COCKATOO DOCKYARD PTY LTD v ATAMIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 11 May 1995, 11 August 1995 [1995] NSWCA 80 WORKERS COMPENSATION — REVIEW BY JUDGE OF DECISION OF COMMISSIONER- REVIEW FINDING OF CREDIBILITY — JURISDICTION — REHEARING OF EVIDENCE FACTS: A worker employed by the appellant as a fitter alleged that he had suffered injury in the course of his employment on 3 November 1988, when he dropped a Stillson wrench on his left foot. At the hearing before Commissioner Ashford the principal issue was whether the worker had suffered the injury. The appellant denied injury, the existence of any incapacity in the worker, and any causal connection between injury and incapacity, if either existed. The appellant sought to rely on evidence to demonstrate that the respondent was an unreliable witness. Commissioner Ashford made an award in favour of the worker. The respondent worker's evidence contained many inconsistencies, of which several were identified by Burke CCJ on appeal by way of review under s36(1) of the Compensation Court Act. Burke CCJ did not disturb the Commissioner's award, stating that he was constrained to accept the Commissioner's finding that the worker was a credible witness, and that he was therefore implicitly constrained to accept the Commissioner's finding that the worker was injured as alleged. The appellant filed an Amended Notice of Appeal setting out their grounds of dissatisfaction with the decision of Burke CCJ. HELD: (1) (By Meagher JA) The principles which govern the review of a decision of a Workers Compensation Commissioner under s36(1) of the Compensation Court Act 1984 are: (i) on a review, all questions of fact and law are capable of being reagitated if the Judge conducting the review wishes; (ii) the Compensation Court's powers in this regard are discretionary; (iii) if a Commissioner makes a finding of fact based on the credibility of a witness, the principles of Abalos v Australian Postal Commission (1990) 171 CLR 167 apply, so that a Judge sitting on a review of the case cannot, except in the most unusual circumstance, reverse such a finding if the review is conducted on a written transcript of the evidence; and (iv) a Judge on review can, nevertheless, rehear the case and make an independent finding of his own. State Rail Authority v Davies (unreported, NSW Court of Appeal, 10 May 1995) applied. Abalos v Australian Postal Commission (1990) 171 CLR 167, Australian Gaslight Co v Samuels (unreported, NSW Court of Appeal, 4 November 1993), referred to. (2) (By Clarke JA, Handley JA agreeing) If the dissatisfied party wishes to have findings on credit reviewed, the Judge will determine whether the grounds on which that review is sought are sufficient to exercise the Court's discretion in favour of allowing the evidence to be given. Where, however, no fresh evidence is led and the review of a Commissioner's decision is conducted on the record, the review is subject to the same limitations as are imposed on a court of appeal by decisions of the nature of Devries v Australian National Railways (1993) 177 CLR 472. Abalos v Australian Postal Commission (1990) 171 CLR 167, cited. (3) (By Clarke JA, Handley JA agreeing) Subject only to the question of credibility, the Judge hearing a review is in no way bound or restricted by the decision of the 2 UNREPORTED JUDGMENTS Commissioner although, as a matter of practice, it is not to be expected that, in the absence of good reason, the Judge would set the finding of a Commissioner aside. (4) (By Clarke JA, Handley JA agreeing) The Compensation Court is constituted by Judges and Commissioners who are for review purposes, regarded as officers of the Court who may exercise the functions of the Court to which the Act refers. Once a review of a Commissioner's order has been carried out, the order which stands is the order of the Court as made by the Judge, not the Commissioner. However, the aggrieved party will need to demonstrate some proper basis for disturbing the decision under challenge before the court will disturb the order made by a Commissioner. Kotsis v Kotsis (1970) 122 CLR 69, The Queen v Davison (1954) 90 CLR 353, The Commonwealth of Australia vy The Hospitals Contribution Fund of Australia and Ors (1982) 150 CLR 49, Harris v Caladine (1990-1991) 172 CLR 84, Tidswell v Tidswell (No 2) 1958 VR 601, City of Saskatoon v Loewen and Wiebe [1989] 2 WWR 577, cited. Watson v Hanimex Colour Services Pty Ltd 8 NSWCCR 190, considered. (5) (By Clarke JA, Handley JA dissenting) Pt30 R3(2) of the Compensation Court Rules, which provides that an application for review of a decision of a Commissioner "may be made orally to the Commissioner immediately after he gives the decision", is discordant with other rules which have been passed to deal with aspects of the review process. It does not conform with the principle that the review process is under the control, and within the discretion, of a Judge. However, the Commissioner is empowered to decide only that a review shall or shall not take place. (6) (By Handley JA) Pt30 R3(2) of the Compensation Court Rules does not authorise a Commissioner to grant or refuse a review of his or her own decision. The sole function of the Commissioner is to note the application and refer it to the Registrar for listing before a Judge. (7) (By Meagher JA, Clarke and Handley JJA agreeing) Bourke CCJ was in error in suggesting that he was prevented from rehearing the case by the fact that the Commissioner had made a credibility-based finding. (8) (By Clarke JA) His Honour the trial judge was correct to decline the appellant's invitation to reverse the commissioner's findings on credibility. (9) (By Meagher JA, Handley JA agreeing, Clarke JA dissenting) The worker's evidence as presented to the Commissioner was wholly unsatisfactory. (10) (By Meagher JA, Clarke and Handley JJA dissenting) There being no request by the employer appellant's legal representatives, at any stage in proceedings, to have a rehearing of the evidence, these representatives thereby abandoned their only justifiable ground of complaint and repudiated the only remedy which was appropriate. (11) (By Handley JA, Clarke JA agreeing) The appeal should not be dismissed on the narrow basis that the notice of motion did not include grounds alleging error in fact finding. The form of the notice of motion, and the inclusion of an ambit ground (Ground (e)) clearly indicated that the applicant wished to challenge the Commissioner's findings of fact. It follows from s17 of the Compensation Court Act 1984 that there was no need for the appellants to formally amend the notice of motion. Leotta v PTC (1976) 50 ALJR 666, Balmain New Ferry Co v Robertson (1906) 4 CLR 179 referred to. (12) (By Handley JA, dissenting) The Judge was entitled to reverse the Commissioner's findings. In accepting one version of the worker's evidence of injury the Commissioner acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, and she also acted upon evidence which was glaringly improbable. Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 cited. (13) (By Clarke JA) Although the appeal should not be dismissed on the technical ground that the notice of motion was inappropriately worded, the Commissioner's finding was not glaringly improbable or inconsistent with incontrovertibly established facts; and even if this were the case, the URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Clarke JA) 3 Commissioner's judgment could only be set aside if the evidence of the happening of the injury itself was shown to fall within the test of Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472, which was not the case here. ORDERS (1) Appeal dismissed with costs. CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Gaslight Co v Samuels (unreported, NSW Court of Appeal, 4 November 1993) Boston Clothing Co Pty Ltd v Margaronis [1992] 27 NSWLR 580 City of Saskatoon v Loewen and Wiebe [1989] 2 WWR 577 Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 Evans v Bartlam [1937] AC 473 Harris v Caladine (1990-1991) 172 CLR 84 Jones v Hyde (1989) 63 ALJR 349 Kotsis v Kotsis (1970) 122 CLR 69 Mansini v The Director General of Education (CCNSW 30 June 1990, Judge Burke, unreported) State Rail Authority v Davies (unreported, NSW Court of Appeal, 10 May 1995) The Commonwealth of Australia v The Hospitals Contribution Fund of Australia and Ors (1982) 150 CLR 49 The Queen v Davison (1954) 90 CLR 353 Tidswell v Tidswell (No 2) 1958 VR 601 Watson v Hanimex Colour Services Pty Ltd 8 NSWCCR 190 Leotta v PTC (1976) 50 ALJR 666 Balmain New Ferry Co v Robertson (1906) 4 CLR 179 Clarke JA This is yet another appeal from a decision of a judge of the Compensation Court who had been asked to review a decision of a commissioner pursuant to the power in s36(1) of the Compensation Court Act 1984 ("the Act"). In his judgment, Burke CCJ made some observations on the exercise of the power of review, in the light of a number of decisions of this Court, in terms which indicated a degree of concern as to the manner in which a review should be carried out. His Honour is not the only judge of the Compensation Court who is apparently concerned about the conduct of a review for on the day before the Court heard this case it heard and decided State Rail Authority of New South Wales v Davies (Court of Appeal, 10 May 1995, unreported), a decision from Bishop CCJ, also on review from a Commissioner. Bishop CCJ made observations about his powers which reflected a different appreciation of the decisions of this Court than those expressed by Burke CCJ. In particular he considered himself fettered, erroneously as this Court held, by the decision under review. In the light of those observations, and the statements by counsel that there was a division of opinion in the Compensation Court as to how the power to review should be exercised, I made a number of observations in an ex tempore judgment on that subject. When the same matter arose for consideration in the present appeal the Court reserved its decision primarily in order for it to give further thought to the problem which has apparently vexed judges of the Compensation Court. S36 of the Act reads as follows: "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 4 UNREPORTED JUDGMENTS discharge or otherwise as the Court thinks fit. (2) Any such application for review must be made within the time and in the manner prescribed by rules of Court." There are also rules under the Compensation Court Act which deal with an application for review. Those which are presently relevant are: "Pt30 - COMMISSIONERS (3) (1) In this rule, "review" means review under s36 of the Act. (2) An application for review of a decision of a commissioner may be made orally to the commissioner immediately after he gives the decision. (3) Subject to subR(2), an application for review of a decision of a commissioner shall be made by notice of motion under Pt14. (Pt14 R2 requires that the notice should state the grounds on which the order is sought.) (4) An application for review of a decision of a commissioner shall be made within 28 days after the decision is given." "(4) (1) Where a decision of a commissioner is the subject of an application for review under s36 of the Act, the commissioner shall prepare and furnish to the Court a report as to all findings of fact made, and inferences drawn, by him leading to the decision, and any other matter which in his opinion is likely to be of assistance to the Court in determining the review." "(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." (6) An application to the Court for directions in respect of a review under s36 of the Act of a decision of a commissioner, or a reference by a commissioner under s37 of the Act, may be made by any party at any time after the application for the review, or the reference, is made." This Court first examined the exercise of the power to review a decision of a commissioner in Watson v Hanimex Colour Services Pty Ltd, 8 NSWCCR 190. In that case Kirby P said (at 205): "... Given the juxtaposition with 'appeal' I would certainly agree to the appellant's proposition that something wider than the narrow form of reconsideration on an appeal, strictly so called, is contemplated. The fact that there is a decision of the Commissioner which is being 'reviewed' postulated that the Judge of the Compensation Court will not start with a blank page but with a formal decision of a person who, in making it, is 'taken to be the Court'. Thus, unless the 'review' persuades the Judge that the order being reviewed should be varied, discharged or otherwise disturbed, the order under 'review' will stand and be binding between the parties. This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders. I would also agree that the 'review' is not confined to the narrow kind of 'appeal' allowed from discretionary decisions where some error of principle must be shown. Nor do I believe that the intention of Parliament in providing for a 'review' was to make it harder for a party challenging a decision to secure effective reconsideration by a Judge than would have been the case if an 'appeal' had been retained as previously provided. There are various reasons for so concluding. They include the two-tiered structure of the Compensation Court; the kinds of matters normally to be assigned to Commissioners; the provision (in the URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Clarke JA) 5 future) for a general appeal including on facts from awards of the Judges; the importance of the decisions that may be made by Commissioners affecting the welfare of workers and imposing significant obligations on employers; and the fact that (prerogative process apart) no other means of reconsideration is available to a disaffected party than the 'review' provided by s36." The President returned to reconsider the correctness of that passage in Boston Clothing Co Pty Ltd v Margaronis [1992] 27 NSWLR 580, at 587, and in a judgment (with which Waddell and Hope AJJA agreed) endorsed what he had earlier said. In the same case, however, he went on to deal with an argument that the court in exercising a review under s36 of the Act was required to give effect to a commissioner's views on the credibility of a witness except in the limited circumstances discussed in Abalos v Australian Postal Commission (1990) 171 CLR 167, Jones v Hyde (1989) 63 ALJR 349 and Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472. In considering this argument the President expressed the opinion that a narrower approach to the so-called 'dominant' position of the primary decision maker must be adopted and one compatible with the facility of review. However, in the later decision of this Court in Australian Gas Light Co v Samuels (NSW Court of Appeal, 4 November 1993, unreported), a majority of the court (Meagher and Handley JJA) concluded that where a review was conducted on the written record the judge could only overturn a finding of credit where the judge could properly hold that the Commissioner had failed to use, or had palpably misused, the advantage he had of seeing the worker give evidence. It was the judgment in Australian Gas Light which concerned Judge Burke in this case. It will have been observed that although the learned President said that a 'review' was wider than an 'appeal' and that there was a need for an applicant to provide a proper basis for disturbing the decision under challenge he did not discuss the principles to be applied in depth. Because of the apparent division of opinion in the