Appeal Struck Out for Lack of Leave to Appeal Interlocutory Order

The Court of Appeal dismissed an appeal, holding that the claimant was not denied procedural fairness and that the order was interlocutory, requiring leave to appeal under s 32(4) of the Industrial Relations Act 1996 (NSW).

[ADDRESS] of Appeal

CITATION : [COMPANY] ([NAME] v. [NAME] [2000] NSWCA 280 FILE NUMBER(S) : CA 40767/99 HEARING DATE(S) : 06/10/2000 JUDGMENT DATE : 6 October 2000

PARTIES : [COMPANY] ([NAME]) (Appellant) [NAME] (Respondent) JUDGMENT OF : Powell JA at 1, 20; Stein JA at 18; Heydon JA at 19

LOWER COURT JURISDICTION : [ADDRESS] COURT CC 9824/95 FILE NUMBER(S) : LOWER COURT ARMITAGE CCJ JUDICIAL OFFICER :

COUNSEL : [redacted] [NAME] (Respondent) SOLICITORS : [redacted] [NAME] (Fairfield) (Respondent) CATCHWORDS : [NAME] to Court of Appeal - Appeal on point of law - Leave to appeal required from interlocutory order - Alleged denial of procedural fairness - Order for new trial - Leave required. ND DECISION : Appeal struck out as incompetent.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40767/99 CC 9824/95

POWELL JA STEIN JA HEYDON JA

6 October 2000

[COMPANY] ([NAME] v. [NAME])

JUDGMENT 1 POWELL JA: The matter which is before the Court today purports to be an appeal from a decision by Armitage CCJ in the [ADDRESS] on an application made to that Court by the present Respondent ("[NAME]") for the review by that Court of an Award made by [NAME] on an Application for a Determination which had earlier been filed by [NAME]. 2 In the proceedings before him [NAME] had found that [NAME] had failed to make out a case that he had sustained a compensable injury, and it was for that reason that the Award was made in favour of the present Appellant ("[NAME]"). 3 The application for review came before Armitage CCJ on 29 March 1999. 4 The transcript of that hearing would indicate that the application for review was conducted on the transcript of the hearing before [NAME] and with the various exhibits which had been tendered on that hearing. 5 Because the grounds upon which, in the application for review, the review was sought were cast in very wide, and not entirely informative, terms, Armitage CCJ clearly enough, formed the view, that, unless a degree of precision were brought to the proceedings, [NAME] could be subjected to unfairness in the sense that it would be called upon, without prior notice, to deal with a wide variety and diverse number of issues. 6 That being so, towards the latter part of the hearing before him, Armitage CCJ indicated (CAB 94) his view that the fairest way of proceeding was to invite [NAME], who then appeared, as he does today, for [NAME], to prepare some written submissions. 7 His Honour then indicated (CAB 94) that the first of the questions to which those submissions should be directed was the question whether the application before him was in truth an application for a review or an appeal, in the former of which the merits of the case could have been reviewed and in the latter of which the only questions available for submission on the part of [NAME] would be questions of law. 8 The second question which his Honour identified was whether, if a review of a decision of a Commissioner still existed - a question which was the subject of debate following the introduction into the [ADDRESS] of s 34A - whether the [ADDRESS] governed an application for an extension of time. 9 After some further comments his Honour continued (CAB 95): " I suppose what comes after that is the arguments, two sets of arguments. Firstly, if it is an appeal and it is limited to a question of law, what are the questions of law you say are raised and what are the errors of law that you say the Commissioner has committed. If it is a review, in what respects do you say the Commissioner is in error in the way he looked at the evidence? That is to say in what way did he make mistakes in the way that he looked at the evidence and came to conclusions and what are my powers to substitute my own conclusions."

Then, a little later his Honour concluded (CAB 96): "Applicant to file and serve written submissions as to whether present Application is an appeal or a review, whether court has power to extend time for a review application to be filed. That only arises, of course, if the proceedings are in review. Applicant to file and serve written submissions within two months of 29 March, that will take you up to 29 June (sic). Applicant to file written submissions by 28 June 1999. Respondent to file and serve written submissions by 9 August 1999."

10 Within the time limited, [NAME] filed his written submissions. An examination of those submissions - which regrettably were not in the Appeal Books and which have been obtained by the Court only during the course of today, and as the result of the Court's insistence on seeing them - the submissions went far beyond the legal questions whether [NAME]'s remedy was, in truth, a review or was in the nature of an appeal, and, if the latter, what were the errors of law which it was alleged [NAME] had made. Far from being limited to those questions, the submissions extended to deal with the merits, and, in particular, the manner in which the [NAME], so it was said, had made erroneous findings based on the materials which were before him. 11 The submissions filed on behalf of [NAME] were, as we have been given to understand, filed within two months after the submissions filed on behalf of [NAME]. While the bulk of those submissions, which regrettably are not very extensive in nature, dealt with the two issues particularly identified by Armitage CCJ they do conclude with the following: "Finally, even if the Court decides the above matter is a "review" it is submitted that this [ADDRESS] would reach the same conclusion for the same reasons as did Commissioner Turner."

12 It is clear that, having received the submissions from each of the parties, Armitage CCJ did not have the matter relisted for further argument but proceeded to deal with the application on the basis of the matters which had been raised in the written submissions. In the judgment which he delivered on 9 September 1999, Armitage CCJ concluded that the Commissioner's findings and Award should be discharged and that there should be a new trial of the Application for Determination, [NAME] to pay the costs of the review and the costs of the original hearing before [NAME] to abide the result of the new trial. 13 In the Amended Notice of Appeal which was filed on behalf of the [NAME] (RAB 44-46) the principal ground of appeal which was taken was that, having regard to the Orders made by Judge Armitage on 29 March 1999, and the later fact of his Honour delivering judgment without having the matter relisted for oral argument, [NAME] had been denied procedural fairness. 14 Now that we have had an opportunity to consider the submissions which in fact were provided to his Honour, and, in particular, the manner in which, despite the more extended nature of the submissions filed on behalf of [NAME]'s submissions dealt with the merits of the review hearing before his Honour, we have concluded that there is no substance in that principal ground. 15 Even if the ground had been made out, the fact that his Honour directed a rehearing before the Commissioner means that the order which he made was interlocutory in its nature, and accordingly, by reason of the provisions of s 32(4) of the [ADDRESS], notwithstanding the amounts which might ultimately be awarded, if an award were made in favour of [NAME], the matter is one which requires leave. 16 We have looked at the other grounds sought to be raised in the Notice of Appeal but they are not such as, in our view, would lead the Court to grant leave to appeal. 17 In all the circumstances I would propose that the appeal be struck out as incompetent, the Appellant to pay the Respondent's costs in the appeal.

18 STEIN JA: I agree.

19 HEYDON JA: I agree.

20 POWELL JA: The orders of the Court are thus those which I have proposed.

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