Manning v New South Wales Sugar Milling Co-operative Ltd

[2003] NSWCA 230

CITATION:	MANNING v NEW SOUTH WALES SUGAR MILLING CO-OPERATIVE LTD [2003] NSWCA 230
HEARING DATE(S):	14 August 2003
JUDGMENT DATE:	28 August 2003
JUDGMENT OF:	Mason P at 1; Sheller JA at 2; Foster AJA at 26
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Workers Compensation - Compensation payable on death - Definition of "injury" - Workers' Compensation Act 1987 ss4, 15, Schedule 6 Part 3 - Workers' Compensation Act 1926
LEGISLATION CITED:	Workers' Compensation Act 1926 Workers Compensation Act 1987 Workers Compensation (Amendment) Act 1989
CASES CITED:	Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) 13 NSWCCR 724 Flaherty v Girgis (1987) 162 CLR 574 GIO Workers Compensation (New South Wales) Ltd v GIO General Limited & Anor (1995) 12 NSWCCR 187 Hume Steel Ltd v Peart (1947) 75 CLR 242 R v Reynhouldt (1962) 107 CLR 381 Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 The Commonwealth v Hornsby (1960) 103 CLR 588 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
PARTIES :	Barbara Ruth Manning - Appellant NSW Sugar Milling Co-Operative Ltd - Respondent
FILE NUMBER(S):	CA 40616/02
COUNSEL:	JD Hislop QC - Appellant JA McIntyre SC - Respondent (Corporate Management Services) GB Beauchamp/MJ Gollan - Respondent (Allianz Australia Workers Compensation (NSW) Ltd)
SOLICITORS:	Lee Sames Egan - Appellant Hunt & Hunt - Respondent (Corporate Management Services) Dexter Healey - Respondent (Allianz Australia Workers Compensation (NSW) Ltd)

LOWER COURTJURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	1214/01
LOWER COURT JUDICIAL OFFICER :	Hughes J

CA 40616/02
CC 1214/01

MASON P
SHELLER JA
FOSTER AJA

MANNING v NEW SOUTH WALES SUGAR MILLING CO-OPERATIVE LIMITED

The appellant is the widow of Donald Manning. On 2 October 1979 the deceased was injured in a motor vehicle accident while on a journey within the meaning given to that word in s7(1) of the Workers’ Compensation Act 1926. As the result of that accident the deceased became quadriplegic and never worked again. In consequence of his quadriplegia he developed diseases that were admitted to be of such a nature as to be contracted by a gradual process.

On 29 April 2000 the deceased died from a cardiac arrhythmia due to severe and chronic heart disease consequent on chronic renal failure, which resulted from his quadriplegia.

HELD (Per Sheller JA, Mason P and Foster AJA agreeing):

1. A worker who suffers a disease injury may yet be able to contend that he suffered “personal injury”. His injury will fall within the definition if it arose out of or in the course of his employment: Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310 followed.

2. If the injury does not come within s4(a) of the Workers Compensation Act 1987 and is included as a disease under s4(b)(i), the disease must have been contracted by the worker in the course of employment and the employment must have been a contributing factor: Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310 followed.

3. The facts of this case did not permit a finding that the cardiac arrhythmia suffered by the deceased was a personal injury within the meaning of par (a) of s4. There was no evidence, expert or otherwise, of rupture or breaking or tearing as an ingredient or consequence of the disease.

4. That being the case, the injury from which the deceased’s death resulted was the personal injury that made the deceased quadriplegic, an injury suffered and therefore occurring before the commencement of the 1987 Act.

