WORKERS' COMPENSATION - claim for compensation - when claim made - difference between notice of injury and claim - whether injury can include aggravation or development of injury - notice to insurer - Workers Compensation Act 1951 (ACT), ss 120, 127

PROCEDURE - court bound to apply 'equity, good conscience and substantial merits of matter' - meaning and application of that phrase - Workers Compensation Regulation 2002 (ACT), s 56(5)

APPEAL AND NEW TRIAL - appeal from Magistrates Court - whether reasons sufficient

Workers Compensation Act 1951 (ACT), Chs 5, 6, Pts 4.3, 4.4, 4.5, 4.6, ss 31, 92, 93, 94, 95, 96, 97, 102, 103, 116, 118, 119, 120, 120A, 122, 123, 124, 127, 128, 130, 131, 132, 195, Dictionary

Legislation Act 2001 (ACT), s 255

Court Procedures Act 2004 (ACT)

Workers Compensation Regulation 2002 (ACT), Pts 6, 7, ss 38, 48, 50, 51, 56

Court Procedures Rules 2006 (ACT)

Rees N, "Procedure and Evidence in 'Court Substitute Tribunals'" (1998) 18 ABR 41

M & M Rolfe Cleaning Services Pty Ltd v Schneider [1997] ACTSC 82; (1997) 130 ACTR 61

Moore & White Pty Ltd v Mitojevic (1980) 35 ACTR 39

Sobania v Nitsche and Anor (1969) 16 FLR 329

Western Australian Coastal Shipping and Anor v Wallner [1980] HCA 22; (1980) 144 CLR 110

Barbaro v Leighton Contractors Pty Ltd [1980] FCA 56; (1980) 44 FLR 204

Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247

Commonwealth Accommodation and Catering Services Pty Ltd v Boceska (ACTSC, Gallop J, 11 Oct 1991, unreported)

Pettitt v Dunkley [1971] 1 NSWLR 376

Batar v D F Formwork Pty Ltd (ACTSC, Higgins J, 15 July 1994, unreported)

Wattyl Australia Pty Ltd v Ilsley (ACTSC, Gallop J, 7 Nov 1996, unreported)

Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1

The Vera Cruz (No 2) (1884) 9 PD 96

Chamberlain v R (No 2) [1983] FCA 78; (1983) 46 ALR 493

Parkroyal Motor Hotel Pty Ltd v Sullivan [1985] FCA 358

Scott v Bye [1824] EngR 886; (1824) 2 Bing 344; 130 ER 338

Qantas Airways Ltd v Gubbins and Ors (1992) 28 NSWLR 26

Colliery Employees' Federation v Northern Proprietors' Association [1904] AR (NSW) 182

Re Commonwealth Court of Conciliation and Arbitration & Anor; Ex parte Brisbane Tramways Co Ltd & Anor [1914] HCA 15; (1914) 18 CLR 54

Peacock v Newtown Marrickville and General Co-operative Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Sue v Hill & Anor [1999] HCA 30; (1999) 199 CLR 462

Eagle Star Insurance Co Ltd v Yewal Insurance Co Ltd [1978] Lloyd's Rep 357

Ory & Anor v Betamore Pty Ltd (in liq) and Ors [1993] SASC 3996; (1993) 60 SASR 393

Griggs v Norris Group of Companies (Including S A Helicopters Pty Ltd and Captured Pty Ltd) [2006] SASC 23; (2006) 94 SASR 126

Trittenheim Pty Ltd and Ors v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434

Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77

A and Anor v Director of Family Services (1996) 132 FLR 172

ON APPEAL FROM THE A DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE A DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The order of the Magistrates Court made on 6 March 2009 be set aside.

3. The respondent's application for rejection of the appellant's claim for compensation be remitted to the Magistrates Court to continue the hearing in accordance with law.

1. The appellant, Michael James Seers, was employed by the respondent, The Exhibition Centre Pty Limited (the Exhibition Centre), in 1994. The Exhibition Centre conducts a mounting and laminating picture framing business.

2. During the course of his employment, Mr Seers complained of a painful wrist in about mid-August 2005 but continued to work. He ceased work sometime between June and September 2006.

3. On 17 October 2005, he made a claim for workers compensation which was paid to him. On 31 March 2008, the Exhibition Centre applied for an order giving it leave to reject the claim of Mr Seers and to cease making compensation payments to him.

4. On 6 March 2009, Magistrate Campbell made that order. Mr Seers appeals against the order.

5. In order to understand the appeal, it is necessary to understand the statutory context to the claim by Mr Seers. This is set out in the Workers Compensation Act 1951 (ACT) (the Workers Compensation Act) and in the Workers Compensation Regulation 2002 (ACT) (the Regulation).

6. A general history of the legislation and the position of the Magistrates Court is set out in M & M Rolfe Cleaning Services Pty Ltd v Schneider [1997] ACTSC 82; (1997) 130 ACTR 61 (at 64-7). Since then, there has been a significant amendment to the Workers Compensation Act enacted in 2001 by the Workers Compensation Amendment Act 2001 (ACT), the majority of its provisions commencing on 1 July 2002. The Workers Compensation Act is, in fact, amended relatively frequently, to a greater or lesser extent, having been amended by 22 acts since then.

7. The Workers Compensation Act fundamentally provides that an employer is liable to pay compensation, usually in weekly amounts (Pt 4.3), under the Act if a worker of the employer suffers personal injury arising out of, or in the course of, the worker's employment (s 31). It also provides for compensation to be paid for permanent injuries (Pt 4.4), for the cost of medical treatment (Pt 4.5) and for death (Pt 4.6). As well, there is a comprehensive regime for management of injuries with a view to the worker being able to return to work (Ch 5). The balance of the Act deals with issues including the meaning of injury, the mechanism for making a claim, the level of entitlement, how those claims are to be managed, insurance against such claims, the regulation of the insurers, provision for claims where there is no insurer, common law damages, resolution of disputes and other matters.

8. The Workers Compensation Act places obligations on workers and employers. For instance, an injured worker must "tell the employer" of the injury as soon as possible (s 93) and the employer must give a statutory notice (described in s 94) to its insurer within 48 hours after becoming aware of an injury (s 93). The consequences to an employer who does not give such notice are potentially quite serious, for the employer then becomes itself liable to pay the weekly compensation payments to the worker from the date of the injury until the employer gives the notice (s 95). Similarly, the insurer is obliged to take speedy action upon notification and there are criminal sanctions for failure to do so (s 96).

9. There appears to be no particular method by which a worker must tell the employer of the injury under s 93. This is clear from the following:

(i) section 92(6) is suggested by the note to s 93(1) (though the two provisions use what might be relevantly different wording) to permit the employee simply to enter the details of the injury in the Register of Injuries maintained under s 92(2);

(ii) the obligation on the employee is expressed as an obligation to "tell the employer" whereas the obligation on the employer is to "give the insurer notice of the injury"; and

(iii) the employer may give that notice "orally, in writing or in electronic form" (s 94(2)), which suggests that the employer may not have received a written document from the employee which (or a copy of which) is merely to be passed on.

10. This case involves the making of a claim for compensation. This is different from giving notice of an injury under s 94. Thus, ss 116, 118 and 119 are important. They provide:

116 Making claim for compensation

(1) A worker may claim compensation under this Act.

(2) A claim for weekly compensation must be accompanied by a medical certificate from a doctor.

(3) Failure to make a claim under this Act does not prevent the recovery of compensation if it is found that the failure was caused by ignorance, mistake or other reasonable cause.

...

1. Medical certificates and claims for compensation

(1) To the extent that information or material has been given in the course of the making of a claim for compensation for an injury, it is not necessary to give the information or material when making any further claim for compensation in relation to the same injury.

(2) A medical certificate required to accompany a claim for weekly compensation must -

(a) comply with the requirements for medical assessments prescribed by regulation; and

(b) include a statement of the doctor's assessment of whether the worker's condition is consistent with the worker's employment being a substantial contributing factor to the injury.

(1) This section applies if a claim is deficient because section 118(2) has not been complied with.

(2) If the insurer (or self-insurer) tells the worker in writing about the deficiency (including details of what is required to comply with section 118(2)) as soon as possible (but in any case within 72 hours) after receiving the claim, the claim is not considered to have been made until section 118(2) is complied with.

(3) However, if the insurer (or self-insurer) does not tell the worker in writing about the deficiency (including details of what is required to comply with section 118(2)) within 72 hours after receiving the claim, the claim is taken to comply with section 118(2).

(4) Subsection (2) does not apply if the insurer (or self-insurer) waives the requirement for the claim to comply with section 118(2).

