INTERTAN AUSTRALIA LIMITED (T/A TANDY ELECTRONICS v. DAVIDSON [2000] NSWCA 280

New South Wales Court of Appeal

CITATION : INTERTAN AUSTRALIA LIMITED (T/A TANDY ELECTRONICS v. DAVIDSON [2000] NSWCA 280 FILE NUMBER(S) : CA 40767/99 HEARING DATE(S) : 06/10/2000 JUDGMENT DATE : 6 October 2000

PARTIES : INTERTAN AUSTRALIA LIMITED (T/A TANDY ELECTRONICS) (Appellant) ROBERT DAVIDSON (Respondent) JUDGMENT OF : Powell JA at 1, 20; Stein JA at 18; Heydon JA at 19

LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 9824/95 FILE NUMBER(S) : LOWER COURT ARMITAGE CCJ JUDICIAL OFFICER :

COUNSEL : G. M. Little (Appellant) R. C. Pincus (Respondent) SOLICITORS : McCulloch & Buggy (Appellant) Cartone & Associates (Fairfield) (Respondent) CATCHWORDS : WORKERS COMPENSATION - Compensation Court - Appeals to Court of Appeal - Appeal on point of law - Leave to appeal required from interlocutory order - Alleged denial of procedural fairness - Order for new trial - Leave required. ND DECISION : Appeal struck out as incompetent.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40767/99 CC 9824/95

POWELL JA STEIN JA HEYDON JA

6 October 2000

INTERTAN AUSTRALIA LIMITED (T/A TANDY ELECTRONICS v. DAVIDSON)

JUDGMENT 1 POWELL JA: The matter which is before the Court today purports to be an appeal from a decision by Armitage CCJ in the Compensation Court on an application made to that Court by the present Respondent ("Mr. Davidson") for the review by that Court of an Award made by Turner C on an Application for a Determination which had earlier been filed by Mr. Davidson. 2 In the proceedings before him Turner C had found that Mr. Davidson had failed to make out a case that he had sustained a compensable injury, and it was for that reason that the Award was made in favour of the present Appellant ("Tandy"). 3 The application for review came before Armitage CCJ on 29 March 1999. 4 The transcript of that hearing would indicate that the application for review was conducted on the transcript of the hearing before Turner C and with the various exhibits which had been tendered on that hearing. 5 Because the grounds upon which, in the application for review, the review was sought were cast in very wide, and not entirely informative, terms, Armitage CCJ clearly enough, formed the view, that, unless a degree of precision were brought to the proceedings, Tandy could be subjected to unfairness in the sense that it would be called upon, without prior notice, to deal with a wide variety and diverse number of issues. 6 That being so, towards the latter part of the hearing before him, Armitage CCJ indicated (CAB 94) his view that the fairest way of proceeding was to invite Mr Pincus, who then appeared, as he does today, for Mr. Davidson, to prepare some written submissions. 7 His Honour then indicated (CAB 94) that the first of the questions to which those submissions should be directed was the question whether the application before him was in truth an application for a review or an appeal, in the former of which the merits of the case could have been reviewed and in the latter of which the only questions available for submission on the part of Mr. Davidson would be questions of law. 8 The second question which his Honour identified was whether, if a review of a decision of a Commissioner still existed - a question which was the subject of debate following the introduction into the Compensation Court Act of s 34A - whether the Compensation Court Rules governed an application for an extension of time. 9 After some further comments his Honour continued (CAB 95): " I suppose what comes after that is the arguments, two sets of arguments. Firstly, if it is an appeal and it is limited to a question of law, what are the questions of law you say are raised and what are the errors of law that you say the Commissioner has committed. If it is a review, in what respects do you say the Commissioner is in error in the way he looked at the evidence? That is to say in what way did he make mistakes in the way that he looked at the evidence and came to conclusions and what are my powers to substitute my own conclusions."