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. It suffices for present purposes to say that after having been not reached in August 1984, the matter was stood over to Friday 12 October 1984 for hearing. On 12 October 1984 the evidence, in brief of the applicant was completed and cross-examination was commenced. The time available on that day did not permit the completion of the cross-examination of the applicant or the taking of 2 UNREPORTED JUDGMENTS any further evidence. The matter was stood over for further hearing on 30 November 1984. On 30 November 1984 further cross-examination of the applicant took place. No other evidence was taken on the day because of the pressure of business in his Honour's list. The matter was stood over for further hearing on 7 December. On 7 December there was further cross-examination of the applicant. The applicant was then re-examined and a lay witness was called to give evidence for the present appellant. All the other evidence desired to be called by any of the parties was dealt with on that occasion, subject to the evidence of Dr Macdonald, the medical practitioner who had interviewed the applicant on behalf of the appellant. An attempt was made to tender Dr Macdonald's reports but they were objected to. It is common ground in this appeal that other than by consent they could not have been received into evidence. There was then an application made on behalf of the appellant for the matter to be adjourned to enable Dr Macdonald's evidence to be taken. That application was opposed by both of the other parties to the proceedings and was refused. the transcript contains no record of what was put to the learned trial judge by way of evidence or argument in support of the application for adjournment, nor is there any note or other record of his Honour's reasons. The evidence before this Court shows that practically nothing had been done by the representatives of the appellant to make proper arrangements for the attendance of Dr Macdonald to give evidence on 7 December if that should prove to be necessary. The evidence demonstrates that it was foreseeable that it may be necessary for Dr Macdonald to give evidence on that day. Late in the morning of 7 December and early in the afternoon some attempts were made to telephone his rooms, but no contact could be made with him and by the time someone was able to get through to his staff on the telephone he had left his rooms for, the day. It seems fairly clear that if his Honour Judge Manser had, as it is reasonable to infer he probably would have done, asked for an explanation as to what steps were taken to alert Dr Macdonald to the possibility that he might have to give evidence, and to arrange for his attendance at the hearing, he would have been given to understand that no adequate steps had been taken. Par 15 of an affidavit of Cameron Leslie Leaver sworn 15 May 1989 gives some information as to what went on in the application for adjournment. It is in the following terms: "15. Counsel for the Appellant applied for an adjournment to call the evidence of Dr Macdonald. Counsel advised the Court of the attempts made by myself to contact Dr Macdonald and of the advice I had received from Mrs E Granero. The application was opposed. I have no recollection of the basis of the Respondent's objection. The application was refused. To the best of my recollection His Honour said that the application for adjournment was refused for the reason that the matter had already had a number of hearing dates on which the Appellant had had the opportunity to call the doctor's evidence." It is common ground before us that whilst this is Mr Leaver's best recollection of what occurred, he does not intend to exclude the possibility the judge might have made reference to other matters in giving his reasons for refusing the adjournment. It is also common ground that Mr Leaver is unable to say one way or the other whether his Honour looked at the medical reports of Dr MacDonald. It is at least consistent with the evidence of Mr Leaver that his Honour asked for an explanation as to Dr Macdonald's unavailability and, as I have said, if he had sought such an explanation and been given the information which is before this Court, he may very well have concluded that there was no adequate URMAITLAND CITY COUNCIL ABATTOIR DEPARTMENT v SUTCLIFFE (Samuels JA) 3 explanation. In particular, it would have been open to him to conclude that reasonable steps had not been taken on behalf of the appellant to secure the attendance of the witness in question. In the way in which the Compensation Court conducts its business the question of whether or not adjournments sought to be granted to permit one party or another to call a medical witness must be one of the most commonplace discretionary decisions that faces judges of that court. It would only be in a compelling case supported by cogent reasons that this Court would interfere with a discretionary decision of that character. The information and evidence available to this Court as to what went on in relation to the adjournment application and as to the learned judges reasons for denying it is, as has been indicated, extremely sparse. This is certainly not a case in which, on the face of the information presented to this Court, it can be said that the party seeking the adjournment had a strong prima facie case in support of the application. Indeed, so far as it is possible at this stage to make out what occurred, it was well within the bounds of the discretionary judgment available to the learned judge to deny the application. In my view there is no necessity for present purposes for this Court to become involved in the questions raised on behalf of the respondents to this appeal as to jurisdiction and as to whether what is involved in the appeal is a point of law or whether there is, on some other basis, a power in this Court to intervene. In my view the appeal should be dismissed simply upon the basis that on the information before us there is no reasons to conclude that the decision made by the learned judge involved any error of principle or any wrong exercise of his discretion. I would propose that the appeal be dismissed. Samuels JA I agree. In my opinion this appeal is totally lacking in merit. I can perceive no basis upon which it can be said that the learned judges exercise of the discretion undoubtedly vested in him miscarried. I think that I should make two general observations, although they are not directly germane to the determination of the appeal. First of all, it seems from the evidence put before us that the appellant's solicitors ascertained from Dr Macdonald prior to 15 August 1984, that is about four months before the last day of the hearing, that he would be available to give evidence on 16 August, when the matter was listed for hearing, after 2.30 pm and "was generally available to give evidence in Sydney on any court sitting day other than a Wednesday". That marked the last communication which took place between the solicitors and Dr Macdonald concerning his availability to give evidence in this case until the plainly energetic but unsuccessful attempts to secure his attendance were deployed shortly before lunch on 7 December 1984, the last day of the hearing. For my own part I cannot imagine, and the evidence does not reveal, any reason for the assumption that because Dr Macdonald would have been available on 16 August he was going to be available without any prior notice on the afternoon of 7 December. This is the kind of assumption which medical practitioners who give evidence as a matter of routine in medico-legal cases strongly resent. I agree with them. It is distressing to find that even now after many discussions between the two professions the giving of proper notice to doctors and the acceptance of their right to be treated with care and courtesy seems still to be ignored. Secondly, I would respectfully agree with what was said by McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at 524, namely: 4 UNREPORTED JUDGMENTS "\.. If a matter is being discussed which counsel thinks ought to be recorded, it is his duty to ensure that the statement is recorded. Counsel is entitled to have important discussions recorded In the present case, as the Chief Justice has observed, the record of what took place on 7 December is sparse indeed. It was the duty of counsel making the application for adjournment to ensure that the application was appropriately recorded and that if he wished it to be done the judge's reasons for refusing it were taken down as well. As McHugh JA said, counsel is entitled to have a record made. If he asked for it and it is refused then certain consequences may follow; but at all events it is his duty to ask. As a result of failure to have the exchange between counsel and the judge properly recorded, we have had to receive a number of affidavits and to cope, of course, with the problems that the lapse of time necessarily entails. I agree that the appeal should be dismissed with costs. GLEESON CJ: The order of the court is the appeal is dismissed with costs. Counsel for Appellant: B J Gross QC and M T Crimmins Solicitors for Appellant: Hickson, Lakeman and Holcombe Counsel for First Respondent: D Cummins and D J Dickinson Counsel for Second Respondent: H Shore Solicitors for Respondent: Walker, Kissane and Plummer