STEGGLES PTY LTD v SORCEVSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and POWELL JJA 29 July 1994, 29 July 1994 [1994] NSWCA 300 Workers' Compensation — Proceedings for compensation — Award Appeal — Jurisdiction of Court of Appeal — Distinction between appeal on question of fact or law. Workers' Compensation — Proceedings for compensation — Award Reconsideration of- Rescission of- In what circumstances — Consent award for redemption — Alleged absence of consent — Unilateral mistake — application for rescission. In 1984, R, a Macedonian by birth, who had been employed by A as a process worker, commenced proceedings in the Workers Compensation Commission seeking both weekly compensation and lump sum compensation in relation to injury to both arms - including both shoulders and hands - alleged to have been sustained while working for A. In 1985, R's application was listed for hearing before Freeman CCJ. On the morning of the hearing, discussions took place between the representatives of R, A and its insurer with a view to redeeming R's claim for weekly compensation and to settling R's claim for lump sum compensation, and an offer of $22,500 was made. Although R later claimed that the offer did not extend to compensation for a back injury which she claimed also to have suffered while employed by A, she signed a form of Consent - which was read to her by an interpreter - to the making of an Award in the form of certain Short Minutes of Order, which Short Minutes of Order provided (inter alia) for the original application to be amended to include a claim for compensation for "Back condition, cervical condition bilateral shoulder forearm and hand conditions and anxiety/depressive state." The proposed redemption was approved by Freeman CCJ and the amount of $22.500 paid to R, who then executed a form of Common Law Release. In 1987, R commenced proceedings in the Compensation Court seeking weekly compensation in respect of the back injury which she claimed to have suffered while working for A, which proceedings were stayed by Burke CCJ, on the application of A, which relied upon the consent Award which had been made in November 1985. Thereafter, in May 1989, R commenced proceedings in the Compensation Court seeking revocation of the Court's approval to the redemption of her claim, and rescission of the Award made, in the 1984 proceedings, the ground for the application being said to be absence of her consent to the redemption of the claim insofar as it related to her alleged back injury. Those proceedings came before Burke CCJ who, having found that R had not appreciated that the proposed compromise extended to her alleged back condition, and that, if she had done so, would not have consented to the making of the Award, ordered that the Award be rescinded, and revoked the stay which he had earlier granted in respect of the 1987 proceedings. A appealed. In its Notice of Appeal A alleged only that Burke CCJ had erred in law in holding that R ought not to be regarded as bound by her counsel's assent to the making of the Award. However, on the hearing of the Appeal, A's counsel sought leave to file an Amended Notice of Appeal and a proposed Further Amended Notice of Appeal in which the findings of fact made by Burke CCJ were challenged. ORDERS 1. ORDER that leave to file the Amended Notice of Appeal and the proposed Further Amended Notice of Appeal be refused. 2 UNREPORTED JUDGMENTS 2. ORDER that the Appeal be dismissed with costs. Clarke JA I will ask Powell JA to give the first Judgment. Powell JA On 29th November 1984, there was filed in the Workers Compensation Commission an Application for Determination ("the First Application"), pursuant to which Application the present Respondent sought the making of an Award in her favour for weekly compensation, a lump sum award in respect of what was said to be a permanent percentage loss of the efficient use of both arms, and s10 expenses. In the form of Application, the date and place of the injury were set out as follows: "Between 1982 and 1984 the Applicant was involved in work involving the repetitive use of both her arms, her left shoulder and right shoulder and both her hands as a result of cutting and skinning chickens, cracking bones, trimming, hanging birds, gutting and cutting up the chickens. " and the nature of the injury was set out as follows: "Injury to the Applicant's both arms, including both shoulders, hands caused and or aggravated, precipitated or exacerbated by the circumstances outlined in para5S above. " Thereafter, on 3rd December 1984, the Compensation Court Act 1984 ("the Court Act") came into operation, in consequence of which fact the Application was deemed to have been lodged with that Court. It will be recalled that s15 of the Workers' Compensation Act 1926 (to which I shall refer as "the 1926 Act") provided as follows: "15(1) Subject to this Act the liability in respect of any weekly claimant may, with the consent of the worker, be redeemed either in whole or in part by the payment of a lump sum, determined by the Commission, having regard to the injury, age and occupation of the worker at the time of the occurrence of the injury, as well as to his diminished