B.W. Esler Services Pty Limited v Dulhunty

B.W. Esler Services Pty Limited (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Compensation Court. The dispute concerned the termination of weekly compensation payments made by the appellant to the respondent, Mr. Dulhunty.

The primary legal issue before the Court of Appeal was whether an appeal lay from an interlocutory decision of the Compensation Court where the claim or question did not involve an amount of $20,000 or more. A further issue arose regarding whether the Court of Appeal should consider a point of law not taken in the Compensation Court, particularly if that point could have been cured at trial.

The Court of Appeal, by majority, upheld the appeal. The majority found that the decision of the Compensation Court was not a final award but an interlocutory one, and therefore, an appeal lay to the Court of Appeal under the relevant legislation, notwithstanding the monetary threshold. The Court also considered the principle that points not taken below are generally not allowed on appeal, but exceptions exist where the point is one of law and could not have been cured at trial. The majority determined that the point of law raised by the appellant was of this nature and should be considered.