Elhawat v Workers Compensation Nominal Insurer

[2025] NSWCA 88

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Elhawat v Workers Compensation Nominal Insurer [2025] NSWCA 88

Hearing dates:

23 April 2025

Date of orders:

5 May 2025

Decision date:

05 May 2025

Before:

Ward P at [1]
Adamson JA at [2]
Ball JA at [3]

Decision:

(1)   Grant leave to appeal;

(2)   Direct that within seven days of today’s date the applicant file a notice of appeal substantially in the form of the Draft Notice of Appeal dated 23 October 2024;

(3)   Appeal allowed;

(4)   Set aside orders 1, 3 and 4 of the orders made by Olsson SC DCJ on 24 July 2024;

(5)   In lieu thereof, order that:

(a)   the defence filed on 7 December 2023 be struck out;

(b)   there be judgment for the plaintiff with damages to be assessed;

(c)   the defendant’s amended notice of motion filed on 26 March 2024 be dismissed;

(d)   the defendant pay the plaintiff’s costs of the plaintiff's notice of motion filed on 25 March 2024 and the defendant’s amended notice of motion filed on 26 March 2024;

(6)   The respondent pay the applicant’s costs in this Court.

Catchwords:

INSURANCE – claim for work injury damages – pre-filing procedures under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where employer failed to serve pre-filing defence – where employer subsequently filed defence raising contributory negligence – where s 318(1)(c) prevents employer from filing a defence that wholly or partly disputes liability for the claim if employer has failed to serve a pre-filing defence – whether “wholly or partly disputes liability” includes raising a defence of contributory negligence – whether contributory negligence is an aspect of liability or damages – contributory negligence an aspect of liability – employer barred from raising contributory negligence – defence struck out

STATUTORY INTERPRETATION – meaning of “wholly or partly disputes liability” – where statutory note in s 318A(2) in tension with plain interpretation of s 318 – where primary judge had regard to note in s 318A(2) – whether statutory note forms part of the Act – note not part of the Act – note may be considered as extrinsic material – note cannot displace the correct meaning of the section

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 13

Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth)

Corporations Act 2001 (Cth), ss 1317E, 1317H, 1317HA, 1317J(2)

Interpretation Act 1987 (NSW), ss 34, 35

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 8-10

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) rr 13.1, 14.13, 15.12, 16.7

Workers Compensation Act 1987 (NSW), s 151N,

Workers Compensation Legislation Further Amendment Act 2001 No 94 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 60, 250, 315-318A

Cases Cited:

Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6

Barisic v Devenport [1978] 2 NSWLR 111

Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388

One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

WorkPac Pty Ltd v Rossato (2020) 378 ALR 585

Texts Cited:

P Herzfeld and T Prince, Interpretation, (3rd ed, 2024, Thomson Reuters)

Category:

Principal judgment

Parties:

Zackaria Elhawat (Applicant)
Workers Compensation Nominal Insurer (Respondent)

Representation:

Counsel:
D Hooke SC with D‑L Del Monte (Applicant)
L King SC (Respondent)

Solicitors:
WD Hunt & Associates (Applicant)
Turks Legal (Respondent)

File Number(s):

2024/295903

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

24 July 2025

Before:

Olsson SC DCJ

File Number(s):

2023/257972

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 June 2019, the applicant, Mr Zackaria Elhawat, was injured in the course of his employment with Plumberz Pty Ltd, when he fell from a roof while attending to a leak.

In accordance with the pre-filing regime under Ch 7 Pt 6 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act), on 29 June 2023, Mr Elhawat served a pre-filing statement on Plumberz and its workers compensation insurer, claiming work injury damages. Plumberz did not serve a pre-filing defence within 42 days of receiving Mr Elhawat’s pre-filing statement, although it purported to do so on 7 February 2024.

On 14 August 2023, Mr Elhawat commenced proceedings in the District Court by way of statement of claim. In its defence filed on 7 December 2023, Plumberz raised several defences including a defence of contributory negligence. This was despite the fact that s 318(1)(c) prohibits a defendant to a claim for work injury damages from filing a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim within 42 days of being served the pre-filing statement.

