NEW BROKEN HILL CONSOLIDATED LTD & ORS v MICHAEL GILLESPIE [1999] NSWCA 109

New South Wales Court of Appeal CITATION : NEW BROKEN HILL CONSOLIDATED LTD & ORS v MICHAEL GILLESPIE [1999] NSWCA 109 FILE NUMBER(S) : CA 40704/98 HEARING DATE(S) : 16 April 1999 JUDGMENT DATE : 16 April 1999

NEW BROKEN HILL CONSOLIDATED LTD & ORS PARTIES : v MICHAEL GILLESPIE JUDGMENT OF : Handley JA at 1; Powell JA at 19; Beazley JA at 20

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 10578/96 LOWER COURT JUDICIAL OFFICER : Curtis CCJ

COUNSEL : J D Hislop QC/J Doak (Appellant) G Little/P Khansar (Respondent) SOLICITORS : Bartier Perry (Appellant) Buckworth Keady & Chalker (Respondent) CATCHWORDS : EVIDENCE - whether evidence warranted Jones v Dunkel inference - whether failure of trial Judge to deal with relevant and credible evidence error of law CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Mifsud v Campbell (1990) 21 NSWLR 725 DECISION : Dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40704/98 CC 10578/96 HANDLEY JA POWELL JA BEAZLEY JA

16 April 1999

NEW BROKEN HILL CONSOLIDATED LIMITED & ORS v MICHAEL GILLESPIE EVIDENCE - whether evidence warranted Jones v Dunkel inference - whether failure of trial Judge to deal with relevant and credible evidence error of law A mine worker had been awarded compensation for an injury to his shoulder. The employers appealed alleging two errors of law. The first was that the Judge had erred in drawing a Jones v Dunkel inference against the employers for failing to call a witness. The second was that the trial Judge had failed to deal with relevant and credible evidence called by the employers. HELD, dismissing the appeal: The appellant had failed to establish legal error. ORDER Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40704/98 CC 10578/96 HANDLEY JA POWELL JA BEAZLEY JA