PAVLIS v CLEANA SERVICE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, CRIPPS JJA and SAMUELS AJA 28 October 1992, 27 November 1992 [1992] NSWCA 183 In an appeal by an unsuccessful applicant, it was alleged that the judge erred in rejecting the tender of a medical report and in admitting two statements of witnesses tendered pursuant to the provisions of s14B of the Evidence Act 1898. It was also alleged that he erred in having regard to the absence of a medical report from his treating doctor. Held: There was no error in rejecting a medical report that had not been served in accordance with the rules and the reason for rejection was made plain. The witnesses were relevantly "not interested". In any event, one was cross examined and there was no miscarriage of justice. The judge did not misapply the law in Jones v Dunkel (1959) 101 CLR 298. Workers Compensation Act 1987 s135(1) Workers Compensation Act 1926 Evidence Act 1898 Brown v Petranker (1991) 22 NSWLR 717 Nominal Defendant v Hook (1962) 113 CLR 641 Vocisano v Vocisano (1974) 130 CLR 267 Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 House v King (1936) 55 CLR 499 Handley JA I agree with Cripps JA. Cripps JA This is an appeal from a decision of Judge Burke on 29 August 1989 dismissing the appellant's claim for workers compensation. An award was entered for the respondent. The appeal is limited to errors of law or to the admission or rejection of evidence. In his application to the Compensation Court, the appellant alleged he injured his back in August 1986 when in the employ of the respondent and by reason thereof remained incapacitated for work since that time. Judge Burke did not believe him. He did not accept his account of the alleged injury and was not satisfied that his statements concerning his alleged symptoms were true. During the hearing, Judge Burke made three rulings on evidence, all of which are challenged. He rejected the tender of a medical report of Dr P Stephens, the appellant's family doctor. It is submitted that he erred in law in refusing to admit the report pursuant to the provisions of s135(1) of the Workers Compensation Act 1987 which provides that a medical report is admissible in evidence in proceedings before the Compensation Court. It was further submitted that he erred in failing to give reasons for rejecting the tender. Later in the proceedings he admitted two statements of witnesses tendered on behalf of the respondent pursuant to s14B of the Evidence Act 1898, one from Mr Steve Demos and another from Mr John Stathis. It was alleged that both witnesses were relevantly "interested" and that to the extent that Judge Burke had a discretion, his discretion miscarried. Finally it is submitted that he erred in law "in holding that the absence of a medical report from the appellant's treating doctor should operate against the appellant as set out in Jones v Dunkel (1959) 10 CLR 298." 2 UNREPORTED JUDGMENTS The reference to "treating doctor" was a reference to Dr P Stephens and also to Dr Zarkos who, the appellant alleged, was consulted by him shortly after his injury and who were not called. The appellant was born in January 1960. He arrived in Australia in February 1986 and very shortly afterwards commenced employment with the respondent as a laundry assistant. In his claim form and in his evidence he said he was injured on 26 August 1986 while lifting laundry bags. The respondent denied injury. It alleged that the appellant's work was unsatisfactory and that the Managing Director, Mr Demos, had told the supervisor to terminate his services as from Friday, 29 August 1986. According to the respondent, the appellant did not report for work on 27 August and on 28 August he turned up at about 10 am and said he was going to see a doctor. The respondent's case was that it was never told the appellant had injured his back at work and had no information from any source to that effect. In my opinion, it has not been demonstrated that Judge Burke erred in rejecting the tender of Dr Stephens' medical report dated 6 March 1989. The appellant tendered a number of medical reports. The respondent did not object to the tender of reports from Dr Bannister, Dr Guirgis, Dr Roney, Dr Mendelsohn or to the tender of a thermogram report. The objection by Mr Sharpe, counsel for the respondent, to the tender of Dr Stephens' report was followed by the exchange below; "His Honour: Any basis of admissibility? Mr Daley: My understanding was it had been served, your Honour. I'll get my instructing solicitors to check,...". A few minutes later the transcript records: "Daley: I understand this report of Dr Stephens hasn't been served, your Honour. I understand we should be able to get him along some time this afternoon. His Honour: The tender is rejected." S135 of the Workers Compensation Act 1987 provides that a medical report is admissible in evidence in proceedings before the Compensation Court. Subs(2) of s135 provides that subs(1) is subject to any provision of the rules of the Compensation Court or the regulations relating to the giving of notice of the admission in evidence