MAITLAND CITY COUNCIL ABATTOIR DEPARTMENT v SUTCLIFFE [1989] NSWCA 134

MAITLAND CITY COUNCIL ABATTOIR DEPARTMENT v SUTCLIFFE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, SAMUELS and MEAGHER JJA 16 May 1989, 16 May 1989

[1989] NSWCA 134

Gleeson CJ On 7 December 1984 his Honour Judge Manser of the Compensation Court declined an application for an adjournment made by one of the parties to proceedings before him and on 12 December 1984 gave judgment in those proceedings.

The ground of the application for adjournment, which was made by the first of the two respondents to a claim for workers compensation, was that a medical witness whom that respondent desired to call could not be contacted and was not available to give evidence. The witness died in the following year and now, some four and a half years later, this Court is invited to overrule the discretionary decision of the trial judge, to set aside his award in favour of the applicant and to refer the matter back to the Compensation Court for a fresh determination.

The evidence and information before this Court as to what actually went on in relation to the adjournment application on 7 December 1984 is extremely sparse. It is common ground that the learned judge was not asked by any party to record his reasons for his decision on the adjournment application and a somewhat laconic note by the appellant's solicitor when reporting to his client after the proceedings suggests that rather more importance is now being attached to the matter than it was given on the occasion in question.

Some attempts have been made to reconstruct the events of 7 December 1984 but those attempts are acknowledged to be incomplete. So far as appears from the transcript of the proceedings before his Honour Judge Manser and from the evidence that has been received (subject to objection) in this appeal, the following can be said. The applicant in the proceedings at first instance was a meat worker who complained of a sore back. There was an issue in the case as to the respective responsibilities in that regard of parties who were the first and second respondents at first instance, but we have been informed by senior counsel for the appellant that the medical evidence in question in this appeal would not have borne directly upon that issue. There was also a substantial issue as to the extent of the applicant's disability, and it appears from the evidence before us that Dr Macdonald, the medical practitioner whose services had been retained by the present appellant, took a view as to the extent of that disability significantly different from that taken by the applicant's doctors. As is common in the Compensation Court, the proceedings were heard in a somewhat piecemeal fashion. They were listed but not reached on a number of occasions and ultimately came on for hearing before his Honour Judge Manser. The detail of this appears in the affidavit of Alan William Blanch sworn 15 May 1989.