APPEALED FROM: C v Department of Justice [2010] TASWRCT 28

Workers Compensation - Proceedings to obtain compensation - Determination of claims - Procedure - Workers Rehabilitation and Compensation Tribunal - Determination of level of whole person impairment - Application to re-open worker's case after findings of fact made but no final determination of the reference - Relevant factors - Potential for action against legal advisers - Possibility of further claim or reconsideration by Tribunal in any event.

Woolley v Jensen (1995) 14 Tas R 373, applied.

Judgment Number: [2010] TASSC 59

1 This is an appeal from an order of the Workers Rehabilitation and Compensation Tribunal constituted by the Chief Commissioner ("the Tribunal") made on 17 September 2010, by which leave was granted to the respondent worker to re-open his case and adduce additional medical evidence. The matter before the Tribunal was a reference under "s71 and/or s138AB" of the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The notice of referral sought a determination of the respondent's entitlement to payment of a lump sum for permanent impairment, pursuant to s71, and secondly, an order extending the period for which an election to claim damages could be made pursuant to the Act, s138AB(1), for a period of 12 months. As it then stood in relation to the respondent's claim, that section provided that a worker could not make an election unless his or her whole person impairment had been agreed, or determined by the Tribunal, to be a percentage of not less than 30%. The making of the second order sought thus depended upon the determination of the first question.

2 The history behind the application to re-open and the evidence heard in support is set out in the reasons of the Tribunal dated 17 September, and I adopt the following for the purposes of these reasons:

"1 At the hearing of a referral in March 2010 the Tribunal was required to determine the percentage whole person impairment (WPI) of the worker for the purposes of his s71 entitlement. It was common ground that a determination by the Tribunal that the worker had a WPI of not less than 30% would be used to determine the worker's right to take common law action (s138AB(2)). The worker's case was conducted in a manner that sought a determination that the worker's WPI was 60% as he satisfied the criteria of DRE Lumbosacral Category VII within the AMA Guides (Edition 4) and the Tasmanian Workers Compensation Guidelines 2001.

2 At the conclusion of the evidence the Tribunal was unable to make a determination as to whether or not the worker satisfied DRE Laumbosacral Category VI or VII. The Tribunal made an order dated 31 March 2010 that:

'Having not been able to determine an applicable percentage of whole body (sic) impairment the matter will be relisted for submissions as to the finalisation of this referral.'

3 Application was then made on behalf of the worker to re-open his case and to adduce further evidence from the two medical expert witnesses that gave evidence on his behalf at the hearing. This application was opposed by the employer and a further hearing took place.

EVIDENCE

4 Mr R Phillips who was counsel for the worker at the initial hearing provided an affidavit which was tendered and upon which he was cross-examined. It was clear that counsel had prepared his case on the basis that it was a matter of persuading the Tribunal to adopt the opinion expressed by Professor Stark and Dr Sharman over that proposed by Dr Stevenson upon whose opinion the employer relied. Mr Phillips conceded that at no time did he consider other forms of assessment available as provided by AMA Guides should the bilateral loss of function of lower limbs which was essential for the DRE Lumbosacral Category VI or VII not be established. This factual circumstance was not established to the satisfaction of the Tribunal at the conclusion of the evidence. Since the Tribunal's decision Mr Phillips has sought comment from both Professor Stark and Dr Sharman. Their responses are attached to his affidavit and in summary Dr Sharman provides more detailed evidence as to his opinion that bilateral lower limb loss of function can be demonstrated. Professor Stark does likewise but also outlines that based upon the Tribunal's finding of fact there was another method of calculating WPI. He also offered opinion as to the applicability of DRE Lumbosacral Categories II and III.

