Unisure Pty Ltd (Flinders University) v Gomez-Soto [2004] SAWCT 96

3 At the outset of the appeals, counsel for the exempt employer raised the question whether there was a "decision" in terms of s 86(1) (tr 2) and queried whether the matter had been finally determined by the Tribunal (tr 4). Although not conceding the appeal was incompetent, counsel for the exempt employer conceded the position of the parties was not fully determined and the appeal might be premature (tr 13, 32). He submitted the cross-appeal of the worker was incompetent in any event. He argued this Tribunal should adjourn all matters until the Tribunal below completed its task. The worker's counsel submitted the exempt employer's appeal was incompetent although all that was wanting was for the calculations to be completed.

4 S 86(1) of the Act, the relevant provision, reads as follows:-

"An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal."

5 A number of judgments delivered by this Tribunal have considered s 86(1) and when it may be invoked. In Mitsubishi Motors Australia Ltd v Warren Print No JD 88/1999, an appeal was instituted when a Deputy President refused to issue directions requiring the worker to submit to a medical examination. The Tribunal concluded that despite the order being merely an order in preparation for the hearing, there was jurisdiction to hear the appeal pursuant to s 86(1) in those circumstances. The Tribunal's reasoning is disclosed in the following passages (at pp 3 - 4):-

"There are decisions that a Presidential Member can make that do not finally dispose of the issues in dispute between the parties that, if made as a result of an error of law, could result in a real injustice being suffered by the aggrieved party. Given that Parliament has not prefaced the word `decision' with the definite article `the', nor has it in any other way indicated that it has intended the right of appeal only to lie against a final judgment or order of the Tribunal, we think that the words `a decision' should be given a broad interpretation. ...

... If every decision made by a Presidential Member which concerns a question of law gave rise to a right of an appeal, there would be the potential for a multiplicity of legal procedures within the one dispute. This would be inconsistent with the scheme and purpose of the Act. This leads us to conclude that Parliament only intended an appeal to lie against those decisions made by a Presidential Member which concern a question of law and which either conclusively deal with the issues in dispute between the parties or which, if made erroneously, will result in a real injustice to the aggrieved party if allowed to stand. Because it was our opinion that the decision under review in this case could potentially be so categorised, we ruled that the within appeal was competent."

6 In WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Harris Scarfe Ltd) v Smith [2003] SAWCT 50, the Tribunal again examined the words "a decision of the Tribunal" in s 86(1). That case concerned the challenge by a worker in June 2002 to a return to work plan covering the first quarter of 2002. The employer sought the worker's dispute be struck out as pointless, the plan relating to times past. However the worker was also accused of lack of mutuality in the same period and she contended this was in part due to the plan being unreasonable. She argued the only way she could ask the Tribunal to have regard to the plan was pursuant to s 28B of the Act. The Deputy President at first instance refused to strike out the worker's proceedings stating succinctly:-

"18 It seems to me to be inconsistent for the respondent to contend, as it does here, that the Plan `ceases to exist and the jurisdiction to entertain complaints about it no longer exists' (tr 14), yet at the same time urge the Tribunal to entertain complaints about alleged breaches of the Plan by the worker in support of its s 36 Notice."

7 On the employer's appeal, the worker contended the refusal to strike out the proceedings did not involve a decision in the requisite s 86(1) sense. Rather it left the matter to be determined later on. The employer on the other hand contended on the authority of Warren's case the fact that substantive rights between the parties had not been altered did not matter (par [13]). Furthermore as the period contemplated by the plan had elapsed, nothing could be effectively achieved by entertaining the application. It argued there was a real prejudice to the employer in costs and effort when the matter was not arguable and this created the type of injustice referred to in Warren.

8 The Full Tribunal acknowledged there was jurisdiction under s 86(1) beyond cases which finally and exhaustively decided substantive issues between the parties (par [20]). That conclusion seems to be similar to later authority concerning like provisions: see Solution 6 Holdings Ltd & Ors v Industrial Relations Commission of New South Wales & Ors [2004] NSWCA 200; (2004) 208 ALR 328 at par [109]. The Tribunal in Smith went on to adopt the principle set down in Warren. But going somewhat further, the Tribunal acknowledged another circumstance indicated by the authority of Keylink v Ergoline [1999] SASC 483. Namely circumstances where there existed a final determination of an issue constituting only part of the proceedings before the Court. This should be understood with the limits described by Jacobs J in Advertiser Newspapers Ltd v Despoja (unreported Full Supreme Court 31 August 1990). In Smith's case however the Tribunal concluded the decision appealed from did not determine a requisite issue. It had merely ruled the reasonableness of the plan may be probative of the mutuality issue in the case. That was not a "decision" of the type contemplated by the statute. The Tribunal upheld the worker's argument there was no "decision".

