HRNG ADELAIDE, 3 September 1992 #DATE 16:10:1992 Counsel for plaintiff:
Mr M.T. McRae Solicitors: Stanley and Partners Counsel for defendant Mason: Ms R.A. Layton Solicitors: Michell Sillar Lynch

and Meyer Defendant Workers Compensation Appeals No attendance Tribunal: Intervener Workers Rehabilitation and Compensation Tribunal: Counsel: Mr A.S. Martin Solicitors: Stanley and Partners

ORDER Order by way of judicial review directing the second defendant to proceed to hear and determine the plaintiff's appeal dated 2nd July 1991.

JUDGE1 KING C.J. This plaintiff in an action for judicial review was subcontracted by G W and C A O'Connor Pty Ltd to perform work as a bricklayer. During the course of that work he sustained injury on the 1st August 1990. He lodged a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1986 with the Workers Rehabilitation and Compensation Corporation. The claim was rejected. The plaintiff then lodged an application for review of the decision of the Corporation and that application came before a Review Officer, who is the first defendant to these proceedings. 2. The issue before the Review Officer arose out of the provisions of Regulation 4(1) of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1987. The effect of that Regulation in the factual context of this case, is that the plaintiff would be entitled to compensation if he did "not employ any other person to carry out any part of the work". The applicant's son was working with the plaintiff at the relevant time as a bricklayer's labourer. The dispute was whether he was in the employ of the employer company or in the employ of the plaintiff. The plaintiff and his son gave sworn evidence before the Review Officer that the son was engaged by a principal of the employer company to work as a bricklayer's labourer during his holidays. The Corporation did not call oral evidence before the Review Officer but tendered a statement of Mr G W O'Connor, a director of the employer company, to the effect that the plaintiff was engaged as a subcontractor bricklayer and that the employer company did not engage the son. The Review Officer found that the son was employed by the plaintiff and dismissed the application for review. 3. The plaintiff appealed to the Workers Compensation Appeal Tribunal. Counsel for the Corporation indicated at the Tribunal that he wished to call Mr O'Connor to give oral evidence. This was the Corporation's right pursuant to section 97(4e)(b) of the Workers Rehabilitation and Compensation Act 1986. There was dialogue between the Tribunal and counsel as to how the matter should proceed. It was agreed on all sides that justice could only be done if the same body heard the oral evidence of the plaintiff and his son and also of Mr O'Connor. Conflict between them could not otherwise be satisfactorily resolved. There appeared to be some hesitation as to the power of the Tribunal to hear the evidence of the plaintiff and his son who had both given evidence before the Review Officer. The Chairman of the Tribunal expressed doubt as to the Tribunal's power to remit the matter for further hearing before the Review Officer, but, nevertheless, with the consent of both parties made an order so remitting the matter. 4. When the matter came again before the Review Officer, he took the view that he was functus officio and that as there was no power in the Tribunal to remit the matter to him, he had no jurisdiction to embark upon a further hearing and determination. 5. I pause to observe that the course taken by the Review Officer was not the correct course. An order having been made by the Tribunal to which appeals lie from decisions of a Review Officer, it was the duty of the Review Officer to obey that order. It was not within his competence to judge its validity or invalidity. If he had doubts about the validity of the order his proper course was to give the parties before him an opportunity to seek judicial review of that order, or alternatively to refer the matter back to the Tribunal drawing attention to his doubts as to the validity of the order made: R Moore and Sons v De Biasi and Ors (1976) 66 LSJS 52 and cases there cited. 6. The plaintiff appealed to the Tribunal against the refusal of the Review Officer to hear the matter further. On the 12th November 1991 the Deputy President of the Tribunal removed the appeal from the list of cases for hearing and expressed the view that the proper course was for the plaintiff to seek judicial review. The plaintiff in this application for judicial review, seeks orders having the effect of directing the first defendant to hear the matter further as directed by the Tribunal, or alternatively, directing the Tribunal to hear the original appeal from the determination of the first defendant. 7. The question to be decided is whether there is power in the Tribunal to remit the case for further hearing by a Review Officer. The powers of the Tribunal are set out in section 97(5) as follows: "On an appeal under this section, the Tribunal may- (a) confirm, vary or reverse the decision under appeal; (b) make incidental or ancillary orders." 8. There is no express power for the Tribunal to remit to the Review Officer. In Simpson Ltd v Arcipreste [1989] SASC 1951; (1989) 53 SASR 9 at p 13 Cox J stated of the Tribunal that "there is no power to remit for a new trial". 9. Mr Martin on behalf of the intervener argued that the power to remit should be implied having regard to the tenor of the section and the consequences of the absence of such a power. I can see no sound basis for implying such a power. It seems to me that when one reads section 97 as a whole, it is clear that the omission of the power to remit was deliberate because there was no occasion for it. The section confers on the Tribunal ample power to do anything that is necessary to achieve a just disposition of appeals and there is no need to remit to the Review Officer for that purpose. I set out the terms of section 97. "97.(1) An appeal lies to the Tribunal against a decision by a Review Officer on a review. (2) Such an appeal may be instituted by- (a) any person directly affected by the decision; (b) the employer, or former employer, of a worker directly affected by the decision; or (c) the Corporation. (3) An appeal must be in the prescribed manner and form and must be instituted within one month after the appellant receives notice of the decision of the Review Officer unless the Tribunal allows a longer time for the institution of the appeal. (4) A notice of appeal must state with reasonable particularity the grounds of appeal and the relief sought on the appeal. (4a) The Registrar must notify the Review Officer of the institution of an appeal. (4b) The Review Officer must, as soon as practicable after receiving notification under subsection (4a), send to the Registrar of Review Authorities- (a) any application, documents, written submissions, statements, reports, and other papers lodged with, or received by, the Review Officer during the course of the earlier proceedings; (b) any relevant exhibits in the custody of the Review Officer; (c) a copy of any notes of evidence made by or at the direction of the Review Officer during the course of the earlier proceedings; and (d) a copy of the decision appealed against. (4c) The Tribunal may, on an appeal under this section- (a) examine any papers, exhibits and notes submitted under subsection (4b) and draw any conclusions of fact from them it considers proper; (b) direct the Review Officer to furnish a report (which must be made available to the parties to the appeal) on any aspect of the subject matter of the appeal. (4d) Subject to subsection (4e), the Tribunal has a discretion to rehear the whole or any part of the evidence taken before

