Faustmann Bros Pty Ltd v Hans Traut

[1983] FCA 63

Re: FAUSTMANN BROS. PTY. LTD.
And: HANS TRAUT
No. NTG 7 of 1983
Workmen's Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION Bowen C.J.
Evatt J.
Sheppard J.

CATCHWORDS

Workmen's compensation - Appeal against refusal to grant adjournment of hearing dates of appeal from decision of Tribunal - New evidence - Whether trial Judge erred in exercise of discretion.

HEARING

SYDNEY

#DATE 12:4:1983

ORDER

The appeal be dismissed with costs.

JUDGE1

This is an appeal brought under s.24 of the Federal Court of Australia Act 1976 from a decision of a Judge of the Supreme Court of the Northern Territory given on 17 March last in which his Honour refused an application brought by the appellant for an order that the date fixed for hearing of an appeal before that Court be vacated and that the appeal be heard on some date in July next. The dates fixed for the hearing of the appeal are 18, 19 and 20 April 1983.

The proceeding before the Supreme Court is an appeal by an employer, the appellant herein, from a decision of the Workmen's Compensation Tribunal made on 13 May 1982 under the provisions of the Workmen's Compensation Act of the Northern Territory. The workman (the respondent herein) was the successful applicant in the proceedings before the Tribunal. Under its decision he became entitled to the payment to him or on his behalf of an amount totalling $100,000 approximately.

Briefly, the history of the matter is that the applicant for compensation (the respondent) is a married man with a dependent daughter. He suffered injuries on 24 December 1974 when a motor vehicle he was then driving on his way to or from work came into collision with another motor vehicle. The respondent is presently aged about 60 years and an action has been brought in the Supreme Court of the Northern Territory by him against the owner/driver of the other vehicle. In that action, the respondent is claiming damages for the injuries he suffered on 24 December 1974. In this proceeding, which is set down for hearing on 20 June 1983, the respondent has instructed the same solicitor as appears in the present appeal whilst the defendant to the action has instructed another firm of solicitors not connected with the present appeal.

Subsequent to the decision of the Workmen's Compensation Tribunal on 13 May 1982 the appellant employer filed an appeal in the Supreme Court of the Northern Territory. The appeal was filed on 9 June 1982. On or about 4 November 1982 the hearing dates in April 1983 earlier referred to were fixed by an officer of the Supreme Court.

After the decision of the Tribunal the appellant's solicitor was informed by a solicitor in the employ of the solicitors for the defendant in the third party proceedings that the defendant had had the respondent medically examined by specialists in Adelaide and that it was the opinion of those specialists that any disability that the respondent might be suffering was not the result of injuries he may have suffered in the motor car accident.

This information was received by the appellant's solicitor in or about November 1982. Thereafter he unsuccessfully attempted to obtain the name of the two specialists until the end of February 1983 when the respondent's solicitor in the present appeal gave him a copy of the report of each specialist.

The two specialists are Dr McCulloch and Dr Shaeffer. It was ascertained that Dr McCulloch is absent in China and that Dr Shaeffer is unavailable to attend to give evidence in Darwin on the days fixed for the hearing of the appeal in April because of commitments in Court in South Australia.

On 15 March 1983 the appellant's solicitor applied to a Judge of the Supreme Court of the Northern Territory seeking orders that the hearing of the appeal be adjourned and that the dates fixed for its hearing be vacated. The application was heard on 17 March and was dismissed; it is from the dismissal of the application that this appeal is brought.

The principles which guide the Court in determining whether or not an appeal brought from such a decision should be allowed are well settled. We refer only to the judgment of Deane J. in Squire -v- Rogers (1979) 27 A.L.R. 330. There his Honour said:

"The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy -v-Conroy (1917) 17 S.R. (N.S.W.) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s.27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion."

There has been new evidence received in this case pursuant to s.27 of this Court's Act. That evidence consists substantially of reports from the two doctors who are unable to be present to give evidence in Darwin next week. The reports were not tendered before his Honour, apparently because the appellant's solicitor, although he did not say as much to his Honour, thought it might be improper to tender them in case his Honour was the Judge who would hear the appeal. Be that as it may, the learned Judge was denied the benefit of seeing the reports which have been before us.