5 In cross-examination Mr Phillips conceded that having determined to rely upon the provided opinions from Dr Sharman and Professor Stark he concentrated his pre-trial preparation upon preparing a cross-examination of Dr Stevenson. He accepted that his focus was narrow in that he was considering the application of DRE Lumbosacral Categories VI and VII only. He volunteered that this was the first hearing that he had been involved in which dealt specifically with the application of AMA Guide classifications. In particular, the possible significance of not being able to establish bilateral loss of lower limb function only became apparent to him during the cross-examination of Professor Stark. He conceded he was not aware of other options of assessing WPI where there was loss of function of only one leg plus bladder and bowel dysfunction as was the factual circumstance determined by the Tribunal. Due to his narrow focus and time constraints he accepted he had not fully briefed Professor Stark as to the issues that eventually arose. He did not accept that there was any failure on his part to prepare for hearing but rather a failure to understand fully the topic that he was dealing with. He agreed he was taken by surprise when this issue was raised in cross-examination of Professor Stark but agreed that despite this, and also despite detailed closing submissions on this point by counsel for the employer, he did not make application to re-open the worker's case until after the Tribunal had made its determination."

3 In the concluding remarks, after noting the parties' submissions and discussing a number of factors, the Tribunal said that "the interests of justice and the clear intent of the Act, and in particular the role of the Tribunal, are best served by allowing the application." The Tribunal went on to say that it was accepted that this would to an extent cause prejudice to the employer, but that this could be addressed by orders as to costs "as well as the provision of appropriate relief for the employer to reconsider how to it conducts its case in reply." The Tribunal added that any reasonable requirement of the employer to adduce additional evidence, including expert evidence, would need to be considered so as to mitigate possible prejudice.

4 The operative effect of the order made on 31 March 2010 to which the Tribunal referred, although formalised by a documented order made specifically referable to s61 of the Act, was merely to have the matter relisted for submissions as to the finalisation of the referral. However, it should be noted that the concluding two paragraphs of the reasons dated 31 March 2010, which were attached to the formal order, read as follows:

"31 Upon detailed consideration of the evidence I am not persuaded that there has been a permanent loss of function of the left leg that has been objectively determined. Accordingly the worker does not come within DRE Category VI or VII.

32 The only evidence I have as to an alternate was comment by Dr Sharman that DRE Category II would be an alternative. I will give the parties the opportunity to be heard as to the appropriate nature of the Tribunal's order."

5 It is common ground in this appeal that the Tribunal was still required to resolve the question of the worker's entitlement under s71 of the Act. On the evidence as it stood before the Commissioner, this would involve making a determination as to whether or not the worker satisfied DRE Lumbosacral Categories II to IV of the AMA Guides to the Evaluation of Permanent Impairment. It also appears that a consideration of whether the respondent fell within Categories VI or VII on the basis of a leg disability along with bladder and bowel dysfunction, involves looking at other parts of the Guides which were not considered at the original hearing.

6 The notice of appeal contains three grounds in the following terms:

"1 In determining that the Respondent should be allowed to reopen his case the learned Chief Commissioner erred in law in failing to take into account a relevant consideration namely that the Respondent had a cause of action against his solicitor in respect to the solicitor's failure to properly prepare the case of the respondent so as to adduce at the hearing of the Reference the evidence now sought to be adduced upon the re-opening of the Respondent's case.

2 In determining that the Respondent should be allowed to reopen his case the learned Chief Commissioner erred in law in taking into account an irrelevant consideration namely that the Respondent, in the event that he was not allowed to reopen his case and the Tribunal dismissed his Reference, could make another reference to the Tribunal to have determined the issue of whether he had any and if so what Whole Person Impairment.

3 In determining that the Respondent should be allowed to reopen his case the learned Chief Commissioner erred in law in informing himself of and thereby taking into account a matter that was wrong in law namely that the Tribunal was required to or was entitled to actively seek to have placed before it evidence germane to any issue it was required to resolve upon the Reference, when the proper construction of the relevant parts of the Workers Rehabilitation and Compensation Act does not permit the Tribunal to assume such an inquisitorial role."

7 The failure to take into account or give any sufficient weight to a relevant matter or consideration is an error of law, as is the taking into account of some irrelevant matter: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. However, a decision does not involve an error of law unless any error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 40; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at 353.