the Review Officer, or to take further evidence. (4e) The Tribunal must, on the application of a party to the appeal- (a) rehear evidence taken before the Review Officer if the evidence is relevant to the appeal and the record of the

evidence is incomplete or inaccurate in a material particular; (b) hear oral evidence relevant to the appeal from a witness from whom evidence was taken in documentary form by the Review Officer; (c) take further evidence if the evidence is relevant to the appeal and the party seeking to introduce it could not reasonably be expected to have done so in the proceedings before the Review Officer; (d) take evidence if- (i) the evidence is relevant to the appeal; and (ii) there is some substantial reason for admitting the evidence in the interests of justice. (4f) A party must be afforded a reasonable opportunity to examine or cross-examine witnesses appearing before the Tribunal. (5) On an appeal under this section, the Tribunal may- (a) confirm, vary or reverse the decision under appeal; (b) make incidental or ancillary orders. ... (8) On an appeal to the Tribunal under this section against a decision of a Review Officer, the Tribunal may, on such terms and conditions as it thinks fit, order that the operation of the decision subject to the appeal be stayed wholly or in part until the appeal is decided or until further order by the Tribunal. ..." 10. It was held by the Full Court in Simpson Ltd v Arcipreste supra that the appeal to the Tribunal is not an appeal by way of rehearing de novo but a rehearing on the documents enlarged by the powers of the Tribunal to hear evidence. Those powers are very wide. Subsection (4e) states the circumstances in which the Tribunal is bound to hear evidence. It is not only bound to rehear evidence if the record is incomplete and to hear oral evidence from a witness from whom evidence was taken in documentary form by the Review Officer, but it is bound to take further evidence, that is to say evidence which was not given before the Review Officer, if the party seeking to introduce it could not reasonably be expected to have done so in the proceedings before the Review Officer. In addition the Tribunal is bound to take evidence, that is to say evidence already given before the Review Officer or further evidence not given before the Review Officer, if "there is some substantial reason for admitting the evidence in the interests of justice". Those provisions mandate the Tribunal to take evidence in a wide variety of circumstances. Over and above all that, there is an unfettered discretion in subsection (4d) to rehear the whole or any part of the evidence taken before the Review Officer or to take further evidence. 11. In F J Trousers (Mount Gambier) Pty Ltd v Farrance (unreported, delivered 30th November 1990), the Full Court held that the Tribunal had not acted judicially in exercising its discretion to allow further evidence from a worker. In that case the worker had been allowed to give evidence before the Tribunal of symptoms not mentioned to the Review Officer to support a case based on psychiatric evidence. The issues had been fully canvassed before the Review Officer and the worker given every opportunity to describe her symptoms and to present her case. The court condemned the practice of treating the hearing before the Review Officer as a "trial run" for a hearing before the Tribunal and emphasised that parties were required to place their evidence before the Review Officer. In Pica v Local Government Association (unreported, delivered on 15th May 1992), the Full Court held that there was no error of law in the exercise of discretion by the Tribunal not to permit the worker to give before the Tribunal evidence which had been disbelieved by the Review Officer, but which the worker put forward as the foundation of psychiatric evidence called before the Tribunal. It is implicit in that judgment that the court must have considered that it was open to the Tribunal to take the view that there was no substantial reason for admitting the evidence in the interests of justice so as to render the taking of evidence mandatory pursuant to subsection (4e)(d), and that the admission of the evidence was therefore a matter for the discretion of the Tribunal under subsection (4d). The powers to hear evidence are so wide that, although the appeal is not of the nature of a rehearing de novo, it could become such a rehearing if the Tribunal considered that it must hear or rehear all the available evidence by reason of subsection (4e)(d) or exercised its discretion to do so pursuant to subsection 4(d). I think that there are indications in what took place before the Tribunal in the present case, and in the arguments advanced before us, that considerably more is being read into F J Trousers (Mount Gambier) Pty Ltd v Farrance supra than that case really stands for. It is to be noted that the evidence under consideration in that case was "further evidence". The distinction between further evidence and evidence already taken before the Review Officer, is made clear in subsection (4d). The distinction is maintained in subsection (4e) in which paragraph (a) deals with the rehearing of evidence and paragraph (c) deals with taking further evidence, that is to say evidence which was not before the Review Officer. Paragraph (d) uses the wider expression "take evidence" and that expression is clearly intended to embrace both the rehearing of evidence before the Review Officer and the taking of further evidence which was not before the Review Officer. That is the only reasonable explanation of the change of expression. The evidence in the Farrance case of the further symptoms not