PACIFIC FORMWORK PTY LTD v BIGNILL [1992] NSWCA 176

PACIFIC FORMWORK PTY LTD v BIGNILL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 9 July 1992, 5 August 1992 [1992] NSWCA 176

WORKERS' COMPENSATION — partial incapacity — maximum award — evidence for — reliance on wages schedule filed — held: Employer acquiesced — evidence supports award. WORKERS' COMPENSATION — procedures — informality — necessity to identify and mark exhibits with care. WORKERS' COMPENSATION — partial incapacity — award at maximum rate — appeal on point of law — whether any evidence to support award — whether trial judge (Moroney CCJ) had regard to materials not in evidence — reference to and use of wages schedule filed pursuant to Compensation Court Rules, r29AD — whether proper basis for determination — whether judge adequately exposed his reasons — held: (dismissing appeal) (per Clarke JA; Kirby and Priestley JA concurring): (1) In the circumstances of informal procedures and imperfect transcript, it was sufficiently clear that the trial judge intended to rely upon the wages schedule filed; (2) Even if this schedule was not properly received into evidence, in the circumstances, the employer's counsel was adequately alerted to the intended use to be made and acquiesced in that course so that the employer could not, on appeal, raise the objection without procedural unfairness. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 applied; (3) There was therefore evidence to sustain the award and the judge's reasons for it were adequately disposed; (4) Appeal dismissed.

WORKERS' COMPENSATION — procedures — Compensation Court — informal procedures — observations by Clarke JA (Kirby P and Priestley JA concurring) on the need for care to ensure that no procedural injustices occur and that each case is decided only on evidentiary material properly before the Court. The Court should identify and have recorded in the transcript, each of the exhibits which are admitted into evidence.