11. The making of a claim appears to mean simply seeking compensation from the employer (who, of course, will seek indemnity from its insurer unless it is a self-insurer): see the prescribed claim form, 'Claim for Compensation by Incapacitated Worker' (AF 2002-88). Nevertheless, Ch 6 of the Workers Compensation Act, despite its title "Claims", also deals with proceedings for the recovery of compensation. Thus s 120 refers to the time for taking proceedings, though it also deals with an important pre-condition to the making of a claim. It provides:

(1) A proceeding for the recovery of compensation for an injury may continue only if -

(a) notice of the injury (an injury notice) was given as soon as practicable after the injury happened, and before the worker voluntarily left the employment in which the worker was injured; and

(b) the claim for compensation was made -

(i) within 3 years after the injury happened; or

(ii) if the worker was not aware of the injury when it happened - within 3 years after the worker became aware of the injury; or

(iii) if the worker dies - within 3 years after the claimant became aware of the death.

(2) However, a proceeding for the recovery of compensation for an injury may also continue if -

(a) the Magistrates Court allows the proceeding to be maintained under section 120A (Proceedings on late claims); or

(b) the proceeding may be maintained under section 124 (No notice or defective or inaccurate notice).

Note An injured worker may give notice of an injury by making an entry in a register of injuries (see s 92).

1"> 12. There are a number of important things to note about this provision. The term used, "injury notice", is the same as the term used in s 94 but they are different notices. While this is somewhat confusing, and probably should be rectified to prevent confusion, it is clear from:

(i) the Dictionary to the Workers Compensation Act which makes it clear that there are different meanings for different chapters in the Act;

(ii) the contents of the notices are different: s 123 cf s 94;

(iii) the s 94 notice is given by an employer to an insurer (s 93); the s 123 notice is given by the employee to the employer; and

(iv) the reference to s 92 in the note to s 93 makes it clear that this notice is equated to a relevant degree with the obligation of the employee under s 93(1) and thus distinct from the injury notice under s 94 which is referred to separately in s 93(2).

13. There are, so far as I could determine, no approved forms for either notice. Had there been, this would have assisted in making the distinction clear.

14. Sections 122 to 124 set out the provisions relating to making a claim. They are in the following terms:

122 When is a claim made?

(1) A claim is made on the day the claim is given to the employer or insurer.

Note Payment of weekly compensation begins when the worker gives notice of the injury to the employer (see s 38).

(2) If the claim is given to the employer and insurer on different days, the claim is made on the day the claim is given to the first of them.

123 The notice for an injury

(1) An injury notice must contain -

(a) the name and address of the injured worker; and

(b) the cause of the injury (in ordinary language); and

(c) the date and time the injury happened.

(2) The notice must be served on the employer or, if the worker has more than 1 employer, on the employer responsible for the workplace where the injury happened.

1. No notice or defective or inaccurate notice

(1) This section applies to a claim in relation to which -

(a) an injury notice has not been given; or

(b) the injury notice given was defective or inaccurate.

(2) A proceeding may be maintained in relation to the claim if the Magistrates Court or arbitrator finds, in the proceeding for the claim, that -

(a) the employer's defence is not, or would not be, prejudiced by the lack of notice, or defect or inaccuracy in the notice, if a notice or amended notice were given and the hearing postponed; or

(b) the lack of notice, or defect or inaccuracy in the notice, was caused by ignorance, mistake or another reasonable cause.

15. An approved form, AF 2002-88, is prescribed for the making of a claim presumably under s 122 (though the approved forms in the Legislation Register regrettably do not refer to the section of legislation to which they relate) and is different from an injury notice in content.

16. Thereafter, if a claim is accepted, as here, then an insurer, who considers that the injury is a "significant injury" (namely that the worker is likely to be incapacitated for a continuous period of more than seven days), must establish a personal injury plan (s 97). The worker must nominate a doctor for the plan (s 102) and the doctor must be authorised to provide relevant information (s 102(4)). That information is in the form of a medical certificate (s 103) which is in the approved form: 'Medical Certificate for ACT Workers Compensation Claims' (AF 2004-3).

17. Chapter 6 imposes obligations on insurers to proceed promptly to accept or reject a claim. This is done by reference to the time when a claim is "given" to an insurer. This, however, is defined quite broadly in s 127(2), which provides:

[f]or this part, a claim is given to the insurer if the claim is given to the insurer or the insurer is given notice of the claim by the employer or worker.

Thus, it is clear that a claim may be made either through an employer (presumably passing on the claim form given to it by the worker) or directly by a worker (despite the claim form, AF 2002-88, being addressed to the employer).

18. Section 128 then provides that an insurer is taken to have accepted a claim it receives if it has not rejected it at the end of 28 days after it had been received. I am prepared to find that "receives" in the section is the correlative of "give" in s 127(2).

19. When rejecting a claim, s 129 requires the insurer to give notice of rejection to the worker and the employer. There are different procedures depending on when the insurer wishes to reject the claim: Thus, the Act contains provisions regulating the rejection of claims within 28 days (s 130) and between 28 days and one year (s 131) and after one year (s 132).

20. The Workers Compensation Act provides that, apart from prosecution for offences, all matters and questions arising under the Act must, absent other provisions in the Act or agreement, be settled by conciliation or arbitration conducted under the "regulations" (s 195). The regulations referred to in the Act are the Regulation. Part 6 of the Regulation provides for conciliation. It is not relevant here, for there is no pre-condition for conciliation where the application is to reject a claim: s 38(2) of the Regulation. Part 7 of the Regulation provides for arbitration.

21. Section 48 of the Regulation permits either the worker or the employer to file an application for arbitration, inter alia, of the insurer's rejection of the worker's claim for compensation. Section 50 provides for arbitration by a committee, though the committee may refer the matter for arbitration to the Magistrates Court.

22. Section 51 gives jurisdiction to the Magistrates Court if there is no committee or, where a party objects to the matter being arbitrated by the committee, the committee refers the matter to the Court, or the committee fails to decide the matter within one month after the claim is made.

23. There was no evidence before me about whether there was a committee and no point was taken about that. It appears that no committee may ever have been appointed: Moore & White Pty Ltd v Mitojevic (1980) 35 ACTR 39 (at 41). For the reasons given by Gibbs J in Sobania v Nitsche and Anor (1969) 16 FLR 329 (at 334-5), I need not consider this matter further.

24. Section 56 of the Regulation sets out the procedure to be followed on arbitration. It provides:

56 Procedure on arbitration

(1) This section applies to an arbitration unless the Act or rules expressly state otherwise.

(2) The Magistrates Court or a committee may decide its own procedures.

(3) The Magistrates Court or a committee need not act in a formal way and is not bound by rules of evidence.

(4) The Magistrates Court or a committee may inform itself about anything in the way it considers appropriate.

(5) The Magistrates Court or a committee must act according to equity, good conscience and the substantial merits of the matter being arbitrated, without regard to technicalities and legal forms.

25. Section 56(5) is obviously an important provision. It does not appear to have received any specific judicial attention in this Territory.

26. That provision follows a formula that has a long and interesting history, dating back as far at least as 1604 to a statute establishing the Court of Requests, 1 Jac 1 c 14. Its first Australian usage was in 1842 in the Court of Requests Act 1842 (NSW) (6 Vic No 15) which established a court to deal with small debt claims. It is a phrase that has attracted recent judicial comment and is dealt with below.

27. This case is concerned with the application for rejection of the claim by Mr Seers though the real effect of that would simply allow the employer and its insurer to terminate the payments and not recover any payments already made.

28. The specific application with which this case is concerned was made under s 132 of the Workers Compensation Act. It provides:

132 Rejecting claims from 1 year

(1) An insurer may reject a worker's claim for compensation 1 year or later after the claim is given to the insurer only with the leave of the Magistrates Court.

(2) If the Magistrates Court gives leave to the insurer to reject the worker's claim for compensation -

(a) the insurer need not give the worker notice of the rejection if the worker, or the worker's lawyer, is present when the court gives leave for the insurer to reject the claim; and

(b) the insurer may stop paying weekly compensation -

(i) on the day stated by the court in the order giving leave to the insurer to reject the claim; or

(ii) 8 weeks after the worker gets notice of the rejection if no day is stated in the order.

(3) For this section, the worker gets notice of the rejection -

(a) if the worker is present when the court gives leave to the insurer to reject the claim - on the day the court gives leave; or

(b) when the worker receives notice of the rejection from the insurer.

Note Court approved termination is dealt with under the regulations.

29. It is common in workers compensation legislation for there to be a requirement limiting the power of an insurer to reject a claim. For example, under the relevant legislation in a number of other jurisdictions, where the employer has commenced to make compensation payments, even voluntarily, these payments cannot be terminated or diminished except with leave of an appropriate authority, usually a court: Western Australian Coastal Shipping and Anor v Wallner [1980] HCA 22; (1980) 144 CLR 110 (at 115). Provisions to that effect in earlier versions of the Workers Compensation Act were subject to consideration in Barbaro v Leighton Contractors Pty Ltd [1980] FCA 56; (1980) 44 FLR 204 (at 205-6), which made it clear that the weekly payments could only be terminated in accordance with the Act.

