RANDELL v MACAM RUBBER PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and CLARKE JJA 13 April 1988, 13 April 1988 [1988] NSWCA 126 Appeal from Compensation Court — Evidence to establish bias wrongly excluded — Error of law — Not necessary for appellant to show what would be answers to rejected questions — Not sufficient that judge may have decided as he did in the absence of the evidence of the witness attacked — Appeal upheld with costs — Proceeding returned to Compensation Court. ORDERS 1. Appeal allowed. 2. Award set aside. 3. Matter remitted to the Compensation Court. 4. Respondents to pay appellant's costs of appeal. 5. Respondents, if qualified, to have a certificate under the Suitors' Fund Act in respect of costs of the appeal. Mahoney JA The worker in this appeal had taken proceedings against the two respondents in respect of compensation. The proceedings in the Compensation Court were commenced on 29 August 1984. The worker claimed that he was injured on at least two occasions and as far as is presently relevant was incapacitated between 14 August and 19 November 1984. The learned judge appears to have held that there were relevant injuries; it is not necessary to pursue the details of them. However, he did not accept that the worker was incapacitated during the period in respect of which he made the claim. The learned judge, in deciding against the worker, appears to have relied in part upon the evidence given by a Mr Lynch. Counsel for the worker sought to obtain evidence from the worker and he would have obtained evidence from his wife as to what had passed between Mr Lynch and the worker. The suggestion was that Mr Lynch was, for reasons which need not be pursued, biased against the worker. The learned judge refused to allow the evidence. Mr Sperling, who has argued the matter for the respondents, has indicated that the court may proceed on the basis that the learned judge was wrong, and that he should have allowed the questions to be asked. The question therefore arises as to what this Court should do. If it is accepted that the learned judge was wrong in refusing to allow to be asked the question which was indicated by counsel, then ordinarily this Court would return the matter to the Compensation Court to be dealt with according to law. However, the argument has been put (I state the matter in broad terms) that this should not be done for two reasons: firstly, because to send it back would do no good; and, secondly, because it does not appear from the evidence what answers would have been given by the worker and/or his wife to the questions which were to be pursued. In relation to the first matter, the argument put by Mr Sperling was, of course, more precise and detailed. Mr Sperling put that, having regard to the evidence as it emerged and to the form of the judgment of the learned judge, it was apparent that the person in question, Mr Lynch, was not relied upon or perhaps was not the main person relied upon by the learned judge in deciding as he did. 2 UNREPORTED JUDGMENTS The learned judge clearly rejected the evidence of the worker. He did so, so far as Mr Lynch and the evidence he gave was concerned, because he concluded, I think, that during the period in question the worker had been engaged in work which was described by Mr Lynch and was, to put the matter generally, inconsistent with the worker being incapacitated as he claimed he was. In my opinion, it is clear from the evidence and from the judgment that, in deciding as he did, his Honour based himself upon the evidence of Mr Lynch. The relevant portions in the learned judge's judgment are as follows: "In the meantime whilst on compensation the applicant met a Mr Lynch who had sold him an air conditioner for his house. That was not a new air conditioner. Mr Lynch had repaired the machine or inserted new parts and gave some sort of guarantee to the applicant in relation to its performance However the air conditioner continued to give the applicant trouble and Mr Lynch came to the applicant's house on a number of occasions. On one occasion it was removed from the applicant's wall and taken to Mr Lynch's premises where repairs were carried out. On another occasion Mr Lynch claims that the applicant brought the air conditioner back to his place for repairs. The air conditioner was purchased on 6 February 1984 and the docket is exhibit E. Some time in March 1984 Mr Lynch told the applicant that he was replacing his fence with an aluminium fence and would he like to have some work in assisting him to put up this fence. He knew the applicant was unemployed at the time. The applicant agreed to assist with the erection of this fence. It is at this point that the evidence as to what the applicant performed for Mr Lynch and how long he worked for him and how much was paid became a complete conflict between the applicant and Mr Lynch. The applicant's air conditioner caused so much trouble that later in 1984 the applicant and his wife took Mr Lynch to the Consumer Affairs Tribunal and it was suggested that as a result of those proceedings Mr Lynch brought certain matters to the attention of Manufacturers Mutual Insurance Limited who have been paying as I said workers' compensation payments to the applicant up until August of 1984. An investigator was sent out to see Mr Lynch and also his next door neighbour Mr Hart. Mr Hart has since moved to