New South Wales Court of Appeal CITATION: QBE Workers Compensation (NSW) Ltd v Pearsall No 2 [2005] NSWCA 293 HEARING DATE(S): 25/08/05 JUDGMENT DATE: 1 September 2005 JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Brownie AJA at 3 DECISION: Motion dismissed with costs. CATCHWORDS: No question of principle LEGISLATION CITED: Workers Compensation Act 1987 QBE Workers Compensation (NSW) Ltd - A PARTIES: Harry Pearsall - R FILE NUMBER(S): CA 40691/04 A: Mr J E Maconachie QC/Mr I Judd COUNSEL: R: Mr L King SC/Mr K Pierce A: Hunt & Hunt SOLICITORS: R: Roach & Halligan LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 20901/01 LOWER COURT JUDICIAL OFFICER: Smart AJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40691/04 CL20901/01 BEAZLEY JA IPP JA BROWNIE AJA Thursday 1 September 2005 QBE WORKERS COMPENSATION (NSW) LTD v HARRY PEARSALL Judgment (No 2) 1 BEAZLEY JA: I agree with Brownie AJA 2 IPP JA: I agree with Brownie AJA. 3 BROWNIE AJA: In a notice of motion dated 3 August 2005 the claimant (who was the plaintiff at trial, and the respondent on the appeal) sought leave to file a cross appeal, out of time. The judgment under appeal was given on 6 August 2004. A notice of appeal was filed on 23 August 2004, and the appeal was heard on 21 June 2005, when the Court reserved judgment. On the hearing of the appeal the claimant was represented by senior and junior counsel, and solicitors. Nothing was said then about any contemplated cross appeal. As it happened, the Court was ready to deliver judgment when first advised by the Registrar of the filing of the notice of motion. 4 The motion is supported by two affidavits of the claimant, dated 3 and 18 August 2005. Those affidavits deal generally with the topics sought to be advanced on the hearing of the proposed cross appeal, but not with the reason for the delay in seeking to bring a cross appeal. As was explained during the hearing of the motion, the delay is great, there is a significant public interest in the prompt resolution and in the finality of litigation, and the Court can only act upon evidence. Evidence is needed to explain the delay, and there is none. 5 However, there are further reasons why the motion should be dismissed, in that the proposed cross appeal appears to be doomed to failure, if there were to be a hearing of that cross appeal on the merits. 6 The claimant points to various contentions that he wishes to make concerning the supposed inadequacy of the damages awarded to him. However, some of these contentions appear to be predicated upon the assumption that the damages were to be assessed according to the principles of the common law, whereas they had to be assessed pursuant to the provisions of the Workers Compensation Act 1987. It is said that inadequate compensation was awarded for continuing economic loss. Whilst the Court has not heard argument directed to these precise propositions, there was considerable argument advanced for and against the proposition urged on behalf of the opponent/appellant/defendant, that the sums awarded were excessive, and upon my consideration of what was submitted then, the proposed cross appeal has no realistic prospects of success, on this topic. Further, some elements of the claim now advanced (future expenses for hydrotherapy, membership fees of a health club, and the capital cost of the purchase of a motor vehicle as distinct from the better equipping of the vehicle already owned by the claimant) appear not to have been advanced at trial. 7 Some of the documents that the claimant wishes this Court to consider on the proposed cross appeal where in fact in evidence at the trial, and there are copies of them in the appeal book (documents A, B, G and H, referred to in the annexure to the affidavit of 18 August 2005). Others (documents C, E and I) predated the trial, and there is no explanation as to why they were not produced at the trial. Document D and, I am prepared to assume, document F (reports from Dr Hanson dated 16 August 2005 and 22 July 2004 – after the date of the hearing but before judgment) might theoretically fall into the category of fresh evidence, for appeal purposes, but they do not really change things significantly when read, as they would have to be read if there were to be a hearing of the cross appeal on the merits, together with all the other evidence. 8 Paragraph 3 of the notice of motion seeks an order concerning the provision of pro bono legal assistance. I take this to be a reference to Part 66A of the Supreme Court Rules. Having regard to what I have said, I do not consider that at this stage it is in the interests of the administration of justice that the Court acts in the manner requested. 9 I propose that the Motion be dismissed with costs. ********** 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.