LITYNSKI v ALBION STEEL PTY LTD [1994] NSWCA 186

LITYNSKI v ALBION STEEL PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and HANDLEY JJA 27 April 1994, 20 May 1994

[1994] NSWCA 186

WORKERS' COMPENSATION — procedures — review — worker's claim for weekly compensation in respect of disability in his back dismissed by Commissioner (Grayson C) — on application for review to the Compensation Court, Burke CCJ refuses to permit the recalling before him of medical evidence on the point not adduced by the Commissioner — Burke CCJ, in the exercise of his discretion under s36 Compensation Court Act 1984 dismisses worker's application for "review" — on appeal to the Court of Appeal — held: (Gleeson CJ, Handley JA concurring; Kirby P dissenting):

(1) Pt30 R5 Compensation Court Rules requiring leave to adduce evidence not adduced before a Commissioner is valid; (2) Upon that footing, Burke CCJ's refusal to permit the worker to call new evidence on the review was an exercise of discretion which was not shown to have miscarried. House v The King (1936) 55 CLR 499 applied; (3) In a "review", new evidence may be called but only in the discretion of the judge conducting the review. Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190 (CA); Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA) explained; (4) No error of principle having been shown, the appeal should be dismissed. APPEAL - "review" - distinction between appeal and review - wider scope of review- Australian Gas Light Co v Samuels, Court of Appeal, unreported, 4 November 1993; [1993] NSWJB 114 considered. WORDS and PHRASES - "review". Compensation Court Act 1984, s36(1). Compensation Court Rules, Pt30 RS. ORDERS Appeal dismissed with costs.

Gleeson CJ This is an appeal from a decision of his Honour Judge Burke in the Compensation Court of New South Wales refusing an application for review of an earlier decision of Commissioner Grayson. The commissioner had made an award in favour of the respondent following an application for compensation by the appellant.