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. Kirby P The issue in this appeal from Manser J in the Compensation Court of New South Wales is whether his Honour erred in admitting into evidence, over objection of the appellant, the whole of the transcript of earlier litigation between the parties. Earlier proceedings had been heard before Thompson J. They were terminated by his Honour in circumstances which it will be necessary to describe. If Manser J did err in admitting the whole of the transcript, a consequential question arises as to whether such an error would, in the circumstances, warrant the setting aside of the award which was entered by his Honour in favour of the employer (the respondent). Other grounds of appeal raised in the original Notice of Appeal were abandoned. Two ancillary motions by the parties (relating to the competence of the appeal and an application for an extension of time within which to appeal) 2 UNREPORTED JUDGMENTS were postponed by agreement. The court expedited the hearing of the appeal. It was dealt with as if it had been brought within time. No injustice is done to the respondent by so proceeding. The appeal was lodged but a few days out of time. An adequate explanation was given for the delay. It is therefore appropriate to proceed directly to the merits of the single point which remained for argument in the appeal. False start to a compensation case The appellant worker was born in Yugoslavia. Before 1982, she was employed by the respondent as a process worker. As a result of injuries arising out of or in the course of her employment, the appellant claimed disabilities in the low back and abdomen, upper back, shoulder and interscapular region as well as injury to the respiratory and nervous systems, and functional overlay associated with a depressive anxiety state. She claimed continuing incapacity and an entitlement to compensation from 16 March 1982 to the date of the trial and continuing. She had been paid compensation by the respondent until February 1983. Liability to make continuing payments was thereafter denied. The consequent dispute was brought to the Workers' Compensation Commission (as the tribunal was then known) in November 1983. The proceedings commenced before Thompson J on 10 November 1983. At this time, the appellant was alleging that her incapacity resulted from two injuries. These were an incident on 16 March 1982 when she was required to carry and lift skins onto a trolley, and on or about 2 August 1982 when she was required to lift legs of ham. The hearing on 10 November 1983 commenced with the evidence of Dr BR Ingram, a medical practitioner who had treated the appellant for her various complaints. When the case resumed on 15 December 1983 the appellant was called. She gave evidence through an interpreter, Ljerka Krasevic, who is recorded as being a member of the Government Panel sworn to interpret the Serbo-Croatian language into the English language and vice versa. The appellant described her disabilities in ample terms. She claimed, for example, that there was no spot on her shoulders or back which was without pain. She claimed that her husband did all the housework and gardening. She claimed that whenever her husband put his arms around her she told him "please don't press, I have pains". She asserted that she had pain whenever squatting, sitting or standing. At the close of the cross-examination of the appellant, a film was shown of observations of the appellant. The investigator involved, Mr Richard Szlicht, gave evidence of the taking of the film and of his observations of the appellant. After a short cross-examination of Mr Szlicht the matter was adjourned. It came back before Thompson J almost a year later on 30 November 1984. Instead of the medical evidence which was foreshadowed to remain in the appellant's case, she was herself recalled. A new interpreter, Slobodan Papic, also a member of the Government Panel, was sworn to interpret the Serbo-Croatian language. The appellant again gave evidence through the interpreter. She stated that whilst she could understand the new interpreter, on the last occasion she "did not understand... completely" the interpretation. She instanced the question on squatting. She claimed that some of the questions to which she had given answer she had not understood. On the basis of this evidence, counsel then appearing for the appellant submitted that it was not appropriate that the matter should proceed. He urged that the proper course would be for there to be a rehearing of the matter. He also URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Kirby P) 3 foreshadowed the addition of a claim in respect of a third injury upon which the appellant wished to rely. This was the inhalation of a quantity of ammonia gas on 11 June 1982. The application for a rehearing was, surprisingly enough, supported by counsel then appearing for the respondent. He said: "T should say that Your Honour, in my submission, would be faced in these circumstances with having to disqualify Your Honour from continuing to hear this matter. I would respectfully submit in all the circumstances, meaning both the interpreter and my friend's application that another substantive issue now be litigated, that quite properly the order Your Honour should make is that the matter should be struck out. Your Honour should also make an order that if the matter is again to appear in the Commission, obviously Your Honour will note on the file that it is only proper that it should come back before another member of the court, as it will then be known." Counsel for the appellant stated that he could not object to the course proposed. Indeed, he submitted that it would be appropriate. Thompson J acceded to the application. He stated shortly the reasons for doing so: "[The appellant] now appears before the Court with the assistance of another Serbo-Croatian interpreter and has given evidence today and said that she was unable to understand a lot of what was put to her by the previous Serbo-Croatian interpreter. She also indicated she wishes to amend her claim to bring alleged further injury arising out of the inhalation of fumes or gases at work. In all the circumstances I feel I am unable to hear the matter any further and