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. Compensation Court Act 1984, s17(4). Workers' Compensation Act 1926, s36(2). Workers Compensation Act 1987, s55, s66, s67. Kirby P This appeal concerns the application of rules of procedural fairness in the Compensation Court of New South Wales. Counsel for a party is denied the chance to address Before the Court is an appeal from McGrath CCJ, the Chief Judge of The Compensation Court. The notice of appeal asserts that his Honour erred in law by proceeding to a determination of the appellant's case in that court without affording the appellant's counsel an opportunity to address the Court before his Honour did so. The facts are that Mr David Johnson, a worker (the appellant) claimed compensation in the Compensation Court for permanent loss of the use of his left leg caused by an injury which he received on 26 May 1988 in the course of his employment for IPEC Transport Group (the respondent). 2 UNREPORTED JUDGMENTS The claim is made in terms of s66 of the Workers Compensation Act 1987. The appellant's claim was heard on 26 March 1991 by McGrath CCJ. The evidence called comprised of oral evidence of the appellant and five medical reports which were tendered respectively for the appellant and the respondent. The medical reports contained a conflict of opinions and estimates. These ranged from an assessment of Dr Scarlett in April 1990 of "a minimum permanent loss of 20 per cent of the effective use of his left leg at the knee" to that of Dr Bornstein who prepared his report for the respondent. He said that the would assess the permanent impairment of the left leg "at the knee" at 5 per cent. The assessment in each case is not strictly as the terms of the relevant provision of the Act. This required a somewhat different reference point as this Court has made plain in the subsequent decision in Kaljanac v J Odlin Shopfitters Pty Ltd (1993) 29 NSWLR 632 (CA). However, nothing turns on that point as each of the medical reports before McGrath CCJ was in the same terms. No argument has been addressed to the Court today on the manner in which the medical reports expressed their respective opinions. The transcript of the proceedings before McGrath CCJ has been placed before this Court. It has been enlarged in certain respects by agreement of the parties. The transcript was also altered in certain respects to correct the attribution of certain statements to the incorrect legal representative. However, none of these corrections is of great significance. The Court was also informed, by agreement, of the time sequence of the proceedings before McGrath CCJ and that has some relevance. At the close of the oral evidence of the appellant the transcript discloses that discussion took place "Re payments under different sections". The proceedings then resumed. Discussion continued between his Honour and Mr Gambi, who was then counsel appearing for the appellant. Some of Mr Gambi's assertions to his Honour were disputed by him. The transcript then discloses the following exchange: HIS HONOUR: Ten percent of that which is eight, three, four, zero. $8,340.00 - I have determined that. DISCUSSION RE ANOTHER MATTER HIS HONOUR: Ready, Mr Flett? It is only the 2 issues in this case s66 and s67. MR GAMBI: And there is an issue in relation to interest your Honour, not only in relation to 66 and 67 but also an outstanding closed period up until the consent award in February. CASE ADJOURNED CASE RESUMED HIS HONOUR GIVES JUDGMENT DISCUSSIONS RESUME MR RIMES: Your Honour, before your Honour rises. I instructed Mr Gambi in the matter of Johnson MR RIMES I have received certain instructions and I would appreciate some time, your Honour if I could address his Honour, now, very briefly. This morning your Honour might recall some evidence was taken before morning tea. Following that evidence there was a discussion by your Honour with both counsel and one of the points that came out in that discussion is your URJ JOHNSON v IPEC TRANSPORT GROUP (Kirby P) 3 Honour's concern for - well, a couple of points but the major one to be concerned about was deciding between Dr Bornstein and Dr Scarlett's opinions on the s66 claim. 'Your Honour then took the morning tea adjournment - I think it was about 11.40, having a minute or two before that expressed the opinion that it might be a matter to go to the medical board. Your Honour returned from the morning tea adjournment at 12 o'clock and sat down and delivered some findings which, we were under the impression, were preliminary to referring the matter to the Medical Board. HIS HONOUR: No. MR RIMES: I know that now, your Honour. The foregoing passage must be read in the light of the agreement as to the time sequence to which I have already referred. It is agreed that the adjournment which is referred to occurred at 12 noon. The case then resumed at 12.25 pm. His Honour then proceed to give judgment which concluded at 12.40 pm. His Honour then turned to other business in his list. At 3.40 pm, the discussions resumed as stated in the transcript, presumably after other matters in the list were completed. The judgment which is referred to is reproduced in the appeal book. It records his Honour's reasons for entering the