ability to compete in an open labour market. (2) An agreement as to the redemption of a weekly payment by the payment of a lump sum shall not, nor shall the payment of the sum payable under the agreement exempt the person by whom the weekly payment is payable from liability to continue to make that weekly payment unless such sum has been determined by the Commission in accordance with this Art." The Respondent's Application appears to have been listed before the Compensation Court sitting in Newcastle on 25th November 1985, the judge then sitting at Newcastle being Freeman CCJ. On that day there appeared for the Respondent Mr HA Millar of counsel instructed by Mr PR Manion, a principal in the firm of Messrs Moloney, Rutter and Mantach, Mr HG Shore instructed by Messrs Hunt and Hunt in the interests of National Employers Mutual General Insurance Association Limited (to which I shall refer as "NEMGIA") the Appellant's former insurer, and Mr WKL Dodd instructed by Messrs Harris Williams, in the interests of the present Appellant as a self-insurer. It seems clear enough that, prior to the matter coming before Freeman CCJ, discussions took place between the legal representatives of the parties and the several interests there represented, and that, in the course of those discussions, a proposal was put that the Respondent's entitlement to weekly compensation be redeemed pursuant to the provisions of s15(1) of the 1926 Act. The difficulty which arises in the present case is that, if the Respondent's later evidence be accepted - as it was later accepted by Burke CCJ in proceedings to which I shall shortly refer - the various parties and interests and their representatives were not ad idem as to exactly what was to be the subject matter of any redemption. Although it is clear enough that the Respondent and her URJ STEGGLES PTY LTD v SORCEVSKI (Powell JA) 3 advisers appreciated, at the least, that the sum of $22,500 which was offered by way of redemption was intended to cover compensation for cervical injuries as well as for the injuries affecting the Respondent's hands, arms and shoulders which were set out in the Application, the Appellant asserts that the amount offered was also intended to include compensation for the injuries to her lower back which the Respondent claimed to have suffered while working for the Appellant during the years 1982 to 1984. But whatever be the extent to which the various parties and interests and their advisers were ad idem, the facts are, first, that, on 25th November 1985, the Respondent executed a form of Authority, directed to Mr Manion's firm, which form of Authority, so far as is relevant, contained the following: "T authorise and direct you to accept the offer on my behalf of $22,500 in full and final settlement of my claims for Workers' Compensation against Steggles Pty Ltd and being in respect of injuries to both my arms, hands and shoulders and cervical injuries which I incurred whilst employed by the company between 1982 and 1984. " and, second, that, at that time, or a little later, but before the matter was called into Court, the Respondent executed a form of Consent to Redemption Application which, so far as is relevant, evidenced her consent to "the making of an Award in accordance with the annexed Short Minutes of Order" which form of Consent, on its face, acknowledged that it had been read over to the Respondent by an interpreter - it is not clear whether the "annexed Short Minutes of Order" were, in fact, a separate document which was said to be attached, or merely were set out on the reverse side of the Consent. Be that as it may, the form of Short Minutes of Order provided for there being made a consent Award authorising redemption of the liability of the Appellant for $22,500 and for the Court to note the Respondent's agreement, first, that that sum also redeemed liability under s10 and s16 and further that she would execute "a common law release if called upon to do so". That part of the Short Minutes of Order which has led to the present proceedings was - as it seems to be agreed - in the handwriting of Mr Millar and was in these terms: "Amend para6 to add 'Back condition, cervical condition, bilateral shoulder forearm and hand conditions and anxiety/depressive state." The matter having been called into Court before Freeman CCJ and the usual medical reports having been tendered for his Honour's consideration, Mr Millar then called the Respondent to give oral evidence, which evidence was very short and, insofar as it dealt with such complaints as the Respondent then had, it appears to have been limited to the pain in the forearm, shoulder and neck region, with no mention being made of any back condition. That evidence having been given, His Honour then indicated his approval to the proposed redemption and made an Award in terms of the Short Minutes, a formal Award to that effect being later settled by the Registrar and filed with the court papers. Although the date on which it occurred is not clear, it is tolerably plain that, within a short time after 25th November 1985, a cheque for the $22,500 which was provided for in the Award was paid over and the Respondent executed a form of Release in favour of both the Appellant and NEMGIA. Insofar as is relevant, it is sufficient to record that, in that form of Release, after a variety of recitals, the Respondent covenanted with both the Appellant and NEMGIA that she would discontinue any proceedings already commenced in any Court, and, further, that, in any further proceedings taken in any Court, judgment should be entered for the Releases in accordance with the provision of the Release. 