On 25 March 2024, Mr Elhawat filed a notice of motion seeking summary judgment. On 26 March 2024, Plumberz filed an amended notice of motion seeking leave to file its amended defence. Both motions were heard by Olsson SC DCJ, on 23 July 2024. Her Honour delivered an oral judgment the following day. She held that Plumberz should be given leave to file its amended defence. Her Honour dismissed Mr Elhawat’s notice of motion, declining to make an order for summary judgment.

By a summons filed on 24 October 2024, Mr Elhawat sought leave to appeal from those orders. The primary issue on appeal was whether a defendant to a claim for work injury damages under the Act is barred from filing a defence which raises contributory negligence, where the defendant failed to serve a pre-filing defence in accordance with that Act.

The Court held (Ball JA, Ward P and Adamson JA agreeing), granting leave to appeal and allowing the appeal:

(1) The purpose of the pre-filing regime is to ensure full disclosure of the position of the parties so that by mediation, and before proceedings are commenced, the prospects of settlement can be fully explored: [13].

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250, referred to.

(2) The defence of contributory negligence is relevant to the question of liability and not simply the quantum of damages that the plaintiff is entitled to recover. It is not possible to separate out the issue of the plaintiff’s contributory negligence from the issue of the defendant’s negligence. Both are relevant to the question of causation of the plaintiff’s loss, which is concerned with the defendant’s liability: [32].

(3) To read s 318(1)(c) as permitting the defendant to raise a defence of contributory negligence would be to deprive the plaintiff of the very benefit that s 318(1)(c) was intended to confer – that is, the right to apply for summary judgment. That interpretation also gives no weight to the fact that the section prevents the defendant from filing a defence that wholly or partly disputes liability. It is also inconsistent with the evident purpose of Ch 7 Pt 6 of the Act: [39]-[41].

(4) Accepting that the note to s 318A(2) is part of the extrinsic material that can be taken into account in interpreting s 318 of the Act, it cannot displace the correct meaning of s 318 absent the note: [48].

One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443, referred to.

JUDGMENT

1. WARD P: I agree with Ball JA.

2. ADAMSON JA: I agree with Ball JA.

3. BALL JA: The issue raised by this appeal is whether an employer which has failed to serve a pre-filing defence (defined below) to a claim for “work injury damages” within 42 days after receiving a pre-filing statement (also defined below) from the worker in accordance with the regime set out in Ch 7 Pt 6 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) is nonetheless entitled in subsequent court proceedings to raise a defence of contributory negligence to the worker’s claim.

The legislation

4. It is convenient to begin by describing the relevant legislative framework.

5. The rights of a worker to claim common law damages against an employer in respect of a work-related injury are preserved in a modified form by the Workers Compensation Act 1987 (NSW) (the 1987 Act) and the 1998 Act.

6. The 1987 Act sets out the circumstances in which such a claim may be brought and a worker’s entitlements in respect of such a claim: see Pt 5 of the 1987 Act and s 60 of the 1998 Act. Section 151N(1) of the 1987 Act states that “The common law and enacted law as to contributory negligence apply to awards of damages” subject to certain exceptions set out in s 151N, none of which is presently relevant. Chapter 7 Pt 6 of the 1998 Act sets out the procedures that must be followed before a claim for “work injury damages” may be brought. “Work injury damages” is defined in s 250 of the 1998 Act to include “damages recoverable from a worker’s employer in respect of … an injury to the worker caused by the negligence or other tort of the employer”.

7. Sections 315 and 316 (contained in Ch 7 Pt 6) of the 1998 Act provide:

315   Requirement for pre-filing statement before commencing court proceedings

(1)   Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Commission rules may require.

Note—

Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages.

(2)   The pre-filing statement cannot be served unless—

(a)   the person on whom the claim is made wholly disputes liability for the claim, or

(b)   the person on whom the claim is made has made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by section 281 and 1 month has elapsed since the offer was made, or

(c)   the person on whom the claim is made has failed to determine the claim as and when required by section 281.

Note—

The determination of a claim in accordance with section 281 requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. Section 78 requires notice of a dispute as to liability to be given.

