UNDERWOOD J The Motor Accidents (Liabilities and Compensation) Act 1973, s23(1) provides (inter alia) that where a person suffers bodily injury in a motor vehicle accident in this State, that person is entitled to the benefits prescribed by the regulations. On 9 February 1989, the respondent became such a person. From that date until 7 September 1989 he was paid an employed person's allowance in accordance with the Act, Sch1, PtV. The period within which, and the conditions on which an employed person's allowance was payable were prescribed in PtV by r2(3) which provided:

(a) for such periods, falling within the period of 104

weeks beginning on the day of the accident, during which

the injured person is wholly disabled from engaging in

his usual employment or occupation as a consequence of

the injury; and

(b) for such other periods, falling within the prescribed

period, during which the injured person is, by reason of

the injury, wholly disabled from engaging in any

employment or occupation for which he would otherwise be

reasonably suited by education, training, experience or

ability."

2. Rule 2(8) provided that "the prescribed period" is a period of 156 weeks beginning at the expiration of the period referred to in subpar(3)(a).

3. The appellant, being a person aggrieved by the determination of the Board to cease payment of an employed person's allowance, appealed to the Tribunal in exercise of the right conferred by the Act, s28(2). The determination of the Tribunal was to the effect that the Board erred in terminating the payment of an employed person's allowance. It will be necessary to examine the determination in more detail later. The appellant Board appealed to this Court pursuant to the Act, s28(6). The grounds of appeal set out in the notice are:

"1 The learned Chairman erred by finding, contrary to the

evidence before him that the Respondent was wholly

disabled from engaging in any employment or occupation

for which he would be reasonably suited by education,

training, experience or ability.

2 The learned Chairman erred by finding that the

Respondent was not fit to return to any employment and

such finding was contrary to the evidence.

3 The learned Chairman erred in fact and in law by

concluding that the applicant was precluded from engaging

in any employment or occupation for which he would be

reasonably suited by education, training, experience or

ability."

4. Although those grounds were supported by argument, it appeared at the hearing that the appellant's substantial point was not the subject matter of any ground of appeal. Over objection, the notice of appeal was then amended to add new ground 4:

"4 That the learned Chairman erred by determining without

entitlement to do so or any sufficient evidence, that the

Applicant was wholly disabled within the meaning of

par2(3)(b) of the Regulations from 9 February 1991 to the

date of the determination."

5. I shall deal with the last ground first and in order to do so it is necessary to look at some chronology.

9 February 1989 Accident and entitlement to payment of

employed person's benefit.

7 September 1989 Board determination to cease making

payments.

28 November 1989 Respondent referred Board's refusal to

pay benefit to the Tribunal.

9 February 1991 The period within which an employed

person's allowance is payable in accordance with r2(3)(a)

expired.

9-10 October 1991 The Tribunal heard the respondent's

reference.

23 April 1992 The Tribunal handed down reasons for

decision but reserved all consequential questions, such

as amount of allowance.

7 December 1992 A further hearing before the Tribunal.

22 December 1992 A further hearing before the Tribunal.

18 January 1993 A formal determination was made by the

Tribunal.

29 January 1993 A final hearing before the Tribunal.

1 The matter the respondent referred to the Tribunal was

the failure to pay an employed person's allowance during

the period prescribed by r2(3)(a). As that period expired

between the date of referral and the date of the hearing,

the reference should have been dismissed.

2 The determination ordered payment between the date of

the hearing and the date it issued, a period of about

fifteen months, but:

(a) the Tribunal had no jurisdiction to deal with this

period as nothing was referred to it after 9 February

1991; and/or

(b) there was no evidence of relevant matters of fact

during that period of fifteen months to justify the

order.

7. With respect to the first aspect of ground 4 of the appeal, the notice of referral by the respondent to the Tribunal was drawn by the respondent. It simply provides:

"On 27th November 1989 I received letter from MOTOR

ACCIDENTS INSURANCE BOARD, LAUNCESTON, concerning my no

fault claim. I disagree with MAIB's decision and would

like to appeal to Motor Accidents Tribunal in this

matter. Would you please advice (sic) me how to proceed

with my complaint."

8. The Act was relevantly amended on 12 July 1991 by Act No 6/1991. Although this amendment took effect after the referral and before the hearing by the Tribunal, the statutory alterations are of no moment on the determination of this appeal. In substance, the relevant amendments removed the benefit provisions from the Schedule to the Act into the Regulations. The amendments left unaffected the text of the legislation that falls for consideration on this appeal so for convenience, I shall refer to the provisions of the Act and Regulations as enacted after the 1991 amendments came into effect.

