings" (par 153).

16 Having reached that conclusion the learned Deputy President in effect varied the Corporation's determination of 1 December 1999 by determining that the worker "is now earning or able to earn not less than his notional weekly earnings in suitable employment as a diving instructor" (par 154). Accordingly he fixed the worker's new entitlement at nil.

17 The appellant contends that the learned Deputy President erred in so doing.

18 Although he did not articulate it in this way, the effect of the appellant's submissions was that the learned Deputy President was confined by the terms of the respondent's determination which asserted a residual earning capacity of $968.71 gross per week, such that the learned Deputy President could not have reduced the worker's weekly payments beyond that figure.

19 The appellant's notice of appeal contains some 44 grounds of appeal. Some of these were elaborated and extended in the course of oral argument and written submissions made by the appellant. The vast majority of these challenge factual findings that were made by the learned Deputy President. The appeal to this Full Bench is not an appeal by way of a rehearing. An appeal to this Full Bench does not provide a forum in which it can be asserted that the trial Deputy President erred in accepting or rejecting evidence or in preferring the evidence of one witness over another. The provision creating the right of appeal is s 86(1), which relevantly provides that "an appeal lies on a question of law".

20 The only grounds of appeal that we have been able to identify that potentially involve questions of law are those that we have discussed above and we intend to confine ourselves to these.

21 We now deal with the questions of law raised by the appellant that we have identified.

Failure to reject evidence used by the Corporation that was tainted by illegality, was unfair or in breach of undertakings that were given by the Corporation

22 The gravamen of the appellant's complaint about the admission into evidence of surveillance film and of the observations of "undercover" agents was that such conduct was unfair and an inappropriate incursion into an individual's civil liberties.

23 Whilst it is now recognised that there is a discretion in a civil court that permits the trial Judge to reject evidence that is otherwise probative, on the ground that it was unfairly or illegally obtained, Southern Equities Corporation Ltd v Bond [2001] SASC 70; (2001) 78 SASR 554, there is no lawful obligation to do so. It is a question of discretion.

24 This is not the occasion to prescribe the circumstances when that discretion might be exercised. We say that because there was nothing exceptional about the evidence in this case. Certainly the surveillance was extensive and was undertaken over a long period of time. But that does not make it exceptional. Surveillance and other like activities are used routinely by those against whom claims for monetary compensation are made on the account of mental or bodily injury. Whatever their personal views might be about the propriety of such actions, the fact is that claimants must accept that surveillance and like activities might be a potential consequence of the decision to pursue a claim for compensation under the Act. It is far too late in the day to suggest that evidence resulting from surveillance or other undercover activities should be excluded on the grounds that they constitute an unreasonable infringement on a person's civil liberties or rights to privacy. Evidence from such activities is routinely used by courts and tribunals in determining issues of credit in personal injury cases. In BHP v Mason (1996) 67 SASR 456 at 464, Debelle J made some observations about the utility of film in such cases, which of course include workers compensation cases. And, as he said in that case about the assertion of ambush in the context of a litigant whose lack of candour is exposed by surveillance film, :-

"... he is not ambushed. He has simply been detected in his untruthfulness, that is to say, caught in a trap of his own making instead of in a trap set by his opponent."

25 Despite what the appellant said to the learned Deputy President at trial and to us on appeal, that is precisely what has occurred here.

Failure to limit the judicial determination to a consideration of "commercial" diving.

26 The short answer to this is to be found in the terms of the notice of dispute that the appellant filed in challenging the respondent's determination. It includes this:- "I did not admit at any time in the Supreme Court that I was performing work as a diver or dive instructor and that I was capable of earning an income or capable of earning an income from diving as outlined in point 6...".

27 It is quite apparent from this, that upon receipt of the respondent's determination the appellant was well aware that the Corporation's determination was concerned with his capacity to work as a diving instructor and was not limited to commercial diving.

28 In relation to the allegation of actual bias, we think it sufficient to refer to the observations of Doyle CJ in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Another [1999] SASC 249; (1999) 78 SASR 151 at 187 where he said:-

"It is only rarely that courts have found actual bias to exist: see Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 Deane J said:

`I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court.'

