19 In State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 Spigelman CJ (with whom Basten JA and Bryson JA agreed, the former adding some relevant further comments of his own) discussed the notion of appeal by way of review under s 352. The case concerned (as here) the application of the WCA, ss 9A and 11A. Mr Chemler claimed to have been subjected to racial harassment and vilification at the workplace causing psychological injury. An earlier Court of Appeal decision ([2006] NSWCA 249) had set aside an earlier decision of the Presidential member. The complaint made by Mr Chemler on the second appeal in point of law to the Court of Appeal (the WIM Act, s 353 (1)) was that the Presidential member should have given respect to the conclusion of the Arbitrator who saw the witnesses and should, at least, have remitted the matter to a "fact finder" so that "the witnesses could be heard and seen". This submission carried with it a proposition involving a very limited notion of "review" by the Presidential member, and a limit upon the power to make a new decision under s 352 (7).
20 The Chief Justice made clear at [22] and [28]-[30] that the task of the Presidential member was to conduct an appeal by way of review on the merits and that this course was an important safeguard for the proper operation of the legislative scheme. The Chief Justice stated the following at [28]-[30]:
"[28] The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of 'review' instead of 'appeal' with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
[29] That line of authority is also inconsistent with the kind of restriction on the powers of a Presidential member for which the Appellant contends. (See Mansini v Director General of Education (1990) 6 NSWCCR 1 at pp4-20; Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds [2007] NSWCA 16 at [133]-[134].)
[30] A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view . If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends."
(emphasis added)
21 It is necessary to refer to the cases referred to by the Chief Justice at [29] at some length to ensure that the content of the Chief Justice's reasons are pellucid.
22 In Mansini at 4-20 Burke CCJ in a comprehensive analysis, set out the notion of "review" in the Compensation Court Act 1984 (NSW), s 36(1), which was in the following terms:
"(1) Where a commissioner or a registrar makes a decision or does any other act in any proceedings, the Court may, on application by any party, review the decision or act, and may make such order by way of confirmation, variation or discharge or otherwise as the Court thinks fit."
23 He made it clear (at 19-20) that "review" was a word of wide import, not limited by the notion of appeal in the strict sense of finding error. Given that his Honour's views were shortly thereafter subsumed by comprehensively expressed views in judgments of this Court, it is unnecessary to set out in full his Honour's views. Nevertheless, it is of assistance to understand (because Spigelman CJ referred to them) that Burke CCJ's views were that "review" in this context contemplated an unfettered reconsideration or re-evaluation of the decision below and of the material upon which it was based. The judge was not bound by the parameters of the usual forms of appeal, whether by way of rehearing or in the strict sense.
24 In Watson at 199-206, Kirby P considered the meaning of "appeal" and "review" in the context of the same s 36. His Honour concluded at 199 that it was plain from the history of the legislation that a "review" was not an "appeal" as such. Kirby P then analysed the meaning of "review", saying the following at 205-206:
"… [I]t is undesirable to attempt to delimit exactly the scope of a 'review' as contemplated by section 36 of the Act. Given the juxtaposition with 'appeal', I would certainly agree to the appellant's proposition that something wider than the narrow form of reconsideration on an appeal, strictly so called, is contemplated. The fact that there is a decision of the Commissioner which is being 'reviewed' postulated that the Judge of the Compensation Court will not start with a blank page but with a formal decision of a person who, in making it, is 'taken to be the Court'. Thus, unless the 'review' persuades the Judge that the order being reviewed should be varied, discharged or otherwise disturbed, the order under 'review' will stand and be binding between the parties. This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.
I would also agree that the 'review' is not confined to the narrow kind of 'appeal' allowed from discretionary decisions where some error of principle must be shown. Nor do I believe that the intention of Parliament in providing for a 'review' was to make it harder for a party challenging a decision to secure effective reconsideration by a judge than would have been the case if an 'appeal' had been retained as previously provided. There are various reasons for so concluding. They include the two-tiered structure of the Compensation Court; the kinds of matters normally to be assigned to commissioners; the provision (in the future) for a general appeal including on facts from awards of the Judges; the importance of the decisions that may be made by commissioners affecting the welfare of workers and imposing significant obligations of employers; and the fact that (prerogative process apart) no other means of reconsideration is available to a disaffected party than the 'review' provided by section 36.
All of these indicia suggest that, in a proper case, it will be open to a judge of the Compensation Court, conducting a review, to permit evidence to be adduced before him or her. Such evidence may be a repetition of the whole or part of the evidence taken before the Commissioner. Or it may be entirely fresh evidence which was not received before the Commissioner or even offered there."
25 These views of Kirby P might be seen to draw back somewhat from what Burke CCJ had said in Mansini. Aspects of Burke CCJ's description put one in mind of a complete hearing de novo. For example he said in Mansini at 19: "[I]t is essentially a retrial of the issues …", though, shortly thereafter he said, "if a transcript etc is available, it will be usually done on the documents." Kirby P, on the other hand, clearly identified a review as wider than an appeal "strictly so called". His Honour can thus be seen to describe the process as more than merely the correction of error. Even in an appeal by way of rehearing the task of the correction of error takes its place: see Fox v Percy (2003) 214 CLR 118 and the other High Court authorities referred to in Costa v Public Trustee [2008] NSWCA 223 and in Branir v Owston Nominees (No 2) Pty Limited [2001] FCA 1833; 117 FCR 424 at [20]-[32], including Allesch v Maunz [2000] HCA 40; 203 CLR 172.