4 UNREPORTED JUDGMENTS Notwithstanding the terms of the Award and the Release, and the payment of $22,500 to the Respondent in pursuance of the Award, on 22nd April 1987 there was filed in the Compensation Court a further Application for Determination ("the Second Application") in which Application the Respondent sought an Award of compensation in respect of what she claimed was the disability arising from the back condition to which I have earlier referred, and to which Application there were filed by both the Appellant and NEMGIA Answers which in effect pleaded the terms of the Deed of Release to which I have referred. The Second Application ultimately came before Burke CCJ on 4 May 1989, on which day His Honour found for the Appellant and NEMGIA "on the plea of res judicata" and ordered that there be an indefinite stay of the Second Application. On the following day, by leave granted by Burke CCJ, there was filed in Court before His Honour an Application ('the Third Application") in which the following relief: "(a) Revocation of approval of the Applicant's entitlement and recission (sic) of the Award of His Honour Judge Freeman on 25 November 1985. (b) Termination ab initio of the Award of His Honour Judge Freeman of 25 November 1985. " was sought by the Respondent, the grounds upon which that relief was sought being said to be: "Absence of Applicant's consent by reason of the matters disclosed in Affidavit of the Applicant sworn 3 May 1989 and to be filed herein. " That Application, clearly enough, was sought to be founded upon the provisions of s17(4) of the Court Act which provides - as had s36(2) of the 1926 Act - in substance, as follows: "17(4) Nothing in subs(3) shall prevent the Court from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any provision previously made or given by the Court, all of which the Court shall have authority to do." It is to be recalled that, as at 5th May 1989, the provisions of the Court Act relating to appeals to this Court were far more limited than is now the case, s32(1) of the Court Act, as it then stood, being in the following terms: "Tf a party to any proceedings before the Court (other than proceedings before a commissioner or registrar) is aggrieved by an award of the Court in point of law or in relation to the admission or rejection of any evidence that party may appeal to the Supreme Court." As this Court pointed out in Azzopardi v Tasman UEB Industries Ltd ((1985) 4 NSWLR 139) the nature of the appeal provided for by s32(1), as it then stood, was a very limited one and did not permit the Court to correct errors of fact even in a case in which it might be said that a finding of fact was perverse and contrary to the overwhelming weight of the evidence. After the lodging of the Third Application and prior to it coming on to be heard by Burke CCJ, the Court Act was amended by the Compensation Court (Amendment) Act 1989 (the Amendment Act') so as to enlarge the right of appeal to one of a general nature. Notwithstanding, that amendment CL5(1) of Pt2 of Sch 4 - Savings and Transitional Provisions of the Amendment Act provides: "5(1) An appeal that does not involve a point of law does not lie in respect of an award given in proceedings commenced before the commencement of the amendments made to s32 of the Act by the (Amendment Act). " As operative date for those amendments is Ist October 1989, the right of appeal with which we are now concerned is, thus, that limited to a point of law. URJ STEGGLES PTY LTD v SORCEVSKI (Powell JA) 5 The Third Application ultimately cam before Burke CCJ on 31 October 1991, the Application being supported, in the first instance, by an Affidavit sworn by the Respondent and a further Affidavit sworn by Ms. Sazdanoff-Shea ("the interpreter") who had been the interpreter at the time of the proceedings before Freeman CCJ. In her Affidavit the Respondent deposed (inter alia) as follows: "21. When the proceedings came on for hearing on 25 November 1985 the discussions I had with my solicitor and counsel related initially only to the neck, shoulders, arms and hands. My solicitor and counsel said to me words to the effect 'It will be necessary to amend the Application for Determination to add allegations of injury to the neck and cervical region'. At that stage there was no discussion of the symptoms I was experiencing in my lower back. 22. In the course of discussions with respect to the proposed redemption of my entitlement I said to my then solicitor words to the effect 'It's not enough - what about my back?'. To which he responded to the effect "What about your back?'. I said 'I had an accident at work' to which he responded. 