Transfield Services (Australia) Pty Ltd v Sellar [2012] SAWCT 41

"However, if a worker suffers a disability of a kind referred to in the first column of Schedule 2 and has been employed in work of a type referred to in the second column of Schedule 2 opposite the disability, the worker's disability is presumed, in the absence of proof to the contrary, to have arisen from that employment."

1. Schedule 2 of the Act then includes noise induced hearing loss and the description of work is: "Any work involving exposure to noise".
2. Schedule 2 therefore links the disability of noise induced hearing loss to any work which involves exposure to noise.
3. Section 113(2) of the Act provides:

"Subject to this section, where a claim is made under this Act in respect of noise induced hearing loss by a worker (not being a person who has retired from employment on account of age or ill-health), the whole of the loss shall be deemed to have occurred immediately before notice of the disability was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss."

1. In this matter the appellant Transfield Services (Australia) Pty Ltd ("Transfield") did not dispute the fact that the worker has a noise induced hearing loss. Hence the focus of this case is on the interpretation and application of s 113(2) of the Act.
2. The worker lodged a claim against Transfield on 15 June 2010 on the basis that he was subjected to noise emanating from machinery, plant and equipment during his employment from 1980 to 2002, initially with Australian National Railways until 1997 when Transfield took over the Islington workshops and ANR's train and truck maintenance work.
3. Transfield in an undated determination noted and determined as follows:

"Where a claim is made in respect of noise-induced hearing loss by a worker, the whole of the loss is deemed to have occurred immediately before notice of the disability was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise-induced hearing loss (Section 113(2) of the Act).

Transfield notes that you were employed by it between 1997 and December 2002.

Transfield notes from the statement you provided to Dewing Ergonomics & Safety Pty Ltd ... that after ceasing employment with Transfield, you have been employed by six other employers.

On the basis of the statement you provided, Transfield considers that you were last exposed to noise capable of causing noise-induced hearing loss in the course of our employment with Cove Tavern or, alternatively D&A Sellar Plumbing or alternatively, Welsh & Leo.

Transfield therefore determines to reject your claim on the basis that it was not the employer in whose employment you were last exposed to noise capable of causing noise-induced hearing loss."

1. The learned Deputy President who heard the case at first instance held that the worker suffered from noise induced hearing loss and tinnitus from his employment with Transfield and that the latter did not rebut the presumption that the worker's employment with it was the last where he was exposed to noise capable of causing noise-induced hearing loss. The learned Deputy President noted that Transfield accepts that the worker suffers from a 5% whole person impairment hearing loss and that pursuant to s 113(2) the loss is deemed to have occurred immediately before lodgement of the notice of claim on 15 June 2012[1]. She noted that Transfield contested the application of the second part of the deeming provision on the basis that it "cannot operate unless the worker proves that it was Transfield in whose employment he was last exposed to noise capable of causing noise induced hearing loss rather than some other employer"[2].
2. The learned Deputy President rejected that contention and said:

"I do not agree with Mr Gilchrist's submission that the worker must establish on the balance of probabilities that he is entitled to the benefit of the deeming mechanism contained in s 113(2) of the Act by establishing that Transfield was the employment where he was last exposed to noise capable of causing noise induced hearing loss rather than some subsequent employment."[3]

1. The learned Deputy President addressed the statutory scheme in the Act thus:

"The purpose of these statutory provisions was explained in WorkCover Corporation v Perre[4] when Mullighan J[5] referred to the difficulties of proof experienced by a worker seeking compensation for a disability of gradual onset or disease and explained that:

'Parliament resolved these difficulties by categorising the disabling condition and the types of employment which cause them in Sch 2 and providing for the presumptions in s 31(2) and 113 and in their predecessors in earlier legislation.'