Melbourne and came up from Melbourne to give evidence before his Honour Judge Freeman on 13 August 1986. The applicant first of all said that he only worked for Mr Lynch for two or three days and all he did was hold a post while Mr Lynch bolted the aluminium panel. Mr Lynch on the other hand said that the applicant persisted in the dismantling of the old wooden fence, stacking the palings into a trailer so that the same could be taken to the tip later, breaking up concrete at the base of those old posts with a sledge hammer, using a post-hole digger to make holes for the new fence, carrying panels of the new aluminium fence, all of which the applicant denied in cross-examination. He even denied the financial arrangement which Mr Lynch said was made, namely that the applicant would work for him for $40 a day, but when it transpired that the applicant did not want to start until 10.30 because he wanted to take his children to school, and leave at 3.30 to pick them up again Mr Lynch says that the amount he agreed to pay him was $150 for a week. Mr Lynch said that the applicant worked for two full weeks for roughly five hours a day, and that he paid him $150 cash after the first week. Mr Lynch said he was a bit short of cash the second week, gave the applicant $55 he had in his pocket and another cheque for $95. The applicant however denied that he received any such amount. He may have received $10 or $50. Mr Hart said at the time he was a salesman and that he was not in the habit of returning home from URJ RANDELL v MACAM RUBBER PTY LIMITED (Mahoney JA) 3 work at the same time each day because of the nature of his business, but he did recall about three days in a row, around about April of 1984 coming home about 3.30 and he identified a photograph of the applicant shown to him by the investigator some three months after this work was done, and that photograph was shown to him at the same time as his statement was dated, 15 August 1984. The applicant is a fair-haired man with a full beard and slightly overweight, the sort of person that stands out in a crowd, and I am satisfied that Mr Hart did see the applicant performing the work that Mr Hart said he saw him do in his evidence and statement. Mr Hart said that he observed the applicant on at least two days, the first day for about ten minutes and the second day for a little less, that he observed the applicant carrying full panels of aluminium fencing from the back of the property to the front, that he saw him operating a post-hole digger and manually twisting that post-hole digger into the ground. Mr Lynch had said that the soil on his property after the first six inches was wet clay and that the post-hole digger was very hard to use. Mr Lynch said that he decided to have someone else do the work particularly involving the post-hole digger because he had put an addition to his house I think he called it a games room, some year or so before, and had to dig out twenty-seven holes with the post-hole digger and he decided not to use it again unless he had to. The applicant's counsel Mr Wynyard said that I should disregard the whole of Mr Lynch's evidence because of the conflict that the Randells, Mr and Mrs Randell, were having with Mr Lynch over the air-conditioner, and particularly the fact that they had to go to the Consumer Claims Tribunal, however, I am satisfied that Mr Lynch is supported in his evidence by Mr Hart. I am satisfied the applicant did use the post-hole digger and did carry the panels. Although I did not have the opportunity to observe the demeanour of the applicant on 13 August 1986 I did see him give evidence in reply the other day, and I am satisfied that some of the answers he gave in cross-examination before Judge Freeman were evasive and that he was not prepared to tell the whole truth as to how much work was involved in his job of helping Mr Lynch put up a new fence." In my opinion, the proper conclusion to be drawn from this is that his Honour saw the account given by Mr Lynch as being the main account of the events to which I have referred. He saw, as he said, Mr Lynch to have been "supported" by the evidence of Mr Hart. Mr Hart, as the evidence discloses, said that he had seen matters relevant to that issue on two occasions, on one occasion for about ten minutes and on another occasion for something less than that. Mr Lynch had given a more detailed account of what was alleged to have happened. I do not think that his Honour - as was at one stage suggested in argument - put Mr Lynch's evidence aside, or, as it was said, put it out of the window and relied only on the evidence of Mr Hart. I think that his Honour saw Mr Lynch's evidence as being the main material which in this regard weighed against the worker's case and he saw the evidence of Mr Hart as being not a separate and distinct matter but, as he described it, as supporting the evidence of Mr Lynch. It is sufficient, in my opinion, that his Honour relied and relied substantially upon the evidence of Mr Lynch. This being so, then the fact that the worker was prevented from producing evidence as to the bias of Mr Lynch or otherwise his hostility, such as should have been allowed to have been given, means that in the ordinary course the matter should go back to be dealt with according to law by the Compensation Court. 