JUDGMENT OF: His Honour President Judge WD Jennings, His Honour Deputy President Judge JP McCusker and Her Honour Deputy President Judge HW Parsons

Referral - Whether claims agent having originally determined a claim (by reconsideration) is bound by that determination on all subsequent proceedings in the Tribunal - Whether claims agent has standing at judicial determination following the employer's successful dispute of the determination - Whether claims agent estopped from presenting a case inconsistent with its reconsideration - Discussion of case-law - S 53, s 85, s 88DA, s 90, s 91, s 91A, s 92D, s 94, s 94A, s 94C, s 96, s 102, s 106A Workers Rehabilitation and Compensation Act, 1986.

Robbins v Harbord and Another [1994] SASC 4571; (1994) 62 SASR 229

Metwally v University of Wollongong (1985) 60 ALR 68

Banque Commerciale SH en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Mitsubishi Motors Australia Ltd v Harbord and Another (1997) 69 SASR 75

Della Flora v Workers Rehabilitation and Compensation Corporation of South Australia (unreported) Full Supreme Court Judgment No. S6691

Hornhardt v WorkCover [2000] SAWCT 157

Ienco v General Motors-Holden's Proprietary Limited (1972) 39 SAIR (Part 2) 1037

Porciello v Minister of Works (1973) 40 SAIR (Part 2) 847

O'Brien v State of South Australia (Department of Education) and Another (1994) 63 SASR 175

WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski (1993) 170 LSJS 129

Pashalis v WorkCover Corporation [1994] SASC 5143; (1994) 63 SASR 71

Santos Ltd v Saunders (1988) 49 SASR 556

Simpson Ltd v Arcipreste (1989) 53 SASR 9

Grewcock v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (LD Oakley and DM Kelly) JD83/1998

Water Board v Moustakas [1988] HCA 12; (1988) 77 ALR 193

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738

Downing v Sporting Shooters Association of Australia Inc (1995) 62 IR 364

1 Some issues of law concerning a dispute between Francis Roy Wear ("the worker") and the WorkCover Corporation ("the Corporation") have been referred directly to a Full Bench of the Tribunal pursuant to s 94A(2) of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

2 The dispute between the parties concerns the worker's claim for compensation pursuant to s 43 of the Act on account of his alleged loss of hearing.

3 The worker made that claim for compensation on 14 January 1999. By Determination dated 9 April 1999 the Corporation through its agent, rejected the worker's claim.

4 The worker contested that rejection of his claim and by Notice of Dispute dated 22 April 1999 he issued proceedings in the Tribunal. This brought into play s 91 (of the Act) which required the Corporation to reconsider the rejected claim.

5 Having undertaken that reconsideration, the Corporation resolved to accept the worker's claim.

6 The worker's employer at the time of the alleged compensable disability, Greyhound Pioneer Australia Ltd ("the employer") was dissatisfied with the result of that reconsideration. Accordingly, it expressed that dissatisfaction as contemplated by s 91A and as a result, the matter proceeded through the dispute resolution process provided for by the Act.

7 This culminated in a hearing before an Arbitration Officer on 18 February 2000. Having heard evidence and submissions from the parties, the Arbitration Officer, by Determination dated 7 March 2000, upheld the employer's position and confirmed the original rejection by the Corporation of the employer's claim.

8 The worker was not prepared to accept the outcome of the arbitration and accordingly he sought a judicial determination of the dispute.

9 The employer has since gone into receivership and the receiver does not wish to take part in the judicial determination. The Corporation wishes to participate in those proceedings and moreover, notwithstanding the conclusion that it reached upon a reconsideration, it seeks to maintain its original position and that is, to reject the worker's claim.

10 The worker submits that it is not permissible for the Corporation to do so.

11 In that context, the following issues have been referred directly to this Full Bench, they being:

"1. Whether the Corporation, having originally determined a claim (on reconsideration) in favour of the worker, is bound by that determination in all subsequent proceedings in the Tribunal.

2. Where another party, i.e. the employer, at arbitration successfully disputes the Corporation's determination, does the Corporation have locus standi at judicial determination, and if it has, is it entitled to take a position contrary to its own redetermination."