We have had the benefit of a full transcript of the argument and discussion which took place before his Honour. His Honour's reasons, which begin really with remarks he was addressing to the solicitor for the appellant, are as follows:

"His Honour: You see, there's nothing to stop you from renewing your application before the judge at the hearing and he may see things in a different light then but you see, at the moment, I see you as not being able to get a couple of experts that you stumbled on by accident, as to whose evidence, there is very little information before me. I don't have any reports of theirs. I don't really know what they're going to say. I don't know how expert these men are compared with other available experts. The respondent has indicated his readiness to submit himself to medical examination by other specialists and I'm sure that you could possibly go to the most eminent men you could find and that the respondent in these proceedings would attend, subject of course, to his costs being paid and so forth. But just let me say this though, in all of these proceedings there is always some merit on both sides and I'm not saying, Mr Withnall that there's no merit on your side. If there were absolutely no possible prejudice to the respondent, Mr Trout, and if he were going to be totally unaffected by this then I'd see no reason not to grant your application but I do see the delay as being inimical to his interests. He wants finality, he's not a young man. It's very well to talk about paying him money but if he's got money that he might have to disgorge later, most people would be most reluctant to take that sort of money, knowing that they might spend some of it and then have to find an equivalent amount to give back later on. I think that's a very prejudicial position for a party to be in and so I don't blame Mr Trout for not asking for a payment in advance when he mightn't be able to keep it and if he spends it, he might have to go looking around for some way to pay it back and perhaps even run the risk of bankruptcy or some such matter.

I have weighed his interests against the interests of your client and what your client really says is that it has quite by accident learned about two doctors who have given opinions favourable to your case. There must be a limit to that. That could happen - you could have discovered those doctors in another month's time. There must be a limit and it's there where the court's discretion comes in. I think that your client has had the opportunity to find the experts it needs and the mere fact that it has, as I say, accidentally and fortuitously discovered that there are other experts who might have helped it's case a bit better, doesn't to my mind appear to justify vacating the hearing date at this time and in these proceedings.

I therefore dismiss the application."

There is only one matter in those reasons which may be thought to provide the basis for the disclosure of any error on his Honour's part. It would seem to us, with respect, that he may have given too much emphasis to his view that the evidence of the doctors, that is to say the expert witnesses to whom his Honour refers, had been stumbled upon by the appellant by accident. His Honour said that early in his reasons and later said:

" . . . what your client really says is that it has quite by accident learned about two doctors who have given opinions favourable to your case."

Still later he said:

"I think that your client has had the opportunity to find the experts it needs and the mere fact that it has, as I say, accidentally and fortuitously discovered that there are other experts who might have helped it's case a bit better, doesn't to my mind appear to justify vacating the hearing date at this time and in these proceedings."

It would seem to us, with respect, that the important consideration was that the two expert witnesses were known and identified. How the fact that they could give relevant evidence had come to the attention of the appellant's solicitor was not really the most relevant factor. Furthermore, it may not have been correct to say or rather to take the view, as his Honour did, that their evidence had simply been stumbled upon by accident.

Because of the view we take of what his Honour has said about the matter we have looked very carefully at the totality of the reasons which he has given for his decision. It seems to us that on balance there is to be found in his reasons the necessary weighing of the various contentions put on behalf of the parties and the taking into account of the various matters what should have been taken into account. Although we think there may be the colour of error in his Honour's reasons upon the basis of what we have earlier said, we do not take the view that what he has said is so clearly erroneous as to warrant the interference of this Court.

It must be remembered, as we have earlier said, that his Honour did not have the benefit of the two reports and no reason was given to him as to why they were not before him. His Honour could not in those circumstances be expected to take the strongest view about the desirability, from the appellant's point of view, of there being called the evidence which the two doctors were able to give.

More importantly, his Honour has said at the beginning of his reasons earlier quoted, "There is nothing to stop you" - that is the appellant - "from renewing your application before the Judge at the hearing". By that we do not take his Honour to have meant that he would expect the application necessarily to be renewed at the commencement of the hearing. It seems to us that what his Honour had in mind was that it would be a matter for the trial judge to determine, upon what he was told of the case and of the problems which the parties had, the best way to manage the litigation which was before him. It may be that consideration would need to be given, after some evidence had been heard or after the record before the Tribunal had been read, to an adjournment to enable the doctors to be called at a particular point of time, not too far distant, or that consideration might need to be given to the taking of the evidence of one or both on commission. It may be that the matter could be overcome simply by the tender of the reports, whether by consent or pursuant to the provisions of s.26D of the Evidence Act of the Northern Territory. All these would be matters very much the better able to be dealt with by the trial judge who would be well seized of the issues and of the evidence, or at least the nature of the evidence, each party desired to lead.

It seems to us that when one has regard to that view of his Honour that the application might be renewed before the trial judge, one could not possibly come to the conclusion that what his Honour has said reveals any error.

We would further add that, even if one were to take that view contrary to the opinion which we have expressed, the matter would then be for us to determine. We would be of the view that in the light of all the circumstances the better course would be to let the matter proceed and to be managed as we have indicated by the trial judge. We would only add that nothing that we have said is intended by us in any way to bind the trial judge as to the manner in which the matter is heard or on the question of whether he does in fact decide to permit any adjournment of the matter once the hearing has begun.

For the reasons we have given we order that the appeal be dismissed with costs.