'When? I did not know anything about it' I said 'I had an accident at work' and he said to me words to the effect 'Don't say anything about your back here we will talk about that later at my office'. I then said words to the effect 'All right, I will settle for $22,500.00'. 23. A document was then prepared providing written instructions for the settlement, and annexed hereto and marked 'O' is a true copy of that document. 24. At no time in the course of the discussion I had with my solicitor or counsel, or during the evidence I gave before his Honour Judge Freeman in respect to the application for approval of the redemption was any mention made of the proposal that the redemption should include my entitlements arising from the symptoms I was experiencing in my lower back. On the basis of what I had been told by my then solicitor I believed that the proceedings were restricted to the symptoms I was experiencing in my neck, shoulder, arms and hands, and that the redemption proposal was accordingly restricted, and was not to include any of the symptoms I was experiencing in my lower back I do not recall that I say nothing to suggest that the redemption was to include the symptoms relating to my lower back. 25. If I had known that it was proposed that the sum of $22,500.00 should be accepted in redemption of my entitlements under the provisions of the said Act in respect of the symptoms I was experiencing in the lower back I would not have consented to the proposal." When she came to give oral evidence, the Respondent's cross examination as to the circumstances in which she came to execute, in particular, the form of Consent, was, if I may say so, singularly limited. Insofar as she was cross-examined by Mr D Nock, who appeared for the Appellant, in one or other of its interests, the cross-examination was limited to the following (Appeal Book at 64 and 65): "Q. When the matter was being settled, is that right. A. Yes. Q. And it was Mr Manion you spoke - A. No, before this - we didn't mention in the court nothing about a back. I just say in the room. Q. Yes, but it was at the court house. A. yes, it was outside. Q. Not at his office. A. No, in the room in the court outside. It was when they offered me the money for my shoulder and I says 'I'm not agree with that - this sum, because it's not enough, because what about my back.' He says 'what about your back'. 'I hurt back in '82'. He say 'I didn't know'. And he said 'Don't talk'. And I just didn't mention nothing about. He says 'I'm going to see you another day'. 6 UNREPORTED JUDGMENTS Q. All that conversation occurred, did it not, at the court house. Where the court was - A. No, it wasn't in the court. Q. It is not a conversation that you had with Mr Manion back in his office. HIS HONOUR Q. In the conference room. A. In the conference room, yes, that was. MR NOCK Q. And are you sure it was with Mr Manion. A. Yes, Mr Manion - it was Mr Manion, yes. Q. it was not -. A. Yes, it was. Q. - a young girl. A. No, Mr Manion it was. Q. It was definitely Mr Manion. A. Yes, Paul Manion." while the cross-examination of Mr BA Odling, who appeared for the Respondent in its other interest, was limited to the following: "*MR ODLING Q. You have seen that document before, have you not. A Yes. Q. And you have in fact seen a photocopy of it when you swore your affidavit. A. This. Q. Yes. And that is your signature which appears on the document. A. Yes. Q. And when you signed that document it had the writing on it which now appears. A. Where. Q. On that document, both sides of it were filled in. A. I don't know about this, nothing. Q. Iam sorry. A. Only this document I saw before. Not this. Q. You are referring to the form of consent. I suggest to you that in fact the whole document was read over to you, is that not so. OBJECTION Mr ODLING Q. Madam, what I suggest to you is that both sides of the document were read over to you before your signed it. A. Not these. HIS HONOUR. She means not the short minutes of order. MR ODLING Q. In addition to speaking to Mr Manion about the settlement at some stage you also spoke to Mr Miller, your barrister, did you not. A. Yes." Nor was a great deal of cross examination directed to the interpreter. The cross-examination by Mr Nock was in the following terms: "*MRS SORCEVSKIS AFFIDAVIT HANDED TO WITNESS MR NOCK Q. Would you have a look at 4 and para22. Do you see that. A. Yes. Q. Have you read that. A. Yes. Q. And are you absolutely certain, are you, that that conversation took place. A. Yes, I remember interpreting such a conversation. Q. And that took place when. A. Outside the courtroom but inside the court building. Q. At the time that conversation took place, had you seen this document, and I will show you the short minutes of order. Had you seen that document at the time that conversation took place or not. A. Not at that particular moment because we were standing outside. Q. You have no doubt that the conversation took place with Mr Manion. A. That's right. Q. Absolutely no doubt at all. A. No. Q. It was not with a Miss Anderson. A. No. URJ STEGGLES PTY LTD v SORCEVSKI (Powell JA) 7 Q. And you are certain that Mr Manion was in court or in the precincts of the court at the time you had these discussions. A. When that particular discussion