9 The circumstances of the appeal before this Tribunal are contained in the two judgments from which the appeals are taken. As stated above in the first, ([2004] SAWCT 42), the issues were the rejection of s 32 expenses and the worker's dispute with the LOEC determinations made by the exempt employer. In examining the matter the learned Deputy President noted the statutory formula set out in s 42A required a determination of the worker's notional weekly earnings, an estimation of the income tax payable on such earnings for the relevant period, an assessment of the worker's residual earning capacity and the income that could produce, an estimate of the income tax payable upon the presumed income and the application of a prescribed discount rate fixed at three per cent (par [24]). It was also noted the Act laid down guidelines as to how that residual earning capacity was to be assessed and the various elements set out in the section were detailed (par [25]). All these matters had to be dealt with to get a result in the case.

10 The LOEC determinations the worker disputed had assumed the worker had a residual capacity for various types of employment. As a preliminary to the hearing therefore, the learned Deputy President directed the exempt employer to provide particulars of the employment that it contended was suitable employment that the worker had a reasonable prospect of obtaining (par [41]). Besides a report of a consultant with a firm of recruitment specialists, this order was otherwise not complied with. That led to the learned Deputy President detailing the evidence the exempt employer was permitted to bring on suitable work opportunity, to enable the worker to receive a due and fair hearing (par [49]). The case proceeded on that basis.

11 It should be noted at this point that during the hearing of this matter extensive evidence was led and all matters fiercely contested. The hearing proceeded over 12 days and with an excess of 1000 pages of transcript. That is leaving aside for the moment the other matters leading to the hearing and detailed somewhat testily in the Outline of the worker (par [71]). In particular the worker was vigorously cross-examined at large over several days in relation to his capacity for work (par [64]). The worker's stance was plain. He contended he was totally and permanently incapacitated (pars [64], [71], [73], [74], [82] and [84]). If that was rejected then the worker contended he was not fit for the work identified by the exempt employer (par [85]).

12 The exempt employer emphatically joined issue with the stance of total and permanent incapacity. The learned Deputy President noted the exempt employer's counsel described this contention as "ludicrous" (par [87]). But that was the way the case was presented and disputed and noted in the judgment (par [105]). Moreover the issue was said to be primarily dependent on the testimony of the worker as to his abilities and fragilities. Crucial to this then was the conclusion of the learned Deputy President (par [108]) in the following terms:-

"I have carefully reflected upon the worker's evidence and his demeanour in giving that evidence. I find myself satisfied on the balance of probabilities that he is telling the truth. I find that his level of disability and the symptoms he experiences, have, at all relevant times, been as he contends them to have been."

13 His Honour described the various aspects of the medical evidence and reached the conclusion upon that analysis that he preferred the evidence of the worker's treating psychiatrist Dr Flynn. Weighing the evidence and in particular the issue of the worker being able to resume some form of teaching, the learned Deputy President states (par [118]):-

"I accept Dr Flynn's evidence that the worker is stress sensitive. I find him to be psychologically fragile for the reasons given by Dr Flynn. The circumstances here are very different to a situation in which a worker is embarrassed or upset at the prospect of work that is objectively inferior to the work that he or she previously undertook. The worker's life circumstances are very unique. His work was his life. His sense of self worth, his status and his reputation were of the utmost importance to him. I find that the worker would have been psychologically crushed by having to work as a tutor or indeed in any tertiary lecturing position inferior to his previous status. I find that the risk of the worker aggravating his anxiety and depression if he undertook this work was at all relevant times so great, that on medical grounds this work cannot be regarded as suitable."

14 The judgment then dealt with some aspects of the doctrine of mitigation and its application to LOEC determinations, though his Honour observed the comments were not necessary to resolve the matters joined between the parties. He noted that what may have been done at the appropriate time had been substituted by taking the course of s 42A. He then stated (par [124]):-

"Having found that the employer has not established the existence of any suitable employment I do not need to consider whether the worker had a reasonable prospect of obtaining such employment and I do not think anything would be achieved by venturing into this."

His Honour then added that he was not addressed on any issues of quantum and would like to hear from counsel before making final orders in relation thereto.

15 The learned Deputy President delivered his reasons for the findings referred to above on 22 April 2004. The exempt employer filed a Notice of Appeal against the "decision" on 5 May 2004. Whilst the hearing of the appeal was pending, the parties made submissions to the learned Deputy President as to what should follow from the findings published on 22 April 2004. One of the submissions made by the exempt employer was that it should be permitted to raise the issue as to the period of the worker's NWL, and to produce evidence in relation to the same. The learned Deputy President acceded to this application, and published his reasons and gave further directions on 30 July 2004, [2004] SAWCT 82. The worker has appealed against this "decision".

