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). The denial of natural justice is alleged to have arisen because the learned judge, so it is said, decided the case on a ground that was not argued by the respondent and in respect of which the appellant had no fair opportunity to put evidence or submissions. The main issue which falls for our determination is whether the appellant has shown that there was procedural unfairness of that kind. The resolution of that issue requires a close examination of what occurred in the Compensation Court. For the purpose of that examination, and to avoid confusion, I shall refer to the appellant as "the employer" and the respondent as "the worker". The dispute between the worker and the employer had its origin some years before Judge Coleman became concerned in the matter. The worker, who was employed as a storeman and packer by the employer, claimed to have suffered a back injury at work in April 1991. He made a claim for workers' compensation and there was an issue as whether he had, in truth, suffered any back injury at work as he alleged. His claim was supported by medical evidence, including that 2 UNREPORTED JUDGMENTS of Dr Bannister. It was also opposed by medical evidence, including evidence of Dr Morris. In 1985 Judge Thompson of the Compensation Court made an award in favour of the worker, accepting his claim that he had been injured at work, and expressing preference for the evidence of Dr Bannister as against that of Dr Morris. In 1988 the employer applied to the Compensation Court for termination of the weekly payments previously awarded. The ground on which that order was sought was expressed as follows: "The respondent worker is fit for his pre-injury duties." The application as filed appeared to proceed upon the basis of an acceptance that the worker had suffered injury at work. Of course, he had the benefit of a determination to that effect by Judge Thompson. On its face, the application appeared to assert that there had been a change in circumstances, and that the worker's medical condition had improved to such an extent that he was now fit for work of the kind he had performed before he was injured. The application came before Senior Commissioner Muirhead. No oral evidence was taken at those proceedings, and the employer and the worker both relied solely on medical reports. The medical reports relied upon by the employer were those of Dr Morris and Dr Sturrock. They both expressed the opinion that the worker never had suffered the back injury which he claimed, and that he was fit for work because, all along, he had been malingering. The worker relied, in particular, upon a number of reports from Dr Bannister, who repeated his original opinion that the worker had suffered an injury in the course of his employment and asserted that his condition remained as it had been when the matter was dealt with by Judge Thompson. The Commissioner obtained a report from a Medical Panel. The questions that were asked of the Medical Panel are of interest. Those questions, and the answers to them were as follows: "Question: Does the applicant have an incapacity in his back due to injury? Answer: No. Question: If so does such incapacity relate to an injury which occurred on 22 April 1991? Answer: No. Question: If there is an incapacity as indicated in (2) what restrictions should be placed on the application? Answer: No." The precise information conveyed by the answers to the second and third questions is not easy to understand. Indeed, having regard to the answer given to the first question, and to the way in which the questions were framed, the second and third questions did not arise. Another curious feature of the questions is that they do not seem to address what appeared to be the issue before Senior Commissioner Muirhead, that is to say, whether there had been a change in circumstances since the making of the award by Judge Thompson. The Medical Panel could well have answered the questions as they did on the basis of the same opinion as that expressed by Dr Morris and Dr Sturrock, that is to say, that the worker had never been injured as he alleged. The reason for the Panel's negative answer to the first question was not elucidated. Senior Commissioner Muirhead, however, was conscious of the nature of the question with which he was concerned. He said: "T am well aware that my role in this matter is not to review the decision of his Honour Judge Thompson. Judge Thompson has made his decision and (it) is not my function to question that decision. My function is to determine whether in the URJ DAVIDS HOLDINGS PTY LTD v BRCIC (Gleeson Cu) 3 period between the time when his Honour Judge Thompson made his decision and now there has been a change of circumstance which would lead me to conclude that (the worker) is no longer incapacitated or is now only partially incapacitated. In short, the present condition of (the worker) compared to when Judge Thompson made his award." Having said that, Senior Commissioner Muirhead made reference to the medical reports, and the answers to the questions put to the Medical Panel, and determined that there was a change of circumstances and that the applicant was no longer unfit for