WYONG SHIRE COUNCIL v GRAHAM and 14 OTHER APPEALS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 13 August 1991, 13 August 1991 [1991] NSWCA 290 PRACTICE AND PROCEDURE — Court of Appeal — multiple appeals on common issues — meaning of s66, s67 Workers Compensation Act 1987 orders made for test cases but for written submissions of principle by other parties to be received. PRACTICE AND PROCEDURE — Court of Appeal — multiple appeals — similar issues — grouping of appeals — test case(s) arrangements to be made — orders made providing for expedition of two test appeals — provision made for parties to other appeals to file written submissions on issues of principle in the expedited appeals and for later call-over of remaining appeals after test appeals determined. WORKERS' COMPENSATION — disability — calculation of entitlement — whether to be determined by reference to proportionality of disability — whether interest payable — proper construction of s66 and s67 Workers Compensation Act 1987 — appeals to determine these issues grouped and hearing expedited. Workers' Compensation Act 1987, s66, s67. ORDERS 1. Order that the appeals in Jones Eros Bus Co Pty Ltd v Baker and Wyong Shire Council v Graham be listed with expedition before the Court, category B, to the intent that such appeals, which will be heard consecutively, will be heard by the Court within a period of approximately two months; 2. Stand over for further mention before the after judgment is delivered in Jones Bros and Wyong Shire Council, the remaining appeals to the Court involving issues, inter alia, under s66 and s67 of the Workers Compensation Act 1987, and any further appeals in the same class which are received before further order of he Registrar; 3. Order written submissions in the cases of Jones Bros and Wyong Council; 4. Give leave to the parties in the remaining appeals involving like issues, with the consent of the parties to the appeals of Jones Bros and Wyong Shire Council which is noted, to file and serve on the parties in such appeals written submissions dealing with the issues of principle which are to be argued in those appeals; and 5. Costs of the proceedings before the Court today to be costs in each of the appeals respectively. WYONG SHIRE COUNCIL v ANDREW ALEXANDER GRAHAM; JONES BROS BUS COMPANY PTY LTD v SHIRLEY CHRISTINE BAKER; BRAMBLES HOLDINGS LTD v TERENCE FRANCIS LANE; CANOBOLAS WOOL TOPMAKING PTY LTD v DONALD RALPH WRIGHT; JOHN PINNEY v DHD CONSTRUCTIONS PTY LTD; TOMAGO ALUMINIUM COMPANY PTY LTD v ALEXANDER STASHINSKI, DUBBO CITY COUNCIL v RICHARD THORNBERRY; CABLEMAKERS AUSTRALIA v ANDREW GOLA; CONCRETE CONSTRUCTIONS GROUP PTY LTD v GRANT NELSON; ILIJA VEDESKI v AUSTRALIAN IRON AND STEEL; CEMAC COMMERCIAL INTERIORS PTY LTD v PHILLIP HICKS; JOSIP SORE v SPACE MADE PTY LTD; DEPARTMENT OF TAFE v WALTER SAVIN; GORDON ALLEN LANCASTER v LAKE CARGELLIGO SPORTS CLUB PTY LTD; LOVETT BUILDING CO PTY LTD v RICHARD DAVID BURNS; 2 UNREPORTED JUDGMENTS Kirby P The purpose of the call-over before the Court this morning is to put in order a series of appeals which have come to the Court from the Compensation Court, which appear to raise common issues relating to the meaning and operation of s66 and s67 of the Workers Compensation Act 1987. The Court has noticed in the course of the review of appeal notices which is performed each week by Handley JA that there are a number of appeals which appear to raise common or similar issues. One way the Court could deal with this problem would be to deal with a test case, and hear one case only. That could involve a procedural unfairness to other parties who are waiting in the wings, who would not then be heard, in effect, on the issues raised in their respective appeals before those issues are determined, in effect, in the test case. The purpose of listing this morning all of the cases in the series which seem to raise common questions is to hear anything which the legal representatives of the parties (or the parties if they are not represented) have to say to the Court. Then the Registrar will organise another call-over at a later date so that he can group or arrange the cases in a way which ensures that the Court gets the maximum assistance and that the parties have a fair opportunity to put their respective arguments before the Court. (Counsel addressed as to procedures) Orders The orders which I make are: 1. Order that the appeals in Jones Bros Bus Co Pty Ltd v Baker and Wyong Shire Council v