Ivanhoe Gold Corporation Ltd v Symonds

[1906] HCA 71

642 HIGH COURT

[1906.

[H IG H C O U R T OF

A U ST R A L IA .]

IVANHOE GOLD CORPORATION LTD.

Atj'ELL.ants ;

Defendants,

SYMONDS

Respondent.

Plaintiff,

ON A P P E A L FR O H T H E S U P R E M E COU RT

OF

W E S T E R N

A U ST R A L IA .

H. C. OF A. Workers’ Compensation Act ( IT.A.), (1902, N o. 5), sec. 9— D uty to as,sess Compensa­

1906.                   tion under Act on fa ilu re o f action not under A c t— Tim e when assessment m ay

be dem anded—Election o f remedy fo r in ju ry— Am endm ent o f judgm ent.

P e r t h ,

To an action in th e Suprem e C ourt of W estern A ustra lia

by a w orkm an

Non. I, 2, 13.

against his employers, owners of a m ine, for dam ages under th e E m ployers’

Griffith C. J.,

Barton and L iability A ct 1894, and the Mines Uegulation A c t 1895, and a t common law ,

Ilij^gins J.J.for in juries sustained by him in the mine, the defendants pleaded by w ay of

estoppel th a t the p lain tiff had made a claim for com pensation under the Workers’ Compensation A ct 1902, and th a t an agreem ent had been m ade be­ tw een the p lain tiff and the defendants for paym ent of certa in com pensation, which agreem ent had so far been carried out. A t th e tr ia l th e Ju d g e held

th a t th is

plea was proved, and gave judgm ent th a t th e p la in tiff recover

nothing from the defendants.

T his judgm ent was duly passed and entered ,

and an appeal against i t to the F u ll C ourt was dismissed. No application was m ade a t the tr ia l or on the appeal th a t the ju risd iction under sec. 9 of the ll'orkers’ Compensation A c t should be exercised. Subsequently to the appeal

th e defendants moved the Ju d g e of first instance to assess com pensation

and

as to costs, and he made an order accordingly. A n appeal to th e F u ll C ourt

from th is order was allowed.

On appeal to th e H igh C ourt :

Held, (1) th a t sec. 9 of th e Workers' Compensation A c t 1902 applies to all cases in w hich th e p lain tiff’s action fails, provided th a t he is otherw ise en titled to the benefit of th e A ct, and therefore applies to a case w here the successful defence is a confession and avoidance…