316   Defendant must respond to pre-filing statement

(1)   The defendant must, within 28 days after the pre-filing statement has been served on the defendant, respond to the pre-filing statement by—

(a)   accepting or denying liability (wholly or in part), and

(b)   (to the extent, if any, that the defendant does not accept liability) serving on the claimant a defence to the claim setting out such particulars of the defence and evidence that the defendant will rely on to defend the claim as the Commission rules may require.

Note—

A defence can be filed after 28 days but after 28 days the claimant can refer the claim to mediation under Division 4.

(2)   If the defendant fails to respond to the pre-filing statement as required by this section within 42 days after it is served on the defendant, the claimant can commence court proceedings for the recovery of work injury damages.

Note—

If the defendant fails to respond within 42 days, the defendant is prevented from filing a defence (see section 318) and the claimant can proceed to obtain summary judgment on the question of liability. If the defendant responds to the pre-filing statement within 42 days, the matter is required to proceed to mediation under Division 4 before court proceedings can be commenced.

8. Section 317 of the 1998 Act sets out what is to happen if the defendant alleges that the pre‑filing statement is defective. It is not relevant for present purposes.

9. Section 318 of the 1998 Act provides:

318   Parties limited to pre-filing statement and defence

(1)   For the purposes of court proceedings on a claim for work injury damages—

(a)   the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b)   the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant’s pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and

(c)   the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and

(d)   a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2)   The court is not to grant leave under this section unless satisfied that—

(a)   the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b)   the failure to grant leave would substantially prejudice the party’s case.

(3)   The regulations may provide for exceptions to this section.

10. Section 318A of the 1998 Act provides:

318A   Mediation of claim before commencement of court proceedings

(1)   A claimant must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant under Division 3.

(2)   The claimant need not refer a claim for work injury damages for mediation if the defendant has failed to respond to the claimant’s pre-filing statement as required under Division 3 within 42 days after it is served on the defendant.

Note—

A defence can still be filed in the 28–42 day period. A defence can be filed after 42 days but such a defence cannot dispute liability. A defence filed after 42 days can deal with such matters as quantum of damages or contributory negligence.

(3)   The defendant may decline to participate in mediation of the claim if the defendant wholly disputes liability in respect of the claim, but in any other case the defendant cannot decline to participate in mediation.

(4)   Court proceedings for recovery of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission.

(5)   A claim is referred for mediation by being referred to the President for mediation by a mediator. The President is to give directions as to which mediator is to mediate on a particular claim referred for mediation.

(6)   The Commission rules may make provision for or with respect to mediation under this Division.

11. The broad effect of these provisions is to require a worker before commencing proceedings for common law damages to provide the employer with a document providing information in relation to his or her claim (the pre-filing statement) together with supporting evidence and to require an employer which wishes to contest liability for the claim wholly or partly to serve a document setting out its defence (the pre-filing defence) together with supporting evidence. The worker must then, as a condition precedent to commencing court proceedings, refer the claim to mediation, unless the employer has failed within 42 days of receiving the claim to provide a pre-filing defence. In that case, the worker may commence court proceedings immediately. However, the worker cannot advance a claim that is materially different from his or her pre-filing statement without the leave of the court and the employer is not entitled to file a defence to that claim that “wholly or partly disputes liability for the claim”.

12. If the employer does serve a pre-filing defence, it must participate in the mediation, unless it wholly disputes liability. Proceedings cannot be commenced while the mediation is on foot. And if the mediation fails (or never occurs because the employer has wholly disputed liability) and the worker subsequently commences proceedings, the worker cannot depart materially from the pre-filing statement and the employer cannot depart materially from the pre-filing defence, in both cases without the leave of the court, which may only be given in limited circumstances.

13. Consequently, absent leave from the court, the parties can only litigate issues that were the subject of a mediation. There are two exceptions. First, the employer is not required to mediate if it wholly denies liability. Second, the worker is not required to mediate if the employer fails to serve a pre-filing defence within 42 days, in which case the employer is not entitled to file a defence disputing liability wholly or in part. As Hoeben JA (with whom Campbell and Barrett JJA agreed) explained in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [11], the purpose of this regime “is to ensure full disclosure of the position of the parties so that by mediation and otherwise the prospects of settlement can be fully explored”. His Honour might have added that the purpose of the regime is also to ensure that that full exploration occur before proceedings are commenced.

