SAROUKAS v TIO

Motor Accidents Compensation Appeal Tribunal Martin J.
1 and 29 June 1988

Practice and Procedure - Discovery - Motor Accidents Compensation Appeal Tribunal - Whether Tribunal has power to order for further and better discovery in respect of specific documents - Supreme Court Rules mutatis mutandis apply - Motor Accident (Compensation) Act 1984 (NT) s.29A(3), Motor Accident (Compensation) Appeal Tribunal Rules, R.7, Supreme Court Rules, 0.29

Practice and Procedure - Interrogatories - Motor Accident (Compensation) Appeal Tribunal Rules silent - Supreme Court Rules mutatis mutandis apply - Supreme Court Rules 0.30

Statutory Interpretation - "Discovery" - Embraces both discovery of documents and by way of interrogatories - Motor Accident (Compensation) Appeal Tribunal Rules R.7

Cases referred to:
Public Service Board v Osmond 63 ALR 559 Statutes referred to:
Motor Accident (Compensation) Act 1984 (NT) s.29 Rules referred to:
Motor Accident (Compensation) Appeal Tribunal Rules R.7

Counsel for Plaintiff Solicitors for Plaintiff

Counsel for Defendant Solicitors for Defendant

Mr G Hiley QC Cridland & Bauer

Mr C McDonald Ward Keller

mar880031

mar880031

MOTOR ACCIDENTS COMPENSATION APPEAL TRIBUNAL
AT DARWIN
No. M2 of 1987

BETWEEN:
GEORGE SAROUKAS
Applicant

AND:
TERRITORY INSURANCE OFFICE
Respondent

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 29 June 1988)

This matter involves the interpretation of certain provisions in the Motor Accident (Compensation) Act and Motor Accident (Compensation) Appeal Tribunal Rules.

The applicant applies for an order for further and better discovery of documents.	The respondent applies for an order that the applicant file and deliver answers to interrogatories.	The power or the extent of the power of the Tribunal to make such orders is disputed.	The questions have not been previously deterrr,ined.

The applicant applied to the Board of the respondent for corr utation of benefits payable to him under the Motor Accident (Compensation) Act.	On 1 April 1987 the Board declined to determine the applicant's request and he then referred the matter to the Tribunal under s. 29 of the Act.	A hearing conducted by the Tribunal shall be a hearing de novo, that is, it is for the Tribunal to pronounce anew upon the rights of the parties as disclosed by the evidence before it.	The Tribunal is entitled to take into account any evidence before it, whether utilised by the Board or not, and whether available prior to or after the Board made its determination.	The Tribunal exercises its discretion on the information available at the hearing of the reference and the law as it then stands (Builders Licensing Board v Sperway Constructions (1976) 135 CLR 616; Dare v Dietrich
26 ALR 18).

Upon his giving notice to the Registrar instituting the reference, the applicant filed copies of a number of documents in his possession which he apparently regarded as relevant (Rule 5(1)(b) Motor Accidents (Compensation) Appeal Tribunal Rules).	The respondent gave an answer to the Registrar but did not give copies of any documents in his possession (Rule 6 (1)(b)).	A month later it filed a "List of Documents".	The applicant then issued a "Summons" seeking discovery of certain specified documents.	When the matter came before me the position was as follows:

By its answer the respondent asserted that the applicant was not entitled to any relief from the Tribunal, and that the respondent had exercised its discretion in accordance with the Act.

Further and better particulars of the claim that the applicant was not entitled to the relief sought had been given by letter dated 11 August 1987, reading:

"With regard to your request for further and better particulars of paragraph 4 of our client's answer we reply as follows:
The reasons our client denies that the applicant is entitled to the relief sought are as follows:

The Motor Accidents (Compensation) Act is intended to limit the payment of large lump sums except in exceptional circumstances and the applicants circumstances are not exceptional.
The factors to be taken into account in arriving at an appropriate figure are so inaccurate and uncertain as to make the exercise speculative and of no benefit in this particular case.

