G P & a Sergi v Slavko Jurcevic

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.