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. The application for review was made under s36 of the Compensation Court Act 1984 (as amended) which is in the following terms: "36 (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. (a) Any such application for review must be made within the time and in the manner prescribed by rules of Court. " The Compensation Court Rules 1990, Pt30 R5 provide: "5 (1) On a review under s36 of the Act of the decision of a commissioner, evidence that was not adduced before the commissioner shall not be adduced without leave of the Court. (2) The Court may if it thinks fit refuse to grant leave under subR(1) unless it is satisfied that there was good reason why the evidence was not adduced before the commissioner. " 2 UNREPORTED JUDGMENTS A good deal has been said about the nature of the review provided by 836 (eg Watson v Hanimex Colour Services Pty Ltd (1991) B NSWCCR 190, Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580). Judge Burke decided the present case before those decisions, and without their guidance. Whether his reasoning was based on a view of the law inconsistent with those authorities is a matter in issue on this appeal. The background of the case may be summarised as follows. The appellant, who is now aged fifty seven, commenced employment with the respondent in 1988. That employment involved heavy lifting and bending work. In March 1989 the appellant began to suffer back pains, but not to such an extent as made him unable to work. In June 1989 his employment was terminated for reasons that had nothing to do with his physical condition. Some days later, whilst at home, he bent over to tie up his shoelaces, and suffered severe back pain. He received medical treatment and his condition improved. The extent of the improvement was in dispute. In November 1989 he commenced proceedings for compensation. His application was dealt with by Commissioner Grayson who, as noted above, found in favour of the respondent. The application for determination which was made by the appellant was accompanied by written particulars expressed in the following terms: "Throughout his employment with the Respondent the Applicant performed work involving bending and lifting and flexing of the spine the general nature and conditions of which work caused and/or aggravated the condition particularised below. Throughout his employment over a period of many years the Applicant performed duties of such a nature as to cause and/or aggravate and/or accelerate and/or materially contribute to the development of a condition of degeneration and strain in the Applicant's low back and the Respondent was the last employer for whom the Applicant worked performing duties of such a nature as to give rise to this disease process." As the matter was conducted before Commissioner Grayson, it was the former of those two alternative ways of putting the appellant's case that was pursued in evidence and argument. The evidence before Commissioner Grayson consisted of the oral evidence of the appellant and of two other employees of Albion Steel Pty Ltd. In addition there were tendered medical reports of Dr Berry, Dr Ng, Dr Maniam, Dr Sinclair and Dr Spigelman. There was also a report of a Medical Panel assessing the permanent impairment to the appellant's back as fifteen percent of the total loss thereof. Although there was a substantial area of dispute between the medical witnesses, none of them gave oral evidence or was subjected to cross examination. The medical reports addressed, amongst other things, the significance of the episode that occurred at the appellant's home whilst he was endeavouring to tie up his shoelaces. Some of the witnesses, and in particular Dr Spigelman, regarded that as a discrete and separate episode. It seems to have been accepted that a man of the appellant's age and occupation would be expected to suffer from disc degeneration. Dr Spigelman's opinion was that the event that had occurred at home was a disc rupture partly to be explained by the degenerative condition of the appellant's back. However, he did not regard that injury as work related and, in any event, was of the view that it has resolved itself. Dr Maniam, on the other hand, said in a report dated 15 May 1990 that it is likely that the nature of the work performed by the appellant URJ LITYNSKI v ALBION STEEL PTY LTD (Gleeson Cu) 3 brought about the problems with regard to his back. By May 1990 those problems were stable but there was radiating pain experienced in the right lower limb from time to time and Dr Maniam said that he would place restrictions on heavy lifting, repetitive bending and prolonged sitting. In the evidence tendered before Commissioner Grayson, Dr Maniam attributed the appellant's problems to bio mechanical instability which in turn was induced by an intervertebral disc injury. As the case for the appellant was put before the commissioner, it was contended that the disc injury was probably sustained at work. The commissioner expressed his reasons as follows: "The respondent's contention, if the court were to accept that the worker suffered with back problems prior to the last day in its employ, is that those problems were not of themselves incapacitating. That, in my humble opinion, is the worker's insuperable hurdle in his quest for an award of compensation. I can accept on the balance of probabilities and in the absence of direct evidence to the contrary that the worker in fact suffered symptoms in his low back as he said in