work. He terminated the worker's weekly payments. He said he accepted particularly the report of Dr Sturrock, which he preferred to those of Dr Bannister. I have already commented on the questions addressed to the Medical Panel and the answers to those questions. As to Dr Sturrock, his report concluded as follows: "There is no way that this young man could have suffered a back injury of any significance as a result of the incident that occurred on 26 April 1981 nor would his work of lifting up the boxes a week later have caused him to develop low back pain... I would have no hesitation in saying that he has no ill effects as the result of his working activities with (the employer). He is perfectly fit to resume work, he requires no treatment whatsoever". Although Senior Commissioner Muirhead made no specific reference to the medical report of Dr Morris, the fact is that the entirety of the medical evidence put before him by the employer proceeded upon the basis, not that there had been a change of circumstances, but that the worker had never been injured as he alleged in the first place and, by necessary implication, that the determination of Judge Thompson had been erroneous and, indeed, procured by fraud. In addition, the report of the Medical Panel was consistent with the same proposition, and made no reference to any supposed change of circumstances or improvement in the worker's condition. The worker appealed against the decision of Senior Commissioner Muirhead. At the time the appeal was instituted his rights of appeal were limited to points of law. The original notice of appeal contained five grounds which could be described as raising questions of law. Between the time of the filing of the notice of appeal and the hearing of the appeal the relevant legislation was amended to widen the nature of the challenge which might be made to the decision of Senior Commissioner Muirhead. The Compensation Court Act 1984 was amended by the insertion of s36, which empowered the court to review a decision of a Commissioner. The width of the power of review, as compared to the previous right of appeal, was discussed by this Court in Watson v Hanimex Colour Services Pty Ltd (Court of Appeal unreported 28 November 1991). The worker filed an amended notice of appeal for the obvious purpose of taking advantage of the change in the legislation. The additional grounds of appeal included, significantly for present purposes, the following: "8 The Commissioner was in error in finding that there had been a change of circumstances and that the respondent worker was no longer unfit for work as there was no evidence to support such a finding. 9 The Commissioner was in error in finding that there had been a change of circumstances and that the respondent worker was no longer unfit for work as such finding was against the evidence and the weight of the evidence". Enough has been said above as to the history of the matter to make obvious the complaint intended to be raised in those two grounds of appeal. The substance of the complaint is simple. It is that Senior Commissioner Muirhead, 4 UNREPORTED JUDGMENTS notwithstanding what he said in the reasons quoted above, must have based his award upon an acceptance of evidence that the worker never had been injured at all, because that was the only evidence he had before him in support of the employer's claim for termination of the weekly payments. The argument, the factual basis of which seems reasonably clear, must have been that, although the Commissioner said he found there was a change of circumstances, the only medical evidence supporting the finding against the worker was the evidence of Dr Morris and Dr Sturrock, which emphatically asserted that there had been no change of circumstances and that, on the contrary, the worker had never been injured as he alleged. Put shortly, the only evidence relied upon by the employer was evidence that proved too much, and, in truth, the employer was seeking to go behind Judge Thompson's award under the guise of contending that there had been a change in circumstances. What had been transformed by the legislation from an appeal to an application for review came on for hearing before Judge Coleman. The matter was first listed on 26 October 1989, when there was some discussion between his Honour and counsel as to the nature of the case. On that occasion counsel for the worker is recorded as having said the following, amongst other things: "From the respondent worker's position the medical evidence in my submission is all one way, Dr Bannister said the man had a disc lesion before his Honour Judge Thompson made his award. He said he continued to have disc lesion thereafter and prior to the decision of the learned Commissioner and the evidence of the respondent's doctors was to the effect that the worker had never had a disc lesion, which issue had been determined by his Honour Judge Thompson, and never had an incapacity for work, which issue had been determined by his Honour Judge Thompson, and did not specifically state that there had been some improvement in some pathological condition or that there had been a change of circumstances". That strikes me as a clear statement of what was, at the least, a