Asplundh Tree Expert (Australia) Pty Ltd v Robertson

Asplundh Tree Expert (Australia) Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the District Court of New South Wales. The dispute concerned the application of amendments to the *Workers Compensation Act 1987* (NSW) to an action commenced by the respondent, Mr Robertson, against his employer, the appellant. Mr Robertson sought damages for personal injury sustained in the course of his employment.

The central legal issue before the Court of Appeal was whether Mr Robertson's common law claim for damages was preserved by the transitional provisions of the *Workers Compensation Legislation Amendment Act 2001* (NSW), which retrospectively curtailed common law rights for certain injuries. Specifically, the court had to determine if Mr Robertson's action, commenced after the amendments took effect, fell within the scope of the transitional provisions that quarantined existing actions.

The Court of Appeal found that the amendments, while retrospective, did not extinguish Mr Robertson's common law right of action because his claim was an "existing action" within the meaning of the transitional provisions. The court reasoned that the amendments were intended to apply prospectively to new claims, while preserving existing claims that had already been initiated. The critical factor was that Mr Robertson had commenced his legal proceedings before the relevant date stipulated in the amending legislation.

Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's judgment. The court ordered that Mr Robertson's action be struck out, and that he pay the appellant's costs in the District Court and on the notice of motion. However, pursuant to the conditions for granting leave to appeal, the appellant was ordered to pay the respondent's costs of the appeal.