Legislation cited:

Workers’ Compensation Act

1926

Workers Compensation Act

1987

Workers Compensation (Amendment) Act

1989

Cases cited:
Alto Ford Pty Ltd v Antaw

(1999) 18 NSWCCR 246

Bohanna & Appleton t/as Anscot Partnership v Bohanna

(1996) 13 NSWCCR 724

Flaherty v Girgis

(1987) 162 CLR 574

GIO Workers Compensation (New South Wales) Ltd v GIO General Limited & Anor

(1995) 12 NSWCCR 187

Hume Steel Ltd v Peart

(1947) 75 CLR 242

R v Reynhouldt

(1962) 107 CLR 381

Slazengers (Australia) Pty Ltd v Burnett

[1951] AC 13

The Commonwealth v Hornsby

(1960) 103 CLR 588

Zickar v MGH Plastic Industries Pty Ltd

(1996) 187 CLR 310

ORDERS

Appeal dismissed with costs.

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CA 40616/02
CC 1214/01

MASON P
SHELLER JA
FOSTER AJA

Thursday, 28 August 2003

MANNING v NEW SOUTH WALES SUGAR MILLING CO-OPERATIVE LIMITED

Judgment

1 MASON P: I agree with Sheller JA.

2 SHELLER JA:

Introduction

The appellant, Barbara Ruth Manning, is the widow of Donald Manning. On 2 October 1979 the deceased, while on a journey referred to in s7(1) of the Workers’ Compensation Act 1926, then in force (the 1926 Act), was involved in a motor vehicle accident. As the result of that accident the deceased became quadriplegic and never worked again. In consequence of his quadriplegia he developed diseases which were admitted to be of such a nature as to be contracted by a gradual process. The deceased was paid benefits pursuant to the 1926 Act and pursuant to the Workers Compensation Act 1987 (the 1987 Act), all relevant provisions of which commenced on 30 June 1987.

3 On 29 April 2000 the deceased died from a cardiac arrhythmia due to severe and chronic heart disease consequent on chronic renal failure, which resulted from quadriplegia at the time of the motor vehicle accident. In the opinion of a doctor, and this was not in dispute, “the medical complications secondary to the deceased’s quadriplegia were in the nature of a disease”. His widow was a dependant within the meaning of ss 9 and 25 of the 1987 Act. Section 9 relevantly provided that in the case of the death of a worker who had received an injury, his or her dependants should receive compensation from the worker’s employer in accordance with the Act. Such compensation was payable whether the injury was received by the worker at or away from the worker’s place of employment. Section 25 in Division 1 “Compensation payable on death” of Pt 3 of the 1987 Act relevantly provided that if death “results from an injury” and the worker left any dependants wholly dependent for support on the worker, specified amounts of compensation should be payable by the employer.

4 The widow applied to the Compensation Court of New South Wales for compensation under s25. The issue before the Court was whether or not she was entitled to death benefits payable as specified by the 1926 Act or as specified by the 1987 Act. The death benefits payable under s8(1) of the 1926 Act were significantly less than those payable under s25(1) of the 1987 Act.

5 On 27 June 2002 his Honour Judge Hughes, who heard the application, decided that the compensation payable to the widow was the whole of the sum available pursuant to the 1926 Act. From this decision she appealed to this Court. The grounds of appeal were as follows:

“1. His Honour erred in:
(a) Holding that the disease of gradual process from which the deceased died could not be an injury that arose out of or in the course of employment;
(b) Not finding such disease was an injury within the meaning of the relevant workers compensation legislation;
(c) Not finding the appellant was entitled to benefits under s25 of the Workers Compensation Act 1987;
(d) Concluding that by reason of Sch 6.3.2 of the Workers Compensation Act the appellant was to be compensated pursuant to the Workers Compensation Act 1926.
(e) Failing to provide adequate reasons.”