Compensation Court as to the manner in which a 'review' should be undertaken and the rules by which it should be carried out I think it is timely to go beyond the guidelines that I laid down in Davies and seek to explain the nature of a review. In doing so I propose to supplement the discussion of the history of the successive legislative steps concerning appeals or reviews from commissioners set out by Judge Burke in his judgment in Mansini v The Director General of Education (CCNSW 30 June 1990, Judge Burke, unreported) and reproduced by the President in his judgment in Watson. In the Act (as it was enacted in 1984) provision was made for the appointment of commissioners. Pursuant to s12(2) it was necessary for a commissioner to be a legal practitioner of not less than five years standing. Judges were empowered, pursuant to s16, to refer any matter to a commissioner specified in the terms of reference. There was also a provision, under s14, for the appointment of a registrar, assistant registrars and other officers of the Court. Pt3 of the Act dealt with the jurisdiction of the Court and in s26 it was provided that a commissioner may exercise the functions of the Court specified in schedule 3. Under these statutory provisions a commissioner was granted wide powers. S27 read as follows: "1. Proceedings in any matter before a Commissioner shall be conducted with as little formality and technicality as the proper consideration of the matter permits. 6 UNREPORTED JUDGMENTS 2. In proceedings in any matter before a commissioner, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the commissioner permits. S29 designated the powers of the Registrar and in Pt4 appeals were dealt with. The relevant sections of that part were sections 32 (appeals from judges), 35 (appeals from commissioners) and 36 (review of a registrar's decision). The following observations should be made about those provisions: (1) Presumably because of s27, there was no appeal from a commissioner in relation to the admission or rejection of any evidence; (2) An appeal from a final order of a commissioner lay direct to the Supreme Court; (3) Appeals from interlocutory decisions by a commissioner lay to the Compensation Court which was empowered to make any order which ought to have been made in the first instance; and (4) The review procedure applied only in the case of decisions by a registrar. In 1985 the Act was amended and s35 was omitted. There were no amendments, however, to s32 or s36. At the same time amendments were made to the Workers' Compensation Act 1926 including the inclusion of s42Q which provided "42Q.(1) If a party to any proceedings before a commissioner is aggrieved by an award of the commissioner in point of law, that party may appeal to the Court. (That is, the Compensation Court.) (2) If, in any proceedings before a commissioner, the commissioner has misused a statutory discretion, any party to those proceedings may appeal to the Court; (3)... (4) There shall be no re-hearing or new hearing of proceedings the subject of appeal under this section. (5) An appeal shall not be made under subs(2) without the leave of the Court." The Court became the relevant appellate tribunal and it was empowered to remit the matter to the commissioner for determination in accordance with the decision of the Court or to make such other order as the Court saw fit. In 1987 a new Workers Compensation Act was passed which included s110 which was in substantially the same form as the previous s42Q. In addition s107 vested exclusive jurisdiction to determine all matters arising under the Act to commissioners, who were no longer required to be legal practitioners (Workers Compensation Act - s240) with appeals from commissioners to be heard by the Compensation Court in accordance with s110. These were limited to appeals on a question of law except where leave was granted under s110(4). In 1989 the position was once more altered dramatically. The commissioners were incorporated into the Court and the reconstituted court was again vested with exclusive jurisdiction to hear and determine matters arising under the Workers Compensation Act 1987 (s107). S32 of the Act was amended to provide for an appeal from a decision of the court, in some instances by leave only, on law and fact. S110 of the Workers Compensation Act 1987 was repealed. The most notable amendment for present purposes was the amending of s36 by inserting the words "Commissioner or" before the word "Registrar". These amendments meant that no longer did appeals lie from the decision of a URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Clarke JA) 7 commissioner. Rather commissioners were placed in the same position as registrars - that is, their decisions were subject to review by the court. The point of tracing this rather tortuous history is to demonstrate that commissioners enjoyed riding a legislative roller coaster between 1984 and 1989 and at the end of the ride were equated, for appeal or review purposes, with registrars who are unarguably officers of the Court. (Given that there is no requirement that commissioners be qualified lawyers this is not surprising.) That consequence follows from the legislative decision expressly to abolish appeals from commissioners and to provide that any challenge to a decision of a registrar shall be by way of review. Whereas the rights of an appeal from the Compensation Court constituted by a judge were widened in the manner I have mentioned the legislature determined that rather than widen appeals from commissioners it should provide a different mechanism in the form of a review. The history of s36 also makes it tolerably clear that the notion of a review is concerned with the supervision by the judges of the Court of the decisions of its officers. By its amendment commissioners were aligned for this purpose with registrars who are, undeniably, officers of the Court (Division 4 of the Act). The principle that the judges, who, as a general rule, constitute the Court, may delegate certain functions to officers of the Court is well established, as is the principle that decisions by those officers are subject to supervision and review by the judges of the Court. As Gibbs J said (in a dissenting judgment) in Kotsis v Kotsis (1970) 122 CLR 69, at 101: "As a general rule a court consists of the judges who constitute it, and officers of the court are not part of the court in the strict sense." His Honour cited as authority the following passage from the judgment of Dixon CJ and McTiernan J in The Queen v Davison (1954) 90 CLR 353, at 365: "A court is composed of the judges which form it, but courts are provided with officers and, under a unitary system of government, it is not uncommon to find that certain duties falling upon a court are executed, subject to judicial confirmation or review by an officer of the court such as a master." Kotsis was overruled by the High Court in The Commonwealth of Australia v The Hospitals Contribution Fund of Australia and Ors (1982) 150 CLR 49 and the view of Gibbs J articulated in Kotsis prevailed. In the Hospitals Contribution Fund case Mason J referred, at 64, to the delegation of powers otherwise exercised by judges "provided that the exercise is subject to review or appeal". More recently in Harris v Caladine, (1990-1991) 172 CLR 84, a case dealing with the validity of rules of the Family Court delegating to registrars certain powers, Dawson J said (at 125), in the context of a provision which enabled a review of a registrar's decision by way of a hearing de novo: "\... that even if there had been no such provision the result would, in the absence of any provision to the contrary, have been much the same. For where the function of exercising a discretion is delegated by a court, as it may be delegated to a registrar, the exercise of the delegated discretion cannot confine the exercise of the same discretion by the person in whom it is primarily reposed... upon a hearing by way of review of the decision of a registrar the court is exercising its own discretion. There are not the same restrictions which exist when there is an appeal from a judge to whom a discretion is confided, rather than delegated, at first instance." 