Swanson v Northern Territory of Australia [2007] NTCA 4

PARTIES: SWANSON, KENNETH DON

v

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 12 of 2006

DELIVERED: 25 JULY 2007

HEARING DATES: 4, 5 JUNE 2007

JUDGMENT OF: ANGEL, MILDREN and SOUTHWOOD JJ

APPEAL FROM: MARTIN (BR) CJ delivered 16 NOVEMBER 2006 [2006] NTSC 88

REPRESENTATION:

Counsel:
Appellant: M Doyle
Respondent: J Tippett QC

Solicitors:
Appellant: Povey Stirk
Respondent: Collier Deane

Judgment category classification: C
Judgment ID Number: Ang200708
Number of pages: 13


IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Swanson v Northern Territory of Australia [2007] NTCA 4
No. AP 12 of 2006

BETWEEN:

KENNETH DON SWANSON
Appellant

AND:

NORTHERN TERRITORY OF AUSTRALIA
Respondent

CORAM: ANGEL, MILDREN and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 25 July 2007)

ANGEL J:
[1] This appeal should be dismissed with costs for the reasons given by Mildren J.


[2] As to Ground 2 of the appeal, the question was whether reasonable administrative action taken by the school’s Acting Principal in connection with the appellant’s employment caused the appellant’s injuries. Whilst this was ultimately a question of fact, as Lord Hoffman said in Environmental Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 31 E–H:


“… one cannot give a commonsense answer to a question of causation for the purposes of attributing responsibility under some rule without knowing the purpose and scope of the rule …
Before answering questions about causation, it is therefore first necessary to identify the scope of the relevant rule. This is not a question of commonsense fact; it is a question of law”.


[3] The relevant rule in the present case is the definition of “injury” in s 3(1) of the Act. The case involved a question of statutory construction, having regard to the policy of the Act. Was the Acting Principal’s conduct reasonable administrative action in connection with the appellant’s employment? Plainly it was. Procedural fairness required that as a matter of reasonable administrative practice any allegation of misconduct by a teacher with respect to students should be brought to the attention of the teacher concerned to enable that teacher to respond. Clearly any such action could cause some degree of stress and the statutory immunity of an employer from responsibility for any adverse consequences is intended to encourage fairness and frankness in the workplace and discourage suppression, where grievances might fester unresolved.


[4] The immediate cause of the appellant’s injury was and was found to be the relaying of the students’ complaints to the appellant by the Acting Principal of the school. It was the fact of relaying the complaints not the mode of relaying them that caused the appellant’s injury. The complaints were not relayed to the appellant by anyone else or by any other means. The Acting Principal’s action in relaying the complaints was rightly conceded at the trial and before this Court to be reasonable administrative action in connection with the appellant’s employment in the circumstances. The students’ complaints themselves – unrelayed to the appellant – were not another cause independent of the school’s administrative action. No other discrete cause of the appellant’s injury was either pleaded or established on the evidence.

Mildren J:
[5] This is an appeal from the decision of Martin (BR) CJ who dismissed an appeal by the appellant worker from a decision of the Work Health Court. The grounds of appeal to this Court are, first that the Chief Justice erred in law in failing to find that the learned Magistrate had failed to afford the appellant natural justice in the conduct of the hearing, and second, that his Honour erred in law in upholding the learned Magistrate’s finding that the appellant’s injury was not a compensable injury under the Work Health Act because the injury resulted from the respondent’s reasonable administrative action taken in connection with the worker’s employment (see the definition of “injury” in s 3(1) of the Act).


Background
[6] The appellant is a fully qualified high school teacher and from January 1986 was employed as such by the respondent. In February 2001, he was employed at a high school in Alice Springs. Information was received by staff at the school concerning an allegation of misconduct by the appellant in the course of his duties as a teacher. On 27 February 2001 the Assistant Principal, Mr Peter Swan, spoke with the appellant concerning the allegations. The allegations in the meantime had been put into writing.


[7] At the time of this meeting the Principal was absent from the school and it is not in contest that Mr Swan was acting within the scope of his duties as the Assistant Principal. Mr Swan told the appellant about the nature of the allegations which had been made. The allegation was essentially that the appellant, who was teaching dancing at the time, touched the girls on the shoulder and was trying to look down their tops. Mr Swan who had had the benefit of receiving information from another teacher who had spoken to the girls advised the appellant that he felt that nothing untoward had occurred, but that he should be aware of the nature of the complaints that had been raised and he suggested that the appellant not put himself in a position of compromise with respect to these students in the future. He offered the appellant the opportunity of looking at the letters, but the appellant said that he did not wish to look at them. Mr Swan’s evidence was that the purpose of the meeting was to let the appellant know about the allegations and to suggest that the appellant make sure that he took protective measures in the future. He told the appellant that there would be no enquiry about the matter as there was no basis for one. The appellant said to him, “Thank you for letting me know” and then left the office.


[8] Following that conversation the appellant sought medical treatment and was certified unfit for work. The appellant claimed to have suffered a work related injury, namely, an adjustment disorder with anxiety. The appellant sought medical treatment and was certified unfit for work. A claim for compensation pursuant to the Act was accepted by the respondent. Commencing on 27 February 2001 weekly payments were made to the appellant pursuant to the provisions of the Act on the basis of total incapacity.