the period March to June 1989 but it is clear that although those symptoms may have troubled him they did not incapacitate him for work. It is equally clear that there was a sudden and severe increase in symptomatology which followed spontaneously upon an incident at his home sometime after he had last worked for the respondent. Prior to that incident there was no economic incapacity. After it, there was. The applicant's medical case as counsel for the respondent rightly submits is less than persuasive in establishing the causal link necessary to discharge the onus. Having duly considered the facts and matters submitted I have chosen to accept the view expressed by Dr Spigelman.... Dr Spigelman says: "This man did injure his back and his history is quite classical. He obviously ruptured one of his degenerate discs and he can give us the time and date of it exactly. When he bent over something snapped and he injured himself. He did not injure himself at work. His history is quite clear on that. There was no aggravation at work. He may have had some discomfort at work and I think anybody with his bach would have discomfort.' This is the view which summarises the conclusion to which I am most attracted. I say that in deference to the worker whom I found to be a straightforward and so far as I can judge a genuine man of approximately fifty four years of age, the last thirty of which have been given over to heavy work with numerous employers. Iam sure he believes as he alleged that his predicament arose directly out of his employment with this respondent but as I said I am not convinced on the balance of probabilities that he has discharged the onus he bears in proving such a belief. There will be an award for the respondent." The notice of motion for review asserted three errors of law on the part of the commissioner. It was claimed that the commissioner failed properly to take into account the finding of the Medical Panel, that he failed properly to consider and determine the applicant's claim that his low back condition constituted a disease of gradual onset, and that he erred in applying the test regarding causation. When the application for review came on for hearing before Judge Burke the appellant was represented by new counsel. It appears that counsel frankly acknowledged to his Honour that if the evidence were confined to that relied upon before the com missioner the appellant could not succeed. However, it was 4 UNREPORTED JUDGMENTS announced that the appellant desired to call oral evidence from Dr Maniam to supplement the evidence he had given in his report which was in evidence before the commissioner. An application under Pt30 RS5 to adduce further evidence from Dr Maniam was made and opposed. No prior notice of the application hat been given, the additional evidence to be adduced from Dr Maniam was not in written form, and counsel for the respondent would undoubtedly have wanted an opportunity to seek further medical opinion in support of the respondent's case if such additional evidence were available. However, the matter never reached that stage. Judge Burke declined the application and, since counsel for the appellant had indicated that in the absence of further evidence from Dr Maniam the claim for review must fail, the application for review was dismissed. It is regrettable that the new evidence sought to be relied upon was not put in written form. It seems that what was indicated to Judge Burke was that Dr Maniam would give evidence directed at making out a case under the second of the two alternative heads referred to in the particulars accompanying the application for determination. Precisely what this evidence would be was not stated. However Judge Burke said that he accepted that Dr Maniam, if called, would "support the general presentation of a case on the disease processes" which his Honour had earlier mentioned. Those processes are explained in the lengthy passage from his Honour's judgment quoted below. Judge Burke did not deal with the matter specifically by reference to the provisions of Pt30 RS. His Honour was evidently of the view that there might be some doubt as to the validity of R5 and therefore decided the matter on a basis related to the nature of his discretionary power under s36. In my view R5 of Pt30 is a valid exercise of the rule making power contained in s36(2) of the Compensation Court Act. Whatever uncertainties might have attended the setting up of a statutory procedure for "review" there was obviously a question as to the evidentiary basis upon which such a review would proceed. In the cases dealing with the meaning of "review" it has never been suggested that what was contemplated by s36 was a procedure similar to that involved in so called appeals from magistrates to judges of the District Court, which proceed as hearings de novo. The need for some provisions concerning the evidence to form the basis of a review must have been obvious to the legislature, and I would interpret the power to make rules as to the manner in which an application for review may be made as comprehending a power to make rules as to the evidence upon which such a review must proceed, provided always that such rules are not inconsistent with the statutory concept of review. I see no such inconsistency between the provisions of s36 of the Compensation Court Act and those of Pt30 RS of the Compensation Court Rules. It might be added that if, as Judge Burke evidently thought to be the case, the exercise of discretion available under 