Background

14. The factual background is not in dispute.

15. On 6 June 2019, the applicant, Mr Zackaria Elhawat, was injured in the course of his employment with Plumberz Pty Ltd, when he fell from a roof while attending to a leak.

16. On 29 June 2023, Mr Elhawat served a pre-filing statement on Plumberz and its workers compensation insurer. Plumberz did not serve a pre-filing defence within 42 days of receiving Mr Elhawat’s pre-filing statement, although it purported to do so on 7 February 2024.

17. On 14 August 2023, Mr Elhawat commenced proceedings in the District Court by way of statement of claim. Mr Elhawat alleged that Plumberz owed him a non-delegable duty of care which it breached in a number of respects. At the same time, he filed a statement of particulars in accordance with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 15.12. That rule which outlines the particulars and documents that a plaintiff claiming damages for personal injuries must serve on the defendant or the defendant’s insurer or solicitor.

18. On 7 December 2023, Plumberz filed its defence. That defence raised several defences to the claim, including a defence of contributory negligence. On or about 20 February 2024, Plumberz served a proposed amended defence by which it:

1. took issue with the relief claimed insofar as Mr Elhawat sought interest on damages and costs (relying on provisions of the 1987 Act and the 1998 Act);

2. admitted that it owed Mr Elhawat a non-delegable duty of care and that Mr Elhawat sustained injuries as a result of the accident but took issue with “the description and scope of that duty as pleaded”;

3. did not admit several of the allegations in the statement of claim; and

4. continued to rely on a defence of contributory negligence.

19. On 25 March 2024, Mr Elhawat filed a notice of motion, para 1 of which sought the following order:

Order pursuant to r. 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) and s. 316 of the [1998 Act], there is to be judgment for the plaintiff on the liability question, with damages to be assessed pursuant to Part 5 of the [1987 Act].

No separate order was sought in the notice of motion striking out the defence, although, following discussion between counsel for the parties, the hearing before this Court proceeded on the basis that an application for such an order was implicit in the application for summary judgment.

20. On 26 March 2024, Plumberz filed an amended notice of motion seeking leave to file its amended defence.

21. Both motions came on for hearing before the primary judge, Olsson SC DCJ, on 23 July 2024. Her Honour delivered an oral judgment the following day. She held that Plumberz should be given leave to file its amended defence. Her Honour referred to the note to s 318A(2) of the 1998 Act, although ultimately her Honour does not appear to place a great deal of weight on that note. Instead, her Honour gave the following reasons for her conclusion:

The purpose of this division of the Act [a reference to Part 6 of Ch 7 of the 1998 Act] is plain: a plaintiff can only start his proceedings having summarised the whole of his case to the defendant.

Contributory negligence is a finding of fact. The proceedings decide the question of whether or not the defendant has been negligent. A pleading of contributory negligence does not require a disturbance of that finding. Rather, it goes to the question of whether or not the plaintiff has contributed by negligence to his own loss. [emphasis in the original]

Her Honour also declined to make an order for summary judgment, although no separate reasons were given for that decision.

22. Accordingly, the primary judge relevantly made the following orders:

1.    The Defendant has leave to file the draft amended defence served on the Plaintiff on 20 February 2024.

Notation 1: The draft amended defence is to be in terms of the proposed amended defence at annexure J to the Affidavit of Dominic Daniel Maait filed 5 April 2024.

…

3.    The Plaintiff’s Notice of Motion filed 25 March 2024 is dismissed.

4.    The Plaintiff pay the Defendant’s costs in respect of both Notice of Motions on the usual basis as agreed or assessed.

The appeal

23. By a summons filed on 24 October 2024, Mr Elhawat seeks leave to appeal from those three orders. Leave to appeal is required since the decision the subject of the appeal is an interlocutory one: Supreme Court Act 1970 (NSW), s 101(2)(e). The appeal was heard concurrently with the application for leave to appeal.

24. Following institution of the appeal Plumberz was deregistered. Accordingly, by consent an order was made substituting the Nominal Insurer as the respondent.

The reasoning of the primary judge

25. As Mr Hooke SC, who appeared for Mr Elhawat, correctly observed, the question whether the respondent is entitled to raise a defence of contributory negligence turns on whether the pleading of that defence involves the respondent “wholly or partly [disputing] liability”. If it does, then the defendant is not entitled to file a defence that includes that pleading: s 318(1)(c) of the 1998 Act.

