MALLEYS LTD v MARIO KINKELA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and CRIPPS JJA. 30 October 1992, 30 October 1992 [1992] NSWCA 144 WORKERS COMPENSATION APPEAL — question of admissibility of evidence on further hearing of application following appeal in which original award set aside — nature of further hearing dependent on construction of this court's order — held, no error by trial judge in construing this court's order — on this basis, no error in admission (or use) of evidence from first stage of hearing. Priestley JA In 1982 the worker had been working for his employer, Malleys Limited, for a number of years. In March 1982 that employment came to an end. In February 1983 the worker filed an application for workers compensation. The application came on for hearing before Manser J in 1985 in the Compensation Court and a decision was given in December 1985. An appeal was brought from the award that he made and on 15 December 1986 this court set aside Manser J's award. Samuels JA gave the court's first reasons for that course and, towards the end of those reasons, he said in his opinion the appropriate way to deal with the matter was to set aside the award and to remit the case to the Compensation Court for a new hearing. He then made some comments about the desirabilities of the pleadings in courts, even in courts such as the Compensation Court, which is not a court of strict pleading, saying what the issues were which were considered in the course of the contested litigation. He then proposed that the appeal be allowed with costs that the award made by Manser J be set aside, and the case remitted to the Compensation Court to do therein as should be just and consistent with the opinion of this court. He added: "... we have in mind that when it goes back for further hearing all issues which either party wishes to raise should be open for decision." I said I agreed with the orders that Samuels JA had proposed and gave short reasons of my own. McHugh JA did likewise. The last thing shown in the transcript of the court's judgment is Samuels JA saving: "The orders of the court will therefore be those which I have proposed." The orders thus made were pursuant to s32 of the Compensation Court Act, 1984, which empowers this court on the hearing of any appeal from the Compensation Court, amongst other things, to remit the matter of the appeal to the Compensation Court for determination by that Court in accordance with this court's decision, and also to make such order in relation to the appeal as this court sees fit. What happened next after this court made its order was regulated by the then R29 of the Compensation Court rules which provided, amongst other things, upon the decision being given by this court, the Registrar of the Compensation Court should obtain a copy of this court's judgment and reasons, file them and, 2 UNREPORTED JUDGMENTS where appropriate, list the matter for directions. The nature of this court's order made it appropriate for the matter to be listed for directions, and I assume that that was done. The next thing that happened, so far as the record before this court shows, is that the matter was before Manser J on 11 August 1987. The transcript of what happened on that day is in our papers. It starts off ambiguously. It gives a title to the proceedings and then says in brackets "part heard". A little later it says, again in brackets, "matter being heard de novo". If one simply reads the transcript from then on, for a long time the case proceeds as if it was being conducted de novo. At the end of a short hearing on 11 August 1987 the matter was adjourned to 26 October 1987. The transcript of that day's proceedings again shows for a considerable time the proceedings being conducted as if they were completely new proceedings. The proceedings were also being conducted on amended pleadings. The observations made by Samuels JA had been heeded and the amended pleadings raised the issues which had been discussed in this court in December 1986. After three witnesses had been called to give evidence for the applicant - and Tinclude the applicant amongst the three - a medical practitioner was called in the respondent's case. At the end of that witness' evidence a number of exhibits were tendered by counsel for the applicant, and some by counsel for the respondent. Then there was tendered the evidence of one witness from the previous hearing. This evidence was objected to and pressed. Mr Gormly, who appears for the respondent today, was counsel for the applicant at that hearing and, naturally enough, because of the length of time since the hearing, has not a complete memory of what happened. The opposing counsel has since died. Mr Gormly's opponent today, Mr Neilson, has accepted that Mr Gormly's recollection, so far as it goes, can be acted upon by this court. That recollection was, consistently with the transcript, that he tendered the evidence of the one witness from the previous hearing which he wanted to tender. It was objected to and it was pressed. His memory does not extend further beyond a recollection that a question was then discussed as to whether the nature of the proceedings before Manser J was a complete nearing de novo, or a continuation of the previous hearing, the conclusion of which by way of award had been set aside by this Court. The transcript gives no clear indication of what was said in the course of discussion. It simply notes, after referring to the objection to the evidence of the particular witness, and its being pressed, first that all previous evidence was admitted and marked as an applicant's exhibit, and second, his Honour saying: "As a result of that I intend to allow the previous transcript to be tendered