Brighton Und Refern Plaster Pty Ltd v Boardman

[2005] NSWCA 167

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Brighton Und Refern Plaster Pty Ltd v Boardman [2005]  NSWCA 167

FILE NUMBER(S):
40171/04

HEARING DATE(S):            12 May 2005

JUDGMENT DATE: 12/05/2005

PARTIES:
Brighton Und Refern Plaster Pty Ltd - Claimant
Scott Raymond Boardman - Opponent

JUDGMENT OF:      Giles JA McColl JA    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 7383/01

LOWER COURT JUDICIAL OFFICER:     Balla DCJ

COUNSEL:
R Toner SC & M Jenkins - Claimant
M Bozic SC & B Ingram - Opponent

SOLICITORS:
Timothy J Doubleday - Claimant
Taylor Scott - Opponent

CATCHWORDS:
Workplace injury - proceedings brought earlier than the 6 months in s 151C Workers Compensation Act 1987 - application for leave to appeal - whether proceedings a nullity - whether non compliace with s 151C capable of waiver - leave refused - recent decision in Gordon v Berowra Holdings Pty Ltd (2005) NSWCA 27 - not sufficiently arguable that was erroneous.

LEGISLATION CITED:

DECISION:
Leave to appeal refused with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40171/04
DC  7383/01

GILES JA
McCOLL JA

Thursday 12 May 2005

BRIGHTON UND REFERN PLASTER PTY LTD v BOARDMAN

Judgment

1. GILES JA: The opponent brought proceedings claiming damages for a workplace injury. He brought them earlier than the six months in s 151C of the Workers’ Compensation Act, 1987. In due course application was made to strike out the proceedings. The judge held that the non-compliance with s 151C was capable of waiver and had been waived, and dismissed the application.

2. The claimant applied for leave to appeal on the grounds that non-compliance with s 151C was not capable of waiver and in any event had not been waived. 

3. After the claimant’s application was filed, this Court decided in Gordon v Berowra Holdings Pty Limited (2005) NSWCA 27 that non-compliance with s 151C did not render proceedings a nullity and that the non-compliance could be waived. The claimant submitted that was inconsistent with the substantive/procedural dichotomy described by the High Court in John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR at 503 and their Honours’ refererence to matters which affect the existence, extent or enforceability of the rights or duties of the parties as matters of substance, see at [99] and [102]. The claimant further submitted that there was inconsistency between the decision in Gordon v Berowra Holdings Pty Limited and the earlier decision of this Court in Emad Trolley Pty Limited v Shigar (2003) 57 NSWLR 636, although it should be pointed out that the passages on which the claimant relied in the judgment of McColl JA in that case were arguably obiter.

4. In my view, the claimant's reliance on John Pfeiffer Pty Limited v Rogerson does not give rise to a sufficiently arguable question to warrant the grant of leave to appeal.  Their Honours were speaking of the substantive/procedural dichotomy in the context of whether the law of the place of the tort or the law of the forum was to apply.  The present question is different.  As appears from the judgment of Mason P in Gordon v Berowra Holdings Pty Limited, the present question is one of ascertaining, in accordance with the principles stated by the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 358 at [91]-[93], the legislative purpose as to whether an act done contrary to s 151C was a nullity.

5. Nor do I think that there is inconsistency with Emad Trolley Pty Limited v Shigar, in which the present question did not arise.  It is to be noted that in Gordon v Berowra Holdings Pty Limited at [36] the President cited Emad Trolley Pty Limited v Shigar, including referring to the paragraphs on which the claimant presently relies, together with Baker v Rothmans of Pall Mall (Australia) (1999) 18 NSW CCR 374 in which language to an extent similar to that found in Emad Trolley Pty Limited v Shigar was used. The President said at [38] that strong language was at times used, referring to those two cases, and it is quite clear that the decision in Gordon v Berowra Holdings Pty Limited was arrived at with full account taken of what had been said in them.

6. Gordon v Berowra Holdings Pty limited is a recent unanimous and considered decision of this Court.  I do not think that occasion has been shown for a grant of leave in order to question it. 

7. That leaves whether in the present case waiver was properly found by the judge.  Her Honour's reasons recorded that counsel for the defendant conceded that the plaintiff was entitled to a finding that the failure to act by the defendant and its insurer amounted to waiver.  Her Honour regarded the failure of the defendant and its insurer to raise non compliance with s 151C, when there had been many opportunities to do so, as entitling a finding of waiver, particularly given the concession. It does not seem to me that ground has been shown for doubting that her Honour's decision on that matter was correct.

8. In my opinion, therefore, leave to appeal should be refused with costs.

9. McCOLL JA: I agree.

oOo

LAST UPDATED:     16/05/2005