8 Moreover, the appellant accepts that by virtue of the Supreme Court Rules, r704, r693(6) applies to this appeal. That sub-rule provides that an appeal is not to succeed merely on the ground of misdirection or the improper reception or rejection of evidence unless some substantial wrong or miscarriage has been occasioned by the misdirection, reception or rejection. Plainly, ground 3 raises a question of misdirection. The appellant is content to accept that a "misdirection" would include a failure to take into account relevant considerations, or taking into account irrelevant considerations. In my view, that approach to the meaning of "misdirection" in the sub-rule must be correct, given that the issue of relevant and irrelevant considerations essentially concerns whether the decision-maker has properly applied the law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at 347 - 348.

9 The proper approach to applications to re-open has been discussed in this Court by Wright J in L & T Townsend v Balmer [1997] TASSC 145, and by Tennent J in Ross Ambrose Group Pty Ltd v Renkon Pty Ltd (No 2) [2010] TASSC 19. In both cases reference was made to Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, in which Clarke JA (Mahoney and Meagher JJA agreeing) said at 478 - 479:

"The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. ... Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.

Similar views were expressed by Sheppard J in Joyce v GIO (NSW) (Ritchie's Supreme Court Procedure, New South Wales, vol 2 [13,028]) and Jeffery J in Henning v Lynch [1974] 2 NSWLR 254. It is the fact, as Sheppard J observed in Joyce, that there are a number of decisions which support the view that the principles relating to the calling of fresh evidence on appeal are relevant when what is under consideration is an application to re-open. That view may be correct where the application to re-open is made after the delivery of judgment but I can see no justification for importing those principles into an application to re-open which is made before the hearing is concluded: see Smith v New South Wales Bar Association [No 2] [1992] HCA 36; (1992) 66 ALJR 605 at 608-609; [1992] HCA 36; 108 ALR 55 at 61-62 of the judgment of Brennan, Dawson, Toohey and Gaudron JJ."

10 It is established that re-opening to call further evidence may be allowed even where the evidence could have been led with due diligence; Betts v Whittingslowe (No 1) (1944) SASR 163, and that further evidence may be admitted after judgment: Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424 at 425 - 426. As the Tribunal recognised in this case, appreciable delay in making the application would militate against relief - Equuscorp Pty Ltd v Wilmouth Field Warne (a firm) [2007] VSCA 280; (2007) 18 VR 250 at 260 - and it must be recognised there is a high degree of prejudice to a party in having a question re-opened after the evidence has been heard and a determination made - McCarthy v McIntyre [2000] FCA 125. As to the last point, it cannot be said, as I have already made clear, that there was a final determination of the worker's application for a determination of his s71 entitlement. Rather, findings of fact were made in relation to whether he fell within certain DRE categories under the AMA guidelines.

11 The possible availability of a remedy against the worker's legal advisers was specifically raised in the cross-examination of Mr Phillips at the hearing of the application to re-open, and specifically put by the appellant in submissions to the Tribunal. There is no explicit reference to this issue in the Tribunal's reasons. A number of questions arise under this ground. They are:

•

whether the possibility of the existence of a remedy against the worker's legal adviser was a relevant factor in the exercise of the discretion;

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whether there was at least a possibility of a remedy against the legal adviser; and

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whether, notwithstanding the absence of specific reference, the appellant can demonstrate that it was not a matter which was taken into account.

12 As to the first issue, I am not able to say, as a matter of general principle, that the possibility of a remedy against legal advisers would not be a relevant consideration in an application to re-open. It may assume particular significance where the failure to secure the relief would necessarily carry with it a final determination of the proceedings adverse to the party concerned. To that extent ground 1 raises the issue of the status of the particular referral being dealt with by the Tribunal in this case, and what alternatives there may be for the worker in terms of further proceedings under the Act, should he have been unsuccessful.

13 In this case, as things stood as at 31 March 2010, on the basis of the findings which have been made, the worker was confined to a consideration of DRE Lumbosacral Categories II to IV. That meant that he would not be able to make an election to claim damages. I think that it can be safely assumed for the purposes of this appeal, that absent any material change in his medical condition, the worker would face difficulties in re-agitating his entitlements under DRE Lumbosacral Categories VI and VII. On that basis, the existence of a possible remedy against the legal adviser was a relevant consideration. Whether that factor is of any great significance in this case is another matter.

