GIBSON vy COB SUPPLY CO PTY LIMITED; COB SUPPLY CO PTY LMITED v GIBSON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY P 1 July 1996 [1996] NSWCA 209 Mahoney P. This matter comes before the Court on a motion for leave to add grounds of appeal to the supplementary grounds of appeal already filed. The position appears to be that in the appeal papers, which have been filed in the appeal of Gibson v Cob Supply Company Pty Limited (Court of Appeal matter 40407/93), there is a notice of appeal which is desired to be supplemented by the document which I have initialled this morning and placed with the papers. In my judgment of 12 December 1994 I referred to this matter generally. Looking at the allegations contained in that document the following appears. Mr Gibson desired on the hearing of the appeal to which I have referred to bring fresh evidence in support of his appeal. That fresh evidence includes amongst other things evidence alleging (I use the term generally) fraud against various parties. When the terms of the fresh evidence which Mr Gibson seeks leave to adduce at the hearing are examined, it appears — and he has expanded the matter in answer to questions from the bar table this morning — that he desires to make allegations againstthe solicitors for the defendants at the trial, the barristers appearing for them, the insurer and a series of solicitors whom he has previously engaged or approached. He desires to set up, and I do not attempt to limit the allegations that he has made in the present matter, that these people apparently withheld documents from the court, that they attempted to mislead the judge upon the trial, that his solicitors attempted to keep the matter from coming on for hearing and other matters to which reference is made in the notice of motion. These matters appearing to be or to be included in the matters that he wishes to raise, it is apparent in my opinion that the matters to be raised are not proper to be raised as on a notice of appeal or as on the hearing of appeal. His remedy, if he has any, is to bring a separate proceeding to set aside the judgment that has been given against him by Mr Justice Newman. In these circumstances, as I have indicated, I propose to order that the motion for leave to adduce fresh evidence at the appeal be stood over to the hearing of the appeal or further order; that the appeal be stood over generally to await the outcome of the proceeding to which I shall refer or further order; and that the costs of the notice of motion with which I am dealing be reserved to the court dealing with the appeal. The result of this is that if Mr Gibson wishes to proceed further with the matter he will have to bring a separate proceeding, based upon (as I have described it) the fraud or other misconduct, to set aside the judgment which has been given against him by Newman J. In the circumstances I propose to limit the time within which that separate proceeding is to be brought to two months from today. If 2 UNREPORTED JUDGMENTS those proceedings are not commenced within that time, then I reserve leave to the defendants, the respondent parties here, to apply for dismissal of the appeal. That means, as I have explained to Mr Gibson, that if he is to pursue these allegations they must be pursued by him bringing a separate proceeding, presumably in the Equity Division, to set aside the judgment which Newman J has given againsthim; and that if he does not bring that proceeding within two months then he may well have prejudiced his rights and he may lose them entirely. That deals with the notice of motion. There is another notice of motion before the court this morning I understand, that is a notice of motion to strike out the appeal. Should that be stood over with the other notice of motion? DEAKIN: I think in fairness to Mr Gibson, no, we would not think that is appropriate. It is a matter for your Honour of course, but it is a separate proceeding, admittedly arising out of the same injury occurring on 12 December 1980, but it relates to Compensation Court proceedings and it is our appeal from a decision of a judge of that court. HIS HONOUR: That he wants to strike out your appeal, does he? DEAKIN: Yes, and your Honour, so that in an attempt to short cut that motion I think Mr Gibson's criticisms of the draftsmen of the notice of appeal, without going into the merits of it, your Honour there are some criticisms that could be levelled against it. In an attempt to circumvent further argument on that your Honour we have provided to Mr Gibson an amended notice of appeal which — could I hand to your Honour a copy of it — we would seek to file. Your Honour will see that in respect of that matter the decision of Judge Egan in the Compensation Court was only handed down on 2 May. At the moment there is only one day's transcript available, that being 6 November, the other four days of the hearing the transcript is still not available. Your Honour, there were criticisms that Mr Gibson could validly make in respect of some of the grounds of the appeal as filed. We would seek to file the amended notice of appeal that I have just handed to your Honour to raise squarely what is the principal issue in that appeal, namely flowing particularly from par 7 as proposed, your Honour, and perhaps I should give your Honour some broad background to it before I take you onto the appeal. HIS HONOUR: Before you do, you are seeking leave to substitute this? DEAKIN: Yes. HIS HONOUR: For the existing ground of appeal and you think that will cure the defects on which you rely? DEAKIN: Yes. APPELLANT: I oppose that your Honour because they just handed me this this morning, they have had seven days before Egan J last Monday, 24 June and HIS HONOUR: Do you desire an adjournment to consider this matter? APPELLANT: No, I do not. HIS HONOUR: If you don't, you want to proceed with it now and an application is made to file the amended notice of appeal, I would want to see the judge's judgment, do