30. The basic facts are in relatively short compass and were found by her Honour, though Mr G Stretton, who ably represented the employer (as respondent) before me and the employer (as applicant) before her Honour, did contend that there was little material to show that the work Mr Seers did was repetitive in a way that supported his claim.

31. Mr Seers had a history of working with photographs, originally in mounting and laminating and then in a dark room, though he did work in other areas.

32. As noted above, Mr Seers commenced work with the Exhibition Centre in 1994, again in laminating and mounting photographs.

33. His work required him to take printed photographs and apply a coating to protect them from fingerprints, dust and the like (that was the laminating) and to then mount them on a substrate to which glue had been applied and to which the photographs then bonded (mounting). This required, in particular, Mr Seers to trim the resulting product.

34. It is not necessary to detail the complete work history of Mr Seers, though it was given fully to her Honour. A detailed document setting out his work history was also included in the appeal papers.

35. Mr Seers gave a detailed explanation of his work. Again, it is not necessary to set that out, save to say that it seemed to me, as explained in evidence recorded in the transcript of the proceedings before her Honour, to involve a degree of repetitive work when he was required, amongst other things, to clamp his left hand on a straight edge and then trim the material by use of a Stanley knife which he had to clamp almost as hard with his right hand. He would spend about four to five hours in such cutting work each day.

36. Perhaps unsurprisingly, his left wrist became painful in about mid-August 2005. He continued working but his wrist became swollen and tender. He consulted his general practitioner and was referred to a Dr Wing for a steroid injection and also consulted a physiotherapist.

37. In a report dated 28 September 2005, his general practitioner, Dr Elizabeth Challinor, reported her diagnosis of de Quervain's tenosynovitis of the left wrist.

38. Mr Seers took some time off work then returned to work part-time but the pain in his left wrist became worse.

39. On 17 October 2005, Mr Seers completed a worker's compensation claim form presumably provided by his employer's insurer for it had the Allianz Australia Insurance Ltd logo and address printed on it. In the form, under the heading "[i]njury details" he inserted the words "[r]epedative [sic] strain. Tenosynovitis. Wrist". He inserted under "[d]ate of injury" the entry "12 Sept". The form was not in the prescribed form AF 2002-88 and did not seek all the information set out in the approved form. It was, however, clearly notice of the claim (s 127(2)). Presumably it could be said to amount to substantial compliance with the prescribed form (s 255 of the Legislation Act 2001 (ACT)) especially as such forms were apparently provided by the insurer.

40. No evidence was given of compliance with the employer's duties to give notice, but no issue was raised about that. Liability for the injury was accepted on 31 October 2005, within the statutory period of 28 days. See s 128 of the Workers Compensation Act.

41. Despite returning to work, Mr Seers continued to suffer pain and disability and by June 2006 was experiencing pain in his left wrist, left forearm, left shoulder, neck and head and had vision problems and headaches as well as pain his right shoulder, right forearm and right wrist.

42. Ultimately he ceased working sometime between June and September 2006 and his employment was terminated on 7 February 2007.

43. Since then he has been unable to obtain employment other than some minor work, about which there was some controversy which does not concern me in this appeal.

44. A personal injury plan was prepared as required by s 97 of the Workers Compensation Act. It specified the diagnosis/injury as "[l]eft de Quervain's tenosynovitis, cervical spine involvement".

45. In the comments in relation to that diagnosis appears:

Mr Seers works as a Laminator with the Exhibition Centre (40 hours/week). Mr Seers is right hand dominant.

Mr Seers reports increased pain and swelling in his left wrist and thumb attributed to repetitive work with his left hand.

Mr Seers has consulted Dr Roberts (Orthopaedic Surgeon) in regards to his injury. Dr Roberts suspected involvement of the right shoulder. Review by physiotherapist David Kennard indicated involvement of the cervical spine. Mr Seers consulted Dr Brooks (Rheumatologist) regarding his injury.

46. It further refers to "independent" medical examinations which had been undertaken by Dr James G Bodell, orthopaedic surgeon, in May 2006 and by Mr I Kelman, orthopaedic surgeon in November 2006.

47. The plan notes Dr Challinor as the Nominated Treating Doctor and under the heading "Actions Required" were included, inter alia, actions for Mr Seers, namely "[p]rovision of up-to-date medical certificates to Allianz" and "[n]otification of any significant change in injury condition or work status to Allianz". I can see no reason why, if appropriate, the latter notification could not be effected through the provision of the medical certificates.

48. A series of eighteen medical certificates were in evidence. The first was dated 12 October 2005. The date of the last one was not clear but appeared to be 6 May 2008. These apparently were required of the Exhibition Centre's insurers to be provided in accordance with the personal injury plan for Mr Seers as noted above. They were provided by Dr Challinor on prescribed form AF 2004-3, 'Medical Certificate for ACT Workers Compensation Claims'.

49. As one would expect the "[d]escription of Injury/Actionology" was precisely identical in each form, namely "de Quervain's tenosynovitis - pain, swelling, stiffness radial aspect wrist".

50. The diagnosis, however, varied over time. On 12 October 2005, it was simply "tenosynovitis". The next certificate, however, presumably on 13 January 2006 was more detailed; it stated "de Quervain's tenosynovitis left wrist - with associated shoulder ache and lumbosacral pain probably due to muscular compensation, increasing ache since mid-December 2005".

51. The next certificate in the appeal book was dated 4 May 2006. It is in similar terms though it refers to "associated right shoulder and neck ache" (emphasis added) and "increasing aching ++ since mid-December 2005."

52. In general terms, this diagnosis was repeated in each certificate until the certificate of 20 September 2007 which was briefer "de Quervain's tenosynovitis wrist shoulder and neck? [probably "pain"]". This briefer diagnosis was repeated in the remaining certificates

53. It seems clear that the de Quervain's tenosynovitis had, by the time of the application before her Honour, ceased to be the cause of any inability Mr Seers had to return to work. For example, Dr G Speldewinde, consultant in rehabilitation, pain and musculoskeletal medicine, reported that "[h]is earlier problem of left wrist tenosynovitis has resolved"; Dr Champion, psychiatrist, reported "[r]esolved de Quervains [sic] Syndrome (tenosynovitis) of left thumb". Even Mr Seer's expert, Dr L Leu reported "the Quervain's tenosynovitis and probably tenosynovitis of other forearm extensors ... in my opinion is no longer active having been overshadowed by the injuries below".

54. Mr Seer's position was that he was still unfit for work because of the symptoms to his neck, shoulder and both arms, as well as his headaches, described in the medical certificates noted above, and described and reported on in more detail in the other medical reports provided for the hearing before her Honour. If that were so, it appears Mr Seers asserted, then the employer, the Exhibition Centre, and its insurer should not be permitted to cease making payments.

55. The employer and its insurer, on the other hand, submitted that the injury reported in the notice of claim, namely de Quervain's tenosynovitis, had ceased to be active, ceased to prevent Mr Seers from working, or had resolved and, therefore, whatever other injuries or disabilities may be suffered by Mr Seers that may prevent him from working, the entitlement to compensation arising from the notified injury had ceased since that was the injury which was the basis for that entitlement.

56. It seems to me that it is fair to say that this issue did not become precisely apparent until all the evidence had been adduced and counsel for the parties were in submissions. Nevertheless, no application was made for an adjournment to deal with what might have been regarded as an unexpected approach to the application.

57. It is worth noting the following matters in respect of the proceedings below which contribute to a determination of this appeal.

58. The application for arbitration of the claim by the Exhibition Centre for an order rejecting the claim by Mr Seers (Court Procedures Rules 2006 (ACT): prescribed form 3.59: 'Application for Arbitration by Employer or Insurer') provided the following information:

Alleged injuries to neck, wrists, shoulders, elbows, fingers and bilateral arm pain, together with headaches and a chronic pain syndrome

(a) The respondent did not suffer any injury arising out of, or in the course of his employment with the applicant in or about June 2005 and due to the nature and conditions of his employment.

(b) In the alternative, if the respondent did suffer injury arising out of or in the course of his employment in or about June 2005 and as a result of the nature and conditions of his employment as alleged, which is denied, then those injuries do not result in any incapacity for work.

(c) In the alternative, any incapacity the respondent may have had or may now have is not as a result of any injury arising out of or in the course of his employment with the applicant in or about June 2005 and the nature and conditions of his employment as alleged or at all.

(d) In the alternative, if the respondent did suffer incapacity for work as alleged, which is denied, that incapacity has ceased.

(e) The respondent is capable of earning an income equal to or greater than that he was earning with the applicant.

(f) In the alternative, the respondent was not, and is not, incapacitated for work as alleged or at all.

(g) The medical treatment expenses claimed were and/or are not reasonably necessary.

(h) That any s 70 expenses which were reasonably necessary did not result from any injury arising out of or in the course of employment.

