ACEVSKI v VAN KLOOSTER [1990] NSWCA 2

ACEVSKI v VAN KLOOSTER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and CLARKE JJA 4 October 1990, 4 October 1990

[1990] NSWCA 2

Appeal from Compensation Court — Whether appeal involves "a question of law" — Whether reasoning of trial judge to the conclusion that applicant had not satisfied him of necessary facts involved or can involve such inconsistencies or errors as to constitute a question of law — Appeal dismissed as not involving a question of law.

Mahoney JA The appellant, Ilija Acevski, claimed that on 25 July 1984, on the first day of his employment with the defendants, he fell and injured his back. He claimed compensation accordingly. On 31 October 1988 his Honour Judge Moroney found against his claim and gave an award for the defendants. The appellant has appealed against his Honour's award.

The grounds of appeal as originally filed were perhaps not correctly described as such; certainly they did not appear to satisfy the requirements of Pt15 R8 of the Supreme Court Rules. However, when the appeal was opened Mr Wood, for the appellant, sought leave to amend the notice of appeal by substituting four other grounds as the grounds of appeal. No objection was taken to his so doing and the court gave leave to amend by adding those grounds to the appeal. I shall not pause to say how each ground of appeal was ultimately amended, but the ground which has been relied upon is Ground 4. That ground is in the following terms: "That his Honour erred in law in finding for the respondent in that: (a) There was no basis in the facts on which his Honour could find as he did; (b) His Honour's reasons for the orders that he made demonstrate error in his Honour's reasoning process."

It is accepted that in this appeal the appellant can succeed only if he demonstrates that there was an error and that it was an error of law. I am by no means satisfied that there was in fact any error, but, in deference to the argument which has been advanced by Mr Wood, I can refer briefly to the submissions made in support of the proposition that if there was an error, it was an error of law.