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[1995] NSWCA 303
respondent. Appeal dismissed with costs.
No linked legislation citations have been extracted yet.
The employer's appeal depended first on permission to reopen a legal construction question that the Court of Appeal had already considered in several cases. The Court refused permission, referring to its prior approach and to reasons given in Crockett v Cox. As the employer's factual argument depended on succeeding on that legal point, the Court did not consider it. The appeal was dismissed with costs.
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1,692 words · generated 01/10/2026
Mulwaree Shire Council appealed against awards made in favour of Bezzina, the worker. The judgment identifies the Council as the employer and Bezzina as the respondent. Priestley JA delivered the reasons, with Mahoney JA and Powell JA agreeing.
The appeal involved two proposed points. The first was a question of law about transitional provisions in Schedule 6 Part 6 of the Workers Compensation Act 1987 and paragraph (g) of what the judgment calls the Interpretation paragraphs of the table following section 73. The second was a question of fact, but the appellant said it would arise only if it succeeded on the legal question.
The central procedural obstacle was that the construction questions had already been dealt with in a number of Court of Appeal decisions. The Council therefore needed leave from the Court to re-argue the correctness of those decisions. Priestley JA noted that similar applications had been made in some of the earlier cases and leave had been refused. The Court declined leave again. The legal point was consequently “not open”, and the dependent factual question did not arise. The orders were: “Appeal dismissed with costs.”
The supplied judgment does not set out the underlying facts of the worker’s injury, the terms of the awards, or the specific factual point the employer wished to argue. It also does not reproduce the reasons given in the earlier decisions. Those limits matter: this judgment is primarily about permission to re-argue an issue, not a fresh, detailed determination of the substantive statutory construction question.
The Court’s stated reason was that the same construction questions had already been dealt with by the Court of Appeal in a series of cases. Priestley JA listed Clutha Ltd v Danswan, TAFE v Pitt, JA Crockett Pty Ltd v Cox, Wilkes v State Rail Authority, Australian Iron and Steel Pty Ltd v Nixon, and Leonie Holdings Pty Ltd v JW Kirkwood Pty Ltd. The judgment notes that leave to re-argue had been refused in some of those cases as well.
The Court did not set out a new, general test for leave. Instead, Priestley JA said there was “no reason” to alter the Court’s attitude to granting leave for re-argument. He also pointed to Crockett v Cox, in which the same bench had given reasons for refusing leave to reopen the point. Because those reasons had already been given, he saw no need to repeat them in this judgment.
The decision’s immediate logic is sequential. First, the Court considered whether the legal question could be reopened. It decided that it could not. Second, because the proposed factual question depended on the appellant succeeding on the legal question, there was no need to consider that factual point. This is why the judgment says it “does not arise”, rather than deciding it against the appellant on its merits.
The Court’s reasons are brief and defer to the earlier treatment of the issue. The judgment should therefore be read narrowly. It records a refusal of leave in the circumstances before the Court, based on previous decisions and the bench’s prior explanation in Crockett v Cox. It does not give the full substantive interpretation of paragraph (g), nor does it independently evaluate the reasoning in each listed case.
The judgment describes the relevant legal position before this appeal as one in which the Court of Appeal had already addressed the construction questions raised by the appellant. It specifically identifies six decisions as authorities the appellant wanted the Court to treat as wrongly decided. It further records that similar applications for leave to re-argue had been refused in some earlier cases.
The judgment does not provide the substantive rules adopted in those cases. It therefore cannot, by itself, establish exactly how the Court had interpreted the transitional provisions or paragraph (g). Nor does it recount any disagreement among the earlier decisions. The point it does establish is procedural: in this appeal, the Court was not prepared to permit the appellant to reopen that previously addressed construction issue.
After this decision, the legal point remained unavailable for argument in this appeal. The Court did not revise or replace the earlier construction decisions. Its refusal of leave meant that it did not reconsider their correctness on the merits. The judgment therefore did not announce a new construction of the legislation.
That distinction is significant for research use. The decision can be cited as an example of the Court declining leave to re-argue a point it regarded as already dealt with, but the judgment’s short reasoning does not supply the substantive interpretation needed to resolve a later dispute about the table or the transitional provisions. A researcher seeking that interpretation would need the underlying decisions identified in the judgment. The present text does not reproduce them, so their rules and reasoning cannot safely be inferred from this decision alone.
Priestley JA stated: “There seems to be no reason why the court on this occasion should alter its attitude to the question of whether leave for re-argument should be granted.” In plain English, the Court saw no basis in this appeal to change its existing approach to requests to reopen the point. The statement depends on the context of the earlier decisions and does not spell out a comprehensive test for leave.
Priestley JA then said that the same bench had sat in Crockett v Cox, where reasons were given for refusing leave to reopen the point, and added: “I see no need to re-state what was there said.” In plain English, the Court relied on its earlier explanation rather than repeating it. The present judgment consequently cannot stand in for the fuller reasoning in Crockett v Cox.
The operative conclusion was: “On this basis the point of law upon which the appellant seeks to rely is not open.” This means the appellant could not advance that legal point in this appeal because leave to re-argue it had not been granted. It does not mean the Court decided the substantive statutory construction issue afresh.
Finally, Priestley JA said that the factual question the appellant wished to raise “does not arise”. That wording reflects the conditional nature of the argument: the factual issue was to be considered only if the appellant succeeded on the legal point. Since that prerequisite was not met, the Court left the factual issue undecided.