the matter shall be struck out, not to be before me if it comes back before the Court." Admission of transcript in the new hearing There then elapsed a period of nearly three years during which, it may be assumed, the respondent hoped the claim would be abandoned. However, the appellant regrouped her forces. Fresh proceedings commenced before Manser J in the Compensation Court on 29 September 1987. The appellant was called. On this occasion her evidence, and the manner of giving evidence, was somewhat different from that recorded on the previous occasion. She frequently asked for time to relax "for rest". This was recorded in the transcript. She was more cautious in the description of her disabilities. Of course, she was now aware of the availability of the observations of her movements shown in the film exhibited at the first hearing. As described by Manser J, she approached the witness box on the first day "slowly, in a hunched-over posture and with a despondent, pain-racked expression on her face". Whilst sitting in the witness box she was described as maintaining "the hunched posture with her head tilted slightly to one side and neck flexed so that her gaze was almost constantly towards the table in the witness box". Various other idiosyncrasies in her giving evidence were mentioned. It was noted by his Honour that on the second day "she stood more erect with barely a trace of the hunched posture of the day before". There is no reference either in the transcript or in the observations of Thompson J (nor has this Court any other evidence) to show a change in the appellant's courtroom behaviour between the first and the second hearing. But this much at least can be said. There is no record in the transcript of the proceedings before Thompson J of the slightest interruption on the part of the appellant for the purpose of resting during the giving of her evidence. Although such an interruption would not necessarily be recorded, it is likely that some notation would be made of the adjournments, if any had occurred, particularly if it were repeated. It is open to 4 UNREPORTED JUDGMENTS inference that there was no such interruption. To derive that inference, it is necessary to have regard to the whole of the transcript of the appellant's evidence before Thompson J. At the beginning of the cross-examination of the appellant before Manser J, an attempt was made to ask her questions on the basis of Dr Ingram's evidence before Thompson J. That cross-examination was clearly objectionable, at least if not strictly confined to what the appellant had told Dr Ingram about her complaints. Counsel then appearing for the appellant withdrew his objection to the cross-examination when his attention was drawn to p4 of the transcript of proceedings before Thompson J and Dr Ingram's sworn evidence there. At that stage, no attempt was made to tender the transcript. The question of the admission of the first transcript was raised by Manser J himself during the hearing on 1 October 1987. There was a discussion of the fact that the film previously referred to had been lost between the first and the second hearing. There then followed the following exchange between his Honour and counsel then appearing for the appellant (A) and the respondent (R): "HIS HONOUR: What next? Have we found the film yet? COUNSEL R: No we haven't Your Honour. I'm afraid I'm going to have to, if it's found, call that in Sydney Your Honour. HIS HONOUR: I presumed throughout that the film would be shown I suppose. The other thing is it is (sic) appreciated that I don't have the transcript of the previous proceedings before me. Is it not intended that I should have it as an exhibit? COUNSEL R: Certainly that was the intention I think Your Honour. HIS HONOUR: It's been referred to and she's been cross-examined about it and it has not been tendered to my recollection. COUNSEL R: I'll seek to tender it, Your Honour. HIS HONOUR: There may be an argument that I don't need to have it tendered because it's part of the court record but I think there's a bit of doubt about that. Any objection to that course? COUNSEL A: Yes I will object to a tender of the transcript certainly as a whole. There are parts that possibly I wouldn't object to, the good bits. HIS HONOUR: Some of the bad bits that [counsel for the respondent] cross-examined her about, at the minimum I suppose he's entitled to get those in. COUNSEL A: The first part of the transcript is on 10th November 1983 which deals with the evidence of Dr Ingram. I'll object to that being tendered in that we're going to have the benefit of Dr Ingram's evidence in any event this afternoon. The next part of the transcript is 15th December 1983 which is the applicant's evidence. I'll object to the tender of that in that the matter was discontinued and His Honour Judge Thompson disqualified himself on the basis of the evidence given before him in November 1984 which was that the evidence that the applicant gave earlier is unreliable in that she didn't understand the interpreter. HIS HONOUR: I must confess to you... I didn't really understand the basis upon which his Honour disqualified himself in those circumstances... COUNSEL A: And indeed from looking at the transcript of all that evidence it probably would have been preferable really that he should have gone on to hear it rather than to have stood it over again. In fact that's what has happened and his Honour accepted - or apparently accepted that there was a real doubt as to the validity of the evidence previously given by the applicant. URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Kirby P) 5 HIS HONOUR: I understand that but I wouldn't have thought that [it was] a particularly potent reason for disqualifying himself. (at page 9) COUNSEL A: It probably isn't Your Honour but it is a potent reason to object to the tender of that evidence, and that is the whole of the transcript of the previous proceedings. HIS HONOUR: I suppose that the question of the reliability or not of the evidence is a matter that can be tested I suppose by the calling of the interpreter. COUNSEL A: Perhaps Your Honour before we go any further, the other evidence that's being sought to be tendered by means of using this transcript of course is the evidence of Richard