Climax Management v Scansash - [2002] NSWCA 167

CITATION: Climax Management v Scansash [2002] NSWCA 167

FILE NUMBER(S): CA 40695 of 2001

HEARING DATE(S): 31/05/02

JUDGMENT DATE:
21 June 2002

PARTIES :

Climax Management Pty Limited
v
Scansash Pty Limited

JUDGMENT OF: Meagher JA at 1; Ipp AJA at 16; Pearlman AJA at 17

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 4250 of 2000

LOWER COURT
JUDICIAL OFFICER : O'Reilly DCJ

COUNSEL: Appellant: Mr Harrison SC with Mr Ogborne
Respondent: Mr M Slattery QC with Mr M Grant

SOLICITORS: Appellant: Blake Dawson Waldron
Respondent: Connery & Partners

CATCHWORDS: Workers' Compensation Act 1987 - estoppel - whether appellant is estopped from bringing proceedings as a result of a determination under s 151Z(2) of the Workers' Compensation Act - appeal allowed.

LEGISLATION CITED: Workers' Compensation Act 1987
Law Reform (Miscellaneous Provisions) Act 1946

CASES CITED:
Oxley County Council v MacDonald [1999] NSWCA 126
Redken Laboratories (Aust) Pty Ltd v Docker [2000] NSWCA 100

DECISION: 1. Appeal allowed; 2. Respondent to pay the appellant's costs; 3. Further orders to be made in an agreed form of order signed by the parties and filed in Court.

CA 40695 of 2001
DC 4250 of 2000

MEAGHER JA
IPP AJA
PEARLMAN AJA
Friday, 21 June 2002

CLIMAX MANAGEMENT PTY LTD v SCANSASH PTY LIMITED

Facts

The second respondent, Mr C Negus, was an employee of the appellant, Climax Management Pty Ltd, which carried on the business of gold-mining. The first respondent, Scansash Pty Limited, was an independent contractor engaged by Climax to keep its tanks in good repair. Whilst checking certain tanks, the second respondent, fell and was severely injured, and successfully sued Climax Management Pty Ltd and Scansash Pty Limited in negligence. The trial judge awarded him $537,167.000 and determined the liability of the employer and contractor at 65% and 35% respectively.

On 23 August 1999, the appellant filed a claim (the fourth cross-claim) by which it asserted that the respondent, Scansash Pty Limited, had committed breaches of contractual obligations to comply with certain Acts and Regulations. At trial, his Honour ordered that the cross-claims between the defendants be stood over for separate hearing because Scansah, the present respondent, was “not in a position then to deal with the claim in contract”.

On appeal, the respondent, Scansash claimed that his Honour’s judgment disposed of all questions which arose on the cross-claim. The appellant contended the cross-claim was a separate claim made in contract between the two parties, and not a claim in tort against both of them.

The issues raised by the cross-claim were (a) whether there was an agreement as alleged in the cross-claim, (b) whether the present respondent committed breaches of that agreement and (c) whether the appellant suffered loss and damage as a result of those breaches. These issues were not decided by his Honour.

Per Meagher JA (Ipp AJA and Pearlman AJA agreeing)

(i) The trial judge was not required to determine any issue arising out of the contract between the appellant and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Climax Management v Scansash

Details

AGLC: Climax Management v Scansash [2002] NSWCA 167
Case: [2002] NSWCA 167
Decision Date: 21 June 2002

CaseChat Overview and Summary

Climax Management Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Workers Compensation Commission. The dispute concerned whether the appellant was estopped from bringing proceedings by reason of a prior determination made under section 151Z(2) of the *Workers' Compensation Act 1987* (NSW).

The primary legal issue before the Court of Appeal was whether the determination made under section 151Z(2) of the *Workers' Compensation Act 1987* operated as an estoppel preventing the appellant from pursuing its claim. This required the court to consider the nature and effect of determinations made under that provision.

The Court of Appeal allowed the appeal. The court reasoned that the determination made under section 151Z(2) did not have the effect of creating an estoppel in the circumstances of this case. The court ordered that the respondent pay the appellant's costs, with further orders to be made in an agreed form.

Orders

Orders of the court

1. Appeal allowed; 2. Respondent to pay the appellant's costs; 3. Further orders to be made in an agreed form of order signed by the parties and filed in Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Climax Management v Scansash [2002] NSWCA 167
FILE NUMBER(S):	CA 40695 of 2001
HEARING DATE(S):	31/05/02
JUDGMENT DATE:	21 June 2002
PARTIES :	Climax Management Pty Limited v Scansash Pty Limited
JUDGMENT OF:	Meagher JA at 1; Ipp AJA at 16; Pearlman AJA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 4250 of 2000
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL:	Appellant: Mr Harrison SC with Mr Ogborne Respondent: Mr M Slattery QC with Mr M Grant
SOLICITORS:	Appellant: Blake Dawson Waldron Respondent: Connery & Partners
CATCHWORDS:	Workers' Compensation Act 1987 - estoppel - whether appellant is estopped from bringing proceedings as a result of a determination under s 151Z(2) of the Workers' Compensation Act - appeal allowed.
LEGISLATION CITED:	Workers' Compensation Act 1987 Law Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	Oxley County Council v MacDonald [1999] NSWCA 126 Redken Laboratories (Aust) Pty Ltd v Docker [2000] NSWCA 100
DECISION:	1. Appeal allowed; 2. Respondent to pay the appellant's costs; 3. Further orders to be made in an agreed form of order signed by the parties and filed in Court.