Carlton v Simon Blackwood

Akins v National Australia Bank (1994) 34 NSWLR 155

Webb v Q-COMP [2004] QIC 75; (2004) 177 QGIG 771

SG Wright, solicitor, Keiran Lawyers on behalf of the applicant

**[1] This application is for leave to hear further evidence on the appeal from Commissioner Knight's decision of 10 August 2015.

[2] The capacity to allow further evidence on an appeal of this nature is recognised in s 561(3) of the Workers Compensation and Rehabilitation Act 2003 where it is provided "the appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard". It is a provision which is of similar effect, but not identical, to the provision in s 348(2) of the Industrial Relations Act 1999.

[3] The applicant does not identify the further evidence which the applicant would lead if leave were granted. In the applicant's written submissions it is contended that additional evidence from Ms Gallinaro and Ms Beams would assist the Court to effectively consider the central issues that need to be determined. Ms Gallinaro was called for the respondent in the Commission hearing. Ms Beams was not. She was, at the relevant time, the Injury Risk Management Adviser for the Presbyterian and Methodist School Association. Mr Wright concedes that he does not know what evidence those persons might give if they were called.

[4] While this court is not bound by the decisions of other courts which have dealt with applications to call extra evidence, the principles which have been developed can assist in determining an application such as this. So much was recognised by Hall P in MacDonald v Q-COMP[1]. In Akins v National Australia Bank[2] the New South Wales Court of Appeal considered the relevant principles of an application to call fresh evidence. Although the rule that court considered only allowed fresh evidence on special grounds, the criteria which were applied assist in cases like this. The test that court administered had three conditions:

(a) The evidence could not have been obtained with reasonable diligence for use at the trial;

(b) The evidence must be such that there is a high probability that there would be a different result; and

[5] The applicant does not satisfy either of the first two conditions. I note that the second condition was applied by Hall P in Webb v Q-COMP[3]. I note further that the use of the word 'additional' in describing 'evidence' in s 561 strongly suggests that it must be evidence which was not before the Commission originally. It would not be consistent with the purpose of s 561(3) to allow witnesses to be called whose evidence would simply revisit an issue already considered by the Commission.

[6] For that reason an applicant must be able to identify the evidence sought to be called. Otherwise the court has no prospect of assessing the application and determining whether any proposed evidence carries with it the high probability that there would be a different result if that evidence was allowed to be called.

[7] The applicant, in effect, goes no further than saying that there are issues which should be explored. Nothing has been said to explain why that exploration could not have been undertaken in the hearing.

[8] The applicant proposes that the two witnesses identified above be summoned to appear. In the ordinary course, a person who is called in that way may not be cross-examined by the party who called him or her. Thus, the applicant would be calling a witness in circumstances where she would not know what the witness might say.

[9] The application is premised on calling witnesses who I can describe as being 'from the other side' in the hope that something favourable might emerge. That is nothing more than a fishing expedition, and provides no basis for allowing additional evidence.

[1] (2008) 187 QGIG 118.

[2] (1994) 34 NSWLR 155.

[3] [2004] QIC 75; (2004) 177 QGIG 771.