14 As to the second issue, there was debate about whether the worker in fact had any cause of action against his lawyer. More particularly, the issue was whether the advocate's immunity as confirmed in Gianarelli v Wraith [1988] HCA 52; (1998) 165 CLR 543 would apply. The debate focussed on whether the relevant conduct of Mr Phillips was more in the nature of preparation amounting to out-of-court conduct not intimately connected with in-court conduct to which the immunity would not apply: D'orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 per McHugh J at [95]. The alternative is that it consisted of out-of-court conduct consisting of the formulation of a case concept, combined with in-court conduct being the pursuit and advancement of that concept. The respondent also argued that on the material, it could not be said that there was any breach of duty. In my view, these issues do not require resolution. It can be properly assumed that the respondent possibly had a claim for damages in respect of the loss of chance, but the very existence and the terms of the debate which took place as to whether there was such a cause of action, highlights the issue of the weight which might reasonably have been given to this factor.

15 As to whether the Tribunal did or did not take the matter into account, the respondent argues that by discussing Mr Phillips' conduct in the way in which it was done, it can be inferred that the possibility of action by the respondent against him was something of which the Tribunal was conscious, and of which it took account, although not explicitly.

16 The appellant argues that where a matter is expressly raised but is not dealt with in a decision-maker's reasons, an appellate court or review body can conclude that the matter was not considered. Counsel for the appellant relied on Wrigley v Holland [2002] NSWCA 109 at [16] in which Handley JA (Hodgson JA and Ipp AJA agreeing) said that the court should assume that the judge has complied with his duty to give reasons "and if he has not referred to a material matter, the Court should conclude that he did not consider it was material". There is authority supporting a less stringent approach. Counsel also referred to Anderson v Director-General, Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 per Tobias JA at [58] in which his Honour said that "whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written". Reference was also made to Beale v GIO of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 443. His Honour said that where certain evidence is important or critical and it is not referred to by the trial judge "an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it" [my emphasis].

17 In my view the less stringent approach is to be preferred, and the question of whether or not a relevant matter has been considered must be resolved by a fair reading of the whole of the reasons. In this case I am unable to say that the Tribunal gave any consideration to the issue. Assuming, as I have held, that the matter was one which ought to have been taken into account, the Tribunal has accordingly erred. However, the error was a trivial one in the circumstances. The Tribunal was dealing with a situation in which the referral had not been finally determined. A further hearing was required to resolve the issue of the respondent's s71 entitlement. The question of the existence of a remedy for damages for loss of chance was highly problematical, both in terms of whether the advocate's immunity applied and whether there was negligence in any event.

18 In Woolley v Jensen (1995) 14 Tas R 373 at 383 [22], Underwood J (as he then was) said that the existence of a remedy against the legal advisor is one of the circumstances of the case to be considered on an application to extend time, but that "great caution should be exercised in attaching too much weight to the circumstance, particularly where there is no direct evidence of the likelihood of success of such action ...". In this case, for the reasons I have given, I am unable see how a consideration of the issue could have affected the outcome, and ground 1 must fail.

19 The part of the Tribunal's reasons to which this ground is directed reads as follows:

"Although not expressing a definite view on the point it is at least arguable that should the Tribunal not allow this application and the issue remain undetermined, the worker would be entitled to make a fresh application to seek to have this issue determined. Given the worker arguably has that option mitigates against the prejudice to the employer of allowing this application and also the public interest of bringing an end to the proceedings."

20 It is a little unclear as to whether the Tribunal meant that it was arguable that the worker could literally make a fresh application to seek to have the issue determined (the issue being that he fell within the criteria of DRE Lumbosacral Category VI or VII), or whether the Tribunal had in mind the Act, s62(2). Section 62 relevantly provides:

"62 Orders of Tribunal final

(1) Subject to section 63, an order made by the Tribunal is final and binding on all parties to the proceeding to which the order relates.

(2) Subject to subsection (3), nothing in subsection (1) prevents the Tribunal from reconsidering any claim for compensation that has been determined by it, or from varying or revoking an order previously made by it."