26 The Presidential member cited Allesch v Maunz in support of the proposition that his task was the correction of error. That was, as these reasons seek to demonstrate, the wrong test for "an appeal by way of review". It was also an incomplete description of the task of an appeal by way of rehearing (though that concept is not the relevant test for his task either).
27 In Watson, Handley JA agreed "generally" with Kirby P's reasons, subject to some comments as to a particular rule of the Compensation Court Rules concerning the recalling witnesses. Hope AJA agreed with Kirby P's reasons, subject to the qualifications of Handley JA. Their Honours took a somewhat more limited view than Kirby P of the calling of evidence on review not called before the Commissioner.
28 Watson was reconsidered in Agfa-Gavaert Ltd v Lee [1992] NSWCA 4. No doubt was cast on its correctness.
29 In Boston Clothing, the submission was put that "review" was more limited than appeal. Kirby P (with whom Waddell AJA and Samuels AJA agreed) described the submission as follows at 587:
"The employer urged that the function of 'review' in this case should be assimilated to the review by a court of a registrar's decision. It was much more circumscribed than an appeal. There was to be no disturbance except 'in an extreme case': see Schweppes (at 183; 72-73) (a case of a 'review' of a decision of a taxing officer of the court). Alternatively, it was put 'review' was confined to cases where there were 'real and substantial grounds for questioning [the] correctness' of the primary decision: see Street J in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 at 383 (a case of a 'review' of the decision of a court-appointed receiver and manager of a company)."
30 Kirby P rejected this submission, saying at 587:
"Care must be taken in lifting these judicial comments out of their context. The meaning to be ascribed to 'review' in statutory provisions for the superintendence of decisions of taxing officers on bills of costs and receivers and managers administering a company under order of the court is quite different from the meaning to be given to 'review' by a judge of a decision of a commissioner of the Compensation Court. As has been pointed out, the commissioner is, for the purpose of the Act, the Compensation Court. The decisions made affect very substantial rights. They have large consequences both for the worker and the employer. They are not confined to minutiae or to detailed administrative or like decisions. They determine substantive entitlements under a statute often intended to provide a means of sustenance for injured workers. There is nothing in the Act which would warrant confining the 'review' performed by a judge to the very narrow circumstances and limited cases suggested by the employer here. On the contrary, the history of the legislation and the nature and purpose of the function assigned to the judge suggest, as Watson held, that a much larger power was conferred by the facility of review. It was a power which no doubt took into account the respective training, experience and office of the judges of the Compensation Court and of the commissioners: see Compensation Court Act , s 22(3). The first submission of the employer is in my view contrary to the holding of this Court in Watson . It adopted an unduly narrow view of the function of the judge on 'review'. It should therefore be rejected."
31 Two aspects should be noted about this passage. First, it restated the view in Watson that the review process was wider than the appeal process strictly so-called and wider than cases of review of the kind exhibited in Schweppes Ltd v Archer (1934) 34 SR (NSW) 178 and Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 referred to in Boston Clothing at 587 and similar cases referred to in Watson at 203-205. Secondly, the views in Watson that recognised a place for respect to be given to the decision of the Commissioner were reaffirmed.
32 In Litynski at 296-297, Gleeson CJ (with whom Handley JA agreed) discussed the notion of review in s 36, pointing out that while it was not a dealing with the whole matter afresh or de novo, it nevertheless was a wide concept. The context of Litynski was an appeal from a decision of Burke CCJ that had been given before Watson and Boston Clothing were published. When the review came on for hearing before Burke CCJ, new counsel sought, without notice, to run an entirely different case with additional evidence. Burke CCJ declined the application. The argument was that, in so concluding, Burke CCJ had unduly restricted the nature of the review. Gleeson CJ disagreed, saying at 296-297:
"… [I]n his judgment in the present case Burke CCJ said that he was prepared to assume that section 36 provided for the widest form of review. He did not mean, and nobody has ever suggested, that the procedure which section 36 allows is the same as the procedure involved on an appeal from a magistrate to a District Court Judge. That is a special procedure which has its origin in historical circumstances discussed in R v. Longshaw (1990) 20 NSWLR 564. A person convicted before a justice of the peace had a right to have the case reheard by a Court of Quarter Sessions whose obligation was to deal with the whole matter afresh, subject to any procedural provisions laid down by statute. Here we are concerned with a discretionary power of review, and, accepting that the concept of review is wider and more flexible than at least most forms of appeal, the very existence of the power of a Compensation Court Judge to decline review raises the possibility of the need to consider questions of the kind addressed by Burke CCJ."
33 Gleeson CJ referred to Watson and Boston Clothing, without any disapproval. Further, though Kirby P was in dissent, as the author of the leading judgments in Watson and Boston Clothing, his comments at 299-230 are apposite:
"Compensation legislation is beneficial and protective of workers who allege that they were injured at work. The facility for a 'review', whether at the behest of a worker, an employer or an insurer, should not be given a narrow construction. This Court has now repeatedly so held."
34 It is important, also, to repeat something said by Kirby P in Australian Gas Light Co v Samuels (1993) 9 NSWCCR 616 at 623 (though in dissent):
" ... The process of 'review' is a special procedure, established within a specialised tribunal, to recognise the particular skills which judges of that tribunal enjoy and refine by years of considering very large numbers of like claims, many of them in large part (as here) determined on paper without oral evidence."