JOSIFOSKA v AGE GOLDSTAMPING AND SILKSCREENING PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, SHELLER and CRIPPS JJA 3 December 1992, 16 February 1993 [1993] NSWCA 148 An application for review of a decision made by a commissioner was dismissed by a Compensation Court judge. The judge did find that remarks made by the Commissioner expressed a bias and pre conceived disposition to reject the evidence of a witness but did not find this bias extended towards the applicant. Held: The primacy of the trial judge in making findings on credit is based on the assumption that the trial judge conducts his or herself properly and fairly. The finding of bias towards a witness should have resulted in the judge discharging the orders of the commissioner and either determining the matter for himself of remitting it to the Chief Judge for further determination. Mansini v Director General of Education (Compensation Court, 30 January 1990) Jones v Hyde (1989) 63 ALJR 349 Watson v Hanimex Colour Services Pty Ltd (Supreme Court of New South Wales, Court of Appeal, 28 November 1991 Boston Clothing Company Pty Ltd v Margaronis (Supreme Court of New South Wales, Court of Appeal, 6 August 1992) Vakuauta v Kelly (1989) 167 CLR 568 Compensation Court Act s32, s36 Clarke JA I agree with Cripps JA. Sheller JA I have had the benefit of reading the judgment of Cripps JA and agree with it and the orders therein proposed. Cripps JA This is an appeal from a decision of Judge Moran on 7 November 1990 dismissing an application for review of an earlier decision by a Commissioner. The appeal is brought pursuant to s32 of the compensation Court Act which provides that a party aggrieved by an award (which includes a decision) may appeal to the Court. The appellant took proceedings in the Compensation Court claiming an entitlement to weekly payments of compensation. The Chief Judge determined that the matter be heard by a Commissioner. On 23 March 1990 Commissioner Butchard dismissed the application and made an award for the respondent. Pursuant to s36 of the Compensation Court Act 1984 the appellant made application to the Compensation Court to review Commissioner Butchard's decision. $36 provides: "(1) Where a commissioner or registrar makes a decision or does any other act in any proceedings, the Court may, on application by any party, review the decision or act, and may make such order by way of confirmation, variation or discharge or otherwise as the Court thinks fit. (2) Any such application for review must be made within the time and in the manner prescribed by rules of Court." The application came before Judge Moran on 4 September 1990. On 7 November 1990 it was dismissed. The appeal to the Court of Appeal is from that decision. 2 UNREPORTED JUDGMENTS It is submitted that Judge Moran erred in holding that findings of Commissioner Butchard on credit were not open to review in the circumstances of the case. It was also submitted that Judge Moran erred in failing to set aside the award for the respondent employer in the proceedings. In her notice of appeal, the appellant sought an order that an award for continuing weekly payments of compensation be entered in her favour or, alternatively, that the matter be sent back for "further hearing and/or determination according to the law". Before Commissioner Butchard the respondent denied that the appellant's claimed compensable condition was the result of an injury at work. The appellant gave evidence and was cross examined. A number of medical reports were tendered. No doctor gave evidence. One of the doctors called on behalf of the appellant was Dr Bannister. Commissioner Butchard made an observation about him which led Judge Moran to the conclusion that the Commissioner was relevantly biased. He said: "We find that Dr Bannister comes in late - well in April anyway - and it really concerns me that dear old Dr Bannister, an orthopod, can never see anything wrong with a patient except having manipulation, going to Westside Hospital and never recovering. Can I say I would never go to Dr Bannister if I hoped that I would recover." Later, and after dealing with the opinion of another orthopaedic surgeon, he said: "T will not refer to any more of Bannister's reports. I think they are quite irrelevant and totally inconsistent with the way the applicant complained of her complaints, and also what the first doctor and the gynaecologist have already said, who would have been more suitably qualified for the sort of problem that appears the applicant had." It is clear that Commissioner Butchard did not accept the appellant's evidence. He was not bound to do so provided, of course, he otherwise conducted himself fairly. The Court does not have a transcript of the proceedings before Judge Moran. Much of what is relevant emerges from his judgment. We were told that although it was alleged that Commissioner Butchard was biased and for that reason the proceedings before him were irrevocably tainted, no submissions were made concerning the orders that should have been made otherwise than that an award should have been entered for the appellant. Judge Moran found that Commissioner Butchard's remark evidenced "a clear expression of bias, with a