mentioned to the Review Officer was clearly further evidence in the sense in which that expression is used in subsections (4d) and (4e). Moreover it is implicit in the judgment that the court was of the opinion that there was no substantial reason for admitting the evidence in the interests of justice, so as to render the taking of evidence mandatory under (4e)(d). That is a judgment which fell to be made on the particular facts of the case. The court therefore treated the case as one of erroneous exercise of discretion. The discretion conferred by subsection (4d), although unfettered, must, of course, be exercised judicially, that is to say for the purpose for which it is conferred. That purpose is clearly to enable the Tribunal to do what is necessary to dispose justly of the appeals which come before it. I think that a reading of the judgments in the Farrance case discloses that the court came to the conclusion that the Tribunal had not exercised the discretion judicially because it had not taken into account the intention of the section that all the evidence which a party wishes to adduce be placed before the Review Officer. The court was concerned to condemn the practice of treating the hearing before the Review Officer as a "trial run". For a true understanding of the Farrance case it is necessary to remember that if the circumstances were such that the taking of the evidence was required by "some substantial reason for admitting the evidence in the interests of justice", the Tribunal would have been required to hear the evidence. Even if that were not so, if the Tribunal had had regard to all relevant factors including the scheme of the section and had exercised its discretion to hear the evidence in order to do justice in the case, it would have been within its legal power to do so. 12. Counsel drew our attention to the following passage in the judgment of Mohr J, with which judgment Bollen J agreed, in the Farrance case: "In my opinion the whole tenor of the Act is to the effect that the proceedings before the Review Officer provide the time and place for the parties to present their evidence and argue their case and especially if a party in those proceedings is represented by counsel and is under no disability or constraint in giving any relevant evidence then it will only be in the most exceptional circumstances that a witness will be able to be called before the Appeal Tribunal to give further supplementary evidence." 13. The emphasis in this passage as in the judgments generally in that case is on the need to treat the hearing before the Review Officer as a full primary hearing and not to treat it as a "trial run". I think that his Honour's use of the expression "most exceptional circumstances" must be understood in that context. It clearly cannot have been intended to place a gloss on the wide language of the mandatory provision in subsection (4e)(d) nor on the unfettered discretion conferred by paragraph (4d). 14. The argument that power to remit must be implied in order to make the statute workable therefore fails by reason of the wide powers, both mandatory and discretionary, conferred upon the Tribunal to hear evidence. It is true that that may require, as Mr Martin suggested, the hearing of evidence by the Tribunal in a large number of cases, but that is clearly envisaged by the wide terms of the mandatory and discretionary powers. The intention of the parliament seems quite clear. The Tribunal was clothed with ample powers to hear such evidence as is required to do justice in each case and a power to remit to the Review Officer was therefore considered unnecessary. If the legislature had made the appeal a rehearing de novo further power to hear evidence would not have been necessary, but in view of the nature of the appeal established by the section the width of the powers to hear evidence is not surprising. The appeal is from a Review Officer who is an officer of the Corporation whose decision is appealed from. The Review Officer is not required to have legal qualifications. The worker's first access to a forum independent of the Corporation is the appeal to the Tribunal. The appeal is not to the independent court system, but it is to a Tribunal presided over by a judge. It comes as no surprise therefore that the legislature would clothe that Tribunal with wide powers to do what is necessary to produce a just result. 15. I am of opinion that there is no power in the Tribunal to remit to the Review Officer for further hearing. There being a lack of jurisdiction, the consent of the parties to the order cannot supply the jurisdiction. The order was a nullity. The Tribunal was bound by law to hear and determine the appeal which the plaintiff had instituted. 16. Before departing from the case, I would add the comment that there is nothing in the Act which should constrain the Tribunal from hearing such evidence as it deems necessary to fairly and justly dispose of the case. Indeed, the intention of the Corporation to exercise its right to call its witness, seems to me to make it necessary in the interests of justice that the plaintiff be entitled to give evidence and to call his son as a witness. There would appear to be "some substantial reason for admitting the evidence in the interests of justice" and, if that be so, the taking of the evidence is mandatory pursuant to section 97(4e)(d). 17. In my opinion, for the above reasons, there should be an order by way of judicial review directing the second defendant to proceed to hear and determine the plaintiff's appeal dated 2nd July 1991.

JUDGE2 OLSSON J. I agree both with the reasoning expressed by the Chief Justice and the order which he proposes.