you have a copy of the judge's judgment? Hand it up. APPELLANT: Yes. DEAKIN: It is an annexure to the affidavit that you Honour had — APPELLANT: In support. DEAKIN: — referred to. \GRBSON v COB SUPPLY CO PTY LIMITED; COB SUPPLY CO PTY LMITED v GIBSON (Mahoney P) APPELLANT: There is an affidavit with this one in support of this notice of motion, too. HIS HONOUR: So this is an affidavit in matter 40296 of 1996 is it? APPELLANT: Yes. HIS HONOUR: And that is the affidavit on which you move, is it? APPELLANT: Yes. HIS HONOUR: And do you wish to proceed on that matter? APPELLANT: Yes. HIS HONOUR: And you don't desire to file affidavits? DEAKIN: No. HIS HONOUR: But you desire leave to amend the notice of appeal to take the form of the document which I shall initial and place with the papers. DEAKIN: Indeed and could we, I don't wish your Honour not to read them but we formally object to some paragraphs of the affidavit, 6 to 16 inclusive, and 18 to 26 inclusive. Principally on the grounds of relevance as your Honour — HIS HONOUR: I will note those objections. I will read the affidavit. Now the judgment is a judgment of 2 May, is it? APPELLANT: Yes. DEAKIN: Yes. HIS HONOUR: Perhaps I should read that before I take the matter any further. Yes, well I've read that judgment. The judge made an award in favour of Mr Gibson and your appeal is on what grounds? DEAKIN: The principal grounds that we rely on for the purpose of today's application are these, that his Honour having found that the worker, that Mr Gibson was not incapacitated for the purposes of the Act in respect of his pre-injury employment. That, your Honour will recall, was the findings that he made on p 4 of the judgment, that although he was, in accordance with Dr Vanansio's report he was fit for a wide range of duties which would have paid similar rates to those pre-injury and this was demonstrated by work actually done in recent times, that the facts of the case could not support an award but in respect of partial incapacity, as his Honour found it, in respect of his playing of rugby league, for these reasons your Honour, firstly, there was no evidence of any contract of employment at the time of injury pursuant to which Mr Gibson was being remunerated for playing the game. HIS HONOUR: Is this an appeal which is on all grounds or is it limited to facts? DEAKIN: No. It is limited to law, point of law. But your Honour very simply unless there is a contract of employment in existence at the time of the injury, then applying the wording of the section, 'the same or some suitable employment', which is the gateway, of course, to an award of partial incapacity, your Honour the section can't work and in addition to that primary ground, the other grounds your Honour sees in the proposed amended notice of appeal are that the learned judge wholly failed to apply the mandatory steps which have been laid down in the authorities for assessing entitlement under the Act to any award of partial incapacity, namely the determination of the 'but for' earnings, a calculation of what would have been able to be earned or was being earned and ultimately the exercise of the discretion that the section calls for. The trial judge simply failed, totally, to calculate any of those steps. His findings appear to have been limited to 'that he would have received something in excess of the full rate of compensation', that appears on p 7. 'He would have 4 UNREPORTED JUDGMENTS been able to earn substantial sums of money', which his Honour didn't calculate, 'and that those sums would be sufficient at least to justify an award'. Our submission would ultimately be that that doesn't satisfy, under any test, what the section lays down, the compulsory steps. There are particularly criticisms that are in the earlier notice of appeal in respect to the provision of reasons, your Honour sees in one, that of course is established on the authorities as an error of law, and there is a no evidence point in par 2 which also, we submit, is an error of law. I don't wish to address you on the other grounds for the purpose of this application, but we submit those grounds are sufficient to preserve the notice of appeal and for the matter to be heard in due course when and if the full transcript is available. HIS HONOUR: Mr Gibson, you have applied to have the notice of appeal struck out on the ground that it's incompetent. It doesn't appear to be incompetent on the face of it. What particular basis do you allege for claiming that the appeal is incompetent, that is the appeal from Egan J? APPELLANT: It's correct. His Honour had the advantage of hearing the evidence and hearing the witnesses called to give evidence and he had the advantage of affidavits of other witnesses tendered. At the time of the injury I had accepted an arrangement verbally, contract, to, at the end of, in August 1980, I had accepted an arrangement to join Western Suburbs Rugby League Football Club. HIS HONOUR: We are looking at a technical question now. He is entitled to bring an appeal against the judgment, this is not a fraud case, when — APPELLANT: No, I understand. HIS HONOUR: It is a different thing from what we dealt with before. He is entitled to bring an appeal, whether he is going to succeed on it or not. If you are going to strike it out at this stage you've got to show, for some technical reason, it is quite incompetent. Having read the judgment and seen the notice of appeal I frankly don't think that point can succeed. APPELLANT: Well if you think that — HIS HONOUR: You're not a lawyer but I'm telling you, I'm not advising you, but I'm telling you that I can't see any ground on which that application can succeed, unless there is something else that I haven't noticed and it is why I asked you the question that I did. But I think this is a matter in which the appeal will have to proceed. Whether you win or whether you lose is another matter. He may have the job in front of him of showing that there is an error of law