12 Mr Saies, counsel for the worker, submitted that, first, the Act contemplates that the respondent would make a fair and objective determination. There can be no quarrel with that. King CJ said as much in Robbins v Harbord [1994] SASC 4571; (1994) 62 SASR 229 at 236:

"The decision by the Corporation or an exempt employer in relation to a claim is not simply a decision by a private person or corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function. The function of the exempt employer is not distinguished from that of the Corporation. Both have the statutory function of investigating and determining claims for compensation. Neither is entitled in determining claims simply to consult its own interests. There must be proper grounds of rejection of a claim and they must be notified to the claimant."

13 Next, he says, that the principle enunciated in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 :

"Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

14 The so-called rule in Metwally was explained by Mason CJ and Gaudron J in Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 284 as follows:

"... unless all facts have been determined beyond controversy or the question is one of construction or law and it is expedient in the interests of justice to entertain the point, a party may not take a point for the first time on appeal."

15 Their Honours then explored the rationale behind the rule. They said:-

"Some aspects of that rule appear to derive from public policy considerations directed to ensuring the finality of litigation. On the other hand, some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position, but that he or she may have been so placed."

16 In my view this rule has no application here. I am not concerned with the Corporation adopting a point not previously taken after there has been a full and final hearing of the evidence. There is no policy consideration based on the finality of litigation that is relevant here. The worker is seeking to have a full hearing before a presidential member in the context of a regime that expressly contemplates a hearing de novo within which the Tribunal "must re-hear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings": s 94C(1).

17 As to the estoppel by election aspect, where is the detriment suffered by the worker as a result of the Corporation's changing position? Apart from having to establish his entitlement, there is none.

18 Finally he says that the respondent is estopped from presenting a case inconsistent with the reconsideration preceding its acceptance of the claim. Mr Stanley, counsel for the respondent, submitted that the applicant's argument is contrary to s 85 of the Act, being the "equity, good conscience" provision. In response to a question from the Bench he conceded that there may be situations in which the Corporation would be bound by previous decisions it had made, however he maintained that this was not such a case. He pointed both to the structure of the Act and to a consistent line of decisions of this Tribunal and of the Supreme Court of South Australia, which, in his submission, indicated that in the circumstances of this case the Corporation was not bound to the position that it had initially adopted.

19 In my view, Mr Stanley's submission is correct. In Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 84, 85 and 87, Doyle CJ spoke of the initial decision-making process undertaken by the relevant compensating authority. He said:-

"First, the Corporation is required to act expeditiously. It does have powers of inquiry, but it is clear that the Act does not expect a prolonged decision-making process. There is nothing akin to a hearing at this stage."

20 Although the process of reconsideration is an important aspect of the dispute resolution process, it too must be undertaken expeditiously. S 91(5) provides that the reconsideration must be undertaken within seven days of the receipt of the notice of dispute unless a longer time is allowed by the Registrar. Accordingly, although His Honour's remarks were directed towards initial determinations, they are entirely apposite to the process of reconsideration.

"The importance of expeditious decision-making and the fact that at the first level of decision-making there is limited scope for testing the worker's claims, support an argument that the Corporation should not be bound by an expeditious decision made on limited information. There is also reason to think, as the Judge below said, that in the case of relatively small claims, for example, for medical expenses, there would be everything to be said for the Corporation simply paying the claim without spending too much time investigating the occurrence of the disability. It would be odd if a consequence of that was that it could no longer put the occurrence of the compensable disability in issue, even in the face of a much larger claim. In the environment in which the Act operates, one could expect that, particularly in the early stages, a disability will be identified in quite general terms, and often in terms that will require revision as the worker undergoes further treatment. Treating the determination of a claim as decisive as to the occurrence of a compensable disability upon which it is based, may give rise to rather unprofitable debate when later claims are made, in relation to the terminology used by the worker in identifying the disability in the early stages and the disability at the later stages. There would often be argument that what is identified as the disability later, is not the same thing as the subject of the earlier determination."

22 Again, having regard to the expeditious nature of the process of reconsideration, His Honour's remarks are entirely apposite. One can well imagine a scenario wherein the compensating authority based upon its investigations is satisfied that the worker has no entitlement. Upon the lodgment of a notice of dispute and faced with a task of balancing escalating legal expenses to a relatively modest claim, it might, in the interests of expedition, resolve to exercise its powers of reconsideration and accept the claim for a modest payment. If a worker was dissatisfied with the outcome of the reconsideration and sought a greater amount of compensation than that which the compensating authority had provided for in its reconsideration, the compensating authority might well take the view that in those circumstances it should investigate the claim more thoroughly and put the worker to proof.