The statutory provisions

6 By Sch 5, s281 of the 1987 Act repealed the whole of the 1926 Act. Section 282, headed “Savings, transitional and other provisions”, gave effect to Sch 6 of the Act with the same heading. Part 3 of Sch 6 (as in force at the relevant date), headed “Provisions relating to compensation payable on death”, provided, so far as relevant, as follows:

“ 1 Application of Act irrespective of date of death
Subject to this Schedule, Division 1 of Part 3 of this Act applies whether the death occurred before or after the commencement of that Division.
2 Amount of compensation – former Act applies in the case of deaths resulting from injuries received before commencement of Act
(1) The amount of compensation payable under Division 1 of Part 3 of this Act shall, if the death results from an injury received before the commencement of that Division, be the amount (if any) payable under the former Act.
(2) If the worker dies after the commencement of Division 1 of Part 3 of this Act as a result of such an injury, the amount payable under section 8(1)(a) of the former Act shall be $91,850.
…
(6) If the death of a worker results from both an injury received before the commencement of Division 1 of Part 3 of this Act and an injury received after that commencement, the worker shall, for the purposes of determining the amount of compensation payable in accordance with this clause, be treated as having died as a result of the injury received after that commencement.”

7 In accordance with Pt 3.2.2 of Sch 6, the Compensation Court awarded the appellant the lump sum of $91,850. The widow claimed that she should have been awarded a lump sum in accordance with Pt 3.2.6 of Sch 6 on the basis that the death of her husband resulted from both an injury received before the commencement of Div 1 of Pt 3 and an injury received after that commencement. A critical question was whether the deceased had received an injury after the commencement of Div 1 of Pt 3.

8 Section 4 of the 1987 Act provided, so far as presently relevant:

“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
…”

9 Section 15 of the 1987 Act, so far as presently relevant, provided:

(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”

Judgment below

10 Judge Hughes said:

“6. However, whilst the cause of death may have been a disease of gradual process the injury he suffered was that of quadriplegia which of course is not a disease of gradual process but rather an unfortunately sudden severing of the spinal column at some point. To qualify for the death benefit under the 1987 Act the injury under its definition had to be contracted by the worker arising out of or in the course of his employment post 1 July 1987.
7. After 7 October 1979 the deceased was of course totally and permanently incapacitated and never worked again. He died of a disease of gradual process which was admitted but the disease did not arise whilst he was employed and hence could not be an injury that did arise out of or in the course of his employment.”

11 His Honour distinguished GIO Workers Compensation (New South Wales) Limited v GIO General Limited & Anor (1995) 12 NSWCCR 187, and Bohanna & Appleton t/as Anscot Partnership v Bohanna (1996) 13 NSWCCR 724. As to the second of these cases he said:

10. … I distinguish that case because the injury was an injury to the eye which resulted in the loss of an eye but the incapacity occurred post 1987 and the sole affected part was the eye. It is not the same as quadriplegia and incapacity arising ante 1987 and resulting in the death by cardiac arrhythmia due to severe and chronic heart disease consequent on the chronic renal failure resulting from quadriplegia because the quadriplegia was not the cause of death but rather the complications of the nature of a disease. The applicant did not have an injury which was in the nature of a disease of gradual process which resulted in an incapacity. He had an injury which severed his spinal column.
11. I find that Sch 6.3.2 of the Act properly applies to the facts of this case. There is no doubt that the death of the deceased resulted from an injury occurring before the commencement of the 1987 Act as it is admitted in this case. I am satisfied that on the non-contested facts the applicant clearly falls into Sch 6.3.2 of the 1987 section Act [sic] and there will be [an] award for the applicant with the rates that apply to injuries occurring during the time of the 1926 Act.
12. I find the deceased Donald Manning died on the 29 April 2000. The applicant, the widow of the deceased was wholly dependent for support upon the deceased at the time of his death. No other person was dependent for support on the deceased at the time of his death. The compensation payable by the respondent in respect of the death of the deceased has been reasonable and proportionate to the injury to the above named dependant is to be the whole of the sum available pursuant to the 1926 Act.”