636 produces much the same practical result as R5, then there is on that account every reason to support, rather than doubt, the validity of the rule. In making his application under R5 counsel did not suggest that there was any good reason why the further evidence of Dr Maniam had not been adduced before the commissioner. Even so, the opening words of the second paragraph of R5 preserved a discretion to receive new evidence. Judge Burke dealt with the matter upon the basis of the discretion conferred by s36, but his reasoning is such that it is proper to infer that he would have reached the same conclusion if he had addressed the matter in terms of RS. URJ LITYNSKI v ALBION STEEL PTY LTD (Gleeson Cu) 5 The ground of his Honour's decision was, in essence, that what the appellant was seeking to do was to make out a case substantially different from the case which was litigated before the commissioner. As his Honour saw the matter, it was not merely a question of supplementing some inadequate evidence that had been given before the commissioner. What was involved was an attempt to make out a new case. This, his Honour considered, should not be permitted. His Honour's reasons were as follows: "The Commissioner, of course, was relatively logical. If he accepted that the applicant was in the position he was during the period that he was doing that last 3 months at Port Kembla then since the applicant could continue in doing what he described as heavy and arduous work, the Commissioner has fairly clearly inferred, well, he was not unfit then. He did not have an incapacity then because he was able to perform work in the reasonably accessible labour market, it being substantially heavy work. If he was now in the same position, there seemed to be no reason why he could not continue to have performed the substantially heavy work. The alternative view, it was obviously in the background was, well, maybe he was not back in the same position at the time he finished up at Port Kembla. In that event, the home incident, of course, loomed reasonably large. The Commissioner patently regarded the incident at home as a discrete and separate event, in respect of which compensation was not alleged by the applicant to be payable, in respect of which no claim as such was made. Insofar as the applicant may have been physically worse off after that event, it is fairly clear that the Commissioner was of the view that that resulted from the home incident. Within the parameters of the case as litigated before the Commissioner, it seems to me that the Commissioner's reasoning is adequate, reasonably clear, concise, dealt with the issues presented and reached rational and reasonable conclusions. The interesting part was, the applicant's application. Patently in form, it raised the operation of the disease provisions of the act. Using that in a fairly wide generic sense. Reading through the transcript and the medical reports, it does not seem to me that that was the matter litigated before the Commissioner. Dr Spigelman for the respondent clearly regarded this home incident as a discrete and separate entity. Dr Berry was patently provided with a copy of the report of Dr Spigelman, and he equally seems to have adopted the view that this home incident was a separate and discrete entity. It seems it was open to the applicant to have presented a case before the Commissioner which alleged no more than the applicant had a back condition, it was the consequence of a disease process. The work was a contributing factor to the then condition of his back and the home incident was part and parcel of that disease process. And that whether or not it was a separate event in time, chronologically it was just part of that process. The applicant's back was to be looked at as a diseased back and that whether there were other factors contributing to that or not, the work was one such factor. Now, that case while raised on the application, does not appear to be the case presented before the Commissioner in any way, shape or form. The applicant seems to have alleged that he had a degenerative back. That the work that he did, particularly in that last 3 months at Port Kembla aggravated it. That there was then a separate and distinct superimposed home incident. That that resolved and that the ultimate state was identical with that resulting from the prior work aggravation. The Commissioner decided those issues. He certainly accepted that the applicant had symptoms over the last 3 months. He was certainly of the view that that did not indicate an incapacity. One can patently 6 UNREPORTED JUDGMENTS have symptoms without an incapacity. And he decided those issues as presented on the evidence and so far as I can gather from the oar table, as argued in submissions. ' His Honour went on to say that in the exercise of a discretion under s36 a matter to be taken into account was the ordinary preference for finality in litigation and the need to discourage litigants from treating the process of review as an opportunity to present a new case, different from that conducted at first instance. He said that, even assuming the correctness of the widest view as to the nature of the proceedings the subject of s36 (which he described as a view that what was involved was a hearing de novo), he would exercise his discretion in the present case in a manner adverse to the appellant. The decision of Judge Burke was a discretionary decision, and it follows that this appeal is to be considered in the light of the principles