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. "Expeditious disposal of a case is creditable but only if procedural justice is accorded to both parties". Workers' Compensation Act 1987, s40, s66. Compensation Court Rules, 129AD. Kirby P I agree with Clarke JA. Priestley JA I agree With Clarke JA. Clarke JA Ian Bignill (whom I shall call "the applicant" throughout this judgment) claimed compensation from his employer (Pacific Formwork Pty Ltd) in respect of an injury which he suffered in the course of his employment on 31 July 1987. The issues which arose upon the hearing of the application were whether he had established that he was incapacitated as a consequence of his injury and, if so, the assessment of the amount of compensation properly payable to him. Moroney J concluded that the applicant had established a partial incapacity for work and there has been no appeal from this finding. Having concluded that the applicant was partially incapacitated his Honour awarded him the maximum amount payable in respect of incapacity in respect of the whole period since 24 2 UNREPORTED JUDGMENTS March 1989. His Honour determined that the applicant was entitled to the maximum amount because the difference between the moneys which he would probably have earned if not injured and those which he could earn in his injured capacity equalled or exceeded the maximum amount of compensation payable in respect of incapacity to a person in the position of the applicant. In order to illustrate this approach it is convenient to take his Honour's findings relating to the first period with which he dealt which was between 24 March 1989 and 31 March 1989. In that period his Honour concluded that the applicant probably would have earned $532.30 per week if uninjured and as he was capable of earning $320 per week in his injured condition he demonstrated an entitlement to $212.30 per week which was in fact the maximum amount of compensation payable to someone in the position of the applicant during that period. In this appeal, which is limited to a consideration of errors of law, Pacific Formwork Pty Ltd (for the sake of convenience I will describe it as the respondent despite the fact that it is the party which is appealing) asserts that the findings relating to the applicant's probable earnings were not supported by any evidence or, alternatively, resulted from an incorrect appreciation by his Honour of the evidence which was actually before him or a misapplication of that evidence. Because the case continued over a number of days at Bellingen and Sydney and because the transcripts of the proceedings do not appear to be complete it is a little difficult to determine what documents were actually tendered before his Honour. In these circumstances it is important to trace through what occurred during the hearing in order to determine what evidence was before his Honour. On 25 October the applicant filed in the court office an amended wage schedule. This was done pursuant to r29AD of the Compensation Court Rules (which was the rule in force at the relevant time). That rule provides: "Tn any application where the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period the following provisions shall, unless the court otherwise orders, have effect: (1) The applicant shall file and serve on each other party not later than 21 days before the hearing date, a schedule containing full particulars of such earnings during such period. (2) If any party disputes the accuracy of any matter in the schedule that party shall, not later than 7 days after service, file and serve a schedule containing its allegations of such earnings. (3) A matter not so disputed shall be deemed to be admitted." There was no evidence when the amended wage schedule was served upon the respondent but there can be no doubt that it was served for on 9 January 1991 the respondent filed its own wage schedule. Prior to the respondent filing its schedule the case had come on for hearing at Bellingen and on that occasion the applicant gave evidence in chief. The case was next before the court on 29 January 1991 but there is no transcript of the proceedings of that day. There is, however, a record of exhibits which indicates that two reports of Dr P A Hefner, dated 17 March 1989 and 30 October 1990 respectively, were tendered and marked Exhibit A. On the next day, that is 30 January 1991, the matter was again before the court when the applicant concluded his evidence in chief, was cross examined and re examined. URJ PACIFIC FORMWORK PTY LTD v BIGNILL (Clarke JA) 3 When the applicant had finished giving his evidence his counsel tendered a further report of Dr Hefner, dated 3 February 1989, and that was marked Exhibit B. Following the tender of that report there was a discussion between counsel for the applicant and the judge concerning a letter which counsel wished to tender. The transcript records that the following interchange took place: "MR SHARPE: It is a letter from - it is about the applicant's employment opportunities. I rely on my schedule your Honour, and that is my case. HIS HONOUR: Yes. MR SHARPE: Although my schedule of course has the - there is the evidence about the other (inaudible). HIS HONOUR: Yes, the next exhibit will be C I think, or is it B, it might be B. Yes, Mr Grant. MR GRANT: I have got two reports if I could tender them, your Honour. Dr Lock. EXHIBIT Report of Dr Lock of 7.12.88 tendered by Mr Grant EXHIBIT