21 The appellant submits that in either case consideration of the arguable availability of a fresh reference or an application to have the matter reconsidered under s62(2) was irrelevant. The arguable existence of a right to make a fresh reference was acknowledged, as was at the same time, the difficulties which would be associated with such a step. Depending on what evidentiary material there was to support the new reference, questions of issue estoppel or Anshun estoppel may well arise, enlivening the Tribunal's implied power to prevent abuse of its processes. As to s62(2), the discretion to embark upon a reconsideration seems unfettered. The possibility of a reconsideration exists but the fate of an application to reconsider would rest on discretionary grounds.

22 In any event, the appellant submits that to take such possibilities into account falls outside a proper consideration of what the interests of justice require in relation to the re-opening of the case as it was conducted. Counsel for the appellant sought to draw an analogy with an application to extend time which, if unsuccessful, does not of itself preclude a further application being made. The point was that such a possibility has never been recognised as a relevant circumstance in the resolution of the application. However, the analogy is not accurate and the exercise is not a helpful one. It is the application to re-open which would be equivalent to the application to extend time. In this case consideration was given to alternative means of pursuing what was sought by the application to re-open. In the analogy, the equivalent would be any alternative means of claiming damages or pursuing compensation. It can therefore immediately be seen that the point made has no application.

23 I take the view that the possibility of the respondent being able to re-agitate the issue before the Tribunal one way or another, notwithstanding the outcome of the application to re-open, was an not an irrelevant consideration. The existence of s62(2) means that notwithstanding s62(1), there is not the same notion of the finality of those orders which ultimately determine references to the Tribunal, as exists in ordinary litigation. The arguable possibilities of the particular issue coming back before the Tribunal by alternative means is, as the Tribunal noted, relevant to the issue of the degree to which the appellant might suffer prejudice were the application to be allowed. To the extent that the Tribunal took the "arguable" possibilities into account, I hold that there was no error of law in doing so. For those reasons, this ground must fail.

24 The appellant argues that the Tribunal misdirected itself in taking the view that it was required to or was entitled to actively seek to have placed before it, evidence relevant to any issue it was required to resolve upon the reference. It is argued that such misdirection is to be inferred from the tenor of pars[9], [10] and [11] of the Tribunal's reasons; in particular what is said in par[11]. It is best therefore if I set out the relevant paragraphs in their entirety:

"9 This hearing highlights the detrimental effect that an adversarial procedure can at times have upon the determination of an issue before an adjudicator. I gather that due to the time that this file has been before the Tribunal, the time taken in determining a preliminary issue, and the present limited number of accredited medical practitioners, that a medical panel was not used to determine this issue. Had a panel been used to determine the issue I have no doubt that the members of the panel would have had the opportunity to fully consider, debate and apply the entirety of their clinical findings and conclusions to reach an appropriate answer to the medical question before them. In that environment, unlike the Tribunal at the initial hearing, they would not have been limited to the evidence which was formally led and upon which they were examined as occurs in a formal adversarial setting which is unfortunately how this matter eventually proceeded. The situation the Tribunal presently finds itself in is precisely the situation that I believe the medical panel procedure was intended to avoid.

10 That said, the Tribunal, having not been able to reach a concluded view upon the worker's application based upon the evidence provided to it, must now determine whether it is in the interests of justice to allow the worker the opportunity to adduce further elaborating evidence from the medical experts used in the initial hearing. Tribunals generally were established as an endeavour to mitigate against some of the actual and perceived barriers to a quick, fair and efficient determination of legal issues between parties. There was of course a trade off concerning the pros and cons of the formal Court process as opposed to the pros and cons of the less restricted Tribunal procedure. No matter in what forum a legal issue is determined, procedural fairness is required to all parties, but the Tribunal system allows more flexibility in how this might be satisfied. In this regard it is timely to be reminded that s57 of the Act provides that;

'(1) ...the matter to be resolved in a proceeding before the Tribunal shall be resolved by the Tribunal on such evidence as is placed before it after all parties have been given a reasonable opportunity to be heard ...'