16 In the second judgment and following on consistently from the first judgment, the learned Deputy President turned his mind to what he needed to complete the fresh LOEC assessment and reach a result in the dispute before him. He indicated that the state of the evidence was probably sufficient to conclude the notional weekly earnings. However he did not have evidence to estimate the income tax the worker would have been liable to pay in respect to the earnings and he recorded that neither party had made submissions to him regarding the worker's NWL. That was to be determined in accordance with s 42A(3)(b) which stated:-

"the worker's notional working life is the period over which the worker would have worked assuming that he or she had not been incapacitated and that period will be assessed having regard to the contingencies and vicissitudes of life that might in any event have prevented the worker from continuing in employment but the period will not, in any event, be taken to extend beyond the date on which weekly payments would (assuming no assessment of capital loss were made under this section) ceased to be payable (see section 35(5)); ..."

17 The issue that the worker's NWL would have ended at a point before the worker's 65th birthday was then for the first time raised as an issue (at pars [12] and [13]). It was raised in the context of an application to call further evidence made by the exempt employer after it had its case rejected. The exempt employer sought to call such evidence and then argue the point. In response the worker opposed this and contended that the conduct of the matter, particularly by the exempt employer, implicitly accepted a retirement age of 65. The LOECs, particularly the last one, indicated the age used in its calculations (viz 65 years). Therefore the exempt employer should not be allowed to change the position it had adopted. Its attempts to do so were unfair at this late stage. The worker relied on the majority in Wear v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77. Alternatively he argued an injustice occurred because he would suffer prejudice in time and money. The worker's argument was framed in a manner of the extended or "properly belonged" plea described in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 at 114 - 115: see Salmon Street Ltd (in liquidation) (formerly General Motors-Holden's Ltd) v Jorgensen [1991] SASC 2963; (1991) 56 SASR 158 at 161.

18 The learned Deputy President noted this was a very late application to introduce new evidence (par [25]). There was every opportunity and circumstance available to the exempt employer at the hearing to raise the issue, a position apparently contrary to the one it adopted and indicated in its earlier determinations and with which the worker had not challenged. The Tribunal considered the exempt employer had not taken this issue at the appropriate time (par [26]). However His Honour characterised this as a, "mistake only", and not the product of a tactical choice (par [28]). Citing a line of authority based upon Cropper v Smith (1884) 27 ChD 710 that the job of the courts is to decide rights inter parties and not to punish mistakes, his Honour then granted the application. He acknowledged the delay it would cause but sought to ameliorate that effect by setting strict time frames. He also ordered this evidence would include any information subsequent to the making of the various LOECs (par [33]). The further application by the exempt employer to re-open the issue of suitable employment that might be available was not acceded to in the following terms (par [35]):-

"I have already ruled on what I consider to be the scope of this hearing. I can of course reconsider that, but only if there are valid grounds for doing so. The employer was given ample opportunity to identify the areas of employment that it contended were suitable. I am not persuaded that it should be now given the opportunity to explore other options."

19 As indicated above, and as detailed by the learned Deputy President, the dispute was inter alia over the LOEC determinations (pars [24] and [25] of [2004] SAWCT 42). That dispute was the matter the Tribunal had to decide: Griffin v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (NSB Staff Pty Ltd) Print No JD 33/1997. It cannot be said that the process contemplated had been finalised. In fact, as indicated, that is conceded by counsel for the exempt employer (see Outline par 8, appeal tr 16). So far as the appeal by the exempt employer is concerned there can be no question of injustice, simply because the right to appeal will remain available to it when the process has completed and the notion of a "decision" as contemplated in s 86(1) exists. That is in line with the approach taken in Smith. The appeal by the exempt employer is premature and incompetent. As at 22 April 2004 the Tribunal did not make the requisite decision in this respect capable of an appeal pursuant to s 86(1).

20 The issue raised by the worker is different. The worker says he is being asked to embark on a process which he should not be required to engage in. He says that his right to have the matter determined on the issues as framed and in fact as conducted so extensively, will be lost. This right if disregarded will not be capable of correction by an appeal if the order permitting the re-opening for the purposes of new evidence stands. It is in the category of an injustice contemplated by Warren's case. The decision to allow the exempt employer to argue the NWL and to re-open its case to call evidence is in this sense final and satisfies the requirement of s 86(1). We think that argument is correct.

21 The worker also raises another feature of what was done. He argues the matter of the NWL was not in "dispute" in the sense meant by that word where it variously appears in the Act, viz s 91. What was in "dispute" was the only matter the Tribunal was seized of. The "dispute" was actual, definitive, not pending or potential. It was fixed at a point before the hearing; viz Re Gaudron; Ex parte Uniroyal Pty Ltd [1978] HCA 3; (1978) 52 ALJR 317. It did not include a dispute regarding NWL. The learned Deputy President thus could not do what he did (Outline par 40).

22 We rule that the appeal of the exempt employer is premature. It does not satisfy the requisites of s 86(1). It is therefore incompetent and is dismissed. The appeal by the worker does satisfy the requisites of s 86(1). The worker therefore has a right which he has chosen to invoke. The appeal is competent. We will therefore list the matter for hearing on the worker's appeal.