Report of Dr S Potter of 23.1.89 tendered by Mr Grant HIS HONOUR: What do they say. MR GRANT: They both - well, Dr Potter says: He maintains there is ongoing pain in the left leg. I cannot clinically define the reason for this. His injuries are now (inaudible) but although cosmetic would not provide a significant functional loss of the limb from being a labourer. Dr Lock says much the same. He feels he is quite capable of carrying out any work that he wants to." Before proceeding to deal with later events I should point out, first, that the words "I rely on my schedule your Honour" assumed some importance in the appeal and, secondly, that the letter to which the applicant's counsel referred does not appear to have been admitted into evidence. Immediately following the last statement attributed to Mr Grant counsel for the applicant commenced his address. He was interrupted very early in his address by his Honour who said that he considered that the applicant had an ongoing partial incapacity. This statement was followed by the applicant's counsel pointing out that there was a claim made under s66 of the Workers Compensation Act 1987 to which his Honour responded: "Well I was going to ask you about that. I intend to give him the maximum rate under s40. I don't know I think I might send the s66 to a panel." The reference to the maximum rate under s40 was, of course, a statement made in relation to the claim for weekly compensation in respect of partial incapacity. The transcript then records that counsel for the respondent made a submission, or some submissions, which were not audible to the court reporter and then said "The only thing I would say, I didn't address your Honour about s66 but the -...". There was then further discussion about the s66 claim which culminated in his Honour saying he would send it for assessment by a medical panel. Having said that his Honour commenced giving his oral reasons and was immediately interrupted by counsel for the respondent who said, inter alia, "I assume your Honour has in front of your Honour - your Honour has some wages information?" His Honour replied that he did have and in response to a further question from the respondent's counsel stated that the information emanated from the respondent. Upon being apprised of that fact counsel apologised for the interruption and sat down. His Honour then proceeded with his reasons and having indicated that he accepted the applicant's case on incapacity proceeded to 4 UNREPORTED JUDGMENTS say "The applicant's earnings, probable that is, are set out in a schedule filed on his behalf and they amount to - in the period 24.3.89-6.7.89 $600 per week". Counsel for the respondent again interrupted saying "Your Honour, that's why I asked you. I am sorry that's why I interrupted, because in fact there is some material I would like to put before your Honour." That statement led to the following interchange: "HIS HONOUR: Did you find the schedule? MR GRANT: It's not the one. If it is the one I think I had - because that was the figure that was disturbing. Your Honour $600 is a fairly (inaudible). Just excuse me, your Honour, I am sorry. The schedule that is before your Honour talks in terms of $398-$424. HIS HONOUR: That is the Award rate, you see, that is the difference. MR GRANT: That is s40, it's a question of comparing Award Rates. HIS HONOUR: I think what I will do is I will stand the matter over until tomorrow morning. You are both here tomorrow. You can have a look at these wages and tidy it up in the meantime. MR GRANT: It just disturbs me, your Honour, if your Honour is working on a $600 figure it is - HIS HONOUR: Well, I will do that and then I will make the formal findings as to earnings tomorrow. You can have a talk about it in the meantime, but there will be some award pursuant to s40 on a weekly basis and on an ongoing basis in favour of the applicant, together with his hospital and medical expenses and his costs, and I will refer the s66 assessment of disability in the leg to a medical panel. Those things I will formally do tomorrow morning." On the next morning the respondent's counsel tendered a copy of a letter which the respondent had written to its solicitors and was dated 23 October 1990 and also formally tendered the wage schedule which had previously been filed on behalf of the respondent. The next part of the transcript is a little difficult to follow as the dialogue which continued between the judge and counsel was only partly transcribed. However, there is no doubt that the respondent's counsel was then seeking to use the letter and schedule he had tendered to demonstrate that it would be wrong to award the applicant the maximum amount allowable. Then follows dialogue between both counsel and his Honour which I should set out: "HIS HONOUR: Just a minute, the respondent's wage schedule has his earnings, has his award rates at $398, $411 and $424. MR SHARPE: That's right. MR GRANT: Yes, and I think your Honour will find that that letter bears - will have reference to what his earnings would have been, indicative of the fact that the applicant's wage schedule is not right. MR SHARPE: Now, your Honour, the whole problem in this case was that it was his first day of work, second day of work. They have indicated what the award rates would be, so to speak. Now the applicant himself gave evidence, your Honour,- that (a) In the normal course of events he worked in the building industry at