New South Wales Court of Appeal CITATION: ABLE DOOR SERVICES Pty Ltd v LOWE [2005] NSWCA 483 HEARING DATE(S): 27/05/2005 JUDGMENT DATE: 27 May 2005 JUDGMENT OF: Bryson JA at 1; Mason P at 25; Rothman J at 27 DECISION: Appeal allowed - see para [24] CATCHWORDS: COURTS and JUDGES - conduct of trial - limiting issues on new trial - trial Judge introduced important new issue when judgment was reserved, amended application and awarded remedies on basis not alleged at hearing and not the subject of evidence. Decision set aside and order for re-hearing before another Judge - consideration of principles on which Court of Appeal limits issues on new trial. Suitors' Fund Act 1951 s.6(1) & (2) LEGISLATION CITED: Workers Compensation Act 1987 (NSW) ss.40, 60, 66 & 67 de Beever v Katsirilos [1971] VR 401 Hutchinson v Piper (1812) 4 Taunton 555 at 557, 128ER 447 CASES CITED: Pateman v Higgin (1957) 97 CLR 521 Smith v The NSW Bar Association (1992) 176 CLR 256 Trustees of the Roman Catholic Church v Hogan (2001) 53 NSWLR 343 Able Door Services P/L - Appellant PARTIES: David Lowe - Respondent FILE NUMBER(S): CA 40627/04 G.E. Watson SC & M. Batten - Appellant COUNSEL: Ms E. Walsh - Respondent Stephen Joseph Lee, Vandervords - Appellant SOLICITORS: Deborah Ens, Kells The Lawyers - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 11451/02 LOWER COURT JUDICIAL OFFICER: Walker DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40627/04 MASON P BRYSON JA ROTHMAN J FRIDAY 27 MAY 2005 ABLE DOOR SERVICES PTY LIMITED v DAVID LOWE Judgment 1 BRYSON JA: This is an appeal by the employer from the decision and orders of his Honour Judge Walker QC of 6 July 2004. 2 His Honour made orders and an award under the Workers Compensation Act 1987 on the Amended Application for Determination by the worker Mr Lowe, who is now the respondent. 3 His Honour further amended the Application for Determination and the Answer, after judgment was reserved and without notice to the parties: see the judgment at paragraph 9, red book, 21. 4 The employer claims, and the worker concedes, that the judgment and certain of the orders should be set aside. In my view the Court of Appeal should act on the concession. Judge Walker's decision is to be set aside because it was not reached by fair procedures. The decision was reached by introducing an important new issue after the completion of the hearing and the addresses when judgment was reserved. The Judge amended the application and awarded remedies on the basis of relations between the worker's psychotic illness and his work injury which the worker did not allege or rely on at the hearing, and to which evidence at the hearing was not directed. The employer had no opportunity to deal with the issue. 5 The employer asks that the Court of Appeal should make directions limiting the conduct of the proceedings in the District Court when remitted. The first such direction is that the matter to be remitted should be limited to the claim upon which the worker sought compensation in the original trial, that is, the claim based on the traumatic injury to the left hand and wrist and depression. The issue should not now be expanded to incorporate a claim for drug-induced psychosis, especially given the concessions earlier made on behalf of the worker during and before the hearing below and the fact that the employer has gone into evidence following these concessions. Secondly, the employer asks that the Court of Appeal should make directions that the proceedings should be heard by a judge other than Judge Walker. 6 It is for decision then whether the orders made should be set aside, and the proceedings should be returned for a general new hearing, or whether some of the orders made should be left to stand. 7 The ordinary approach, with which I will deal further, of the Court of Appeal when a new trial is ordered is that the order is general. An exception should be made to the ordinary approach in the present case because it is the position of both parties that certain of the orders made on 6 July 2004 should not be set aside, namely, order 2 relating to lump sum compensation (section 66), order 3 relating to pain and suffering compensation (section 67); and order 6 relating to costs. 8 It also is agreed that order 5 relating to medical expenses (section 60) should not be set aside, although what passes under that order may lead to some debate if a different view is taken of the injury complained of. 9 It is also for decision whether the Court of Appeal should make some direction on the constitution of the District Court for the rehearing or should leave the constitution of the Court to the District Court's own ordinary processes. Ordinary processes would often, but would not necessarily lead to a rehearing after an appeal before the judge who heard the proceedings in the first place. 