The receipt of benefits is more beneficial to the applicant than the receipt of a lump sum.

The applicant has failed to show that he is able to properly administer the fund he would receive on commutation of the respondent's liability to pay benefits."

The applicant sought further and better discovery from the respondent of:

"All documents leading to the determination of the Territory Insurance Office dated 1 April 1986 (sic).

All documents in relation to paragraphs 4 and
5 of your answer including the particulars as set out in your letter of 11 August 1987.	We assume for example there would be documents setting out the calculation showing that it is more beneficial to the applicant to receive benefits than to receive a lump sum and showing the matters upon which the Board was not satisfied that the applicant would be able to properly administer the fund.

The TIO's complete file which we take to be file no. 104404."

The respondent sought the order that the applicant file and serve Answer to Interrogatories.

I was told that this is not only the first time that the Tribunal has been asked to consider its procedural powers, but also that this is the first case to be referred to it where the Board has determined not to commute the benefits payable under s. 13, compensation for loss of earning capacity.

Section 16 of the Act provides:

"A person receiving a benefit under section 13 may, at any time, apply in writing to the Board for a lump-sum payment of that benefit.

On receiving an application under subsection (1) the Board may, at its discretion, commute at discounted present values the benefit payable to the applicant and pay the commuted amount to him.

The payment of an full discharge of of the Office and injury in respect payable."

amount under subsection (2) is a the obligation under section 13 the Board in respect of the
of which the Benefit was

I should not say much about the subject now, but there does not appear to be anything in the Act to guide the Board as to the exercise of the discretion referred to.	The Tribunal is to make such determination as the Board could have made as the Tribunal considers proper in the circumstances, having regard to the intentions of the Act, and such determination is binding on the Board (s. 29(3))_

The Board is not required to give reasons for its determination under the Act (s. 27(6)).	The reasons for a determination may not be the same as those upon which the Board may seek to rely before the Tribunal, the hearing being de novo.	In this case the respondent, in effect, provided its reasons or grounds why the Tribunal should not grant the applicant's request to commute his benefits, in the form of the further and better particulars set out above.

Nor is the Board required to give a hearing to a person seeking any determination from it (s. 27(5)), although it shall consider written submissions and in certain circumstances may invite a person to a conference (s. 27(4A)).	The Tribunal, however, is required to conduct

such hearing into the matter as it thinks fit (s. 29(3)). It seems to me, that in order to determine how it shall exercise that discretion, the Tribunal needs to know what the issues are for its determination.	The only prescribed way in which that knowledge can be imparted, is through the reference and answer to the reference (Forms 2 and 4 of the Rules).

Assuming the Tribunal may make the orders sought, the definition of issues between the parties, by means of the reference and answer (and any further particulars), serves the further useful purpose of enabling the Tribunal to consider the substance of applications of the type now under consideration.

The Judges of the Supreme Court may make rules regulating  the practice and procedure of the Tribunal (s. 29A(l)(a)), and conferring on the Tribunal additional
powers which are necessary or convenient for carrying out its functions (s. 29A(l)(d)).	Section 29A(3) provides that subject to subsection (1), the practice and procedure of the Tribunal in relation to a matter referred to it are as determined by it.	I take this to mean that in the absence of a rule of general application having been made on a particular point of practice and procedure, or the conferral of relevant additional powers, then the Tribunal may make such a determination in the exercise of its discretion in the circumstances of the particular matter.

Rule 7 provides:

"After the expiration of the time for giving an answer under rule 6, the Registrar shall fix a date for the mention of the reference before the Tribunal and shall give the parties not less than 7 days notice of the date so fixed.