a certain style of work, that is he got paid and he did Saturday work and so on. Now in getting at that top figure, your Honour, taking into account in that figure on the applicant's schedule is the fact that in the normal industry of which he is employed, this Formwork industry, the average person in the industry works a usual overtime. And that is how the figure in the applicant's schedule came to be. The respondent's schedule -- " URJ PACIFIC FORMWORK PTY LTD v BIGNILL (Clarke JA) 5 Following this exchange his Honour engaged in discussion with counsel for the applicant about the correct approach under the 1987 Workers Compensation Act to the claim made by the applicant. Nothing of relevance was said at this time by the respondent's counsel until he responded to a statement by counsel for the applicant. This exchange I should record - it reads: "MR SHARPE: In the applicant's schedule and his evidence that in the normal business that he worked he worked a true because you have got to remember it was his first day of work. Now I have the difficulty that - true the award rate of pay is on the basis of so much per week. You are talking about building formwork which is usually done, your Honour, according to demand, not according to the - working a 38 hour week. MR GRANT: If that's the case and there is no work there I would take (inaudible) notice of the fact that he would get none. (inaudible) HIS HONOUR: (INAUDIBLE)" The debate continued for a short time thereafter although it is, I think, fair to say that according to the transcript nothing of consequence was said by either counsel until his Honour indicated an intention to reserve his decision. It would appear that when his Honour came to deliver his decision the problems of transcription continued for the transcript opens with the words "technical fault". There then appears a portion of the judgment which is substantially identical with what his Honour had earlier said and this is followed by a space in the transcript which indicates that part of what his Honour said was not recorded. When his Honour came to consider the quantification of the amount to be awarded he said, amongst other things, "The probable earning situation of the applicant is that he was a high earner and I have had regard to the earnings which are set out in the amended wage schedule." This statement leaves no room for doubt that his Honour used the figures in that schedule to justify his ultimate findings relating to the probable earnings of the applicant. Before turning to deal with the various complaints made by counsel for the respondent I should say that it seems to me that most, if not all, of the problems which have arisen in this case have resulted from the fact that there was a degree of irregularity in the manner in which the proceedings were conducted. In particular, the informality which seems to have attended the proceedings has led to confusion as to what documents were actually tendered in the trial. I recognise that judges in the Compensation Court work under extreme pressure and, at times, great difficulty and that there may be a need for them to take short cuts on occasion. However, where procedures designed to achieve the expeditions disposal of a case are adopted care should be taken to ensure that no procedural injustices occur and that the case is decided upon evidentiary material which is properly before the court. Furthermore, it is essential that the case is decided on evidence which is, and is known to both parties to be, before the court. In this respect it is essential that the court identify, and have recorded on the transcript, each of the exhibits which are admitted into evidence in the proceedings. No doubt in many cases there is material in the court file which may bear on the issues joined between the parties but unless that evidence is tendered in open court and each party given sufficient opportunity to deal with it that matter should be disregarded. Expeditious disposal of a case is creditable but only if procedural justice is accorded both parties. 6 UNREPORTED JUDGMENTS In this case it does not appear from the transcript that the applicant's amended wage schedule was ever received into evidence. For this reason it would seem that no opportunity was given to counsel for the respondent to object to the reception of the schedule into evidence or, if it was in evidence, to determine upon what basis it was received. Obviously the document was admissible to establish that a schedule had been filed in accordance with r29AD and, if service of the document had been established, the applicant may have been able to establish that it should be deemed to be admitted (r29AD(3)). However, there was no proof of service and, while it is clear from the respondent's wage schedule that the amended wage schedule filed by the applicant was served upon the respondent, there was no evidence that the wage schedule filed in reply was not filed within 7 days of service of the original schedule. Nor was there, for that matter, any evidence that the respondent's wage schedule had been served upon the applicant's legal representatives, although the lack of an objection when it was ultimately tendered would tend to suggest that service had occurred at some stage. In the circumstances there was no basis upon which the applicant could contend that the figures in its amended wage schedule should be deemed to be admitted. If this be right then