ROMEO v ROMEO (TRADING AS INTERNATIONAL TILE PLACE) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARK, MEAGHER and HANDLEY JJA 11 May 1995, 11 May 1995 [1995] NSWCA 397 WORKERS COMPENSATION — APPEAL — NO QUESTION OF PRINCIPLE The trial Judge dismissed the appellant's claim for workers compensation for an injury received in a motor vehicle accident because he was not satisfied that the journey was in the course of his employment. His findings were based in part on his assessment of the credibility of witnesses. On appeal Held: The trial Judge's decision had not been shown to be wrong. Clarke JA Justice Handley will give the first judgment. Handley JA This is an appeal by a worker from an award made by Thomson CCJ for the employer. But for the sustained and careful argument of Mr Steele QC for the appellant I would have been content to say that the appeal fails for the reasons given by the trial judge. Mr Steele, however, sought to displace the damaging credit based findings made by the trial judge on the basis that the applicant had been denied procedural fairness by the manner in which his Honour arrived at his findings having regard to the way in which the case was conducted. He developed the submission by referring to various matters which he said had not been put or not put squarely to one or other of the witnesses. In particular, he said that the applicant had not been cross examined directly to suggest that he had not worked at all on the Saturday or had not been in the course of his employment when driving to Hanwood to visit some relatives when the accident happened. It is true that counsel for the employer did not formally put propositions to the worker in the course of his cross-examination in the style "I put it to you Mr Romeo that..." which is sometimes adopted by cross examining counsel. Generally this is a futile form of cross examination which produces nothing other than the standard response of denial. It is clear, however, that the circumstances in which the accident happened were very much in issue throughout this case. There could have been no illusions on the part of the applicant's legal advisers that his evidence that he was driving to Hanwood in the course of his employment to do work for a customer of his employer was being strongly challenged. The applicant did not normally work on a Saturday morning and there were problems about whether Mr Bellato was or was not at the shop having regard to the terms of the wages book. There was a problem as to what the applicant did at the shop, whether anyone was there when he arrived; there was a problem as to why he should be going to Hanwood at all for his employer on the day in question; there was the failure to frankly disclose the family relationship with Mrs Carboni and her parents; there was the problem about the alteration of the wages book in relation to the applicant's wages for working on the Saturday and a number of other matters. It is clear, in my view, that the whole of the applicant's case other than the fact that he had a serious injury as a result of a motor vehicle accident that Saturday afternoon was in issue at the trial. I would therefore reject Mr Steele's submissions based on a denial of procedural fairness. 2 UNREPORTED JUDGMENTS The hearing in this case appears to have concluded in June 1993 with the judge giving his reserved judgment on 8 September that year. A notice of appeal was filed within time on 5 October but no attempt was made to amend it until shortly before the hearing in this Court. The notice of appeal contains four specific grounds and then a final ground "Such further grounds as will become apparent when a copy of the judgment is obtained". No complaint was made in the original notice of appeal of a denial of procedural fairness and no ground to raise that matter was included even in the amended notice of appeal proposed to be filed in this Court shortly before the hearing. It is apparent that strong submissions were made to the trial judge in address directed to the credibility of the worker and other matters casting doubt upon the honesty of this claim. However no complaint of procedural unfairness was then made by experienced counsel appearing for the worker. That, of course, would have been the appropriate time to raise the question. The trial was still in progress and his Honour could have been asked either to rule out the challenges to the worker's credit on grounds of procedural fairness or to grant leave to the worker to re-open his case to deny and explain the various imputations which were being developed by counsel for the employer. I would therefore reject the allegation that the trial judge denied procedural fairness to the worker in the way in which he arrived at his findings as to credit adverse to the applicant. It follows therefore in my opinion that the appeal fails and should be dismissed with costs. Meagher JA I agree. Clarke JA: I also agree. The order of the Court is the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: JOHN STEELE QC/MJ CRANITCH Instructed by: MACKENZIE AND VARDANEGA Counsel for the Respondent: C HOEBEN Instructed by: PIETERSE AND PIETERSE