8 UNREPORTED JUDGMENTS His Honour then cited a passage from the judgment of Herring CJ in Tidswell v Tidswell (No 2), 1958 VR 601, at 605, where his Honour was considering the nature of the review of a master's discretion in dealing with a matter delegated to him. The Chief Justice said: "What was delegated by the Rules to the Master was authority to hear and determine all applications and exercise any of the powers conferred on the Court or a judge under the various rules stated. And so it is that where the Master has to exercise a discretion under this delegation, he is exercising a discretion that in the first place was conferred upon the Court or a judge... [T]he orders made by a Master under the delegation are orders which are efficacious to bind the parties to the proceedings in which they are made, without any confirmation by a judge. And so it is proper to describe them as appealable, and it is as such that an appeal is given to the judge in chambers. The question is what is the nature of that appeal and how far the incidents of an appeal from a primary judge to a court of appeal apply to it. It has to be borne in mind in this connection that the position of the Master in hearing applications is very different from that of a primary judge, who exercises a power entrusted to the discretion of the Court or a judge. The Master is given jurisdiction to exercise that power by the rules referred to, but when his order is appealed against, the appeal is heard by the judge to whose discretion the power was originally entrusted. And what more reasonable than that when this occurs, the judge should be free to exercise that discretion for himself? To treat him as unable to go behind the exercise of discretion by the Master except when it is shown that the Master has acted upon a wrong principle for example, would deprive litigants of the benefit of having that discretion exercised by the judge, to whom it was originally entrusted, a benefit which it seems reasonable to suppose it was intended they should have." Dawson J went on to say: "The provision in the rules that the review of a Registrar's decision is by way of a hearing de novo serves to emphasise that he is subject to the supervision and control of the court and that he exercises his powers as a delegate and no pursuant to any independent authority." While commissioners are dealt with in a different division (Division 3) of the Act which is separate and distinct from that which deals with the appointment of officers it is, in my opinion, beyond doubt that, for the purposes of review, the Act treats them as officers of the Court. In the present case the review is not expressed to be by hearing de novo and the Chief Judge is responsible for allocating those matters specified in Schedule 3 of the Act which he considers appropriate to the commissioners. In these circumstances it is, I think, clear that the court is constituted by the judges and it is the Chief Judge who is responsible for assigning particular functions to either a judge, commissioner or registrar subject only to the proviso that the latter two are authorised under the Act to exercise functions which are more limited than those to be exercised by judges (see s22). The fact that a commissioner may exercise the functions of the Court in respect of any matter allocated to him or her under s22, and that in the exercise of any function conferred upon him or her the commissioner is taken to be the Court, does not derogate from the proposition that the Court is constituted by the judges and that commissioners are, for review purposes, regarded as officers of the Court who may exercise the functions of the Court in the respects to which the Act refers. Likewise a registrar who may exercise functions conferred by the regulations or the rules of court is deemed in carrying out those functions to be the Court. Clearly the Registrar is an officer of the Court and it is, in my opinion, URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Clarke JA) 9 undeniable that the legislature, in amending s36 of the Act, evinced a clear intention that commissioners should relevantly be aligned with registrars, as officers of the court, and the decisions of both should be subject to the supervisory review of the Court itself, that is, of a judge of the Court. In that context I would understand the word "review" to involve an examination or reconsideration of the decision made by the court officer followed by a consequential order of the Court. If the judge who hears the review considers that the decision is correct then no doubt the order will be one of confirmation. If, on the other hand, the decision is fundamentally flawed or is marred by one or more errors the judge would, according to the circumstances of the case, either vary or discharge the order made and make an appropriate order in place thereof. The section does not, however, call for a hearing de novo and therefore there is no requirement for the judge to start afresh and re-hear the case completely. This is understandable for the legislature was concerned that it should be left to the supervisors, that is, the judges, to determine in what manner the review should be carried out. The alternative would have been to foist onto judges the obligation to hear de novo any matter in which a review application was filed. Such an obligation would be time consuming and costly and, in many cases, uncalled for. On the other hand the judge may, if he or she thinks such is appropriate in the circumstances, decide to re-hear the case completely. The manner of conducting the review and the determination whether the order should stand confirmed or be varied or discharged lies within the discretion of the judge who constitutes the Court. If the judge confirms the order below then his or her decision stands in place of the decision of the Commissioner, notwithstanding that the Commissioner's decision has been confirmed. This has obvious consequences if one party seeks to appeal from the decision of the court for the appeal, whether of fact or of law, will be taken from the judge's decision even if the judge may merely have confirmed the Commissioner's original order. In the event, for instance, that a commissioner makes an error of law and, notwithstanding, a judge confirms his or her decision the appeal will be taken to this Court from the erroneous legal decision of the judge, not the commissioner. The point of this discussion is that, subject to the rules, the judge hearing the review will determine in what way it should proceed, and what the ultimate decision of the Court should be. Once the judge makes a decision, either confirming the Commissioner's order or otherwise, then that decision becomes the decision of the Court and replaces the decision of the Commissioner. To that extent, I am, with respect, unable to agree entirely with Kirby P's statement in Watson, that the order under review will stand and be binding between the parties unless varied or otherwise disturbed. In my opinion once a review has been carried out the order which stands is the order of the court as made by the judge. Where a commissioner's decision is upheld that decision is, from the moment of confirmation, the decision of the court constituted by the judge. That this is so becomes clear once it is appreciated that an