George Svitch (?) HIS HONOUR: Who's he? The investigator? COUNSEL A: Yes, which of course is detailed evidence as to matters that currently on that day were subsequently proven but as understand it my friend isn't in a position to prove now. HIS HONOUR: We defer the question of the transcript then until Sydney. The tender of the transcript was renewed when the hearing was recommenced and concluded in Sydney on 24 November 1987. On the last page of the evidence there is the simple record: "Whole of transcript of previous proceedings tendered; objected to; admitted and marked exhibit 9." That transcript so admitted included not only the evidence of the appellant, but also the evidence of Dr Ingram and Mr Szlicht. Each of these witnesses was called to give evidence before Manser J. It was not suggested to either of them that the evidence then given by them was inconsistent with the evidence previously given before Thompson J. The judge's use of the evidence Manser J recorded the way in which the transcript of the earlier proceedings had been admitted by him. On p15 of his eighty-two page reasons, his Honour observed, writing of the appellant: "When confronted with the disparity between her previous evidence and the film that was shown earlier she claimed that things were too hard and that she needed a rest. She also claimed deficiencies in the interpreter." Towards the end of the reasons, his Honour recorded the objections of counsel for the appellant to the tender of the transcript: "Mr Odling tendered the transcript of proceedings in the action before Thompson J. I admitted that transcript over the objection of Mr Barter. Counsel's objection to the tender of the transcript was based upon inter alia the claim by the worker that she did not understand the interpreter who was in the court on that occasion. No objection was taken by Mr Barter that the transcript which was sought to be tendered was in any way inaccurate or did not represent a true transcription of what was said in court on the previous occasion. There can be no doubt that the material which the transcript contains is relevant to these proceedings. I have already referred to the events which took place before Thompson J when the worker claimed to have not understood the interpreter, applied for an adjournment but was granted instead a new start with the presiding judge disqualifying himself at the behest of the respondent's counsel. Although Thompson J did not express a view as to whether he accepted the worker's claim of not understanding the interpreter or not, I think it is open upon a reading of the questions that he put to the worker to come to the conclusion that his Honour seriously doubted the assertion. I have since, on a number of occasions, read the 6 UNREPORTED JUDGMENTS transcript and have found no disparity between the questions and the answers given which could not be equally well explained by the worker's evasiveness or unwillingness to answer questions which were uncomfortable. I further found it interesting and highly relevant given the nature of the way in which her evidence was given in the trial before me that there was no attempt at applying for rest periods. However, I am mindful of the fact that Thompson J did not express a rejection of the worker's claim that she couldn't understand the interpreter so in fairness I have put aside from my consideration of the issues in this case any evidence given by the worker which was not the subject of specific cross-examination by Mr Odling in the proceedings before me. The sole exception to that is the matter to which I have already referred, namely the absence of any applications for rest periods." His Honour described as "the most important evidence" upon which the respondent relied as being that "contained in the transcript at the previous proceedings... [of] the investigation of the worker's activities in November 1982 and May 1983." Unfortunately, the film had become lost in the meantime but Mr Szlicht was available to give evidence from his recorded notes. It was not suggested that his evidence amounted to recent invention. Nor was it suggested that there were inconsistencies or contradictions when the evidence of the previous occasion was compared with the evidence given before Manser J. Yet the whole of the transcript was admitted by his Honour over objection. It included not only the evidence of the appellant but also that of Dr Ingram and Mr Szlicht. A suggested agreement not to use transcript The first basis upon which the appellant urged that his Honour had erred in resorting to the earlier transcript was the suggestion that the parties had specifically agreed that no reference whatsoever would later be made to the record of the earlier proceedings. Those proceedings were "flawed" by the inability of the appellant fully to understand the interpreter. In these circumstances, the whole proceedings had miscarried. To refer to the transcript of them was to risk a serious injustice to the appellant. The precise measure of the difficulties she had in understanding the interpreter could not be judged by persons not expert in the Serbo-Croatian language. Thompson J had accepted that there was a risk of injustice. Otherwise, he would have pressed on with the trial. In these circumstances, the Court was asked to infer that, inherent in the agreement to abandon the first trial was an agreement that use of the transcript of it would be unsafe and should therefore not occur. There are several answers to these arguments. First, there is not a hint of such an agreement in the express terms by which counsel recorded their concurrence in the abandonment of the first trial. If there were to have been such a limitation on the use of the transcript, it would have been expected that it would have been recorded. It was not. Secondly, there is not the slightest mention either in the submissions of counsel to Thompson J or in his Honour's reasons for abandoning the first trial that any of them considered that the use of the transcript of proceedings would be subject to special limitations over and above those which the law already provides. The rules that have been developed for the use of prior testimony provide protections against irrelevant or prejudicial admission of such