G P & a Sergi v Slavko Jurcevic - [1999] NSWCA 254

Reported Decision: 46 NSWLR 672

New South Wales

Court of Appeal

CITATION: G P & A Sergi v Slavko Jurcevic [1999] NSWCA 254

FILE NUMBER(S): CA 40740/97

HEARING DATE(S): 5 July 1999

JUDGMENT DATE:
22 July 1999

PARTIES :

G P & A Sergi - Appellants
Slavko Jurcevic - Respndent

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Davies AJA at 32

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S) : 4850/94

LOWER COURT JUDICIAL OFFICER: O'Toole CCJ

COUNSEL: G P McNally - Appellants
N/A - Respondent

SOLICITORS: Hunt & Hunt, Canberra - Appellants
N/A - Respondent

CATCHWORDS: WORKERS COMPENSATION - review of weekly compensation - application for determination - no answer filed - Pt 11 r 3 of Rules providing for deemed admission of applicant's claim and particulars subject to matter of defence in answer - whether applied to application for review as well as application for compensation (yes) - whether applied if no answer filed as well as if answer filed which did not traverse matter (yes) - construction of rule. WORKERS COMPENSATION - review of weekly compensation - Workers Compensation Act s 55 - whether discretion not to reduce compensation although proof that worker no longer incapacitated - not necessary to decide - worker duly served but did nothing - if discretion, could only have been exercised to reduce compensation - relief should not be refused because worker does nothing.

DECISION: Appeal allowed; order below set aside and in lieu thereof it be ordered that the weekly payment of compensation to the respondent be reduced to nil from 1 July 1993. No order as to costs; grant liberty to the appellant to apply by written request to have matter relisted within fourteen days.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40740/97
CC 4850/94

BEAZLEY JA
GILES JA
DAVIES AJA

Thursday 22 July 1999

G P & A SERGI v Slavko JURCEVIC
JUDGMENT

1 BEAZLEY JA: I agree with Giles JA.

2 GILES JA: In 1990 the respondent obtained in the Compensation Court an order for weekly payment of compensation by the appellant on the basis of partial incapacity for work. The payment was $150.00 per week. In 1994 the appellant applied for review of the weekly payment of compensation. Section 55 of the Workers Compensation Act 1987 (“the Act”) provided for review “because of a change of circumstances”, and the appellant sought a variation of the payment to nil from 1 July 1993 on the ground that the respondent was not incapacitated for work from that date. O’Toole CCJ declined to order the variation.

3 In accordance with Pt 5 r 4(c) of the Compensation Court Rules, the application was brought by an application for determination. There were difficulties in service of the application for determination on the respondent, it seems because he was an itinerant fruit picker. An order for substituted service was made, and service was effected in accordance with that order. There was also evidence of…

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: [1999] NSWCA 254
Decision Date: 22 July 1999

CaseChat Overview and Summary

In the matter of *G P & a Sergi v Slavko Jurcevic*, the New South Wales Court of Appeal considered an appeal concerning the review of weekly compensation payments. The dispute arose from an application for a review of weekly compensation, where the respondent worker had failed to file an answer to the application.

The primary legal issue before the Court of Appeal was the proper construction and application of Part 11, Rule 3 of the relevant Rules, which stipulated that if no answer was filed to an application for compensation, the applicant's claim and particulars were deemed admitted, subject to any defence raised in an answer. The Court had to determine whether this rule applied to an application for review of weekly compensation, and whether it applied even when no answer was filed at all, as opposed to an answer that failed to traverse the matters raised. A secondary issue concerned the interpretation of section 55 of the *Workers Compensation Act*, specifically whether there was a discretion not to reduce compensation even if proof of no longer being incapacitated was established.

The Court of Appeal held that Part 11, Rule 3 did apply to applications for review of weekly compensation and also applied where no answer was filed. The Court reasoned that the rule's purpose was to ensure that claims proceeded efficiently, and that a failure to respond should lead to admissions. Regarding the discretion under section 55, the Court found it unnecessary to definitively decide its scope, but indicated that if such a discretion existed, it could only have been exercised to reduce compensation in this instance, and relief should not be refused simply because the worker did nothing.

Consequently, the appeal was allowed, the order of the court below was set aside, and it was ordered that the weekly payment of compensation to the respondent be reduced to nil from 1 July 1993. There were no orders as to costs, with liberty granted to the appellant to apply to relist the matter within fourteen days.

Orders

Orders of the court

Appeal allowed; order below set aside and in lieu thereof it be ordered that the weekly payment of compensation to the respondent be reduced to nil from 1 July 1993. No order as to costs; grant liberty to the appellant to apply by written request to have matter relisted within fourteen days.

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:	G P & A Sergi v Slavko Jurcevic [1999] NSWCA 254
FILE NUMBER(S):	CA 40740/97
HEARING DATE(S):	5 July 1999
JUDGMENT DATE:	22 July 1999
PARTIES :	G P & A Sergi - Appellants Slavko Jurcevic - Respndent
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; Davies AJA at 32

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	4850/94
LOWER COURT JUDICIAL OFFICER:	O'Toole CCJ

COUNSEL:	G P McNally - Appellants N/A - Respondent
SOLICITORS:	Hunt & Hunt, Canberra - Appellants N/A - Respondent
CATCHWORDS:	WORKERS COMPENSATION - review of weekly compensation - application for determination - no answer filed - Pt 11 r 3 of Rules providing for deemed admission of applicant's claim and particulars subject to matter of defence in answer - whether applied to application for review as well as application for compensation (yes) - whether applied if no answer filed as well as if answer filed which did not traverse matter (yes) - construction of rule. WORKERS COMPENSATION - review of weekly compensation - Workers Compensation Act s 55 - whether discretion not to reduce compensation although proof that worker no longer incapacitated - not necessary to decide - worker duly served but did nothing - if discretion, could only have been exercised to reduce compensation - relief should not be refused because worker does nothing.
DECISION:	Appeal allowed; order below set aside and in lieu thereof it be ordered that the weekly payment of compensation to the respondent be reduced to nil from 1 July 1993. No order as to costs; grant liberty to the appellant to apply by written request to have matter relisted within fourteen days.