Graham be listed with expedition before the Court, category B, to the intent that such appeals, which will be heard consecutively, will be heard by the Court within a period of approximately two months; 2. Stand over for further mention before the Registrar, after judgment is delivered in Jones Bros and Wyong Shire Council, the remaining appeals to the Court involving issues, inter alia, under s66 and s67 of the Workers Compensation Act 1987, and any further appeals in the same class which are received before further order of the Registrar; 3. Order written submissions in the cases of Jones Bros and Wyong Council; 4. Give leave to the parties in the remaining appeals involving like issues, with the consent of the parties to the appeals of Jones Bros and Wyong Shire Council which is noted, to file and serve on the parties in such appeals written submissions dealing with the issues of principle which are to be argued in those appeals; and 5. Costs of the proceedings before the Court today to be costs in each of the appeals respectively. It may be that it will be possible, after the first two test appeals are determined, to identify some way of categorising the remaining appeals so that they can be dealt with quickly. I would have in mind that the Court may constitute a running list of such appeals in November 1991. I take it that both counsel in Jones Bros and Wyong Shire Council are content with the order which I have made for written submissions by other parties on issues of principle to be received in their appeals. (Counsel affirmed). I would expect that the Court would be assisted by senior counsel in these cases because, in a real sense, a large amount of money and important rights and duties turn on the decisions. The Court will be assisted by those who are representing the other parties if they concentrate in their submissions on those issues of principle which have been identified as to the meaning of the sections and the different approaches which have been adopted to them by Judges of the Compensation Court. Without URJ WYONG SHIRE COUNCIL v GRAHAM and 14 OTHER APPEALS (Kirby P) 3 getting into the detail of their respective particular cases, such parties should put their submissions to the Court about the issues of principle raised. The Court will come to the particular cases in due course after it has dealt with the first two appeals. They are the orders of the Court. 1. Order that the appeals in Jones Eros Bus Co Pty Ltd v Baker and Wyong Shire Council v Graham be listed with expedition before the Court, category B, to the intent that such appeals, which will be heard consecutively, will be heard by the Court within a period of approximately two months; 2. Stand over for further mention before the after judgment is delivered in Jones Bros and Wyong Shire Council, the remaining appeals to the Court involving issues, inter alia, under s66 and s67 of the Workers Compensation Act 1987, and any further appeals in the same class which are received before further order of the Registrar; 3. Order written submissions in the cases of Jones Bros and Wyong Council; 4. Give leave to the parties in the remaining appeals involving like issues, with the consent of the parties to the appeals of Jones Bros and Wyong Shire Council which is noted, to file and serve on the parties in such appeals written submissions dealing with the issues of principle which are to be argued in those appeals; and 5. Costs of the proceedings before the Court today to be costs in each of the appeals respectively. Counsel for the appellant and respondent respectively in 40519/90: C Hoeben and W Cooper Counsel for the appellant and respondent respectively in 40583/90: P Menary and T Ryman Counsel for for the respondent in 40656190 and 40659/90: R Taylor Counsel for the appellant in 40691/90: W Cooper Counsel for the appellant and respondent respectively in 40829/90: P Morris and B McManamey Counsel for the appellant in 40850/90: P Morris Counsel for the appellant and respondent respectively in 40004/91: P Morris and B Ferrari Counsel for the appellant and respondent respectively in 40169/91: T Carter, solicitor and F Stylianou solicitor Counsel for the appellant and respondent respectively in 40188/91: V Nevill and W Cooper Counsel for the respondent in 46212/91: P MacMahon solicitor, Counsel for the appellant in 40283/91: A Wilson 4 UNREPORTED JUDGMENTS Counsel for the appellant and respondent respectively in 40252/91: P O'Connor and V Nevill