strongly arguable criticism of the decision of the Commissioner, and it is plainly related to grounds 8 and 9 of the amended grounds of appeal referred to above. The matter next came before Judge Coleman on 13 December 1989, when full argument took place. Neither side called evidence before Judge Coleman. There was, however, a good deal of debate about the effect of the change in legislation, and the legal nature of proceedings by way of "review". Counsel for the employer made a series of submissions that appear to have been designed, understandably, to confine the scope of the worker's argument as much as possible. I intend no criticism. That was a perfectly legitimate course to take, especially having regard to the uncertainty that existed as to what was involved in a "review", and to the fact that the worker, following the change in the legislation, was endeavouring to rely on additional grounds of appeal. Technically, ground 8, being a "no evidence" ground, raised a point of law, whereas ground 9 invited a reconsideration of the factual merits of the case. They were, however, different ways of expressing a relatively straightforward complaint. Counsel for the worker rested his argument on this point principally on ground 8, but then said he was addressing on grounds 7, 8 9 and 10 together. Counsel for the employer has given evidence in this appeal that he understood that the worker's argument was being confined to "legal grounds" and that he had no idea that the worker was inviting any kind of general review of the merits of the case. It is to be noted, however, that the transcript records him as addressing URJ DAVIDS HOLDINGS PTY LTD v BRCIC (Gleeson Cu) 5 on the significance of the medical evidence. In particular he is recorded as addressing argument as to why it might have been open to, and reasonable for, the Commissioner to prefer the medical evidence tendered on behalf of the employer to that tendered on behalf of the worker. The transcript does not show him facing up to what I should have thought was the major problem in the way of acceptance of his argument. Judge Coleman reserved his decision, and delivered judgment in May 1990. His Honour's reasons for judgment recited the proceedings before Judge Thompson, the application for termination, the hearing before Senior Commissioner Muirhead, and the appeal against the decision of the Commissioner. His Honour then went on to refer to the change in the relevant legislation and pointed out that he was conducting a "review". As to the nature of the review, he referred to a passage of the judgment of Judge Burke in Mansini v Director of Education, a decision that was mentioned on a number of occasions, with apparent approval, by this Court in Watson v Hanimex Colour Services Pty Ltd (above). He then referred to the medical reports that were before the Commissioner and to the fact that there was no oral evidence either before the Commissioner or before himself. He mentioned the questions that had been put to the Medical Panel, and the answers to those questions. He summarised the effect of the Commissioner's judgment. He rejected an argument that the Commissioner was entitled to refer the matter to the Medical Panel, and he also rejected an argument that the Commissioner had failed to give adequate reasons. Judge Coleman then said that, having reviewed all the medical evidence he was of the opinion that the award of the Commissioner must be overruled. The Commissioner, he said, failed properly to evaluate the medical evidence. He pointed out that, despite the finding of Judge Thompson, the opinion of Dr Sturrock, on which the Commissioner relied, was that the worker had never suffered a back injury at work. Judge Coleman referred to a discogram and said, concerning Dr Sturrock's report: "In the light of this and bearing in mind his findings concerning injury, causation and incapacity which were contrary to the findings of Judge Thompson, it is difficult to understand how the learned Commissioner could have accepted his opinions". His Honour referred to the evidence of Dr Bannister and said: "There is no doubt in my mind that in reconsidering all the medical evidence, the reports tendered by (the worker) are to be preferred to those tendered by (the employer) and accordingly I overturn the award of the Senior Commissioner, restore the award of his Honour Judge Thompson and order the appellant to pay the respondent's costs on the highest scale in accordance with Pt4". I understand Judge Coleman to be saying little more than the following. There was no medical evidence before the Commissioner which said that, in the opinion of any doctor, there had been a change of circumstance in relation to the worker's condition. The opinion of both Dr Morris and Dr Sturrock was, and was only, that the worker had never suffered a back injury at work. The answers given by the Medical Panel were consistent with that, and they did not address the question of change of circumstances. The worker had the benefit of the original finding of Judge Thompson, and his contention that he was still unfit for work was supported by the evidence of Dr Bannister. That being so, it was extremely difficult to understand the reasoning of the Commissioner, because the evidence on which he relied, if accepted, did not support the conclusion to which he came, but supported a different (and irrelevant) conclusion, that is to say, that the worker should never have received an award in the first place. 