award which he did in the sum of $3,127.50. That award was entered pursuant to s66. It was for 5 per cent loss of the left leg at or above the knee. The award entered was considerably less than the worker had claimed. By his application for determination he had sought an award for $12,510 for a lump sum under s66 together with $15,000 which I assume was for the lump sum provided by s67 of the Act for pain and suffering. The award of the Compensation Court has now been taken out. It accurately reflects McGrath CCJ's decision. It is from that award that the appeal has been brought to this Court. It is agreed between the parties that the appeal is an appeal which is not restricted to a point of law. However, the point which has been argued before us today is a point of law so nothing turns on that question. The judge offers reconsideration but this is declined The course which was taken by Mr Rimes, the worker's solicitor, in recording, before the end of the day, the objection which the appellant has now voiced in this Court was, on the authority of this Court, a proper one. The Court has said on a number of occasions that, where a party wishes to challenge the course which has been adopted by a judge, it is the duty of that party or of its legal representative, to have that challenge recorded in the transcript and to ask that it be noted. Cf Wentworth v Rogers [No 12] 1987 NSWLR 400 (CA) at 422; Vakauta v Kelly, when it was in this Court, (1988) 13 NSWLR 502 (CA) at 528. Confronted by Mr Rimes' objection, McGrath CCJ made it clear that he considered that counsel had, as he thought, completed their addresses. However, he said that he would leave his award "in escrow" and hear counsel on the following day, 27 March 1991. It appears that Mr Gambi was no longer present in the Compensation Court when Mr Rimes rose to address his Honour. The Court has been told that that was the case. Mr Flett, who appeared at the first instance for the respondent, first appears to have assented to McGrath CCJ's statement that there had been an opportunity for counsel to address. However, he quickly indicated agreement with the assertion that the opportunity of address had been denied, He said, "Yes, my friend is quite right. There was not afforded the formal opportunity to..." I take this to mean "address the court". The 4 UNREPORTED JUDGMENTS transcript is interrupted at that point. The added words were not really disputed and in any case they appear reasonably clear from the context. McGrath CCJ's offer was apparently to reconsider his award before the formal award was settled and entered by the Compensation Court. As he stated to Mr Rimes, he stood the matter over to the following day. The transcript shows that the order made was that the case was "adjourned". On 27 March, 1991, in accordance with that order, the case was relisted before McGrath CCJ. Mr Gambi appeared again for the appellant. His Honour said: "Your solicitor made certain submissions to me yesterday and I indicated that I would put it in today for reconsideration. It had not occurred to me that I had not formally asked you whether you had anything further to say because of the discussion that went on. I wrongly assumed that it was only a matter of me making up my mind." However, Mr Gambi on behalf of the appellant declined the opportunity of reconsideration proffered by McGrath CCJ. He said: MR GAMBI: "...the opportunity that was lost to the applicant remains lost and will always be lost and I do not wish to make any further application before you today because I do not, in my mind, believe that any application that I could make now would have - could remedy the lost opportunity that has now been made, so that I, in fact, do not wish to make any application before you today your Honour, but as I said I came to see your Honour because my presence - Mr Rimes indicated my presence would be here. HIS HONOUR: Do I understand you to say that you do not ask me to reconsider my Award. MR GAMBI: No your Honour, because your Honour I believe that having determined the matter without affording counsel for the applicant an opportunity to address, is an opportunity which I cannot, in my mind, see how it can be remedied with any application or submissions that I could make before our Honour now. I do not wish to jeopardise any further rights the applicant has by making any further application." McGrath CCJ concluded the proceedings on 27 March 1991 with the following summary of the position as it stood at the end of the hearing and as he saw it: "HIS HONOUR Yes, well suffice is to say in the course of the hearing of the matter various exchanges occurred between the bench and counsel and after the adjournment it certainly slipped my mind that I had not, in fact, formally called, I think, on either counsel to address me further in the matter and I then proceeded to deal with the case as it appeared to me on the evidence. It was mentioned to me yesterday by the solicitor for the applicant that my attention should be drawn to the omission which it appears that I made, which I consider to be an important matter. I indicated to him then that I was prepared to reconsider the matter that Ihave decided and now I am still prepared to reconsider