and to be an exhibit in this case." His Honour later made an award in favour of the applicant. The respondent below has appealed to this court and the argument in support of the appeal involves two steps: the first step is that the proceedings before Manser J in 1987 were new trial proceedings. The second step is, if they were new trial proceedings, then some of the evidence which his Honour admitted was inadmissible or immaterial to the making of the award which his Honour later made and therefore the only consequence must be that there should be a further setting aside of Manser J's award and a further remittance of the proceedings to the Compensation Court. URJ MALLEYS LTD v MARIO KINKELA (Priestley JA) 3 The court heard argument at some length on the second point. The argument raises interesting points and is not entirely an easy one. The court has decided to deal with the matter by reference to the first step because we have formed a clear opinion that what Manser J was doing was continuing a hearing which had begun before him, been concluded before him, and then re- opened by reason of his award being set aside. The argument against this conclusion was that, first of all, the transcript said that the hearing was one de novo; and secondly, that right until the end of the hearing the way the proceedings were conducted was consistent only with there being a new trial. Even if these arguments correctly characterised the way the hearing was for a time conducted, they would not affect the nature of the hearing itself or Manser J's powers under this court's order. Allied with these submissions was the more relevant one that, properly interpreted, the order of this court made in December 1986 required a new trial rather than a further hearing. In the reasons for his second award delivered on 9 December 1988 Manser J dealt with this question. He said: "Although the transcript of the proceedings in the second hearing states: 'Matter being heard de novo' the use of the words 'further hearing' by the Court of Appeal rather than 'rehearing' indicated to me that the Court was to take into consideration what had gone before. Although the parties were given complete freedom to call such evidence as they wanted to, I did not then nor do I see it now as being consistent with their Honours' expression of intention that the evidence in the earlier proceedings was to be ignored." He added that the earlier evidence was evidence still before the court. Mr Neilson submitted that in reaching this conclusion his Honour made an error of law. The error of law was said to be the misinterpretation of this court's order. I think Mr Neilson is correct in focusing on that issue as being a critical issue for the first step in his argument. But the actual order made by the court was that the "case be remitted to the Compensation Court to do therein as shall be just and consistent with the opinion of this Court". Although the words are not precisely taken from s32(2) of the Compensation Court Act, they are clearly substantially in accordance with the power given by that section to this court in regard to Compensation Court appeals. So what happened subsequently was under the control of the Compensation Court so long as what was done there came within this court's rather general words which required that court to do what should be just and consistent with the opinion of this court. When the matter is looked at in this way it does not seem to me to be possible to find any error of law in Manser J doing what he did: nor does it seem possible to see anything unjust about what he did. The evidence about which particular complaint was made, ie the evidence of the witness which Mr Gormly had wanted to tender, was evidence which had been given at the first hearing by a witness called by the respondent. That evidence had been given before the same judge and in the same application as that which was now before Manser J. The other item of evidence which was the subject of submission today was a letter which, in any event, if the matter was proceeding upon a footing of strict admissibility, was very probably admissible, but again had been before the court at the first hearing and had been the subject of submission at the first hearing. The only possible basis for seeing anything unjust in what happened before Manser J at the conclusion of the second hearing by his admission of a particular witness' evidence was that the respondent may have been justified in seeking, 4 UNREPORTED JUDGMENTS once that evidence was before his Honour, to ask further questions of that witness. I doubt myself whether the unavailability of that witness on that day could really be complained of by the respondent but, even assuming that there was some ground for complaint there, that is the kind of situation where a disadvantaged side is entitled to ask for an adjournment and then complain if the adjournment is refused. There is no sign in the papers of any adjournment being sought. So far as one can glean from the papers, objection was taken on formal grounds, with counsel taking the attitude taken up to some extent today, firstly that the proceedings were a new trial, and secondly, if they were it simply was not right to admit this evidence. The conclusion is that the course taken by Manser J was within this court's order, one properly open to him, and one which contained no error of law. The result is that this appeal should be dismissed with costs. Sheller J I agree. Cripps J I agree. Priestley JA: That is the order of the court. Appeal dismissed with costs. Counsel for the Appellant: GW Neilson Solicitors for the Appellant: Hunt and Hunt Counsel for the Respondent: JP Gormly Solicitors for the Respondent: Turner Freemans