Patrick Stevedores No 1 Pty Ltd v Kilkelly [2004] NSWCA 237

New South Wales Court of Appeal

CITATION : Patrick Stevedores No 1 Pty Ltd v Kilkelly [2004] NSWCA 237 HEARING DATE(S) : 25 May 2004 JUDGMENT DATE : 16 July 2004

JUDGMENT OF : Giles JA at 1; McColl JA at 89; Cripps AJA at 90 DECISION : In CA 40444/00: (1) So far as necessary, extend the time to apply for leave to cross-appeal and grant leave to cross-appeal; (2) Dispense with filing and service of a notice of cross-appeal; (3) Set aside the order 4 made on 1 June 2000, and in lieu thereof order that the defendant pay the plaintiff's costs; (4) Appeal otehrwise dismissed and cross-appeal dismissed. In CA 40552/03: (5) Grant leave to appeal; (6) Dispense with filing and service of a notice of appeal; (7) Appeal allowed; (8) Set aside the orders made on 4 June 2003. Generally: (9) Order the appellant to pay 70 per cent of the respondent's combined costs of the appeal and application for leave to appeal.

CATCHWORDS : PERSONAL INJURY - employee injured by negigence in operation of portainer - crane-like equipment running on rails used for unloading containers - whether damages assessed under Motor Accidents Act or Workers Compensation Act - whether portainer a motor vehicle within meaning of former Act - whether portainer "used on a railway or tramway" - held no because not on rails of a transport system on which trains or trams run. DAMAGES - whether error in assessment of damages for non-economic and economic loss - no question of principle. COSTS - 1992 motor vehicle accident - 1995 workplace accident - proceedings heard together - plaintiff successful in both - recovered less than offer of compromise made by defendant in motor vehicle accident proceedings - ordered to pay some of that defendant's costs - Bullock order that defendant in workplace accident proceedings pay those costs - order made in workplace accident proceedings - judge later purported to vary orders to make it in motor vehicle accident proceedings - whether grounds to vary orders - whether Bullock order properly made at all - held no and no. D Booker v State Rail Authority of New South Wales (No 1) (1992) 31 NSWLR 393; Booker v State Rail Authority of New South Wales (No 2) (1993) 31 NSWLR 402; DNM Mining Pty Ltd v Barwick [2004] NSWCA 137; CASES CITED : NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8; Purkess v Crittenden (1965) 114 CLR 164; Sved v Council of the Municipality of Woollahra (1998) NSW Con R 55-842; Watts v Rake (1960) 108 CLR 158. PARTIES : Patrick Stevedores No 1 Pty Ltd - Appellant Bryan Joseph Kilkelly - Respondent FILE NUMBER(S) : CA 40444/00; 40552/03 COUNSEL : K W Andrews - Appellant A Lakeman - Respondent SOLICITORS : Gillis Delaney Brown - Appellant G H Healey & Co - Respondent