23 In Mitsubishi v Harbord, His Honour ultimately concluded:-

"... that the Act itself does not require a conclusion that once the Corporation has determined to accept a claim it can no longer put in issue the occurrence of the relevant compensable disability."

24 With respect, I see no reason to limit those remarks to the original determination.

25 The learned Chief Justice expanded upon these matters in Della Flora v WorkCover (unreported delivered 26 May 1998; S6691) where he said:-

"... the scheme of the Act is one under which the Corporation is required to make an expeditious initial determination on relatively limited information. It is only if the matter reaches the Tribunal that there will be a complete hearing. A full hearing might well result in material emerging which falsifies the basis upon which the original determination was made."

"I have concluded that Parliament did not intend that the determination should be enforceable by action on the part of a worker before the expiry of the period within which a notice of dispute could be lodged, nor after such a notice has been filed and before the dispute has been finalised."

27 In Hornhardt v WorkCover [2000] SAWCT 157, at par 11, Judge Gilchrist DP, after citing the passage to which we have just referred said:-

"I think that it follows from this that the effect of the lodging of a notice of dispute within time is to render the disputed decision unenforceable and that remains so until the Tribunal makes an order either by consent or after an adjudication on the merits. ... Thus the disputed determination carries no status in hearings before the Tribunal other than to provide a framework from which to ascertain the nature of the issues of dispute. The effect of this is that the party disputing the compensating authority's position need not demonstrate that the determination, or in the case of a disputed variation subsequent to a reconsideration, the reconsideration, was made in error. The status quo is the position as it was before the disputed determination was made."

29 In my opinion that they are consistent with what was said by Doyle CJ in Mitsubishi v Harbord (supra) and Della Flora v WorkCover (supra).

30 I appreciate that the majority take a different view. With respect, I do not agree with it. I can accept that there may be circumstances where it may be unjust to allow a compensating authority to resile from a position that it has adopted in its initial determination. But, with respect, I can see no justification for creating a rule that the compensating authority cannot depart from its determination without just cause. This seems to assume that a disputed determination creates rights. In my view, it does not.

31 The appropriate means by which to prevent an injustice resulting from the departure from a position taken in an initial determination from occurring, is to invoke the inherit jurisdiction that the Tribunal undoubtedly possesses, of preventing an abuse of process.

32 Accordingly, returning to the questions that have been referred to us, I would answer to the first question, no, and to the second question, yes.

33 This is a referral to the Full Bench of the Tribunal (s 94A(2)). It is in the following terms:-

"1. Whether the Corporation, having originally determined a claim (on reconsideration) in favour of the worker, is bound by that determination on all subsequent proceedings in the Tribunal.

2. Where another party, ie the employer, at arbitration successfully disputes the Corporation's determination, does the Corporation have locus standi at judicial determination and if it has is it entitled to take a position contrary to its own redetermination."

"1. The worker made a claim under s 43 for compensation for loss of hearing on 14/1/99.

2. That claim was rejected by the agent which determined accordingly on 9/4/99.

3. The worker filed a Notice of Dispute on 22/4/99.

4. Upon reconsideration dated 5/5/99 the agent allowed the claim.

5 The employer then filed a Notice of Dispute to the redetermination claim (on) 28/5/99.

7. The Arbitration Officer upheld the employer's Notice of Dispute (on) 7/3/00.

8. The worker filed a Form 8 for Judicial Determination after arbitration (on) 16/3/00.

9. The employer then went into receivership, the receiver does not wish to take part in the judicial determination.

10. The agent disputes its Variation of Disputed Decision of 5 May 1999 (the agent now seeks the same result as the arbitration).

11. The worker submits that the agent is bound by its redetermination, ie. (par) 4 above."

35 Mr Saies of counsel for the worker, contends the agent, having upon full and reasoned inquiry decided to accept the claim in the reconsideration dated 5 May 1999, was bound to its decision. Moreover in the arbitration it had adopted a neutral position, advising it would abide the event: (Applicant's Outline of Argument par 6).

36 In this role as decision maker on the reconsideration, despite the fact it was set aside by the arbitration at the instigation of the employer, the agent was still bound by its own decision. Otherwise in a real sense this meant it was appealing against its own decision.

37 Mr Saies contends in the alternative that the claims agent is estopped from presenting a case which is inconsistent with its reconsideration (Applicant's Outline of Argument par 8). Further that it should not be permitted to put a case at judicial determination at odds with its position at arbitration, on the authority of Metwally v University of Wollongong (1985) 60 ALR 68.