Discussion

12 On behalf of the widow it was submitted that the deceased suffered from several injuries, including quadriplegia and numerous diseases of gradual process, all of which fell within the definition of injury in par (a) of s4. Paragraph (b) did not apply and was not relied on. His Honour found that the deceased suffered a disease of gradual process from which he died, but said, no doubt with par (b)(i) in mind, that the disease “did not arise whilst he was employed”. There could be no doubt that the disease of gradual process was a result of the quadriplegia and therefore of the motor vehicle accident. Section 10 of the 1987 Act “Journey claims” subs (1) provided that a personal injury received by a worker on any journey to which that section applied was, for the purposes of the Act, “an injury arising out of or in the course of employment” and compensation was payable accordingly. No similar provision was to be found in those parts of s7 of the 1926 Act which dealt with journey injuries; see Hume Steel Ltd v Peart (1947) 75 CLR 242 at 253, 254, 255-6 and 260 and compare Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 at 22.

13 Schedule 6 Pt 2.2.1 of the 1987 Act provided that in the case of a personal injury received by a worker before the commencement of s10 of the Act on a journey to which that section applied before the commencement of amendments made to that section by the Workers Compensation (Amendment) Act 1989, liability for the payment of compensation should be determined in accordance with the provisions of s7(1) of the 1926 Act instead of that section. The effect of this would seem to be that the deceased’s injury in 1979 during a journey was not to be treated as one arising out of or in the course of employment though the Privy Council in Slazengers (Australia) Pty Ltd v Burnett in the passage referred to may have thought otherwise.

14 Section 4 was analysed by the High Court in Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310, a case where the appellant had collapsed at work as the result of the rupture of a cerebral aneurism, said to be a congenital weakness, and suffered severe brain damage. Opinion amongst the members of the Court as to the meaning of s4 was divided. The Compensation Court had awarded compensation on the footing that the event was within par (a) of the definition of “injury” without deciding whether there was a causal relationship between the employment and the rupture or making a finding whether stress in employment had contributed to the rupture. On the employer’s appeal, this Court, by a majority, held that the incident was not properly characterised as a personal injury within par (a) and that the case should be returned to the Compensation Court for the determination of whether it fell within par (b)(ii). By a majority the High Court allowed an appeal from this Court’s decision, set aside the order of this Court and in lieu thereof ordered that the appeal to the Court of Appeal be dismissed with costs.

15 In their judgment Toohey, McHugh and Gummow JJ, who, with Kirby J, formed the majority, said at 328:

“At the forefront of the appeal is a question of construction of s4. The appellant says that if there is personal injury as described in par (a) the inquiry need proceed no further. If there is not personal injury as described he must rely on par (b) in which case the question of employment as a contributing factor has to be considered. But, he says, the two paragraphs are not mutually exclusive, nor is par (b) to be read as limiting what otherwise would be within the reach of par (a); they simply provide two bases upon which a claim may succeed. The respondent answers that this approach involves an unwarranted fragmentation of the definition of injury. The definition must be read as a whole and if the worker has contracted a disease (and an aneurism is a disease) the worker must establish employment as a contributing factor.”

16 Their Honours having pointed to the re-positioning of the definition of “injury” in its own section in the 1987 Act rather than in the definition section, s6(1) of the 1926 Act, and having noted by reference to R v Reynhoudt (1962) 107 CLR 381 at 388 and Flaherty vGirgis (1987) 162 CLR 574 at 594 the artificiality of the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved, said at 329-331:

“The layout of the definition in s4, which differs from its predecessor, certainly suggests that the first inquiry is whether there has been personal injury, a term which itself is not defined and which therefore must be understood according to ordinary concepts. For present purposes, par (c) can be put to one side. That exclusion is explained by the existence of other legislation dealing expressly with dust disease. That par (a) begins with the word ‘means’ and par (b) begins with the word ‘includes’, suggests that par (b) is designed to give an extended meaning to ‘injury’ by going beyond personal injury and to a disease in the circumstances prescribed. In particular, there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined, and no occasion with this legislation for the imposition of such a construction.
It is clear, at least since Kavanagh v The Commonwealth (1960) 103 CLR 547, that there may be injury by accident although the injury is not attributable to any external agency but results from some force or pressure exerted from within the body. The Act with which we are concerned does not require that there be an accident, only that there be injury. In Kavanagh a Commonwealth employee suffered a ruptured oesophagus and died six days later as a result of broncho-pneumonia and heart failure supervening upon the rupture. The Court held that personal injury by accident had been caused to the employee in the course of his employment. In determining the question of whether the rupture of the gullet was in the circumstances an injury by accident, Dixon CJ said at 553:
‘In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection’.