took place he was there. Q. And it was outside the courtroom, is that right. A. Yes. that's right. Q. Did you interpret any other documents on that day for Mrs Sorcevski other than the short minutes of order that I showed you a moment ago. Have a look at this. Do you see that document. A. Yes. Q. Did you translate that document to Mrs Sorcevski. A. Yes. Q. In its entirety. A. The whole page. Q. Yes. Would you turn it over. Did you interpret that side of it. A. I don't remember interpreting this side. Q. Now which side are you look at because I cannot see. A. This is.. Q. You do not recall translating the side that says 'short minutes of order', is that right. A. That's right. Q. You have interpreted, no doubt, prior to this occasion in a courtroom in workers' compensation, have you not. A. Yes, I have. Q. You have interpreted in respect of redemption applications where people are settling their claims. A. Yes, I have. Q. You have seen that document many times prior to interpreting on this occasion, is that right. A. Yes. Q. A document like that. A. Yes, that's right. Q. Do you say here in court that you only translate one side of that document. A. I usually don't pick up the document. Whatever's put in front of me to translate that's what I do, and I worked on instructions. Q. What do you say when you get to - and if you would have a look at that document. What do you say when you get into the paragraph there headed - it is about the fourth paragraph on the page. A. Which page. Q. The page you interpreted, Mrs Shea. Do you see that page that you interpreted. A. That one there. Q. Yes, that one. It is headed "Consent to redemption'. A. Yes. Q. What do you say when you get to this pint: 'In giving this consent I appreciate that payment of the lump sum referred to in the said short minutes will bring to an end as from 9.3.81 my right of entitlements under the Workers' Compensation Act 1926 in respect of the injuries, the subject of the said short minutes, which I have or may have in the future'. You interpret that to them, do you. A. Yes. Q. And what do you think the words 'short minutes mean. A. How do you mean, in Macedonian. Q. No, when you are being referred to in that paragraph 'the subject of the short minutes', have you ever asked what those are. A. short minutes. Q. Yes. A. It translates in Macedonian "......" So I would say the translation of it. Q. Well does anybody ever ask you what the short minutes are. A. I don't remember. Q. Are you saying to this court that you have never translated the reverse page in that document to any applicant when you have been doing redemptions. A. No, I didn't say 'never'. I'm just talking about this one. Q. Well you were able to differentiate, are you, on this occasion - what is your practice, Mrs Shea. Is it to translate both sides of the document. A. It's my practice to translate what I'm asked to translate. Q. Well when you are given that document and asked to translate it to a worker is it your practice to translate both sides of the document. A. If I'm asked to, yes. 8 UNREPORTED JUDGMENTS Q. If you are asked to. A. Yes." Notwithstanding the attack which had been made on the Respondent's evidence and her credit, when he came to consider the matter Burke CCJ accepted that the Respondent did not appreciate that ally proposal for compromise of her claim would extend to her claim in relation to her disabilities in her lower back, and further, that, if the Respondent had appreciated that that was the nature of the compromise which was offered she would not have authorised the entry into that compromise, nor given her consent to an Award made in such terms. Accordingly, His Honour ordered that the Award made by Freeman CCJ in the First Application be rescinded, revoked the stay which he had earlier granted in respect of the Second Application and ordered that both Applications be relisted for hearing together in the Court. Being dissatisfied with the result, the Appellant filed a Notice of Appeal, the sole ground of which was said to be: "That His Honour erred in law in finding that the Applicant Worker should not be held by the assent of her Counsel to a Determination of the Compensation Court dated 29 November 1985 that the Respondent/Employer's liability be redeemed in respect of a back injury". Notwithstanding the limited nature of the ground of appeal thus taken, the written Submissions which were later lodged on behalf of the Appellant ranged far and wide; so far, indeed, that they appeared to have left behind any question of law and invited the Court to embark upon a re-hearing on the facts. Accordingly, when the list was called this morning, the Court drew the attention of Mr PM Hall QC, who appeared today with Mr Nock for the Appellant, to the limited nature of the appeal which was available to him and invited him to consider the matter. In the meantime, the Court declined to deal with an application, which Mr Hall sought to make, to file in Court an amended Notice of Appeal, the grounds of appeal sought to be taken in which sought to raise the matters dealt with in the written Submissions which had been filed. When the matter was called again for hearing, Mr Hall informed the