Despite what his Honour said, it may be that in exceptional circumstances it will be necessary or appropriate for a court to entertain a submission of actual bias on the part of a judicial officer and to make the appropriate finding. However, I wholeheartedly agree with his Honour's observation that the common law test for bias is of sufficient width to make it unnecessary for an allegation of actual bias to be made. If the reasonable apprehension test is satisfied, it will be unnecessary to consider an allegation of actual bias. If that test is not satisfied, I find it difficult to understand how an allegation of actual bias could succeed. As well, an allegation of actual bias raises difficult issues for the Court. It is a serious allegation to make. Bearing in mind that, in proceedings by way of appeal, there is no means by which the subject of that allegation can be heard, how can the Court deal fairly with the allegation?"

29 Nothing that has been put to us suggests that there is any support to the allegation made that the learned Deputy President was actually biased. We will confine our attention to the issue of reasonable apprehension of bias. The test to be applied is as stated by the High Court in Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. The Court said:-

"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. ... Although statements of the principle commonly speak of `suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning. ... If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court." (Emphasis ours)

30 In the context of this case this is a critical point. An examination of the transcript does reveal that at times the learned Deputy President found it necessary to rebuke the appellant. But this was entirely of the appellant's making. Throughout the hearing, he often behaved in a thoroughly obnoxious manner. From the very commencement of the hearing, the applicant seemed to go out of his way to disrupt the proceedings and to insult the learned Deputy President. Having made an innocuous inquiry as to how the parties intended to proceed with the matter, and having briefly heard from the respondent's counsel, the learned Deputy President was subjected to this barrage:- (tr 118)

"MR MOORE-McQUILLAN: We'll be opposing that, that being heard. We want to hear it again and the evidence made afresh. The lying piece of shit can pull his dick out any time.

McCOUAIG DP: Mr Moore-McQuillan, I had hoped that your conduct might have improved.

MR MOORE-McQUILLAN: How would it improve then - if you can explain that to me - when you put all the shit on me? How would it improve? Do you think there's a difference in you making your own little variations of rules and overturning parliament and everything else.

McCOUAIG DP: You and I both know that you can do much better.

MR MOORE-McQUILLAN: You and I know the truth. The problem is that you are not going to give the truth a hearing today.

McCOUAIG DP: Would you please try and improve your conduct?"

31 The discussions then continued and the appellant seemed to be suggesting that he would not be given a fair hearing. Then the following exchanges ensued:- (tr 124)

"McCOUAIG DP: Mr Moore-McQuillan, you will not be prejudiced by any ---

MR MOORE-McQUILLAN: I'm fucking prejudiced as soon as they change the fucking rules. As soon as you change the rules to suit yourself. You had a pre-trial conference. You told me I had to supply documentation. I did all that, then these fuckwits didn't do it and then now they're turning around and do it after the fact and you run around and say, "It's all right." So, fucking, let's get down to the nitty-gritty and start throwing stuff out. You're quite happy to throw fucking stuff out and that goes against me but you're not fucking too phased about keeping all the shit in for them.

McCOUAIG DP: I can assure you, you will not be prejudiced.

MR MOORE-McQUILLAN: I am prejudiced by you being fucking even here. You know you're prejudiced."

32 Some issues then arose regarding some documents. In that process it would seem that the appellant positioned himself in the courtroom in a way that concerned the learned Deputy President:- (tr 128)

"McCOUAIG DP: Mr Moore-McQuillan, just sit back in your right spot.

MR MOORE-McQUILLAN: I can be anywhere I like, your Honour.

MR MOORE-McQUILLAN: Yes, I can. You made me come here, so you fucking put up with it."

33 Later the issue of surveillance arose. This culminated in the following exchange:- (tr 156)

"MR MOORE-McQUILLAN: I'm objecting to the fact that their whole surveillance was done to excessiveness for three years. I'm objecting to the fact that this person - even though they are going to paint a real nice pretty picture of what we can do and what we can't do and what can happen and what can't happen, these lying pieces of shit here that you call friends, your mates, have conducted illegal activities. Now, surveillance is one thing that was done legally but it hasn't been done legally.

