LASAITIS v EMAIL LTD [1990] NSWCA 113

LASAITIS v EMAIL LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 10 May 1990, 23 May 1990 [1990] NSWCA 113

WORKERS' COMPENSATION — appeal — point of law — whether appeal on facts — appeal lodged before amendments to s32 introduced by Compensation Court (Amendment) Act 1989 whether amendments have retrospective operation — held: (1) Having regard to Schedule 4 to the amending Act of 1989, appeals made in respect of an award given in proceedings commenced before the commencement of the amendments of 1989 are not affected by the wider appellate right now given by s32(2) Accordingly the subject appeal was limited to points of law; (3) No relevant point of law being shown, the appeal should be dismissed.

JUDGES — reasons — appeal — adequacy of reasons — point of law — possible alternative basis to find for worker — whether live issue at the hearing — held: (1) A judge of the Compensation Court is obliged to state findings adequately for the exercise of the appellate right provided under the Act; Pettit v Dunkley [1971] 1 NSWLR 376 applied; (2) But a trial judge is not obliged in reasons to deal with issues which were not in dispute at the conclusion of evidence and argument; (3) An appellate court must avoid the injustice that can arise from permitting a point, not seriously in dispute at first instance, to be raised for the first time on appeal. Banque Commerciale en Liquidation v Ackil Holdings Limited, High Court of Australia, unreported, 9 April 1990 applied; (4) On the facts, it was not shown that the trial judge had failed to deal with issues in dispute and any such failure could be adequately met by an application for review under s17(4) of the Compensation Court Act 1984,

Compensation Court Act 1984, s17(4),32. Compensation Court (Amendment) Act lgag, s3, Schedule 1, CL12; Schedule 4, CLS.