it, but Mr Gambi for the proper reasons has decided not to accept that suggestion that I reconsider the matter on the basis that he thinks that any damage that was done would be irreparably done and he wants to reserve his rights." The legal Principles applicable to the appeal The principles of law which I take to be applicable to the resolution of the problem presented by the appellant's appeal are as follows: (1) A party is ordinarily entitled to have the opportunity to address a court by itself, or by its legal representative, before the Court reaches its conclusion. A denial of that right is 8 procedural irregularity which may require the setting URJ JOHNSON v IPEC TRANSPORT GROUP (Kirby P) 5 aside of a decision reached without provision of that facility See Escobar v Spindaleri (1986) 7 NSWLR 51 (CA) at 55. The reasons for this rule is that a party is entitled to endeavour to persuade the Court on the merits of its case before any final decision is entered (See Mayes v Mayes [1971] 1 WLR 679. As Lord Denning MR once said, no cause is lost until the court has passed upon it. A court ordinarily does not pass upon a cause until it has heard the arguments of the parties. (2) The premature termination of evidence or argument will ordinarily attract the intervention of an appellate court. However, it is not every denial of the procedural rules or even of the requirements of procedural fairness which will require that an aggrieved party have a new trial. In Stead v State Government Insurance Commission (1986) 161 CLR 141 to 145 the High Court pointed out that, where a party was denied an opportunity of addressing a Court on a question of law and that question was in the opinion of the appellate court clear and would be answered unfavourably to the aggrieved party, it would be futile to order a new trial. (3) Nevertheless, where the denial of procedural fairness affected the entitlement of the party to make submissions on an issue of fact, especially where the issue concerns the evidence of particular witnesses and whether that evidence should be accepted or preferred to other evidence, it is more difficult for the appellate court to conclude that compliance with the requirements of procedural fairness would not have made any difference to the outcome of a trial. See Stead above, 145 to 146. (4) The procedures of the Compensation Court, as a specialised tribunal with a large work load, are less formal than other courts of this State. A high degree of informality is permissible and condoned by decisions of this Court. However, in certain basic matters, such as the right to call relevant evidence or to address a court, that court, like any other court (including this one), is bound to observe the fundamental rules of procedural fairness. Procedural informality must not be permitted to become a vehicle for procedural unfairness. (5) The Compensation Court is empowered by its statute to reconsider an award. See Compensation Act 1984, s17(4): "17(4). Nothing in subs3 should prevent the Court constituted by a judge from reconsidering any matters which has been dealt with by it or from rescinding, altering or amending any decision previously made or given by the Court so constituted, all of which the Court should have the authority to do." This provision is to be contrasted with the more formal power of review which is provided by s55 of the Workers comPensation Act 1987. The facility of reconsideration is clearly a most useful one. Its utility was called to attention by this Court in Lasaitis v Email Ltd, Unreported, 23 March 1990, at 24. It is similar to the powers previously enjoyed by the Workers' Compensation Commission under the 1926 Act, s36(2). The width and power of that subsection was noted by the Full Court in Hilliger v Hilliger, (1952) 52 SR(NSW) 105 (FC). In this Court too there is a large power of reconsideration which was called to notice recently by the High Court in Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256. It was exercised by the Court in Winrobe Pty Ltd and Anor v Sundins Building Co [No 2], Unreported Court of Appeal 24 December 1992. In the last mentioned case, the Court, having reconsidered its previous orders, revoked its earlier orders before they had been entered. It entered final orders which were quite different. 6 UNREPORTED JUDGMENTS (6) Relevant to the last orders sought by the appellant, the award of the Compensation Court would, if the appeal succeeded, be set aside. The usual practice of this Court is then simply to return the matter to the Compensation Court for reconsideration. This is done to preserve the proper relationship between the Compensation Court and this Court. Usually this Court makes no order as to the constitution of the Compensation Court on the resumed hearing. That constitution is left to the Compensation Court's internal arrangements. This course is followed to limit this Court's interference in the internal affairs of the Compensation Court. Sometimes, as the appellant asks in this case, this Court has suggested that the Compensation Court should be differently constituted on the return of the procedure to it. See eg Escobar, above, at 58. However, such orders are exceptional. They are so for the reasons