McCOUAIG DP: You haven't got close to persuading me that there was anything illegal done.

MR MOORE-McQUILLAN: Mate, I couldn't have got fucking close if you had even turned up and sat next to you. You are quite hell-bent on allowing fucking corruption to survive. These pricks have been - - -

McCOUAIG DP: I'm trying to give to you ample opportunity, Mr Moore-McQuillan, to explain to me how there was illegality involved.

MR MOORE-McQUILLAN: Can I just have fucking 10 minutes to go for a walk, get my head back together and I'll come back and tell you because at the moment I'm really fired up on all this because this lying piece of shit here ..."

34 The trial proper then commenced. The respondent opened with evidence from a private investigator, Mr Donald Skella. After interrupting the respondent's examination of Mr Skella, in chief, on a number of occasions, the appellant began his cross-examination. This was regularly interspersed with foul language and insults as appears from some of the following examples (tr 184):-

Q. What would make you the honest person when you go around stalking people.

MR MOORE-McQUILLAN: Excuse me, but are we here to get any evidence here or are we just here to fucking listen to this lying piece of shit.

MR MOORE-McQUILLAN: I asked you for a proper question - - -

MR MOORE-McQUILLAN: Well, for a start, I think that we've got a question here of legality and you're turning around and saying, `Pig's arse'.

McCOUAIG DP: I don't think you heard that from me, Mr Moore-McQuillan.

MR MOORE-McQUILLAN: All right, no, you didn't say `pig's arse', you just said he doesn't have to do it. You're already coaxing him along - what he can do and what he can't do. Why can't he supply his licence if he's got one?

"McCOUAIG DP: Just put your question, Mr Moore-McQuillan.

35 Later, having disallowed a further question, the learned Deputy President was subjected to this (tr 188):-

MR MOORE-McQUILLAN: How the fuck am I supposed to ask some questions if you keep saying `disallow'.

MR MOORE-McQUILLAN: What's a proper question. Do you want to answer one? You want to give him one? How do you know what's fucking proper or not when you fucking knock back everything?"

36 Some further issues of objection arose and the appellant's abusive conduct continued (tr 190):-

"MR DOWNS: Well, I object to the witness being asked about matters of the act which are clearly matters of law. The witness has come here, he's told - he's given his evidence of what he saw, and what he saw is recorded on video.

MR MOORE-McQUILLAN: He's got Debbie Does Dallas. He's got six tapes of Debbie Does Dallas. You got your dick out and everything else on it and then he says, "This is what I saw." He has got no idea what he saw because he hasn't got - if he can't - if you want to see his dick, go in the hallway with him.

McCOUAIG DP: Mr Moore-McQuillan, why don't you address your questions to that topic if that is a concern of yours.

MR MOORE-McQUILLAN: You are going to make this corrupt anyway. You have told your advice right from the word go when you started this. If you don't like the way - and every time he gets on you give him everything he wants and it doesn't matter what Owen Downs wants to do, but every time I ask a question, "No, no, no." Well, how about we get down to the fucking gist of saying yes and stop leading him on, and stop allowing this man to tell him what to say.

37 Amid some further discussions about objections on the grounds of relevance came this exchange. (tr 200)

"MR MOORE-McQUILLAN: Can you ask Mr Downs to shut his face or I will personally go over there and have a go at him. If he wants to interrupt - - -

McCOUAIG DP: You will not, and you'll conduct yourself in a much-improved manner and get on and put your next question.

MR MOORE-McQUILLAN: Well, perhaps if Downs were to flop his dick out we can all go to his standard then, can't we, because that's what he did.

MR MOORE-McQUILLAN: I will not retract it. You know.

McCOUAIG DP: I think you're amusing only yourself, Mr Moore-McQuillan.

MR MOORE-McQUILLAN: I couldn't give a shit if I amused the fucking world pal. It's got no interest.

