TRANSFIELD v MASTROIANNI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA and HANDLEY JA 23 February 1998 [1998] NSWCA 235 Priestley JA. This application for leave to appeal concerns a judgment of Judge Christie in the District Court made on 27 March 1996 and another judgment of Judge Newton delivered on 5 November 1997 in the same proceedings. Judge Christie had granted an extension of time under the Limitations Act. The ground of appeal for which leave was sought was in regard to Judge Christie's decision that he had not properly applied the principles in the decision of this court in Drayton Coal Mines v Drane. On viewing his Honour's reasons the court is of the view that there is not sufficient prospect of any error being shown of the kind suggested if leave were granted to warrant the granting of leave. So far as the application concerns Judge Newton's decision, three grounds were relied on. The first and third of these concerned matters of factual assessment in the light of the evidence before him with which we do not think the Court of Appeal would be likely to interfere and do not warrant the granting of leave. The second ground however concerns his Honour'sstatement towards the end of his reasons that in his opinion he was not obliged to make an assessment of workers compensation entitlements. The court is of the view that this observation which was acted on by the judge in reaching his final figure for damages raises questions about which there may be doubt and uncertainty at the present time which are of some general importance and which are distinctly arguable in the defendant's interest. Without going further into that, the court is of the view that that aspect of the case ought to be the subject of appeal so that the matter can be properly and fully examined after full argument upon it. That is the only matter of those raised in the summons for leave which the court thinks should be the subject of leave and the grant of leave is limited to that one ground which I will identify by saying it is the ground appearing in para 14(b) under the Grounds heading in the claimant's summons, where underneath the heading 'GROUNDS' follows the subheading 'Nature of the Case'. It also seems likely to the court in view of the probable amounts involved in this case and the general importance of the point to insurers that a costs order would eventually be justified of the kind common in cases regarded as test cases. However, the facts concerning the amounts involved in the present case are not sufficiently clear at the present to warrant the imposition of a condition along those lines. Instead the court thinks there should be the condition imposed upon the grant of leave that the claimant, the defendant below, submit to such order as to costs as the court feels appropriate, even should the claimant/defendant now to be the appellant succeed on the one point upon which leave is being granted. The court is not doing any more than indicating at this point that it is certainly open on what Orders accordingly.