10 That findings on drug taking and psychotic illness influenced his Honour's decision on weekly payments (section 40) appears from the judgment at paragraphs 66 to 71. His Honour's adoption and disposition of an issue relating to the psychotic illness and treatment of it in his judgment have created a situation where it would be reasonable for the employer to have an apprehension of pre-judgment on that issue. There is a very strong basis for such an apprehension because of the cumulative effect of his Honour's having taken up the issue and further having reached conclusions adverse to the employer and acted on them. 11 Of itself, this consideration strongly favours an order of the Court of Appeal requiring that the further hearing should not take place before Judge Walker. In my opinion it is inappropriate that his Honour should be asked to address the issues again in view of the conclusions that he has already expressed and the manner to which they were reached: cf. Smith v The NSW Bar Association (1992) 176 CLR 256 at 269. 12 The considerations favouring reconstitution of the District Court are even stronger if the worker proposes to amend his claim so as to make the psychotic illness part of his case. It has not been possible to establish in the course of the appeal hearing whether the worker does so wish, or will in the future wish to do so in the proceedings to be remitted, and whether or not there will be any application for a further amendment. The worker's counsel is not in a position to make a clear or unreserved statement on this subject. The subject indeed does depend on the availability of medical evidence and also on the instructions of the worker. Although to some degree the Court pressed counsel for a response, no response committing the worker to any particular course was forthcoming, and I do not regard this as a failing. 13 The proceedings should be returned to the District Court without any expression of view on the part of the Court of Appeal about how an application for amendment should be dealt with. Indeed, no application for amendment has ever been made or foreshadowed on behalf of the worker, so prediction cannot be undertaken. I wish it to be understood clearly that I have expressed no view supporting the making of an amendment. 14 The prima facie rule is that there should be a general new hearing, but this is departed from from time to time. In the present case it is departed from, in the case of the excepted orders which I have mentioned, because both parties wish it. Further departure depends on a principle of law which is not highly concrete. The principle was restated in Trustees of the Roman Catholic Church v Hogan (2001) 53 NSWLR 343, at 349-350 by Mason P. The principal authority is Pateman v Higgin (1957) 97 CLR 521 at 527, Kitto J citing Hutchinson v Piper (1812) 4 Taunton 555 at 557, 128ER 447 at 448. 15 The test is rather indefinite, and notwithstanding what the test indicates it is very common to order limited new trials, particularly new trials limited as to damages. 16 Senior counsel for the appellant contended, as I have earlier said, that there should be a limitation and pointed to a number of circumstances which he contended should lead this Court to restrict the array of issues potentially open for consideration by the District Court. 17 One consideration put forward was to the effect that opportunities in the management of the employer's affairs during the first trial had now passed, including the loss of a chance to negotiate on the basis of the worker's claim as it was there formulated. 18 Another matter put forward related to the use made during the hearing of medical evidence of Dr Revai, a psychiatrist who was qualified to give evidence on behalf of the appellant. His evidence supported the view that the worker was suffering from a drug-induced psychosis, and was put into evidence before Judge Walker in support of some contention that the chain of causation from the work injury to the partial incapacity for employment had been broken by the appearance of the drug-induced psychosis. It was put by counsel that the evidence was made known and revealed by tendering it, and that litigation privilege was thereby lost, at a time when it was said not to be an issue (and it distinctly was said by counsel for the worker not to be an issue) whether the psychosis was caused by the work injury. 19 Notwithstanding the earnest presentation of the contention that there was some prejudice of a significant order relating to the revelation of Dr Revai's opinion, I do not think that this is a weighty consideration for the form of order which the Court of Appeal should make. 20 The effect of what the employer asks is that we should preclude the possibility of any amendment being made. As I have already indicated, I offer no encouragement for any amendment or for an application for one. However the grounds of dissatisfaction with the decision under appeal do not include any consideration which would extend so far as to preclude the possibility of an amendment being made. It may or may not become appropriate to allow an amendment. The powers of the District Court to allow an amendment remain available if the worker ever asks for one, and in my opinion the Court of Appeal should not preclude the exercise of the power of amendment if it should ever