(i) The respondent's capacity to earn has not decreased as a result of injury arising out of or in the course of employment as alleged or at all.

(j) In the alternative, any incapacity for work suffered by the respondent does not result from any injury arising out or in the course of employment with the applicant as alleged or at all.

59. It can at least be said that the precise issues I have identified above (at [53]-[55]) were not made crystal clear from the application. For example, the nature of the injury in item 2 was consistent with the diagnosis in Dr Challinor's later certificates and much wider than that set out in the claim form.

60. Similarly, ground 6(a) would have to be construed as raising the issue of whether the de Quervain's tenosynovitis, at least, had arisen out of Mr Seer's employment, a matter not ultimately at issue in the proceedings as they were ultimately conducted before her Honour, though Mr Stretton seemed to want to keep that issue open before me. One could similarly comment on the other grounds which seem equally directed to the issue of the de Quervain's tenosynovitis and the other disabilities it caused, as much as to any other injury or disability.

61. It has to be accepted that the proceedings for arbitration before the Magistrates Court are not proceedings that would require strict pleadings in the technical sense. If it means anything, s 56(5) of the Regulation must mean that. Good dispute resolution procedure, however, does normally require as clear an identification of the issue to be decided as possible. That applies as much to informal dispute resolution tribunals and other bodies as to courts.

62. It has also to be said that Mr Stretton did, in the course of his relatively brief opening, make references which can now be seen as identifying what became clear as the issue. To make this clear, I set out the relevant parts of it:

MR STRETTON: Your Honour, this is an application for termination, or a rejection as we now call it, under section 132 of the Act, which provides briefly that if workers' compensation has been paid for over 12 months, then the only way it can be terminated, apart from by agreement, is by an application to the court. That's this application. Your Honour will see that the rejection application sets out a series of grounds.

HER HONOUR: Yes.

MR STRETTON: Paragraph 6 of the application and basically goes through, if you like, the whole gamut of matters; didn't suffer any employment injury, if he did then it didn't - if he did suffer an injury it wasn't employment related. Any incapacity has ceased. If there's incapacity, it doesn't arise out of the employment. Capable of earning more, and so it goes on. The answer, your Honour, you will see denies all of those matters in paragraph 6, so obviously paragraph 6 in the denial are what's in dispute in this application.

HER HONOUR: And he's been receiving payments since 23 September 2005, is that ...

MR STRETTON: That's so, yes. He continues to receive payments. I tender, if your Honour pleases, a copy of the workers claim form dated 17 October 2005.

MR SHILLINGTON: No objection.

HER HONOUR: That will be Exhibit 1.

EXHIBIT 1 - WORKERS CLAIM FORM DATED 17/10/2005

MR STRETTON: Your Honour, you will see ...

HER HONOUR: I will in a moment. Thank you.

MR STRETTON: That the claim is made in relation to a repetitive strain, tenosynovitis of the left wrist. So that's the injury your Honour would understand for which compensation is being paid. Now your Honour there's a series of medical reports which will be tendered shortly, but it may be convenient just to indicate to your Honour an outline of some of the medical matters and I am reading now from the final paragraph of a report of Dr Burke, B-u-r-k-e. His report is dated 20 February 2008, he, having seen the worker on 12 February 2008, and in answer to the question the extent, if any to which the claimant's employment with the insured contributed to any condition he may have, Dr Burke says this:

It does appear that work has significantly contributed to the development of the de Quervain's tenosynovitis.

That's the matter covered in Exhibit 1.

I consider it unlikely that work contributes to any condition that he may have at this stage. He has underlying cervical spondylosis ...

Spondylosis of course being a degenerative condition of the cervical spine, or of any spine, but in this case the cervical spine.

63. It has also to be said that in a reasonably extensive cross-examination, the extent of all the disabilities claimed by Mr Seers was explored, not just the tenosynovitis.

64. Two visual presentations, presumably as the result of surveillance, were shown and it was put to Mr Seers in cross-examination that his evidence to the court was inconsistent with what was shown when the DVDs of the presentations were played to the court. It was put to him that he had given false evidence. He was also challenged on other aspects of his evidence. Her Honour found that those matters damaged his credibility but, as her Honour put it:

I am not required to make definite findings as to his present level of general incapacity. Determining the application for rejection does not turn significantly on questions of credibility - other than to resolve the question of whether the worker is continuing to suffer from the injury originally referred to in his claim. This is answered by the medical evidence.

65. The only oral evidence in the proceedings came from Mr Seers. The medical evidence was adduced by the consent tender of medical reports. This is always a fraught process where there are differences in the opinions expressed, for the court often has little material on which to be able to judge which expert to prefer or whether apparent differences of opinion are real differences. Apparently dissimilar expressions of opinion may be able to be made consistent when the author of the opinion is cross-examined or the various formulations are put to the other experts with an opportunity to explore the differences and their reasons for them.

66. Of course, it also means that an appellate court has at least an equal opportunity to assess the opinions since there can be no special advantage enjoyed by the primary judicial officer who has not heard or seen the expert give the evidence: Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

67. Mr D Shillington, who appeared for Mr Seers before her Honour, addressed first and addressed the apparently inconsistent evidence, submitting that the visual presentations were not inconsistent with oral evidence Mr Seers had given. He also addressed the other alleged inconsistencies.

68. In addressing the medical reports he attacked the opinion most prejudicial to the case for Mr Seers and analysed a number of the others, relying on the conclusion of Dr L Leu who opined that Mr Seers was presently unable to work and that this was a result of his work situation. His summary of the evidence was:

[y]our Honour, in my submission, the evidence is overwhelming that he has until recently been totally incapacitated for work and now he's obtained after long efforts and efforts to try and obtain work in Goulburn, Yass and in Gunning, says he's contacted all the businesses in Gunning that he is now hopeful of returning to work in the service station and continuing to work with the young deaf child in the kindergarten. ... So at the very least there is a partial incapacity which the legislation allows to be calculated on a formula depending on the hours worked, your Honour.

69. He then addressed the grounds of the application, noting that a number had not been the subject of cross-examination.

70. It was clear that Mr Shillington was aware of the issue of the relation between the original claim and the present disabilities, and he relied on the report of Dr Leu, especially at par 7 (to which I will return) and then said:

[y]our Honour, whilst the initial claim was in relation to the left wrist the symptoms then developed after his graduated return to work to the other parts of his body. Your Honour, as I alluded to in the application for arbitration you will see that the nature of the injuries are set out in that application at paragraph 2. Alleged injuries to neck, wrist, shoulders, elbows, fingers and bilateral arm pain, together with headaches and chronic pain syndrome.

71. Mr Stretton's submissions went straight to the issue. He said "[w]hat your Honour, therefore, has to decide is whether the worker continues to suffer as a result of that injury [i.e. tenosynovitis of the left wrist] - that particular injury not some other injury, but that injury".

72. He relied on the reports of the doctors retained by Mr Seers and submitted that "it's beyond doubt ... that the injury for which workers compensation was paid is no longer in existence, no longer extant".

73. He further submitted that Mr Seers had committed perjury and that, uncorroborated, her Honour should not believe Mr Seers. In the end, however, his submission was for her Honour to keep her considerations simple:

[i]n my submission it's not a matter where your Honour needs to do anything but keep it simple. So the finding I seek is the worker does not presently suffer from tenosynovitis or repetitive strain injury and has not done so since 29 August 2006 and I've taken that from the date of Dr Brooks' report because he says it's resolved.

74. He did, however, seek a second finding, namely:

[s]econdly, the worker is not incapacitated, totally or partially from any injury - that should say to the left wrist - arising out of or in the course of his employment with the employer.

75. Her Honour did seek clarification of why the application was so expansive in its description of the injury and it appears Mr Stretton suggested that the additional matters could be ignored and "insofar as it is necessary" as an application could be made to amend the application "to bring it in align [sic]" with the original claim form because, he submitted, the "claim in this case is that delineated" by what was in that form.

76. One can understand from this her Honour's comment:

HER HONOUR: Well I'm wondering what - I am. Because I'm wondering why we spent so much time on issues that you're saying to me are now totally irrelevant.

77. Mr Shillington opposed the application to amend and submitted that there was plenty of evidence to show that the original injury had progressed from the left wrist. The foreshadowed application to amend appears not to have actually been made or pressed and no order for an amendment was made.

78. Mr Stretton was permitted to make a comment on Mr Shillington's last comment and took the position that he maintained before me when he said:

...the question is does the nature of the injury cover the left wrist, the answer is, yes, it does. It covers other things, too, but it covers the left wrist. What is the compensation paid for, Exhibit 1, the left wrist. What does your Honour have to decide, is there some injury to the left wrist for which compensation is paid - that arises out of the employment and continues to be an incapacitated worker and the answer to that is no on both the applicant's and the respondent's medical evidence.

79. In the light of my description of the course of the proceedings, I do not have to analyse her Honour's decision in too much detail.

