Traversi Jones Pty Ltd v Kirk [1993] NSWCC 1; (1993) 9 NSWCCR 1 (3 February 1993)

[1993] NSWCC 1; (1993) 9 NSWCCR 1 (12655-92)

TRAVERSI JONES PTY LTD v. KIRK

Compensation Court of New South Wales: Moroney J

3 February 1993

APPEALS - APPEALS FROM COMMISSIONERS OR REGISTRARS - HEARING - LEAVE TO ADDUCE FRESH EVIDENCE - PROCEDURE - WITNESS FAILING TO COMPLY WITH SUBPOENA - DUTY TO SEEK ADJOURNMENT - LEAVE TO CALL WITNESS IN REVIEW PROCEEDINGS - COMPENSATION COURT RULES 1990, PART 30, RULE 5

PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - EVIDENCE - WITNESS FAILING TO COMPLY WITH SUBPOENA - DUTY TO SEEK ADJOURNMENT - LEAVE TO CALL WITNESS IN REVIEW PROCEEDINGS - COMPENSATION COURT RULES 1990, PART 30, RULE 5

P.M. Kavanagh, for the applicant

Mr. O'Rourke, for the respondent

Cur adv vult

MORONEY J: The applicant employer has filed a notice of motion to review a decision of Commissioner Cross. That decision or determination, more properly called, was made on 25 September 1992 when the learned Commissioner made an award in favour of the respondent worker.

THE NOTICE OF MOTION FOR REVIEW AWAITS HEARING.

The notice of motion before me today is one wherein the applicant employer seeks an order that leave be granted to issue a subpoena to give evidence upon one Mr Ian McWilliams of 14 Hillview Avenue, Penrith South, returnable on the day of the review. The notice of motion is incorrectly entitled in that the applicant is shown to be the worker and the respondent the employer.

The notice of motion seeks the order, it says, pursuant to Part 30, rule 5(2). It is oddly framed. I do not see that the leave of the Court is necessary for the issue of the subpoena. If one looks at the terms of Part 30, rule 5, what is said is this:

" (1) On a review under section 36 of the Act of the decision of a commissioner, evidence that was not adduced before the commissioner shall not be adduced without leave of the Court.

(2) The Court may if it thinks fit refuse to grant leave under subrule (1) unless it is satisfied that there was good reason why the evidence is not adduced before the commissioner."

What in effect the applicant employer is asking me to do today is not to give leave to issue a subpoena for the attendance of Mr Ian McWilliams, as stated in the notice of motion, but it is asking me to grant leave for Mr McWilliams to be called on the review. I would have thought that such an application more properly should be made to the judge dealing with the review application or notice of motion.

The circumstances set out in the affidavit of Norman, Able and Ryrie, solicitor for the employer, surrounding the failure by the respondent to call Mr McWilliams in the proceedings before Commissioner Cross, I have noted. Shortly stated they are that a subpoena was served upon Mr McWilliams for his attendance at that hearing. Apparently after the service of the subpoena Mr McWilliams telephoned the solicitor for the employer and said:

"I do not wish to come to court to assist Traversi Jones because of the way in which I finished up with that company myself."

The solicitor replied:

"I simply want you to give evidence as to what you know of the circumstances but I would not inconvenience you more than necessary and I suggest that you need not come to court first thing but if you would simply agree to attend and ring me at 11 am on the day of the hearing then we could make a decision at that time."

Mr McWilliams replied:

"I will ring you on the day."

In his affidavit Mr Ryrie goes on to say that Mr McWilliam did not make contact with him as arranged on the day. In paragraph 9 of the affidavit the solicitor says this:

"As a result of this telephone conversation I formed the view that Mr McWilliam was a hostile witness and I did not believe that his evidence would assist the court beyond the evidence that was to be presented by the respondent through witnesses whose attendance had already been arranged."

In those circumstances the respondent employer, as it was in the proceedings before Commissioner Cross, opted to continue or to complete its case without calling Mr McWilliam, as he is called in the affidavit or McWilliams, as he is called in the notice of motion.

In his judgment in the matter Commissioner Cross, where he dealt with the issue of the receipt of injury, said this:

"According to the worker he was sacked by Mr McWilliam because the latter did not believe that he had hurt his back. I note that although Mr McWilliam was apparently contactable he was not called to give evidence to refute what the worker alleged."

I am of the view that the proper course for the respondent to have taken on the day in question if he thought Mr McWilliams evidence was of vital importance was to have applied for an adjournment on the basis that he was not at court and then to have sought to have enforced the subpoena which had been served upon him; that application, however, was not made and the employer elected to proceed without Mr McWilliams evidence.

A statement from Mr Ian Stewart McWilliams dated 12 December 1990 has been tendered on this application and I have had regard to it. It was marked exhibit A in this application. It is to be returned to the applicant employer's representatives and not kept in the file. There is nothing in that statement which assists me in determining whether or not there was good reason why the evidence in that statement or any other evidence of Mr McWilliams was not adduced before the Commissioner.

If it were for me to determine today whether or not leave should be granted under subrule (1) of rule 5 or Part 30, rule 5, I, for the reasons which I have already stated, would not be satisfied that good reason had been shown and I would not grant leave.

However, the notice of motion before me, is for leave to issue a subpoena to Mr McWilliams to give evidence on the hearing of the review. To the extent that it is necessary for me to do so I will give leave for a subpoena to be issued for the attendance of Mr McWilliams on that date. I feel then that application should be made to the trial judge for an order based upon the evidence before him for leave under Part 30, rule 5.

In light of the evidence and the submissions tendered and made on the hearing of this notice of motion I order that the review be not heard before me. A transcript should be taken out of not only the evidence and the submissions but also the reasons which I have given.

The formal order which I make in the matter is this:

Leave be granted to the applicant employer to issue a subpoena upon Mr Ian McWilliams to appear on the day of the hearing of the review; this does not mean that leave has been granted to the applicant employer to adduce evidence from him on that date. Under Part 30, rule 5 explicitly I have made no such order.

I stand the review over to a date to be fixed.

The applicant employer is to pay the respondent worker's costs and the review is not to be listed before me.

Orders accordingly

Solicitors for the applicant: Moray & Agnew

Solicitors for the respondent: Baker Ryrie Rickards Titmarsh