38 Our immediate concern with Mr Saies' contention is what happens if one takes the converse circumstance. Would the Corporation be bound to oppose the worker's notice of dispute despite information indicating the worker's claim was justified? The answer depends on the intent indicated in the Act as explained by relevant authority.

39 Consistent with Mr Saies' argument is the appreciation that the Act seeks to regulate the circumstances in which payments commence. And once commenced in what circumstances they cease. This is to avoid the notorious situation that previously existed where, absent a judicial order, payments to injured workers were quite arbitrary and significantly unjust consequences occurred: see Ienco v General Motors-Holden's Proprietary Limited (1972) 39 SAIR (Part 2) 1037 at 1042 - 1044 per Muirhead J; Porciello v Minister of Works (1973) 40 SAIR (Part 2) 847 per O'Loughlin J at 868.

40 Clarity must also be maintained between the statutory role of the Corporation as decision maker subject to appeal or hearing de novo and on the other hand its function as the insurer.

41 The scheme established by the 1986 Act required the Corporation to investigate claims for compensation and then determine the claims as expeditiously as reasonably practicable (s 53). That included a statement of the grounds for any rejection: subs (6), Robbins v Harbord and Another [1994] SASC 4571; (1994) 62 SASR 229; Cambridge v Parador Pty Ltd JD41/1998.

42 By amendments, in the case of subs (7) and subs (8) from 24 February 1994 and subs (7a) from 24 July 1994 the following were added:-

"(7) The Corporation may, in an appropriate case, by notice in writing to the worker, redetermine a claim.

(7a) For the purposes of subsection (7), an appropriate case is one where -

(a) the redetermination is necessary to give effect to an agreement reached between the parties to an application for review or to reflect progress (short of an agreement) made by the parties to such an application in an attempt to resolve questions by agreement; or

(b) the claimant deliberately withheld information that should have been supplied to the Corporation and the original determination was, in consequence, based on inadequate information; or

(c) the redetermination is appropriate by reason of new information that was not available and could not reasonably have been discovered by due enquiry at the time that the original determination was made; or

(d) the original determination was made as the result of an administrative error and the redetermination is made within two weeks of the making of the original determination; or

(e) the redetermination is made in prescribed circumstances.

(8) The redetermination of a claim does not give rise to any right on the part of the Corporation to recover from the worker money paid under a previous determination unless the previous determination was made in consequence of the worker's fraud."

43 It is important to stress the consequences of a determination. If it is in favour of the worker it constitutes, "a vested, fixed or established, right to compensation": see O'Brien v State of South Australia (Department of Education) and Another (1994) 63 SASR 175 at 176 per Bollen J, also 182 per Prior J, 185 per Duggan J.

44 The provisions in the original form of the Act in Div VI provided for reviews and appeals. The Corporation could not seek review. This was because of the terms of the legislation and because of the absurdity of the Corporation appealing against its own determination: see WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski (1993) 170 LSJS 129; Pashalis v WorkCover Corporation [1994] SASC 5143; (1994) 63 SASR 71. However the Corporation had a right to be heard before the Review Officer and could appeal the decision of a Review Officer under s 97.

45 A review was not an appeal. S 96(2) required the Review Officer to make a fresh determination of the matters to which the decision subject to review related. The matter was de novo: Santos Ltd v Saunders (1988) 49 SASR 556. On the other hand the appeal from the Review Officer to the Tribunal was by way of rehearing on the documents: Simpson Ltd v Arcipreste (1989) 53 SASR 9 at 13, 20.

46 The provisions of s 102 of the Act at that time gave rise to the greatest debate over the intent of the Act. This culminated in the Full Court of the Supreme Court decision of Pashalis v WorkCover Corporation (above cited). That case involved a worker's application to a Review Officer for a s 43 decision invoking his powers under s 102 because of undue delay by the Corporation in determining the matter.

47 The Review Officer determined the worker was entitled to receive 25 per cent of the prescribed sum. The Corporation sought review from that decision from a second Review Officer who varied the award to 15 per cent. The worker appealed to the Tribunal and then to the Full Supreme Court. It is questionable whether a clear ratio can be extracted from the judgments in that case. However an important aspect of the case was the confirmation that under the review provisions of the Act the Corporation could not seek review of its own decisions.