His Honour set out the process envisaged by those provisions when he said[6]:

'The worker is required to prove that he has noise-induced hearing loss and that he has been employed in work involving exposure to noise. The burden of proof then shifts to the Corporation or an exempt employer, as the case may be. I shall refer only to the Corporation. It must prove that the hearing loss could not have arisen from the employment. In the case of employment involving only minimal noise such as employment in a library or some other quiet place, in the absence of any extraordinary circumstances, that task should be discharged without difficulty. In other cases, the task may be difficult, but if it cannot be discharged, the policy of the legislation is that the benefit falls to the worker. That position accords with fairness and commonsense as the conditions of the workplace at relevant times may be expected to be more easily established by the employer, and therefore the Corporation, than the employee.' "

1. In the course of her reasoning, the learned Deputy President found that whilst employed at Transfield the worker was requested to work in enclosed workshops when he was exposed to background noise from blacksmith's stamping and drop hammers. Noise emanated from a range of industrial equipment he operated: these included jackhammers, sledge hammers, rattle guns, pneumatic shears and pop rivet guns. These types of equipment were noisy.[7] She found that the worker was exposed to noise from the workshop or field equipment at Transfield "all day every day". She accepted the worker's assessment that he was exposed to significant noise in the course of his employment with Transfield[8].
2. And then:

"I accept the worker's evidence that in the trades assistant job with D and A Sellars he worked eight hours, three days per week and used various hand tools, such as snips and spanners. He also used battery operated drills and other equipment. He did not use pneumatic tools. He also used a pick and shovel as well as an electric rock breaker to break up concrete when undertaking pipe work. When undertaking this kind of work he used hearing protection. He worked in the vicinity of others who were also using a variety of equipment.

The work at the Cove Tavern also involved the use of hand tools and on occasions using a battery operated drill to put brackets on walls and the like.

I accept the worker's evidence that the work at D and A Sellars involved very occasional low background noise and that he was exposed to even less noise at Cove Tavern."[9]

"Dr Matison's report, dated 5 August 2010, confirms that 'pure tone audiometry demonstrated symmetrical severe high tone sensorineural losses consistent with the effects of noise trauma'. Having taken a history of the nature of the worker's duties with ANR and Transfield and exposure to excessive noise over long periods of time and the quality of that noise, including the use of air compressor tools and the noise of train movement, and having noted the history that there was no exposure to excessive noise in subsequent employment, or in a non-occupational setting, Dr Matison expressed the opinion that the worker suffers from occupational noise trauma in his employment with ANR and Transfield, comprising noise induced hearing loss and noise induced tinnitus.

I am satisfied that the worker's evidence establishes that he was exposed to noise in his employment with Transfield. Dr Matison's evidence establishes that he suffers from noise induced hearing loss and noise induced tinnitus. The worker's evidence about his significant noise exposure at Transfield, his evidence about the nature of his subsequent employment and Dr Matison's evidence linking noise induced hearing loss to the Transfield employment activated the s 113(2) presumption.

Transfield did not provide proof to rebut the presumption that the worker's employment with Transfield was the last where he was exposed to noise capable of causing noise induced hearing loss.

I conclude that the worker's noise induced hearing loss is attributable to his employment with Transfield."[10]