appeal to this Court lies only from the decision of a judge. On the other hand, I think Kirby P is correct to say that the aggrieved party will need to demonstrate, prima facie at least, "some proper basis for disturbing the decision under challenge" before the court will disturb the order made by a commissioner. The concept was well put, in my opinion, by Cameron JA in City of Saskatoon v Loewen and Wiebe, [1989] 2 WWR 577, at 587. His Lordship said: 10 UNREPORTED JUDGMENTS "'Review' is occasionally taken in popular use as meaning little more than a first instance 'looking over' or 'examination'. In its legal sense, of course, it usually means more than that, as implying a formal, second instance 're-examination' or 'reconsideration', with a view to revision or redetermination if something be found wrong or lacking." There is, however, no fetter imposed by the legislature as to the manner in which the review is to be carried out. It is left to the judges themselves to decide how the power of review is to be exercised. They may do so by rules or by judicial decision. Rules have been passed to deal with some aspects of the review process and, with one exception, they conform with the principle that the review process is under the control, and within the discretions of a judge. The discordant rule is R3(2) for that implicitly empowers a commissioner to order a review. On the other hand the commissioner is empowered to decide only that a review shall or shall not take place. If the commissioner allows an application for review the judge who is to carry out that review will, no doubt, give directions as to the procedure to be followed (R6). Subject to subR3(2) any application for review must state the grounds on which it is made and the nature of those grounds, and their prima facie strength or weakness, will be material factors for the judge to consider in determining how the review should proceed. Further the rules provide an indication that the decision of the commissioner may be made in a relatively informal manner and that where a review is sought the commissioner is obliged to prepare a report containing the matters set out in Pt30 R4(1) and the Court may, if it thinks fit, request a further report. The power to allow the admission of fresh evidence in a review is entirely within the discretion of the Court under R5 although, no doubt, a judge would not be disposed to allow an application to lead such evidence unless in the circumstances of the case it seemed to him or to her to be the proper course to follow. R6 is in my view an important rule for it reinforces my opinion that a review will, in some instances, be a two stage process. The first stage being the giving of directions by the Court for the procedure to be followed in the carrying out of the review. For reasons which I have given that procedure will be dictated almost certainly by the nature of the complaints made by the dissatisfied party. The second stage will be the actual hearing of the review. While there are two stages it may be expected that in many instances the judge will indicate how the review should proceed and will immediately embark upon that review. Where, however, a party wishes to lead evidence, either in addition to or in substitution of the evidence led before the commissioner, it may be necessary for the judge after hearing an application in that regard to give appropriate directions and for the second stage to proceed at a later date. Clearly enough if the dissatisfied party wishes to have findings on credit reviewed the judge will be concerned to determine whether the grounds on which that review is sought are sufficient to lead him or her to exercise the court's discretion in favour of allowing the evidence to be given again, whether of one witness or all the witnesses, in order that the judge may be able to form an independent view on the credit of the witness or witnesses. Where, however, no fresh evidence is led and the review is conducted on the record I see no basis upon which a judge could interfere with a credit finding unless it had been demonstrated that the commissioner failed to use, or misused, the position of advantage. In other words a review on the record is, in my opinion, subject to the URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Clarke JA) 11 same limitations as are imposed on a court of appeal by decisions of the nature of Devries. Otherwise there would be a failure to recognise the advantaged position of the Commissioner who saw and heard the witness. One other matter should be mentioned. I have already referred to the passage from the judgment of Herring CJ. It is entirely consistent with the much cited judgment of Lord Atkin in Evans v Bartlam [1937] AC 473, at 478: "I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master's discretion. His own discretion is intended by the rules to determine the parties' rights: and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the master: but he is in no way bound by it." Subject only to the question of credibility, the judge hearing a review is in no way bound or restricted by the decision of the commissioner although, as a matter of practice, it is not to be expected that, in the absence of good reason, the judge would set it aside. In the present appeal Burke J was not asked to re-hear the evidence of any witness. The parties conducted the review on the record. In these circumstances his Honour was correct to decline the appellant's invitation to reverse the commissioner's findings on credibility. As this was the only ground of substance on which the review was conducted I agree with Meagher JA that the appeal should be dismissed. Since writing this judgment I have read the draft judgment of Handley JA in which his Honour reaches a different conclusion. Although I agree with his Honour that the appeal should not be dismissed on the technical ground that the notice of motion was inappropriately worded I am unable to agree with the conclusion that the Commissioner's finding was glaringly improbable or inconsistent with incontrovertibly established facts. In short I agree with Burke CCJ that there was no basis on which to reverse the learned Commissioner given her credibility based findings. The case was not unusual in the sense that there were inconsistencies in the evidence called by the respondent (who was the applicant in the court below) which threw doubt on his own evidence. While there are cases in which there are no inconsistencies in the evidence there are also many cases in which evidentiary inconsistencies do appear and the trier of fact is faced with the familiar task of assessing the evidence and the credibility of the witnesses in order to reach a judgment. In these cases, it should be emphasised, it is the trier of fact who decides the case and a court of appeal may interfere only in the rare cases which satisfy the Devries test. Turning to the facts of this case, the respondent claimed that on 3 November 1988 he dropped a Stillson wrench on his foot and sustained an injury. This occurrence was disputed by the appellant and the fundamental issue was whether he had suffered that injury. In the event that Commissioner Ashford accepted his evidence that that occurred it followed, in the circumstances of this case, that he was entitled to an award. The appellant did not rely on evidence which directly contradicted the respondent on this issue but sought to rely on other evidence to demonstrate that the respondent was an unreliable witness whose evidence concerning events following the incident of which he complained was inconsistent with credible and acceptable evidence. In these circumstances the Commissioner had a difficult 12 UNREPORTED JUDGMENTS task but at the end of the day her decision depended upon