26. It is not easy to follow the reasoning of the primary judge. What her Honour appears to be saying is that because liability depends on findings in relation to the defendant’s conduct, a pleading that only raises issues concerning the plaintiff’s conduct and that does not challenge the findings concerning the defendant’s conduct cannot involve disputing the liability of the defendant. It merely affects the amount the plaintiff is entitled to recover. That is said to fit with the purpose of Pt 6 of Ch 7 of the 1998 Act, which is to require the plaintiff to summarise the whole of his or her case.

27. Mr King SC, who appeared for the respondent, sought to defend the primary judge’s reasoning in slightly different terms. According to him, the reference to “liability” in s 318 of the 1998 Act must be understood as a reference to the “primary” liability of the defendant. It should not be understood as a reference to the liability of the defendant taking into account all the defences available to the defendant. That conclusion was said to be strongly supported by the note to s 318A(2) of the 1998 Act, which states that, even if the defendant fails to serve a pre-filing defence within the 42 day period, a defence may be filed outside the 42 day period dealing with “such matters as quantum of damages or contributory negligence”. Mr King also argued that the construction for which Mr Elhawat contended was “Draconian” and submitted, in effect, that the court should apply a “beneficial” construction to avoid the injustice that would arise if the defendant/respondent was shut out from filing a defence alleging contributory negligence.

Consideration

28. There are several difficulties with the conclusion of the primary judge and the respondent’s argument.

29. First, it is not clear what is meant by “primary liability” in this context. The primary judge’s reasoning and the respondent’s argument appear to confuse liability with one of its elements, namely, negligence on the part of the defendant. That is not what “liability” in this context means.

30. In the context of court proceedings, the distinction between issues of liability and issues concerning the quantum of damages is reasonably clear. Issues concerning liability are all those issues that need to be decided to determine whether the plaintiff is entitled to relief. Issues relating to quantum are those issues relevant to the calculation of the damages the plaintiff is entitled to recover assuming liability has been established. The distinction can have significant practical consequences, particularly if the defendant fails to file a defence. Under UCPR r 14.13(1) “A pleading must not claim an amount for unliquidated damages”. If a defendant fails to file a defence, the plaintiff is entitled to make an application for default judgment and for the unliquidated damages to be assessed: UCPR r 16.7(1). It would be open for the defendant to appear at the assessment of damages and contest quantum. Similarly, if the defendant made admissions in its defence in relation to issues of liability, it would be open to the plaintiff to obtain judgment under UCPR r 13.1 on those admissions, again with damages to be assessed. And again, the defendant would be entitled to appear on the assessment and contest quantum.

31. It is natural to read s 318 of the 1998 Act as picking up those distinctions, since it is concerned with what may be pleaded in court proceedings. In limiting what may be pleaded in the defence, s 318(1)(c) must be taken as intending to give the plaintiff the rights that arise when liability is not in issue – that is, the right to apply for summary judgment with damages to be assessed. That right is significant because it relieves the plaintiff of the costs and delay of having to prove the facts relevant to the question of liability.

32. In that context, the defence of contributory negligence is relevant to the question of liability and not simply the quantum of damages that the plaintiff is entitled to recover. Under UCPR r 14.16, “A defendant who relies on contributory negligence must plead specifically the contributory negligence”. However, if a defence of contributory negligence is pleaded, the plaintiff will not be able to obtain judgment with damages to be assessed. Plainly, the plaintiff will not be able to obtain judgment pursuant to UCPR r 16.7(1), since the defendant has filed a defence. But nor will it be possible for the plaintiff to obtain summary judgment under UCPR r 13.1, with damages to be assessed. That is because it is not possible to separate out the issue of the plaintiff’s contributory negligence from the issue of the defendant’s negligence. Both are relevant to the question of causation of the plaintiff’s loss, which is concerned with the defendant’s liability.