1. She then set aside the undated determination of Transfield.
2. Mr Cole, counsel for Transfield, contended that the learned Deputy President did not give reasons for her rejection[11] of Mr Gilchrist's submission that the worker must establish an entitlement to the benefit of the deeming provision in s 113(2) by establishing that Transfield was the last relevant employer. Further he asserted that the learned Deputy President erred when determining[12] that the worker's evidence of noise exposure at Transfield, the nature of his subsequent employment and Dr Matison's evidence linking the noise induced hearing loss to the Transfield employment "activated the s 113(2) presumption".
3. His submission was that that presumption could not be activated until the Tribunal was satisfied that Transfield was the last employer where the worker was exposed to noise capable of causing noise induced hearing loss.
4. It followed, he said, that to obtain the benefit of that deeming provision the worker had to establish that his employment with Transfield was the last employment in which he was exposed to noise capable of causing noise induced hearing loss.
5. In this case he said there was more than one employer where the worker worked where there was noise that could have been capable of causing noise induced hearing loss after he was employed with Transfield.
6. Whilst the worker asserted that Transfield was the last employer, that was something he had to prove. There was, he submitted, no such evidence from the worker. It was not a correct interpretation or application of s 31(2) that the worker could, as he did here, simply make an assertion that one of a number of employments was the last relevant employment and then leave it for that employer to show by evidence that there was other employment so capable, because of the qualification in the section of the words "subject to any proof to the contrary".
7. He said that this was a relevantly low threshold for the worker, in the case of multiple employers to meet, but that it does require some evaluation of the noise to which the worker was exposed and evidence in support thereof for the worker to gain benefit of the presumption.
8. He submitted that the evidence of Dr Matison did not provide a basis for a finding that the employment with Transfield was the last relevant employment. That report does not address the worker's employment subsequent to his working with Transfield.
9. The learned Deputy President, he said, in her reasons did not address or make any specific findings as to the identity of the last relevant employer (ie whose employment was capable of causing noise induced hearing loss) and in the circumstances of this case it included, Mr Cole submitted, an onus on the worker to provide that his employment subsequent to leaving Transfield was not relevant.
10. Mr Cole submitted that the learned Deputy President's reliance on the passages by Mullighan J which she quoted in Perre's case is not helpful in determining the correct interpretation of s 113(2) as that case deals with the evidentiary presumption contained in s 31(2) and does not arise in the way s 113(2) must be interpreted and applied.
11. Mr Mellows, counsel for the worker, agreed that the only question of law that arises on the appeal is whether the learned Deputy President correctly applied the provisions of s 113(2).
12. He submitted that the learned Deputy President quite properly relied upon the passages she referred to by Mulligan J in Perre and that the provisions of s 113(2) apply where the worker demonstrates by proof that he has noise induced hearing loss and that he has been employed in work with Transfield involving exposure to such noise.
13. He submitted that the medical evidence of Dr Matison (which was not challenged) was to the effect that there was in the history, no exposure to excessive noise elsewhere subsequent to his employment with Transfield.
14. In my view the proper construction of s 113(2) is as follows.
15. Having identified the most recent employment capable of causing noise induced hearing loss, there is an evidentiary presumption that it is that employment that has caused all of the hearing loss. The quantum of that entitlement is contingent upon the year in which the disability was sustained. Thus identifying the date is important. In cases where the worker has not retired from employment on account of age or ill-health, that date is deemed to be the date of the giving of notice of the disability.
16. I think it is incumbent upon a worker, who selects an employer at an earlier point in time than the last employer to be the employer whose employment last exposed the worker to noise capable of causing noise induced hearing loss, to establish that later employment was not so capable. To use the words of Mullighan J in Perre that position accords with fairness and commonsense as the worker will be in the best position to know whether or not he or she was exposed to noise capable of causing noise induced hearing loss at a subsequent place of employment.
17. It does not follow that that is a particularly difficult onus to bear. In Purkess v Crittenden Barwick CJ and Kitto and Taylor JJ said:

"The expression 'burden' or 'onus' of proof, 'As applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence' (Phipson on Evidence, 10th ed. (1963) par 92). This is a proposition which has been frequently acknowledged (See eg Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82; (1935) 54 CLR 200 at p218 and Mummery v. Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at p118 et seq). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: 'the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates' (ibid par 95)".[13]

1. It follows that if a worker introduces evidence about subsequent employment that suggests that he or she was not exposed to noise capable of causing noise induced hearing loss, an evidentiary burden will shift to the relevant compensating authority if it contends that that is not so.
2. It is plain that the learned Deputy President did not approach this case on that basis. She thought it was Transfield's burden to discharge. With respect I think she erred in taking that approach. I think it was the worker's burden to discharge. Whether he did so, has not been determined.
3. I would allow the appeal.
4. I would like to hear from the parties as to what orders should follow.

1. The question of law raised on this appeal is whether the trial judge erred in interpreting and applying s 113(2).
2. The trial judge concluded as follows:
   • That the worker's evidence established that he was exposed to noise in his employment with the Appellant.
   • That Dr Matison's evidence established that he suffers from noise induced hearing loss and noise induced tinnitus.
   • That the worker's evidence about his significant noise exposure at Transfield, his evidence about the nature of his subsequent employment and Dr Matison's evidence linking noise induced hearing loss to the Transfield employment activated the s 113(2) presumption.
   • That Transfield did not provide proof to rebut the presumption that the worker's employment with Transfield was the last where he was exposed to noise capable of causing noise induced hearing loss.
3. There is no dispute that the worker's noise induced hearing loss meets the relevant statutory requirement apart from the one contentious issue, that is, whether Transfield was required to rebut the presumption that it was the last relevant employer.