her acceptance or rejection of the respondent's evidence that the wrench fell on his foot. The Commissioner, in her judgment, recognised the nature of her task and analysed the evidence in a conventional way. She referred to the respondent's evidence and the various pieces of evidence which were inconsistent with his account of events. These included the appellant's work injury book (with its strange and unexplained date alteration), Dr Sahagian's reports and the evidence of the witness Cooper. These pieces of evidence all threw doubt on the testimony of the respondent but did not compel a rejection of his evidence. He sought to explain the inconsistencies and, whilst his explanations may not have been compelling, it cannot be said, in my opinion, that the respondent's evidence was demonstrated to be worthless or that his credibility was destroyed. The question was - did the Commissioner accept his evidence of injury in the face of these inconsistencies? Once she did, having paid regard to the evidentiary weaknesses, her judgment was based solely upon that acceptance and credibility assessment must have played a part. How then could the judgment be set aside? The evidence of the occurrence of the injury was not improbable (much less glaringly improbable) and was not inconsistent with 'incontrovertibly established facts', particularly in the light of his explanations which the Commissioner was entitled to accept. The highest that the case could be put against the respondent is that there was evidence, which could be thought compelling, inconsistent with his version of what occurred after he sustained his injury. I would not agree that his evidence of post injury events was 'glaringly improbable' or that it was 'inconsistent with incontrovertibly established fact' but even if it was that would provide no reason for setting aside the judgment of the trier of fact. Burke J, and this Court, could do that only if his evidence of the happening of the injury itself was shown to fall within the Devries test. Those events which followed the injury were peripheral in the sense that even if the respondent's evidence on those matters was not accepted it would still have been open to the Commissioner to accept his evidence on the event which was in issue. In fact the Commissioner recognised that the respondent's recollection was faulty on some matters but still accepted that it was accurate on the matter in issue. In conclusion I would express my broad agreement with Burke CCJ when he said: "The Commissioner did not appear to resolve the apparent conflict between the evidence giving (sic) by the applicant before Hopkins SC and that given before her as to when and in what circumstance the people at first aid advised the worker to consult his own general practitioner. Nor, for that matter the vacillations regarding the signature on the claim form. Such an omission cannot, in my opinion, be fatal. The Commissioner is not required to reconcile every jot and tittle of the evidence in the matter even if to other minds it does appear to be a matter of some substance. The Commissioner broadly formed the view that the applicant was a credible witness. She had the supposed advantages of the subtle influences of attitude and demeanour. She dealt with the principle factual issues touching upon the issue of credibility. As the review was conducted I feel authority precludes me from concluding otherwise." and "The Commissioner accepted the worker as a credible witness. She had the presently accepted advantage of seeing and hearing the witness. I did not have any such opportunity. The evidence is not so overwhelmingly one way that I can URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Meagher JA) 13 say that the Commissioner misused her advantage of position. I am therefore constrained to accept her finding that the worker was a credible witness and that carries an implicit constraint to accept her finding that the worker received injury as alleged." I agree with the orders proposed by Meagher JA. Meagher JA This is an appeal by an employer against an award made by Ashford C and not set aside by Burke CCJ on review. The worker, the present respondent Atamian, alleged that he had suffered injury in the course of his employment as a fitter with the appellant on 3 November 1988 when he dropped a heavy weight on his left foot. The appellant denied injury, denied the existence of any incapacity in the worker, and for good measure denied any causal connexion between injury and incapacity if either existed. As I have said the worker said before Ashford C that the injury occurred at work on 3 November 1988 and that he immediately reported it to his doctor Dr Sahagian. Dr Sahagian's notes were in evidence and they demonstrated that (a) the worker did not mention the matter to him on 3 November, but first reported it to him on 9 November, and, (b) when he did report it he denied that there had been any trauma. There could have been no mistake by Dr Sahagian, as he and the worker shared the same native tongue. After this unpromising beginning, the worker went from inconsistency to inconsistency, from unlikelihood to unlikelihood. Although his Honour Burke CCJ did not (and did not intend to) cover all the deficiencies in the worker's evidence in the following passage, it is worth quoting his Honour's summary of some of the facts: "The worker strongly asserted injury at 10am on 3/11/88. He equally strongly asserted that he saw the first aid that day. He didn't until a week or so later. He asserted immediate complaint was made to Cooper and the circumstances of injury were detailed to him. Cooper had no recollection of any such event. The worker deposed to withholding any history of the event from his general practitioner when he first consulted him. The reasons asserted for so doing are unconvincing. He said that he thought the problem would dissipate. Why then see a doctor at all? Even though he thought the problem would dissipate when he saw Dr Sahagian it was worsening he deposed in evidence. Why would one think a problem was transient while it was yet deteriorating? And this more than a week later. In any event he asserted to Dr Sahagian that it was improving when he first consulted him. The worker's accounts of the transactions with the medical panel and with Dr Limbers are unacceptable. While the applicant maintained that Dr Limbers didn't examine his foot at all the doctor noted in the report the presence of a bunion. That was noted by other doctors who admittedly examined his foot. That the Medical Panel's only examination was to measure the girth of thighs and calves is incredible. The worker's vacillations concerning whether it was or wasn't his signature on the Claim Form call his veracity into question. "T have always tended to accept the dictum of Atkins LJ that an ounce of merit in the evidence is worth pounds of impression. I would have thought the clear inference from the contradictions inherent in the applicant's evidence such as to make his evidence of the question of injury unreliable. The nature of his problem was such as could have arisen without the intervention of any trauma. I would therefore not have been satisfied that the worker had received injury as alleged." It would require but slight diligence to uncover even more extraordinary features of the worker's evidence. 