Fullagar J said at 558: ‘It is not, I think, open to serious question that the rupture of the oesophagus ... was a 'personal injury by accident'.’ His Honour went on at 560 to construe the phrase ‘personal injury by accident’ which differs from the definition with which this case is concerned, by referring to ‘a special class of case’, such as a coronary occlusion, which is a development or culmination of an antecedent morbid condition. He said that the physiological change constituted by the occlusion must be associated with some incident or episode in the worker's employment, such as lifting a heavy weight, before it can be said the worker has suffered a personal injury by accident arising in the course of his employment. Menzies J said at 569: ‘There is no doubt that the rupture was personal injury by accident’. We do not understand the dissenting judges, Taylor and Windeyer JJ, to have thought otherwise. Thus, Windeyer J said at 578:
‘The rupture which was the unlikely and untoward result of vomiting caused by some sudden indisposition was, I have no doubt, an 'injury by accident' in the sense that expression has in this branch of the law. It was quite unlike an episode that is an ordinary consequence of the progress of a disease.’
Their Honours' dissent was because they did not think there had been personal injury by accident in the course of the deceased's employment.”

17 Following this passage their Honours referred to The Commonwealth v Hornsby (1960) 103 CLR 588 particularly at 596 where Fullagar J as an example of personal injury by accident referred to “the rupture of an aneurism or of an oesophagus” and added “it has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg.”

18 Reference was made to what Latham CJ said in Hume Steel Ltd v Peart at 252-3. Their Honours continued at 332:

“The personal injury upon which the appellant relies is the rupture of the arterial wall. There can be no doubt, having regard to the medical evidence and the authorities to which we have referred, that this event constituted personal injury and it is not in dispute that what occurred took place in the course of the appellant's employment. Equally it is not in issue that the aneurism itself, that is the swelling of the blood vessel, was a disease from which the appellant was suffering prior to the rupture. Does the existence of this disease take the matter into par (b) of the definition so that the appellant must show his employment to have been a contributing factor?”

19 At 334 their Honours said:

“It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within par (a) is based on the rupture which occurred. From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.”

20 It is clear enough from this judgment that a worker who suffers a disease injury may yet be able to contend that he suffered “personal injury”. His injury will fall within the definition if it arose out of or in the course of employment. On the other hand if the injury does not come within par (a) and is included as a disease under par (b)(i) the disease must have been contracted by the worker in the course of employment and the employment must have been a contributing factor. It is plain that a rupture of an internal body part due for example to blood pressure or any congenital aetiology is none the less a rupture and none the less a “physical injury”. The only question remaining is whether it arose out of or in the course of employment.

21 In a separate judgment Kirby J concluded that it was not possible to distinguish the facts of the case from those decisions flowing from that of the Privy Council in Slazengers (Australia) Pty Ltd v Burnett where at 20 Lord Simonds said:

“But this at least is clear, that in the Act the word ‘injury’ (unless the context or subject matter otherwise indicates or requires) must bear a very artificial meaning in that it is to include a disease which satisfies certain conditions and must, therefore, according to ordinary rules of construction, exclude any other disease.”

