State Rail Authority of New South Wales v Cowan

The State Rail Authority of New South Wales (the Authority) sought leave to appeal from a decision of a trial judge concerning a workers compensation claim brought by Mr. Cowan. The central dispute revolved around whether Mr. Cowan's claim for damages was futile, specifically whether the amount of damages recoverable would meet the threshold stipulated in section 151H of the *Workers Compensation Act 1987* (NSW). The Authority argued that the claim was futile and therefore should not proceed, a contention that had been rejected by the trial judge.

The Court of Appeal was required to determine whether the trial judge erred in finding that Mr. Cowan's claim was not futile. A key aspect of the appeal was the Authority's argument, which had not been raised before the trial judge, that the claim was inherently incapable of reaching the statutory threshold for damages. This raised the question of whether the Court of Appeal should entertain an argument not previously considered by the primary judge.

The Court of Appeal refused leave to appeal. Their Honours considered that the argument regarding the futility of the claim, based on the inability to meet the section 151H threshold, was not a matter that could be raised for the first time on appeal, particularly when it had not been put to the trial judge. The Court found no error in the trial judge's assessment of the claim's prospects. Consequently, the Authority was ordered to pay the costs of the application for leave to appeal.