6 UNREPORTED JUDGMENTS For my part, having read the material that was before the learned Commissioner, and before Judge Coleman, I find Judge Coleman's conclusion perfectly understandable. Indeed, I have some difficulty in seeing what other conclusion he could have reached. However, the question before us is not whether Judge Coleman's decision was correct, but whether the procedure by which he reached it was fair to the employer. What appears to have engendered a sense of grievance in the employer and its legal representatives is that Judge Coleman, although he did not say so in terms, seems to have based his decision on ground 9, rather than ground 8 of the amended grounds of appeal. It was noted above that counsel for the employer was confining himself to "legal grounds". That would comprehend ground 8, but not what was described in argument in this Court as a "general merits review". I regard this sense of grievance as unjustified for two principal reasons. First, as appears from what is set out above, the essence of the complaint that was being made on behalf of the worker, and that was accepted by Judge Coleman, was really quite simple, and was stated directly in oral argument by counsel for the worker, even though, as is often the case, its immediate impact might have been diminished because it was accompanied by various other submissions that do not seem to have had great merit. Secondly, a fair reading of the reasons of Judge Coleman indicates that his Honour expressed himself as he did, in a manner more closely related to ground 9 than ground 8, because he thought that was appropriate having regard to the new statutory regime under which he was operating. I have a good deal of sympathy for that view. I consider that, technically, the matter probably could have been resolved in favour of the worker on the basis of ground 8, but, since Judge Coleman was constrained to undertake a review, it was rather more appropriate for him to express himself in terms related to ground 9. This does not mean, however, that he decided the case on a basis which went outside the scope of the arguments that were put before him. On the contrary, having read the full transcript of those arguments, and in light of the matters referred to above, I consider that Judge Coleman's reasons were well within the scope of the matters debated before him. The factual basis for the contention that there has been a denial of natural justice has not been made out. There were two other points argued on behalf of the employer, but they can be disposed of quite briefly. First, it was submitted that, on the premise that counsel for the worker had restricted his argument to "legal grounds", what Judge Coleman was dealing with was not a "review", and, therefore, his Honour had no jurisdiction. Whilst I would not accept that the minor premise for this argument has been made out, the major premise also is erroneous. Whilst the potential scope for a review under s36 goes well beyond a consideration of points of law, I see no reason why, in a proper case, a review could not turn upon a single question of law. The other submission advanced on behalf of the employer was that, in conducting his review, Judge Coleman, relying on the view previously enunciated by Judge Burke in Mansini, fell into error in his understanding of the approach to be taken to the exercise of his powers. It is unnecessary to consider this argument in detail. For my part, I see no inconsistency between what Judge Burke said in Mansini, and what was said in this Court in Watson. At all events, there has not been shown to be any difference which was of any materiality to the outcome of the present case. The appeal should be dismissed with costs. URJ DAVIDS HOLDINGS PTY LTD v BRCIC (Kirby P) 7 Kirby P This is the fourth chapter of the litigation between the parties. It is the third level of reconsideration of the instant dispute. The facts are set out in the judgment of Gleeson CJ. As ultimately argued, the complaint of the employer was that, in the conduct of the proceedings in the Compensation Court, Coleman CCJ had denied the employer procedural fairness. Complaint of procedural fairness: principles The applicable principles of law are not in dispute: 1. At the relevant time, this appeal, pursuant to the Compensation Court Act 1984, s32, was confined (relevantly) to a grievance in point of law. That kind of appeal is limited strictly to the matters permitted in the authorities as explained in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (CA) 155ff; 2. Within those stringent limitations, a departure by a judge of the Compensation Court from observance of the requirements of procedural fairness amounts to an error of law which authorises the intervention of this Court. See Escobar v Spindaleri (1986) 7 NSWLR 51 (CA) at 57; 3. The failure of a judge to permit a party or its representative to address the court will amount to a denial of procedural fairness. See Escobar, 