Boral Besser Masonry Ltd v Jabarkhill [1999] NSWCA 476

New South Wales Court of Appeal CITATION : Boral Besser Masonry Ltd v Jabarkhill [1999] NSWCA 476 FILE NUMBER(S) : CA 40903/98 HEARING DATE(S) : 15 September 1999 JUDGMENT DATE : 21 December 1999

PARTIES : Boral Besser Masonry Ltd v Mohammed Jabarkhill JUDGMENT OF : Mason P at 1; Priestley JA at 2; Stein JA at 21

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : CC 7716/97 LOWER COURT JUDICIAL OFFICER : His Honour Judge Walker

COUNSEL : Appellant - J.D. Hislop QC / J. Catsanos Respondent - P. Webb QC / B. Batchelor SOLICITORS : Appellant - Moray & Agnew Respondent - Galuzzo Golotta Adriano Simone CATCHWORDS : Workers compensation; trial practice CASES CITED: Belan v Liner Freight Services Pty Ltd (1994) 10 NSWCCR 357 MMI Workers Compensation (NSW) v Kennedy (Court of Appeal, 17/9/93, unreported) DECISION : Appeal allowed - new trial ordered

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40903/98 CC 7716/97

MASON P PRIESTLEY JA STEIN JA

Tuesday, 21 December 1999

BORAL BESSER MASONRY LTD v JABARKHIL

WORKERS COMPENSATION - TRIAL PRACTICE - orders made for applicant worker on basis neither pleaded nor otherwise contended for by worker - no notice by trial judge of intention to decide case on this basis - per Mason P and Priestley JA, (Stein JA dissenting), no opportunity to employer to be heard in regard to the case as decided by trial judge - orders set aside - new trial ordered. ORDERS 1. Appeal allowed. 2. Orders of trial judge set aside. 3. There is to be a new trial of the worker's claims in the Compensation Court. 4. Respondent to bear appellant's costs of appeal. 5. Respondent to have a certificate under the Suitors Fund Act.