MULWAREE SHIRE COUNCIL v BEZZINA [1995] NSWCA 303

MULWAREE SHIRE COUNCIL v BEZZINA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and POWELL JJA 9 June 1995, 9 June 1995

[1995] NSWCA 303

WORKERS COMPENSATION ACT — TABLE OF COMPENSATION FOR PERMANENT INJURIES — construction of para(g) of Interpretation paragraphs of Table following s73 of Act — appellant sought leave to re-argue authority — leave not granted.

ORDERS Appeal dismissed with costs.

Priestley JA This is an appeal by an employer against awards made in favour of the respondent worker. The appeal seeks to raise two points, the first a question of law and the second a question of fact which would only arise if the appellant succeeded on the question of law.

That position became clear in the course of argument and observations made by counsel for the appellant. The court therefore had to look first to the question of law. This concerns the construction of transitional provisions in Schedule 6 Pt6 of the Workers Compensation Act 1987 and para(g) of what is now called the Interpretation paragraphs of the table which follows s73 of the Act.

The first problem the appellant encounters is that the particular questions of construction which are sought to be raised in this appeal have been dealt with in a number of cases in this court. It is therefore necessary for the appellant to obtain the leave of the court to re-argue the correctness of those decisions. Similar applications have been made in some of the decisions themselves which the appellant now seeks to challenge and leave has been refused.

There seems to be no reason why the court on this occasion should alter its attitude to the question of whether leave for re-argument should be granted. The cases which the appellant seeks to have this court say are wrongly decided are Clutha Ltd v Danswan, (1993) 9 NSWCCR 225, TAFE v Pitt, (1993) 9 NSWCCR 309 JA Crockett Pty Ltd v Cox, (Court of Appeal, unreported, 26 October 1994), Wilkes v State Rail Authority, (Court of Appeal unreported, 2 February 1995), Australian Iron and Steel Pty Ltd v Nixon, (Court of Appeal, unreported 13 April 1995) and Leonie Holdings Pty Ltd v JW Kirkwood Pty Ltd, (Court of Appeal, unreported 9 June 1995).