[9] On 30 May 2002 the respondent served on the appellant a notice pursuant to s 69 of the Act cancelling compensation payments on the ground that the appellant was no longer incapacitated for work. The notice was effective from 14 June 2002. From that decision the appellant brought proceedings in the Work Health Court. The initial claim was a purported appeal from the decision to suspend the appellant’s entitlements under the legislation, but in addition the claim was widened to include other relief.


[10] Subsequently, on 12 April 2005 the appellant filed an Amended Particulars of Claim. Although the pleading purported to appeal the decision to cancel payments of the compensation pursuant to s 69 of the Act, the appellant also sought additional relief including orders that the appellant receive such other benefits including treatment and rehabilitation expenses as may arise.


[11] On 28 July 2005, the respondent filed an Amended Defence and Counterclaim seeking a declaration that the worker did not suffer a compensable injury under the Act because any mental injury which he sustained was the result of reasonable administrative or disciplinary action and therefore was not compensable pursuant to the provisions of the Work Health Act. No application at that stage was made to the Court to strike out the counterclaim. On 26 August 2005, three days before the hearing, the appellant filed a Reply objecting to so much of the pleadings as raised allegations which are not relevant to the notice of cancellation pursuant to s 69 of the Work Health Act which were the subject of the worker’s appeal. As became subsequently apparent at the hearing, the appellant decided to take the position that the matter before the Court was limited to an appeal under s 69 of the Act and that the broader grounds raised by the respondent in its Defence and Counterclaim could not be entertained.


[12] The matter came on for hearing in the Work Health Court on 29 August 2005. Senior counsel for the employer accepted that he was dux litis in both the appeal brought by the appellant and also on the matters raised by the counterclaim and commenced to open his case. During the course of that opening, Mr Waters QC, senior counsel for the worker, objected to the course that was proposed to be taken by the employer’s counsel because he was not confining the case to an appeal under s 69 of the Act. The notice of cancellation given by the employer was based on the sole ground that the worker ceased to be incapacitated as a result of his work related injury and was accompanied by a medical certificate to this effect as required by s 69(3). Thus, the worker’s appeal was confined to that issue and it was not open to the employer to rely on other grounds and, in particular, to agitate whether the worker’s original injury was non-compensable, unless the worker widened the proceedings from a strict appeal by his pleadings, or the employer brought a separate claim seeking an order to that effect or raised that issue by lodging a counterclaim: see Disability Services of Central Australia v Regan (1998) 8 NTLR 73 at 75-76. Mr Waters QC submitted that the matter of whether the injury was non-compensable had not been raised with any of the medical experts up until then and that the hearing of the matters raised in the counterclaim should be put off until another day. He also indicated to the Court that he would not be going into evidence on the question of whether or not there was a compensable injury and complained of being ambushed. No formal or informal application was made by Mr Waters QC for the whole proceedings to be adjourned, but the thrust of his submission was that the counterclaim should be adjourned, although he made no formal application to that effect and there was none of the usual discussion between counsel and the Court which normally takes place when the Court is considering an adjournment application. Counsel for the employer submitted that the issue had been properly raised in the Defence and Counterclaim and that he was ready to proceed. Mr Waters QC further submitted that the counterclaim was not a proper counterclaim and that the employer was trying to justify stopping payments on a ground not set out in the s 69 notice and that evidence going to that issue was inadmissible. The learned Magistrate did not rule on Mr Waters’ objections but decided to hear evidence de bene esse and rule later on whether any of the evidence going beyond the worker’s appeal would be admitted. Notwithstanding that that was the course which the learned Magistrate had decided to take, counsel for the worker still declined to cross-examine the witnesses because he felt were he to do so he would be widening the inquiry.


[13] Subsequently, the learned Magistrate indicated to counsel for the employer that she had been considering the matters raised by counsel for the worker and that she may not allow the witnesses to give evidence beyond the matters raised by the appeal, and she invited counsel to raise the matter with her again. Thereafter evidence was taken from other witnesses and the matter was not raised again by either counsel either that day or the following day.


[14] On 30 August 2005, counsel for the worker seems to have had a change of heart as he in fact cross-examined a medical expert called by the employer in order to show that the injury was not the result of administrative action, but was due to a separate cause. Thereafter the matter proceeded on 31 August when the employer closed its case. When counsel for the worker was called upon he said that the worker would lead no evidence and that he was happy for the matter to proceed from there. Counsel then made submissions covering both aspects of the claim and the counterclaim.


[15] At the end of submissions by counsel for the employer, counsel for the worker indicated that he would not address a submission which had been put by the employer as to the reason why the claim had been initially accepted saying that he would take his chances that it did not form any substance of any reasonable administrative action that the Magistrate might find in respect of the matter. Again there was no request for an adjournment and there was no indication from counsel for the worker that he felt that he was unable to deal with the issues as raised by the employer in the counterclaim although he did submit that the only issue that was really open or in fairness should be open was the question raised by the s 69 appeal. Notwithstanding that, counsel for the worker argued that the counterclaim was invalid because it had not gone through the process of mediation and that the Rule which permitted a counterclaim to be filed was invalid. Further, he addressed the Court on whether or not the worker’s injury was, on the evidence, the result of reasonable administrative action.


