Case: Gibson v Bosmac Pty Ltd (1995) 130 ALR 245
Outcome: cited
assistance in reaching the same conclusion may also be gleaned from the following observations of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 247, when His Honour was addressing analogous provisions in the Industrial Relations Act 1988 (Cth) as follows: It is correct, as counsel observed, that there is no reference in s 377 to the review being a hearing de novo; but the section imposes no restriction on the extent of review. The reason for this is clear; a right of full review is a constitutional precondition to the vesting of the court's powers in a non-judicial officer. His Honour then referred to Harris v Caladine , supra, and continued: The term "hearing de novo" is perhaps ambiguous. It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning that hearing being completely ignored. Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and, of course, where the judge is not bound by the judicial registrar's findings of fact. Like Moore J, I think a review hearing is a "hearing de novo" in the latter sense. A hearing conducted in that way answers the constitutional requirement described by Mason CJ and Deane J, "a hearing and a determination by a judge", without forcing on the parties, as a matter of necessity in all cases, the burden of relitigating all issues. There may be occasions when it will be appropriate to conduct the review hearing as if there had never been an earlier hearing, perhaps because the earlier hearing so miscarried that the evidence became confused and the findings irrelevant or there is so much new evidence that it swamps the earlier. But ordinarily this will not be so. Where parties make a conscientious effort to adduce the relevant evidence at a properly conducted first hearing, by the end of that hearing they will ordinarily have found considerable common ground. It will have become apparent that some issues, on which they initially had inconsistent positions, are irrelevant or peripheral. They will have dropped out of the case. Differences of evidence on other issues will have been reconciled or explained; it may have become apparent to everyone that one particular version of events is more likely to be correct than its competitor. It would be unfortunate indeed if constitutional necessity compelled the court to ignore this narrowing of the dispute. I do not think it does. The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar's findings. The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility. The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar. But the principle does not require the parties to ignore the evidence tendered to the judicial registrar; on the contrary it will ordinarily be sensible for that evidence to be tendered to the judge conducting the review. In most cases, by the review stage, the critical factual issues will be few and well-defined. The course most conducive to the proper conduct of the review will be for the judge, in conjunction with the parties, to identify and concentrate upon those issues. Although nobody is bound by the judicial registrar's findings of fact, and it is important that everybody concerned with the case understands that, the judicial registrar's reasons for decision will usually assist to identify the issues to be determined on the review. ... See also: D'Antuono v Minister of Health (1997) 80 FCR 226 at 228 per Burchett J and Murphy MD, "Judicial Registrars of Federal Courts: Widening the Supervised Exercise of Delegated Judicial Power" (1996) 6 JJA 226.