Dellecoste v Candos [2003] NSWCA 30 (17 February 2003)

Last Updated: 5 March 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: DELLECOSTE v CANDOS [2003] NSWCA 30

FILE NUMBER(S):

40108/02

HEARING DATE(S): 17 February 2003

JUDGMENT DATE: 17/02/2003

PARTIES:

SERGE DELLECOSTE

v

CANDOS PTY LTD trading as Appollo Metal Works

JUDGMENT OF: Handley JA Giles JA Hodgson JA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): CC 46882/98

LOWER COURT JUDICIAL OFFICER: Hughes CCJ

COUNSEL:

Appellant - G Thomas

Respondent - D Priestley

SOLICITORS:

Appellant - R F Bergagnin & Co

Respondent - Timothy J Doubleday

CATCHWORDS:

APPEAL - from Compensation Court - no error of law - no question of principle

LEGISLATION CITED:

Compensation Court Act 1984

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40108/02

CC 46882/98

HANDLEY JA

GILES JA

HODGSON JA

17 February 2003

SERGE DELLECOSTE v CANDOS PTY LIMITED

T/as Appollo Metal Works

Judgment

1 HANDLEY JA: When this appeal was called on Mr Dellecoste was unrepresented. He has appealed from an award in his favour by the Compensation Court, which was less favourable than the award he sought. His handwritten submissions dealt with various complaints of error by the trial Judge, but these errors, if such they were, were of a factual nature and he had failed to identify any error of law. This is not surprising, as he was unqualified and appearing for himself.

2 The Court drew attention to the restriction on the Court's jurisdiction in appeals from the Compensation Court in s 32 of the Compensation Court Act 1984, and asked Mr Dellecoste if he could identify any error of law in the Judge's reasons. He was unable to do so, but in accordance with the traditions of the bar, Mr Thomas, who was appearing for the respondent in the next appeal, said he would advise Mr Dellecoste during the adjournments, and he has done so. When the appeal was again called on he announced his appearance for the appellant.

3 He has sought to identify errors of law in the reasons for judgment of Hughes CCJ, and formulated four such errors. Unfortunately these, on their face, are not errors of law, but alleged errors in the Judge's fact finding.

4 The discussion which followed between the Court and counsel has demonstrated in my judgment that none of the grounds could establish an error of law. None of the grounds asserted that there was no evidence on which the Judge could make the finding in question.

5 As Glass JA pointed out in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, 156 findings by a tribunal of fact against the party that bears the onus of proof can never be challenged for lack of evidence because it is always open to the tribunal of fact to find against the party with the legal onus.

6 The other area where errors of law may be identified is where the trial Judge misdirects himself as to the issue of fact which has to be determined. No such misdirection has been identified.

7 Mr Thomas relied in particular upon the Judge's finding in paragraph 11 of his reasons that "I do not find the nature and conditions of his work resulted in any injury nor do I find that there is a disease process at work". However this is a finding against the party bearing the onus and as such it does not raise a question of law.

8 Mr Thomas then submitted that this finding was vitiated for failure to give reasons. There is some substance in this point, but unfortunately for the appellant, it leads nowhere, because the Judge has endeavoured to fully assess the worker's incapacity and he did so on the basis of the evidence of Dr Pillemer, who took into account in the impact on this worker's back of the nature and conditions of his work. Any error in failure to give reasons for this finding is therefore an immaterial one and would not require this Court to order a new trial.

9 In the circumstances, I would propose that the appeal should be dismissed with costs.

10 GILES JA: I agree.

11 HODGSON JA: I also agree.

12 HANDLEY JA: The order of the Court is appeal dismissed with costs.

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LAST UPDATED: 04/03/2003