Alvorac General Engineering Pty Limited v Arlotta - [1993] HCATrans 277

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No S43 of 1993

B e t w e e n -

ALVORAC GENERAL ENGINEERING PTY
LIMITED

Applicant

and
JOSEPH ARLOTTA

Respondent

Application for special leave
to appeal

BRENNAN J
DAWSON J
TOOHEY J

Alvorac 1 17/9/93
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 17 SEPTEMBER 1993, AT 10.12 AM
Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC: May it please the Court, I appear
with my learned friend, MR J.L. SHARPE, for the
applicant, the respondent employer below.
(instructed by Vandervords)

MR M.J. JOSEPH: May it please, the Court, I appear for the
respondent. (instructed by Turner Freeman)

BRENNAN J: Yes, Mr Hughes.

MR HUGHES: Your Honours, may I first of all hand up .an
outline of what we wish to put to the Court, to
which are attached the relevant statutory
provisions. There are four copies, Your Honours.

BRENNAN J: Thank you.
MR HUGHES: Second, may I hand up and seek to rely upon an

amended draft notice of appeal. When I looked at
the draft in the papers, Your Honours, it seemed
that it was in some respects rather non-specific.
So I have had another go at it.
Your Honours, this is a case which, in our submission, attracts the grant of special leave for
these shortly stated reasons: first of all, it
raises a question as to the construction of an
important provision of the Workers Compensation Act
of New South Wales, namely section 67, to which I

will come. The point of construction turns on the
rather unusual expression used as a benchmark for
awarding an amount for pain and suffering in
respect of various schedule injuries, "a most

extreme case". I will come to the section in a
moment.
The other point which we say attracts the grant of special leave is that the Workers
Compensation Court, Her Honour Judge O'Toole, awarded interest or ordered interest to be paid on

the amount of the award for pain and suffering
under section 67 of the main Act at half the
statutory rate which, at the time, was 17 per cent.
The amount was reduced to reflect the fact that the
pain and suffering in respect of which interest was
capable of being ordered was accruing from time to
time between the date of injury and the date of
trial. What we say, however, is that the
Compensation Court ought to have awarded interest
at the sort of rate approved by this Court in the
case of MBP SA Pty Ltd v Gogic, 171 CLR 657.
There is a third point but it is subordinate

to the other two and, of itself, I could not
suggest that it would possibly attract a grant of
special leave, and that is the failure of the trial

Alvorac 2 17/9/93
judge, countenanced by the Court of Appeal, to
split the award for pain and suffering between pre-
trial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1993] HCATrans 277
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal by Alvorac General Engineering Pty Limited, the respondent employer below, against the respondent, Mr Arlotta. The dispute concerned the interpretation and application of provisions within the Workers Compensation Act of New South Wales, specifically section 67, which deals with awards for pain and suffering in respect of scheduled injuries.

The applicant sought special leave to appeal on two primary grounds. Firstly, it raised a question regarding the construction of section 67, particularly the phrase "a most extreme case" used as a benchmark for awarding compensation for pain and suffering. Secondly, the applicant challenged the Workers Compensation Court's decision to award interest on the pain and suffering component of the award at half the statutory rate, arguing that the rate should have been determined in accordance with the principles established by the High Court in *MBP SA Pty Ltd v Gogic*. A subordinate point concerned the failure to split the award for pain and suffering to differentiate between pre-trial and future suffering for the purpose of calculating interest.

The High Court, through Brennan J, indicated that the issues raised appeared to be matters more appropriately dealt with by the Court of Appeal, given their nature as statutory interpretation points concerning an important New South Wales statute. Mr Hughes, for the applicant, contended that the frequency with which section 67 is applied in the Workers Compensation Court, with a significant volume of cases involving similar points being heard, justified the High Court's consideration. However, Dawson J questioned whether the matter was largely a question of fact. The transcript does not contain the final orders or outcome of the special leave application.

Orders