testimony. The passages of transcript referred to above provide no support for a contention that the parties expressly or by implication, had agreed to accept greater limitations upon the use URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Kirby P) 7 of the previous transcript. Nor was it ever asserted before Manser J, in clear terms, that there was any such debarring agreement. Thirdly, had there been an express agreement between counsel for the parties, it could readily have been proved by the tender of affidavits or by a statement of an agreed fact. In effect, this Court was asked to infer an agreement although it could have been proved (to the extent that it was express). In the absence of such proof - or any attempt to prove the fact - I would not be prepared to infer any such agreement. Nor do I consider that it is required by the circumstances of the first trial, the reason for its termination or the content of the transcript of it. The use to be made of that transcript should be left to the application of the general rules of evidence which have been developed for that purpose. Significance of evidentiary error The Compensation Court, as the successor to the Workers' Compensation Commission, is a specialist court. To dispose of a heavy case list, procedures are adopted which are less formal than those followed in other courts. For example, it is not necessary in every case to re-prove basic medical facts, at least of recurring work-related conditions. These are taken to be known by the judge who, over time, acquires a high degree of specialist expertise. There are provisions in the Compensation Court Act 1984 which recognise and facilitate a degree of informality in the procedures of the Compensation Court. Thus, s17 provides (relevantly): "17(1) A decision of the Court in any matter shall be upon the real merits and justice of the case. (2) The Court shall not be bound to follow strict legal precedent. (3) Subject to Pt4 of this Act, a decision or proceeding of the Court shall not (a) be vitiated by reason of any informality or want of form; or (b) be liable to be challenged, appealed against, reviewed, quashed or called in question by any court. S24 of the same Act provides: "24(1) The Court may at any stage of any proceedings before it (a) dispense with the rules of evidence for proving any matter which is not bona fide in dispute, and with such rules as might cause expense and delay arising from any commission to take evidence or arising otherwise; and, without limiting the generality of this power, dispense with the proof of handwriting, documents, the identity of parties or parcels, or of authority; and (b) require any party to the proceedings, not being a minor or person of unsound mind, to make admissions with respect to any document or to any question of fact...". Provisions similar to those in s17 appeared in respect of the former Workers' Compensation Commission in s36 of the Workers' Compensation Act 1926. However, it was not suggested that these provisions, of themselves, authorise the Compensation Court to ignore or override the rules of evidence in the ordinary case. From the earliest days of the Compensation Commission, even before the legislation took its present form, the judges accepted that the ordinary rules of evidence should apply. This decision was taken having regard to the fact that those rules are themselves often devised as an effective method to prevent error and unfairness and to elicit truth. See The King v The War Pensions Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 256. For an early statement of the procedure adopted in the Compensation Commission see the remarks of Perdriau J in Broken Hill Pty Co Limited v Doran (1934) 8 WCR 239, 253. 8 UNREPORTED JUDGMENTS But now there is an additional reason for following the rules of evidence. The Commission has been replaced by the Court. Its charter for dispensing with the rules of evidence has been in large part spelt out by the provisions of the Act just mentioned. By the specific reference to circumstances in which the rules of evidence maybe dispensed with in s24, it is implied that Parliament expected that normally the rules of evidence would be complied with. A further indication that this is so is to be found in the very provision by which the Court of Appeal secures jurisdiction in appeals from the Compensation Court. S32 of the Compensation Court Act 1984 provides: "32(1) If a party to any proceedings before the Court... is aggrieved by an award of the Court in point of law or in relation to the admission or rejection of any evidence, that party may appeal to the Supreme Court." This provision also implies that the ordinary rules for the admission or rejection of evidence will be followed. If they are not, an appeal will lie to this Court. But does every error in a ruling on the admission or rejection of evidence warrant, without more, that an appeal will be allowed, the award which followed the incorrect admission or rejection of evidence set aside and the matter sent back for retrial? That would be such an inconvenient consequence of s32 that it seems very unlikely that Parliament would require it. The general rule governing the order of a new trial by the Court of Appeal is to be found in Pt51 Rule 16 of the Supreme Court Rules. That rule provides (relevantly): "16(1) The Court of Appeal shall not order a new trial - (a) on the ground of misdirection; (b) on the ground of the improper admission or rejection of evidence; (c)... Unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned." This rule is the successor to earlier Rules of court which were designed to limit the ordering of a new trial where a technical but insubstantial error, relevantly, in the admission of evidence, had occurred at the first trial. At common law such a retrial was required. See Balenzuela v De Gail (1959) 101 CLR 226, 233; Holford and Wife v The Melbourne Tramway and Omnibus Co Limited [1909] VLR 497. However, retrials, at least for the small technical errors which are always a risk in litigation, increasingly came to be seen as "deplorable". See Dakhyl v Labouchere [1908] 2 KB 325, 327. This is why rules were made to limit such orders to cases where the wrongful rejection or acceptance of immaterial