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Gordon v Berowra Holdings Pty Ltd

Gordon v Berowra Holdings Pty Ltd

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Case Copied 28 February 2005 25 min read

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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 2005

JUDGMENT 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:
Workers Compensation Act 1987

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 1993

PARTIES:
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 Perry

SOLICITORS:
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

MASON P
SHELLER JA
BEAZLEY JA
Monday 28 February 2005

Rodney John GORDON v BEROWRA HOLDINGS PTY LTD

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…

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: [2005] NSWCA 27
Decision Date: 28 February 2005

CaseChat Overview and Summary

Gordon (the appellant) brought proceedings against Berowra Holdings Pty Ltd (the respondent) in the District Court of New South Wales. The dispute concerned a claim for workers' compensation. The appellant sought to withdraw an offer of settlement and amend his statement of claim. The respondent sought to rely on section 151C of the *Workers Compensation Act 1987* (NSW) to argue that the proceedings were a nullity.

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

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:	GORDON v BEROWRA HOLDINGS PTY LTD [2005] NSWCA 27
HEARING DATE(S):	26 November 2004
JUDGMENT DATE:	28 February 2005
JUDGMENT 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:	Workers Compensation Act 1987
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 1993
PARTIES:	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 Perry
SOLICITORS:	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