LASAITIS v EMAIL LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and HANDLEY JJA 10 May 1990, 23 May 1990 [1990] NSWCA 113 WORKERS' COMPENSATION — appeal — point of law — whether appeal on facts — appeal lodged before amendments to s32 introduced by Compensation Court (Amendment) Act 1989 whether amendments have retrospective operation — held: (1) Having regard to Schedule 4 to the amending Act of 1989, appeals made in respect of an award given in proceedings commenced before the commencement of the amendments of 1989 are not affected by the wider appellate right now given by s32(2) Accordingly the subject appeal was limited to points of law; (3) No relevant point of law being shown, the appeal should be dismissed. JUDGES — reasons — appeal — adequacy of reasons — point of law — possible alternative basis to find for worker — whether live issue at the hearing — held: (1) A judge of the Compensation Court is obliged to state findings adequately for the exercise of the appellate right provided under the Act; Pettit v Dunkley [1971] 1 NSWLR 376 applied; (2) But a trial judge is not obliged in reasons to deal with issues which were not in dispute at the conclusion of evidence and argument; (3) An appellate court must avoid the injustice that can arise from permitting a point, not seriously in dispute at first instance, to be raised for the first time on appeal. Banque Commerciale en Liquidation v Ackil Holdings Limited, High Court of Australia, unreported, 9 April 1990 applied; (4) On the facts, it was not shown that the trial judge had failed to deal with issues in dispute and any such failure could be adequately met by an application for review under s17(4) of the Compensation Court Act 1984, Compensation Court Act 1984, s17(4),32. Compensation Court (Amendment) Act lgag, s3, Schedule 1, CL12; Schedule 4, CLS. Workers' Compensation Act 1926, s6, s36(2) Kirby P, Meagher and Handley JJA In 1989 the Compensation Court Act 1984 (the Act) was amended by the Compensation Court (Amendment) Act 1989. One of the amendments enlarged the grounds of appeal from the Compensation Court to this Court to permit, for the first time, appeals on questions of fact in certain circumstances. This appeal determines whether that amendment has a retrospective operation such that an appeal against an award made before the amendment permits a challenge to fact-finding. If it does not, and the appeal is limited to the former narrow ground (relevantly of a "point of law'), it is necessary to decide whether any such point arises from the reasons of Moroney J leading to the award which the appellant challenges in this Court. Compensation for consequences of a heart attack Moroney J had before him what appears, on the face of the transcript, to have been a perfectly routine claim for compensation under the Workers' Compensation Act 1926. It arose out of the undoubted fact that Mr Alan Lasaitis (the worker) suffered myocardial infarction. This condition, involving the death of some of the tissue of the heart, may 2 UNREPORTED JUDGMENTS constitute, depending on the circumstances, an "injury" within the meaning of the Workers' Compensation Act. It may also cause incapacity within the meaning of that Act. The worker was employed by Email Limited (the respondent). As a result of his infarction, he suffered the incapacity for which he claimed compensation. Liability was denied. He issued an application for determination out of the Compensation Court. That application came on for hearing before Moroney J The issue before his Honour was, therefore, whether the worker (who bore the onus of proof) could establish that he had suffered an "injury" within the meaning of the Workers' Compensation Act such that his undoubted incapacity gave rise to an entitlement to compensation benefits. Cases of this kind have come before courts and compensation tribunals from the earliest days of workers' compensation legislation. One by one, statutory impediments to the recovery of compensation for the consequences of heart attacks have been removed. The 1926 Act in this State, for example, deleted the obligation, inherited from the earlier English legislation, to show that "the incapacity resulted from a personal injury by accident". Then, the entitlement provisions were made disjunctive. Whereas at first it had been necessary to show that the injury arose "out of and in the course of the employment", the Act was amended in 1942 to provide compensation where the worker could show that an injury had been suffered "arising out of or in the course of the employment". Also at that time there was inserted a specific provision in the definition of "injury" to cover certain cases of disease: "\.. and includes a disease which is contracted by the worker in the course of his employment, whether at or away from his place of employment, and to which the employment was a contributing factor...". As a result of the decision of the High Court of Australia in Darling Island Stevedoring and Lighterage Co Limited v Hussey (1960) 102 CLR 482, the Act was still further amended in 1960 to add to the definition of "injury" a further relevant meaning: "... and includes - (b) The aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration." The retention of both the causal and temporal connections between a disease and the