prove to be proper to exercise it. 21 Counsel took us to several instances in which limitations have been imposed upon the terms or issues in retrials, a most striking instance being de Beever v Katsirilos [1971] Victorian Reports 401: see particularly Winneke CJ at page 406. The decision in that case was highly special to its facts. The learned Chief Justice foresaw some possibility of manoeuvre on the part of the defendant at a retrial which his Honour regarded as being, or as potentially being, unfair. I see no analogy in the present case. de Beever v Katsirilos is an instance of a very rare kind of intervention on appeal and does not guide me to any opinion that there should be a restriction in this case. 22 A retrial after an appeal is not a case of double jeopardy. With the qualification to which the parties have agreed, the ordinary course of a retrial on all issues is appropriate in the present case in view of the shortcomings of the decision under appeal. 23 The Court should make an order specifically setting aside the amendment which his Honour made to the Application for Determination and the Answer. 24 I propose the following orders, 1. Appeal allowed. 2. Paragraphs 1 and 4 of the orders of 6 July 2004 are set aside. 3. The amendments to the Application for Determination and to the Answer referred to at paragraph 9 of the judgment of his Honour Judge Walker QC are set aside. 4. Order that the application for weekly compensation, interest on arrears of weekly compensation, and medical expenses be remitted to the District Court to be heard and determined according to law, and direct that on the further hearing the District Court be constituted by a judge other than his Honour Judge Walker QC. 5. Order that each party to the appeal pay his or its own costs of the appeal. 25 MASON P: I agree. We were taken to medical evidence arguably supporting the wider claim for compensation in relation to a drug-related psychosis stemming directly or indirectly from the work injury. This material only heightens the mystery why the amendment was not sought at the trial. If application to amend is made, one assumes that the District Court will closely examine why that course was not taken at the trial. 26 This said, I agree with Bryson JA's reasons and in particular with his conclusion that this Court should refrain from exercising its power to make supplementary orders as it thinks fit, being orders as sought that would restrict the course of the limited new trial by reference to the way the case was run at the first trial. That will be a matter for the District Court to determine in the light of all of the circumstances. 27 ROTHMAN J: I agree with the reasons of his Honour Bryson JA, and the reasons of the Acting Chief Justice and the orders that are proposed. Once the matter is remitted to the District Court, the parties subject to the terms of the remitter imposed by this Court are at liberty to approach the Court and it is for the District Court to exercise whatever discretion they may have. WELSH: Just one matter, I did make application for a certificate under the Suitor's Fund. It hasn't been expressly referred to and I just wondered whether that was something that-- MASON P : I think that is only made if an order for costs is made against a respondent. BRYSON JA : I am not sure of that. I think we should check that. WATSON: The usual form of the order I think might answer the problem internally. The usual form of the order is if otherwise entitled-- BRYSON JA : No that refers to financial qualification. MASON P : Section 6(1) of the Act says "If an appeal against the decision of a Court to the Supreme Court on a question of law or facts succeeds, the Supreme Court may on application grant to the respondent to the appeal an indemnity certificate". Now, I don't know what an indemnity certificate is then defined as. Subsection 2 provides that the respondent granted such a certificate shall be entitled to be paid from the fund (a) an amount equal to the appellant's costs and (b) fifty per cent or such other percentage as is prescribed of an amount equal to the costs incurred by the respondent and not ordered to be paid by any other party, with a certain proviso. I may have-- WELSH: Sorry, I am not in a position to deal with it and it hadn't occurred to me to have a look at it before I came up here. "If otherwise entitled--" I understood that was a general type of order and I didn't appreciate that there might be other circumstances. MASON P : You don't ask us to vary the no-order as to costs order, but you ask for a certificate under the Suitor's Fund Act framed in terms of, if qualified? WELSH: Yes. MASON P : Mr Watson, that doesn't affect you? WATSON: It doesn't affect me, no MASON P : As I have not already said so, the Court makes the orders proposed by Bryson JA, and an additional order that the respondent have a certificate under the Suitors' Fund Act if qualified. Order 2 at para 4 has been altered under Slip Order made by Court of Appeal on 31 May 2005. ********** 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.