evidence does not result in any substantial wrong to the party affected or miscarriage of the trial. Parties to a trial are entitled to have the decision arrived at on the basis that the conclusion is reached founded only upon relevant and properly admitted evidence. Braye v Ford [1896] AC 44, 49. There is, perhaps, a greater risk of injustice where material and admissible evidence is rejected which might have influenced the outcome of the trial than where immaterial or inadmissible evidence is received and its probable significance for the decision-maker can be more readily assessed on appeal. Cf Balenzuela (above) at 242. However, the real reason for the disinclination of courts to order a retrial on the basis of a mistaken ruling on evidence can be explained by reference to the great value that is assigned to achieving finality of litigation; the high risk that exists in every trial that mistaken or contestable rulings on evidence will be made without the opportunity for long reflection and an increasing appreciation of the complex nature of decision-making itself. Unless the evidence URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Kirby P) 9 is clearly material or immaterial, it is rare that a particular item of evidence will make the difference between one result and another. In Balenzuela, Windeyer J (at 242) explained the reason behind the move from the strictness of the common law rule to the requirement of the Judicature system that a substantial miscarriage must be shown in these terms: "The consequences of an improper admission of evidence are, generally speaking, similar. But, in my view, the rule is there, if anything, less strict. This is because evidence may be inadmissible by reason of irrelevancy and because it relates only to some matter remote from and immaterial to any matter in issue. Its reception in such circumstances might be only an immaterial error; and a new trial could probably be refused if its reception could not reasonable be supposed to have affected the jury's verdict... [T]he position is, I consider, logically rather different if evidence which ought to have been admitted be rejected. Such evidence can never be irrelevant. It must ex hypothesi be material to some issue." A jury gives no reasons for its decision. But a judge sitting alone, in the Compensation court, does expose the reasons which led to the award which is entered. This is certainly the case here, where this Court has the very detailed reasons of Manser J for his conclusion. We are therefore in a far better position than an appellate court reviewing a jury's verdict, to know the considerations which have affected his Honour and produced the result complained of. The relief that is available in this Court where the appellant demonstrates an admission or rejection of evidence, is to be found in the provisions of s32. But those provisions themselves import the considerations that I have mentioned, limiting the ordering of a new trial. It would be unthinkable that a new trial should be ordered in the Compensation Court simply because it was demonstrated that in some minor respect the laws of evidence had not been strictly complied with. For example, it is impossible to believe that s32 of the Compensation Court Act contemplated that an award entered at the end of a lengthy and contested trial should be set aside simply because a particular item of evidence had been accepted or rejected and in respect of which this Court would have preferred different ruling. S32 is expressed in facultative terms. I would not construe it as conferring a right on a person aggrieved by the wrongful admission or rejection of evidence to have a retrial whatever the materiality of the evidence and the consequences upon the outcome of the proceedings exposed in the reasoning of the trial judge. The laws of evidence are detailed; technical and sometimes susceptible to different opinions (as on relevancy. They must be applied swiftly. In the typical case there is little time for rumination. An award in the compensation court should not be set aside for breach of those rules - or for a ruling upon which the appellate court might itself have preferred a different conclusion - unless the result is shown to be a real risk of injustice. The judge's disbelief of the worker When this approach is adopted and the reasons for judgment of Manser J in the present case considered, it is at least arguable that the ultimate conclusion arrived at by his Honour was based upon his impression of her as seen in the witness box (as described). In this event, although the demonstration of suggested inconsistencies between her previous testimony and her testimony before him may have reinforced his Honour's conclusion, the basis of it was his disbelief of the appellant's evidence. There are many passages which support this conclusion. Thus, he repeatedly indicates towards the end of his judgment that, in the absence of physical signs, the acceptance of the medical opinions of the appellant's advisers depends on the acceptance of the appellant's truth-telling. Speaking of 10 UNREPORTED JUDGMENTS the opinions of Dr Glass and Dr Ratnarajah, Manser J said: "[T]he diagnosis depended upon acceptance that the worker had had pain and the limitations and other characteristics which are features of the disorder. Whether she did or didn't came down in the end to an acceptance of the worker. As I do not accept the worker I do not accept the evidence of that diagnosis. In order to determine the application in the worker's favour one has to accept that the worker suffers from a psychiatric disorder which results from the injuries she suffered in the respondent's employ. To accept that she suffers that illness it is necessary to believe the worker. I don't." Having regard to the descriptions elsewhere in his judgment of the appellant's appearance in the witness box, it may be that his Honour's opinion is based upon his impression of her as a witness. In that event, it would be extremely difficult for an appellate court, which does not see the appellant, to disturb that conclusion. However, the appellant urged that the conclusion was itself the product of reflection upon the alleged inconsistency between the two transcripts and the conflict between