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Safeguard OSH Solutions - Thomson Reuters

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Accident Compensation Cases

McCallum v Accident Compensation Corporation (DC, 04/03/02)

Judgment Text

DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
M J Beattie Judge
[1]
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge P F Barber issued on 10 July 2001 under Decision No: 175/01. 
[2]
The issue in the appeal was whether the respondent was correct to determine that the appellant had a capacity for work under s 51 of the Accident Rehabilitation & Compensation Insurance Act 1992. 
[3]
In his decision His Honour identifies the evidence relevant to the determination of that issue and on which he made various findings of fact and which ultimately led to his determination that the respondent had properly applied the Work Capacity Assessment Procedure and that its determination in respect of the appellant was correct. 
[4]
In written submissions Mr Zindel, counsel for the appellant, in support of application for leave to appeal has set out at some length various findings which His Honour made in the course of his decision and with which counsel takes issue as to whether the findings so made were correct. The whole tenet of counsel's submissions are to take issue with the various factual findings made by His Honour throughout the course of his decision. 
[5]
I fail to discern any question of law which indeed His Honour was required to determine or which counsel for the appellant contends was in issue and where His Honour may have made an error. The closest that I can discern a submission from counsel that His Honour made an error of law is the submission that the Court was wrong in law to take into account the appellant's attitude when determining whether he had a capacity to work. 
[6]
I do not consider that this is a question of law, or if it is it certainly was not a pivotal ruling of law which affected the decision. However, I find that there are no questions of law which could be referred to the High Court for consideration in the context of His Honour's decision and therefore there is no basis for an appeal. No alleged error of law can be demonstrated as is required for the granting of leave both pursuant to s 97 of the Accident Rehabilitation & Compensation Insurance Act 1992, and its successor s 165 of the Accident Insurance Act 1998. 
[7]
Leave to appeal is therefore declined. 

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