"... However, an examination of s 95 discloses that it is intended to provide for rights of appeal by workers, not by the Corporation. That appears most clearly perhaps in s 95(6) which requires the Corporation to endeavour first to resolve the questions in issue by agreement. Further, generally speaking, all other decisions in respect of which an application for review will be made will be decisions made by the Corporation pursuant to s 53(4). As has already been observed by the Chief Justice in another context, it is absurd to contemplate the Corporation seeking to review its own decision: WorkCover Corporation (Century Products SA Pty Ltd) v Hojski (1993) 61 SASR 290; 170 LSJS 129 at 139. A decision made under s 102 is not, therefore, a decision which falls within the list of reviewable decisions in s 95(2). In the result, a decision by a Review Officer made under s 102 is not capable of a review by the Corporation and it appears that it may not be capable of a review by the worker. ...

For these reasons, the only valid and subsisting decision is that made by the Review Officer under s 102. The Review Officer who purported to review that decision under s 95 ought to have ruled that she had no jurisdiction. The appeal to the Tribunal was a nullity and the appeal to this Court is also a nullity."

49 These decisions are important aids in gaining an overview of the process chosen by the legislative. It was in this setting that the changes in Amending Act No 75 of 1995 were introduced. S 53 and the methods set up for dealing with the initial claim were left untouched. Changes were wrought at the point this phase was completed.

50 Under s 90 a person with a direct interest in a reviewable decision can lodge a Notice of Dispute ie a contestant. That is against a decision made pursuant to s 53. A person has a direct interest if directly affected by the decision, or if the employer from whose employment the compensable disability arose. That does not include the Corporation.

51 Under s 89A, various categories of decisions are reviewable matters. Among them a decision on a claim for compensation including a decision redetermining a claim under s 53(7) and s 53(7a) or a decision on a claim by the Tribunal exercising the special jurisdiction to expedite decisions under s 97B(3)(b).

52 Lastly under s 89 a "party" to a dispute means the person who lodges a Notice of Dispute ("the applicant"), the relevant compensating authority and includes the worker or the employer. The relevant compensating authority is either the Corporation by itself or its relevant delegate or, in the case of exempt employers, that exempt employer.

53 S 91 then read as follows:-

"(1) The relevant compensating authority must, on receiving a copy of a notice of dispute under this part-

(a) assign a suitable person to reconsider the disputed decision; and

(b) have the decision reconsidered in the light of the matters set out in the notice of dispute.

(3) On completion of the reconsideration, the relevant compensating authority must confirm or vary the disputed decision to conform with the result of the reconsideration and give the Registrar a written notice stating-

(b) whether the compensating authority has confirmed or varied the decision as a result of the reconsideration and, if the decision has been varied, how the decision has been varied.

(4) If the disputed decision is varied, the written notice must be given to the other parties to the dispute.

(5) The relevant compensating authority must complete the reconsideration and give notice or notices stating the result of the reconsideration within 7 days after receiving the notice of dispute or a longer time allowed by the Registrar on the authority's application.

(6) The variation of a decision under this section is not to be regarded as a redetermination of a claim."

54 The intent of the Act in light of the authorities set out above, makes one thing sufficiently clear. The compensating authority has no right or ability to lodge a Notice of Dispute under s 90.

55 Under s 91A if the dispute remains following reconsideration, the Registrar refers the matter for conciliation under Div IV. If that fails, pursuant to s 92D the Conciliator must refer the dispute into the Tribunal for arbitration or refer the dispute into the Tribunal for judicial determination. The conduct of arbitration is provided in Div V.

56 S 94 provides that if a"party" to a dispute is dissatisfied with the result of an arbitration and disputes the arbitrated determination in accordance with the rules then the matter must be resolved by judicial determination. As the Corporation is by definition a "party" (s 89), it can challenge the result of the arbitration and seek judicial determination. But what limits, if any, operate on the Corporation in invoking such a course?

57 The conduct of the hearing of the judicial determination is provided in s 94C(1) as follows:-

"In proceedings under this Division, the Tribunal must rehear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings." (our emphasis)

58 We make brief reference to s 88DA, the power of the Tribunal to enlarge the issues under consideration, s 85 the Tribunal's obligation to act in accordance with equity, good conscience and the substantial merits of the case and s 94C(2), the provisos as to the hearing and costs at judicial determination. We do so to record our attention to them.