[16] The learned Chief Justice found that, notwithstanding the possibility that the Magistrate might find that the pleadings went beyond the cancellation of payments pursuant to s 69 and enabled the respondent to resist the appeal on grounds unrelated to s 69 including the ground that the injury was not a compensable injury, counsel for the appellant made a forensic choice not to cross-examine the respondent’s witnesses with respect to the wider issues. His Honour found that it was open to counsel for the appellant either to proceed in the manner chosen or to request rulings on the objections before any evidence was called or, at the latest, at the conclusion of the evidence for the respondent.


Was the appellant denied natural justice?

[17] The overall impression that I have on reading the transcript is that the worker’s counsel made a forensic choice not to seek an adjournment and not to press for a ruling, but to deal with the matter by relying on his submissions as to the validity of the counterclaim and his submissions that the employer’s evidence did not establish that the injury was not a compensable injury. It is to be noted that in the hearing before the Chief Justice there was no affidavit by senior counsel for the worker at trial to the effect that he understood that the Work Health Court would rule on the admissibility of the employer’s evidence and then give to him a further opportunity to call evidence or to have the employer’s witnesses recalled for further cross-examination if he chose to do so. Indeed, Mr Waters QC appeared as counsel for the worker at the hearing of the appeal before the Chief Justice. There is no suggestion in the reasons of the Chief Justice that counsel made any such submission to him and there was no attempt to put any affidavit from senior counsel before us on this appeal. The finding that Mr Waters QC made a forensic decision to deal with the issues in the manner he did was reasonably open to the Chief Justice and has not been demonstrated to be wrong.


[18] Counsel for the appellant, Mr Doyle, submitted that the learned Magistrate was under a duty not to proceed to determine the issues outside of the cancellation issue until she had ruled on the admissibility of evidence relevant to the counterclaim, relying on my decision in Prime v Colliers International (NT) Pty Ltd [2006] NTSC 83. However, that was a vastly different situation from what arose here. In Prime’s case, the Magistrate entered summary judgment against the worker because the matter on which the worker relied had not been pleaded by the worker. I held in that case that it was not necessary for the worker to plead that matter; but I dealt with the matter also on the possibility that the Court (1) was entitled to insist on the worker formalising his application in any way the Court required it; and (2) if the Court required the worker to amend his pleading, it should have made this clear to the worker. I said, at [33]:


“It is well established that neither a Court nor a Tribunal should decide matters which are of importance to the outcome of proceedings unless the party concerned is on notice and has been given an opportunity to be heard. If notice has not been given by the other party, it is the duty of the Court or Tribunal concerned to ensure that it does not proceed in the absence of such notice: see R v Lewis (1988) 78 ALR 477 at 481; Fletcher & Ors v Federal Commissioner of Taxation (1988) 84 ALR 295 at 308-310.”


[19] However, in this case Mr Waters QC was on notice and decided, no doubt for good forensic reasons, to deal with the case in the manner he did.


[20] I would therefore dismiss ground 1 of the appeal.


Ground 2
[21] As to ground 2, Mr Doyle submitted that the learned Magistrate erred in not considering whether or not there was another independent cause of the injury to the worker. In his submission, if the mental injury was caused by the fact that a complaint was made by the girls, this was either the true cause of the injury or, alternatively, an independent cause of the injury. In support of this submission, Mr Doyle relied upon the decision of this Court in Rivard v Northern Territory of Australia (1999) 129 NTR 1. In my opinion this ground cannot succeed. To the extent there was psychiatric or other evidence which suggested the possibility of another cause other than the reasonable administrative action of the employer for the worker’s mental injury, it was not supported by any evidence from the worker. On the contrary there was evidence before the learned Magistrate that the true cause of the injury was the result of the meeting which the worker had with the Assistant Principal, Mr Swan, on 27 February 2001. The learned Magistrate noted that the worker stopped work at 10:15 AM on 27 February 2001 and this was the time when, according to the claim form, the injury occurred. This was consistent with the time of the meeting with the Assistant Principal. Moreover the appellant himself had pleaded in both the original Particulars of Claim and in the Amended Particulars of Claim that the injury he suffered was as a result of being informed of the allegations by the Assistant Principal. In the absence of any evidence from the worker as to the existence of some other cause, it was open to the learned Magistrate to find as a fact that the appellant’s injury was the result of reasonable administrative action by the employer. Appeals to the Supreme Court from the Work Health Court are limited to questions of law and it is not open to an appellate court to entertain an appeal based on a finding of fact unless the factual finding can be attacked as an error of law. In the absence of any evidence from the worker on this issue it cannot be said that the learned Magistrate’s findings of fact were vitiated by any legal error.


Conclusion
[22] In conclusion I would dismiss the appeal with costs.

Southwood J:
[23] I agree with the Reasons for Decision of Mildren J. The appeal should be dismissed.