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…

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.

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Details

Case: [2025] NSWCA 88
Decision Date: 05 May 2025

CaseChat Overview and Summary

The applicant, Mr Elhawat, appealed to the Court of Appeal of New South Wales against a decision of the District Court that had allowed the respondent, the Workers Compensation Nominal Insurer, to file a defence raising contributory negligence in a claim for work injury damages. The central dispute concerned the interpretation of section 318(1)(c) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which prohibits an employer from filing a defence that wholly or partly disputes liability if they have failed to serve a pre-filing defence.

The legal issues before the Court of Appeal were whether the defence of contributory negligence constituted "wholly or partly disputing liability" for the purposes of section 318(1)(c), and whether contributory negligence was an aspect of liability or damages. The court also considered the relevance of a statutory note within section 318A(2) to the interpretation of section 318(1)(c).

The Court of Appeal held that contributory negligence is an aspect of liability, not merely damages. Therefore, by seeking to raise contributory negligence, the respondent was disputing liability, and as it had failed to serve a pre-filing defence, it was barred by section 318(1)(c) from doing so. The court further determined that the statutory note in section 318A(2), while potentially useful as extrinsic material, could not displace the plain meaning of section 318(1)(c). Consequently, the appeal was allowed, the District Court's orders were set aside, the defence was struck out, and judgment was entered for the plaintiff with damages to be assessed.

Orders

Orders of the court

(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;

(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.

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.

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…