22 To that point Kirby J agreed with the joint judgment of Brennan CJ, Dawson and Gaudron JJ. However, Kirby J held that these authorities were erroneous and should be overruled. His Honour said at 351-2:

“The result is that this Court should reject the reasoning adopted by the Privy Council in Slazengers . Subsequent authorities which have accepted that reasoning should be reconsidered. If leave is required, it should be given. No longer is there a dichotomy between ‘personal injury’ in its full sense and ‘disease injury’ within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a ‘disease’, is whether, notwithstanding that manifestation, the case falls within the primary definition of ‘injury’ as a ‘personal injury arising out of or in the course of employment’. In that context, the word ‘injury’ should not be given a narrow meaning. It should have an ample application, in no way read down because Parliament, additionally, has provided a separate head of recovery for cases of work-related diseases. It is not to the point to complain that this will lead to adventitious outcomes depending upon the nature of the precise ‘injury’. That is inherent in the definitions contained in the 1987 Act. As Powell JA pointed out in the Court of Appeal, it has been a feature of workers' compensation law virtually since the first statute was enacted.
The approach to the definition of ‘injury’ which I favour does not necessarily mean that every catastrophe connected with a progressive disease will fall within the definition of ‘personal injury’, primarily so defined. Whether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a ‘personal injury’ can be left to determination on a case by case basis. It must be assumed that Parliament intended the extended definition, enacted to cover cases of ‘disease’ within s 4(b) of the 1987 Act, to have some operation.
Whatever may be that operation in other cases, the facts of the present case sustain the conclusion of Judge Thompson that the worker suffered a ‘personal injury’. The sudden tear which caused the haemorrhage and the clot constituted a ‘personal injury’. It was no less so because it was internal. It is enough that the ‘injury’ took place in the course of the employment. It is not necessary to show that it arose ‘out of’ such employment. The suggestion that it was necessary to establish a causal connection represented a judicial attempt to set back the clock to a time before Parliament made the phrase disjunctive. We should now renounce that attempt and return to the words of the statute as this Court explained them in Peart. ”

Conclusion

23 Judge Hughes found:

“The applicant did not have an injury which was in the nature of a disease of gradual process which resulted in an incapacity. He had an injury which severed his spinal column.”

24 Mr Hislop QC, who appeared for the appellant, put his case on the basis that the arrhythmia was a personal injury within the meaning of par (a) of the definition in s4. He called in aid decisions of this Court in GIO Workers Compensation (NSW) Ltd v GIO General Ltd, Bohanna & Appleton t/as Anscot Partnership v Bohanna and Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246. Each of those cases concerned the application of savings and transitional provisions in Sch 6 and whether the worker should be compensated under the provisions of the 1926 or 1987 Act. But in each the injury was treated as a disease answering the description in par (b)(i) of the definition in s4 or within the meaning of s71 of the 1987 Act, since repealed. It was apparently not necessary to consider whether the disease was contracted by the worker in the course of employment and to which the employment was a contributing factor. If in this case the disease is to be treated either as a separate injury within the meaning of Sch 6 Pt 3.2.6, namely an injury received after the commencement of the 1987 Act, or as one deemed to have happened at the time of the deceased’s death (s15(1)(a)(i)), it cannot be said, as it must be said if it is to fall within par (b)(i) of the definition, to have been one contracted by the deceased in the course of employment. This explains why the appellant submits that it is a separate personal injury within the meaning of par (a) which arose out of the employment.

25 In my opinion, even the decisions of the majority in Zickar would not permit, on the facts of this case, a finding that the cardiac arrhythmia was a personal injury within the meaning of par (a) of s4. There was no evidence, expert or otherwise, of rupture or breaking or tearing as an ingredient or consequence of the disease.

26 It follows from this that the injury from which the deceased’s death resulted was the personal injury which made the deceased quadriplegic, an injury suffered and, therefore, as his Honour concluded, occurring before the commencement of the 1987 Act. That being so, his Honour correctly made an order in accordance with Sch 6 Pt 3.2.2 of the 1987 Act.

Order

27 The appeal should be dismissed with costs.

28 FOSTER AJA: I agree with Sheller JA.

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Last Modified: 08/28/2003