MR MOORE-McQUILLAN: I'll give you a hint, pal. I'm not even amused by your standards either, so it doesn't matter.

38 After an extensive and very repetitive cross-examination the learned Deputy President finally brought Mr Skella's cross-examination to an end. The respondent then called Mr John O'Connell, an investigation agent. Before the appellant's cross-examination commenced, the following exchange took place (tr 382):-

"McCOUAIG DP: Do you have any cross-examination, Mr Moore-McQuillan?

McCOUAIG DP: Be mindful of my earlier warning about your conduct because I will abbreviate any ---

MR MOORE-McQUILLAN: I'm sure you're going to abbreviate it anyway.

McCOUAIG DP: I will abbreviate any questioning unless you conduct yourself properly.

MR MOORE-McQUILLAN: I would like to be able to conduct myself properly but you know full well that we try and do our best from this end and you are just hindering it left, right and centre by assisting these people. Now, if you don't mind I'll take a - if you don't mind I'll just go for a quick urination and then I'll come back and I'll get stuck into this."

39 Much of the appellant's cross-examination that ensued was directed towards whether or not Mr O'Connell had been authorised by the respondent pursuant to s 110 to place the appellant under surveillance or had he otherwise acted lawfully in conducting these activities. In the face of repetitive and irrelevant questions the learned Deputy President ultimately brought Mr O'Connell's cross-examination to an end.

40 With the exception of the occasional skirmish, the trial thereafter proceeded for a time thereafter without incident until it resumed after a break for Christmas 2000.

41 On the resumed date, being 8 January 2001, the appellant made an application for the proceedings to be struck out, apparently on the basis that in respect of the determination concerning his alleged failure to provide information to the respondent, that the respondent had that information anyway.

42 This application, and its failure before the learned Deputy President led to further outburst from the appellant. Some examples of this can be seen from the following passages of transcript taken from 722 and 723:-

"MR MOORE-McQUILLAN: So it doesn't really matter what your authority is. Your authority is jack shit, because they've already overridden your decision. That is what we're here for and that is what is going on. I sent you an affidavit over it and I complied with all the bullshit that you requested, we've done all that. All you've done is taken a slack time and allowed these people to go further to get the documentation. But if you remember before, I asked for my 107B and you couldn't do it. But no, this prick here went along and stole the documentation anyway.

McCOUAIG DP: Mr Moore-McQuillan, I have warned you previously about your language in this courtroom.

MR MOORE-McQUILLAN: And I have warned you that your intent - - -

McCOUAIG DP: You will desist from that foul language - - -

MR MOORE-McQUILLAN: All right then, I ask you to stand aside, because you are biased, clearly and openly biased towards me. You are biased by allowing these people to continually break the act, by continually breaking the law and with your blessing. That is only prejudicing me even further. They have gone and stolen documentation. It's quite clear they brought an action in here - you've even said, "No, they don't have to give you your taxation returns," and they said yes, we do, and that's what they went after and that's what they've taken so while we're here they can help themselves - so while we're in here with this little fishing trip, because that's all it is, Owen Downs, with the aid of Frank Carbone and Fred Morris who is now in here as well, have, without authority, and without any authority whatsoever, have gone and stolen documentation to suit their own selves. Now, how much further do we have to continue with this bias? You've either got to step aside and cease this whole thing and we get someone else in here fresh, or this thing should be struck out. There is no in-between.

McCOUAIG DP: Your application for me to stand aside is rejected. Your application for the striking-out of these proceedings is rejected."

43 After advising the appellant that he would hear submissions in due course, the learned Deputy President was then subjected to this (tr 725):-

"MR MOORE-McQUILLAN: You'll hear a lot of shit bloody submissions, but the problem with it is that we're bound by the fucking law and these pricks aren't, and that's the problem we've got. We've got a big problem in here where you're sitting up there being biased and allowed these pricks to dictate the rules."

