Seers v Exhibition Centre Pty Limited [2009] ACTSC 85

Seers v Exhibition Centre Pty Limited [2009] ACTSC 85 - ACTSC 2009 case summary — Zoe

[139]

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.

[228]

[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.

At a glance

Court

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Judgment (287 paragraphs)

Seers v Exhibition Centre Pty Limited [2009] ACTSC 85 (20 July 2009)

Parties

Legislation Cited (18)

Cases Cited (18)