The judgment contains no numbered paragraphs. The quotations above are therefore drawn from the unnumbered text supplied, and no paragraph numbers can be attributed to them.
On the face of the judgment, its reasoning is relevant where an appellant seeks to reopen a legal construction question that has already been considered in Court of Appeal decisions, particularly where earlier applications to re-argue the issue have been refused. The judgment is also relevant where a proposed factual issue is expressly conditional on success on that legal issue: if the legal point is not open, the dependent factual question may not arise.
The facts that made the procedural sequence important here were stated directly. The appellant was an employer appealing awards for a worker; it sought to challenge prior decisions about statutory construction; and its proposed factual point depended on success on the legal point. The Court refused leave and consequently did not reach the factual question.
The supplied text does not establish that every repeat argument, every statutory interpretation issue, or every application to re-argue must be refused. It does not identify the full criteria governing leave, and it does not describe the circumstances in which leave might be granted. Accordingly, the decision is most safely understood as a case-specific application of the Court’s stated prior approach, not as an exhaustive statement of all circumstances in which re-argument is available.
The supplied judgment does not cite any later decisions or describe how subsequent courts treated Mulwaree Shire Council v Bezzina. It therefore provides no basis to say whether later courts followed, distinguished, limited, or otherwise applied this decision.
What it does say about earlier decisions is more specific. It identifies six cases that the appellant sought to have reconsidered, and Priestley JA refers particularly to Crockett v Cox as a decision in which the same bench had already explained why leave should not be granted. In the present judgment, that earlier reasoning is relied on rather than reproduced.
A later-court treatment history would require sources beyond the judgment text provided here. It would be unsafe to infer that the decision became a binding or influential precedent on any particular later issue, or to assert a subsequent judicial response, without those sources. For current research, this judgment itself supports only the conclusion that the Court refused leave in this appeal and dismissed it with costs.
The judgment leaves several matters unanswered. It does not explain the substantive construction of Schedule 6 Part 6 or paragraph (g) of the Interpretation paragraphs following section 73. To understand that construction, the reasoning in the listed earlier cases would need to be examined.
It also does not reproduce the reasons for refusing leave in Crockett v Cox. Priestley JA expressly declined to restate them. The present judgment therefore does not disclose the detailed considerations that informed the Court’s approach, beyond the existence of the prior decisions, earlier refusals of leave, and the bench’s prior explanation.
The proposed factual question is likewise unidentified and undecided. The judgment tells the reader only that it would arise if the Council succeeded on the legal question. It does not disclose what facts were disputed, what evidence was relevant, or how the issue might have been resolved.
Finally, this text cannot answer how later courts treated the decision. It contains no later authorities. These are limits of the supplied judgment, not findings about what later research might show.
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MULWAREE SHIRE COUNCIL v BEZZINA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
MAHONEY, PRIESTLEY and POWELL JJA 9 June 1995, 9 June 1995
WORKERS COMPENSATION ACT - TABLE OF COMPENSATION FOR PERMANENT INJURIES - construction of para(g) of Interpretation paragraphs of Table following s73 of Act - appellant sought leave to re-argue authority - leave not granted.
Priestley JA This is an appeal by an employer against awards made in favour of the respondent worker. The appeal seeks to raise two points, the first a question of law and the second a question of fact which would only arise if the appellant succeeded on the question of law.
That position became clear in the course of argument and observations made by counsel for the appellant. The court therefore had to look first to the question of law. This concerns the construction of transitional provisions in Schedule 6 Pt6 of the Workers Compensation Act 1987 and para(g) of what is now called the Interpretation paragraphs of the table which follows s73 of the Act.
The first problem the appellant encounters is that the particular questions of construction which are sought to be raised in this appeal have been dealt with in a number of cases in this court. It is therefore necessary for the appellant to obtain the leave of the court to re-argue the correctness of those decisions. Similar applications have been made in some of the decisions themselves which the appellant now seeks to challenge and leave has been refused.
There seems to be no reason why the court on this occasion should alter its attitude to the question of whether leave for re-argument should be granted. The cases which the appellant seeks to have this court say are wrongly decided are Clutha Ltd v Danswan, (1993) 9 NSWCCR 225, TAFE v Pitt, (1993) 9 NSWCCR 309 JA Crockett Pty Ltd v Cox, (Court of Appeal, unreported, 26 October 1994), Wilkes v State Rail Authority, (Court of Appeal unreported, 2 February 1995), Australian Iron and Steel Pty Ltd v Nixon, (Court of Appeal, unreported 13 April 1995) and Leonie Holdings Pty Ltd v JW Kirkwood Pty Ltd, (Court of Appeal, unreported 9 June 1995).
It is my view that the court should not accede to the application for leave to re-argue This same bench was sitting in Crockett v Cox and reasons were there given why leave should not be granted to re-open this point and I see no need to re-state what was there said.
On this basis the point of law upon which the appellant seeks to rely is not open. That being so the question of fact which the appellant also would seek to raise if successful on the first point does not arise.
It follows the appeal should be dismissed with costs
Counsel for the Respondent: JE MACONACHIE QC/RJ GOODRIDGE Solicitors for the Respondent: VANDERVORDS
MULWAREE SHIRE COUNCIL
BEZZINA
(1993) 9 NSWCCR 225
(1993) 9 NSWCCR 309
Appeal dismissed with costs.