At a mention before the Tribunal referred to in subrule (1), the Tribunal may give such directions as in its opinion are expedient for the speedy and inexpensive determination of the reference including, but not limited to any or all of the following -

dispensing with compliance, either in whole or in part, with the provisions of the Evidence Act and the rules of evidence at common law;

requiring further particulars of the reference or answer to be provided;

ordering the delivery of an answer in accordance with rule 6 to the reference;
ordering mutual discoveries and inspection within a specified time;
settling the issues for the hearing of the reference;
requiring a party who is injured as the result of an accident to submit himself for a medical examination;
fixing a date for further mention of the reference before the Tribunal;

ordering that the hearing of the reference be by way of affidavit or oral evidence; or
(j)	fixing a date for hearing of the reference."

There has been a conferral of additional powers, by the Rules, in the power to issue practice directions
(Rule 15), but none have issued.

These applications did not come before the Tribunal through the procedure provided for in Rule 7(1), but no objection was taken on that account.	Since it might be thought that the Tribunal only has jurisdiction to give directions at a mention consequent upon the Registrar fixing a date for that purpose, the Tribunal dispenses with compliance with that requirement (Rule 4(3)).	Given the broad scope of the Tribunal's powers, its discretions, and the variety of matters which might be referred to it, it would be better, in each case, that the prescribed procedure be adopted.	It has the distinct advantage of focusing the attention of the parties on the directions which might be given, and of enabling the Tribunal to regulate what is to be done prior to and at the hearing, before the commencement of the hearing.	It is not necessary that a surr@ons or any other process be taken out to invoke the Tribunal's jurisdiction under R. 7, nor do I think that, as a general rule, parties to a reference would need to file affidavits on that directions mention.	However, parties should not come to that mention without having notified each other of the orders which they respectively seek and endeavouring to reach agreement beforehand.	In the absence of agreement the Tribunal will give a direction.	The Tribunal would undoubtedly be assisted if draft minutes of the orders sought, by consent or otherwise, were filed prior to the directions hearing or, at least, handed up at the
commencement of it.

Turning to the specific issue before the Tribunal on this occasion, I have no doubt that the Tribunal has power to make orders for discovery, both of documents and by way of interrogatories.	Rule 7(2)(d) provides for orders for "mutual discoveries and inspection within a specified time".	It was argued on behalf of the applicant, in opposition to the application made by the respondent, that that rule was limited to the making of an order for discovery of documents, and reliance was placed on the use of the words "and inspection".	I do not think that is right.	"Discovery" is commonly used as a general word
err racing both discovery of documents and by way of interrogatories.	(See generally Williams, -  "Supreme Court Civil Procedure - Victoria" Chapter 15 pp 183-186 and O'Leary and Hogan "Principles of Practice and Procedure
para 20.102).	The use of the word "discoveries" in the rule is intended to show that both types of discovery are embraced by it.	The reference to "inspection" is consistent with the common practice or order consequent upon an order for discovery of documents.	Even if I be wrong in that, the other provisions of the Act and Rules, provide ample jurisdiction to make an order for interrogatories, if appropriate (especially s. 29A(3) and the opening words in Rule7(2)).

However, the Rules do not provide how or when interrogatories may be administered nor ancillary questions

dealt with.	That defect, I consider, is best remedied in this case if it were ordered that the provisions by O. 30 of the Supreme Court Rules shall mutatis mutandis apply.		Draft interrogatories for the examination of the applicant were produced to the Tribunal but it was indicated that the respondent may not wish to pursue the whole of them.	In those circumstances, the adoption of the procedures under
0. 30 would enable the respondent to rethink its position, without the Tribunal having to now rule on the objections which might be taken to the original draft.

That is not to say that in all cases the Tribunal would order that a party be at liberty to administer interrogatories.	That is the first step and is to be resolved at the mention for directions.	If so ordered, however, the procedure under O. 30 seems to be appropriate with the ultimate power in the Tribunal to order answers or further answers (R. 30.09).

It was not argued by the respondent that the Tribunal did not have power to order discovery and inspection of documents.	For the reasons given, the Tribunal has such power.	The respondent has already provided discovery and inspection of certain documents voluntarily.	It objected, however, to the making of an order for further and better discovery in respect of the documents specified by the applicant.	That objection is

twofold, going primarily to policy as disclosed by the Act and secondly to the particular discovery sought.