4 UNREPORTED JUDGMENTS As I have said, Mr Sperling put, in a number of ways, that this should not be done in the present case because, as he suggested, the learned judge for other reasons entirely disbelieved the worker and so would have decided against him. This may or may not be the situation. Mr Sperling is correct in his submission that what the learned judge said as to what was shown by the hospital records and otherwise indicated that he may have decided against the worker in any event. But in the end the fact that the worker was not allowed to give evidence by himself and, as I assume, by his wife to attempt to destroy the evidence of Mr Lynch or cut down its effect is sufficient to require that the appeal be upheld. Prima facie, the proper order therefore is that the matter go back to the Compensation Court in the ordinary way. The second point that was taken by Mr Sperling was that the appeal should not be upheld in the absence of evidence, not merely as to the questions which would have been asked by the worker of Mr Lynch had he been allowed to, but also the answers which the worker, and in so far as it is relevant his wife, would have given in answer to those questions. Mr Sperling frankly admitted there was no authority to support the proposition that it is necessary to know the answers which, in this regard, would have been given. Ido not think that, in order to uphold the submission that there was a wrongful admission of evidence, it is necessary to show what the witnesses would have said in reply. In so far as an inference is to be drawn in this regard, I think it can be inferred that the suggestion was that Mr Lynch was improperly biased against the worker by reason of a dispute relating to other matters entirely and had set out to injure the worker's case for compensation. But, however that be, I do not think that the submission that has been made in this regard should be upheld. In these circumstances, the court should uphold the appeal with costs and should return the matter to the Compensation Court to be dealt with according to law. Samuels JA I agree. I add only a word or two out of deference to Mr Sperling'sargument. First of all, I think that "person aggrieved" denotes the person against whom the decision of the kind contemplated has passed. That status does not depend upon the ultimate success of the point taken. Undoubtedly we have a discretion both under s32 of the Compensation Court Act and at common law to order, in effect, a new trial. Whether that discretion should be exercised in this case depends upon the other submissions put to us. If it were abundantly plain that the rejection of the evidence amounted to the merest technicality and that the evidence, whatever its apparent strength, would not have swayed the judge then, perhaps, we would be entitled to exercise discretion against ordering the matter to be returned to the Compensation Court, despite the fact that there was a clear error of law by the judge. The case does not seem to me, however, to come anywhere near to that certainty. I think we are entitled to infer the nature of the evidence which the worker would have sought to elicit from the cross-examination of Mr Lynch. Hence I do not think that an affidavit setting out the evidence was required and I reserve the question of whether it is ever required in a case such as this. Mr Lynch was plainly challenged despite Mr Sperling's argument to the contrary. I think the cross-examination of Mr Hart distinctly impeached his credit. It is necessary to imagine the tone of voice in which the questions were asked. Unless that was one of incredulity the cross-examination makes no sense at all and I would hesitate to level an allegation of that kind against learned counsel. It is possible that if the evidence I contemplate was given and accepted URJ RANDELL v MACAM RUBBER PTY LIMITED (Clarke JA) 5 by the learned judge, that is to say that Mr Lynch had made threats against the worker, that this might have caused the judge not merely to revise his view of Mr Lynch's credit but also the view he had taken of the credibility of Mr Hart. That being so, I entirely agree with my brother Mahoney that there having been a clear error of law the circumstances are such as to require the matter to be remitted to the Compensation Court. Clarke JA I agree with Mr Justice Mahoney. I would only add that I would wish to reserve for another time the power of this Court to decline to remit a case in the event it found that there had been an erroneous rejection of evidence. It may be that there is some force in Mr Sperling's submission that the court has a discretion to decline to remit the case in the event that it is plain beyond doubt that the rejected evidence would have had no effect on the ultimate result but I would wish to hear further argument upon that point before I reach a final opinion unreservedly. SAMUELS JA: The order of the court therefore is that the appeal is allowed. The award is set aside. The matter is remitted to the Compensation Court to do therein as shall be just and consistent with the judgment of this Court. The respondents are to pay the appellant's costs of the appeal. The respondents, if qualified, are to have a certificate under the Suitors' Fund Act in respect of costs of the appeal. COUNSEL: Appellant - CJ Wynyard Respondent - HD Sperling QC/ GMN Farkas SOLICITORS: Appellant - Ronald J Jones & Co. Respondent - Michell, Sillar & Brown