FITZGERALD v WARATAH TOWAGE PTY LTD [1995] NSWCA 148

FITZGERALD v WARATAH TOWAGE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and HANDLEY JJA 27 October 1994, 24 March 1995

[1995] NSWCA 148

NEW TRIAL — IRREGULARITY — DENIAL OF PROCEDURAL FAIRNESS — RESULT NOT AFFECTED — NEW TRIAL REFUSED

The appellant alleged a denial of procedural fairness by the trial judge who terminated an earlier award because she was satisfied that any relevant incapacity had ceased - in her reasons the trial judge made reference to the worker's behaviour in court - the appellant submitted that the trial judge was not entitled to have regard to the worker's behaviour outside the witness box without giving the worker's counsel an opportunity to deal with it - Held: (1) Reliance on her observations outside the witness box was an irregularity involving a denial of procedural fairness, GIO v Bailey (1992) 27 NSWLR applied. (2) Not every departure from the rules of natural justice will entitle the aggrieved party to a new trial, Stead v SGIO (1986) 161 CLR applied. (3) In the light of the medical evidence and a film taken of the appellant's activities the Court would not order a new trial because a properly conducted trial could not possibly have produced a different result.

Mahoney JA On 14 December 1983 his Honour Judge Burke made an award in favour of the appellant worker based solely upon an injury to the worker's right shoulder and the incapacity resulting from it. In 1989 an application was made to the Compensation Court to terminate that award. On 21 June 1991 her Honour Judge O'Toole terminated the award with effect from 27 April 1989. The worker has appealed to this Court against her Honour's order.

As Handley JA has indicated, the appeal has been limited to one ground described as a denial of procedural fairness. Her Honour in her judgment referred to the fact that, during the proceeding, the worker had acted in the court in a manner "apparently normal and unremarkable" and consistent with her impression "of his athletic build and physical fitness". She formed the impression "that the worker has sought to maximise the effect of any discomfort he suffers". The contention has in substance been that her Honour relied upon these observations without directing the attention of the parties to the fact that she proposed to rely on them and that this involves a denial of procedural fairness: Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304. Procedural unfairness ordinarily involves an error of law. However, the appeal has been conducted upon the basis that it is not limited to questions of law.