80. Her Honour set out the factual background to the matter broadly as set out above. She described the disabilities now claimed by Mr Seers, noting that he "impressed as a man who had genuinely enjoyed, and had been fulfilled by, his employment...".

81. As I noted (at [64]) above, her Honour did refer to the damage to the credibility of Mr Seers that the cross-examination and visual presentation had achieved but made no specific finding.

82. Her Honour then identified the question for her decision. She set out the terms of the claim form (as in [39] above) and then noted that Mr Seers had "experienced symptoms or injuries not referred to in his original claim" and for which no additional claim had been lodged. She then continued:

[t]he employer argues that the injury for which the claim was made, and liability accepted, has resolved. Thus the application for rejection must succeed.

[t]he worker, who I suspect may have been surprised by this point, argues that there is some connection between the original injury and his present state (e.g. an aggravation) or that the terms of the application for rejection make it clear that the employer was aware of the additional symptoms from which the worker was claiming to suffer and that the employer had continued to make payments for these additional problems.

84. Her Honour then dealt with the first of these points, namely the claimed connection between the original injury and the present state. She did not, however, deal with the second point so far as I could find in her Honour's decision, namely that the employer was aware of the additional symptoms and continued to make payments.

85. Her Honour refers to the medical evidence in some detail. She says she preferred some of the reports "because of the logical and detailed way in which the worker's medical history is examined and analysed".

86. As I have noted above (at [65]), there was no oral evidence from or cross-examination of the medical experts, all of their evidence being tendered in written reports. This leaves me in as good a position to evaluate their evidence as her Honour. I do not, however, propose or need to do that in particular detail as I do not propose to make a final finding on this point of connection between the present disabilities and the original injury. I was not really addressed on that.

87. Her Honour then reproduced "extracts from some of those [medical reports she] found most useful".

88. The passages from the reports extracted by her Honour make it clear that the de Quervain's tenosynovitis is "significantly symptomatically relieved" (Dr Brook) or "no longer active" (Dr Leu) or "resolved" (Dr Speldewinde, Dr Burke, Dr Champion). Another agreed that it had "abated" (Mr Kelman). There can be no real doubt, and her Honour was right to find, that the de Quervain's tenosynovitis was no longer a proximate cause for Mr Seers' present inability to work, if that latter finding were to be made. I only add that rider because her Honour, though strongly suggesting that he was unfit for work, made no direct finding and that may have to be made at some stage. I would not want my relatively brief perusal of the medical reports, without the benefit of detailed submissions on them, to be suggested as resulting in me having made a finding on this matter one way or another, especially as such a finding would also have to rely heavily on the oral evidence of Mr Seers which, of course, I only read in transcript.

89. This left, then, the issues her Honour mentioned of whether the employer was aware of the additional symptoms and voluntarily made payments in that knowledge. Her Honour did not address that issue at all. I am not sure that I would have articulated it in the way her Honour did, but I address that below. The fact remains that her Honour did not address the issue.

90. Her Honour did address a related issue, namely whether the present, non-de Quervain's tenosynovitis symptoms were related to the de Quervain's tenosynovitis. Her Honour was not satisfied that they were. For this finding, however, her Honour gave no reasons that I could discern.

91. There were some references in the passages she extracted from the medical reports, but there is no real analysis of them, so far as this more complex and problematic issue is concerned. Unlike the issue of the de Quervain's tenosynovitis, there was a wide divergence of views and no analysis of how these were to be addressed. I can sympathise with her Honour in that the absence of cross-examination of those experts and very limited submissions on their inconsistencies left her with a challenge.

92. In order to assess this absence of reasons, I will make a few comments which highlight the issue.

93. Her Honour makes no reference to the report of Dr J Bodel, orthopaedic surgeon, who made a logical and detailed analysis of Mr Seers' medical history. He found "that the aetiology here indicates that there is a causal link between the nature and conditions of work and the development of widespread discomfort in both upper limbs". Similarly, the report of Mr Kelman, also an Orthopaedic Surgeon, which is a detailed seven-page report is not mentioned by her Honour. He found that the aetiology of the symptoms Mr Seers is experiencing was "a gradual process of excessive repetitive activity and stress". In contrast, she cites from the one page report of Dr Speldewinde which, though a helpful report, hardly provides "a detailed analysis" of Mr Seers' medical history. I found it difficult to apply her Honour's reason for preferring one report over another to the reports actually produced.

94. Her Honour also placed apparently significant reliance on opinions of Dr Champion, a psychiatrist, who made references, some of which her Honour reproduced, that were of a more orthopaedic than psychiatric nature. Dr Champion did concede that "strictly speaking these matters are outside my sphere of special expertise, [but] as a doctor with general practitioner experience, I would comment" on the contribution of a 1990 incident. This disclaimer could apply a little more widely to the opinions in Dr Champion's report to which her Honour had regard and needs careful consideration, especially in the light of differing comments made by those medical practitioners with the requisite special expertise, when Dr Champion's curriculum vitae shows his general practice experience was of 18 months duration.

95. Finally, while her Honour did rely on the opinion of Dr Le Leu, who provided a very detailed and comprehensive report, the passage quoted by her Honour was unaccountably limited and a full reproduction gives quite a different perspective from the isolated passage reproduced. The whole passage is as follows, the part of it quoted by her Honour being only the first "dot point" below:

• the work situation directly brought on the de Quervain's tenosynovitis and probably tenosynovitis of other forearm extensors (this injury, in my opinion, is no longer active having been overshadowed by the injuries below);

• the work situation made a previously clinically silent cervical spondylosis highly symptomatic and may have accelerated it; as is often the case, once made symptomatic the spondylosis stays symptomatic;

• the work situation made a previously clinically silent right acromioclavicular arthropathy symptomatic and probably accelerated it.

96. Similarly, Dr Brook's analysis was not clear cut. He noted that the initial problem "was associated with secondary problems, especially the extensor group", though he did opine that the cervical spondylosis "was the main cause of [Mr Seers'] neck and shoulder pain and headache."

97. The issue before her Honour of the cause of Mr Seers' present disabilities and their relationship with his work injury was clearly one of complexity and the material before her Honour presented real challenges for her Honour's obligation to resolve the issue.

98. I have not come to any conclusion about the issue of whether the present disabilities suffered by Mr Seers are causally related either to the original injury of de Quervain's tenosynovitis or to his employment. I have not heard submissions on that matter and have not analysed the medical reports in significant detail.

99. I have, however, been able to form the view that her Honour's reasons for finding that the present symptoms from which Mr Seers claims to be suffering are not a progression or aggravation of the original injury are inadequate. See Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. Given what I have said, I am unable to discern how her Honour resolved the conflicts in the medical reports on this latter issue. She gave criteria for accepting some reports, but even those reports that she did say she found "useful" were conflicting on this very issue.

100. If what I have said appears critical of her Honour, it is not intended to be so. I note that her Honour's decision was sought rather urgently, else common law proceedings would have to be adjourned. Such pressure does not always allow for the kind of careful consideration complex issues deserve, and her Honour clearly made a major effort to meet the time expectations of the parties.

101. In any event, as I have noted, her Honour ordered that the employer may reject the claim. An appeal has been brought from that decision.

102. Mr R Crowe SC, who appeared with Mr D Shillington for Mr Seers, argued that her Honour was wrong to permit the respondent to reject the claim for two reasons: the medical certificates, it was argued, were effectively claim forms and should be accepted as being in substantial compliance with the approved form as permitted under s 255(4) of the Legislation Act 2001 (ACT) which provides that "[s]ubstantial compliance with a form is sufficient"; and that, in the alternative, as there was a reasonable cause for Mr Seers not having made a claim and under s 116(3) of the Workers Compensation Act, her Honour should have considered the other matters.

103. Mr Crowe SC submitted that claim forms are commonly completed by workers at the workplace without legal advice and, indeed, perhaps even medical or union advice. The permitted use of an entry in the Register of Injuries reinforces that approach. The purpose, he submitted, was to give notice to the relevant parties, namely the employer and the insurer. If that was achieved in another way, that should be taken to be sufficient. Hence, substantial compliance with the relevant forms was acceptable.

104. The medical certificates, Mr Crowe SC submitted, were important documents. They could clearly add to the information on the original claim form and, in this case, did so.

105. He submitted that, as investigation and treatment progressed, there could be changes or additions in the medical situation. For example, he submitted that there was some medical suggestion to the effect that:

[i]t may be that the De Quervain's tenosynovitis if properly looked at in, again with the advantage of hindsight looking at all of the evidence was a symptom of an underlying repetitive or occupational over-use injury of a more general type having regard to the physical duties...

106. Here, as I have noted above (at [50]), the medical certificates had clearly extended the diagnosis after the first one to include injuries described by Dr Challinor as caused by "muscular compensation", a clear suggestion of a causative relationship to the originally diagnosed injury.

