OBRADOVIC v MAYFAIR FOODS PTY LTD [1989] NSWCA 157

OBRADOVIC v MAYFAIR FOODS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 2 March 1989, 9 May 1989

[1989] NSWCA 157

WORKERS' COMPENSATION — appeal — wrongful admission of evidence — alleged prior inconsistent statements — previous trial aborted because of defective interpretation — whether agreement not to use evidence at second trial — whether such evidence wrongly admitted causing a mistrial — whether the trial judge erred in admitting the entirety of the transcript of the first trial — HELD: (1) (By the Court) There was no agreement, express or implied, that the transcript of the first trial should not be used at the second; (2) Accordingly, the use of that transcript was to be determined by the application of the laws of evidence; (3) The laws of evidence are generally to be applied in the Compensation Court. Broken Hill Proprietary Co Limited v Doran (1934) 8 WCR 239, 253 referred to; (4) The transcript of the worker's evidence at the first trial was admissible in the manner used by the trial judge as relevant to an alleged inconsistency between her evidence, behaviour and presentation of her case at the first trial and at the second; (5) (per Kirby P) Minor or irrelevant mistaken rulings on evidence will not of themselves warrant a retrial of a compensation case. Balenzuela v Degail (1958-59) 101 CLR 226, 242 referred to; (6) In the circumstances, the earlier transcript of the evidence of the worker was either admissible (by the Court) (as demonstrating inconsistency with her later testimony and behaviour) or (per Kirby P) if inadmissible, in part, was immaterial and did not require retrial; (7) Appeal, accordingly, dismissed. EVIDENCE — prior inconsistent statements — earlier compensation trial aborted — admissibility of earlier evidence — objection to tender — judge admits entire transcript — whether admissible — whether, if inadmissible, retrial of compensation case required — HELD: (1) The testimony of the worker in the first trial was admissible in whole to demonstrate a change of behaviour and change of presentation of the case at the second trial after details of an investigation were known; (2) Only those parts of the prior transcript which were inconsistent could be admitted under this rule. Alchin vy Commissioner for Railways (1935) 35 SR (NSW) 498, 509; (3) But the whole of the transcript was necessary to demonstrate the extent and nature of the inconsistency in the present case. North Australian Territory Company v Goldsborough, Mort and Company [1893] 2 Ch 381 385 considered; (4) Appeal dismissed. Evidence Act 1898, s54, s55. Supreme Court Rules Part 51 R16(1). Appeal dismissed with costs.