55. To decide a case on an issue contrary to a party whose representative has been stopped on that issue by the judge is also a breach of the requirements of procedural fairness. See Jankovic v Mayoh and Anor, Court of Appeal, unreported, 11 November 1991. To ignore a communicated agreement of the parties of the basis upon which they are agreed that the matter is to be determined will also ordinarily involve a departure from the rules of procedural fairness. See Sillitoe v State Rail Authority of New South Wales, Court of Appeal, unreported, 1 August 1991; 4. Although it is not every departure from the rules of natural justice and procedural fairness at a trial which entitles an aggrieved party to a new trial where, in effect, that party has been denied the opportunity, by evidence or argument, to influence the court of trial in favour of its case, a retrial must be ordered. In such circumstances, only if it can be shown that the non-compliance with the requirements of procedural fairness could have made no difference will the appellate court stay its hand. Stead v State Government Insurance Commission (1986) 161 CLR 141, 147; 60 ALJR 662, 663f; 67 ALR 21, 23; 5. The "review" being conducted by Coleman CCJ involved a procedure with a potentially larger field of inquiry than an "appeal": especially an appeal limited to a point of law. See Watson v Hanimex Colour Services Pty Ltd, Court of Appeal, unreported, 28 November 1991; (1991) NSWJB 131; Agfa Gavaert Limited v Lee, Court of Appeal, unreported, 1 May 1992; (1992) NSWJB 54; and 6. In such a "review" by a Judge of the Compensation Court it would be open to a party to seek leave to call evidence which had not been adduced before the Commissioner at first instance. Such leave would ordinarily be allowed only "on a proper case". Watson, above, per Handley JA (with the concurrence of Hope A-JA). Although the scope of a "review" might be wider than an "appeal" it would be open to the parties, within the "review", to confine its issues to a narrower compass. Specifically, it would be open to them to present for resolution a question of law only or specific or particular legal or factual challenges to the decision under review. In the present case the complaint of the appellant that it was lulled into a false understanding of the issues contested in the "review" conducted by Coleman CCJ which, in turn, followed the decision of Muirhead SC. As Gleeson CJ has demonstrated, the case had a curious history. The worker first recovered his 8 UNREPORTED JUDGMENTS award of compensation before Thompson CCJ. He lost it before Muirhead SC. It was restored by Coleman CCJ. At the time of the initiation of the challenge to the decision of Muirhead SC,reconsideration of the Commissioner's decision was limited to an "appeal". A supervening amendment to s36 of the Compensation Court Act was proclaimed to commence on | October 1989. That amendment applied to all matters pending as at the date of the proclamation. See Compensation Court (Amendment) Act 1989, s3, Schedule 1, paral5. By this means the worker's "appeal" was converted to a "review". Coleman CCJ was bound to deal with it upon that footing and to decide the matter on "the real merits and justice of the case". See Compensation Court Act 1984, s17. The suggested tender of a narrow issue for decision The question then comes down to whether the issue tendered for resolution by Coleman CCJ was, notwithstanding the enlargement of the reconsideration process from "appeal" to "review", confined by the parties to a challenge in point of law - just as it had been pleaded when the Act so provided. There is no doubt that the appellant and its legal advisers believe that this was so. This Court received two affidavits sworn by the barrister who had represented the appellant's interests before Coleman CCJ. In the first of these he deposed (relevantly): "Tt was my understanding that the applicant had abandoned reliance on any broad grounds of review and relied only those specific legal points contained in the amended notice of appeal filed in Court on 13 December 1989. As a consequence of my understanding I say that I confined my arguments and submissions to the specific legal points contained in the amended notice of appeal." In a supplementary affidavit, the same barrister deposed: "T do not recall counsel for the appellant [sic. applicant] (i) making any submissions directed towards the totality of the evidence adduced in the matter; (ii) making any submissions in relation to conflicts in the evidence nor in relation to any competing inferences which may be available from the evidence. In relation to ground 9 of the amended notice of appeal I do not recall [counsel for the worker] expressly abandoning any reliance upon that particular ground, but I do not recall any submissions being addressed to the Court directed to the weight of the evidence. I was unaware that Judge Coleman intended to dispose of the appeal by undertaking a general review of the evidence and I understood that counsel for the [worker] abandoned any reliance upon such a review as recorded as paragraphs (sic) 69 of the appeal book." Para69 is obviously a reference to page 69 of the appeal book. That page contains a