MHG Plastic Industries Pty Ltd v Zickar - [1999] NSWCA 366

CITATION: MHG Plastic Industries Pty Ltd v Zickar [1999] NSWCA 366

FILE NUMBER(S): CA 40066/99

HEARING DATE(S): 15 September 1999

JUDGMENT DATE:
8 October 1999

PARTIES :

MHG Plastic Industries Pty Ltd
v
Darrin Zickar

JUDGMENT OF: Mason P at 1; Priestley JA at 28; Stein JA at 29

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S) : CC 3212/89

LOWER COURT JUDICIAL OFFICER: Geraghty J

COUNSEL: A: SG Campbell, IA Todd
R: P Webb QC, W Carney

SOLICITORS: A: Curwood & Partners, Sydney
R: Lewis & Fawkner, Wollongong

CATCHWORDS: WORKERS’ COMPENSATION - Worker collapsed at work - Claim for compensation under Workers Compensation Act 1987 s66, s67 - Award of interest on compensation payments pursuant to s19A of Compensation Court Act 1984 - Impact of WorkCover Legislation Amendment Act 1995 - Whether interest had been claimed

ACTS CITED: Workers Compensation Act 1987
Compensation Court Act 1984
WorkCover Legislation Amendment Act 1995

CASES CITED:
St Vincents Private Hospital v Maher (1996) 13 NSWCCR 118

DECISION: Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40066/99
CC 3212/89

MASON P
PRIESTLEY JA
STEIN JA
Friday, 8 October 1999

MHG PLASTIC INDUSTRIES PTY LTD v Darrin ZICKAR

JUDGMENT

1 MASON P: The respondent worker collapsed at work on 15 October 1987 after the rupture of a cerebral aneurism. He suffered severe brain damage with permanent consequences. 2 On 17 October 1989 he filed an Application for Determination in the Compensation Court. The details of the application are of relevance to the remaining issue in the appeal and I shall return to them. 3 After much litigation the worker established that he had suffered a personal injury within paragraph (a) of the definition of “injury” in s4 of the Workers Compensation Act 1987 (the 1987 Act) (see Zickar v MHG Plastic Industries Pty Ltd (1996) 187 CLR 310). 4 The orders of the High Court made on 14 November 1996 reversed the decision of the Court of Appeal in MHG Plastic Industries Pty Ltd v Zickar (1994) 34 NSWLR 617, thereby reinstating the award of his Honour Judge Thompson made on 12 September 1991. This was an award for weekly compensation and s60 expenses. Judge Thompson also ordered that the worker have liberty to apply in respect of s66 and s67 subject to a stay of proceedings put in operation pending the appellate proceedings which had obviously been foreshadowed. 5 On 14 August 1997 the parties filed terms of settlement in the Compensation Court. These finalised the worker’s entitlement to lump sum compensation under s66 and s67 on the basis of the maximum award then available. Liberty to apply in respect of interest was reserved. 6 That liberty was taken up by notice of motion filed on 17 June 1998 and heard on 12 October 1998. It culminated in orders made by Judge Geraghty on 18 December 1998 in favour of the worker. 7 The employer appeals against the award of…

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: [1999] NSWCA 366
Decision Date: 8 October 1999

CaseChat Overview and Summary

MHG Plastic Industries Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the Compensation Court of New South Wales. The dispute concerned a claim for workers' compensation by Zickar (the respondent) following a collapse at work. The Compensation Court had awarded the respondent compensation under sections 66 and 67 of the *Workers Compensation Act 1987* (NSW), and importantly, had also awarded interest on those compensation payments pursuant to section 19A of the *Compensation Court Act 1984* (NSW).

The primary legal issue before the Court of Appeal was whether the Compensation Court had erred in awarding interest on the compensation payments. This question turned on the impact of the *WorkCover Legislation Amendment Act 1995* (NSW) on the respondent's entitlement to interest, and specifically, whether interest had been properly claimed by the respondent in accordance with the relevant legislative provisions.

The Court of Appeal considered the effect of the *WorkCover Legislation Amendment Act 1995* on the retrospective application of interest provisions. It was held that the amendment did not extinguish the respondent's right to claim interest. The Court found that the respondent had, in fact, made a claim for interest. Consequently, the Compensation Court had acted within its powers in awarding interest on the compensation payments.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs

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:	MHG Plastic Industries Pty Ltd v Zickar [1999] NSWCA 366
FILE NUMBER(S):	CA 40066/99
HEARING DATE(S):	15 September 1999
JUDGMENT DATE:	8 October 1999
PARTIES :	MHG Plastic Industries Pty Ltd v Darrin Zickar
JUDGMENT OF:	Mason P at 1; Priestley JA at 28; Stein JA at 29

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 3212/89
LOWER COURT JUDICIAL OFFICER:	Geraghty J

COUNSEL:	A: SG Campbell, IA Todd R: P Webb QC, W Carney
SOLICITORS:	A: Curwood & Partners, Sydney R: Lewis & Fawkner, Wollongong
CATCHWORDS:	WORKERS’ COMPENSATION - Worker collapsed at work - Claim for compensation under Workers Compensation Act 1987 s66, s67 - Award of interest on compensation payments pursuant to s19A of Compensation Court Act 1984 - Impact of WorkCover Legislation Amendment Act 1995 - Whether interest had been claimed
ACTS CITED:	Workers Compensation Act 1987 Compensation Court Act 1984 WorkCover Legislation Amendment Act 1995
CASES CITED:	St Vincents Private Hospital v Maher (1996) 13 NSWCCR 118
DECISION:	Appeal dismissed with costs