14 UNREPORTED JUDGMENTS It is surprising that none of the matters deterred Ashford C from making an award in favour of the worker. The employer appealed by way of review to Burke CCJ from Ashford C's award, and, what at first may seem somewhat more surprising, his Honour did not disturb Ashford C's award. Relevantly what his Honour said was as follows: "However, I am not determining the matter de novo. I am reviewing the decision of the Commissioner. The Commissioner accepted the worker as a credible witness. She had the presently accepted advantage of seeing and hearing the witness. I did not have any such opportunity. The evidence is not so overwhelmingly one way that I can say that the Commissioner misused her advantage of position. I am therefore constrained to accept her finding that the worker was a credible witness and that carries an implicit constraint to accept her finding that the worker received injury as alleged." The employer now appeals to this Court. The appeal is from Burke CCJ's "review" of a Commissioners award. The power to "review" arises from s36(1) of the Compensation Court Act, 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." The principles which govern such a "review" have been laid down by this Court on numerous occasions. The most recent statement of principle is that enunciated by Clarke JA in State Rail Authority v Davies (unreported, NSW Court of Appeal, 10 May 1995). It may have utility once more to summarize them. 1. The statutory power conferred on judges of the Compensation Court to "review" a Commissioner's decision is a most ample power. It is not analogous to, or as restricted as, for example, this court's power to hear an appeal. On a "review" all questions of fact and law are capable of being reagitated if the judge conducting the "review" wishes it. 2. In this regard, the reviewing Court's powers are, naturally, discretionary. It may for good reason rehear all or any of the facts, or it may for appropriate reasons decline to stir up ancient embers. 3. If a Commissioner makes a finding of fact based on the credibility of a witness, the principles of Abalos v Australian Postal Commission (1990) 171 CLR 167 apply, so that a judge sitting on a "review" of the case cannot, except in the most unusual circumstance, reverse such a finding if the review is conducted on a written transcript of the evidence which was before the Commissioner. Not to apply this principle was Burke CCJ's failing in Australian Gaslight Company v Samuels (unreported, NSW Court of Appeal, 4 November 1993). 4. However, it does not follow that merely because a Commissioner has made a credibility-based finding a judge on "review" is automatically, and in all cases, bound by it and may never reverse it. He can. He can rehear the case and make an independent finding of his own. Insofar as Burke CCJ in the passage from his judgment which I have quoted suggests to the contrary, his Honour is in error. In view of the wholly unsatisfactory nature of the worker's evidence, and in view of his Honour's own trenchant comments on that evidence, one wonders why his Honour did not discharge Ashford C's award and rehear the worker's claim. URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Handley JA) 15 The answer is, I fear, not difficult to discover. He was never asked to. The bases on which the employer sought to have the Commissioner's award reviewed are set out in the affidavit accompanying the Notice of Motion. Para3 of that affidavit is in the following terms: "3. The Applicant Employer relies upon the following grounds in support of the orders sought in the Notice of Motion: (a) The decision of the Commissioner was against the evidence and the weight of the evidence. (b) The Commissioner erred in law in finding that Dr Sahagian took no history or trauma when he examined the respondent worker on 9 November 1988. (c) The Commissioner failed to give sufficient and proper reason for the findings she made or purported to make in her written reasons for judgment. (d) The Commissioner's acceptance of the Applicant as a witness of truth was against the evidence and the weight of the evidence. (e) Such further or other grounds as become apparent.' It will be seen that subpara(a) and para(d) are misguided, being appropriate only to jury trials, subpara(c) is false, and subpara(b) limits the attack on the award to one small point. Nowhere is there an assertion that the worker's case is riddled with inconsistency and improbability. Moreover, neither in that affidavit, nor at the hearing of the "review", was any request made by the employer's legal representatives to have a rehearing of the evidence. They thereby abandoned their only justifiable ground of complaint and repudiated the only remedy which was appropriate. To make it quite clear that even until the last moment, the appellant's legal representatives, like the Bourbons learning nothing and forgetting nothing did not appreciate the issues, they filed an Amended Notice of Appeal which set out their grounds of dissatisfaction with Burke CCJ's decision in the following terms: "1. That his Honour erred in law in holding that he was constrained to accept any finding of credit made by the Commissioner in respect of the credibility of the respondent. "2. His Honour ought to have found that the Commissioner palpably misused her advantage in assessing the evidence of the worker. "3. His Honour erred in holding that he could not overcome the supposed advantage of the dominant position of the Commissioner without the calling or re-calling of oral evidence. "4. That the trial judge should have held that the Commissioner had not given reasons which dealt sufficiently with the contradictions in the evidence which related to the reporting of the injury to the First Aid and the failure to complain of the injury to the worker's doctor." The appeal should be dismissed with costs. Handley JA In this appeal I have had the benefit of reading in draft form the reasons for judgment of the other members of the Court. With one small exception I agree with the views expressed by Clarke JA on the scope and application of s36 of the Compensation Court Act which authorises the review by a judge of a decision of a commissioner. My only difficulty relates to his Honour's construction of CCR Pt30 R3(2) which provides: "An application for review of a decision of a commissioner may be made orally to the commissioner immediately after he gives the decision". His Honour says of this rule that it: 16 UNREPORTED JUDGMENTS "... implicitly empowers a commissioner to order a review. On the other the commissioner is empowered to decide only that the review shall or shall not take place." In my view the rule does not authorise a commissioner to grant or refuse a review of his or her own decision. It merely allows a review to be initiated immediately after judgment by an oral application which would generally be made in the presence of the other party. The sole function of the commissioner is to note the application and refer it to the Registrar for listing before a judge. I am not able to construe the rule as authorising a commissioner to decide whether or not a review of his or her decision shall take place. So construed the rule would be inconsistent with the Act. However my difficulty is not relevant because this application for review was commenced by motion on notice. I agree with Clarke JA that on a review conducted on the written record the judge is bound by credibility based findings of fact made by the commissioner unless the applicant brings the case within the limited exceptions referred to in Abalos u Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways (1993) 177 CLR 472. However, I differ from the other Judges in concluding that the appellant has succeeded in bringing this case within those exceptions. Meagher JA has referred to the facts and the history of the proceedings and I have no need to repeat them in these reasons. Ashford C accepted the worker's evidence and although she did not expressly rely on his demeanour in the witness box, its subtle influence cannot be ignored. Nevertheless, as Meagher JA has demonstrated, Burke CCJ was most unimpressed by the