of the medical report. The case was conducted upon the basis that the medical reports would not be tendered in evidence unless they had been served on the other side in advance. It would seem that RSA of the Rules made pursuant to the Workers Compensation Act 1926 was still applicable to proceedings in August 1989. RSA obliged the party seeking to tender medical reports to give at least twenty eight days notice of intention to a person entitled to object. But whether that was so or not, the case was conducted upon the basis that medical reports would be served before the hearing (see also Pt23 R8 of the Compensation Court Rules 1990). It is apparent from the transcript that Mr Daley, appearing for the appellant, did not dispute the ground upon which Judge Burke rejected the tender. He said he would call Dr Stephens during the afternoon. Dr Stephens was not called. There was no request for an adjournment for the purpose of calling him. Furthermore, the appellant did not seek to tender Dr Stephens' records which were in court. Ihave some difficulty in understanding the ground that the judge's decision to reject the tender was vitiated by his failure to give reasons. The reason was plain to both parties. Furthermore, it was accepted by both parties. It appeared to be suggested that although both parties knew the reason and accepted it as correct, URJ PAVLIS v CLEANA SERVICE PTY LTD (Cripps JA) 3 the appearance of judicial propriety required the judge to make some sort of ritualistic utterance stating once again what he had already made plain. In my opinion, the submission must be rejected. The respondent tendered statements from Steve Demos and John Stathis. Steve Demos made a statement dated 1 October 1987 setting out his version of events which, as I have said, totally contradicted the appellant's. He said he was the Managing Director of Cleana Services Pty Ltd. The tender was objected to on the basis that Mr Demos was relevantly a "person interested". He was called as a witness and was cross examined. Almost all the evidence he gave in his written statement he gave either in examination in chief or in cross examination. It would seem to me, with respect, that even if he were a "person interested", the submission that there should be another trial because of the wrongful admission of his statement must be rejected. In my opinion, the evidence in the written statement of Mr Demos "could have had no influence on the result and involved no miscarriage of justice' (Nominal Defendant v Hook (1962) 113 CLR 641 at 645). In the words of Sir Garfield Barwick in Vocisano v Vocisano (1974) 130 CLR 267 at 274-5: "\... [I]n the case of a trial by a judge, we have the reasons he has expressed for giving his verdict on the facts.... [B]efore a new trial is ordered in a case where the verdict is in accordance with the evidence, it should be seen that the inadmissible matter has been used by the judge in reaching his verdict." The appellant has failed to satisfy these requirements. I am not, however, persuaded that the trial judge erred in admitting the statement. When the statement was tendered, Judge Burke knew nothing more about Mr Demos other than what was contained in the statement. It recorded that he was the Managing Director of Cleana Services. The respondent was the holder of a worker's compensation policy of insurance in statutory form. Bearing in mind the provisions of the Workers Compensation Act and the circumstance that the litigation is conducted between, for all practical purposes, the worker and the insurance company, I do not think Judge Burke erred in declining to regard him as a "person interested". It was submitted that the judge ought to have had regard to the circumstance that amendments were made to the Worker's Compensation Act in 1985 which had the effect of requiring employers to pay the first $500 and that that circumstance made Mr Demos relevantly a "person interested". Judge Burke's attention was not drawn to the 1985 amendment. The section imposing limited liability on an insured direct did not apply unless the premiums exceed $2000. The Court had no information concerning the premiums. In Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 404, Glass JA expressed the test as to whether a person is "interested" as follows: "Tt does not mean interested in the wide sense but having such an interest as could lead to the belief that the maker of the statement had an interest to distort the truth." The test was reaffirmed in Brown v Petranker (1991) 22 NSWLR 717 at 726-7. In my opinion, there was nothing before Judge Burke requiring him to conclude that Mr Demos had an interest to distort the truth. Indeed, his subsequent oral evidence was that he had ceased being Managing Director of the company some six months before making the statement. The respondent also tendered a statement of John Stathis dated 25 September 1987. Mr Stathis described himself as a supervisor of the respondent. I am prepared to accept that Mr Stathis may have had some shareholding in the respondent and, on occasions, exercised some of the managerial