MERDANIC v PONGRASS OPERATIONS PTY LTD [1994] NSWCA 202

MERDANIC v PONGRASS OPERATIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and SHELLER JJA 28 June 1994, 8 November 1994 [1994] NSWCA 202

WORKERS COMPENSATION — hospital document not in evidence at trial — appeal limited to question of law — no basis for admitting document in appeal — no procedural unfairness at trial — no misuse of evidence from view — following failure of appeal, resort to Compensation Court Act s17(4) would be appropriate.

The appellant claimed workers' compensation from his former employer alleging that he suffered an injury when he fell from a machine in the course of employment. A document from hospital records made on the same day relating to the appellant's injury was not in evidence at the trial. He was disbelieved about events on which he might have been corroborated. On appeal he claimed a case had been made against him at trial which he had not had a fair opportunity to answer. Held: (1) The hospital document could not be admitted into evidence for the purpose of this courts consideration of the appeal because it could not be relevant to any of the arguments the appellant was entitled to rely upon. (2) There was no denial of procedural fairness at the trial as counsel for the appellant was aware of the case being made against his client. (3) The trial judge did not misuse, in a way amounting to an error or law, what he saw and heard on the view. (4) Resort to the Compensation Court Act s17(4) following dismissal of the appeal, for the purpose of achieving a reconsideration of the trial judge's decision would be appropriate.

ORDERS

Appeal dismissed with costs.

Mahoney JA I agree with the judgment of Priestley JA.

The allegation which, by the respondent s defence, was made against Mr Merdanic was a serious allegation. It amounted to a claim that Mr Merdanic had fraudulently asserted that he had fallen at work when he had not done so. At least, that is the allegation which has emerged during the conduct of the proceeding. The formal finding by the Compensation Court that he had done that may, of course, have serious effects upon him in his standing in the community, his standing in credit circles and otherwise. It is therefore proper that, on appeal to this Court, the Court examine thoroughly whether there was error in the finding made by the Compensation Court.