1. The worker's claim included a list of dates of his employment, study and noise exposure.
2. In its determination[14] rejecting the worker's claim, Transfield stated that "you were last exposed to noise capable of causing noise-induced hearing loss in the course of your employment with Cove Tavern or, alternatively D & A Sellar Plumbing or alternatively Welsh & Leo." (These were subsequent employers of the worker).
3. Each party filed a statement of issues. Evidence of the worker's employment history and exposure to noise were before the trial judge as well as an expert report of Dr Matison.

1. The appellant submitted that there are three rebuttable presumptions in relation to Mr Sellar's claim:
   • S 31(2) applies to Schedule 2 to presume a worker's disability to have arisen from employment in circumstances where a worker has been in employment of a type which is linked to such a disability.
   • S 113(2) deems the whole of the noise induced hearing loss to have occurred immediately before the notice was given.
   • S 113(2) deems the whole of the noise induced hearing loss to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss.
2. The appellant argued:
   • the last of these three presumptions should be interpreted such that Mr Sellar was required to prove that his employment with Transfield was employment in which he was last exposed to noise capable of causing noise induced hearing loss, before it could be deemed that the whole of Mr Sellar's hearing loss arose out of that employment
   • the trial judge was required to make a finding identifying Transfield as the last relevant noisy employment and the trial judge did not make such a finding
   • that Dr Matison's report did not provide the basis for a finding that the employment with Transfield was the last such employment because it did not address the subsequent employment of Mr Sellar
   • that in the circumstances of this case the onus was on the worker to prove that his employment subsequent to leaving the Appellant was not relevant.

1. The trial judge accepted that the worker was 'a reliable witness who did his best to accurately outline his employment history, the nature of his duties and his recollection about the quality and extent of the noise to which he was subjected in various positions with several employers'.[15] She made specific findings with respect to the subsequent employment of the worker. She accepted the worker's evidence that one later part time job involved very occasional low background noise and the other jobs he held involved even less noise.
2. She rejected the submission of the Appellant regarding the operation of the presumption in s 113(2).
3. At para 38 of the judgment she said:

"I am satisfied that the worker's evidence establishes that he was exposed to noise in his employment with Transfield. Dr Matison's evidence establishes that he suffers from noise induced hearing loss and noise induced tinnitus. The worker's evidence about his significant noise exposure at Transfield, his evidence about the nature of his subsequent employment and Dr Matison's evidence linking noise induced hearing loss to the Transfield employment activated the s 113(2) presumption."

1. The trial judge identified the evidence of the worker regarding the significant noise exposure at Transfield, his evidence about the nature of his subsequent employment and Dr Matison's evidence linking noise induced hearing loss to the Transfield employment. She said that the presumption was activated and Transfield did not rebut the presumption.
2. The trial judge stated the law with respect to the application of legislation from para 10 - 13, as follows:

"10 There are several statutory provisions relevant to a claim for noise induced hearing loss. Section 31(1) provides that a disability is not compensable unless it is established on the balance of probabilities that it arises from employment; s 31(2) contains a presumption that if a worker suffers a disability of a kind set out in Schedule 2 of the Act and is employed in work of a corresponding type set out in that schedule the worker's disability is presumed, in the absence of proof to the contrary, to have arisen from employment.

1. Section 113(2) provides the following presumption:

'Subject to this section, where a claim is made under this Act in respect of noise induced hearing loss by a worker (not being a person who has retired from employment on account of age or ill-health), the whole of the loss shall be deemed to have occurred immediately before notice of the disability was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss.'

1. The purpose of these statutory provisions was explained in WorkCover Corporation v Perre when Mullighan J referred to the difficulties of proof experienced by a worker seeking compensation for a disability of gradual onset or disease and explained that:

'Parliament resolved these difficulties by categorising the disabling condition and the types of employment which cause them in Sch 2 and providing for the presumptions in s 31(2) and 113 and in their predecessors in earlier legislation'

