New South Wales Court of Appeal CITATION : SENEVIRATNE v PREFECT PTY LIMITED [2000] NSWCA 97 FILE NUMBER(S) : CA 40738/98 HEARING DATE(S) : 11 April 2000 JUDGMENT DATE : 11 April 2000 PARTIES : Manel Seneviratne - Appellant Prefect Pty Limited - Respondent JUDGMENT OF : Sheller JA at 1; Fitzgerald JA at 13; Davies AJA at 14 LOWER COURT JURISDICTION : Compensation Court LOWER COURT 7968/97 FILE NUMBER(S) : LOWER COURT O'Toole J JUDICIAL OFFICER : COUNSEL : CRR Hoeben QC/J Trainor - Appellant PJ Deakin QC/LG Stone - Respondent SOLICITORS : WG McNally & Co - Appellant Leitch Hasson Dent - Respondent CATCHWORDS : APPEAL - PRACTICE & PROCEDURE - Leave to amend notice of appeal not allowed as relevant appeal ground could not be made out - grant of leave would be futile - PROCEDURAL FAIRNESS - Whether denial of natural justice - where submissions made in absence of applicant's counsel but in presence of solicitor - ND LEGISLATION CITED : Workers Compensation Act 1987 Compensation Court Act 1984 CASES CITED: N/A DECISION : Dismissed with costs ------1 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40738/98 DC 7968/97 SHELLER JA FITZGERALD JA DAVIES AJA Tuesday, 11 April 2000 SENEVIRATNE v PREFECT PTY LTD JUDGMENT 1 SHELLER JA: This is an appeal from a decision given on 28 August 1998 by Judge O'Toole in the Compensation Court. The appeal is by the applicant in the proceedings before her Honour. The basis of the appeal was that her Honour had failed to award compensation to the applicant pursuant to s67(1) of the Workers Compensation Act 1987. 2 A notice of appeal was filed. The ground of the notice of appeal as filed was that her Honour had erred in failing to award compensation under that subsection as the appellant had suffered two or more losses as a result of the same injury. 3 When the appeal was called on for hearing today, Mr Hoeben QC, who appeared for the appellant, applied for leave to amend the notice of appeal to add another ground. The ground was that her Honour had failed to accord procedural fairness to the appellant. That was explained in the document as follows: "(i) Her Honour acceded to a request that Counsel for the Appellant address her first and leave to attend another case at the conclusion thereof, leaving Counsel for the Respondent to address her in his absence. (ii) Her Honour raised no question of finding two injuries rather than one with Counsel for the Appellant during his address. (iii) Her Honour first raised the question of finding two injuries as opposed to one during the course of address by Counsel for the Respondent. (iv) Her Honour did not cause Counsel for the Appellant to be informed of the matters in (iii), nor asked for supplementary submissions from him thereon." 4 This new ground concedes that her Honour made a finding that the appellant had suffered two injuries, the consequence of which was that the percentages on the basis of which her Honour calculated the permanent loss suffered by the applicant for those two injuries did not produce an amount for permanent loss which passed the threshold for the application of s67. 5 It was accepted that if the appeal was directed to her Honour's finding that there were two injuries, it was directed to a question of fact which, pursuant to s32 of the Compensation Court Act 1984, is not open to challenge in this Court. Accordingly, as Mr Hoeben frankly conceded, if the amendment were not allowed, the appeal would fail. 6 We were told from the bar table various things about the circumstances surrounding the departure of Mr Menary, counsel for the applicant, and about the solicitor, Mr Keats, who remained in court representing the applicant. However, no evidence was presented to the Court which would support any claim that the solicitor who was left to act for the applicant was not capable of doing so properly. 7 Mr Hoeben took us in some detail to the submissions made both by Mr Menary and by counsel for the respondent and said that, from those submissions, it emerged that the question of whether the applicant suffered two rather than one injury was only raised during the course of the respondent's counsel's submissions. However, while those submissions were being made, the applicant's solicitor was in court. There is absolutely no reason for us to suppose that the solicitor was not capable of understanding the submissions that were being put and their consequences in terms of the application of s67. It seems to have been accepted that if in fact there were two injuries suffered by the applicant, then the threshold of s67 would not be reached. 8 Her Honour gave her judgment in which, as I have said, she made the finding that there were two injuries and presumably on that basis made no order under s67. In the reasons for judgment, her Honour acknowledged that a claim had been made under s67 but made no further mention of the section. It has to be assumed that it was in consequence of the awards that she made under s66 that she concluded that s67 did not apply. 9 No point is made by the appellant as a ground of appeal based on any failure by her Honour to give reasons. The ground of procedural fairness relied upon is simply the absence of the applicant's counsel and the failure of her Honour to take steps to ensure that that absent counsel was advised about the submissions that had been made by the respondent. 10 For my part, I am quite unable to see how, if counsel for a party decides to leave the running of the case to an instructing solicitor and go elsewhere and does so with the consent of the judge, that it can be said that because submissions are put, even if they be unexpected submissions, in the presence of that solicitor acting for the applicant, there has been any denial of procedural fairness. 11 It is to be observed that after her Honour gave her decision, no complaint was made about this particular point and indeed, as far as I am aware, the first occasion on which this ground of want of procedural fairness was raised was in the last few days when some material was furnished to the Court, indicating that the application to amend the notice of appeal would be made. 12 In my opinion, to allow that amendment would be quite futile, as the ground of want of procedural fairness simply could not be made out. The consequence of that is that, in my opinion, the application to amend should be refused. As I understand it, the outstanding ground of appeal in the notice of appeal is effectively abandoned and, on that basis, the order of the Court should now be that the appeal is dismissed with costs. 13 FITZGERALD JA: I agree. 14 DAVIES AJA: I also agree. 15 SHELLER JA: The order of the Court will be therefore as I have indicated. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.