9. The Act, s23 makes payable the benefits prescribed by the Regulations upon the happening of the prescribed events. Part V of the Regulations is entitled "Disability allowances". Regulation 1(1) provides that periodical allowances are payable in accordance with that Part to a person entitled. Regulation 1(2) provides that a disability allowance may be either an employed person's allowance, a self employed person's allowance or a housekeeping allowance. Regulation 2(1) and (2) set out the circumstances of entitlement to an employed person's allowance, and reg2(3) (set out earlier), prescribes the periods for which, and circumstances in which an employed person's allowance is payable. Regulation 2(4)-(7) all concern the computation of an employed person's allowance and reg2(8) is a definition provision relevant to an employed person's allowance. Part V, reg3 is concerned with a self employed person's allowance and reg4 with a housekeeping allowance. Regulation 5 is a limitation on all disability allowances, reg6 provides for the computation of average weekly earnings in relation to all disability allowances and the last regulation, reg7 is an interpretation provision. All of that is set out in a little detail because it shows that the statutory scheme is quite clear. A person in the circumstances of the respondent is entitled to an employed person's allowance by virtue of the Act, s23(1) and the Regulations, reg2(1) and (2). That entitlement will result in payment of an allowance in the circumstances prescribed by reg2(3). The appellant was aggrieved by the Board's determination to stop payments of a self employed person's allowance. "The matter" that he referred to the Tribunal was that determination. Although the terms of a condition precedent to the entitlement becoming payable changed with the lapse of time after the occurrence of the injury, the matter put in issue by the Board's refusal to pay was the entitlement to payment of an employed person's allowance. This was "the matter" referred to the Tribunal. The meaning of the word "matter" in this statutory context is very similar to its meaning in the Workers Compensation Act 1988. There it has been given the widest possible construction. I venture to repeat part of that which I wrote in Atkinson v Nipper Cleaning Services Pty Ltd Trading As Burrells Hy-Tech Cleaning Service A105/1993:

"Whilst it is trite to say that words must be construed

in their statutory context, 'matter' is a word that has

consistently been given a wide meaning. With respect to

its use in the Constitution, s75 - 'all matters between

States' - Griffith CJ said in South Australia v Victoria

[1911] HCA 17; (1910-1911) 12 CLR 667 at 675: 'The word "matters" was

in 1900 in common use as the widest term to denote

controversies which might come before a Court of

Justice.' With respect to the extent of the jurisdiction

of the High Court to issue a writ of mandamus or

prohibition the words, 'all matters' in the Constitution

s75(v), have also been given the widest construction.

See R v Drake-Brockman Ex parte Natural Oil Pty Ltd

[1943] HCA 35; (1943-44) 68 CLR 51 at 57-58; Adamson v West Perth

Football Club Incorporated and Ors [1979] FCA 81; (1979-80) 27 ALR 475 at

498. In Goscombe v Cadbury Schweppes Pty Ltd as yet

unreported A23/1993, Zeeman J held that 'the matter' in

s86(4) included an inquiry as to the correctness of the

facts and opinions in a medical certificate relied upon

as the basis for terminating a weekly payment. At 12 he

cited a passage from the judgment of Brennan J in W A

Pines Pty Ltd v Bannerman [1980] FCA 79; (1979-1980) 30 ALR 559 at 565

that dealt with the meaning of 'matter' in the Trade

Practices Act, s155(1). Part of the passage cited read:

'"Matter", said Franki and Northrop JJ in Melbourne Home

of Ford Pty Ltd v Trade Practices Commission (1979) 5 TPC

26 at 47 ... "is to be construed in its ordinary sense of

an affair or a thing." It refers to a body of facts, a

body of facts which "constitute" or "may constitute" a

contravention'."

10. The same approach should be taken to the word "matter" as enacted in the Act, s28(2) so as to confer jurisdiction on the Tribunal to deal with all matters relating to the issue referred to it, including entitlement to payment up to the date of the Tribunal's decision. At the hearing, evidence was led with respect to the fulfilment of the condition prescribed by reg2(3)(b) namely, that the respondent was wholly disabled from engaging in any employment or occupation for which he would otherwise be reasonably suited by education, training, experience or ability, as well as that prescribed by reg2(3)(a). The Tribunal's reasons for judgment at 3, make it clear that it understood that it was concerned with a claimed entitlement to the payment of an employed person's disability allowance during both periods specified by reg2(3). The appellant's argument on the first limb of ground 4 fails. The Tribunal had jurisdiction to deal with the matter of payment of an employed person's allowance during either or both of the periods prescribed by reg2(3), even though, at the time of the referral to the Tribunal, the period referred to in reg2(3)(b) had not commenced to run.