107. Mr Crowe SC then further submitted that compensation had been paid by the insurer on receipt of these certificates and that, relying on s 56(5) of the Regulation, technicalities such as those relied upon by the respondent should not have been decisive.

108. In the alternative, Mr Crowe SC submitted that I could rely on s 116(3) of the Workers Compensation Act to hold that there was a reasonable cause for the failure of Mr Seers to make a separate claim for the other injuries (if I was of the view that his disabilities represented such) and that that would entitle him to continue to receive compensation.

109. Mr G Stretton, representing the respondent, submitted that the contentions of Mr Crowe SC failed to have regard to the significant obligations that were triggered by the making of a claim. To render the claim too informal or fluid would risk a criminal prosecution against an employer or insurer or, as he submitted would apply in this case, the complete lack of indemnification of the employer.

110. Mr Stretton submitted that while there was some latitude in extending the injury for which compensation was payable without a fresh form, there had to be limits. In his submission, any injury to the left arm of Mr Seers would fall within range but injury outside that such as to the right arm would not.

111. He also relied heavily on the decision of Gallop J in Commonwealth Accommodation and Catering Services Pty Ltd v Boceska (ACTSC, 11 Oct 1991, unreported) (Boceska), which he submitted was authority for the proposition that:

[i]t is not permissible to confuse the determination of the question raised by the worker's claim form or question whether the worker is incapacitated for work by some other medical condition.

112. In Boceska, a somewhat similar situation pertained as to that here. There, the application by the employer raised the question of whether the worker was still incapacitated because of a sprained left ankle and the worker put that in issue.

[q]uite clearly the question raised by the application and answer was whether the worker was "no longer incapacitated" from the condition of a sprained left ankle sustained on 25 August 1987. It was the condition of a sprained left ankle which incapacitated the worker and which gave rise to her entitlement to workers' compensation for the period of that incapacity. It is apparent from the Magistrate's decision and reasons that he did not answer that question. Unfortunately the parties widened the scope of the proceedings to a more general question as to whether the worker was, at the date of hearing, suffering from other conditions which were totally incapacitating.

[i]n my opinion the Magistrate should have confined the dispute to the resolution of the specific question raised by the application; namely whether the worker was still incapacitated for work by reason of a condition of sprained left ankle as from 3 February 1988. In ruling that the worker could expand the scope of the arbitration to the question of continuing total incapacity from any condition, the Magistrate went beyond the jurisdiction conferred by s 24 of the Act to determine the question which had arisen.

115. His Honour also decided that the Learned Magistrate had failed to give proper reasons for his decision and, relying principally on Pettitt v Dunkley [1971] 1 NSWLR 376 and other cases, held that the reasons did not comply with the principles in that case.

116. It is true, as Mr Stretton submitted, that Boceska has been cited in a number of other cases. In Batar v D F Formwork Pty Ltd (ACTSC, Higgins J, 15 July 1994, unreported) it was cited as a case where reasons had not been given for the learned Magistrate's decision. It was not cited as authority for the above proposition.

117. Similarly, in Wattyl Australia Pty Ltd v Ilsley (ACTSC, Gallop J, 7 Nov 1996, unreported) it was cited for the same issue, namely the inadequacy of the reasons of the learned Magistrate and passages from 22-24 were quoted. That case went on appeal to the Full Court of the Federal Court of Australia, in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1, but Boceska was not cited in the judgment of the court.

118. That is not to say that the principle enunciated by Gallop J in Boceska is not a good law and, unless convinced it is wrong, which I am not, I should follow it: The Vera Cruz (No 2) (1884) 9 PD 96 (at 98); Chamberlain v R (No 2) [1983] FCA 78; (1983) 46 ALR 493 (at 498). Indeed, it seems to follow from the decision of the Full Court of the Federal Court of Australia in Parkroyal Motor Hotel Pty Ltd v Sullivan [1985] FCA 358 (at 4).

"Equity, good conscience and the substantial merits of the matter"

119. These words, with the addition of "without regard to technicalities and legal forms" are the statutory obligation of the Magistrates Court under s 56(5) of the Regulation when acting in an arbitration.

120. There has been significant judicial consideration of this phrase since it was first used in about 1604. As recently as 1824, it was held to permit a wide level of discretion to those enjoined to apply it. Thus, in referring to the Court of Requests, Best CJ said in Scott v Bye [1824] EngR 886; (1824) 2 Bing 344 (at 347-8); [1824] EngR 886; 130 ER 338 (at 339):

[i]n the Court of Requests, pleadings in writing are not required, and would be highly inconvenient. A party may be examined as a witness, and the judgment is to be according to equity and good conscience, that is such as plain men, ignorant of the rules of law, which the judges of that court must be, shall think just. If the expence and delay that must be occasioned by an appeal to the Common Pleas did not entirely defeat the object of the legislature in creating courts of request, can a court, the decisions of which are wisely subjected to fixed rules, be a proper tribunal to correct the proceedings of courts where judges are left to the guidance of their own arbitrary discretion?

121. The concern of his Lordship about how an appeal from a body operating in such a way can actually be heard has a quite modern ring as the courts have sought to grapple with the concept behind the phrase. Thus, in Qantas Airways Ltd v Gubbins and Ors (1992) 28 NSWLR 26, Gleeson CJ and Handley JA said (at 29):

[t]he precise effect of this section [i.e. s 108(1)(b) of the Anti-Discrimination Act 1977 (NSW) which required the tribunal to act according to "equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms] is not immediately clear. Section 118(1) [of that Act] provides that a party aggrieved by a decision of the tribunal may appeal to the Supreme Court on a question of law and subs (3) provides that the Court shall hear and determine the question of law arising on the appeal and may make such order in relation to the appeal as to it seems fit. It is apparent therefore that s 108(1)(b) does not release the tribunal from the obligation to apply rules of law in arriving at its decisions. If that had been the effect of s 108(1)(c) there would have been no point in conferring a right of appeal to the Supreme Court on a question of law.

122. There were suggestions even early last century of a wider approach to the position. Thus, Cohen J in Colliery Employees' Federation v Northern Proprietors' Association [1904] AR (NSW) 182 said (at 185):

... the words "equity and good conscience" leave this Court, in my opinion, in the position that, whilst not infringing any positive law of the country, it may do that which it believes to be right and fair and honest between man and man...

123. Early in the Commonwealth, however, there were strong suggestions that such provisions were procedural and could not affect substantive rules of law; see per Isaacs J in Re Commonwealth Court of Conciliation and Arbitration & Anor; Ex parte Brisbane Tramways Co Ltd & Anor [1914] HCA 15; (1914) 18 CLR 54 (at 72). That approach was confirmed by a majority of the High Court in Peacock v Newtown Marrickville and General Co-operative Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25, per Latham CJ (at 36) and Starke J (at 46-47), with McTiernan J agreeing (at 47).

124. The exact meaning and application of the phrase has caused difficulties, with courts not coming to an easy resolution of what the precise meaning is to be. In Qantas Airways Ltd v Gubbins, the majority stated (at 30):

[t]he words "equity, good conscience and the substantial merits of the case" are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found: see generally, Santos Ltd v Saunders (1988) 49 SASR 556 at 564 per Legoe J. In some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245.

In other contexts such words have been construed as requiring the tribunal to apply the ordinary law. ... In Ex parte Herman; Re Mathieson (No 1) (1959) 78 WN (NSW) 6 at 9; [1961] NSWR 139 at 1142, Kinsella J said:

... I am not sure what the magistrate meant to imply in using the words 'according to equity and good conscience' in his brief judgment, but I am clearly of opinion that as used in s 7 of the Small Debts Recovery Act they do not give the court power to depart from established principles of law nor do they give it power to dispense justice otherwise than according to law.

125. More recently, the High Court has had occasion to deal with the phrase or a variant of it. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gleeson CJ and McHugh J said (at [49]):

[t]he history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at lest to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

126. Later, in Sue v Hill & Anor [1999] HCA 30; (1999) 199 CLR 462, Gleeson CJ, Gummow and Hayne JJ said (at [42]):

[p]rovisions of this type are not inimical to the exercise of the judicial power of the Commonwealth. They do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.

127. Gaudron J expressed a similar view. After noting that the power granted by the legislation, which included such a phrase, should be exercised according to law, Gaudron J stated (at [149]):

[i]ndeed, a court would be acting neither in accordance with the substantial merits of the case nor in good conscience if it were to determine the issues raised otherwise than by application of the relevant law to the facts. Nor would it be acting in good conscience if it were to find facts other than on evidence probative of them, evidence which may or may not accord with the rules of evidence.

128. Thus, it would appear now clear that the phrase does not relieve a body, subject to the obligation to decide in accordance with equity, good conscience and the substantial merits of the case, of the duty to apply the substantive rules of law when deciding a case and in accordance with the relevant law.

