Reported Decision:
62 NSWLR 427
Court of Appeal
CITATION: GORDON v BEROWRA HOLDINGS PTY LTD [2005] NSWCA 27
HEARING DATE(S): 26 November 2004
JUDGMENT DATE:
28 February 2005JUDGMENT OF: Mason P at 1; Sheller JA at 65; Beazley JA at 66
DECISION: Appeal upheld.
CATCHWORDS: Workers Compensation Act 1987 - consequences of a breach of s151C - whether proceedings in breach of s151C are a nullity - waiver of right to invoke s151C - Part 19A r3 District Court Rules - leave to withdraw offer of settlement - leave to amend. (D)
LEGISLATION CITED: CASES CITED: Admiralty Commissioners v Valverda (Owners) [1938] AC 173
Baker v Rothmans of Pall Mall (Australia) Ltd (1999) 18 NSWCCR 374
Brown v The Queen (1986) 160 CLR 171
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Darrington v Calbeck (1918) 20 NSWLR 212
Deng v GMS Fulfilment Services Ltd (2003) 25 NSWCCR 446
Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351
Emad Trolley Pty Ltd v Shigar (2003) 57 NSWLR 636
Hill v Bolt (1992) 28 NSWLR 329
Howard v Boddington (1877) 2 PD 203 at 210.
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
Lewis v Combell Constructions Pty Limited (1989) 18 NSWLR 528
Marshall v D G Sundin & Co Pty Ltd (1990) 16 NSWLR 463
National Mutual Fire Insurance Co Ltd v The Commonwealth of Australia [1981] 1 NSWLR 400
Pritchard, In re [1963] Ch 502
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 358
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Rosniak v GIO SC unrep, Wood J, 4 October 1990
Scanruby Pty Ltd v Caltex Petroleum Pty Limited [2001] NSWSC 411
Sydney Ports Corporation v Collins (2003) 56 NSWLR 232
Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW in Court Session & Anor [2004] NSWCA 183
Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100
Young v Combe SC unrep, Hodgson J, 29 July 1993PARTIES: Rodney John GORDON v BEROWRA HOLDINGS PTY LTD
FILE NUMBER(S): CA 40826/03
COUNSEL: Appellant: J Sexton SC/ P Regattieri
Respondent: M D Williams SC/ P PerrySOLICITORS: Appellant: Peacocke Dickens & Price (Dubbo)
Respondent: Lee & Lyons
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 233/01 (Dubbo)
LOWER COURT JUDICIAL OFFICER: Woods ADCJ
CA 40826/03
Monday 28 February 2005MASON P
SHELLER JA
BEAZLEY JA
The appellant/plaintiff was injured in the course of his employment with the respondent/defendant. On 23 November 2001 the plaintiff commenced proceedings in the District Court less than two months after giving written notice of injury to the defendant. This was in contravention of s151C(1) of the Workers Compensation Act 1987, which provides that a person is not entitled to commence court proceedings against an employer liable to pay compensation under the Act until six months have elapsed since notice of injury was…
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- Case
- [2005] NSWCA 27
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether proceedings commenced in breach of section 151C of the *Workers Compensation Act 1987* were a nullity, whether the respondent had waived its right to invoke section 151C, and whether the appellant should be granted leave to withdraw his offer of settlement and amend his statement of claim.
The Court of Appeal held that a breach of section 151C did not render proceedings a nullity. The Court reasoned that the provision was intended to protect the rights of insurers and that a failure to comply with it did not automatically extinguish the jurisdiction of the court. Furthermore, the Court found that the respondent had waived its right to rely on section 151C by its conduct in the proceedings. The Court also granted the appellant leave to withdraw his offer of settlement and amend his statement of claim, finding that it was in the interests of justice to do so.
The appeal was upheld.
Orders
Orders of the court
Appeal upheld.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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