COASTWIDE STEEL & METAL WORK PTY LIMITED v Jason James DOUGLAS [2008] NSWCA 330

New South Wales Court of Appeal

CITATION: COASTWIDE STEEL & METAL WORK PTY LIMITED v Jason James DOUGLAS [2008] NSWCA 330

HEARING DATE(S): 19 November 2008 JUDGMENT OF: Allsop P at 1; Ipp JA at 12; Basten JA at 13

EX TEMPORE JUDGMENT DATE: 19 November 2008

1. In addition to the orders of the Court made on 5 August 2008 and in lieu of the orders of the District Court made on 29 June 2007, other than as to costs and with effect from 29 June 2007: DECISION: (a) order that there be judgment for the plaintiff (respondent to the appeal) against the defendant (appellant to the appeal) in the sum of $162,813.86; (b) order that interest after judgment payable under the Civil Procedure Act 2005, s 101, be paid, calculated on the difference from time to time between the said judgment sum of $162,813.86 and amounts of workers compensation paid after 29 June 2007 as a condition of a stay pending the appeal noting that for the avoidance of doubt any such calculations would be principally by reference to the exchange of letters between the solicitors dated 18 September 2008; 2. Notice of motion dated and filed 8 August 2008 be dismissed with costs.

CATCHWORDS: APPEAL – re-opening of appeal – setting aside of order as to costs – new issue not raised at trial – raising of points previously abandoned – finality in litigation – no explanation of legitimacy of change of course – prejudice – respondent should not be required to assess how conduct of appeal may have been different

LEGISLATION CITED: Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW)

CASES CITED: Asplundh Tree Expert (Australia) Pty Ltd v Robertson [2005] NSWCA 471 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; [2001] 117 FCR 424