NATIONAL STARCH and CHEMICAL PTY LTD v NELSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER JA and FITZGERALD AJA 17 September 1998, 17 September 1998 [1998] NSWCA 155 Appeal and new trial — miscarriage of justice — reliance by judge on material to which the parties had no access Mason P This is an unfortunate matter where there has to be fresh hearing. The respondent applied for the determination of a claim for compensation. In the amended application, claims were made inter alia for lump sum compensation under s66 of the Act in respect of different classes of impairment. The matter was heard by his Honour Judge Walker who reserved judgment overnight. An award was made in which the sums awarded by way of compensation pursuant to s66 were higher than, or at least as high as, the percentages claimed by the worker in his amended application. The appellant complains about this but I do not think that this in itself involves any miscarriage. His Honour, in his judgment at (AB 22), made it plain that in making his assessment of the amounts payable under s66 he did not rely exclusively on the medical evidence. He took into account all of the evidence before him, particularly that of the applicant and the consultant from the worker's health clinic whose evidence had been recounted. I cannot therefore see that there was any error merely in finding percentages higher than that recorded in the medical evidence of the doctors who were called. But there is a more fundamental problem. On two occasions in his judgment his Honour referred to evidence of a Dr Vote. Dr Vote was not called as a witness, no report was tendered and we were informed that he had not seen the worker. He is a specialist orthopaedic surgeon. It is clear on a reading of the judgment that his Honour had regard to the evidence, or his belief that there was evidence, from Dr Vote. On one occasion he mentioned his evidence but preferred that of Dr Wilding. But on another occasion, at the top of p21 of the appeal book, he cited the report of Dr Vote amongst others, as a step in his reasoning leading to the conclusion that the worker was totally incapacitated for work. It may be also that he had Dr Vote's medical evidence in mind in arriving at the final determination of the amounts payable under s66. The court does not know how this miscarriage came about and it is probably idle to speculate. The unfortunate fact is that on the face of the judgment reliance has been placed upon material to which the parties had no access and which the losing party had no opportunity to confront. Senior Counsel for the respondent argued that the references to Dr Vote should be seen as a typographical error or some misnomer for another doctor. It is true that his Honour earlier in the judgment referred to "the medical evidence", and dealt seriatim with a number of doctors excluding a Dr Vote. However, I do not think we can be satisfied that the reference to Dr Vote should be read as was suggested: as either a reference to Dr Siow, or a reference to the person who gave 2 UNREPORTED JUDGMENTS a vocational assessment. Dr Vote is referred to, in contradistinction to Dr Siow at AB 21B, and he is referred to as a specialist doctor at AB 21J and it could not be said that the vocational assessment is of that category. It was also argued that the judgment indicated that whatever the mistake was it did not have any impact upon the ultimate determination. Whilst the argument might carry weight if it were only applied to the second reference to Dr Vote at AB 21J, I do not think it can save the reference to Dr Vote at AB 21B, where as I have indicated already he, and other doctors, are cited as moving the judge to reach the view stated in a compendious way that the worker is totally incapacitated for work. For this reason there has been a miscarriage which we can only correct by upholding the appeal and remitting the matter for further hearing. Counsel for the appellant put an alternative submission to the effect that it was not open to his Honour to make an award for compensation under s66 greater than the amount claimed in the amended application. He submitted that the proper practice, indeed the obligation, of the court minded to award a sum greater than that claimed in the initiating process was to invite application for amendment to the particulars in the initiating process and to consider that application in the context of any argument as to surprise, denial of procedural fairness and the like. The principles are referred to in Cairns, Australian Civil Procedure, 4th ed, p268. As presently advised, I would apply those principles in this context. Having said that, we have not heard full argument on the point, so that is not a categorical expression of opinion. In my view the case is doubly unfortunate because I have a suspicion that the appeal might have been avoided had the matter been taken back to the trial judge and had he been confronted with the obvious slip. I see no reason why the slip tule would not have applied, and there may have been a simple explanation. Alternatively, the deficit in procedural fairness could have been corrected by the trial judge and not left for appellate review with all of the cost and expense involved. I think it is unfortunate that an appeal court should be placed in the position of trying to construe, indeed rectify, a judgment when an alternative option is open. I would indicate that in a proper case I think the appellant should be refused relief, or indeed penalised in costs for bringing an application in those circumstances. However, the Court is seized of the appeal. We have jurisdiction and an obligation to deal with the matter. It is not a prerogative relief case where relief could be refused on discretionary grounds. For the reasons given, the appeal must be allowed and the award set aside and the matter remitted to the Compensation Court for fresh determination. The respondent should pay the costs of the appeal, but have a certificate under the Suitors' Fund Act, if qualified. Meagher JA On the face of his Honour's judgment, his Honour has taken into account evidence which was not before him. There may be some explanation of this apparent anomaly but not one which can be conjured up by any conventional process. There must be a rehearing. I agree with the President. Fitzgerald AJA I agree with the other members of the court. Mason P The orders of the court will be as I have proposed. URJ NATIONAL STARCH and CHEMICAL PTY LTD v NELSON (Mason P) 3 The appeal is allowed, the award set aside and the matter remitted to the Compensation Court for fresh determination. The respondent is to pay the costs of the appeal but is to have a certificate under the Suitors' Fund Act if qualified. 5 Counsel for the appellant: J L Sharpe and T A Gotterson Solicitors for the appellant: Vandervords Counsel for the respondent: A J Leslie QC and A O Leslie 10 Solicitors for the respondent: Steve Masselos & Co