44 The appellant's behaviour continued in much the same manner over the course of the remainder of that day.

45 The following day commenced in similar vein. Having been censured for his continued use of foul language the appellant responded (tr 936):-

"MR MOORE-McQUILLAN: I'll use whatever fucking language I need to use because the point is you've used your language and I've got no idea what your language is but my language is quite clear and quite explicit and it's straight to the point where yours isn't and we have no idea what you're talking about. We've asked you direct questions. You've refused to answer. We have not got any okay or any understanding of what the hell is going on this tribunal because you have allowed it to be a wishy-washy, bloody thing for Owen Downs to play his own games. He flops his dick out in public ...".

46 The learned Deputy President had to endure much of the same throughout the remainder of the hearing until it ultimately concluded at which time judgment was reserved.

47 At this point we think it is worth repeating what Mason J (as he then was) said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352:-

"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 and Livesey has lead to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be `firmly established': R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Watson (1976) 136 CLR 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour." (Emphasis ours)

48 It is notable that in this case, the learned Deputy President upheld the appellant's challenge to the respondent's determination to suspend his weekly payments on the ground that he had failed to provide the respondent with information relating to his alleged earnings. He said at par 35:-

"...I am of the view that the Corporation's pursuit of this course was not in all the circumstances fair or reasonable or a proper exercise of its obligation to administer the Act in an even-handed way."

49 Moreover, the rebukes that the learned Deputy President issued were entirely appropriate and in our respectful opinion displayed remarkable restraint. In our view, a fair-minded observer could not possibly come to the view that the learned Deputy President had prejudged this case or was potentially biased towards the appellant. Quite to the contrary the only reasonable observation that could be made of the hearing is that the appellant was determined to do all that he could to disrupt it and to goad the learned Deputy President into aborting it, and that in spite of his boorish behaviour, his contempt of the learned Deputy President and of the Tribunal, the appellant got a fair hearing.

The learned Deputy President was bound by the amount stipulated in the s 38 notice.

50 In our view this complaint by the appellant has some merit. As was observed in Hornhardt v WorkCover [2001] SAWCT 157 although there are significant differences between the present dispute resolution regime provided for by the Act and that which existed under the former regime, it is appropriate authorities dealing with the scope of a review under the former regime can provide useful guidance in determining the scope of a judicial determination.

51 Those cases reveal that on review the claim for compensation at large is not before the Tribunal. See, for example: Wiechmann v Lovering and WorkCover Corporation (1992) 59 SASR 203. As was noted in Cristea v The Workers Rehabilitation and Compensation Corporation (CCA Snack Foods) [1993] SASC 4356; (1993) 61 SASR 487:-

"... it is necessary to identify the matters to which the decision reviewed relates and to define their scope."

52 The decision of the respondent that was before the learned Deputy President was the decision to reduce weekly payments by the figure stipulated. It was not a decision to discontinue weekly payments.

53 It might be that in dealing with a case concerning a reduction of weekly payments following a s38 review that it would be open for the Tribunal to determine that weekly payments should be reduced by some other lesser amount than that stipulated in the notice. We do not need to decide that here. What we do however decide is that absent an order pursuant to s 88DA of the Act expanding the issues in dispute it was not permissible in this case for the Tribunal to in effect substitute its own decision to discontinue weekly payments just because it is satisfied that the evidence would justify a discontinuance of weekly payments.

54 In our respectful opinion the learned Deputy President erred in concluding otherwise.

55 On the facts as found by him it was inevitable that had he limited himself to the scope of the Corporation's determination he would have concluded that the worker was capable of earning $968.71 gross per week. In our view, he should have limited himself to that conclusion.

56 For these reasons, we would allow the appeal and set aside the determination of the learned Deputy President and determine in lieu thereof that the Corporation's determination of 1 December 1999 is affirmed and for all relevant periods the worker's entitlement to weekly payments of income maintenance be fixed at $220.70 gross per week.

57 Although the appellant has succeeded on the appeal, as a self represented litigant he has no general right to an order for costs in his favour: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 and in any event he only succeeded on a very limited point. In all the circumstances we conclude that there should be no order as to the costs of the appeal.