EMAIL LTD v KADDOUR WESTON MILLING (A DIVISION OF GEORGE WESTON FOODS) v LUCIANO [1996] NSWCA 172

EMAIL LTD vy KADDOUR WESTON MILLING (A DIVISION OF GEORGE WESTON FOODS) v LUCIANO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, CLARKE and COLE JJA 27 March 1996, 27 March 1996

[1996] NSWCA 172

COSTS — Workers Compensation — no principle that applicant disentitled to costs merely because he commences proceedings before seeking Medical Panel Certificate — discretionary matter for trial judge.

Cole JA These two matters were by consent heard together. The two matters come to this Court pursuant to leave granted two days ago on the basis of an assurance that these matters raised questions of principle. It is not at all clear to me that they do raise any significant question of principle at all.

Nonetheless we were informed from the bar table that in the Workers Compensation Court there is an area of disagreement regarding the manner in which the discretion to award costs ought to be exercised in circumstances similar to the two cases now before the Court. On that basis the Court has entertained the hearing of these appeals.

Being appeals in relation to the discretionary exercise to award costs, an appellant faces a difficult task, as is apparent from cases such as House v The King!. On such an appeal the appellant must show either that the Trial Judge acted upon a wrong principle, gave weight to extraneous or irrelevant matters, failed to give weight or sufficient weight to relevant considerations or was mistaken as to essential facts. In my opinion none of those matters have here been shown and in those circumstances the appeal ought to be dismissed.

Nonetheless in deference to the argument addressed and to the disagreement which we have been told exists in the Compensation Court, something should be said regarding the substance of the matters argued before us.

The matters before the Compensation Court related to claims by two workers who asserted that they had suffered a loss in the nature of boilermakers' deafness.