KORANI v LITHGOW DISTRICT HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and POWELL JJA 31 May 1994, 31 May 1994 [1994] NSWCA 170 APPEALS — Incompetence of appeal WORKER'S COMPENSATION — s32 Compensation Court Act 1984 The appellant filed a Notice of Appeal from a decision given in the Compensation Court in which an award was made in his favour. The notice of appeal did not challenge the terms of the award. What was challenged was part of the trial judge's reasons where he dealt with the claim by the worker to have suffered psychiatric illness in the course of his employment. This was not a legitimate basis for appeal. The appellant sought to amend the notice of appeal so as to challenge the order made with regard to the payment of psychiatric expenses. However, there was no material before the Court on this matter. In addition, this case fell within s32(3) of the Compensation Court Act 1984 which provides that: "If an appeal involves neither: (a) a point of law or the admission or rejection of any evidence; nor (b) compensation amounting to $10,000 or more the appeal lies by leave of the Supreme Court." Without leave being granted, the appeal was incompetent and no formal application for leave to appeal had been made. Sheller JA A worker, Abbas Korani, has filed a Notice of Appeal from a decision given on 4 November 1991 by the Chief Judge of the Compensation Court, Judge McGrath, in which he made an award in favour of the worker on the basis of total incapacity. The orders and awards that his Honour made were as follows: "1. That the first respondent pay the applicant, on the basis of total incapacity, weekly compensation at the rate of $261.00 from 26th July 1990 to 30th September 1990, $273.00 from 1st October 1990 to 31st March 1991, $276.60 from Ist April 1991 to 30th September 1991, $278.60 from Ist October 1991, such weekly payments to continue in accordance with the provisions of the Act. 2. That the first respondent pay the applicant's medical expenses under s60. 3. That the first respondent pay the applicant's costs (including fee for counsel for advice on evidence) forthwith after they have been agreed or taxed. 4. That an award be made in favour of the second respondent with no order as to costs." The worker claimed that he was injured on 4 January 1990 lifting a patient into a wheelchair, while employed as a registered nurse, at a hospital run by the first respondent, the Lithgow District Hospital. The patient lost balance and the worker took the full weight of the patient, thereby suffering injury. The claim was made in respect of injuries which included the onset of major depression, a cervical spine pain disorder and functional overlay. In the form of the notice of appeal as filed the terms of the award were not challenged. What was challenged was that part of his Honour's reasons where he dealt with the 2 UNREPORTED JUDGMENTS claim by the worker to have suffered psychiatric illness in the course of his employment. About that claim his Honour said: "The third issue is the question of the development of the anxiety neurosis and depression. Again I am not persuaded that this is a direct consequence of the injury, or the suffering of pain and disability in relation to it. In his own case the local general practitioner called by the applicant suggests that his anxiety condition arose rather from other matters, which he refers to in his 26 July 1991 report. This is Dr Kertesz. He says that there was a pathology that compounded with what he calls the pathopsychological problems. "There is the psychodynamic injury that Mr Korani has suffered through being refused compensation benefits by the insurers and the stigma of having symptoms refuted, and he is being rebuked for the situation that has arisen.' In my opinion any neurosis that arose from those considerations does not result from the employment injury." The notice of appeal as filed was against his Honour's reasons rather than the award or orders that he made. This presented the problem that the worker was seeking to challenge not the award but part of his Honour's reasoning. For reasons which were referred to by the High Court in Driclad v Federal Commissioner of Taxation (1969) 121 CLR 45 at 64, that is not a legitimate basis for appeal. This was raised with counsel when the matter was called and an adjournment was granted so that counsel would have an opportunity further to consider the matter. When the matter was resumed Mr Cummings of counsel, who appears for the worker, anticipated that he would be seeking to amend the notice of appeal to claim that O2 made by his Honour should be expanded to provide expressly that the expenses under s60 should include the appellant's psychiatric expenses. There appears to be no material before the court which would enable it to have any view as to whether or not the award made by his Honour was sufficient to cover these expenses or was treated as such and, in accordance with it, the expenses paid. However this may be, there is a further problem with the appeal as it has been formulated. S32 of the Compensation Court Act 1984 which provides for appeals from that Court in subs(3) provides that: "Tf an appeal involves neither: (a) a point of law or the admission or rejection of any evidence; nor (b) compensation amounting to $10,000 or more, the appeal lies by leave of the Supreme Court." Thus, without leave being granted, the appeal is incompetent. No formal application for leave to appeal has been made. It is plain enough that the appeal as formulated in the notice of appeal raises neither a point of law, nor a question of the admission or rejection of evidence, nor compensation amounting to $10,000 or more. In my opinion, in light of the fact that the only live question that is now suggested as an available ground of appeal is the matter raised or sought to be raised by way of amendment, this is not an appropriate case for the Court to grant leave. The Court recognises the reasons why the challenge has been made to his Honour's reasoning on the question of psychiatric illness. It is, therefore, appropriate for me to say that, as at present advised, I would not regard his Honour's reasons as raising an issue estoppel on the question of psychiatric URJ KORANI v LITHGOW DISTRICT HOSPITAL (Powell JA) 3 illness. In that regard reference has been made to the decision of the High Court in Blair v Curran (1939) 62 CLR 464. It may be useful if I also mention that that question was discussed by this Court in Felton v St Vincent's Public Hospital, an unreported decision of this Court delivered on 1 October 1993. In my opinion leave to appeal should not be granted and in consequence the appeal should be dismissed as incompetent. In light of the provisions of Pt51 rl7A of the Supreme Court Rules, no order should be made as to costs. The orders I propose, therefore, are that leave to appeal is refused, that the appeal be dismissed and that there be no order as to costs. Handley JA I agree. Powell JA I also agree. Handley JA: The orders of the Court therefore will be as proposed by Mr Justice Sheller. Leave to appeal refused. The appeal was dismissed as incompetent Counsel for the Appellant: M G Cummings Solicitor for the Appellant: McIntosh McPhillamy & Co Counsel for the Respondent: C R R Hoeben Solicitor for the Respondent: Hickson, Lakeman & Holcombe