As to policy, reliance was placed upon s. 26(6) of the Act which provides that neither the General Manager nor the Board is required to give reasons for his or its decisions under the Act.	That reflects the position at
co mon law (Public Service Board v Osmond 63 ALR 559), but it means no more than what it says.	It does not prohibit the giving of reasons if the General Manager or the Board saw fit to do so, nor does it expressly or by any implication, protect from discovery any documents in possession of the General Manager or the Board which would be discoverable in the ordinary course.	In any event, the Board may not be constrained to rely on the matters it took into consideration when making its decision, on a hearing de novo before the Tribunal.

As already mentioned, once a referral is made to this Tribunal the answer to the reference should disclose why the Board opposes the Tribunal making a decision contrary to that made by the Board.	That being done, the issues between the applicant and respondent, thought by them to be relevant, become apparent.

The Tribunal can then consider whether or not discovery of documents and inspection should be ordered at

the directions hearing.	Such discovery does not follow as a matter of course, except in so far as is required by
R. 6.l(b).		The Tribunal should maintain its control over the procedures and in doing so would, no doubt, be mindful of costs.	But, as with interrogatories, if discovery and inspection is ordered the Rules do not provide how it is to be carried out.	Again, I consider it would be appropriate to order that the provisions of the Supreme Court Rules relating to Discovery and Inspection of Document (O. 29) mutatis mutandis apply.

Such a course being adopted, the Supreme Court Rules to which reference is made, limit the discoveries as to interrogatories to those "relating to any question between (the parties) in the proceedings" (R. 32(2)) and as to documents "which are or have been in (the parties) possession relating to any question raised by the pleadings", (R. 29(2)).

I have already ruled that the Tribunal has jurisdiction to make orders in relation to interrogatories and discovery and inspection of documents.	The suestion now is, should such orders be made in this matter?

The Board's determination was made over 12 months ago.	There may have been changes in the circumstances of the applicant in the meantime of which the Board is not

aware.	It should no more be taken by surprise upon the hearing in regard to such matters than should the applicant, by being faced with an argument, in support of a submission to refuse to grant his request for commutation, of which he had not previously been made aware.

The duty of the Tribunal is to stand in the place of the Board, as if the Board was considering the matter, the subject of the referral, at the time the reference is heard by the Tribunal.

In this matter, the applicant was rendered quadriplegic by the events which led to his being entitled to compensation for loss of earning capacity.	He is a young man and commutation of those benefits to a lump sum involves a large amount of money.	The Board is entitled to know, in advance of the hearing, what the circumstances of the applicant are at the relevant time.	In this case, I consider that interrogation of the applicant is justified but, of course, limited to the issues raised on the reference, answer and particulars.

Similarly, the applicant is entitled to discovery and inspection of all documents which are or have been in the possession of the respondent relating to the questions raised on the reference, answer and particulars, whether those documents came into existence before or after the

Board made its decision.	That is, of course, subject to the usual objections, but is not subject to objection upon the ground that such discovery is in any way limited by the exemption of the Board from giving reasons for its decision.

In preparing these reasons I have taken into account the obligation on the Tribunal to give such directions as in its opinion are expedient for the speedy and inexpensive determination of the reference (R. 7(2)). It may well be that in other references the directions may be quite different.	The advantage of the Rule is that the Tribunal may tailor its directions to the circumstances of each reference, rather than allowing possibly inexpedient, slow and expensive procedures to be adopted by the parties. It is clear that the Tribunal is to regulate the conduct of pre-hearing procedures and the hearing itself, bearing in mind the objectives of the power to give directions.	Those
objectives should not be forgotten and regard should be paid to Rules 11(4) and 11(5) relating to costs.

I have taken this opportunity to diverge somewhat from the matters strictly required to be determined, since both parties indicated that some general guidance might be helpful. The views expressed are mine alone.

I will hear counsel as to the orders to be made, taking intc account what I have said.