'(1) The following provisions apply to a proceeding before the Tribunal;

(a) The Tribunal is not bound by the Rules of Evidence but may inform itself on any matter in such manner as it thinks fit;

(b) The proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of matters to be resolved permit.'

11 The fundamental issue here is that the Tribunal is required to determine the issue as to the worker's WPI and such issue is still before the Tribunal unresolved. The Tribunal is aware that there is evidence that if given will be relevant and, on its face, important in assisting the Tribunal in finally determining the issue before it."

25 As I understand it, it is the cumulative effect of the comments starting at par[9] together with the last sentence of par[11] and culminating in the reference to the role of the Tribunal in the concluding remarks (set out earlier), which is said to give rise to the inference that the Tribunal directed itself in the way alleged in the ground of appeal; that is, that the Tribunal was required to or entitled to actively seek to have placed before it, evidence which was relevant to an issue it was required to resolve. I think that in carrying out the required exercise, a fair reading of all relevant passages of the Tribunal's reasons is required, and in that respect, what the Tribunal said in par[12] should also be noted. In that paragraph, the Tribunal said that it would have been preferable for the application to re-open to have been made sooner "and at the very least, before the initial reasons for determination were provided ...".

26 The Tribunal noted that courts have shown a reluctance to grant applications to re-open in such cases, suggesting that this be done only in circumstances akin to introducing fresh evidence. Reference was made to Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 and Manwelland Pty Ltd v Dames Moore Pty Ltd [2001] QCA 436; [2001] ATPR 41-845. The Tribunal also noted that this approach related to cases where judgment had been delivered within the formal court procedures, and went on to say "The Tribunal in this case has not purported to finally determine the issue as to the worker's percentage WPI, it has as yet not resolved the issue between the parties as is its statutory role and task." There was no dispute that the evidence was not fresh evidence, but rather new evidence - (see the discussion by Evans J in Mann v Tasmania [2008] TASSC 34 at [3]) - but the appellant conceded before the Tribunal that the evidence was important and probative, although it required consideration and assessment by other experts.

•

the reference to the difficulties created by the adversarial procedure in such cases, and the desirability of having the matter determined by a medical panel pursuant to the Act, s51, can in a sense be taken as an aside;

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to the extent that those comments relate to whether it was in the interests of justice to allow the respondent to re-open his case, the comments are really a precursor to those comments which follow. They merely record the requirement for procedural fairness, noting that the Act, s57, requires that all parties be given a reasonable opportunity to be heard, and the reality that the Tribunal is required to conduct its proceedings with as little formality and technicality, and with as much expedition as the requirements of the Act and a proper consideration of the matters to be resolved, permit: the Act, s49;

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those comments are unexceptionable, as is the first sentence of par[11] in which the Tribunal notes that it was required to determine the issue as to the worker's WPI and that this issue was still to be resolved;

•

the comment about being aware of the existence of relevant evidence which would be of assistance in finally determining the issue before it can, I think, be related back to the opening parts of par[10], in which the Tribunal has posed the question of whether it is in the interests of justice to allow the worker to adduce further "elaborating evidence" from the experts used in the initial hearing;

•

the reference to the role of the Tribunal in the concluding remarks, was put in the context of the "clear intent of the Act", and should be read as referring to the requirements of procedural fairness and the flexibility and informality of the Tribunal's proceedings.

28 I take the view that on a fair reading, the Tribunal was doing no more than recognizing the nature of the evidence sought to be adduced, putting that in the context of the stage which the determination of the reference had reached, and putting all of that in the broader context of the Tribunal's statutory obligations which were specifically noted. All of that, in turn, was relevant to whether it was in the interests of justice to allow the application. I am not able to see that the Tribunal has directed itself as asserted by the appellant in this ground, and ground 3 must fail.

29 It follows that I am not satisfied that any material error of law was made by the Tribunal. I should say that I do not regard the exercise of the discretion in favour of the respondent to be, in all of the circumstances of the case, so plainly unreasonable or unjust to warrant intervention. The appeal is dismissed.