59 In Mitsubishi Motors Australia Ltd v Harbord and Another (1997) 69 SASR 75 the exempt employer made a determination under s 53 to accept the worker's claim. Later, the worker made a further claim and asserted the incapacity resulted from the earlier accepted compensable disability. The employer rejected the further claim on the ground that the worker did not suffer the compensable disability, a decision at odds with its first determination. The worker sought review under s 96 and at that review the exempt employer changed its position to one of acceptance of the claim. Doyle CJ in his reasons for decision (79) characterised this as a fresh determination under s 96(2) of the Act as it then appeared.

60 The worker made a claim for damages for negligence. At trial in the District Court it was dismissed, the Judge not being persuaded of the occurrence of the accident as claimed by the worker.

61 The worker then made three further claims for compensation. One for weekly payments, one for medical services and one for a s 43 lump sum. These were rejected on the basis that no injury had been suffered at work. On review a Review Officer concluded that since the exempt employer had admitted liability it could not subsequently deny the worker had a compensable disability. The exempt employer issued an application for judicial review.

62 The Judge at first instance on judicial review concluded the exempt employer had done no more than admit liability to pay income maintenance and that did not constitute admission that the accident had occurred. As to the proceedings before the Review Officer that was covered by s 106A which stated "payment by the Corporation or an employer to a worker does not constitute an admission of liability or estop a subsequent denial of liability". But the Judge did not deal with the contention that on a true construction of the Act, a determination to accept the claim foreclosed debate about the occurrence of a compensable disability in the event of later proceedings or claims under the Act (81). The worker appealed to the Full Supreme Court.

63 The Court decided the matter on the Act as it was prior to Amendment No 75 of 1995 (see at 83). Doyle CJ stated (84):-

"There is no provision in the Act which deals in express terms with the consequence, in relation to a later claim for compensation, of a determination to accept a claim for compensation in respect of the compensable disability which is relied upon to support a later claim for compensation. Does the Act, by implication, provide that a determination to accept a claim prevents the decision-maker from later rejecting a claim in respect of the same compensable disability, on the grounds that the claimant did not suffer the compensable disability?"

64 His Honour then considered various features of the Act and drew conclusions as to the direction they pointed on the matter of intent. He concluded there was nothing to imply that a determination to accept in one claim lead to any imperatives on the fact finder in any subsequent claims. He stated (84):-

"Nor, to my mind, does the process of review by a review officer carry with it any implication that a determination by an exempt employer or by the Corporation has consequences beyond the claim the subject of the review. The same applies in relation to the process of appeal to the Tribunal."

65 In that context and with those comments made, the Chief Justice dealt with O'Brien v State of South Australia (above cited). He concluded the decision had to be confined in its authority to purported redetermination of an already accepted claim and not reconsideration of a totally new claim (86). This apparent distinction by the Chief Justice is quite significant. He stated:-

"... It seems to me likely that the judgments in this case are dealing only with a redetermination purporting to effect an existing entitlement to weekly payments. ..."

66 His Honour then stated his conclusion as follows (86 - 87):-

"... my conclusion is that the circumstances in which the Act operates are not such as to lead to the conclusion that Parliament must have intended that a determination to accept a claim would prevent the Corporation from later putting it in issue. I do not consider that the practical workings of the scheme of the Act are such that Parliament must have intended this as a consequence of the process of decision making.

If the statutory scheme is such that a determination to accept a claim means that the occurrence of a compensable disability can no longer be put in issue, there would seem to be no point in the enactment of s 106A. ...

Applying that reasoning, I conclude that the purpose of s 106A must have been to make it clear that the Corporation or an employer can put in issue all matters arising on a claim for compensation by a worker, notwithstanding an earlier determination to accept a claim." (our emphasis)

67 In Della Flora v Workers Rehabilitation and Compensation Corporation of South Australia (unreported) Full Supreme Court Judgment No S6691 the issue was whether a determination of a s 43 lump sum for non-economic loss attributable to a compensable disability was enforceable by civil action taken by the worker. Again the factual context of the case is instructive.

68 The Corporation made a determination related to three permanent disabilities. The employer exercised its right under s 90 and lodged a Notice of Dispute regarding that determination. Under s 91 the Corporation reconsidered and then confirmed its determination. While the next steps detailed in s 91A were in train the worker decided to execute as if the determination was a judgment debt. We presume this was to some degree tactical and in response to the employer's action.