there would seem to have been no basis upon which the amended wage schedule could have been admitted into evidence over objection. The mere statement by the applicant's legal advisers that his actual earnings, and theoretical earnings if uninjured, were X and Y did not, except in the circumstances provided for in r29AD, constitute evidence that his earnings were as stated. If, however, the schedule had been tendered and received into evidence without objection then the question would have arisen what use could be made of the schedule by the learned trial judge. The document was a self serving statement lodged in court by the applicant's legal representatives and, as I have indicated, it would seem to me that unless the applicant could have shown that its contents were deemed to be admitted it was not legally admissible. If this is right and the document had been admitted without objection then it may be, as Samuels JA concluded in Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 219, that the contents constituted evidence in proof of the issue to which they were relevant. In fact this question does not arise for the document does not appear to have been tendered. The real difficulty in the case arises from the fact that the applicant's amended wage schedule was before the trial judge and both parties knew that his Honour was intending to rely upon it, or at least to consider it together with other evidence, in determining what figure should be allowed in respect of the applicant's probable earnings if uninjured. Although as I have earlier said there does not seem to me to have been an evidentiary basis for the receipt in evidence of that schedule my reading of the transcript leads me inevitably to the conclusion that his Honour regarded the schedule as in evidence and so did both counsel. In saying that I recognise that counsel for the respondent was initially unsure whether there was evidence relating to earnings before his Honour but that matter was clarified and he could have been left in no doubt at all by his Honour's reference to the schedule in his initial, and partial, statement of reasons. Once counsel for the respondent became aware that his Honour intended to rely on the schedule he did not object to that course being followed and he did not complain that the schedule had not been tendered and was not, in any event, admissible. What counsel did was to tender URJ PACIFIC FORMWORK PTY LTD v BIGNILL (Clarke JA) 7 the letter from his client and the respondent's wage schedule which had been filed. His Honour received these documents as Exhibits 2 and 3 apparently without objection. (Although there is reference in the transcript to one letter from the respondent which was admitted into evidence it would appear that in fact two, one dated in 1989 and one on 23 October 1990, became exhibits.) Having tendered those documents counsel for the respondent then sought to argue, with some force I might say, that the figures in them should provide the basis for the award which was actually made. It follows that counsel for the respondent, aware that the trial judge regarded the applicant's amended wage schedule as being in evidence and intended to rely upon it, did not object or point out that the schedule had not been tendered and was inadmissible and, as it seems to me, acquiesced in his Honour using it as evidentiary material in whatever way seemed to him to be proper. I am reinforced in this conclusion by the debate which took place between his Honour and counsel for the applicant concerning the submission which counsel was making that the applicant's probable earnings if uninjured were more likely to be in accordance with the wage schedule filed by the applicant than the figures appearing from either the letters written by the respondent or its wage schedule. The reason given by the applicant's counsel in support of this argument was that the documents tendered by the respondent only revealed the award rates for a 38 hour week, whereas the schedule tendered on behalf of the applicant paid proper regard to the fact that in the industry in which the applicant was engaged, that is, the formwork industry, the average person in the industry works what was described as "a usual overtime". For these reasons I do not consider that it is now open to the respondent to contend that his Honour should not have had regard to the applicant's amended wage schedule. The position being that both parties treated the document as in evidence and it is now too late to contend otherwise (see Coulton v Holcombe (1986) 162 CLR 1). Once it is accepted that this wage schedule provided evidence upon which his Honour could rely in determining the applicant's probable earnings if he had not been injured the major ground of appeal relied on by the respondent, that is that there was no evidence to support the finding made, must fail. Although real questions arose before his Honour as to the weight to be attributed to the applicant's amended wage schedule, in the particular circumstances of this trial it constituted evidence upon which reliance could be placed. It follows that the primary ground of appeal must fail. It was then submitted that his Honour misdirected himself in law as to the use to which he could put the applicant's amended wage schedule. Senior counsel for the respondent argued in support of this ground that the applicant's wage schedule was admissible in evidence only on one ground. That