Background

6.1 As we have mentioned, the Court Bill provides that proceedings before a Commissioner shall be conducted with as little formality and technicality as the proper consideration of the matter before the commissioner permits.¹ This may be consistent with a desire for speedy adjudication of disputes and the use of unqualified advocates but, as we mention later, it is not necessarily consistent with an exercise of judicial power.

Submissions

6.2 The Chairman of the Workers’ Compensation Commission, in the first of his submissions,² suggested that the purpose of the provision would appear to be to induce the parties to endeavour to resolve what can be resolved expeditiously by agreement and final award, leaving only substantial matters for contest. It was suggested that the proposed appeal provisions would frustrate this intention.

6.3 The Legal Panel for the Labor Council of New South Wales, in its submission³ welcomed the proposal in principle, but suggested there were dangers as well as benefits associated with informal proceedings before commissioners. It inquired as to the guidelines which would be employed in practice and stressed the importance of ensuring that justice continued to appear to be done as well as ensuring that it was done. The Legal Panel stated that it would be necessary to ensure that commissioners’ findings in informal proceedings did not give rise to an estoppel.

6.4 In his submission, Mr. Joseph, Barrister,⁴ observed that while the objective of informality could be applauded, the Court Bill adopted the wrong means to achieve this end. It was suggested that informality could be achieved by other means such as the abolition of court dress for barristers. It was also pointed out that formality is often of benefit in the presentation of cases, especially when lay witnesses are giving evidence.

6.5 The Compensation Department of the Labor Council of New South Wales, in its submission⁵ suggested that unless the appeal procedures concerning decisions of commissioners are altered, it would not be possible for proceedings to be conducted in an informal manner. No responsible solicitor would adopt such an approach as the worker whose case was involved would be bound by the evidence presented to the commissioner.

6.6 It is apparent that those who made submissions on this topic had very different ideas about what was meant by informality.

Issues Involved

6.7 The Act, from its inception, provided that the Commission should not be bound to follow strict legal precedent.⁶ It further provided that no award, order or proceeding of the Commission should be vitiated by reason of any informality or want of form.⁷ However, the supervisory jurisdiction given to the Supreme Court in relation to questions of law and in relation to the admission or rejection of evidence⁸ has operated to impose upon the Commission the binding force of legal precedent and compliance with the rules of evidence.⁹

revisions, The original provisions, both as to procedure and appeal are repeated in the Bill,¹⁰ and would be construed by the appellate courts in the same way. To these provisions there is added the requirement that proceedings before a commissioner should be conducted with as little formality and technicality as possible.¹¹ However, the right of appeal to the Supreme Court on a question of law or on a question of admission or rejection of evidence applies to a commissioner when sitting as the court as much as to a judge. A commissioner would therefore be bound by legal principle, legal precedent and by the rules of evidence when deciding a disputed claim for compensation, however minor or uncomplicated the case might appear to be. It follows that the objective of informality in anything more than form would not be achieved in proceedings before commissioners who are required to act judicially.

6.8 In rejecting the alternative that commissioners should proceed by way of conciliation or by way of informal adjudication on whatever materials were quickly available, whilst preserving the right of determination by a judge, those responsible for the Bill have no doubt had regard to the obvious duplication of work and attendant cost which this alternative would involve. That is not to say that there is no place for conciliation. The Amendment Bill gives the Board a conciliation function¹² which may prove to be an effective tool, without imposing the process on a large body of claims unselectively.

6.9 There is some limited scope for reducing formality under the Bill as presently framed, such as by dispensing with robes or by the provision of a conference room venue rather than a courtroom. If such provisions were thought to be desirable, they could be effected by rules of court or administrative edict. However, consistency dictates that the same considerations should apply to judges as to commissioners when performing the same functions, as with judges and masters in the Supreme Court.

6.10 We do not oppose in principle the informal and non-technical determination of compensation rights. There is much to be said for the view that compensation for injured workers should be a simple matter, that legalism should be reduced, and that proceedings for the determination of compensation rights should be informal and non-technical. We are conscious of this view and in our consideration of compensation arrangements for accident victims generally, including work-related injury, it may be that recommendations will ultimately be made to revise the criteria governing entitlement to compensation and the administration of compensation laws, such that it would then be practicable for rights to be determined in a more informal way.

Summary

6.11 As we do not, at present, recommend the appointment of commissioners, we do not make any recommendation as to a relaxation of formality in proceedings before them. Depending on further consideration of the function they might perform, it may be possible to formulate procedures which would achieve the objective of informality. We accept that this objective has sufficient merit and support from commentators to warrant careful examination, but recommendations must await further resolution of the role which commissioners would perform.

FOOTNOTES

1. Court Bill, cl.26(l).

2. Schedule: Item 18.

3. Schedule: Item 22.

4. Schedule: Item 31.

5. Schedule: Item 34.

6. The Act, s.36(3).

7. The Act, s.37(l).

8. The Act, s.37(4).

9. Burns v. Knott (1926) 1 W.C.R. 17; Deigman v. State Coal Mines(1956) 30 W.C.R. 169; Waide v. Smith’s General Contracting Pty. Ltd., 5 August 1977, Supreme Court of New SouthWales, Court of Appeal.

10. Court Bill, cll.17, 33.

11. Court Bill, cl.26(l).

12. Amendment Bill, Schedule 6(2), cl.38A.