69 The proceedings under the Act continued despite the worker's attempt to resolve it in one stroke. The arbitrator heard the matter and gave a decision affirming the Corporation's determination. The payment was then made, but despite that, the worker amended his civil proceedings to seek a declaration and the issue continued.

70 In considering the scheme of the Act in general and enforceability in particular, Doyle CJ concluded that the answer turned on whether payment could be enforced after a Notice of Dispute is lodged or alternatively the time for lodging the Notice had not expired. He concluded that the determination was not enforceable in either circumstance.

71 Before us, Mr Stanley counsel for the respondent, maintained on the basis of these two authorities and also three authorities of this Tribunal that there was nothing to prevent WorkCover shifting its position in this case.

72 We do not regard Mitsubishi v Harbord and Della Flora v WorkCover (above cited) as supporting such a conclusion. At best Mitsubishi v Harbord supports the rule that the determination of an issue on an earlier claim does not foreclose that issue on a later claim and Della Flora v WorkCover supports the proposition that once the Corporation's determination has been disputed it is the order disposing of the dispute which is enforceable, not the original determination.

73 We turn to the three Tribunal cases Mr Stanley falls back on in that event. Mr Stanley refers to McIntyre v TransAdelaide JD25/1998 as supportive of the Corporation's entitlement to change its position. That case concerned to what extent, if any, a presidential Member hearing a judicial determination was required to adopt the findings made by an arbitration officer. It concluded proceedings at the judicial level were decided without regard to the decision taken in the arbitration proceedings and little wonder. That is what s 94C(1) says. But that is not the issue before us or even helpful to the issue before us.

74 Mr Stanley referred to Falidis v Unisure Pty Ltd JD67/1998 stating it was authority that once an arbitrated determination has been disputed by the lodging of a Notice of Dispute, the Corporation is no longer bound by its original determination and is able to adopt a new position adverse to the applicant (Outline par 5).

75 In Falidis, (above cited) the insurer had made a determination accepting the worker's claim but only for a closed period. The worker lodged a Notice of Dispute and the matter was referred for reconsideration under s 91. The outcome of that process is not known but in the meantime the insurer made a redetermination under s 53(7) and s 53(7a) stating it did so on further evidence namely the opinion of Dr David Marshall. That redetermination gave the worker what he wanted in terms of ongoing weekly payments.

76 One week later the insurer purported to make a further redetermination this time reducing the weekly rate from $600 approximately per week to $460 approximately per week. The worker filed his second Notice of Dispute. The issue taken by the worker was that as a matter of law there could only be one redetermination and the second redetermination was a nullity.

"There might be a case for suggesting that a redetermination is permissible notwithstanding the lodgement of a notice of dispute, if that were the only means available by which to correct an error, but I think it follows from the decisions of Mitsubishi Motors Australia Ltd v Harbord (1997) 69 S.A.S.R. 75 and Della Flora v WorkCover (unreported delivered 26 May 1998 S6691) that a compensating authority is not bound by its original determination once a notice of dispute has been lodged and is able to adopt a position adverse to the applicant than was previously the case. ..."

78 With respect, Mitsubishi and Della Flora (above cited) do not support such a rule. As explained above, the Mitsubishi Case concerned a quite separate proceeding and whether the insurer was forbidden to put in issue the occurrence of the disability in that later claim. The Della Flora Case was concerned with enforceability.

79 The fact that the determination of the compensating authority does not create any enforceable rights until after the time limited to lodge a Notice of Dispute has expired does not mean the determination is inconsequential. S 53 is not about something to be regarded with indifference by the Corporation but rather a serious and important matter. It is the Corporation in its role as a decision maker acting conscientiously and fairly, irrespective of any interest as the insurer. Nothing in the amendments and in the new scheme has altered this legislative intent.

80 Lastly Mr Stanley relies on the decision of Grewcock v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (LD Oakley and DM Kelly) JD83/1998 for the proposition that while it is not impossible for an estoppel to arise in proceedings under the Act, a mere decision amounting to determination or redetermination of a claim or upon reconsideration of a claim cannot create an estoppel.

81 Grewcock's Case concerned a claim accepted by the Corporation and a determination of lump sum under s 43 of 2 per cent of loss of low back function. The worker filed a Notice of Dispute claiming the assessment too low. The matter was referred for reconsideration. That resulted in the claim being rejected on the basis of medical evidence that the low back condition was not a permanent disability.