Court that, although it had not then been reduced into writing, he wished to have leave to file in Court a Further Amended Notice of Appeal, the grounds of appeal sought to be taken in which, as I have noted them, being as follows: "(1) That His Honour failed to have regard to the written consent of the Respondent in the Short Minutes of Order; and (2) That counsel for the Respondent having ostensible authority to consent to the making of the Award, there was in fact 'consent' within the meaning of s15 of the 1926 Act." When the Court sought some elaboration of the bases upon which the Appellant then sought to advance the appeal, Mr Hall informed the Court that, although the Appellant accepted that the Compensation Court had power to rescind an Award if there had been no actual consent, it sought to submit that, in the circumstances, the power - or the discretion to exercise the power - so to do had never validly been exercised since, either, Burke CCJ had mis-directed himself in law, or, alternatively, he had failed to take into account relevant factors. Since the filing of the proposed Further Amended Notice of Appeal was objected to by Mr PR Capelin QC, who appears with Mr RR Bartlett for the Respondent, the Court invited Mr Hall to elaborate on the way in which he would wish to advance the two proposed grounds of appeal, at the same time indicating that it would, meantime, reserve its decision upon the application. In response to URJ STEGGLES PTY LTD v SORCEVSKI (Meagher JA) 9 that invitation Mr Hall then sought to elaborate on the two proposed grounds of appeal but, in my view, in a way which suggested to me that the suggested points of law were little more than a colourable disguise for an argument based on the facts, with a view to having this Court displace the findings of fact made by Burke CCJ. This being so, I would, for myself, refuse to grant the leave sought, and, no further ground of appeal being advanced, I would propose that the appeal be dismissed with costs. Clarke JA: I agree, I would only add two things. In the first place it was made clear by Mr. Hall's argument that he relied only upon the Further Amended Notice of Appeal which he then sought leave to file in court. There was no doubt good reason for this approach for the original grounds of appeal, counsel acknowledged, did not clearly raise an issue of law for consideration by the Court. My second observation is that if one has regard to the evidence given by the Respondent at the time when Freeman CCJ said that he approved the lump sum, one would be struck by the total absence of any reference to the lumbar spine. The questions and answers were developed in this way: "Q. You developed pain and numbness in some of the fingers of your left hand? A. Yes. Q. And you had pain in the forearm and up into the left shoulder and also neck? A. Yes, and head. Q. And you last worked in June of 1984, is that right? A. Yes. Q. You haven't improved much since then? A. No. Q. And since last working the condition has extended so as to embrace the same areas in your right arm and neck and head. Q. Yes. MILLAR. Q. You've been offered the sum of $22,500? A. Yes. There is not the slightest suggestion of problems in the lower back, nor is there even a murmur of the fact that the compromise related, not only to the areas mentioned in the evidence, but to problems in her lumbar spine. These circumstances give much force to the case she put before Burke CCJ, and, in the light of that evidence when taken together with her own uncontradicted evidence, it is not surprising that His Honour reached his ultimate conclusion. The attack which has been mounted in this Court was in all respects an attack founded upon His Honour's acceptance of her evidence. It was submitted that His Honour failed to pay regard to many documents - a submission which, to my mind, is hopeless because there is much reference to those documents in the judgment below - and it is said that the respondent herself never directly challenged or explained those documents. Iam not sure that I agree with the latter proposition, but even if I assume that it is correct, what she did say was that she had never given her consent to accepting the sum of $22,500 in respect of her lumbar back problems, and the assessment of that claim was a factual one which lay solely within the realm of the trial Judge. He was not constrained in any way in determining whether or not he would accept her evidence and, once he accepted it, it seemed to me to follow, almost as a matter of course, that he would uphold her application. I agree with the Orders proposed by Powell JA. Meagher JA I agree with both my brethren. This appeal involves no question of law and we have no jurisdiction to deal with anything else. Clarke JA: The Orders of the Court will be as Powell JA has indicated. 10 UNREPORTED JUDGMENTS 1. ORDER that leave to file the Amended Notice of Appeal and the proposed Further Amended Notice of Appeal be refused. 2. ORDER that the Appeal be dismissed with costs. 5 Counsel for the Appellant: PM Hall QC and D Nock Instructed by: Hunt and Hunt Counsel for the Respondent: PR Capelin QC and RR Bartlett 10 Instructed by: Rankin and Nathan