33. Prior to 1965, contributory negligence provided a complete defence to a claim in negligence. In New South Wales, the defence was abolished by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the 1965 Act), which was subsequently amended in response to the High Court’s decision in Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6, where the High Court held that the section also applied to a contractual obligation to take reasonable care. In its amended form, s 9 of the 1965 Act provides:

Apportionment of liability in cases of contributory negligence

(1)    If a person (the "claimant") suffers damage as the result partly of the claimant's failure to take reasonable care ("contributory negligence") and partly of the wrong of any other person:

(a)    a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

(b)    the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

(2)   Subsection (1) does not operate to defeat any defence arising under a contract.

(3)    If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.

34. “Wrong” is defined in s 8 to mean:

an act or omission that:

(a)   gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or

(b)   amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.

35. Section 10 contains specific provisions relating to workers compensation. None is relevant for present purposes.

36. The apportionment permitted by s 9 requires an assessment of both the relative culpability of the tortfeasors’ conduct and the relative importance of that conduct in causing the loss or damage: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 at 532-533. As the High Court in that case explained:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas.S.R. 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

37. In an extreme case, it remains possible that in apportioning responsibility between the plaintiff and the defendant, the whole of the responsibility may be apportioned to the plaintiff. But even if that is not the case, it is still necessary to decide on the relative responsibility of the plaintiff and the defendant. That cannot be done without looking at the responsibility of them both. As Hope JA explained in Barisic v Devenport [1978] 2 NSWLR 111 at 131:

Section 10 (1) [referring to the predecessor of s 9] deals with the situation where a plaintiff has suffered damage as a result partly of his own fault and partly of the fault of any other person or persons. It then requires that the damages recoverable by the person making the claim shall be reduced to such extent as the court thinks just and equitable, having regard to his share in the responsibility for the damage. This language requires the court to identify the whole of that responsibility, and to determine the claimant's share in that whole.

See also at 118 per Moffitt P.

38. Consequently, if the defendant raises a defence of contributory negligence, it makes no sense to enter judgment for the plaintiff with damages to be assessed, since there still needs to be a hearing on the extent to which the plaintiff and the defendant caused the loss. It is for that reason that where courts order that issues concerning liability be determined separately and in advance of issues concerning damages, the question of contributory negligence is dealt with as part of the liability hearing.

39. But if it makes no sense to order default or summary judgment where the defendant pleads a defence of contributory negligence, it makes no sense to read s 318(1)(c) as permitting the defendant to raise a defence of that type. To do so would deprive the plaintiff of the very benefit that s 318(1)(c) was intended to confer – that is, the right to apply for summary judgment.

40. The second difficulty with the interpretation of s 318(1)(c) adopted by the primary judge is that it gives no weight to the fact that the section prevents the defendant from filing a defence that wholly or partly disputes liability. It is natural to read the words “or partly” as including a defence of contributory negligence.

41. The third difficulty is that the trial judge’s conclusion is inconsistent with the evident purpose of Ch 7 Pt 6 of the 1998 Act. Contrary to what the primary judge said, the purpose of the regime set out in that Part of the Act is not simply to require the plaintiff to summarise the whole of his or her case. Rather, as I have explained, the purpose is to require the parties, except in certain limited situations, to identify clearly the dispute between them and to submit that dispute to mediation as a pre-condition to commencing or defending court proceedings. It does that by requiring the parties to serve pre-filing statements identifying the issues in dispute, requiring the parties to attend a mediation in relation to those issues and preventing the parties from raising issues in court proceedings that were not raised in the mediation without leave of the court. But if the respondent is correct, it is entitled to raise any defence of contributory negligence in court proceedings without first having referred the issues raised by that defence to mediation. That would seriously undermine the purpose of the legislative regime. The relative responsibilities of the plaintiff and the defendant for the losses the plaintiff has suffered is precisely the type of issue that would be expected to be the subject of a mediation.

42. As to Mr King’s point about the “Draconian” consequences that follow if the respondent is precluded from filing a defence raising contributory negligence, that point cannot displace the clear effect of s 318(1)(c) of the 1998 Act. Moreover, it is exaggerated. Those consequences follow for other defences that the defendant might raise. Moreover, Ch 7 Pt 6 of the 1998 Act places strict time limits on both the plaintiff and the defendant. In doing so, it reflects a policy choice on the part of the legislature which is designed to reduce delay and encourage settlement of disputes concerning claims for work injury damages by imposing a timetable on the parties which must be adhered to. As I have explained that policy would be undermined if the respondent’s construction of s 318(1)(c) were accepted.