the behaviour at the second trial (seeking rests) and the behaviour at the first (where no such applications are recorded). In these circumstances, the appellant argued that Manser J's conclusion was infected by his access to the immaterial transcript which he admitted. The inadmissible evidence had therefore caused an injustice to the appellant. It required a fresh trial. Save for one basis to which I will return, it does appear to me that his Honour erred in admitting the whole of the transcript of the first hearing. Such transcripts are quite frequently admitted by consent of parties in the event of later litigation. Where there is a statutory review of an earlier decision, the bases of that decision may warrant the admission of the whole of the previous transcript; even over objection by a party. Where there is demonstrated inconsistency or contradiction between testimony given on a later occasion and that given earlier, the earlier transcript may be admitted, over objection, to permit a conclusion to be reached on the alleged inconsistency or contradiction. But these instances apart, the mere fact that the transcript is considered to be in some way relevant to a later trial, does not make it admissible. This is because, at the second trial, the evidence must be given orally. It must be available for cross-examination. It is not possible to cross-examine a transcript. Insofar as there were questions to be put to Dr Ingram or Mr Szlicht, the proper course to adopt was to recall those witnesses so that their testimony could be received in the normal way. This is what occurred. In these circumstances, no basis whatsoever was laid to admit their evidence in the previous trial. It would have been different if they had died or were overseas or otherwise unavailable. It would have been different if it had been suggested that their evidence at the second trial departed in a material respect from their evidence at the first. But none of this was alleged. Therefore (subject to what appears below), the evidence should not have been received. It is necessary to deal separately with the evidence of the appellant. To the suggested inconsistencies both in the content of that evidence and in the manner of giving of it, Manser J made reference. But insofar as an error occurred in admitting the earlier transcript of evidence of Dr Ingram and Mr Szlicht I do not consider that a miscarriage of justice has occurred for that reason. Manser J made no reference to their earlier testimony. A comparison of their respective evidence on the two occasions reveals no significant difference. Although the evidence was, upon this hypothesis, received in error, the mistake is immaterial. It would not warrant the interference of this Court in the award which Manser J entered. Specificity of prior inconsistent statements URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Kirby P) 11 The appellant concentrated her attack upon the admission of the whole of her testimony of the first trial. Because of the confusion arising out of the imperfect interpretation, this had resulted, so it was said, in an injustice. Prior statements did not become admissible in their entirety by reason of the proof of a particular inconsistency or contradiction. The proper course, according to this argument, is for the comparison of that part only of the prior statement said to be inconsistent or contradictory and the evidence later given. Otherwise, on the basis of a relatively inconsequential inconsistency or contradiction, a lengthy or even voluminous prior testimony could be admitted. This could include a great deal of irrelevant and prejudicial material which was not needed for the limited purpose for which the law permitted the prior statement to be proved. This was the proof of the inconsistency or contradiction. Upon that basis, the admission of the prior statement should be strictly limited to the purposes for which it was tendered, namely to prove the inconsistency or contradiction and not to prove the entirety of the prior statement. There is force in this submission. An isolated instance of inconsistency or contradiction in a prior statement enlivens the right of the party alleging the inconsistency or contradiction to tender that part of the statement which tends to prove the inconsistency or contradiction. It does not permit the abrogation of the general rules excluding the admission of statements away from the trial. In deciding the extent of the admissibility, it is important to keep in mind the purpose for the admission. This is to demonstrate both the fact of the suggested inconsistency or contradiction and the extent of it. It is not to provide for the unrestricted admission of out of court statements which would otherwise be inadmissible. Reference was made to the provisions of s54 and s55 of the Evidence Act 1898. These sections substantially declare the common law. See Crowley v Page (1837) 7 C and P 789; 173 ER 344. Although s55 is described as a section for "cross-examination as to previous statements in writing or deposition", the deposition referred to is limited to "evidence given or supposed to have been given... before any justice". It does not relate to any transcript in any court. That is why, normally, if contested, it is necessary for the court reporter to be called to prove the giving of the evidence. In this case, as Manser J recorded (and as was confirmed before us) there was no contest concerning the accuracy of the transcription of the proceedings before Thompson J. The objection, in essence, was to his Honour's admission of the whole of the transcript. At the most, it was said, his Honour should have admitted only those parts which the appellant did not "distinctly admit" and which were "inconsistent" with her later testimony. As she had admitted most, if not all, of the statements made in the proceedings before Thompson J and which were put to her, the transcript evidence should not have been admitted. The answers to these complaints are, as it seems to me, three-fold. First, Manser J specifically stated that he limited his consideration of the earlier transcript to that to which specific cross-examination by counsel for the respondent had been directed. The sole exception to this course related to