enunciated in such cases as House v The King (1936) 55 CLR 499. The reasons which Judge Burke gave for his decision were orthodox. If one accepts that he correctly understood the nature of the case the appellant, by his counsel, had sought to make out before Commissioner Grayson, and the different case which the appellant wanted the opportunity to make out before him, then he correctly identified an issue that arose for his determination, which was whether, in the exercise of his discretion, he should permit the appellant to use the procedure of review in such a manner. This is not an uncommon problem. A right of appeal, by whatever name described, is a statutory, not a common law, right. Whenever a statute permits a party who has failed at first instance to seek to argue the case again in another forum there are bound to be occasions when, for one reason or another, (perhaps because of different legal advice, or perhaps simply because the way in which the case was presented at first instance had been unsuccessful), there will be an attempt to make out a new case. In deciding whether what is involved is a new case, questions of fact and degree may arise. The latitude which a party will be given will depend in part upon the nature of the appellate process involved. It is well established, however, that, subject to any statutory limitation on the discretion, if the second forum has a discretion as to whether it will entertain the new argument, a matter material to the exercise of that discretion will ordinarily be the kind of consideration which was central to the reasoning of Judge Burke in the present case. In Coulton v Holcombe (1986)162 CLR 1 the High Court overruled a discretionary decision of this Court, made whilst dealing with an appeal by way of rehearing, to permit an appellant to raise a point that had not been taken at first instance. Deane J, who dissented, based his opinion upon an unwillingness to interfere with a discretionary decision which he believed had not been shown to involve any error of principle. The majority said, at 7: "To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise." There can be no doubt that it was proper for Judge Burke to take into account the Deed for finality of litigation, and the undesirability of allowing a party dissatisfied with the outcome of a case at first instance to set out to make a new URJ LITYNSKI v ALBION STEEL PTY LTD (Gleeson Cu) 7 and different case when given an opportunity for appeal or review. Nothing that has been said in the authorities on the meaning of "review" in s36 denies the applicability of those considerations. Indeed, it being accepted that the power of review is discretionary, it is not easy to think of a better example of a consideration that is at least potentially relevant to the exercise of the discretion. It was argued that, even though there is no explicit error to be found in Judge Burke's reasons, he must, at least by implication, have taken too narrow an approach to the concept of review under s36. In support of that argument it was pointed out that his Honour's decision in the present case was given before the decisions of the Court of Appeal referred to earlier in this judgment. The first thing to be said about that argument is that it is, on purely historical grounds, unlikely to be correct. As a reading of the judgments in Watson and Boston Clothing Co Pty Ltd show, before the Court of Appeal came to address this question the leading judgment on the subject had been written by Judge Burke himself, and he had taken a very wide view of s36. In Mansini v Director General of Education, a decision given on 30 January 1990, before his decision in the present case, Judge Burke had reviewed the history of the relevant legislation and had come to the conclusion that s36 provided for an unfettered reconsideration or re evaluation of the decision below and the material upon which that decision was based. His Honour said that what was involved was essentially a retrial of the issues with the court free to substitute its own views as to the facts and its own opinions as to the weight of evidence. Judge Burke was also the author of the decision at first instance that was under appeal in the case of Boston Clothing Co Pty Ltd. The appeal was dismissed upon the ground that there was no error of law shown. The central issue in the appeal was his Honour's view of the scope of the procedure provided by s36. Furthermore, as was noted above, in his judgment in the present case Judge Burke said that he was prepared to assume that s36 provided for the widest form of review. He did not mean, and nobody has ever suggested, that the procedure which s36 allows is the same as the procedure involved on an appeal from a magistrate to a District Court judge. That is a special procedure which has its origin in historical circumstances discussed in R v Longshaw (1990) 20 NSWLR 654. A person convicted before a justice of the peace had a right to have the case reheard by a Court of Quarter Sessions whose obligation was to deal with the whole matter afresh, subject to any procedural provisions laid down by statute. Here we are concerned with a discretionary power of review, and, accepting that the concept of review is wider and more flexible than at least most forms of appeal, the very existence of the power of a Compensation Court judge to decline review raises the possibility of the need to consider questions of the kind addressed by Judge Burke. As Deane J observed in Coulton v Holcombe (162 CLR at 12), when an issue such as this arises there is an obvious interrelationship between the exercise of a discretion to allow a new argument to be presented on appeal and the exercise of a discretion (assuming it to be available under the relevant statute) to permit new evidence to be adduced in support of the argument. Judge Burke seems to have had no doubt that, if he had been willing to allow the new argument to be put, then the logical corollary would have been that he would receive the proposed further evidence of Dr Maniam. He was right to treat the two questions as simply the opposite sides of the one coin. 8 UNREPORTED JUDGMENTS I see no error of principle in the approach taken by Judge Burke to the resolution of the question that arose before him. I am quite unpersuaded that the explanation of his decision is to be found in some narrow view taken by him of the concept of "review" in s36. So to conclude would be to ignore what he said in his judgment in the present case and the documented history of his approach to the same question in other cases. I accept that it would have been reasonably open to his Honour to have reached a different conclusion on the application of the relevant principles to the facts and circumstances of the particular case, but that is only to say that a different exercise of discretion would have been open. That does not constitute a sufficient ground for intervention by this Court. The appeal should be dismissed with costs. Kirby P The facts are set out in the reasons for judgment of Gleeson CJ. The appeal has taken an extremely long - and not fully explained - time to come to a hearing in this Court. The Commissioner's decision was given on 22 October 1990. Burke CCJ's judgment was given on 3 September 1991. Now, many years after the relevant events, the jurisdiction of this Court is invoked by way of an appeal against his Honour's decision. Initial doubt about scope of "review" of Compensation Commissioner's decisions At the time Burke CCJ gave his judgment the precise scope of the provision for "review" afforded by s36 of the Compensation Court Act 1984, (the Act) as amended, had not been settled by this Court. There was within the Compensation Court a controversy about its scope. In particular, there was doubt as to the extent to which, and circumstances in which, an applicant for "review" was entitled to call fresh evidence in support of an application for review. That question had, it is true, been considered by Burke CCJ himself in Mansini v Director General of Education (CC NSW), unreported, 30 January 1990). His Honour there favoured a wide view. However, it is fair to his Honour and all the parties now before this Court to remember that the exact scope and nature of the "review" in the Compensation Court was still then unclear. Certainly, Burke CCJ did not have the advantage (as I hope it can be described) of the opinions of this Court in Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190 (CA) and Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA). Fully to understand what happened to the review in this case, it is necessary to take our minds back to the state of uncertainty which existed when Burke CCJ performed the "review" as to exactly what that facility involved and what it permitted and required. In Watson and Margonis (and in other cases since) this Court has elaborated the meaning of the "review" provided against the background of the meaning of the term in common parlance, its apparent purpose in the context of the Act, its object as derived from the legislative history when "review" replaced the more limited appeal on a point of law, for which the Act had previously provided. Two additional and special features lent colour to the "review" envisaged in the present context. The first was that the Commissioners comprised lay decision makers who were not legally qualified or, more accurately, who were not obliged to have legal qualifications to be eligible for appointment. The Court was informed that, at the time of Commissioner Grayson's decision and to this time, the majority of Commission's are not in fact legally qualified. Accordingly, the "review" provided was one from a lay tribunal to a qualified judge. In this sense, the "review" comprised the first examination of the case by a professional and legally qualified judge. To that extent the "review" bears some similarities to the appeals, so called, formerly provided from Justices to Judges of Quarter Sessions. URJ LITYNSKI v ALBION STEEL PTY LTD (Kirby P) 9 The scope of the "review" would necessarily be defined, in part at least, by these features of the primary decision maker and of the reviewing judge. The second feature of importance is the highly specialised nature of the experience of the Judges of the Compensation Court. As I remarked in Australian Gas Light Co v Samuels, Court of Appeal, 4 November 1993 [1993] NSWJB 114 at 10: "The process of 'review' is a special procedure, established within a specialised tribunal, to recognise the particular skills which judges of that tribunal enjoy and refine by years of considering very large numbers of like claims, many of them in large part (as here) determined on paper without oral evidence." When the statutory entitlement to "review" is considered in its context for the purpose for which it was provided, it would be a mistake (as I have previously said in other cases) to hamstring the facility of "review" with the jurisprudence which has developed over the years to control