129. A rather bleak, but not inappropriate summary was expressed by Professor N Rees in "Procedure and Evidence in 'Court Substitute Tribunals'" (1998) 18 ABR 41 where (at 66) he said (footnotes omitted):

[a]n 'equity and good conscience' clause does not permit a 'court substitute' tribunal to set aside the relevant substantive law and determine cases by reference to what appears to be fair and just in the circumstances, either generally or in those cases where the application of unduly technical rules of law may produce what appears to the tribunal to be an unfair result. Also, an 'equity and good conscience' clause is not a grant of jurisdiction to a tribunal to apply the principles of equity when determining the outcome of proceedings. It is no longer meaningful to speak of equity in such a fashion that it could constitute a discrete body of law over which a tribunal had jurisdiction. As Justice French recently pointed out when writing extra-judicially, equity is a body of law which is historically defined and now forms 'part of the single body of unwritten law administered by most, if not all, courts of the land, albeit it retains its distinctive character and functions'.

There is far less certainty about what an 'equity and good conscience' clause actually permits a 'court substitute' tribunal to do which it could not do if it did not have that statutory power. If 'equity and good conscience' clauses do not permit 'court substitute' tribunals to depart from applying the relevant substantive law it seems that they must be a grant of procedural power in the sense that they allow the tribunal to excuse a party's failure to comply with some procedural requirements. As Gleeson CJ and McHugh J said in Eshetu, these provisions are 'facultative' because they are designed 'to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law'.

It is challenging, however, to identify any modern procedural constraints applicable to courts of law which may be overcome by a tribunal's use of an 'equity and good conscience' clause. It is self-evident that an 'equity and good conscience' clause cannot permit a 'court substitute' tribunal to give itself jurisdiction to hear and determine a particular matter when jurisdiction does not otherwise exist. While such a provision may be employed to excuse non-compliance with some statutory procedural requirements and, presumably, all of the tribunal's own procedural requirements, modern courts invariably possess the power to excuse non-compliance with rules of procedure and modern tribunals usually have a separate power to excuse procedural irregularity. It may well be the case that everything which can be done by a 'court substitute' tribunal pursuant to an 'equity and good conscience' clause may be done by a modern court pursuant its power to excuse non-compliance with rules of procedure.

The outer limits to the procedural flexibility granted by an 'equity and good conscience' clause are uncertain as there are some statutory procedural requirements, invariable associated with the notion of a fair hearing, which are beyond the reach of an 'equity and good conscience' clause because compliance with them is mandatory. It is also apparent that an 'equity and good conscience clause' cannot be relied upon to excuse a tribunal's non-compliance with its natural justice obligations, regardless of whether the content of those obligations is specifically described in legislation or falls to be determined by common law rules.

130. Despite this overview, the courts have more recently been prepared to apply the phrase a little more confidently. Nevertheless, the wider range of ameliorative and dispensatory powers, and the courts' willingness to use them, especially "in the interests of justice", has converged the approach of traditional courts and that of those bodies subject to the injunction to act with equity, good conscience and the substantial merits of the case.

131. Thus, in Eagle Star Insurance Co Ltd v Yewal Insurance Co Ltd [1978] Lloyd's Rep 357, Goff LJ said (at 363-4) that such a provision in an arbitration agreement enabled the arbitrator "to view the matter more leniently as having regard more generally to commercial consideration than would be done if the matter were heard in court". See also Ory & Anor v Betamore Pty Ltd (in liq) and Ors [1993] SASC 3996; (1993) 60 SASR 393.

132. As White J said in Griggs v Norris Group of Companies (Including S A Helicopters Pty Ltd and Captured Pty Ltd [2006] SASC 23; (2006) 94 SASR 126 (at 140), "[i]n short, a just claim is not to be defeated by technical difficulties."

133. Similarly, Olsson J pointed out in Trittenheim Pty Ltd and Ors v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434 (at 442):

[w]hat must firmly be borne in mind is that what is appropriate in a particular case must derive from a consideration of the nature of the issues involved and, where appropriate, the clear intendment of any statute applicable. These may patently demand an application of strict principles of law or of a statute either because the notion of equity, good conscience or the substantial merits of the case unerringly points to the need or desirability of so doing, or the statute expressly or impliedly mandates such an approach...

However, in certain types of case... there remains scope for the court... to adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. If it were otherwise then a mandate to 'act according to equity, good conscience and the substantial merits of the case without regard to technicalities ...' would have little or no room to operate at all.

134. In Townsville City Council v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77, Keane JA, with whom McMurdo P and White J agreed, said (at 95):

[43] The authorities suggest that a statutory obligation to have regard to the 'substantial merits of the case' means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.

[44] In my opinion, where there is reason to suppose that the outcome of the rehearing may substantially affect the parties in terms of the ultimate result, then the possibility of injustice in the sense of a decision which does not reflect the 'substantial merits of the case' if leave is not granted, inevitably emerges as a consideration material to the exercise of the discretion conferred by s 12 of the Act.

[45] It may be that, in the circumstances of a particular case, considerations of justice require that the desirability of a 'perfect' outcome give way to the practical consideration that 'justice delayed is justice denied'; and, in some cases, the conduct of the applicant may have been so egregious as to lead to a refusal of a rehearing without considering the impact of the resolution of the issue sought to be reagitated. But to say this is merely to acknowledge that the discretion falls to be exercised as a matter of balancing competing considerations having regard to all relevant circumstances. Generally speaking, the likely impact of the alleged error on the outcome of the case will be a consideration relevant to that balancing exercise.

135. In my view, this brief analysis of the authorities shows that when the Magistrates Court is conducting an arbitration under the Workers Compensation Act, it should proceed with the following matters in mind:

1. the court is obliged to apply the substantive law and apply the provisions of the relevant statutory provisions.

2. One statutory provision to which it must give effect is s 56(5) of the Regulation, to act with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

3. This permits and requires it to take these enumerated issues into account when exercising any discretion. This would, for example, be particularly apt when considering applications under sections of the Workers Compensation Act which confer a discretion such as ss 116(3), 120A and 124(2).

4. The Magistrates Court in an arbitration under the Act should avoid technicalities such as are required by courts in relation to the formulation of claims, which are not traditional pleadings.

5. While the court, when arbitrating, is not bound by the rules of evidence (s 56(3) of the Regulation), it is often said that the courts should nevertheless have regard to them as appropriate: A and Anor v Director of Family Services (1996) 132 FLR 172 (at 177). Nevertheless, where a body is required to act in accordance with equity, good conscience and on the substantial merits of the case, a wider opportunity exists for the body to depart from the technicalities of the rules of evidence and permit appropriate information to come before it so long as fair process is preserved.

6. Clearly procedural fairness is required but in achieving that it is a matter of substantive fairness and not merely the application of rules. Thus, for example, cross-examination which wastes time or is not clearly addressed to issues in a case might more readily be curtailed.

7. The court should focus on the real issues in the proceeding. It cannot assume jurisdiction it does not have, nor can it refuse to address the jurisdiction it has, but it should take such procedural steps as are fair to ensure that it addresses the real issues in the case.

8. While bearing in mind the obligation to apply the law and respect the statutory obligations on it, the Magistrates Court needs to ensure that technicalities do not prevent a just claim being made and fully heard. That does not, of course, require the court to determine the claim first, but to identify that there is a claim that, if properly made, could in accordance with law be heard and determined by the court and then ensure that such technicalities are removed, overcome or, if appropriate, left aside as would prevent that claim being fully heard and determined, even if ultimately to be rejected.

136. In my view, there were really three issues before her Honour:

(a) was there the proper notice of the claim relating to his current disabilities made by Mr Seers so as to attract the jurisdiction of the court?

(b) Were his current disabilities caused by an injury arising out of or in the course of his employment?

(c) was Mr Seers still incapacitated from work and, if so, to what extent?

137. Her Honour only really addressed the first issue in any detail. She made a finding on the second issue but for reasons set out above did not provide adequate reasons. She did not address the third.

138. In relation to the first issue, in my respectful view, her Honour was wrong in her conclusion for the following reasons.

139. I do not accept the submission of Mr Crowe SC that the medical certificates were substantially compliant claim forms. They were, however, forms that were prepared by the medical practitioner of Mr Seers, nominated by him and completed on each occasion after examination. In a real sense, they were submitted in fulfilment of an obligation placed on Mr Seers under the personal injury management plan to undertake that they were done.

140. Insofar as they gave notice of the diagnosis of an injury suffered by Mr Seers, they complied with the notice provision under s 127(2) of the Workers Compensation Act as giving notice to the insurer of the claim to compensation for the matters listed in addition to those in the original claim.

141. Assuming for the moment that the prescribed form AF2002-88 is the required claim form it is clear that the medical certificates do not provide all the information included in such a claim. That information was, however, given in the original claim form and s 118(1) relieves the worker from providing the same information multiple times. The only new information was the extended symptoms and this was clearly set out in the certificate.