11. As the chronology of events shows, a period of about 6.5 months elapsed between the date of the hearing and the date reasons for judgment were published. There followed a further period of some 9 months before a determination was made. I was informed from the Bar table that during this period the parties were trying to reach agreement on the quantum of the allowance. The determination relevantly reads:

"That as to the Applicant's entitlements to the date of

this order to payment of disability allowance pursuant to

Part V of the Scheduled benefits, the Motor Accidents

Insurance Board make payment to the Applicant as follows:

(a) In the sum of $58,340.37 representing disability

allowance payable pursuant to Regulation 2 (3) (a) of

Part V of Schedule 2 of the Motor Accidents (Liabilities

and Compensation) Regulations 1976 from the date of

termination of payments (7th September, 1989) to the 9th

February, 1991;

(b) Payment of Employed Person's Allowance pursuant to

Regulation 2 (3) (b) of Part V of Schedule 2 of the Motor

Accidents (Liabilities and Compensation) Regulations 1976

at the rate of $774.92 per week from the 9th February,

1991 until the date of this order."

12. The appellant made no complaint under ground 4 with respect to the first part of the order but submitted, in addition to the argument with which I have just dealt, that there was no jurisdiction to make the order in par(b) after the date the hearing concluded or, if there was jurisdiction, there was no evidence upon which a tribunal acting reasonably, could have made an order for payments for any period after the conclusion of the hearing.

13. On the hearing before the Tribunal, there was evidence of incapacity to do any relevant work up to the date of the hearing or evidence from which that might be inferred. The following finding of fact was made in the reasons for judgment handed down on 23 April 1992:

"I therefore find that both the physical and mental

injuries suffered by the applicant were received as a

result of the accident which occurred on 9th February,

1989 and further, that by reason of his injuries he is

wholly disabled from engaging in his usual employment or

occupation or any employment or occupation for which he

would otherwise be reasonably suited by education,

training experience or ability."

14. On an assessment of damages at common law, the court is required to assess damages "once and for all." Entitlement to assessment arises the moment the cause of action is complete. See Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 346. The court is required to take a prospective view and to this end, is entitled to receive evidence of relevant events that have occurred between the date the cause of action was complete and trial. See Willis v The Commonwealth [1946] HCA 22; (1946) 73 CLR 105: Baker v Willoughby [1969] UKHL 8; (1970) AC 467. The task of the Tribunal is quite different. Its concern is statutory entitlement to receipt of a benefit from week to week. Where such weekly entitlement depends upon fulfilment of conditions precedent, it cannot arise until those conditions are fulfilled. It seems to me, that this is not a question of jurisdiction, for the Tribunal has jurisdiction over the matter referred until it is determined. It is a question of evidence. The position is the same in the related field of workers' compensation. In George Gibson and Co v Wishart (1914) 7 BWCC 348 Lord Parker said at 362 that there was no jurisdiction to determine an award of weekly payments prospectively, (I understand his Lordship to be referring to an order for payments after the award was made) "- indeed, it would have been impossible to determine prospectively the duration of the weekly payment, which depended upon the duration of the incapacity." The same approach was adopted in McCarthy v The Owners of the Ship "Melita" (1923) 16 BWCC 222. This was a case in which an accident at work accelerated the debilitating effect of a pre-existing condition so as to produce a total incapacity, a state of affairs that would have occurred by efluxion of time in any event. Scrutton LJ referred to making prospective awards in these terms at 230:

"... it was said that this mitral stenosis would have

progressed until there came a time when he would have

been unable to do any work, and that therefore the Judge

ought to have been prophetic and fixed that time and

awarded the weekly sum until that time arrived. I only

know one case where a County Court Judge attempted to do

that, but he got into such confusion that his decision

was reversed by this Court of Appeal."

In R v Southee ex Parte MAIB 52/1991, Zeeman J was concerned with an order made by the Tribunal that purported to make termination of payment of future benefits dependent upon the occurrence of a future event. His Honour left open the question I have answered concerning jurisdiction to make an order of entitlement to payment after the date referral was made. With respect to the issue before him his Honour said at 3:

"For present purposes, as the claimant satisfied the

requirements of para2(1)(a) of Part V, she was entitled

to be paid an employed person's allowance for any

relevant period during which she was wholly disabled by

reason of the relevant injury from engaging in employment

or occupation of the type referred to in the relevant

part of para2(3). She was not entitled to be paid such

allowance in respect of any other period. There is no

legal justification or authority for the prosecutor to

make payment of an allowance in respect of such other

period."