transcript of part of the argument being advanced before Coleman CCJ by counsel then appearing for the worker. In a passage in which I have slightly corrected the verbatim record to reproduce its sense, counsel for the worker said, amongst other things: "The evidence of Dr Morris we say cannot be accepted. It is contrary to the finding of his Honour Judge Thompson. And Dr Sturrock's report doesn't say, allowing for the fact that he had an injury and that he had a degree of incapacity as at the date of his Honour Judge Thompson's award, on my examination, "Today he is now fit. He has earning capacity". What he says is 'He is fit from the time of the insurance (sc. initial injury). That view is precluded by the findings of his Honour Judge Thompson. Your Honour those are my submissions." URJ DAVIDS HOLDINGS PTY LTD v BRCIC (Kirby P) 9 Counsel then got his second wind and pressed on: "The only other matter I would wish to put to your Honour is this. When the appeal was initiated and when the amended notice of appeal was drafted we were not to know what powers your Honour had in relation to appeals of this nature. We do... HIS HONOUR: Do you want me to go back and review it in any case? COUNSEL FOR WORKER: You have over the other power of review now. I don't urge your Honour to any particular view of the interpretation to be placed upon... COUNSEL FOR EMPLOYER: Your Honour. If my learned friend is running that argument as outside the amended grounds which were given to me this morning, there's something which was raised on a prior occasion and specifically is not included in the amended grounds and I'll object to it. 've allowed the matter to proceed in circumstances today. But I was given amended grounds very late in the piece on the basis that my learned friend is confining himself to those grounds. HIS HONOUR: The opinion found... I remember there was argument. Indeed that we have the transcript made and the question of the meaning of review we accept that it was raised. COUNSEL FOR WORKER: Your Honour. I withdraw my comments. I won't put anything to your Honour in respect of that. Those are my submissions your Honour." Wider issue tried: no procedural unfairness The submission to this Court was that the foregoing exchange, read with other passages, indicated that the worker, by his then counsel, withdrew from putting submissions concerning the wider ambit of "review"; confined himself to a "review" in the nature of an appeal to correct a suggested error on the part of the Commissioner; pressed ground 8 but not ground 9 of the additional grounds of appeal; and did not invite the broad reconsideration of the facts which Coleman CCJ proceeded to perform. At first I was attracted to this argument. It is easy enough, under the pressure of work, for judges, reserving their decisions and otherwise, to overlook the particular basis upon which the parties had tendered a matter for decision. Stead, Escobar, Jankovic, Sillitoe and many other cases illustrate that fact. However, it is not sufficient to resolve the appellant's complaint by focusing attention exclusively upon the rather unclear and ambiguous exchanges recorded in the passage of transcript set out above. More relevant is an examination of the case for "review" which the worker actually advanced. As appears in the opening passage of the closing remarks of counsel for the worker, quoted above, this was an attack on the fundamental incompatibility between the medical reports which sustained Muirhead SC's decision and the earlier decision of Thompson CCJ. Whatever the "review" provided by the amending legislation allowed, such was the complaint which the worker pressed. He did so in plain terms. He did so by reference to the facts. He even expressly referred on p 67 Tspt to ground 9. This invoked the general review of the facts. The worker never withdrew those submissions. Whilst I have no doubt that the former counsel for the employer in his affidavit has done his best to recall to mind his understanding of the way in which the case was presented two and a half years earlier, it is safer by far to determine the complaint of procedural unfairness on the basis of the whole of the recorded transcript. When that transcript is examined it is plain enough that the issue 10 UNREPORTED JUDGMENTS which Coleman CCJ dealt with in his reserved decision is the one which the worker urged upon him. That being the case, there was no surprise, no lack of opportunity and no procedural unfairness to the employer or its representatives. The claim that there was must be rejected. That leaves only the complaint that, in any case, Coleman CCJ took a view of the procedure of "review" which was wider than the Act envisaged. This submission cannot stand with the decision of this Court in Watson, since accepted and applied in Agfa Gavaert and in other cases. It must therefore also be rejected. ORDER I agree with the order proposed by Gleeson CJ. Clarke JA I agree with the reasons and orders of the learned Chief Justice. Appeal dismissed with costs. Counsel for the Appellant: PJ Deakin QC/D Stewart Counsel for the Respondent: JP Curtis/G Watson Solicitors for the Appellant: Hunt and Hunt Solicitors for the Respondent: White Barnes and McGuire