HARBISON v HARBISON

[2001] NSWCA 185

CITATION:	HARBISON v HARBISON & ANOR [2001] NSWCA 185
FILE NUMBER(S):	CA 40297/00
HEARING DATE(S):	31 May 2001
JUDGMENT DATE:	21 June 2001
PARTIES :	Roger Richard HARBISON v Colin Richard HARBISON & Anor
JUDGMENT OF:	Mason P at 1; Stein JA at 1; Ipp AJA at 1

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 45197/98
LOWER COURT JUDICIAL OFFICER :	Armitage CCJ

COUNSEL:	Appellant: J D Hislop QC/ J Callaway lst Respondent: M Cranitch SC/ J Roberts 2nd Respondent: Submitting appearance
SOLICITORS:	Appellant: Price Waterhouse Coopers Legal 1st Respondent: Commins Hendricks 2nd Respondent: W Clinton, Workcover NSW
CATCHWORDS:	Workers Compensation - "curative apparatus" - leave granted to argue correctness of Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318
DECISION:	Hearing to be relisted.

CA 40297/00

CC 45197/98

MASON P

STEIN JA

IPP AJA

Roger Richard HARBISON v Colin Richard HARBISON & Anor

JUDGMENT

1   THE COURT: The principal and possibly sole question of law arising in this appeal is the meaning of “curative apparatus” in the definition of “medical or related treatment” in s59 of the Workers Compensation Act 1987.

2   The first respondent submits that the case is indistinguishable from Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318. The appellant seeks to distinguish Bresmac. Alternatively the appellant seeks leave to argue that Bresmac was wrongly decided on the relevant issue.

3   We are persuaded that this is a proper case to grant that leave. A principal reason is s61 of the Act which does not appear to have been considered in Bresmac and to which we were not referred in submissions at or before the hearing.

4   In accordance with the Court’s usual practice the question will be referred to a bench of five judges for reconsideration. When the matter was raised with counsel, the respondent indicated that he would not consent to the matter being addressed on the papers by the additional members of the Court. The appellant’s written submissions did not foreshadow a challenge to Bresmac. Nor was the Court given any advance notice of the intention to raise the issue. In these circumstances it is appropriate that the appellant pay the costs thrown away.

5   For these reasons we make the following orders:

1. Hearing of the appeal to be relisted on a date fixed by the Registrar in consultation with the parties.
2. Appellant to pay the first respondent’s costs thrown away in relation to the hearing on 31 May 2001.