43. The note to s 318A(2) does not alter the position.

44. Relying on the decision in One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443, Mr King submitted that the note formed part of the 1998 Act. I do not accept that submission. That case concerned amendments to the Corporations Act 2001 (Cth) introduced by the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth). Some of the amendments involved the introduction of notes at the end of existing sections of the Act, including ss 1317E, 1317H, 1317HA and 1317J(2). The amendments were referred to in the Explanatory Memorandum. Commenting on the amendments, Bergin J said (at [52]):

The terms of the 2004 Act and these paragraphs of the EM lead me to the conclusion that Parliament intended the insertion of the Notes to operate as an amendment to the body of the Act, rather than to operate in the manner of a marginal note, an endnote or a footnotes. Marginal notes, endnotes and footnotes that are not included in the manner in which the Notes under consideration have been included, do not form part of an Act. This has been held to be so because they are “not the product of anything done in Parliament”: Reg v Schildkamp [1971] AC 1 at 10 per Lord Reid; Chandler v Director of Public Prosecutions [1964] AC 763, per Lord Reid at 789. However in TheOmbudsman v Moroney (1983) 1 NSWLR 317 at 324G, Street CJ referred to the “invariable practice” of Bills being presented to Parliament with proposed sections being accompanied by marginal notes. The Chief Justice expressed the view that, if the marginal note “passes through Parliament unamended” and is “printed on the formal Bill to which Royal assent is given in due course”, there was “every reason” to regard marginal notes as “a legitimate source upon which to draw as an aid to construction of the section” the marginal note accompanied. …

And later (at [54]):

I am satisfied that the Notes in s 1317E, s 1317H, s 1317HA and s 1317J(2) form part of the text of the Act and do not fall within the concept of marginal note, endnote or footnote in the Acts Interpretation Act 1901. These are notes of a new breed. They are Statutory Notes and the Act must be interpreted having regard to their content. A “note” has been defined as “an explanatory or critical annotation or comment appended to a passage” of the relevant text: Oxford English Dictionary. If this definition applies, and it seems to me to be appropriate to apply it, the effect of such an explanatory or critical annotation will depend on the language used in a particular Note and its context.

45. That conclusion rested on s 13(1) of the Acts Interpretation Act 1901 (Cth), which provides:

All material from and including the first section of an Act to the end of:

(a)   if there are no Schedules to the Act—the last section of the Act; or

(b)   if there are one or more Schedules to the Act—the last Schedule to the Act;

is part of the Act.

Subsection (3) excludes certain text that does not appear in the printed text of the Act as enacted by the Parliament or any other printed version of the Act or compilation. In that context, Bergin J was correct to conclude that the notes formed part of the Act.

46. In contrast, s 35(2) of the Interpretation Act 1987 (NSW) (Interpretation Act) relevantly provides that “a marginal note, footnote or endnote in an Act or instrument … shall be taken not to be part of the Act or instrument” (emphasis added). However, a note may still be taken into account in interpreting an Act under s 34 of the Interpretation Act, which relevantly provides:

34   Use of extrinsic material in the interpretation of Acts and statutory rules

(1)   In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a)   to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)   to determine the meaning of the provision—

(i)   if the provision is ambiguous or obscure, or

(ii)   if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2)   Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes—

(a)   all matters not forming part of the Act that are set out in the document containing the text of the Act as published on the NSW legislation website,

(b)   …

…

(e)   any explanatory note or memorandum relating to the Bill for the Act …

(f)   …

….   

47. It has been suggested that in some cases it may be possible to argue that a provision in the form of a note that was included at the time the Act was passed should not properly be classified as a “footnote” or “endnote” so as to fall within the exclusion contained in s 35(2) of the Interpretation Act, with the result that the note does form part of the Act: see P Herzfeld and T Prince, Interpretation, (3^rd ed, 2024, Thomson Reuters) at [5.140]. See also Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388 at [30] (Basten JA). But accepting that that is the case, the note to s 318A(2) does not fall into that category. The note purports to set out the effect of ss 316 and 318(1)(c), although it is a note to s 318A(2). It is an explanatory note included for the assistance of readers of Ch 7 Pt 6 of the 1998 Act. It does not purport to explain the section to which it is appended and therefore cannot be treated as part of that section. Nor can it be treated as part of s 318(1)(c), since it is not included in that section.

