JOHNSON v IPEC TRANSPORT GROUP [1993] NSWCA 147

JOHNSON v IPEC TRANSPORT GROUP

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 27 August 1993, 27 August 1993

[1993] NSWCA 147

WORKERS' COMPENSATION — procedural fairness — judge fails to call on counsel for worker before proceeding to judgment and award — later offers reconsideration of award under Compensation Court Act 1984, s17(4) — offer declined — appeal on procedural unfairness to Court of Appeal — held: (by the Court):

(1) The failure of a judge to afford counsel for a party the opportunity to address before judgment is a procedural irregularity which normally requires the setting aside of the judgment.

Stead v State Government Insurance Commission (1986) 161 CLR 141; Escobar v Spindaleri (1986) 7 NSWLR 51 (CA) applied;

(2) The facility of reconsideration is open to a court before final entry of orders.

Smith v New South Wales Bar Association [No 2] (1992) 176 CLR 256 applied;

(3) A party or its legal representative should place objections to procedural irregularities on the transcript as quickly as possible and ensure that they are noted.

Wentworth v Rogers [No 12] (1987) 9 NSWLR 400 (CA); Vacauta v Kelly (1988) 13 NSWLR 502 (CA) applied;

(4) (per Mahoney JA, Meagher JA concurring; Kirby P dissenting): In the circumstances, having offered reconsideration to cure the irregularity and no apprehension of bias on the part of the judge being shown, the opportunity of reconsideration having been declined, the appeal should be dismissed.

LEGAL PRACTITIONERS - duties of - prompt objection to and notation of complaints about irregularities and suggested procedural unfairness in conduct of proceedings - duties of legal practitioners referred to.

Wentworth v Rogers [No 12] (1987) 9 NSWLR 400 (CA) considered.

NATURAL JUSTICE - procedural fairness - duty to hear representative of parties before reaching decision - facility of reconsideration of decision - facility to client - whether decision reached in absence of submissions should be set aside - held: (Mahoney JA, Meagher JA concurring; Kirby P dissenting): It should not.