1. His Honour set out the process envisaged by those provisions when he said:

'The worker is required to prove that he has noiseinduced hearing loss and that he has been employed in work involving exposure to noise. The burden of proof then shifts to the Corporation or an exempt employer, as the case may be. I shall refer only to the Corporation. It must prove that the hearing loss could not have arisen from the employment. In the case of employment involving only minimal noise such as employment in a library or some other quiet place, in the absence of any extraordinary circumstances, that task should be discharged without difficulty. In other cases, the task may be difficult, but if it cannot be discharged, the policy of the legislation is that the benefit falls to the worker. That position accords with fairness and commonsense as the conditions of the workplace at relevant times may be expected to be more easily established by the employer, and therefore the Corporation, than the employee.' "[16] (footnotes omitted)

1. In my view the trial judge correctly stated the law with respect to this matter.
2. The trial judge accepted the history the worker gave to Dr Matison and the worker's evidence regarding his subsequent employment as well as the history that there was no exposure to excessive noise in subsequent employment, or in a non-occupational setting.
3. Dr Matison was entitled to rely on the history provided to him by the worker in reaching his opinion that the worker suffers from hearing loss caused by occupational noise trauma in his employment with ANR and Transfield. It was open to the Appellant to probe Dr Matison's reliance on the worker's history but it chose not to.
4. There can be no doubt, in the circumstances of this matter, that the trial judge found that the Appellant was the last relevant employer. It can readily be inferred from the trial judge's finding of facts. That was the whole focus of the case.
5. In the course of the submissions on behalf of the Appellant the trial judge questioned Transfield's counsel as to why he regarded the lay evidence of the worker as to noise exposure as insufficient. Counsel at first instance suggested to the trial judge that:

"...detailed evidence of the nature and extent of the exposure and the need for an expert's opinion as to whether the 'tendency incidence or characteristics' of that employment are such to give rise to a real risk of deafness."

1. I accept that in some cases such a level of enquiry may be warranted. However in this case after his employment with the Appellant the worker engaged in a hotchpotch of part time jobs, study and office work, none of which involved the kind of noise levels likely to cause hearing loss.
2. There is nothing in the wording of s 113(2) to support the conclusion the appellant seeks to draw. If Transfield's position were accepted then a worker with an indisputable work related noise induced hearing loss could pursue claim after claim against employers who engaged him and fail against all of them. This is precisely the kind of problem that s 113(2) was intended to redress.
3. The worker was required to make out a prima facie case. He succeeded in doing that. Transfield was required, if it wished to contest the workers claim, to provide proof to rebut the presumption that the worker's employment with it was the last where he was exposed to noise capable of causing noise induced hearing loss. It chose not to present any evidence. It permitted the report of Dr Matison to go into evidence without challenge.
4. In my view the decision at first instance was correct.
5. If I am wrong with respect to the operation of the presumption in s 113(2) then it is my view that in any event the evidence before the trial judge and her findings with respect to the worker's employment and other activities after his employment with Transfield ended were sufficient to support the conclusion that on the balance of probabilities the worker's noise induced hearing loss is attributable to his employment with Transfield.
6. I would dismiss the appeal.

1. The primary question of law raised on this appeal concerns the interpretation and application of s 113(2) of the Worker's Rehabilitation and Compensation Act 1986.
2. Section 113(2) provides:

"Subject to this section, where a claim is made under this Act in respect of noise induced hearing loss by a worker (not being a person who has retired from employment on account of age or illhealth), the whole of the loss shall be deemed to have occurred immediately before notice of the disability was given and, subject to any proof to the contrary, to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss."

1. There are two matters deemed by s 113(2). Firstly, the whole of the worker's noise induced hearing loss is deemed to have occurred immediately before notice of disability was given, and secondly, the whole of the worker's noise induced hearing loss is deemed to have arisen out of employment in which the worker was last exposed to noise capable of causing noise induced hearing loss.
2. The appellant does not take issue with the application of the first deeming. Central to its case at trial, however, was its contention that the second deeming could not operate unless the worker had proved that it was Transfield in whose employment he was last exposed to noise capable of causing noise induced hearing loss.
3. The learned Deputy President rejected that contention.[17]
4. There were, the learned Deputy President said, several relevant statutory provisions and presumptions and her reasons refer to these. She then details the worker's employment history and his exposure to noise, and summarises the findings and opinion of Dr Matison.
5. Her critical findings then follow:

"38 I am satisfied that the worker's evidence establishes that he was exposed to noise in his employment with Transfield. Dr Matison's evidence establishes that he suffers from noise induced hearing loss and noise induced tinnitus. The worker's evidence about his significant noise exposure at Transfield, his evidence about the nature of his subsequent employment and Dr Matison's evidence linking noise induced hearing loss to the Transfield employment activated the s 113(2) presumption.