the use which his Honour made of it to demonstrate that no rest periods were asked for in the previous hearing, although they were frequently sought before him. The appellant challenged his Honour's statement of limited use to which he put the transcript. But I do not consider that this Court would be justified, in the circumstances, to impute to his Honour a wider use of the transcript than that 12 UNREPORTED JUDGMENTS which he acknowledged. If he did confine his use as he stated, I can see no objection in what he did. Certainly no miscarriage of justice would arise from the use of the-previous transcript in a way limited to comparing the testimony given before Thompson J upon those matters put to the appellant in cross-examination when the matter was recommenced before Manser J. Secondly, the proof of "inconsistency" or "contradiction" such as would authorise reference to parts of the previous transcript is not always a straightforward affair. Especially where the inconsistency or contradiction is alleged to arise from the emphasis placed by the appellant on her disabilities, it will be important to look more widely at her earlier testimony than would be the case if the inconsistency or contradiction was said to exist in respect of a particular fact. It was never the case of the respondent that the appellant had withdrawn entirely from the assertion of a particular fact which had been alleged at the first hearing. The thrust of the cross-examination was that the appellant, armed with a fresh start, and knowledgeable now of the film and the investigator's evidence, had represented her testimony in a different way in order to accommodate the filmed observations which were not known to her when she first gave evidence. In these circumstances, to limit the court's scrutiny of the earlier transcript to particular questions and answers might run the risk of missing the context without which the appellant's alleged change of emphasis could not be judged. The need to look at the allegedly inconsistent or contradictory evidence in context has been acknowledged in a number of earlier decisions about the operation of s54 of the Evidence Act and the common law rules which the section has replaced. Thus in North Australian Territory Company v Goldsborough, Mort and Company [1893] 2 Ch 381, Lord Esher MR discussed the procedure to be followed in cross-examination upon a prior statement alleged to have been inconsistent. At 385, his Lordship said: "(If there were such occasion [to contradict him] what would have been the proper course to pursue? He is asked whether on the previous examination he was not asked a certain question, and whether it and his answer were not taken down, to which he answers yes; he is then asked whether he said a certain thing in his answer, and replies that before answering he wants to see or hear what was taken down. He has no right to require that; he is bound to say whether he denies it or not. If he denies what he is alleged to have said in his previous examination, he can be contradicted; but how is that to be done? By reading in contradiction what he has said before; but if this is done, the document which contains what he said before must be put in as evidence for the purpose of contradicting him, and if a part of the document is put in, the whole is put in. It is essential that if such a document is to be used for the purpose of contradicting a witness, it should be read to him, that is, after he has given his answer; and if that is done, and the document is used to contradict him, the whole must be put in evidence." In my opinion this statement must be read in the light of what has previously been said about the dangers of the admission of extraneous, irrelevant and immaterial matter which goes beyond the necessity of demonstrating inconsistency or contradiction. But the statement does emphasise the necessity that the inconsistency or contradiction alleged should be considered in the context of the relevant parts of the prior statement. Otherwise, if only small sections are taken in isolation they may not show the presence or absence of URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Kirby P) 13 inconsistency or contradiction in an appropriate and fair manner. See also Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498, 509 where Jordan CJ states: "[I]f the cross-examination is to some parts only of the statement, only that part and such other parts as are concerned with that part as to be necessary to explain it, may be put in. Meredith v Innes 31 SR 104." Thirdly, the course which was followed in the present case, including even possibly the admission of the evidence of Dr Ingram and Mr Szlicht might, upon one view, be justified on a different, although related, basis. If the case of the respondent on the retrial before Manser J was that the appellant had shifted her ground and was attempting to prove an entirely different case after she knew of the first hearing that a film of her activities had been taken, it would be relevant to this assertion to prove the whole manner in which the first trial was conducted. The entirety of the appellant's evidence before it could then be relevant in order to contrast that with the manner in which she presented her case on the second occasion. For this purpose, Dr Ingram's evidence could have been relevant not to prove inconsistency between his testimony on the first and second occasions but to show what the appellant had told him when she was unaware of the film of her activities. Mr Szlicht's evidence could have been relevant to show that the film and description of her activities were given in her presence. And her own evidence was relevant to show differences in emphasis and detail - as well as the demands for rest periods which were not previously recorded. Self-contradiction is normally demonstrated by a comparison of testimony on a later and earlier occasion. But it is not limited to testimony. Its purpose is to induce the tribunal to discard the later statement because the witness has earlier said or done something which is not consistent with or is contradictory of the later statement. Earlier behaviour may be so inconsistent as to cast doubt on the acceptability of later testimony. See JH Wigmore, Evidence