15. The principle behind that proposition is applicable to the present case. In some cases, if the time between hearing and judgment is short, the evidence concerning the future may be sufficiently certain to enable relevant findings of fact to be made with respect to the period between hearing and judgment, but generally speaking, where there is a condition precedent to statutory entitlements, a Tribunal cannot award the entitlements after the date of the hearing, because there will be no evidence that the condition precedent is satisfied. In the present case, the evidence did not entitle the Tribunal to find that at the date reasons for judgment were handed down and a fortiori, at the date of the determination some 15 months after the hearing, "that by reason of his injuries (the respondent) is wholly disabled from engaging in his usual employment or occupation or any employment or occupation for which he would otherwise be reasonably suited by education, experience or ability." There was simply no evidence of those facts after the conclusion of the hearing.

16. After the reasons for judgment had been handed down, the parties went before the Tribunal on four different occasions. The purpose of the attendances was to discuss the contents of the determination. From the outset, counsel for the appellant on this appeal told the Chairman that he had instructions to appeal against the determination that was about to be issued. On the second and third occasion the Chairman of the Tribunal raised with counsel the very matter with which I have just dealt and referred counsel to R v Southee ex Parte MAIB (supra). It seems that the determination which is the subject of this appeal was signed and sealed by the Chairman and issued to the parties "by some administrative error" on 18 January 1993. This is apparent from the discussion with counsel on the fourth and final attendance before the Tribunal on 29 January 1993. By the time of that hearing, the determination had been published to the parties and the appellant had filed this notice of appeal. For this reason there was no opportunity to alter the determination so that it only dealt with benefits payable up to the date of the hearing. Before me it was submitted by counsel for the respondent that the appellant should not be allowed to raise the argument that there was no evidence to support the determination of entitlement to payment up to the date of that determination, because it was not raised on behalf of the appellant before the Tribunal. This argument cannot succeed. There was no occasion for counsel for the appellant to raise this argument until the Chairman raised it himself with counsel. At that time, counsel for the respondent could have applied to re-open the hearing to adduce the relevant evidence but he did not do so. This is not a case where the appellant's conduct at the hearing was such as to mislead the respondent into taking a course of action that he would not have taken had the appellant's argument on appeal been put at first instance.

17. The remaining grounds of appeal, being the ones originally relied upon, all challenge findings of fact made by the Tribunal. Counsel agreed, without argument, that an appeal to this Court from a determination of the Tribunal was in the nature of a rehearing ie, this Court was empowered to re-hear the matter on the material before the Tribunal. As to this process, see Warren v Coombes and Anor [1979] HCA 9; (1979-80) 142 CLR 531. I am inclined to think that counsel are correct. The Act is silent as to the nature of an appeal pursuant to s28(6) but, it is really an appeal from one judicial body to another, unlike the appeal from the determination of the Board to the Tribunal, which is an appeal from an executive decision to a judicial Tribunal. In the former case the appeal is, in the absence of statutory direction to the contrary, usually treated as an appeal stricto sensu or one by way of rehearing. See Ex parte Australian Sporting Club Ltd; re Dash and Anor (1947) SR (NSW) 283. See also the Rules of Court O76, rr68 and 54.

18. Unfortunately, the tape recording of the evidence taken on the hearing before the Tribunal has been lost or accidentally destroyed. The material before me consisted of the Chairman's notes and some medical reports tendered into evidence. The critical findings of fact are all supported by evidence. They depend in large measure upon the credit of the respondent. With respect to this the Tribunal found:

"I, first, refer to (the evidence) given by the

applicant. I had the opportunity of observing him in the

witness box for a considerable period and the benefit of

a very through cross-examination by Mr Pickard of Counsel

for the Board. I found the applicant to be a reliable

witness and there were no matters of any significance in

which his evidence disclosed inconsistencies. I accept

his evidence that immediately before the accident he was

physically and mentally fit. His work record itself

indicates that he had been engaged in regular employment

since he had left school."

19. It was not submitted that this critical finding was erroneous. The Tribunal had the advantage of seeing and hearing the respondent. The medical opinions depended in large measure upon the veracity of the history given by the respondent. Upon a review of the material before this Court, no basis has been made out for interference with any of the findings of fact by the Tribunal. Grounds 1-3 fail.

20. However, as ground 4 has succeeded in part, the appeal is allowed. There will be an order that the determination of the Tribunal dated 18 January 1993 be varied by deleting the words "until the date of this order" from par1(b) thereof and substituting therefor, the words "until 10 October 1991."