Tep v ATS Australasian Technical Services Pty Ltd

In this matter the plaintiff has sued his employer as a result of injuries which he had sustained in the course of his employment.  In the course of the appeal it became apparent that the order from which the appeal was made had not been entered.  In this latter respect UCPR 661(4)(b) provides that no appeal may be brought against an order which has not been filed unless the Court gives leave.  Although no application was made during the course of the appeal, the Court nevertheless made such an order, nunc pro tunc.   In relation to the main part of the decision, the trial judge had made a determination of the cause of the accident which was not the subject of any allegation in the pleadings.  The cause found by the trial judge was not an alternative which the defendant had alleged in the pleading or which was the subject of agitation at trial and the decision could not be sustained given the decision of the High Court in Suvaal v Cessnock City Council (2003) 77 ALJR 1449. The result was that the matter had to be remitted to the trial court for further determination.  There is an interesting discussion in the reasons of the Court as to whether or not the Court of Appeal could make any determination as to the quantum of damages under UCPR 766 in the circumstances of the case.