the somewhat different facility of "appeal". This conclusion concerning the wide meaning and substantial purpose of the "review" in the Act is confirmed by consideration of the speech of the Minister who introduced the amending legislation on 1 August 1989 (Mr J Fahey). He said: "It is considered necessary to rationalise the current system by returning jurisdiction for all disputes to the Compensation Court." It involves no disrespect to the Commissioners, but rather great respect for the Judges of the Compensation Court, to accept that the "review" envisaged by the Act was to be more than a quick look at the case and at the way in which it had been presented before the Commissioner, to see if reconsideration was necessary. Taking that approach misconceives, in my opinion, the facility of "review" which Parliament has provided. Parliament provided that facility, in the place of the previous limited appellate facility, for very good reasons. It was to afford a thorough reconsideration of the Commissioner's decision by a specialised and judicial decision maker of high qualifications and long professional training. Compensation legislation is beneficial and protective of workers who allege that they were injured at work. The facility for a "review", whether at the behest of a worker, an employer or an insurer, should not be given a narrow construction. This Court has now repeatedly so held. The primary judge rejects the tender of evidence in the "review" With respect to Burke CCJ, I have concluded that his Honour did not approach the "review" in this case in a way consonant with the wider power conferred upon him by Parliament. It is not real criticism of his Honour to say this because, as I have shown, at the time of this decision, the scope of the process in which his Honour was involved was not at all clear. In approaching our function of considering this appeal from what Burke ca did, we should not make the mistake of applying to the "review" which his Honour was required by law to perform all of the rules which have developed to control the conduct of judges engaged in the various modes of reconsideration designed "appeals". To the extent that Burke CCJ approached his reviewing function in a way that sought to confine the appellants and those representing him to the manner in which he took the proceedings to have been conducted at first instance, he erred. The appellant was entitled to a "review". That meant a "review" of the merits of his claim for compensation. It was not limited to a "review" of the wy in which the Commissioner had conducted the claim. If Parliament had wished to confine the "review" to the narrow question of whether the decision of the Commissioner was open to him or her, it could have so provided. It could have 10 UNREPORTED JUDGMENTS provided for an appeal by way of rehearing. It could have provided for an appeal de novo. Instead it imposed on the Compensation Court the duly to consider the application for review. And it gave the Court large powers to confirm, vary or otherwise deal with the order the subject of review. Counsel for the appellant sought leave before Burke CCJ, in the review, to call a witness, namely Dr Maniam. This was not proved formally by reference to the transcript of proceedings before Burke CCJ. But it was not in dispute. Indeed, it is revealed in his Honour's judgment: "At the outset [of the application] the applicant sought to adduce further oral evidence. It was sought to call Dr Maniam. The applicant's initial proposition was an application pursuant to Pt30 R5 of the Rules, providing essentially that the matter not adduced before the Commissioner will be adduced on a review only by leave of the Court. And that the Court may refuse such leave if not satisfied there was good reason why the evidence was not adduced before the Commissioner. I have accepted the suggestions from the bar table that Dr Maniam had been qualified by the claimant prior to the hearing before the Commissioner. I accepted the proposition that Dr Maniam if called on the review, would be anticipated by the claimant to support the general presentation of a case on the disease processes as I have outlined before. It was suggested by the applicant that that leave should be granted because no prejudice would result to the respondent Certainly, if on the review, the applicant presented a different case and was successful thereby, it seemed to me the respondent would be prejudiced at least in costs. The applicant also suggested that leave should be granted because a purely tactical decision had been made because of the difficulties of having medical witnesses attend the Parramatta [hearing before the Commissioner]... In my view, the applicant had not made out any basis for the exercise of discretion within the Rules to grant leave to call Dr Maniam on the review." Error in "review": designed to review the decision not just procedure In rejecting the application on behalf of the appellant to call Dr Maniam, it is my view that Burke CCJ erred. There are a number of bases for so concluding: 1. The appellant was entitled, on the review, to offer (and have called) fresh evidence relevant to the proper performance of the "review" which Parliament provided. If there was any relevant unfairness to the respondent arising from the way the proceedings had been conducted before the Commissioner (eg the absence of notice of the content of the fresh evidence or of its general content) the proper way to deal with this was by adjournment, orders for