in Trials at Common Law, (vol 3A, 1970) para 1040. In this case where the acceptability of the appellant's complaints was crucial, it was permissible for the judge to compare both her statements and conduct at the previous trial with her statements and conduct before him. So long as the matters of comparison were fairly drawn to her notice and she was confronted with the alleged inconsistency so as to be given an opportunity to respond to it, it was relevant to the task which his Honour had to perform that he should consider the comparison. Conclusions and order Whilst I have doubts that the transcript of the prior evidence of Dr Ingram and Mr Szlicht were admissible in the trial before Manser J, having regard to his Honour's reasons I do not consider that their admission affected in the slightest the conclusion which he reached. Any error involved in admitting their evidence was therefore irrelevant. It would not warrant disturbance of the award by this Court. So far as the appellant's own evidence at the first trial was concerned, I consider that it was relevant for his Honour to have this in its entirety before him. It was not long, being confined to some nine and a half pages of transcript, in contrast to the seventy pages of her testimony before Manser J. His Honour states that he confined his consideration of the appellant's evidence to the matters upon which she was cross-examined. This should be accepted. But even if he went beyond this, as the appellant argues, and if he used it to consider the evidence taken in its context and to contrast the behaviour which it appeared to demonstrate, I do not believe that this represented an error in the admission of the 14 UNREPORTED JUDGMENTS evidence. Certainly, it is not an error which would call for the intervention of this Court. If it were an error, in the manner by which Manser J reached his conclusions, I do not consider that it caused the trial to miscarry. It is clear that, quite apart from the alleged inconsistency with the testimony given before Thompson J, Manser J formed a view that he could not believe the appellant. In these circumstances, as her claim of incapacity rested not on physical signs but upon the acceptance of her symptoms, the award for the respondent which his Honour entered was virtually inevitable. It must be emphasized that in decisions upon the facts, the evaluation of witnesses and the resolution of controversies about the worker's incapacity, his Honour's determination cannot be disturbed by this Court. Our jurisdiction is limited to correcting those errors of law or rulings on evidence which are, in the context, significant for the award which is challenged. For the reasons which have been stated, I do not believe that this Court is authorised to disturb the award which Manser J entered and which he explained at length in his careful reasons for judgment. Order The appeal should be dismissed with costs. Priestley CL The circumstances giving rise to this appeal, and the arguments of the appellant, have been set out in the reasons of Kirby P. I agree with what Kirby P has said in coming to the conclusion that the first of the two arguments of the appellant, namely that the Court should hold that the evidence disclosed an agreement coming into existence in the course of the termination of the proceedings before Thompson J that the transcript from those proceedings would not be used in any subsequent proceedings, should not be accepted. The appellant's second argument was that the admission in the proceedings before Manser J of the whole of the transcript of what had taken place before Thompson J was a justifiable grievance within the meaning of s32(1) of the Compensation Court Act 1984. In my opinion this argument does not succeed. I base my opinion on one broad ground. One way in which the employer put its case before Manser J was that the claim urged by the worker before him was not a truthful one, but was contrived to meet the difficulties the worker had encountered when the case she was seeking to make before Thompson J ran into what might well have been the insuperable obstacle of the filmed record of her physical abilities, made at a time when she did not know she was being watched. The transcript of what happened before Thompson J was a complete record of what had been put before that judge as the worker's case, until the time when the film became part of the evidence, and of the way the case was thereafter conducted until terminated by Thompson J's disqualification of himself. The employer wanted, as part of its case before Manser J, to show that the difference between the two cases could bear no innocent explanation. As part of its effort to that end, it seems to me that the whole of what had taken place before Thompson J was relevant. What took place before Thompson J was relevant not only to the worker's own credibility, which may not have made the whole transcript admissible upon a strict application of traditional evidentiary rules, but it also seems to me to have been the best way of showing what the worker was trying to persuade Thompson J had happened to her, physically and medically in the course of her employment, and what were the later results of those happenings. The contrast between what the worker was trying to persuade the URJ OBRADOVIC v MAYFAIR FOODS PTY LTD (Priestley CL) 15 Court to accept as basing her statutory rights to compensation in the first case and the second, provided a very telling ingredient in the employer's argument that the second case was a contrived one not founded in fact. In short, it seems to me to have been relevant to the employer's defence of the worker's second case to show as fully as possible what her first case had been. No objection was taken before Manser J to the form in which the transcript was tendered; it was its relevance which was objected to. In these circumstances I do not think the worker can claim to be aggrieved within the meaning of s32(1) in relation to the admission of the transcript. In my opinion the appeal should be dismissed with costs. Counsel for the Appellant: DC Fitzgibbon and MJ Walsh Solicitors for the Appellant: Attwaters, Newcastle Counsel for the Respondent: PM Hall Solicitors for the Respondent: Hunt and Hunt, Newcastle