142. Of course, this approach only applies if one accepts that the current disabilities are relevantly associated with the initial injury which caused the de Quervain's tenosynovitis. That was the only injury, but if it caused more widespread symptoms, whether those were occurring on the other side of Mr Seers' body, they could be encompassed in the claim that was being made.

143. The first certificate including the extended diagnosis was well within the period set out in s 120 of the Workers Compensation Act. The injury notice had already been given. If, of course, there was another injury, then a fresh injury notice would have been required: s 120(1). That, however, may not prevent a claim being made. In any event, failure to give such a notice does not absolutely bar proceedings: s 124.

144. In this way, the scheme of the legislation makes allowance for what must be a relatively frequent occurrence, namely that the original injury gives rise to a series of medical issues not all of which are apparent at the time of the original claim.

145. The medical certificates are not mere bureaucratic paper; they are, and are intended to be, informative and to give notice of the progress of the worker's condition. Sometimes they will give notice of an improvement which, no doubt, the insurer will be keen to know so as to consider whether an application for rejection should be made. At other times, as here, they will give notice of additional matters referable to the injury originally suffered or appropriately associated with it. In this respect, I note that the prescribed claim form requires not only the nature of that injury but also how, when and where it was caused, so that the insurer will already know much of the information from which to understand any additional matters included in the certificates as here.

146. It was clear that the insurer had notice of the claim relating to the neck, right shoulder, right arm and headaches of Mr Seers. The following evidence shows this:

1. the medical certificates were prepared under the personal injury plan established by the insurer and they were required under it to be submitted to the insurer. An officer of the insurer sent a copy of the plan to Dr Challinor, noting "I will monitor the progress of this plan and contact you as required".

2. The plan itself noted the opinion of Dr Roberts that he "suspected involvement of right shoulder" and the cortisone injection to his right shoulder on 7 June 2006.

3. The plan also noted that reports of an "Independent Medical Examination" had been received from Dr Bodel and Mr Kelman. In their reports, both reported and commented on pain in the right shoulder and on theright side of his body.

4. The more recent reports commissioned by the insurer, from Dr Burke, Dr Bornstein and Dr Champion, all referred to right shoulder and right arm pain and disability. Though I do not have the letters of referral, it appears from the reports that they almost certainly included the wider claims made by Mr Seers.

5. The application (see [58] above) stated that the injury included both shoulders, arms, elbows and wrists.

147. The problems identified in his submissions by Mr Stretton on this issue do not seem to me to be maintainable. As I have noted, there is a difference between the two types of injury notice and these are also different from the claim. The injury notices under s 120, being the pre-condition to making a claim, must be served on the employer. There was no apparent evidence of this but it did not seem to be a point taken in the proceedings. I do not have to consider the effect of not giving such a notice.

148. The injury notice under s 94 is given by the employer. It relies, of course, on the worker telling the employer of the workplace injury under s 93. It is this latter occasion which triggers the obligation on the employer which has serious consequences for the employer under s 95 and the insurer ultimately under s 96. None of these are referable to a claim, though it may be that the making of a claim might fulfil a worker's obligation under s 93 at the same time. A claim, however, is normally temporally separate: the worker's "telling" has to be "as soon as possible after being injured" (s 93(1); the claim can be made "within three years after the injury happened" (s 120(1)(b)(i)).

149. Thus, I reject the submission that the making of a claim triggers obligations and criminal sanctions. Were that so, it would be a good reason for ensuring that there was certainty in the time and manner of making a claim. In fact, these sanctions arise because of what the legislation itself provides as a trigger, which is by no means easily identifiable: it is the "telling" to the employer under s 93(1) which can be oral or by entry into the Register of Injuries or, presumably, in writing, such as by making a claim.

150. Indeed, the medical certificates are much more certain a method of giving notice, since to the insurer they are, or should be, important documents which are intended to convey important information. The claim, of course, can be given to either the employer or the insurer (s 122); the "telling" (s 93) and the injury notice (s 120), which arguably can be the one occasion, has to be given to the employer (ss 93, 123).

151. Mr Stretton also relied on Boceska and submitted that this was an authority directly contrary to the submissions of Mr Crowe SC. That submission would, if sustained, also appear to be contrary to the view I have taken.

152. It seems to me, however, that it is not so constraining. What was there in issue was a discontinuity between the application for arbitration and the course of the hearing. There was no reference in Boceska in terms to the original claim. I accept that it might be inferred that the original claim there was for an injury to Ms Boceska's ankle when she fell while negotiating some steps as she was carrying linen.

153. In Boceska, the issue in dispute, as first claimed by the employer and traversed by the worker was "whether the worker was 'no longer incapacitated' from the condition of a sprained left ankle sustained on 25 August 1987" (at 7). The Learned Magistrate there widened the inquiry to consider other issues of incapacity. That is a far cry from this case. Here, the claim of the employer was that the claim of the worker in respect of the injury specified in the application (namely "[a]lleged injuries to neck, wrists, shoulders, elbows, fingers and bilateral arm pain, together with headaches and a chronic pain syndrome") should be allowed to be rejected. This did not permit the Learned Magistrate to confine "the dispute to the resolution of the specific question raised by the application" (to use the words of Boceska) by rejecting anything other than de Quervain's tenosynovitis of the left wrist. That would be to commit the obverse error to that identified in Boceska, namely to refuse to answer the specific question in the application by refusing to address issues squarely raised by it.

154. There are some similarities between this case and Boceska. In Boceska, the worker claimed initially a sprained ankle, but at the hearing (and, apparently, without any kind of notice of the additional issues) claimed that the incapacity arose from sympathetic dystrophy. The application was limited to the sprained ankle. The answer of the worker was simply to put in issue that she was "no longer incapacitated as a result of injury caused to her arising out of and in the course of her employment". This, in his Honour's view limited the question, as I have noted above (at [114]).

155. His Honour did suggest that the question raised by the application and the issue of the other injury could have been heard together. His Honour said (at 9):

[i]t may have been appropriate to allow the worker to make application for compensation on the basis of total incapacity due to a condition other than a sprained left ankle and to have had that question determined contemporaneously with the question raised by the employer's application. That could have been done in an informal way (Fourth Schedule, r 6A(b)), but it was not permissible to confuse the determination of the question raised by the employer's application with the question whether the worker was incapacitated for work by some other medical condition.

156. That approach would certainly accord with equity, good conscience and the substantial merits of the case.

157. In my view, were the employer here to have narrowed the application to the left wrist injury only, the worker could have either issued a separate application for arbitration for the other disabilities as suggested in Boceska or could have included in the answer (Form 3.67, made under the Court Procedures Act 2004 (ACT)) a kind of confession and avoidance by accepting that the original tenosynovitis had resolved but that the other disabilities continued to render Mr Seers incapacitated. This too would have been an approach that accorded with equity, good conscience and the substantial merits of the case.

158. In any event, I am also satisfied that the alternative basis argued by Mr Crowe SC was sound.

159. It seems to me that, applying the obligation to proceed in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, her Honour should have permitted the other disabilities to be considered at the hearing.

160. If, for example, the present disabilities suffered by Mr Seers are, in fact, argued to be a separate injury, such as caused by an occurrence or occurrences when he attempted to return to work, then a separate injury notice should have been given.

161. In my view, however, s 124(2)(a) would apply (so long as a notice was given and any reasonable adjournment granted or required by that paragraph) because it would be extremely unlikely that the employer's defence would be prejudiced, especially having regard to the notice it already had and the matters referred to (in [146]) above, particularly the medical reports already obtained, and also the terms of the application form that was before her Honour made by the Exhibition Centre.

162. If, on the other hand, as seems more likely on the basis of the medical reports already tendered, it is argued that the present disabilities arise out of or are an aggravation of the injury already notified or are a co-manifestation of an underlying injury of which the de Quervain's tenosynovitis is also a manifestation, then it would appear that s 116(3) would apply. The original notice would comply with the requirement under s 120(1)(a). On the basis of the matters set out (in [146]) above and the terms of the application form that was before her Honour made by the Exhibition Centre, it would appear that, at least to that stage, both parties thought that the ambit of the claim was the wider view of the disabilities suffered by Mr Seers. This would make it a reasonable cause justifying any hypothetical failure of Mr Seers to make a formal claim, were it held he should have done so.

163. This then would be the claim that the Exhibition Centre was seeking leave to reject.

164. In the result, her Honour should not have permitted the Exhibition Centre to reject the claim on the basis claimed. That having disposed of the first issue of the three issues I identified (in [136]) above, and in the light of my finding about the second issue (at [99]) above, the proceedings should be remitted to the Magistrates Court for determination of the application in the light of these reasons.

2. The order of the Magistrates Court made on 6 March 2009 be set aside.

3. The respondent's application for rejection of the appellant's claim for compensation be remitted to the Magistrates Court to continue the hearing in accordance with law.

166. I shall hear the parties about costs and any consequential orders.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Counsel for the appellant: Mr R Crowe SC & Mr D Shillington