relevant employment, as cumulative conditions of entitlement, has led to a somewhat different treatment under the Act to frank injuries, on the one hand, and injuries said to involve the aggravation etc of a disease, on the other. This is not the case in which to explore the refinements of that distinction. Both before Moroney J, and in this Court, the case has been dealt with on the traditional basis. This is, that the mere happening of what may be neutrally described as a "heart incident" at work does not, of itself, give rise to an entitlement to compensation. As will be shown, the facts of this case undoubtedly are that the worker collapsed at work and was taken straight to hospital. By the conventional approach this alone is insufficient to sustain a claim that the resulting incapacity is the consequence of an injury "in the course of" the worker's employment. Cf Kavanagh v The Commonwealth (1960) 103 CLR 547; Commonwealth v Hornsby (1960) 103 CLR 588; Pethick v The Commonwealth (1961) 103 CLR 643; Commissioner for Railways v Bain (1965) 112 CLR 246. At some future time, within the boundaries chartered by applicable High Court authority, it may be necessary to reconsider the circumstances which give rise to compensation entitlements for incapacity arising out of a "heart incident" which URJ LASAITIS v EMAIL LTD (Kirby P, Meagher and Handley JJA) 3 has occurred with appropriate temporal (although not causative) connection with the employment. In the present case, we are content to approach the matter on the basis upon which the parties presented it at the trial and in this Court. This is that, to recover compensation for his undoubted incapacity, the worker must show more than the fact that his incapacity immediately followed a "heart incident" at work. He must show that the incapacity is the result either of a physiological change occurring in the course of his employment or, if the aggravation etc of a disease, one to which the employment was a contributing factor. Over the many years that claims for compensation for heart attacks have been before the courts, no unanimity has emerged about the aetiology of the physiological conditions that give rise to the occlusion which causes the infarction and results in incapacity for work. Nor is there unanimity in medical opinion about the dynamics of the relationship (if any) between stressful or arduous physical work and such occlusion, infarction and incapacity. The Compensation Court, like its predecessor, the Workers' Compensation Commission, determines hundreds of cases of this character every year. One of the clear purposes of providing a specialised statutory court to deal with such cases is to permit efficiency in the hearing of evidence and the development of a certain expertise in evaluating the application of proved medical evidence to the facts in the particular case. It was doubtless considerations of this kind which, until recently, reserved all questions of fact to the final decision of the Compensation Court. It confined appeals to this Court to correcting errors of law or rulings on evidence. The worker suffers a heart attack The worker gave evidence before Moroney J of an incident happening to him in the course of his employment with the respondent on 22 August 1984. At about 2.30 pm he said that he was moving a very big refrigerator: "Q: What were you doing at that time? A: It was a refrigerator, domestic and I had two men give me a push on my trolley and I was wheeling it and I had to pull it down, and I was holding the weight because I didn't want to drop it and I felt a sharp pain across my chest while I was doing that. Q: What sort of refrigerator was it? A: It's old model, very big. Q: What it heavy? A: Well I couldn't lift it myself. Q: Had you tried to lift it? A: No, I just tried to hold it when I was putting it down. Q: The position is that you had the weight of this refrigerator and you were gradually lowering it? Is that correct? A: Lowering it down to the floor. Q: And as you were doing that did you experience something in your body? A: Yes. Q: What did you experience? A: Sharp pain across my chest. Q: And apart from that sharp pain across your chest did you notice anything else about yourself at that time? A: At the time I felt dizzy and start sweat." The worker finished his shift at 3.45 pm He travelled home. He did not feel well. He did not eat much at the evening meal. He was having slight chest pains and sweating. He was dizzy when he went to bed early at about 8 pm. At 1.30 am on the following morning he woke up with chest pain. He claimed that this was "different pain but... it wasn't severe as it was". He did not return to bed. He started work at 6.45 am He tried to do his ordinary work: "Q: Did you move some fridges? A: I moved - I was try to clean a refrigerator but sometime you got to move it. Q: And you had to move a fridge?... A: Yes. 4 UNREPORTED JUDGMENTS Q: And can you remember something happening to you after that? A: Last thing I remember I was cleaning a fridge and that's it. I remember in the ambulance on the way to hospital." The worker was taken to Bankstown Hospital and later Prince Henry Hospital. He later underwent operation by way of a graft to the artery serving the area which had been damaged in the infarction. This operation was performed on 