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Dunphy v Boney [2010] NSWWCCPD 111. Keating P.

87. The distinction between a final and an interlocutory order was considered in State of New South Wales v Bujdoso [2007] NSWCA 44 at [29] and [30], where Ipp JA said:

“There is a long line of cases in the High Court of Australia which have held that, in regard to disputes as to whether a judgment is interlocutory or final, the question to be asked is whether ‘the judgment or order, as made, finally disposes of the rights of the parties’: Hall v Nominal Defendant [1966] HCA 36;(1966) 117 CLR 423 at 442 to 445 per Windeyer JLicul v Corney [1976] HCA 6; (1975) 180 CLR 213 at 225 per Gibbs J;Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited[No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248 per Gibbs CJSanofi v Park Davis Pty Limited [No 1] [1982] HCA 9; (1982) 149 CLR 147.

88. In my view, it is clear that the Certificate of Determination, the subject of the appeal in this matter, finally determined the worker’s rights in respect of his claim for weekly compensation and medical expenses. Those were final, not interlocutory, orders.

89. Second, the admission or rejection of evidence during the course of the arbitration hearing may involve errors of law which may be the subject of appeal: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

90. Third, if the relevant ruling was in fact interlocutory, questions with respect to it may be raised on appeal once a final determination has been made: Sydney Institute of Technology – NSW TAFE Commission v Fleming [2007] NSWWCCPD 97; Whitehead v Kassagrove Pty Ltd [2007] NSWWCCPD 154 at [28]–[29]).

White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7. Roche DP. 10.02.11. 

22. The Commission has held that orders dismissing or striking out claims without a hearing on the merits are interlocutory orders because they do not determine the parties’ rights: Nott v The Western Stores Limited [2007] NSWWCCPD 83Teofilo v New South Wales Police Service [2007] NSWWCCPD 200Crethar v GA & JI Charters Pty Ltd t/as Avis Northern Rivers [2010] NSWWCCPD 52.

It has also held that, where injury is not in issue, the referral of a matter to an Approved Medical Specialist is an interlocutory order: P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87.

23. Counsel for Mr White, Ms Wood, submitted that the test for whether an order is interlocutory depends on the nature of the order made and whether the order has finally disposed of the parties’ rights: Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444. She argued that the Arbitrator’s determination finally determined Mr White’s rights with respect to his claim for lump sum compensation under the Table of Disabilities.

24. I agree that the present case can be distinguished from the cases cited above.

The Arbitrator has made a final determination, after a hearing on the merits, that Mr White has no right to claim compensation under the Table of Disabilities.

That finding is capable of supporting an estoppel on that issue in any subsequent proceedings seeking the same relief.

In these circumstances, I find that the Arbitrator’s determination was not an interlocutory order.


Pacific National (NSW) PL v York [2012] NSWWCCPD 29. O'Grady DP. 31.05.12.

[In 35] Upon an acceptance that the orders made on 25 November 2011 were in fact interlocutory, the Commission has since that time determined the dispute and made final orders. The Commission on this appeal from those final orders may correct any error made by way of interlocutory order that has affected the final result: Gerlach v Clifton Bricks PL (2002) 209 CLR 478



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