preconceived disposition to reject his evidence". However, he then went on: "T am not satisfied that this bias against Dr Bannister's views, was extended (as Counsel for the Appellant submits) to a bias towards the doctor's patient's - in particular the Applicant." He adopted what Judge Burke said in Mansini v Director General of Education Compensation Court 30 January 1990 as to the nature and scope of the review process. He said he was entitled to make his own decision but, conformably with Jones v Hyde (1989) 63 ALJR 349, he was required to recognise the dominant position of the Commissioner where the Commissioner's decision was based on the credit of a witness. He noted that Commissioner Butchard had the opportunity to observe the demeanour of the appellant and that he did not believe her. He concluded: "Applying the principles laid down by the High Court in Warren v Coombes (1979) 53 ALJR 293 at 299 and in Jones v Hyde referred to above I hold that the findings of Commissioner Butchard based on the credibility of the Applicant are not open to review in this Court." URJOSIFOSKA v AGE GOLDSTAMPING AND SILKSCREENING PTY LTD (Cripps JA) 3 Although Mr Bridge, on behalf of the respondent, seeks to uphold Judge Moran's decision, he does not seek to set aside or vary Judge Moran's finding concerning Commissioner Butchard's conduct. Bearing in mind that it was established that Commissioner Butchard disclosed actual bias towards a witness whose evidence was important to the appellant, it is not easy to see why Judge Moran paid such respect to his findings concerning the appellant. The many decisions referred to in argument requiring respect to be given to the primacy of the trial judge are based upon an assumption that the trial judge has conducted himself properly and fairly. It is true that there was no finding of bias against the appellant. However, on the findings we are obliged to accept the Commissioner entered on a consideration of the appellant's case biased against one of the appellant's witnesses. It would seem to me that in the present case the findings made by Judge Moran should have resulted in him discharging the order made by Commissioner Butchard and either determining the matter himself or referring the matter to the Chief Judge for further disposition - a course I think open to him in the circumstances. In the course of the appeal, there was some discussion of the nature and scope of the review process under s36 of the Act (see Watson v Hanimex Colour Services Pty Ltd Supreme Court of NSW, Court of Appeal, 28 November 1991 unreported and Boston Clothing Co Pty Ltd v Margaronis Supreme Court of NSW Court of Appeal 6 August 1992 unreported). For present purposes, it is necessary only to mention that it was open to the learned trial judge, after discharging the order of Commissioner Butchard, to determine the matter himself or to remit it to the Chief Judge for further disposition. A demonstration of actual or ostensible bias ordinarily has the effect of irrevocably tainting the decision (Vakuauta v Kelly (1989) 167 CLR 568). It did so in this case. That being so, it was inappropriate for Judge Moran to approach the case upon the basis that Commissioner Butchard had properly discharged his judicial or quasi judicial function. During the proceedings before Judge Moran the appellant made no submissions, as I have already noted, concerning orders that should have been made upon a finding of bias. Indeed, after submitting that Commissioner Butchard was biased, the appellant invited Judge Moran to hear the case on the material before the Commissioner. The Judge was asked to receive additional medical evidence. He declined to do so upon his understanding of the rule that no fresh evidence could be adduced without the leave of the Court and, presumably, he was not prepared to grant leave. His ruling has not been challenged in the appeal to this Court. Mr Bridge, on behalf of the respondents, submits that it is now not open to the appellant to raise the ground that Judge Moran should not have proceeded as he did. Although there is force in the respondent's submission, I do not think it should be acceded to. The appellant did not invite Judge Moran to adopt the conclusions of Commissioner Butchard concerning her credit. Judge Moran was invited to review the decision and he did not do so. He adopted or, at least, accepted the Commissioner's conclusions notwithstanding the express finding that the Commissioner was biased. In my opinion, he should either have embarked upon the review himself or remitted the matter to the Chief Judge for further disposition. I would uphold the appeal and set aside Judge Moran's order. The order I propose is that the matter be remitted to the Compensation Court to be dealt with according to law and that the appellant have her costs of the appeal. 4 UNREPORTED JUDGMENTS 1. Appeal upheld 2. Matter remitted to the Compensation Court to be dealt with according to law. 3. Appellant to have her costs of the appeal. Counsel for the Appellant: AJ Bellanto QC with PM Jeffriess Solicitors for the Appellant: Flannery Mura and Costello Counsel for the Respondent: AC Bridge Solicitors for the Respondent: Hickson Lakeman and Holcombe