costs or other orders to ensure that a proper "review" could be conducted which was fair both to the appellant and to the respondent. In a case as important to the appellant as this, and involving so much at stake for him (and his dependants), it seems scarcely fair just to lock out the evidence of Dr Maniam if it was relevant to a "review", simply because no notice of its content had been given to the respondent. The appellant himself would not have been guilty of these defaults. Particularly in the Compensation Court, it is a trifle rigid to visit such defaults on his head; 2. In determining the approach which he would adopt, Burke CCJ was obviously affected by what he took to have been the matter litigated before the Commissioner. This involved his Honour in adopting a too narrow view of what the statutory function of "review" requited of him in the circumstances. That function was not, as such, to "review" the Commissioner's reasons. Nor was it, as such, to "review" the procedures adopted. Still less was it to "review" the case from the point of view of the strict application to the hearing before the lay URJ LITYNSKI v ALBION STEEL PTY LTD (Kirby P) 11 Commissioner of the rules which have been found apt to control appeals from one judicial officer to another. Burke CCJ's duty was, in the terms of s36(11) of the Act, to "review" the decision of the Commissioner. The wide powers then afforded to his Honour ("make such order by way of confirmation, variation or discharge or otherwise as the Court thinks fit") gives the clue to the large scope of the "review" envisaged and its essential purpose. That purpose is to ensure, from the viewpoint of the expert judicial tribunal, that no significant wrong has been done to either party in the proceedings before the Commissioner. I acknowledge that the "review" provided by the Act contemplates the "review" of a formal decision of a statutory office holder, who is a member of the Compensation Court. That office holder clearly has important powers to determine rights as between parties. Most such determinations will be final as Parliament clearly intended. I also accept that the applicant for review must demonstrate a good reason to overturn the primary decision which is challenged. See Australian Gas Light Co v Samuels, Court of Appeal, 4 November 1993; [1993] NSWJB 114. But where, as here, the contention is that one of the two bases upon which the worker originally brought his case has never been decided and an attempt has been made to fill that gap with apparently relevant credible evidence, it is impossible (at least without hearing such evidence) to perform the function of "review" as Parliament envisaged it; 3. Even within Burke CCJ'S own approach to the "review" facility, which was too narrow, his Honour erred. He took into account an incorrect consideration which plainly weighed heavily with him. He considered that the appellant had not, at the hearing before the Commissioner, raised the "alternative case". This was that the trauma at work over a long period had caused a disease process to be set in train which was the underlying basis of the appellant's incapacity for work. If the appellant could show this, he would be entitled to recover compensation, so long as the effect of the work aggravation - acceleration of the disease process - was still operative. That the appellant did rely before the Commissioner upon a case framed in terms of the aggravation of a disease is made plain by the particulars provided with his Application for Determination. They were as follows (the second part being relevant): "'Throughout his employment with the Respondent the Applicant performed work involving bending and lifting and flexing of the spine the general nature and conditions of which work caused and/or aggravated the conditions particularised below. Throughout his employment over a period of many years the Applicant performed duties of such a nature as to cause and/or aggravate and/or accelerate and/or materially contribute to the development of a condition of degeneration and strain in the Applicant's low back and the Respondent was the last employer for whom the Applicant worked performing duties of such a nature as to give rise to this disease process. " To the extent that issues for trial were presented to the Commissioner, it is clear enough that the appellant was presenting his case in the alternative: frank injury to the back and initiation of a disease process which was continuing. It is not to the point to say that the fundamental difficulty of the worker was a constitutional condition of his back. Clearly, he had a vulnerability or susceptibility to back disability. The question for the Commissioner, as for Burke CCJ on the review, was whether, by one or other or both of the alternative ways in which the case was presented by the application for determination, the appellant had made out an entitlement to compensation. All the appellant knew was, as he told his foreman, "My back is killing me". The aetiology and measure 12 UNREPORTED JUDGMENTS of his incapacity for work (for which he claimed compensation) was a matter for expert evidence - including the expert evidence of Dr Maniam which he tendered on the "review". The Commissioner thought that the sudden and severe increase in symptoms following a minor incident at home excluded an entitlement to compensation. This might have been a proper conclusion on the first (frank injury) basis upon which the worker presented his claim. But it failed to