S AND M RYNEHART t/as THE FASHION HOUSE v WARREN [1989] NSWCA 181

S AND M RYNEHART t/as THE FASHION HOUSE v WARREN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 21 June 1989, 21 July 1989

[1989] NSWCA 181

PERSONAL INJURY — WORKERS COMPENSATION — s9(1)(a) OF WORKERS' COMPENSATION ACT 1926 — DATE OF COMMENCEMENT OF COMPENSATION PAYMENT ORDERS 1.Appeal upheld and the award made on 30 March 1988 in favour of the respondent set aside; 2. The matter be remitted to the Compensation Court for the making of a further award; 3.The respondent to pay the appellant's costs of this appeal and have a certificate under the Suitors Fund Act.

Priestley JA I agree that the law applicable to this case is as stated by Meagher JA. IL alsoshare Clarke JA's concern arising from the fact that the decision of this Court, covering the point in issue, and leading to the upholding of the appeal in this Court, was not relied on in the court below. However, for the reasons given by Clarke JA, that does not help the respondent, in the circumstances of the case.

The appeal should be upheld and orders made as proposed by Meagher JA.

Priestley JA Although I have some difficulty with the reasoning in State Rail Authority of New South Wales v Belgrave, [1982] 2 NSWLR 738 counsel for the respondent was unable to distinguish that decision and did not seek leave to reargue it. In these circumstances it should be followed and, subject to one matter, determines the present appeal.

My reservation concerns the failure of the appellant to raise Belgrave in the Compensation Court or to argue the point for which Belgrave stands as an authority. If counsel for the respondent had been able to show that there was a possibility that if Belgrave had been raised additional evidence could have been called to meet the point it would have been inappropriate to allow the appellant to rely on the decision in this court. However, counsel was unable to suggest that possibility and was forced back onto the submission that if he had been confronted with Belgrave in the Compensation Court he may have been able to recast the respondent's case in order to avoid the impact of that decision. The difficulty with his submission, as I understood it, was that the evidence given by the appellant, and accepted by his Honour, placed her case on a basis which fell squarely within Belgrave. Any recasting would, it seems to me, have involved the abandonment of her evidence.