New South Wales Court of Appeal CITATION : HARBISON v HARBISON & ANOR [2001] NSWCA 185 FILE NUMBER(S) : CA 40297/00 HEARING DATE(S) : 31 May 2001 JUDGMENT DATE : 21 June 2001 PARTIES : Roger Richard HARBISON v Colin Richard HARBISON & Anor JUDGMENT OF : Mason P at 1; Stein JA at 1; Ipp AJA at 1 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 45197/98 FILE NUMBER(S) : LOWER COURT Armitage CCJ JUDICIAL OFFICER : Appellant: J D Hislop QC/ J Callaway COUNSEL : lst Respondent: M Cranitch SC/ J Roberts 2nd Respondent: Submitting appearance Appellant: Price Waterhouse Coopers Legal SOLICITORS : 1st Respondent: Commins Hendricks 2nd Respondent: W Clinton, Workcover NSW CATCHWORDS : Workers Compensation - "curative apparatus" - leave granted to argue correctness of Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318 DECISION : Hearing to be relisted. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40297/00 CC 45197/98 MASON P STEIN JA IPP AJA Thursday 21 June 2001 Roger Richard HARBISON v Colin Richard HARBISON & Anor JUDGMENT 1 THE COURT: The principal and possibly sole question of law arising in this appeal is the meaning of "curative apparatus" in the definition of "medical or related treatment" in s59 of the Workers Compensation Act 1987. 2 The first respondent submits that the case is indistinguishable from Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318. The appellant seeks to distinguish Bresmac. Alternatively the appellant seeks leave to argue that Bresmac was wrongly decided on the relevant issue. 3 We are persuaded that this is a proper case to grant that leave. A principal reason is s61 of the Act which does not appear to have been considered in Bresmac and to which we were not referred in submissions at or before the hearing. 4 In accordance with the Court's usual practice the question will be referred to a bench of five judges for reconsideration. When the matter was raised with counsel, the respondent indicated that he would not consent to the matter being addressed on the papers by the additional members of the Court. The appellant's written submissions did not foreshadow a challenge to Bresmac. Nor was the Court given any advance notice of the intention to raise the issue. In these circumstances it is appropriate that the appellant pay the costs thrown away. 5 For these reasons we make the following orders: 1. Hearing of the appeal to be relisted on a date fixed by the Registrar in consultation with the parties. 2. Appellant to pay the first respondent's costs thrown away in relation to the hearing on 31 May 2001. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.