DARRELL LEA CHOCOLATE SHOPS PTY LTD v TIRICOVSKI [1994] NSWCA 79

DARRELL LEA CHOCOLATE SHOPS PTY LTD v TIRICOVSKI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, HANDLEY and POWELL JJA

21 February 1994, 21 February 1994

[1994] NSWCA 79

Practice — Workers Compensation — Appeal — Review — Costs

Practice — Workers Compensation — Appeal — Review — Costs

Respondent worker applied for compensation alleging injury while on a "daily or other periodic journey". Senior Commissioner dismissed application on grounds (1) no "daily or other periodic journey"; (2) in any event deviation substantially increasing risk of injury. Respondent applied for review. Review conducted solely on written submissions. Written submissions do not refer to costs of review. Application dismissed on ground that "applicant did not sustain his injuries on a journey between his place of abode and place of employment'. Judge without giving further reasons concludes "in the exercise of my discretion I make no order for costs against applicant'.

HELD: No special circumstances justifying no Order as to costs.

Powell JA On 7th July 1988, the Respondent, Mr Tiricovski, who was then employed by the Appellant, Darrell Lea Chocolate Shops Pty Ltd, as a storeman, at its premises at 200 Rocky Point Road, Kogarah, was injured in a motor accident which occurred in Beauchamp Road, Matraville.

In March 1989, the Respondent, who claimed that the motor accident occurred while he was in the course of a "daily or other periodic journey" from his home to the Appellant's premises, caused to be filed in the Compensation Court an Application seeking compensation for his

injuries and what were said to be his continuing disabilities.

The Senior Commissioner's findings will readily be understood when I record, first, that, if the Respondent were to drive by the shortest convenient route from his home in Stanley Street, Arncliffe to the Appellant's premises, which were situated almost due South from the Respondent's home, the distance covered would be only about 6.4 kilometres and the time occupied only about 10 minutes; and, second, that the journey upon which the Respondent was, at the time of the accident, engaged - taking his father to his place of employment near the intersection of Beauchamp Road and Bunnerong Road, Matraville, well to the East and North of Stanley Street, Arncliffe, before retracing his steps and then driving South to the Appellant's premises - covered a distance of 23.6 kilometres and customarily occupied 35 minutes, or thereabouts.