MacNaught Pty Ltd v Trpcevski

[2003] NSWCA 127

CITATION:	MacNaught Pty Ltd v Trpcevski [2003] NSWCA 127
HEARING DATE(S):	16 May 2003
JUDGMENT DATE:	16 May 2003
JUDGMENT OF:	Meagher JA at 1; Tobias JA at 2
DECISION:	1. Leave to appeal refused; 2. Summons for leave dismissed; 3. No orders as to the costs of the summons.
CATCHWORDS:	Application for leave to appeal - s151C Workers Compensation Act - applicant sought to have proceedings dismissed on the basis of failure to disclose a reasonable cause of action - leave refused - ND
LEGISLATION CITED:	Workers Compensation Act
CASES CITED:	Sydney Ports Corporation v Collins [2003] NSWCA 28 National Direct Imaging Pty Limited v Lamy [2003] NSW
PARTIES :	MacNaught Pty Ltd (Appellant) Robert Trpcevski (Respondent)
FILE NUMBER(S):	CA 40831/02
COUNSEL:	A - H N Kelly R - A Canceri
SOLICITORS:	A - A O Ellison & Co R - Fegent & Co

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	12203/01
LOWER COURT JUDICIAL OFFICER :	Gamble ADCJ

CA 40831/02

MEAGHER JA
TOBIAS JA

16 May 2003

MacNAUGHT PTY LTD v ROBERT TRPCEVSKI

Judgment

1 MEAGHER JA: I agree. The orders proposed by Tobias JA will be the orders of the Court

2 TOBIAS JA: In this matter Gamble ADCJ on 13 September 2002 dismissed a notice of motion filed on 24 February 2002 whereby the applicant/defendant applied to the District Court to have the proceedings commenced by the respondent/plaintiff on 21 November 2001 dismissed as being in contravention of s 151C (1) of the Workers Compensation Act 1987 (“the Act”).

3 The application was made pursuant to Pt 11A r 3 of the District Court Rules (the Rules) on the basis that the statement of claim failed to disclose a reasonable cause of action.

4 At the time of her Honour’s decision there was a difference of view expressed in a number of District Court cases as to whether or not s 151C (2)(b) of the Act could be satisfied in circumstances where the worker/plaintiff had received his or her statutory entitlements. Because of the difference of opinion between the judges of the District Court her Honour decided that it would not be appropriate on what was in effect a strike-out application to resolve that issue by adding the weight of her opinion to one side of the argument or the other.

5 The defendant seeks leave from this Court to appeal that decision upon the basis that since her Honour’s decision this Court has delivered its judgment in Sydney Ports Corporation v Collins and National Direct Imaging Pty Limited v Lamy on 20 February 2003 whereby it unanimously determined that the payment of statutory entitlements was not sufficient to enable a worker/plaintiff to call in aid s 151C (2) of the Act as it then stood.

6 There are two aspects of the matter that require consideration. The first is that we are informed that an application for special leave to the High Court has been lodged in the matter of National Direct Imaging Pty Limited v Lamy against the decision of this Court in that case. The second is that the plaintiff has not given instructions, at least at this point, as to whether or not he wishes to allege facts (other than in relation to the payment of statutory entitlements) which would bring him within the provisions of s 151C (2). Of course, if he does so those facts may be disputed and require resolution.

7 In the foregoing circumstances it is my opinion that leave should be refused upon the basis that these issues; and particularly the second, should be left to the District Court to determine. Her Honour in her judgment drew attention to Pt 26 r 5AA of the Rules which would, as I understand it, entitle the applicant/defendant to make an application to the District Court for the determination as a separate issue of the matters arising with respect to s 151C.

8 If such an application is made no doubt the defendant would rely upon this Court’s decision in Sydney Ports Corporation v Collins and the onus would then be placed upon the plaintiff to file affidavit evidence deposing to facts which (other than the payment of statutory entitlements) were sufficient to establish the exceptions set forth in s 150C (2).

9 If such an application was filed the defendant could no doubt seek appropriate directions from the District Court to ensure that that material was filed in a timely way. If it was not then I have no doubt that the District Court would then strike out the statement of claim upon the basis that the decision in Collins and Lamy renders the plaintiff’s action incompetent.

10 On the other hand, if such evidence is filed, and especially if it is disputed, then issues of fact and law will arise to be resolved on the Pt 26 r 5AA application.

11 For these reasons I do not think it appropriate that this Court should deal with the issues that have so far been raised and that at this point they should be left to the District Court to resolve. Accordingly, in my view leave to appeal should be refused, the summons for leave should be dismissed but in the circumstances there should be no order as to the costs of the summons.

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Last Modified: 05/27/2003