HOWLETT v WESTCLIFF COLLIERY PTY LIMITED [1997] NSWCA 156

HOWLETT v WESTCLIFF COLLIERY PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and POWELL JA 8 September 1997

[1997] NSWCA 156

Priestley JA. As in the previous case this application has been well presented on behalf of the claimant.

The case itself might perhaps be characterised as having been a borderline one before the trial judge. He had to exercise a discretion and he exercised it adversely to the claimant, giving what appears to the court to be a reasonably comprehensive explanation of why he did so. In the course of his explanation he made no error as to the approach he should take in deciding how he would exercise his discretion, and so far as the court can see, and bearing in mind the arguments that have been put, he disclosed no misunderstanding of the facts before him. He took into account all the matters he should have taken into account on both sides, and took nothing into account which he should not have taken into account.

The criticisms advanced in argument have really been of the weight the gave to various factors he had to consider. The court sees no error in his having given the weight that he did to the matters that he discussed in his reasons.

The court is therefore of the view the application should be dismissed with costs.

Orders accordingly.