OCS Australia Pty Ltd v Cho

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NEW SOUTH WALES COURT OF APPEAL

CITATION:
OCS AUSTRALIA PTY LTD v CHO [2010] NSWCA 85

FILE NUMBER(S):
2009/298242

HEARING DATE(S):
29/03/2010

JUDGMENT DATE:
23 July 2010

PARTIES:
OCS (Australia) Proprietary Limited, trading as Overseas Courier Serivces - Appellant
Helen Cho - Respondent

JUDGMENT OF:
McColl JA Handley AJA Sackville AJA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
3810/2007

LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ

LOWER COURT DATE OF DECISION:
11/02/2009

COUNSEL:
L King SC and J Catsanos - Appellant
R A Cavanagh - Respondent

SOLICITORS:
Tresscox Lawyers - Appellant
Holman Webb Lawyers - Respondent

CATCHWORDS:
APPEAL – competency – amount in issue – quantum appeal – bona fide claim for requisite amount – susceptible of reasonable support – appeal competent.
APPEAL – competency – amount in issue—property or civil right of requisite value – employer’s claim to indemnity under Workers Compensation Act s 151Z—civil right – notional pool of damages of requisite value – appeal competent.
DAMAGES—no question of principle.

LEGISLATION CITED:
Workers Compensation Act 1987, 151Z(1)(d)
District Court Act 1973, s 127(2)

CATEGORY:
Principal judgment

CASES CITED:
A-G v Arthur Ryan Automobiles Ltd [1938] 2 KB 16 CA
A-G ex rel Duncan v Andrews [1979] HCA 24, 145 CLR 573
Cole v The Commonwealth [1961] HCA 87, 106 CLR 653
Dunn v Ross Lamb Motors [1978] 1 NSWLR 26
Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250, 47 NSWLR 263
South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161; 54 NSWLR 495

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

09/298242

McColl JA
Handley AJA
Sackville AJA

Friday 23 July 2010

OCS AUSTRALIA PTY LIMITED  v  HELEN CHO

CATCHWORDS

APPEAL – competency – amount in issue – quantum appeal – bona fide claim for requisite amount – susceptible of reasonable support – appeal competent.
APPEAL – competency – amount in issue—property or civil right of requisite value – employer’s claim to indemnity under Workers Compensation Act s 151Z—civil right – notional pool of damages of requisite value – appeal competent.
DAMAGES—no question of principle.

HEADNOTE

One of the appellant’s employees was injured in a motor vehicle accident on her way to work and was paid compensation. The employer sued the driver of the other vehicle to enforce its right of indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987. The trial Judge found that the motor vehicle accident had caused only minor injuries from which the worker had soon recovered and that her continuing incapacity was the result of degenerative disease in her lumbar spine, back injuries in the employment of a previous employer, and surgical procedures. She therefore assessed the notional pool of damages at $3392. The employer appealed as of right claiming that a proper assessment of the notional pool for the purposes of s 151Z(1)(d) was in the order of $720,000. The respondent objected to the competency of the appeal on the ground that…

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Details
Case
[2010] NSWCA 85
Decision Date

CaseChat Overview and Summary

OCS Australia Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the District Court of New South Wales. The dispute concerned OCS Australia's claim for indemnity against Mr. Cho under section 151Z of the *Workers Compensation Act 1987* (NSW).

The primary legal issue before the Court of Appeal was whether the appeal was competent, specifically concerning the "amount in issue" requirement for appeals to the Court of Appeal. OCS Australia argued that the appeal involved a civil right of the requisite value, while Mr. Cho contended that the appeal was not competent as the amount in issue did not meet the threshold.

The Court of Appeal reasoned that the employer's claim for indemnity under section 151Z of the *Workers Compensation Act* constituted a "property or civil right" for the purposes of the appeal competency provisions. It held that the "amount in issue" was not limited to the specific sum awarded by the primary judge but rather the notional pool of damages that would have been available to the injured worker. The Court found that this notional pool was of the requisite value, rendering the appeal competent.

Consequently, the Court of Appeal dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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