MALLEYS LTD v MARIO KINKELA [1992] NSWCA 144

MALLEYS LTD v MARIO KINKELA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and CRIPPS JJA. 30 October 1992, 30 October 1992 [1992] NSWCA 144

WORKERS COMPENSATION APPEAL — question of admissibility of evidence on further hearing of application following appeal in which original award set aside — nature of further hearing dependent on construction of this court's order — held, no error by trial judge in construing this court's order — on this basis, no error in admission (or use) of evidence from first stage of hearing.

Priestley JA In 1982 the worker had been working for his employer, Malleys Limited, for a number of years. In March 1982 that employment came to an end. In February 1983 the worker filed an application for workers compensation. The application came on for hearing before Manser J in 1985 in the Compensation Court and a decision was given in December 1985. An appeal was brought from the award that he made and on 15 December 1986 this court set aside Manser J's award.

Samuels JA gave the court's first reasons for that course and, towards the end of those reasons, he said in his opinion the appropriate way to deal with the matter was to set aside the award and to remit the case to the Compensation Court for a new hearing. He then made some comments about the desirabilities of the pleadings in courts, even in courts such as the Compensation Court, which is not a court of strict pleading, saying what the issues were which were considered in the course of the contested litigation. He then proposed that the appeal be allowed with costs that the award made by Manser J be set aside, and the case remitted to the Compensation Court to do therein as should be just and consistent with the opinion of this court.

He added:

"... we have in mind that when it goes back for further hearing all issues which either party wishes to raise should be open for decision."