82 The worker challenged the reconsideration saying on reconsideration a result more adverse could not be reached and secondly the compensating authority could only take into account the matter set out in the Notice of Dispute. That did not include an issue of liability but rather only one of quantum.

"Given that the Act is silent on the point one might then rhetorically ask: Why would a compensating authority be precluded from reconsidering the decision in a way which is adverse to the disputing party? After all, it seems settled that the determination does not create rights that are enforceable if a Notice of Dispute is lodged: Della Flora v WorkCover (supra). Moreover, if the process of reconsideration is to be a genuine a (sic) re-evaluation of the matters that are the subject of the dispute, why should the range of potential outcomes be fettered? The best that can be said is that it might be thought to be unfair that a party who has come to the Tribunal in the hope of achieving a better result has come out of it worse off than before. But provided that the disputing party knows that, there is nothing unfair about that. If in fact things could get worse, that will be a factor that the party will have to consider in deciding whether or not to lodge the Notice."

84 His Honour, after citing Falidis (above cited), makes the following statement (6):-

"... A compensating authority faced with a claim for compensation pursuant to section 43 might be minded to make a modest determination in the belief that that might dispose of the matter and not concern itself as to the issue of permanence. Faced however with the prospect of a challenge that includes an assertion that not only was the assessment too low, but also that assessments in respect of the alleged losses to other faculties were warranted, it might wish to put the question of permanence in issue. In such a case if the worker has in fact suffered permanent disabilities no doubt that will be established. If the worker has not in fact suffered permanent disabilities it does not strike me as unreasonable not to give the worker the benefit of the earlier assessment, now established to be wrong."

85 We do not agree with Mr Stanley's submissions. We do not think a determination made under s 53 should be decided upon the size of the claim made or economic considerations. The legislation does not suggest the decision maker should permit expedience to operate in the considerations of the decision maker. The legislation is plain. The Corporation shall determine the claim for compensation as expeditiously as reasonably practicable. That means due inquiry, accurate analysis and an implementation of the legal principles. There is no mandate to water down those obligations.

86 Redetermination is confined by the legislation and occurs only in appropriate cases. That is those falling within the criteria of s 53 (7a). If at the exhaustion of the s 53 process, a dispute is lodged, any alteration that occurs is a response to matters set out in the Notice of Dispute on reconsideration by a "suitable person". Although this is an internal review, that person must also act conscientiously applying an objective independent approach to the initial decision makers determination. The scheme contemplates (subs (3)) that the compensating authority will accept the result of that reconsideration. It is not an appeal. To that extent we disagree with the contention of Mr Saies employing rules that might be appropriate on an appeal: see Water Board v Moustakas [1988] HCA 12; (1988) 77 ALR 193 at 196.

87 The dilemma remains. Can the Corporation in its role as the conscientious and honest decision maker under s 53 be subverted in its capacity as a contestant? Should the Corporation in these circumstances be entitled to vacillate from one role to another? We cannot believe that this is the intent of the legislative scheme. If so it would lead to far greater abuses than posed by the contrary construction.

88 The judicial process provided in the Act (Div VI) contemplates that the matter will be dealt with in a judicial manner. The Tribunal must therefore be on guard to ensure no circumstance that could constitute an abuse of process (s 85). For instance, without due cause, to argue against its own determination or to present material that should have been presented earlier. Likewise admissions should generally not be permitted to be withdrawn: Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738. Those seem considerations applicable in these circumstances, (again s 85).

89 In the overview of the scheme of the Act, a legislative expectation is evident. The provisions give the Corporation very specific occasions to carefully review its conclusions. How can these provisions achieve their self evident purpose if the Corporation can after the last of them, namely s 91, revert to any stance it chooses? We cannot attribute such an intent to this legislation. As stated above, that would severely diminish the status of the Corporation's determinations: cf the rules detailed in Downing v Sporting Shooters Association of Australia Inc (1995) 62 IR 364.

90 Therefore we would answer the questions referred as follows:-

(1) A distinction has to be drawn between proceedings in the Tribunal in respect of the subject determination or proceedings in the Tribunal where a separate determination involving an earlier claim is sought to be relied on. In the latter case the Corporation is not bound by that earlier determination. In the former case the Corporation should be kept to the determination unless just cause is shown by the Corporation why it should depart from it viz, fraud or obvious mistake.

(2) The Corporation does have locus standi in the circumstances, but only to reiterate its position save where just cause is shown entitling it to depart from the position reached in the determination.