25 February 1987 by Dr RM Allan. Five possible interpretations of the evidence From the history given by the worker in his evidence before Moroney J, as elaborated in cross-examination and tested by reference to versions given to treating and forensic medical experts, five possibilities emerged to explain the cause of his heart condition: The symptoms on 22 August 1984 constituted a mere transitory incident. They did no more than to draw attention to the insufficiency of blood supply to the heart. No infarction or permanent damage or injury occurred. The pain on moving the refrigerator was just a warning; 2. Moving the refrigerator on 22 August 1984 caused or precipitated the injury by way of infarction. That injury began at that time. That it happened then was shown by the virtual continuity of symptoms thereafter, especially when performing relatively minor tasks on the following day; 3. The incident on 22 August 1984 was a warning of coronary insufficiency. The actual infarction occurred when the worker was at rest at 1.30 am on the following morning. Thereafter he suffered a prolonged infarction which resulted in his collapse later in the morning and his transfer to hospital; 4. The infarction happened at work on 23 August 1984 whilst he was moving and/or cleaning a refrigerator. This was in a sense "the last straw". It resulted in the worker's collapse and his immediate transfer to hospital where the infarction was diagnosed; and 5. (As a variant of (4)). Although no frank injury occurred on 23 August 1984 at work, what he did on that day amounted to an acceleration or aggravation of his basically unstable condition. In that sense it constituted an "injury" and led to his incapacity which followed immediately. The trial judge dismisses the claim Moroney J heard the evidence of the worker and a co-worker. He also heard oral evidence from Mr Albert Tierney, an experienced insurance investigator and Dr John Raftos. He reserved his decision for nearly five months. On 25 June 1987 he entered an award for the respondent. In the course of his reasons he said: "I have thought long and hard over this particular case. The applicant is a very sick man and the issue for determination is whether or not he suffered a myocardial infarct as a consequence of effort at his work on 22 August 1984. The problem involved in making the determination is the difference in the histories given by the worker in relation to the alleged incident itself, although not really is there much in dispute about the original incident, but certainly there is much in dispute about what happened thereafter until the following day and it would seem that for the applicant to succeed in his claim he must establish on the probabilities that there was a continuity of symptoms from the time of the incident until his ultimate collapse on the following day and this is where the various histories that I have been given in the matter create a problem to which I have referred." The problem to which Moroney J was calling attention was that presented by the evidence of Dr John Raftos. He had been called to give evidence on behalf of the respondent. His initial examination of the worker took place on IS July URJ LASAITIS v EMAIL LTD (Kirby P, Meagher and Handley JJA) 5 1985. According to the history taken from the worker on that occasion, the incident on 22 August 1984 caused sharp pain across the top of the chest which lasted "a few seconds only". It did not cause any later pain or breathlessness. the next morning he awoke at 1.30 am with sweating and pain. On that history, Dr Raftos expressed the opinion that the infarction had occurred during the worker's sleep and could not be related to the incident at work on the previous day. When Dr Raftos, an experienced witness, received the "new history" of the incident at work with continuity of symptoms, he acknowledged that such history was "quite different". Upon that history, he agreed that the myocardial infarction could have been precipitated by the physical exertion described on 22 August 1984. Moroney J then examined the histories given by the worker to other medical specialists. These included Dr Z Freeman, Dr WA Seldon and Dr P Kendall. All of these specialists had seen and taken histories from the worker after the initial consultation with Dr Raftos. The only histories recorded before that consultation were those of the Bankstown Hospital, the Prince Henry Hospital, Dr LS Hughes and Mr Tierney, the investigator. His Honour does not refer to the hospital records or Dr Hughes' report. The Bankstown Hospital report merely states that the worker was "brought in by ambulance with a history of collapse, loss of consciousness associated with chest pain". The Prince Henry report records his admission to that hospital on 12 September 1984. It too contains no relevant work history. Dr Hughes, on the other hand, had first seen the worker on | November 1984. This is the history which he recorded: "The patient states he had had a coronary occlusion some eight weeks ago and had been treated at Bankstown and Prince Henry hospitals. He had suffered the pain when moving a refrigerator at work. The pain was described as being sharp in nature and felt in the centre of the chest and in the throat. No previous history of heart trouble." Mr Tierney's statement was