Mr Bennett QC. [A] year ago when the Court last sat in South Australia, it decided the case of Stead v State Government Insurance Commission and, in that case, it decided that where a judge gives an indication to counsel that he does not wish to hear him on a particular point, and then decides against counsel on that point or a Tribunal does the same thing, there is a denial of natural justice which must be remedied if the party has thereby lost the possibility of successfully winning on that issue.

This case seeks to take that decision one step further. The issue here is where the other party says that issue is conceded. The Tribunal says nothing and the first party thereupon makes no submissions. It fails to cross-examine. It fails to conduct the case on that basis and the issue is not raised in argument and the Tribunal then decides the case on that issue, and the important point in this case is whether Stead's case extends to that situation and we submit it does. ...

WILSON J. So, he should have - you see, you are assuming that the Tribunal was in the position to anticipate the way in which it would see the totality of the evidence in the submission when it came to consider and prepare its decision and to know in advance just whether or not that Guide might be found helpful. I suppose your submission must go to the further stage if, in the event when he is simply being content to remain mute when counsel are putting their submission because he is not then in a position to express any view, he should suspend the consideration of his decision and reconvene a hearing and tell the parties, 'Well, I think I might find the Guide helpful'.

Mr Bennett QC. Well, Your Honour, he can call for a written submission as he did before in this tribunal but, of course, Your Honour, he is in the same position as a judge who has said to counsel, 'I do not want to hear you on that.' If, when he is considering his decision he forms the view ...

WILSON J. Oh, but when he says that, he is expressing a distinct view of his mind at that time, but a tribunal that merely allows the counsel for both parties to say whatever they are minded to say concerning the Guide and to take it under advisement is a very different thing.

Mr Bennett QC. Yes, Your Honour, it is the next step, it is the step which, we would submit, should be taken and the reason it should be taken is a reason which, really is fundamental to the efficiency of the administration of justice and that is this: that if one side concedes something, it is in the interests of justice that, in that situation, counsel should be silent and say, 'Well, that point is conceded. I do not need to address on that.' And if the Tribunal sees a possibility that it should say so, then, in my respectful submission ...

DAWSON J. It may not be able to, and what you are saying would mean that the tribunal was confined to the ground which the parties marked out, even if ultimately, it found itself in a position not able to accept that as the ground.

Mr Bennett QC. Might I just show Your Honours the new Guide which is referred to just to show Your Honours how difficult this is to apply. If Your Honours go to page 22, what happened in this case was the tribunal said, as I will show Your Honours in a moment, 'We have had regard to Table 10.' Table 10 is, in fact, a number of tables, but what one does is one goes to that first table of binaural hearing loss and, if one has a 100 per cent loss of binaural hearing, that is 50 per cent impairment. So, just stopping there, this is not an expert medical document. This is an arbitrary set of figures laid down for the purposes of assessing claims under a statute. ... Table 10 on its own, which seems to be all the Tribunal referred to, is completely misleading. If one looks at Table 10.1 on page 22, unless one goes through the whole process, one looks at that and says, 'a person who has a 100 per cent loss of binaural hearing has a 50 per cent impairment.' Now, that statement is obviously on its face, with respect, complete nonsense. What this table does is lay down a set of arbitrary scales, reducing by half the value of certain types of loss and then puts that into a formula with something else to reach an ultimate number. But for a tribunal to say, 'we are assessing loss of hearing, he has 100 per cent loss, so we count that as 50 per cent,' would be a complete misuse of it.

DAWSON J. No, but what you were trying to say was that a 100 per cent loss of hearing cannot be 50 pre cent impairment. You took impairment to mean impairment in hearing, and that is not what that table means. Impairment means 'impairment in', as it says on page 1: 'an appraisal of the nature and extent of the individual's injury or disease as it affects personal efficiency in the activities of daily living.' It is quite a different thing.

[The Court did not call on Mrs Fleming to present argument.]

WILSON J. [delivering the judgment of the Court] In this case, the Court is not persuaded that there is any matter of general importance to warrant the grant of special leave.

ORDER: Special leave refused with costs.