which were recently explained by this Court in relation to the Land and Environment Court in Steedman and Anor v Council of the Shire of Baulkham Hills [No 2], Unreported, Court of Appeal, 13 August 1993, at 26. Nonetheless, such orders are made where a person aggrieved has made out his case and has a legitimate concern that the return of the matter to the tribunal or court, as originally constituted, would be pointless because the views of that court or tribunal have already been stated. See Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 (FFC) at 42. The respondent's arguments for refusing relief The respondent has resisted relief in this Court upon various grounds. It says: 1. That the course of the conduct of the Compensation Court was sufficiently explained by the informality of procedures in that court which were described as akin to a "fireside chat'; 2. That the issue in contest was essentially a medical issue and that such an issue could be safely left to McGrath CCJ. By inference, it was suggested that upon such an issue, counsel's submissions would be unlikely to cause any noticeable impact; 3. That the issues in contest were, in fact, sufficiently canvassed already between counsel and his Honour; 4.That the resulting award was probably inevitable on the facts before the Compensation Court, and particularly, (as I understood the argument), because McGrath CCJ had twice indicated his willingness to refer the assessment to a medical panel but no such application had been made for the worker. On one occasion counsel for the respondent did indeed suggest reference to the medical panel. Later he appears to have withdrawn that suggestion. However, McGrath CCJ never specifically said that he would refuse to refer the matter to the medical panel. Such a course was certainly open to his Honour to the end of the case. It was a course which might have been adopted in the addresses of counsel for him, the appellant to his Honour. By reason of the lack of opportunity to make a final address counsel for him, the appellant lost that opportunity to urge that course upon his Honour; 5. That McGrath CCJ did not concede an error as appears on the transcript but was only being, as it was put, his customary polite self in acknowledging the appellant's complaint; 6. That his Honour offered a proper opportunity for reconsideration which the appellant refused. In such reconsideration the decision announced and the award given would have been taken merely as a statement of his Honour's then current thinking; URJ JOHNSON v IPEC TRANSPORT GROUP (Kirby P) 7 7. That the appeal should be dismissed because of the refusal of the opportunity of reconsideration which was the correct remedy in the circumstances; and 8. That if, against all these submissions, the matter were returned to the Compensation Court it was not appropriate to make special orders for the constitution of that court. There is not doubt having regard to the terms of s17(4) of the Compensation Court Act that McGrath CCJ, would have had power to reconsider his decision. If the appellant co operated in that course, his Honour could certainly have proceeded to give a decision entering an award in a different sum. Apparently, the appellant was not convinced that that course should be adopted, a firm opinion having earlier been expressed by his Honour and an award pronounced. His Honour did acknowledge in his closing remarks that he had "considered" the matter and had "decided" it. It is open to inference that such was the view which the appellant formed, viz that his Honour's mind had been made up and was unlikely to be changed. However that may be, the appellant sought to preserve his rights with complete propriety. McGrath CCJ recognised the appellant's right to do this. He therefore proceeded to enter the award which he had earlier announced. The problem which is now presented is that that award has been entered and it is flawed by the procedural unfairness of which the appellant complains. This unfairness is not I think an inconsequential one. It was important to the appellant not just for his entitlement under s66, of the Workers Compensation Act 1987. Unless he could recover more than the threshold under that section he was not entitled to compensation under s67. In the result, he received no compensation under that section. The fact that the case supporting the award which was entered by McGrath CCJ was, on one view, a strong one does not reduce the entitlement of the appellant to have the facility address by his counsel before the decision is reached. In a sense, the address becomes the more important. For my part I do not have such a conception either of the function and status of the Compensation Court or the open mindedness of its judges to accede to the submission that the address to that court is a mere formality and could not have affected a change of judicial opinion. If that were so, it would be just as well to abolish the court and all its curial trappings and substitute decision by an administrator as has been done in this area of the law in other jurisdictions. The offer of reconsideration does not cure the award's defect The question which has caused me most concern is that which was raised in the