taken on 28 November 1984. Moroney J referred to it and to Mr Tierney's oral evidence. The history there recorded was: "When pulling the weight onto the trolley I experienced severe pain across my chest and going up to my throat. This pain only lasted a very short time and I did not think too much about it at the time. I continued to move the trolley containing the fridge to where it had to go about 10 metres away and then I reported the incident to Mrs Beck in the office. She made a record of this in the book. I returned and carried on until the end of the shift, 3.45 pm I did not do very much during the remainder of the shift. Travelling home by public transport arriving home at about 5.15. I had no further problems. I had my dinner that night and retired at about 9.30 pm still feeling quite well. Next morning, Thursday 23/8/84 at approximately 1.30 am I awoke with severe pain in my chest, similar to that I experienced the previous after[noon]." After reviewing these various versions of what had happened, Moroney J reached his conclusion: "The applicant of course in evidence he gave a history of continuity of symptoms and it is not necessary to refer to it in detail, it stands there in the evidence. The applicant bears the onus of proof on this vital issue and quite frankly I am left in the state where I do not know what the truth of the matter is. I cannot be satisfied by the applicant on the probabilities. Were it just a clash between the applicant's evidence-in-chief and perhaps the histories as recorded by doctors, the applicant may have got up to the stage of probability but that written statement or the statement which he signed makes the resolution of the 6 UNREPORTED JUDGMENTS matter on probabilities very difficult and I am left in a state where, as I say, I do not know. That being the case, of course, I just make an award for the respondent." The appeal is confined to points of law A preliminary question arose in the appeal as to whether it was confined to points of law or could take advantage of the recent amendment to the Act. S32 of the Act, as originally enacted, provided for appeals from the Compensation Court to this Court in these terms: "32(1) If a party to any proceedings before the Court (other than proceedings before a Registrar) 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." In a series of cases, this Court drew attention to the anomaly of providing for appeals to this Court from the Divisions of the Supreme Court or from the District Court on questions of fact (where the amounts involved might be substantially less than amounts frequently involved in compensation awards) yet confining appeals from the Compensation Court to those listed in s32 of the Act. See eg Guven v Goodyear Tyre and Rubber Company (Aust) Limited, Court of Appeal, unreported, 2 December 1986 (see esp Hope JA) and Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 254. The result was the passage of the relevant provisions of the Compensation Court (Amendment) Act 1989 s3 which brought into force various amendments set out in Schedule 1. One of these was to amend s32 of the Act so that it now reads, relevantly: "32(1) A party aggrieved by an award of the Court constituted by a Judge may appeal to the Supreme Court. (2)... (3) If an appeal involves neither: (a) A point of law on the admission or rejection of any evidence; nor (b) Compensation amounting to $5,000 or more the appeal lies by leave of the Supreme Court. (4) In any other case, the appeal lies as of right." There was no doubt that compensation amounting to $5,000 or more was involved in the present claim. Accordingly, it became necessary to determine the effective date for the amendment to s32 of the Act. The Act was assented to on 24 August 1989 and commenced on a day thereafter appointed by proclamation. The appellant, conscious of the stringent test which has been applied in this Court in respect of appeals limited to points of law, sought to bring the case within the much more ample grounds of appeal now provided by s32. The award under appeal was made on 25 June 1987. The appeal was lodged soon thereafter. These steps occurred long before the assent to the 1989 amendments to the Act and the proclamation bringing the relevant amendment to s32 into force. To give the amendment, effectively, a retrospective operation, the appellant argued that it amounted to beneficial legislation, affecting matters of procedure which should therefore apply to all appeals awaiting hearing. A number of difficulties stand in the way of this argument. The operation of legislation enlarging rights to compensation or the circumstances in which such rights may be prosecuted has given rise to questions of some difficulty. See eg Maxwell v Murphy (1957) 96 CLR 261; Chang Jeeng v Nuffield (Australia) Pty Limited (1959) 101 CLR 629; Australian Iron and Steel Limited v Hoogland (1962) 108 CLR 471 and Western Pastoral Co v Eyeington (1971) 125 CLR 342. A law classified as "procedural" is always interpreted as retrospective in its URJ LASAITIS v EMAIL LTD (Kirby P, Meagher and Handley JJA) 7 operation without express words to that effect. The King v Kidman (1915) 20 CLR 425 at 437. See also Minister for Home and Territories v Smith (1924) 35 CLR 120, 128. However, a right to appeal has traditionally been regarded