DAVIDS HOLDINGS PTY LTD v BRCIC [1992] NSWCA 55

DAVIDS HOLDINGS PTY LTD v BRCIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P andCLARKE JA 22 May 1992, 24 July 1992

[1992] NSWCA 55

WORKERS' COMPENSATION — review — procedural fairness — whether matter decided outside indicated agreement of the parties — held: (1) A breach of the rules of procedural fairness amounts to an error of law. Escobar v Spindaleri and Anor (1986) 7 NSWLR 51 (CA) applied; (2) To decide a case upon a basis different from that tendered by the parties will ordinarily require retrial. Stead v State Government Insurance Commission (1986) 161 CLR 141; (3) But in the present case, on the facts, there was no departure from the requirements of procedural fairness.

NATURAL JUSTICE — procedural fairness — conduct of proceedings by barristers for parties — "review" under Compensation Court Act whether confined to errors of law or involves general review of factual findings — whether parties had agreed to a limited review held: No breach of the rules of procedural fairness shown. Sillitoe v State Rail Authority of New South Wales, Court of Appeal, unreported, 1 August 1991; Jankovic vy Mayoh and Anor, Court of Appeal, unreported, 11 November 1991 distinguished.

WORKERS' COMPENSATION — appeal — "review" — meaning of — Watson v Hanimex Colour Services Pty Ltd, Court of Appeal, unreported, 28 November 1991 applied. WORDS and PHRASES — "review".

Compensation Court Act 1984, s17, s26, s32 Compensation Court (Amendment) Act 1989, s3, Schedule 1, paral5.

Gleeson CJ This is an appeal from a decision of his Honour Judge Coleman in the Compensation Court. Having regard to the time of the institution of the appeal, the appellant, in order to succeed, must demonstrate an error of law. The appellant's primary contention is that it was denied natural justice in the proceedings before Judge Coleman. If that contention is made good, then an error of law will have been demonstrated (Escobar v Spindaleri (1986) 7 NSWLR 51).