Puckering v Workcover/Allianz Australia Workers Compensation

4 The worker lodged Notices of Dispute challenging both determinations. The Corporation confirmed the disputed decisions whereupon in accordance with s 91A of the Act the Registrar referred the disputes for conciliation which in turn led to them being allocated to the Conciliator.

5 In compliance with its obligations under s 92(1)(b) the Corporation, through its solicitors, disclosed to the Conciliator surveillance video. (BOD 6,43 and 45)

6 S 92(1)(b)(ii) stipulates that if requested, a party to a dispute must give access to any relevant evidentiary material to another party to the dispute subject to the caveat provided by s 92(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."

7 At a conciliation conference conducted on 17 September 2003 the Conciliator made a ruling in the terms following:-

"1 After hearing from the parties I order that the compensating authority make discovery and produce to the worker's solicitors video evidence depicting activities undertaken by the worker by the close of business Friday 03/10/2003.

2 The order to give the worker access to the video is made pursuant to discretionary powers under s 92 of the Act.

3 The basis for the order is that the video evidence is relevant material and has been relied upon by the compensating authority for its decision to discontinue weekly compensation entitlements to the worker under s 36(1)(f) and 36(1A)(g) of the Act."

8 By letter dated 18 September 2003 the Corporation's solicitors corresponded with the Conciliator effectively asking him to reconsider his ruling. The Conciliator agreed and set the matter down for further argument on 1 October 2003.

9 In the meantime, by Application for Directions, the Corporation sought an order from a Presidential Member of the Tribunal to in effect set aside the ruling of the Conciliator and to rule in lieu thereof that the compensating authority need not give the worker access to the surveillance video. The Corporation contended through the application that a Presidential Member was empowered to provide the relief that it sought by s 88H of the Act, which 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.

(2) The power under subsection (1) may only be exercised by the President or a presidential member or conciliation and arbitration officer to whom the President has delegated the power."

10 The learned Deputy President to whom the Application for Directions was referred resolved to invite the President to refer this issue to the Full Bench in accordance with s 94A(2). The President acceded to that and this is how the matter has come before us.

11 The matter raises two issues. The first, is whether the ruling of the Conciliator can be described as `a judgment or order of the Tribunal' for the purposes of s 88H of the Act. The second, is that if it is, is it in the interests of justice that the ruling made by the Conciliator be amended or set aside.

12 The worker's submission is that the ruling made by the Conciliator is not a judgment or order of the Tribunal. It was said that a judgment or order is a judicial act, which disposes of a question in dispute. It was submitted that this was the very antithesis of the conciliatory process. Mr Wells QC, senior counsel for the worker, contended that Parliament had clearly invested the Conciliator with an absolute discretion as to whether or not to agree to disallow a party from access to surveillance video such that there was no scope for a review of the ruling pursuant to s 88H of the Act.

13 The Corporation contended that a ruling that permitted a worker to have access to surveillance video has the potential to significantly undermine the Corporation's capacity to use the surveillance video as an effective tool in cross-examination. It submitted that as such a ruling had the potential to substantially affect the rights and liabilities of the parties and the potential to cause an injustice, we ought to give the expression `judgment or order of the Tribunal' a liberal interpretation so as to embrace a ruling of the type that the Conciliator made here.

14 As an alternative, the worker contended, that even if we were satisfied we had the jurisdiction to review the Conciliator's ruling, in the circumstances of this case, the ruling was an appropriate one and we should let it stand.

16 We commence with a consideration of the threshold question namely whether s 88H of the Act grants the Tribunal the jurisdiction to entertain this application.

17 In order to deal with this, we think it is necessary to reflect upon the circumstances in which such a ruling is made.

18 The role of a Member of the Tribunal in conducting a conciliation is to facilitate the settlement of the dispute between the parties or, if that cannot be achieved, to identify the real issues in dispute and to encourage the parties to reach agreement on as many issues as possible: s 92A.

19 Parliament has determined that these functions would be assisted by the mutual disclosure of all evidentiary material. It has provided, however, some exceptions. It has recognised that the disclosure of video tapes, photographic material or a report of surveillance prior to cross-examination may undermine their value as tools in the exposure of false or unreliable testimony about the effects of a compensable disability. It has also recognised that the investigation of a suspected offence might be compromised by the premature production of evidentiary material.

20 However, in its wisdom, Parliament did not resolve to exempt these completely. It plainly formed the view that in some cases these were prices worth paying to enable settlement or agreement on issues to occur. Hence, it conferred upon the Conciliator the discretion whether to allow or prohibit access to this material. Doubtless Parliament expects that that Conciliator will, in exercising that discretion, balance the detriment that the compensating authority or the prosecutorial authority might suffer as against the likelihood that the release of the evidentiary material will lead to the settlement or agreement on issues in dispute. It seems to us that given the Conciliator's charter under s 92A, these are the only matters that are relevant to the exercise of the discretion. Whether or not the Conciliator thinks that for reasons of fairness the worker should or should not have access to the material in connection with any subsequent hearing is irrelevant. The focus in relation to the worker must be how the denial or granting of access to the evidentiary material will influence the worker's attitude to conciliation.

21 In making that assessment the Conciliator will often be influenced by his or her discussions with the worker. These discussions might have occurred without the other parties being present: s 92C(1) and in any case, because of the nature of the conciliation process, these discussions will be confidential and other than in exceptional circumstances will be inadmissible in subsequent proceedings. See generally: s 92C(3) and (4).

22 It is therefore difficult to envisage how the exercise of this discretion could be effectively reviewed by anyone other than the Conciliator who made the ruling. If it was to be somebody else, such as a Presidential Member being asked to set aside the ruling by an application made pursuant to s 88H, that Member would have no way of knowing the precise factors that influenced the ruling to allow or refuse access to the evidentiary material in question or be in a position to judge the likelihood that the release of that evidentiary material would render the conciliation effective.

23 This leads us to conclude that a decision made by a Conciliator to refuse or allow access to evidentiary material is not capable of review under s 88H.

24 But, it does not follow that the ruling is incapable of review. The Conciliator plainly has the power to reconsider such a ruling in light of further representations by the parties. In considering an application to review an earlier ruling the Conciliator will be alive to the possibility that he or she might have been misled or mistaken about the prospects of settlement or agreement on issues.

25 A Conciliator may consider that a useful strategy to test this is to initially make a ruling for the partial release of some of the material. If thereafter, the worker has not indicated any preparedness to adopt a different position than that which was previously adopted, that Conciliator may be persuaded that his or her original assessment was wrong. Having been informed of this and having given the parties the opportunity to make further representations, that Conciliator might resolve to decline to rule that further material be released.

26 A review by a Conciliator might lead to the opposite result. A worker who had previously adopted an apparently fixed settlement position and who was denied access to the relevant material might, in later conferences, show sufficient concern about what the material reveals to be proposing more realistic settlement offers. In those circumstances the Conciliator might form the view that the release of the material or a portion of it would render the conciliation effective and after hearing further representations from the parties, resolve to alter the earlier ruling and allow the worker access to all or some of the material.

27 Having reached the conclusion that the application made to the learned Deputy President is incompetent it is not appropriate for us to express any view about the correctness or otherwise of the Conciliator's ruling.

28 In our view, the answers to the question posed should be as follows:-

1 The ruling of the Conciliator was not a judgment or order of the Tribunal for the purposes of s 88H of the Act.