New South Wales Court of Appeal CITATION: Department of Education and Training v Sinclair [2005] NSWCA 402 HEARING DATE(S): 16 November 2004 JUDGMENT DATE: 16 November 2005 JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 8; Bryson JA at 9 DECISION: Leave to amend not granted. CATCHWORDS: PRACTICE & PROCEDURE – Application to amend grounds of appeal – Where proposed new ground would raise an issue that could have been the subject of additional evidence at first instance – Where new ground asserted reversal of onus LEGISLATION CITED: Workers Compensation Act 1987: s11A Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 CASES CITED: Water Board v Moustakas (1988) 180 CLR 491 Department of Education and Training (Applicant) PARTIES: Jeffrey Sinclair (Respondent) FILE NUMBER(S): CA 40011/05 L King SC (Applicant) COUNSEL: MJ Joseph SC, JK Trainor (Respondent) Hunt & Hunt (Applicants) SOLICITORS: Maurice Blackburn Cashman (Respondents) LOWER COURT JURISDICTION: Workers Compensation Commission LOWER COURT FILE NUMBER(S): 18512-03 LOWER COURT JUDICIAL OFFICER: Sheahan J - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40011/05 SPIGELMAN CJ HODGSON JA BRYSON JA Wednesday 16 November 2005 DEPARTMENT OF EDUCATION AND TRAINING v Jeffrey SINCLAIR Judgment 1 SPIGELMAN CJ: This is an application for leave to amend the grounds of appeal by the addition of a new ground 6 in the following terms. "The President erred (par 23 of his reasons, red appeal book 36N) in holding that the onus of proving reasonableness within s11A of the Act lay on the Appellant." 2 One of the issues which already arises on the appeal under grounds 3 and 4 is the determination by Sheahan J in the Workers Compensation Commission of the defence available to an employer under s11A of the Workers Compensation Act 1987. 3 It was common ground before Sheahan J that the Appellant did bear the onus of proof to make out the elements of s11A(1), including whether or not the psychological injury was caused by "reasonable action" on the part of the employer. 4 The issue sought to be raised is an issue of law. It is a matter that is said by Senior Counsel for the Appellant to arise by reason of different views expressed in two cases in this Court as to where the onus under s11A lies. We have not looked at the authorities and do not wish to be understood as confirming or denying that there is any relevant conflict in the authorities. It is sufficient for present purposes to dispose of the matter on the basis that this is an issue which plainly could have been the subject of additional evidence below. 5 The principles identified in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Water Board v Moustakas (1988) 180 CLR 491 are such that this Court would not permit an issue of this character to be raised for the first time on appeal. It could have been the subject of evidence below. Mr Joseph SC who appears for the Respondent indicated that his client may have called further evidence on this matter. Quintessentially, a question of who bears the onus of proof must be of a character that consideration would have to have been given by the party, said to bear the onus, to what additional evidence, whether by way of evidence-in-chief or cross-examination, would have been required in order to discharge an onus. 6 The proceedings below were conducted on the basis that the Appellant bore the onus. This ground of appeal, although it appears to raise a pure question of law, is one which in the context of this case could have been affected by additional evidence. 7 Accordingly, if the Court granted leave to amend the ground would necessarily fail on that basis. For that reason leave to amend should not be granted. 8 HODGSON JA: I agree. 9 BRYSON JA: I agree. ********** 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.