Zebra Stoneworks Pty Ltd v Ferreira

CITATION:	Zebra Stoneworks Pty Ltd v Ferreira [2001] NSWCA 86
FILE NUMBER(S):	CA 40951/99
HEARING DATE(S):	05/04/01
JUDGMENT DATE:	5 April 2001
PARTIES :	Zebra Stoneworks Pty Ltd v Manuel Ferreira
JUDGMENT OF:	Mason P at 1 & 43; Heydon JA at 44; Ipp AJA at 2

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 45230/98
LOWER COURT JUDICIAL OFFICER :	Bishop CCJ

COUNSEL:	J Cummins QC/A Jungwirth (Appellant) P Webb QC/ L Grey (Respondent)
SOLICITORS:	W K Chambers (Appellant) McClellands (Respondent)
CATCHWORDS:	PERSONAL INJURY - Worker's compensation determination - PRACTICE & PROCEDURE - sole issue to be determined was whether respondent was a "worker" or "deemed worker" - appellant sought to raise further issues and call further evidence - parties had agreed in application and answer that there was only one issue for resolution - in argument in open court the appellant had abandoned the further grounds - this was a tacit admission of the respondent's allegations on the abandoned issues - the appellant had failed to seek leave to withdraw the admissions - the appellant was rightly precluded from raising the abandoned issues. ND
LEGISLATION CITED:	Workers Compensation Act 1987
DECISION:	Appeal dismissed. The appellant to pay the respondent's costs of the appeal.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40951/00

CC 45230/98

MASON P

HEYDON JA

IPP AJA

Thursday 5 April 2001

ZEBRA STONEWORKS PTY LIMITED v MANUEL FERREIRA

JUDGMENT

1    MASON P: I will ask Ipp AJA to deliver the first judgment.

2    IPP AJA: This is an appeal against a decision of Bishop CCJ in the Compensation Court whereby he ordered the appellant to pay the respondent, “on the basis of total incapacity”, weekly compensation at the rate of $525.50 from 20 December 1998 “and continuing”, together with medical and other expenses under s 60 of the Workers Compensation Act 1987 and costs, as adjusted.

3    The appellant relies on four grounds of appeal. The first is that Bishop CCJ wrongly precluded the appellant “from relying upon any ground pleaded in its answer other than the denial that the respondent was a worker”. The second is that the learned judge wrongly precluded the appellant from calling evidence or making submissions on the issues of incapacity or economic loss. The third is that the learned judge erred “in determining that the respondent was entitled to a weekly award in the sum of $525.50 contrary to the evidence before the court as to the respondent’s worker’s earnings”. The fourth is that the learned judge “denied the appellant procedural fairness in that he accepted the tender of medical evidence in the respondent worker’s case but refused to accept the tender of medical evidence on behalf of the appellant”.

4    Essentially the issues that arise stem from a decision made by Bishop CCJ that the sole issue that the appellant was entitled to raise in the application for determination was whether or not the respondent was a worker, or…