submissions about the facility of reconsideration. Did the appellant waive his right to complain because of the refusal to accept that facility when it was proffered to him by McGrath CCJ? For three reasons I think not. The first was that counsel for the respondent acknowledged immediately at the trial, and in my view quite properly, that the appellant had been denied the formal opportunity to address; secondly, his Honour accepted that this was so. He observed that the omission was considered by him to be an "important matter". In this regard I agree with his Honour. I also agree that the appellant was simply reserving his legal rights. That is as I view what has occurred. Thirdly, the appellant never waived his right to complain about the procedural unfairness which had occurred. He did not adopt a course inconsistent with relief for that complaint as he would have done if he had agreed to reconsideration by the judge. Cf Ex Parte Corbishley; Re Locke (1967) 2 NSWR 547 (CA) at 548. 8 UNREPORTED JUDGMENTS The appellant obviously entertained the precise doubts which were held justified by the Full Court of the Federal Court of Australia in the Australian Broadcasting Tribunal case. The judge might state that he would treat the decision as preliminary. But it had been formally delivered by him as final judgment. His orders had been pronounced. And he said in his concluding remarks that the matter had been "decided" by him. In any case, submissions having been declined the unassisted decision remained the basis of the award which was entered without the appellant having had the opportunity to address the judge. As McGrath CCJ himself admitted this raises an important question. The absence of address flawed the award. In my opinion that flaw remains. No special order on remitter I do not consider that it is necessary for this Court to make a special order affecting the remitter of the proceedings to the Compensation Court. It is true that it might be preferable, or the appearance of manifest justice, that the matter begin again before a different judge. However, that is a consideration which can be left to the good sense of those administering the list of the Compensation Court, including McGrath CCJ himself. The reasons for my taking that course and holding back from the order which the appellant has sought are analogous to those given by me in Steedman where a similar application was declined by this Court. ORDERS The orders which I would therefore propose are: 1. Appeal allowed; 2. Set aside the award of his Honour McGrath CCJ; 3. Order that the proceedings be remitted to the Compensation Court to be heard and determined according to law; 4. Costs in the Compensation Court be as ordered by that court; 5. The respondent which persisted in its resistance to the relief sought by the appellant to pay the appellant's costs of the appeal but to have if so qualified a certificate under the Suitors Fund Act 1951. Mahoney JA I am grateful to the President for his detailed and comprehensive statement of the facts and the general principles relevant to the determination of this appeal. What his Honour had done enables me to go to what in my opinion is the substantial issue to be determined. The ground of appeal is: "His Honour erred in law by proceeding to a determination of the case without affording counsel for the defendant an opportunity to address the court." The matter come before this court as on a rehearing: Supreme Court Act 1979, s75A. Had the Appellant framed the grounds of appeal appropriately, this Court could have reconsidered the merit of the matter and given a decision which would have disposed of the application. The appeal does not raise issues which could not have been dealt with by this Court. The questions before the judge were described by him as being essentially technical in nature and in the sense that that phrase was used in his judgment I agree with what has been said. However, that course was not taken, the matter has been brought before this court to determine the issue whether his Honour erred in law in that, as it was said, he determined the matter without affording counsel an opportunity to address the court. As the President has pointed out in the judgment which he has delivered, the judge delivered what in the ordinary sense would have been a judgment deciding the issues of fact before the Compensation Court and pronouncing an order. URJ JOHNSON v IPEC TRANSPORT GROUP (Mahoney JA) 9 However, on the same day and, of course, before the matter was formalised or entered his Honour indicated that he would have been prepared to reconsider the matter. I take that to mean that he was in fact prepared to reconsider the whole matter: to hear counsel's address and to determine the matter anew. It has not been, I think, suggested to the contrary. It is proper to remark, parenthetically, that when the judgment was delivered, during the proceedings and before the luncheon adjournment, counsel were present and counsel did not take any objection then to what his Honour did. There may have been reasons for this. But the court has not been apprised of them and so must speculate in relation to them. Objection has been taken to what his Honour had done upon the grounds