Entrance to Glamour v Pignat

[1999] NSWCA 475

CITATION:	Entrance to Glamour v Pignat [1999] NSWCA 475
FILE NUMBER(S):	CA 40865/98
HEARING DATE(S):	16 September 1999
JUDGMENT DATE:	21 December 1999
PARTIES :	Entrance to Glamour v Nicole Janine Pignat
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 10; Stein JA at 11

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 15816/96
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Walker

COUNSEL:	Appellant - J.D. Hislop QC / J. Callaway Respondent - J. Curran
SOLICITORS:	Appellant - Dunhill Madden Butler Respondent - P.K. Simpson & Co
CATCHWORDS:	Workers compensation; Trial practice
ACTS CITED:	Workers Compensation Act (1987)
CASES CITED:	Bread Manufacturers of NSW (1981) 180 CLR 404
DECISION:	Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40865/98
CC 15816/96

PRIESTLEY JA
MEAGHER JA
STEIN JA

Tuesday, 21 December 1999

ENTRANCE TO GLAMOUR v PIGNAT

WORKERS COMPENSATION - trial practice - main ground of appeal that trial judge had decided worker’s claims on a basis on which employer had no opportunity to be heard - indication during hearing and addresses sufficient to alert employer that trial judge might take course which he did - no denial of natural justice - subsidiary grounds concerning evidentiary points relied on but not accepted - appeal dismissed.

ORDERS
Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40865/98
CC 15816/96

PRIESTLEY JA
MEAGHER JA
STEIN JA

Tuesday, 21 December 1999

ENTRANCE TO GLAMOUR v PIGNAT

1    PRIESTLEY JA: In this appeal from orders made by his Honour Judge Walker in the Compensation Court, the notice of appeal set out four grounds. The fourth of these was abandoned when the matter came on for hearing. 2    The first two grounds.

These concerned a finding of total incapacity made by the judge on the basis of which he made an award pursuant to ss 35 and 36 of the Workers Compensation Act (1987) (the Act). The first ground was that there was no evidence upon which a finding of total incapacity could be made. The second ground was that there was a failure of natural justice in his Honour’s deciding the case on a basis which the applicant/worker (here the respondent) had not contended for and without the judge’s having informed the appellant/employer that he proposed to do so.

3    In my view there was evidence upon which the trial judge was entitled to make a finding of total incapacity. There was reasonably strong evidence to the contrary also. There is no appeal on that question of fact to this court from the Compensation Court. The only way the appellant could succeed in relation to the judge’s finding, the appeal being limited to points of law, would be if the appellant could establish what was asserted in the first ground of appeal, that there was no evidence of total incapacity. Since in my view there was, this ground must fail. 4    The natural justice point depends on this court’s being satisfied that the trial judge decided the case on a basis not advanced by the worker, and did so without giving the employer an opportunity to oppose the position eventually taken up by the trial judge. A further point should be noticed: in some cases a judgment may not automatically be set aside because of denial of natural justice. Occasionally it may appear that it was highly likely that the same judgment should have been arrived at in any event, so that it would be pointless to order a new trial. When that appears sufficiently clearly the court may refuse to uphold the appeal; but that position would have to very clear before the court would withhold relief. 5    In the present case it is unnecessary to consider the last point because I don’t think the appellant has made good the two preceding matters. Although counsel for the worker never pressed the case eventually found by the judge, there was material in the case upon which the trial judge could reach the conclusion he did, and there was in my opinion sufficient indication during the hearing of the case and the addresses that the trial judge might take such a course, for the counsel for the employer to have been able to take whatever steps were thought appropriate to try and meet that case. To me this is critical to the second ground of appeal. When a party has in substance had a real opportunity of meeting the case against that party, then there will have been no denial of the right to be heard. The entitlement to be heard is one of “the twin pillars of natural justice” Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 per Mason and Wilson JJ at 433.
and if no real opportunity has been given to a party to exercise it, then there will have been a denial of natural justice. In my opinion, there was no such denial. 6    The third ground.

This was that his Honour had erred in law in failing to admit into evidence certain documents. In the circumstances of the case, it does not seem to me to be necessary to decide the evidence point. This is because the trial judge in fact considered the material in the documents which were tendered and came to the conclusion that that material could not be of any real assistance to him in regard to the issue or issues in respect of which the documents had been tendered unless there were further evidence brought forward by the employer which could give him a greater understanding of the documents and confidence in what it was said they showed. The employer was given an opportunity to call this further evidence but was unable to do so.

7    The result therefore was that the trial judge did not give any evidentiary weight to the documents, a course he would have been entitled to take had they enjoyed the full status of exhibits formally tendered in evidence. The way the trial judge treated the matter was the same as if they had been in evidence and he nevertheless, for what seems to me to be quite sound reason, gave them no weight. 8    In the result, there can have been no miscarriage occasioned by refusal to admit the documents, if that indeed was what the trial judge did. The third ground therefore also fails. 9    Conclusion.

In my opinion the appeal fails and should be dismissed with costs.

10    MEAGHER JA: I agree with Priestley JA. 11    STEIN JA: I agree with Priestley JA.

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