as one affecting substantive and not just procedural rights. See The Colonial Sugar Refining Company Limited v Irving [1905] AC 369, 372 (PC). In the present case, it is unnecessary to explore these principles or to apply them to the legislation. Here, Parliament has expressly provided that the amendment to s32 of the Act is to apply only prospectively. In Schedule 4 to the Compensation Court (Amendment) Act 1989 ("Savings and Transitional Provisions") it is provided by CLS under the heading "Appeals": 5(1) An appeal that does not involve a point of law or the admission or rejection of any evidence does not lie in respect of an award given in proceedings commenced before the commencement of the amendments made to s32 of the Compensation Court (Amendment) Act 1989. (2) The amendments made to s32 by the Compensation Court (Amendment) Act 1989 do not affect any appeals commenced before the commencement of those amendments." A valiant attempt was made to suggest that this provision related only to Commissioners of the Compensation Court. It is true that the other provisions of Schedule 4 relate to the Commissioners. However, that submission cannot be sustained. $32, to which CLS applies, was never confined to appeals from Commissioners. S32 always dealt with appeals to this Court from the Compensation Court. It cannot be read down as suggested. This is made especially clear because, by the amending Act, there are now no "appeals" from Commissioners to the Compensation Court. There are simply reviews of their decisions or references to the Compensation Court. Accordingly the reference to "Appeals" could not relate to "appeals" from the Commissioners. This makes it abundantly plain that the "appeals" being dealt with are precisely those provided for by s32 of the Act. There are appeals from Judges of the Compensation Court to this Court. This is such an appeal. Accordingly, the amendment to s32 does not affect an appeal such as the present which is brought "in respect of an award given in proceedings commenced before the commencement of the amendment made to s32". Thus the present appeal is confined, in the relevant terms of s32 as it originally stood, to one in respect of which the worker is aggrieved by the award "in point of law". There is no point of law The foregoing expression has been given a stringent meaning by a series of decisions in this Court. See eg Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; and Soulemezis (above). As explained by Glass JA (with whom Samuels JA concurred) in Azzopardi (at 155-6): "It is clear... that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury if vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that a fining of a workers' compensation... judge is vitiated in the same way discloses no error of law and would not constitute a valid ground of appeal. It is pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably 8 UNREPORTED JUDGMENTS unsound as this would not amount to an error of law. R v Metropolitan Court Holden at Sydney; Ex parte White (1966) 116 CLR 644, 654." It was acknowledged in Azzopardi (loc cit) that a finding of fact could reveal an error of law where it disclosed that the trial judge had misdirected himself or herself in the application of the statute. Such error will arise where the primary facts found "are necessarily within or outside a statutory description and a contrary decision has been made". See Hope v The council of the City of Bathurst (1980) 144 CLR 1, 10; Australian Gaslight Co v Valuer General (1940) SR (NSW) 126, 138. To overcome the stringent Azzopardi test, the worker sought to assail the reasoning of Moroney J upon two bases: (a) That it revealed the application of an incorrect statutory test to the facts; or (b) That it failed adequately to disclose his Honour's reasoning to his award and this constituted an error of law warranting the intervention of the Court of Appeal. The first argument was put by reference to Moroney J's repeated assertion that it was necessary for the worker to succeed to establish "on the probabilities that there was a continuity of symptoms from the time of the incident until his ultimate collapse on the following day". If we thought that this were an assertion of a proposition of law (or of an understanding of the terms of the definition of "injury" under the Act) we would agree with the worker's submission. However, we take this statement to be no more than an observation of fact. It amounted to saying that, without continuity of symptoms, his Honour would find, on the facts, that the incident at work on 22 August 1984 when moving the refrigerator was as Dr Raftos described it. According to Dr Raftos' opinion, it was no more than cardiac ischaemia of brief duration, resulting in no permanent damage to the heart muscle. It was in the nature of a warning. Given the worker's past history of obesity, smoking and hypertension, such a warning signal would not be at all unusual. The question to be resolved by Moroney J upon the approach taken before him, was whether any incident at work was causally related to the undoubted infarction which the worker suffered. Upon this basis it was appropriate to consider the history of his symptoms and their continuity from the alleged work incident to the point at which he collapsed and was diagnosed as having