worker's case and said that if he were determining the matter de novo on the record he would have reversed the Commissioner. Meagher JA concludes that the Judge misdirected himself as to the scope of his power and says: "Tn view of the wholly unsatisfactory nature of the worker's evidence, and in view of his Honour's own trenchants (sic) on that evidence, one wonders why his Honour did not discharge Ashford C's award..." He concludes that this Court should dismiss the appeal because of the form of the appellant's notice of motion which he sets out in his reasons. An allegation that a finding of fact is against the evidence and the weight of the evidence is strictly only appropriate and necessary when challenging the verdict of a jury. The applicant before the Judge did not have to establish that the Commissioner's decision was perverse, merely that it was wrong. However the notice of motion did not include grounds alleging error in fact finding. With very great respect, I cannot agree that this appeal should fail for such a reason. The form of the notice of motion, although technically incorrect, clearly indicated that the applicant wished to challenge the Commissioner's findings of fact. It also included in Ground (e) an ambit ground covering "Such further or other grounds as become apparent" which was not struck out. This point was not taken on the review by counsel for the worker and the Judge did not disregard the stated grounds simply because they invoked an inappropriate standard. This is hardly surprising since s17 of the Compensation Court Act 1984 provides: "(1) A decision of the court in any matter shall be upon the real merits and justice of the case. (2) The court shall not be bound to follow strict legal precedent. (3)..., a decision or proceeding of the court shall not: (a) be vitiated by reason of any informality or want of form; or URJ COCKATOO DOCKYARD PTY LTD v ATAMIAN (Handley JA) 17 (b)..." Since the proceedings before Burke CCJ were conducted on the basis that Abalos established the test to be applied an amendment to the grounds of review would readily have been allowed at any stage. Compare Leotta v PTC (1976) 50 ALJR 666. There being no prejudice, this Court would also have been bound to grant the necessary amendment had it been sought. See Supreme Court Act s75A(6)(a). However there was no need to formally amend the notice of motion. Compare Bal main New Ferry Co v Robertson (1906) 4 CLR 179. In my opinion, therefore, the appeal should be allowed for the reasons given by both Burke CCJ and Meagher JA in their criticisms of the findings of Ashford C. I will however express my own reasons for coming to this conclusion. The worker gave oral evidence before Hopkins C and later before Ashford C. On the first occasion he said that his left foot was injured at work on the morning of 3 November 1988 when a heavy spanner fell on it. He sought first aid treatment immediately and said that an apprentice, Tim Cooper, working nearby knew that he had done so. He was emphatic that the accident occurred that day and said that he saw an entry being made in the First Aid book. (19, 20). He continued to work, did not go to work the next day (10) and saw his local doctor on 9 November. He remembered a later visit for first aid but not when this occurred (17). He agreed that on 9 November his local doctor had asked him what happened to his foot and he did not then tell him about the accident. This was because he said he thought his foot would settle down (15, 19) but he said later that he went to the doctor because his foot was getting worse (27). When called as a witness before Ashford C the worker said that on 3 November the First Aid Attendant sent him straight to his family doctor who saw him that afternoon (62-63), and that he was then off work for 6 to 8 weeks (63). The First Aid report book shows two entries for the worker on 11 November when clearly he was at work but none on the 3rd. The first entry originally recorded a complaint by the worker that a falling spanner had injured his foot on 3 November but this was later altered to 7 November in circumstances which were not explained. The entry stated that the worker hadn't reported the incident previously but had seen his own medical officer (144). The apprentice denied any knowledge of the accident. The worker's local doctor recorded the visit on 9 November, a history of swelling and pain in the worker's left foot commencing | to 2 weeks ago, that the condition was improving, and that the worker gave no history of trauma. The doctor spoke the worker's mother tongue. It is also relevant to note that the worker's memory had "improved" by 22 November when he told the doctor the precise date and time at which his left foot had been injured by the falling spanner. It will be seen that the worker's claim of injury on 3 November, known to the apprentice, reported immediately to First Aid, with an entry made in the report book read by the worker, followed either by him working for the rest of that day or leaving at once to see his family doctor followed by an absence from work for 6-8 weeks, seeing the family doctor either that day or on 9 November, but being at work and reporting the injury twice on 11 November is not only internally inconsistent but is contradicted at almost every point where it can be tested against other evidence. 18 UNREPORTED JUDGMENTS The Judge described as the Achilles' heel of the worker's case the existence of pre-existing degenerative changes in both feet. As he said: "The medical evidence did not require trauma to explain the symptoms and only offered support for the worker's claim once injury had been found." In these circumstances, in my opinion, the Judge was entitled to reverse the Commissioner's findings. In accepting one version of the worker's evidence of injury she acted on evidence which was inconsistent with facts "incontrovertibly established by the evidence" (Devries v Australian National Railways at 479) namely the clinical notes for 9 and 22 November and the entries in the First Aid book of 11 November. She also acted upon evidence which was "glaringly improbable" particularly the worker's evidence of his examination by the Medical Panel and by Dr Limbers. Further evidence in this category included giving what he says was a false answer to a question from his family doctor on 9 November which was totally destructive of his case and his incredible explanations for giving that false answer and going to see the doctor at that stage. Burke CCJ said:, "In the circumstances in which this review was conducted it seems to me that I could not now overcome the dominant position of the Commissioner and would therefore be constrained to accept any finding she made on the question of the credibility of the worker unless, for reasons apparent on the record, that finding was reasonably clearly unsoundly based." In my opinion, for reasons apparent on the record, most but not all of which I have referred to, the Commissioner's finding was unsoundly based and this appears reasonably clearly having regard to the criteria referred to in Devries v Australian National Railways. The following orders should be made: 1. Appeal allowed with costs. 2. Set aside the orders of Burke CCJ of 1 February, 1994. 3. In lieu thereof order that the application for review of the award of Ashford C of 24 September 1993 be allowed with costs. 4. Set aside the award of Ashford C and in lieu thereof enter an award for the appellant. 5. The respondent is to have a certificate under the Suitor's Fund Act in respect of the proceedings before Burke CCJ and this Court. Appeal dismissed with costs. COUNSEL: Appellant: J POULOS QC/P SWEENEY Respondent: G RICH SOLICITORS: Appellant: ABBOTT TOUT Respondent: D LA ROSA, IZZO AND CO