KBH CONSTRUCTIONS PTY LTD (in liq) v CORREIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and Cripps JJA 31 March 1993, 1 October 1993 [1993] NSWCA 149 WORKERS COMPENSATION Priestley, Meagher and Cripps JJA The court published reasons in this matter on 23 March 1993 and directed the parties to bring in short minutes of orders on 31 March 1993 giving effect to the reasons. This was done, and draft orders prepared on behalf of the respondent/worker were handed up upon which the parties were agreed, subject to two matters. The first matter, itself the subject of agreement between the parties, was that the figure in draft order 2(c) should be $19,170 rather than $19,140. The latter figure had been used by the court below which was why it had been used in the draft orders, but the parties were agreed that the very minor difference should be corrected. The other matter concerned the part of draft order 4 which ordered that interest at the rates prescribed by the Rules of the Compensation Court on the compensation awarded under s67 should be paid from the date of injury in respect of 50% of the amount awarded. For the appellant/employer it was submitted that an order for interest more favourable to the employer should be made. A question then arose whether this point had been argued at the hearing of the appeal. The recollection of the court was that it had not been, but the materials to check this were not available in court. We heard what the parties had to say on the matter and reserved our decision, with a view subsequently to handing down the final orders and directing that they be entered on the day of handing down. The parties agreed that the costs of the argument on the orders should be part of the costs of the appeal. On subsequently checking the grounds of appeal, the written submissions and the transcript of argument, the following became apparent. There were twelve substantive grounds of appeal. Grounds 10, 11 and 12 dealt with interest. Ground 10 dealt with what was called in argument the Gogic point. This was argued, and dealt with in the reasons earlier published by the court by reference to Bresmac Pty Ltd v Starr (Court of Appeal, 24 December 1992). The point sought to be argued on behalf of the appellant/employer in regard to draft order 4 was distinct from the Gogic point and was covered by grounds 11 and 12 in the notice of appeal. In the written submissions the appellant said grounds 11 and 12 were not pressed. In argument in chief counsel for the appellant argued the Gogic point. In replying to the Gogic argument counsel for the respondent made some observations concerning the subject matter of grounds 11 and 12. Counsel for the appellant in replying in regard to the Gogic point also made brief reference to what counsel for the respondent had said which could be interpreted as going; to the point now sought to be debated under draft order 4. The understanding of the court was at all times that it was only the Gogic point that was being argued. 2 UNREPORTED JUDGMENTS On the materials in the appeal papers there is nothing to indicate one way or the other whether the point now sought to be argued was the subject of argument before the trial judge. In the circumstances we see no basis for holding that the trial judge made any error in his decision on the relevant interest point, and do not think that we should look further into the matter at this stage. We therefore make the orders as proposed on behalf of the respondent, and, as already noted, agreed to on behalf of the appellant except as to the particular interest point we have discussed. The orders are: 1. Appeal dismissed subject to limitation of the award under s66(2). 2. Award for the respondent pursuant to s66(2) of the Workers' Compensation Act, 1987 in the sum of $85,200.00 in respect of the following losses; (a) Permanent impairment of the back ($25,560.00) being 50% of the maximum percentage payable for impairment of the back. (b) 30% permanent loss of the right leg below the knee ($17,892.00). (c) 30% permanent loss of the right leg at or above the knee ($19,170.00). (d) 20% permanent loss of the left leg below the knee ($11,928.00). (e) 20% permanent loss of the left leg above the knee ($12,780, 00). 3. Award for the respondent pursuant to s67 of the Workers' Compensation Act, 1987 in the sum of $35,000.00. 4. Appellant to pay interest at the rates prescribed by the Rules of the Compensation Court, on the compensation awarded under s66 from the date of injury and on the compensation awarded under s67, from the date of injury in respect of 50% of the amount awarded. 5. Appellant to pay the Respondent's costs of the appeal. These orders are to be treated as having been entered today. 1. Appeal dismissed subject to limitation of the award under s66(2). 2. Award for the respondent pursuant to s66(2) of the Workers' Compensation Act, 1987 in the sum of $85,200.00 in respect of the following losses; (a) Permanent impairment of the back ($25,560.00) being 50% of the maximum percentage payable for impairment of the back. (b) 30% permanent loss of the right leg below the knee ($17,892.00). (c) 30% permanent loss of the right leg at or above the knee ($19,170.00). (d) 20% permanent loss of the left leg below the knee ($11,928.00). (e) 20% permanent loss of the left leg above the knee ($12,780, 00). 3. Award for the respondent pursuant to s67 of the Workers' Compensation Act, 1987 in the sum of $35,000.00. 4. Appellant to pay interest at the rates prescribed by the Rules of the Compensation Court, on the compensation awarded under s66 from the date of injury and on the compensation awarded under s67, from the date of injury in respect of 50% of the amount awarded. 5. Appellant to pay the Respondent's costs of the appeal. Counsel for the appellant: R Cameron Solicitors for the appellant: Hickson Lakeman & Holcombe Counsel for the respondent: W Cooper WBH CONSTRUCTIONS PTY LTD (in liq) v CORREIA (Priestley, Meagher and Cripps JJAB Solicitors for the respondent: Taylor & Scott