is, as showing that the applicant had filed a schedule which included figures which in the absence of a response would be deemed to be correct. That was, according to the submission, the only basis of admissibility of the evidence and counsel for the parties treated the schedule as relevant only to that question. Once, therefore, a schedule in response was tendered it ceased to have relevant evidentiary effect with the consequence that the only evidence which related to probable earnings was that tendered by the respondent. This is a plausible submission but unfortunately for the respondent it is not supported by the transcript. An essential element in the submission is that counsel treated the schedule as having no evidentiary effect beyond that for which r29AD provided. In other words the first schedule was received in evidence at the behest 8 UNREPORTED JUDGMENTS of the applicant because at the stage it was put before the court it was open to the applicant to argue that the facts in it should be deemed to be correct. The first difficulty with the submission is that it is impossible to identify the stage when it was received in evidence. The other hurdle which the submission faces is that there is not to be found in the transcript any reference to the rule. For myself I do not think it can be doubted that each counsel was treating the schedule tendered on behalf of his client as evidence of the facts contained in it. That, I think, appears clear from the passages from the transcript which I have already cited but if it does not it certainly appears clear from the totality of the material before the court. The submission should be rejected. The next substantive ground on which the award was challenged was that his Honour had failed adequately to expose the reasoning process which led him determine what were the applicant's probable earnings if uninjured. His Honour had before him the wage schedule and letters tendered by the respondent which set out the hourly award rates of pay for formworkers, and the hourly site allowance, and daily fare allowance operative in early March 1989. The hourly rate was $10.17 and accordingly the wage for 38 hours was $386.46 per week. If one added to that the site allowance of $1 per hour and the fares allowance of $8.70 per day it would appear that the applicant, if working strictly a 38 hour week, would have earned $467.96 per week. His Honour, however, had to have regard also to the possibility that the applicant may have worked regular overtime. This was adverted to by counsel for the applicant in his submissions when he said that in the formwork industry the average person works a usual overtime. In making that submission counsel referred to evidence given by the applicant to the effect that although he had only worked for the respondent for one day prior to the accident he had previously worked in the building industry in Queensland and had there worked overtime. It is true that the evidence relating to the extent of overtime worked previously by the applicant was rather vague. Nonetheless it was, it seems to me, open to his Honour, as a specialist tribunal, to conclude in the light of that evidence that the probability was that the applicant would have regularly worked overtime and therefore would probably have earned well in excess of the figure I have mentioned. In this respect, as I have previously sought to point out, it was open to his Honour to have regard to the figures appearing in the applicant's amended wage schedule in reaching a conclusion as to what was likely to have been his earnings if he had not been injured. In his reasons his Honour stated that he had had regard to the various pieces of evidence relating to wages, the submissions by counsel, the amended wage schedule and his conclusion that the applicant was a high earner. I do not think that it can be said in these circumstances that he failed to disclose his reasoning process which clearly followed the line that it was necessary to evaluate as best one could the probable weekly earnings having regard to the disparate figures put before him and the possibility, or probability, that the applicant would have been working more than 38 hours a week. It follows that this submission should be rejected. It may be that the amended wage schedule was of little probative value, given that it was not supported by any documentation other than, perhaps, by the letters tendered by the respondent, and it may also be that his Honour accorded to the document greater weight than was justified. But the fact that his Honour might have erroneously placed too much weight on the schedule would properly be URJ PACIFIC FORMWORK PTY LTD v BIGNILL (Clarke JA) 9 categorised as an error of fact (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139) and the respondent cannot rely upon that matter in this appeal. In conclusion I would observe that the respondent relied on a great number of grounds of appeal. I have not directed my remarks specifically to each one of these grounds of appeal but have grouped them under three subject matters which, in essence, followed the thrust of the arguments put by the respondent both in the written submissions and orally before the court. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: JE Maconachie QC with S Grant Solicitors for Appellant: Hickson Lakeman and Holcombe Counsel for Respondent: JT Sharpe Solicitors for Respondent: Taylor and Scott