in what the judge did, but I don't think this is a matter in which the appeal can be struck out as incompetent. Do you follow what I'm saying to you?APPELLANT: I understand, your Honour. Cop it again. HIS HONOUR: That would mean that the appeal would have to proceed. Mr Deakin has asked for leave to amend the notice of appeal to make clearer, by adding the grounds that he has specified which are underlined in that document what the appeal is all about. Ordinarily the court would without much doubt about the matter, allow an amendment to the notice of appeal. Unless you can give some cogent reason why I shouldn't allow the amendment, I am proposing to allow it so that the appeal can go forward in due course and then the rights and wrongs of the matter before Egan J can be heard. Do you follow me? APPELLANT: Yes. \GRBSON v COB SUPPLY CO PTY LIMITED; COB SUPPLY CO PTY LMITED v GIBSOS (Mahoney P) HIS HONOUR: So I don't think really you can succeed on this motion. You will have to go to the appeal in due course and argue that (or he will have to argue it as the appellant and you will have to respond) and see whether the judgment that Egan J gave and the award that he gave in your favour should be set aside. APPELLANT: Yes. HIS HONOUR: What I propose to do, I'm not spending a lot of time about it, but I don't think time is warranted — what I propose to do is to dismiss your motion to strike out the appeal as incompetent. There is no formal motion before me to amend the notice of appeal. But I think in the circumstances I should do that so that we get the matter properly on foot when the appeal comes on. So, I propose to do that. You understand that? APPELLANT: Yes. HIS HONOUR: I will make the order dismissing the notice of motion. I will allow the notice of appeal to be amended in accordance with the document which I have initialled. I will hand back to you your copy of the notice of motion to strike the matter out as incompetent and the appeal then will go forward in due course. APPELLANT: Could I just raise one matter with it? HIS HONOUR: Yes. APPELLANT: Could I join the both appeals together to be convenient?HIS HONOUR: No. The other appeal is not going forward at the moment. You' ve got to bring a separate proceeding. APPELLANT: Okay. HIS HONOUR: I'm going to direct that the judgment that I gave in the previous application and in this one be taken out and a copy sent to you by the Registrar so that you will have it before you and so far as you are able to understand legal matters at least you will have no excuse for not reading it and understanding what it is all about. Do you follow me? APPELLANT: Yes. HIS HONOUR: Well then I will do that. The present notice of motion is dismissed. I will order that the notice of appeal be amended as in the document, initialled and placed with the papers and that appeal will come on then in the ordinary course. DEAKIN: There is no application for costs but I suppose your Honour should make a formal order that the costs of the application be costs in the appeal or something of that kind. HIS HONOUR: Perhaps that would be a convenient thing to do, yes. Costs of the application to be costs in the appeal. DEAKIN: There is one further matter. The trial judge did grant a stay of the matter but it expires today. We would ask this Court to extend the stay of the judgment pending the determination of the appeal. HIS HONOUR: When is the appeal likely to come on. DEAKIN: The listings of the court, as your Honour knows, are difficult to predict with any precision. I'm not sure your Honour that it has got very good prospects of getting on this year, but if — HIS HONOUR: I don't see why. The Compensation list is almost up to date. DEAKIN: I think there is an application for expedition and I wouldn't want to be heard on that if your Honour considered an appropriate manner to grant — HIS HONOUR: That can go to Sheller JA who is the expedition — 6 UNREPORTED JUDGMENTS DEAKIN: Yes, it would have to go to the expedition judge as I understand. But in any event your Honour we would submit a stay would be appropriate, particularly bearing in mind that it is the same accident and this is amounts that would, on one view of it, they're interrelated under the legislative scheme and we would submit for the stay not to be ordered in this case, it could well result in those moneys never being able to — HIS HONOUR: Mr Gibson, the Compensation matters in the court's list are dealt with in special groups. We now deal with all the Compensation cases together. I'm not sure when the next Compensation list will be dealt with, it should not be too far in the future. You have not received compensation since 1980 I take it, is that right? APPELLANT: 1981. HIS HONOUR: 1981. So I don't think the position ought to be altered at the present time. We will keep the position as it is. When the Compensation list comes on I don't know at the moment, but it is likely that you will get a hearing some time this year I believe. But if there is an application for expedition, for urgency of the matter, then that will be considered by the judge who deals with those matters in his chambers. So I will make an order continuing the stay until the hearing of the appeal or further order. You should be in touch with the Registrar to check when your appeal — that is this appeal in this Compensation matter — is likely to come on and you should busy yourself about that. I don't mean you should worry the Registrar too much because he's got a lot of other work to do. But if you wish, you should check with him to get some indication of when the appeal is likely to come on. If there hasn't been an expedition order made then you may, if you desire, make an application for expedition in the appropriate way. APPELLANT: All right, your Honour. HIS HONOUR: And you will get copies of those judgments in due course when they're taken out. That won't be tomorrow but it will be within due procedure for the shorthand writers. Orders accordingly.