ANNE MARIE FISHING COMPANY PTY LTD v HEDDLES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, PRIESTLEY and MEAGHER JJA 30 August 1989, 30 August 1989 [1989] NSWCA 5 APPEAL — Compensation Court — error of law — alleged failure to afford counsel opportunity to address court but no such failure found and therefore no breach of rules of natural justice or procedural fairness: Escobar v Spindaleri (1986) 7 NSWLR 51 referred to. ORDER Appeal dismissed with costs. Samuels AP This is a somewhat unfortunate case - although I make it clear at the outset that in my view, the appellant has failed to make out its contention that it received less than procedural fairness and that the award against it was tainted by a denial of natural justice. The facts may be shortly stated in this way. Judge O'Meally in the Compensation Court embarked upon an application for determination in which the present appellant was the respondent. I will call it the employer. The learned judge heard evidence during the morning and adjourned at one o'clock saying that he would return to the bench in order to hear addresses at two o'clock. Counsel for the employer had accepted the brief late the evening before and had done so largely because this case was then to be listed before Judge Moran before whom he already had engagements. It therefore appeared safe enough to accept this obligation as well on the footing that counsel's forensic exercises on the day would be confined to one judicial arena. However, as so often happens, the listing was changed and this case was listed before Judge O'Meally. This left counsel in a difficulty with which anyone who has practised at the bar will be quite familiar, despite the passage of years. All appeared to be going well enough, however, because counsel's cases before Judge Moran had not come on before luncheon or had been adjourned or stood down. It seemed that counsel would therefore have time to address at two o'clock and then go off and fulfil any duties he still had elsewhere. However, as it turned out, Judge O' Meally was rather more than thirty minutes late in returning to the court. This threw counsel's plans completely awry. We have, in addition to the exiguous account which appears in the transcript, received affidavit evidence, without objection, which is conceded by counsel for the respondent to contain an accurate account of what relevantly occurred. This evidence consists of the affidavit of counsel who appeared for the respondent and that of his instructing solicitor on that occasion. From these sources and from the transcript it appears that having waited about twenty five minutes, counsel, seeing that there was impending a clash of obligations which was likely to prove disastrous, went off, it seems, to Judge Egan's court to arrange for somebody else to take over his brief, or briefs, there. His instructing solicitor was also absent from the court engaged upon other business in the Compensation Court complex. When the judge returned to the bench round about two-thirty or so, there was no representative of the employer 2 UNREPORTED JUDGMENTS in court. The transcript indicates the matter was called without response and the learned judge then observed, presumably facetiously, that he was assuming the respondent had lost interest in the case. Then counsel for the worker, the respondent before us, said, "Counsel told me he was going before Judge Egan and asked me to convey that to your Honour and I am doing so". I think at this stage one should interpolate material from the instructing solicitor's affidavit. It appears that she entered the court at about that moment, saw the judge on the bench and did not see her counsel. She was told by another member of the bar that the matter had been called and, naturally, thrown into a state of perturbation, she sought to leave the court to look for counsel. As she commenced to walk out of the court, the judge said, "And where do you think you are going" or words to that effect, to which she replied, "To find counsel, your Honour" to which the judge responded, "Well, you can't". At that point, the instructing solicitor moved to the bar table and sat down and the judge then said, "Does the respondent wish to address?" which is the version in the affidavit, or, "What do you want to say?" which is the court reporter's version. However that may be, the instructing solicitor then addressed and his Honour then gave what, if I may say so, appears to be a careful, lucid and thoroughly considered judgment in which he made an award of partial incapacity under s11(1) in favour of the worker and, for various periods, including the dependency of a de facto wife and two children. The employer appeals on two grounds. First, that the employer was denied natural justice because counsel was effectively prevented from addressing or, at least, was not given the opportunity to address, in breach of the party's procedural right. Reliance is placed upon the decision of this Court in Escobar v Spindaleri (1986) 7 NSWLR 51 and, particularly, what was said by the President at 56. Secondly, it is submitted there was no evidence of any dependency. The application before Judge O'Meally was not entirely routine though certainly of a type common to that jurisdiction. The worker complained of a low back injury which was not satisfactorily identified clinically, but which allegedly caused him pain and incapacity manifesting itself in inability to perform the heavy and moderately heavy work in which he had been engaged prior to the injury. There was a film showing the worker doing things which he had denied his ability to perform. It was, however, as films so often are, a film merely of one day in the worker's life of incapacity and was, of course, dealt with by being attributed to a good