suffered myocardial infarction. If there were continuity, in his Honour's opinion, this would certainly sustain a conclusion of a relevant causal relationship. If there were not, it would not necessarily exclude recovery. But it would raise a question as to whether the incident had caused an "injury" under the Act or was merely the "warning signal" which Dr Raftos described. We would therefore not conclude that this was a case where his Honour was displaying the application of an incorrect statutory test. In our opinion he was merely revealing his processes of reasoning to resolve the factual question as he defined it. In any case, at the end of his reasons, his Honour came to state the basic reason that caused him to dismiss the claim. This was the failure of the worker, who bore the onus, to establish the "continuity of symptoms" which would sustain a continuing link between a relevant work incident and the myocardial infarction later diagnosed. It was on the failure of the worker to discharge that onus that his Honour finally dismissed the claim. There are reasons of a factual kind to criticise his Honour's conclusion. For example, he does not refer to the history given to Dr Hughes which pre-dated the history taken by Investigator Tierney and Dr Raftos. But facts were, under the Act as it then stood, the exclusive province of URJ LASAITIS v EMAIL LTD (Kirby P, Meagher and Handley JJA) 9 the Compensation Court. By the Azzopardi test, no error of law in his Honour's reasoning has been shown such as would attract the jurisdiction of this Court to disturb his award. The findings and reasons are adequate The worker then moved to his alternative argument. Following Azzopardi a series of decisions in this Court reflected the attempts to outflank the stringency of the test there stated by attacks on the adequacy of the reasoning of the judges of the Compensation Court. See eg Rees v Walker and Anor, Court of Appeal, unreported, 13 December 1988; (1989) NSWJB 8; Russell v F J Walker, Court of Appeal, unreported, 10 February 1989; (1989) NSWJB 28; Mafulu Pty Ltd v Mather, Court of Appeal, unreported, 13 December 1988; (1989) NSWJB 40; cf Palmer and Ors v Clarke and Ors, Court of Appeal, unreported, 26 September 1989; (1989) NSWJB 225. In this way, attempts were made to find a relevant point of law to warrant disturbance of the award and an order for retrial. It may be expected that, with the amendment of the Act, this fashion will disappear. But it flourished for a time. It was given encouragement by Soulemezis (above). In that case attention was drawn to the obligation expressed in Pettit v Dunkley [1971] 1 NSWLR 376. In that influential decision, Asprey JA had emphasized (at 382) the duty of a trial judge, subject to a statutory right of appeal, to make findings so that the disappointed party is not left in doubt as to how the matter has been resolved or deprived of the right of appeal. The judge is duty-bound to state the findings in a way adequate to serve the purpose reserved by the appellate right. In this case, the appellant contended that Moroney J had failed to do this. He suggested that this was demonstrated by his Honour's failure to consider and determine the alternative hypotheses upon which he might recover compensation. By reference to the five-fold analysis of the facts stated above, it was asserted that Moroney J had dealt only with possibility (2). He had not dealt, adequately or at all, with possibilities (4) or (5). These, it will be recalled, envisage that the worker had suffered an "injury" on 23 August 1984. He had done so either by receiving a frank injury whilst carrying out his duties that succeeding day or by suffering an aggravation etc of his underlying coronary artery disease that day. It is true that Moroney J does not deal in his reasons with either of these possibilities. However, there could be a number of explanations for his Honour's failure to do so: 1. The application for determination had not referred, in terms, to an injury occurring on 23 August 1984. It stated in para 5, the date and place of the injury alleged were: "Nature and conditions of the applicant's employment with the respondent involving stress to the applicant's heart and on or around 22/8/84 the applicant suffered a heart attack while carrying out work for the respondent which injured his heart." No application was made in the course of the hearing before Moroney J to amend this paragraph. The Compensation Court is not a court of strict pleading. A fair degree of flexibility is allowed, beneficially, in the taking of evidence relevant to compensation claims. Sometimes evidence is allowed to range more widely than the application for determination. However, the importance of appellate courts having due regard to the issues for determination at first instance has been emphasized in a series of recent decisions of the High Court of Australia. The most recent is that Court's as yet unreported decision in Banque Commerciale SA en Liquidation v Akhil Holdings Limited, (High Court of Australia, unreported, 9 April 1990). That decision applies a number of earlier 10 UNREPORTED JUDGMENTS decisions which stress the injustice that can arise if an appellate court allows a point to be raised for the first time on appeal. Suttor v Gundowda Pty Limited (1950) 81 