that there had been no formal invitation to address but that objection was not taken until later in the afternoon. However, the objection was taken during the afternoon of the day on which his Honour gave his reasons and made the order that he did. When the matter was drawn to the learned judge's attention, he initially took the view that he had thought that there had been a sufficient discussion of the matter and that no further or formal address had been required. However, when it was pointed out to him that he had not formally invited addresses, he then offered to hear the parties on the matter then or, as I understand it, on the following day. The parties were offered the full opportunity for a formal address. The right of the judge to deal with a matter in this way cannot I think be questioned. At least, in my experience such a course has not infrequently been followed. In my experience when a judge has delivered reasons and pronounced an order, it is open to counsel (indeed it may in some circumstances be the duty of counsel), to point out to the judge that there have been errors in what he has said or that he has approached the matter in a wrong way. I do not mean by this to invite capricious recapitulation of the arguments previously addressed to the court. But not infrequently if an error has been made, in procedure or substance, in relation to the matter, counsel will refer the judge's attention to it. In such circumstances judges have in my experience then invited the correction of the suggested error. If procedural matters are in error that can be cured at that time: if the matter involves an error of fact or in law then the judge is entitled to correct it. Judges have done this, in my experience, without the formality of being moved for a reconsideration of the matter in a formal manner such as has been suggested in the cases: see for example, Smith v New South Wales Bar Association (1992) 176 CLR 256. However that be the judge did in fact offer to the parties here a full opportunity of formal address in relation to the matters that were in issue. The appellant opted not to take that opportunity. His Honour then made an offer (albeit I think in general terms; it was not necessary for him to pursue the matter in detail), that he would treat anything that was said or done as being a formal reconsideration of the matter. As the President has pointed out, there is a power in the Compensation Court, not merely to do what I have indicated, but also formally to enter upon a reconsideration of what has been done and the orders that have been made, under for example s17(4) of the Workers Compensation Act 1987. I do not pause to consider whether a power such as that given by s17(4) is different from the power which under the general law conventionally exercised by a judge in cases where, a judgment and order having been pronounced, a party moves before formal entry of the order for a reconsideration of it. The relationship between the power under the general law and the power under the Workers comPensation Act 1987 is 10 UNREPORTED JUDGMENTS something which may require consideration in other cases. But those powers are in my opinion in addition to the power to which I have initially referred, namely that of the judge to whom error has been pointed out at or about the time when he has delivered his judgment. However, the various opportunities which were offered to the appellant on that occasion were not availed of. They were rejected and it was indicated that the matter would be dealt with on appeal. In these circumstances I do not think that there has been a denial of natural justice or a failure to afford counsel the opportunity to address the court. As I have said the fact that the judge has pronounced reasons and an order in this particular way does not prevent him affording such an opportunity to the parties as was afforded in this case; that would satisfy the requirements of natural justice. In my opinion the nub of the complaint made by the appellant lies elsewhere. It lies I think in an allegation of bias or attempted bias. (I use those words generally. They are words which have been used frequently in the courts in relation to errors of procedure and otherwise. Reference may be made for example to what has been said in Vakauta v Kelly (1989) 167 CLR 568 and in the Australian National Industries Ltd v Spedley Securities Ltd (In Liq) and Ors (1992) 26 NSWLR 411). The nub of the complaint here made is, I think, that there is the apprehension that, his Honour having given a decision and formally made an order, to the extent that he had done, it would be rather more difficult in address to change his Honour's mind than it would have been if the address had proceeded prior to the judge doing what he did. It may be accepted that counsel may personally entertain such a feeling. But that feeling is based, of course, upon the assumption that a judge who has done what the judge here did and then offers an opportunity for a formal address will not properly apply his mind to the matter and do what the law requires him to do, namely to consider the matter according to the evidence and the submissions of the parties and come to what in his opinion is the proper