answer the second (disease process) basis which the worker had pleaded. It is no answer to this apparent oversight of this second basis on the part of the Commissioner to say that the alternative case was not pressed, or not pressed vigorously, at the primary hearing. It was undoubtedly tendered upon the review. Burke CCJ was duty bound to hear it and to decide it on its merits. His Honour's fundamental error was in failing to "review" the decision of the Commissioner. Instead, he concentrated the focus of his "review" upon the procedures followed and the way the primary hearing was conducted. In doing so he misconceived the statutory purpose and requirements of "review"; 4. Burke CCJ left undecided the validity of R5 of the Compensation Court Rules. The rule is set out in the reasons of Gleeson CJ. It purports to impose a requitement of leave of the Compensation Court before evidence is allowed in the review which has not been adduced before the Commissioner. (Pt30 RS5 of the Compensation Court Rules). It purports to give the Court a discretion "if it thinks fit" to refuse to grant leave to adduce fresh evidence unless satisfied that there was "good reason" why the evidence was not adduced below. This rule is made pursuant to s43 of the Act. S36(2) of the Act contemplates that Rules of Court relevant to the "review" would be made. However, it is important to notice the terms of the subsection: "36(2) Any such application for a review must be made within the time and in the manner prescribed by Rules of Court. " "Time and manner" are not, in my view, apt to authorise the exclusion of evidence which would otherwise be permissible in a "review" such as Parliament has contemplated it by s36(1) of the Act. Clearly "time" contemplates no more than a machinery requirement. The reference to "manner" must take colour from the reference to "time". Plainly, all that Parliament contemplated was that the tules should lay down the way in which, and the time by which, an application for review must be made. Pt30 R5 of the Compensation Court Rules cannot therefore be sustained by s36(2) of the Act. Nor could the general power to make Rules of Court sustain a purported Rule of the Compensation Court which had the effect of diminishing or limiting the right to a "review" which Parliament has provided by s36(1) of the Act. With respect to those of a different view, I share Burke CCJ's expressed doubts concerning the validity of the rule. His Honour expressed "a vague suspicion" that the rule was ultra vires. In my respectful opinion he was right. He should have so held. Because of his "suspicion" Burke CCJ purported to deal with the matter under the bro d discretion in s36(1) of the Act itself. But that discretion did not extend so far as to authorise (as the Rule purported to do) the exclusion of evidence tendered before his Honour, so long as it was relevant to the performance of the "review". Burke CCJ was willing to accept that the proposed evidence of Dr Maniam was relevant. In such circumstances, save for the invalid rule which his Honour bypassed, he was bound to receive the relevant evidence of Dr Maniam which he rejected unheard and unseen. In acting in this way Burke CCJ denied the appellant the facility of "review" provided by Parliament. This Court should so hold; and URJ LITYNSKI v ALBION STEEL PTY LTD (Handley JA) 13 5. It could not be said that it would be futile to send this matter back for "review" so that relief should be withheld on that ground. After all, the Commissioner had judged the worker to be "a genuine man of approximately 54 years of age, the last 30 of which have been given over to heavy work of numerous employers". The Commissioner was fully willing to accept that the worker believed that his "predicament arose directly out of his employment". He considered that the relatively minor incident at home excluded such a claim. But as I have demonstrated, this was not necessarily so on the second basis of the claim which the appellant initially pleaded and which has never to this day been authoritatively determined. The "review" should have provided the appellant with the facility for securing such determination - one way or the other. In the way it proceeded, it did not. The appellant should have that facility now, for it is given to him by Parliament. It cannot be taken away by Rules of Court or by narrow application to the beneficial "review" provided by the Act by resort to a body of jurisprudence developed in the quite different context of appeals from professional judges. Conclusion and orders For the foregoing reasons, I favour the following orders: 1. Appeal allowed; 2. Set aside the order of his Honour Judge Burke dismissing the appellant's notice of motion seeking a review of the order of Commissioner Grayson dismissing his claim for compensation; 3. In lieu thereof, order that the proceedings be returned to the Compensation Court for the hearing of the appellant's notice of motion for a "review" in accordance with s36(1) of the Compensation Court Act 1984; 4. Order that the respondent pay the appellant's costs of the appeal but have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951; and 5. Order that the costs of the motion before Judge Burke be costs in the proceedings so returned to the Compensation Court. Handley JA I agree with Gleeson CJ. Appeal dismissed with costs. Counsel for the Appellant: RI Harrington Instructed by: Carroll and O'Dea Counsel for the Respondent: GW Neilson Instructed by: Hickson Lakeman and Holcombe