CLR 418, 438; University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481, 483; Coulton v Holcombe (1986) 162 CLR 1, 7-8; O'Brien v Komesaroff (1982) 150 CLR 310, 319. Even in a court which is not one of pleading in the strict sense, this Court should have regard to the defined issues for trial before allowing a matter to be argued before it which was not within those issues. Certainly, on the application for determination before Moroney J, no specific issue was tendered as to an injury on 23 August 1984. On the contrary, so far as a specific incident was concerned, the only issue tendered was that with which his Honour dealt, viz the alleged injury of 22 August 1984. This is unsurprising because it was the only incident which the worker referred to in his report to Dr Hughes, Dr Raftos and the other medical experts. The "incident" on 23 August 1984, such as it was, only emerged in the oral evidence of the worker at the trial. And it is significant that, to the very end of the hearing, no application was made to amend para sof the application for determination. 2. No transcript was taken of the oral argument of counsel at the hearing. Different counsel were retained in this Court. They were unable to inform the Court as to whether it was put to Moroney J that he could find for the worker on the basis of an alleged incident on 23 August 1984. No written submissions were available for scrutiny, although his Honour reserved for a time. The Court was informed that a sound recording was made of the oral arguments of counsel. Doubtless this would be available. However, no application was made, by affidavit or otherwise, to place before this Court before its hearing evidence to lay a basis for a contention that Moroney J had failed to attend to an alternative way which had been argued by which the worker could succeed. A judge is not obliged to deal in reasons for judgment with every possibility, however remote, raised by evidence at the trial. Specifically, a judge is not obliged to deal in reasons with grounds not raised by the pleadings or originating process and not relied on by legal representatives appearing for the parties or by the parties themselves. A judge is certainly not obliged to deal with issues abandoned or not pressed. It is sufficient in reasons to deal with the true issues remaining at the end of the case. For all this Court knows, that is what Moroney J did in the present case. The application for determination, the statements made by the worker to his own medical advisers and to expert witnesses and his statement to the insurance investigator are all consistent with the inference that the real case finally left for decision by Moroney J was whether what had happened at work on 22 August 1984 was causally related to the infarction later diagnosed. If that was the case, it was sufficient for Moroney J to deal with that issue. His failure to deal with other possibilities does not amount to a failure on his part to observe the obligations stated in Pettitt, Soulemezis and other decisions in the series. 3. This conclusion can more comfortably be reached when it is remembered that a remedy exists, apart from appeal, for a case where a judge of the Compensation Court fails to address a suggested argument which would sustain a conclusion contrary to that which he or she has reached. By s17(4) of the Compensation Court Act it is provided: 17(4) Nothing in subs(3) shall prevent the Court constituted by a Judge from reconsidering any matter which has been URJ LASAITIS v EMAIL LTD (Kirby P, Meagher and Handley JJA) 11 dealt with by it, or from rescinding, altering or amending any decision previously made or given by the Court so constituted, all of which the Court shall have authority to do." The provision follows a similar provision in s36(2) of the Workers' Compensation Act 1926. The width of the provision has been referred to in a number of cases. See eg Hardaker v Wright and Bruce Pty Limited (1962) 62 SR (NSW) 244 applying Hilliger v Hilliger (1952) 52 SR (NSW) 105. Although a distinction exists between the power and the circumstances which would call for its exercise, we have no doubt that it would be open to a Judge of the Compensation Court to review a decision where it was shown that it had been reached without considering an available and possibly determinative argument which might be sustained by the evidence. It is at that point that the sound recording of the arguments which were put to Moroney J might be relevant to considering whether the issue lately advanced in this Court was in fact a live one when the argument concluded before his Honour. We make no observations on whether this is, or would in certain circumstances be, an appropriate case for review under s17(4) of the Act. That is a question reserved by the Act to the Compensation Court. The result is that none of the attacks on the reasons of Moroney J are sustained as being within the narrow confines of a "point of law". At the relevant time those confines governed appeals from the Compensation Court to this Court. Accordingly, the appeal must be dismissed with costs. Counsel for the Appellant: PE Blacket / M Clarke Solicitors for the Appellant: Turner Freeman Counsel for the Respondent: BJ Gross QC / P Deakin Solicitors for the Respondent: Hickson Lakeman and Holcome