day, one of a number of which the worker had spoken as being days on which he was more agile than at other times so the case involved incapacity in this factual context, and also dependency which had been, at least formally, put in issue. The worker was cross-examined at length about incapacity. There was no cross-examination about dependency or any evidence led on that point. The argument developed by Mr Hoeben, who did not appear in the Compensation Court, is, in short, that his client was entitled to have the benefit of counsel throughout the case. It had a right to proper presentation of its case and it was denied these advantages by the learned judge's conduct. I do not think, as I have already said, that these arguments are made good for these reasons. Certainly the learned judge, if I may say so with all respect, should not have come onto the bench thirty minutes after he said he would, at least not without informing counsel that he would be delayed. There may be a great URJ — ANNE MARIE FISHING COMPANY PTY LTD v HEDDLES (Samuels AP) 3 number of legitimate reasons for such delay, but if a judge or a court is going to be more than a few minutes late, they ought to inform counsel; particularly I think - and I speak from personal recollection though growing dim with years it is true - in a jurisdiction such as the Compensation Court whose smooth running depends very much upon close co-operation between the bench, the bar and the solicitors. I said during argument that, strictly, counsel who accepts a brief undertakes to be present to see it through to completion without distraction offered by other obligations. That is true. But it is to some extent a counsel of perfection of which some infractions are permitted in certain circumstances. In the Compensation Court, counsel commonly hold more than one brief. This is notorious. It does not disadvantage litigants in the ordinary course provided that a reasonable amount of leeway is permitted by those who run the courts, as it should be. Secondly, there was an unfortunate lack of communication when the learned judge did resume the bench. I wish to emphasise that I am not criticising counsel or the instructing solicitor. It is easier to be wise after the event perhaps than to make the correct decision at the time. However, it would have been, one would have thought, simple enough for the solicitor to have explained to the judge where counsel was and the precise purpose of her leaving the court, and to have asked the judge if he would mind waiting for a minute or so while she found counsel. If I may say so, counsel for the worker who was in court and who informed the judge that his opponent was absent, might perhaps have fleshed out the reasons for that absence, if he knew them. Maybe he was not sympathetically recorded by the court reporter. As matters turned out though, all the learned judge knew was that counsel was not there. He was not told why he was not there except that he was going to Judge Egan. This he might well have understood to indicate that he had gone off to take another matter before Judge Egan and that there was no certainty when he would return. In those circumstances and there being no application for an adjournment, and no further explanation tendered, I do not think it is right to criticise the judge for proceeding in the matter as he did. I do not think that his doing so deserves the strictures of a denial of natural justice or of an act of procedural unfairness. It is submitted by Mr Hoeben that the judge should have made some inquiries himself. I am sympathetic to that submission and, indeed, I think that perhaps the judge might have made an inquiry himself which could have cleared up the whole thing. But equally, I do not think that his failure to do so authorises us to find a denial of natural justice. Accordingly, in my view the first submission fails. I can merely say that it should be borne in mind in courts such as the Compensation Court that, as I have said, the smooth functioning of the jurisdiction depends to a large extent upon the co-operation between all those involved and if I may be permitted to say so, upon the punctuality of both the bench and the bar. As to the second point, there was some rather exiguous evidence led on the question of dependency. There is evidence in a history in a medical report which goes a good deal further. It is, however, difficult to say what the evidentiary status of that material is. The learned judge in his judgment says that no submissions were addressed on the question of dependency. That, I think, is probably an argument which tends to support the first contention rather than the second as supporting what counsel put to us about the desirability of having counsel there who had prepared the case 4 UNREPORTED JUDGMENTS from the advocate's point of view, rather than the services of the instructing solicitor which, though no doubt valuable, lacked that preparation because she could not have expected that she would have to argue the case before the judge. However, all in all, I do not think it is possible to say that there was no evidence of dependency upon which the judge could make the findings he did. I would myself have been prepared to infer from the evidence which the worker himself gave that the wife and the children had been dependent upon him during the periods when they all lived together as a family unit. Accordingly, in my view, the second point fails and I would propose that the appeal should be dismissed with costs. Priestley JA I agree. Meagher JA I also agree. The order of the Court is the appeal is dismissed with costs. Counsel for the Appellant: C Hoeben Solicitors for the Appellant: Michell Sillar and Brown Counsel for the Respondent: G Mackay Solicitors for the Respondent: SD Ratner