1. Transfield did not provide proof to rebut the presumption that the worker's employment with Transfield was the last where he was exposed to noise capable of causing noise induced hearing loss.
2. I conclude that the worker's noise induced hearing loss is attributable to his employment with Transfield."
3. These paragraphs reflect the learned Deputy President's conclusion that the worker was entitled to the benefit of a presumption that his employment with Transfield was the last where he was exposed to noise capable of causing noise induced hearing loss, and that he was so entitled because Transfield did not provide proof to rebut that presumption.
4. With respect, s 113(2) provides no such presumption. Given that, there can have been no onus on Transfield to provide proof to rebut the presumption.
5. Insofar as the learned Deputy President appears to have relied on a presumption to find that the worker's employment with Transfield was the last where he was exposed to noise capable of causing noise induced hearing loss, in my view she fell into error. Her reasons at paras 31, 32 and 33 indicate that she found the worker's post-Transfield employment exposed him to no more than "very occasional low background noise". It is tempting to infer from that, and from para 38 of her reasons, that she would have come to the same conclusion in any event, and then have relied on the second deeming in s 113(2) to conclude, absent proof to the contrary, that the whole of the worker's hearing loss should be deemed to have arisen out of his Transfield employment. Absent any clear finding, unassisted by any presumption, that the worker's employment at Transfield was his last employment in which he was exposed to noise capable of causing noise induced hearing loss, it might be unsafe to make that inference.
6. In relation to the contentious issue as to who carried the burden of proving that it was Transfield in whose employment the worker was last exposed to noise capable of causing noise induced hearing loss rather than some other employer, the learned Deputy President rejected Transfield's submission that this rested with the worker. In my view, this was an error of law.
7. If the second deeming provision in s 113(2) was to be relied on by the worker, in my view it was he who bore the burden of proving the preconditions for the operation of the deeming clauses. That is to say, it was the worker who bore the onus of proving that his hearing loss was noise induced hearing loss, and it was the worker who bore the onus of proving that the employment he was claiming against was the last employment in which he was exposed to noise capable of causing noise induced hearing loss.
8. Given that the worker was in a better position than Transfield to know what noise he was exposed to in his later employment, in my view he carried the initial burden of introducing evidence on the matter. He did this. The learned Deputy President accepted his evidence and this was the basis for her finding in paragraph 33 of her reasons "that the work at D & A Sellars involved very occasional low background noise and that he was exposed to even less noise at Cove Tavern".
9. In the absence of evidence suggesting that the worker's later exposure to noise was more than this, that might well have been enough. As it was Transfield's contention that the worker's later employment exposed him to noise capable of causing noise induced hearing loss, an evidentiary burden of adducing evidence of that shifted to Transfield. Perhaps that is what the learned Deputy President was alluding to in para 39. Unfortunately, her invocation of a false presumption operating in favour of the worker clouds exactly what were the processes of her reasoning.
10. A finding of error of law does not necessarily mean that an appeal must be allowed. An appeal will only succeed on an error of law if the error is one upon which the decision depends and is such as to vitiate the decision appealed from: Yates Property Corporation Pty Ltd v Darling Harbour Authority.[18] If on the facts as found or not in dispute the correct interpretation and application of s 113(2) must inevitably lead to the same outcome as that reached by the learned Deputy President, the appeal must fail.
11. I would hear from counsel on this aspect of the matter.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[4] (1999) 76 SASR 95

[5] with whom Doyle CJ and Wick J agreed

[13] [1965] HCA 34; (1965) 114 CLR 164 at 167-8

[14] (undated but having a computer file print date of 2010-10-12)

[15] Sellar v Transfield Services (Australia) Pty Ltd [2012] SAWCT 16 para 14

[16] Sellar v Transfield Services (Australia) Pty Ltd [2012] SAWCT 16 paras 10- 13

[18] (1991) 24 NSWLR 156