functions. He 4 UNREPORTED JUDGMENTS was not called. In his statement he said that the appellant had never told him that he had a problem with his back. The statement was objected to, first, on the ground that Mr Stathis was relevantly a "person interested" and, second, because, it was submitted, it was hearsay. At the conclusion of the statement and above the signature of Mr Stathis and Mr Cannon, who witnessed his signature, were the words: "I have read this statement to my father who indicated to me that it was a true statement as he recalled the facts" and signed by "George Stathis". I have already explained why I do not think Mr Demos was relevantly a "person interested". A fortiori those reasons applied to Mr Stathis. He was not called. He was subpoenaed to appear but did not attend court. It may be he was a person who could not be found after reasonable efforts had been made. But in any event, Judge Burke exercised his discretion as to whether the statement would be admitted. on appeal the principles governing discretionary judgments apply (House v The King (1936) 55 CLR 499). I do not think it has been established that Judge Burke acted on a wrong principle or allowed extraneous considerations to influence him. The statement was written in English. There was no evidence that Mr John Stathis could not speak English although it may be inferred that he had difficulty reading it. However, it was not necessary for the respondent to establish that Mr John Stathis could read and did understand the writing. The statement was admissible in evidence if he signed it. (see Vocisano v Vocisano (1974) 120 CLR at 273-4). In any event, it could not be said that its admission into evidence led to a miscarriage of justice. Judge Burke did not refer to John Stathis' statement when rejecting the appellant's evidence. Accordingly, I am of the opinion that the submission should be rejected. Finally, it was submitted that the judge erred in drawing unfavourable inferences against the appellant by reason of his failure to call Dr Stephens and Dr Zarkos. After reciting the conflicting versions, Judge Burke said: "Dr Stephens' records were also in court, called for and access given to the parties and no evidence is educed (sic) from Dr Stephens other than a certificate indicating that he thought that Mrs Pavlis, because of her then state of pregnancy and prior history of miscarriage, should not be subjected to stress. This was tendered to meet any objection to Mrs Pavlis not being called to confirm some elements of the applicant's account. It would therefore seem that there is no specific history aliunde from anyone other than the applicant well into October 1986. The applicant relies essentially on his own credibility to establish the fact that he did have an injury. Objectively there is certainly no pathology revealed on tests which would tend to account for any sinister back problem which would induce the types of symptoms of which the applicant complains." Later: "Mr Demos has specifically stated that the applicant gave no account to him of any particular injury and that it was only ex post facto when he came back with the certificate on 28 August that he had any understanding that the applicant was alleging that he had had any injury in the course of his employment. The applicant stands alone as deposing to injuries. There is nothing from Dr Zarkos to confirm them. There is nothing from Dr Stephens to confirm them. There is a specific denial from Mr Demos of any complaint thereof. There is no objective pathology which would tend to account for the applicant's ongoing symptoms. He is a 29 year old man. one would accept that there was no URJ PAVLIS v CLEANA SERVICE PTY LTD (Samuels AJA) 5 degenerative condition which was likely to be exacerbated by the type of work he was doing. By and large the work itself does not appear to be particularly arduous for a 29 year old man. It seems to me in those circumstances that the applicant is not an acceptable witness. As to the particular events to which he deposes, I accept that he was doing some work, that it was work of a not particularly arduous nature. I would not anticipate that it would cause any problem of any long term effect. The applicant insists that he has a long term problem. I do not accept his account of his alleged injuries, I do not accept his account of his alleged symptoms. I would not be satisfied that the applicant sustained injury in the course of his employment with the respondent and I make an award for the respondent." I do not read the learned judge as saying any more than that he was not satisfied that the appellant was injured as he claimed or that he suffered the symptoms he said he did. No question of law arises on those findings. Jones v Dunkel has nothing to do with the matter. I am of the opinion that the appeal should be dismissed with costs. Samuels AJA (at page 1) I agree with Cripps JA. The appeal is dismissed with costs. Counsel for the Appellant: PE Blackett, Instructed by: McDonnell Vertzayias and Calopedos Counsel for the Respondent: JL Sharpe, Instructed by: Moray and Agnew