48. Accepting that the note to s 318A(2) is part of the extrinsic material that can be taken into account in interpreting s 318 of the 1998 Act, in my opinion it is of limited assistance in this case for several reasons, and cannot displace the correct meaning of that section absent the note.

49. First, the note is inconsistent with the relevant Explanatory Memorandum. Sections 318 and 318A (and the note contained therein) were introduced into the 1998 Act by the Workers Compensation Legislation Further Amendment Act 2001 No 94 (NSW). The Explanatory Memorandum for that Act (the EM) does not refer to the note or the phrase “wholly or partly”. It makes no mention of contributory negligence. It relevantly states:

Schedule 1.2 amends the 1998 Act to introduce the following new pre-litigation procedures and processes for common law work injury damages claims:

(a)    A claim for common law work injury damages will not be able to be made unless a claim for statutory lump sum compensation is made before or at the same time as the work injury damages claim.

(b)    Various new procedures ensure that the person on whom a claim is made makes admissions as to acceptance of the degree of permanent impairment resulting from the worker’s injury.

(c)    A common law claim for work injury damages must include details of the alleged negligence or other tort of the employer.

(d)    …

…

(g)    Within 28 days after the pre-filing statement is served, the defendant is required to accept liability (and make a reasonable offer of settlement) or serve on the claimant a defence to the claim. If the defendant fails to respond to the pre-filing statement within 42 days, the claimant can commence court proceedings and the defendant is prevented from filing a defence in the proceedings, with the result that the claimant can obtain summary judgment on the issue of liability.

(h)    If the defendant responds as required to the pre-filing statement, the claim is required to proceed to mediation before a mediator chosen from a panel appointed by the President. The defendant must participate in mediation unless the defendant wholly disputes liability. The mediator will certify as to the results of mediation and as to the final offers made by the parties in the mediation.

Paragraph (g) suggests that the defendant is prevented from filing a defence altogether. It makes the point that the purpose of s 318(1)(c) is to put the plaintiff in a position where he or she can make an application for summary judgment, whereas the note to s 318A(2) suggests that the defendant is not prevented from filing a defence raising contributory negligence.

50. Second, the note is inconsistent with the note to s 316. The note to s 316 states that if the defendant fails to respond within 42 days “it is prevented from filing a defence … and the claimant can proceed to obtain summary judgment”. That note is consistent with para (g) of the EM quoted above and with the context and purpose of s 318 as explained earlier. But as I have explained, the plaintiff could not “proceed to obtain summary judgment” if the defendant were permitted to raise a defence of contributory negligence.

51. Third, for the reasons already given, the drafter of the note appears to have misunderstood the distinction between questions of liability and quantum in the context of court proceedings and the significance of that distinction for the purposes of an application for summary judgment.

Conclusion and orders

52. It follows that Mr Elhawat is correct in his submission that the respondent was prevented from raising a defence of contributory negligence because it failed to serve a pre-filing defence within 42 days of receiving the pre-filing statement. In those circumstances, leave to appeal should be granted and the appeal allowed. Consistently with what has been said, the defence should be struck out and judgment should be entered for the plaintiff with damages to be assessed.

53. Accordingly, the orders of the Court should be:

1. Grant leave to appeal;

2. Direct that within seven days of today’s date the applicant file a notice of appeal substantially in the form of the Draft Notice of Appeal dated 23 October 2024;

3. Appeal allowed;

4. Set aside orders 1, 3 and 4 of the orders made by Olsson SC DCJ on 24 July 2024;

5. In lieu thereof, order that:

1. the defence filed on 7 December 2023 be struck out;

2. there be judgment for the plaintiff with damages to be assessed;

3. the defendant’s amended notice of motion filed on 26 March 2024 be dismissed;

4. the defendant pay the plaintiff’s costs of the plaintiff's notice of motion filed on 25 March 2024 and the defendant’s amended notice of motion filed on 26 March 2024;

6. The respondent pay the applicant’s costs in this Court.

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Decision last updated: 05 May 2025