decision. It was not suggested here that his Honour would have done other than what the law requires him to do. In that sense the contention that it would be more difficult to change the judge's mind is without basis. In saying that I am not unappreciative of the problems an advocate may feel in circumstances of this kind. It is really this difficulty of advocacy which in my opinion lies at the heart of the problem which the appellant feels and on the basis of which this appeal has been brought. But I do not think that, as such, problems of this kind involve natural justice. It is, if anything, a matter of apparent bias. To this I shall refer in a moment. The matter may be tested in this way. Assume the judge had in the course of the addresses, said to the appellant's counsel, "I have formed a strong view in relation to the matter at issue in this case. That view is against you. I bring this to your attention so that you may deal with it. But you will have difficulty in changing my view. I remind you, of course, that at all times I am properly open to persuasion as the law requires." If the judge had said something to that effect and said it in an appropriate manner and form there could have been no objection. Counsel addressing the judge could have had no complaint: there would not have been a case of denial of natural justice or anything of that kind. This, of course, is not precisely that case. But the courts have been reminded from time to time in recent years that it is preferable for a judge hearing counsel not to sit silent but to indicate the way in which his thinking is proceeding so that counsel may properly deal with the issues which are apt to be the issues on which the case is decided. However that be, if the judge URJ JOHNSON v IPEC TRANSPORT GROUP (Meagher JA) 11 in the present case had done that the position would I think have been little different in substance from what ought to have happened in this case. All of this leads to the conclusion that there was here no denial of natural justice and there was in particular no denial, in terms of the ground of appeal, of the opportunity to address. There is one additional matter to be referred to. It is this. Mr Beauchamp for the appellant has quite properly suggested that the nub of this matter lies at least in part in the appearance which the events would have presented to the client who was in court: the client may well have thought that the judge, having given reasons and made an order, would be apparently biased against changing his mind notwithstanding the efficacy of the advocacy of his counsel. This, of course, would be to misunderstand what takes place in a court and in particular in the court here in question. As I have said it is not suggested that the judge would not have done what the law required him to do. He would in fact have changed his mind, notwithstanding what he had done, had reason been shown for him to do so. The question is, therefore, whether there was here something of, as it has been described variously in the cases, apparent bias. That is a case different from what has been put in the ground of appeal. However, I do not think that Mr Beauchamp should be held technically to the terms of the ground of appeal. His attention was drawn to matters of bias and the like during argument and I am content that that matter be treated as a current issue in this appeal. But in all the circumstances of the case I do not think that what occurred here gives rise to a complaint such as should warrant this court intervening. In this case the complaint, as has been said from time to time, is the failure to give the "formal" opportunity of address. In what was said by counsel before the judge, I think by the judge, and certainly during the course of discussions before this court, emphasis has been placed on the word "formal". I accept that justice may lie in the formalise the procedure; it has been said that the safeguards of liberty often lie in the interstices of procedure. But if the court is satisfied that the justice to which the rules of procedure are directed has been achieved then in my opinion it would be wrong to intervene because the formalities of procedure have not been observed. The rules should not result in what has been done being set aside notwithstanding that no substantial injustice has in fact occurred. The fact, as I assume, that the formal opportunity of address was not given at the time when ordinarily it would have been given does not affect the substantial justice of the matter. It is not a ground on which I would set aside the order. Before concluding I would express my gratitude to counsel for their assistance in this matter. Mr Beauchamp adhered firmly to the points that the was putting notwithstanding questioning from the Bench, and Mr Neilson said no more than was necessary in order to deal with the matter. In my opinion the appeal should be dismissed with costs. Meagher JA Lest I become provocative I limit myself to saying I agree entirelywith Mahoney JA. Kirby P: The order is the appeal is dismissed with costs. Counsel for the Appellant: GB Beauchamp Instructed by: Kencalo and Rimes Counsel for the Respondent: GW Neilson 12 UNREPORTED JUDGMENTS Instructed by: Hunt and Hunt