UNITED DAIRIES v FELLETTI [1992] NSWCA 259

UNITED DAIRIES v FELLETTI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 25 November and 2 December 1991, 3 April 1992

[1992] NSWCA 259

WORKERS' COMPENSATION — error of law — procedural unfairness whether error of law requiring setting aside of award — Held: In the circumstances, not. WORKERS' COMPENSATION redemption — approval — 2 employers removed from proceedings remaining employer challenges award — effect of transitional provisions 1987 Act.

WORKERS' COMPENSATION — worker injures back in three successive injuries — Workers' Compensation Act 1926 applies to injuries 1 and 2 — Workers Compensation Act 1987 applies to injury 3 — transitional provisions to the 1987 Act — worker redeems entitlements under 1926 Act as between himself and employers 1 and 2 — Judge of the Compensation Court (Judge Thompson) approves redemption and enters award accordingly — worker continues proceedings against third employer only in respect of injury 3 — judge of the Compensation Court (Judge Herkes) awards continuing compensation on the basis of continuing partial incapacity argued that by reason of transitional provisions worker had chosen between inconsistent rights or represented that his incapacity was solely attributable to injuries 1 and 2 in order to secure award under s15 of the 1926 Act — held: No such representation or choice of rights arose in the facts attack on the jurisdiction of Judge Thompson to enter his award rejected — possible limited effect of redemption (confined to 1926 Act) referred to.

EVIDENCE — admission of medical report — announcement that medical witness would be called — subsequently case settled as between parties in whose cases the report was tendered later use of the report against remaining party — appeal from Compensation Court (Judge Herkes) — argued that report wrongly admitted and used in breach of requirements of procedural fairness — held: Having regard to the failure of counsel to request the trial judge to have the medical witness called or to seek an adjournment for that purpose any complaint about the use made of the report should not secure the intervention of the Court of Appeal on a discretionary evidentiary ruling.