Ostojic v Trazmet Pty Limited

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CITATION:

Ostojic v Trazmet Pty Limited [2005] NSWCA 145
HEARING DATE(S):

10 February 2005
 
JUDGMENT DATE: 


5 May 2005

JUDGMENT OF:

Giles JA at 1; Santow JA at 2; Tobias JA at 84
DECISION:

Leave to appeal granted. Appeal dismissed with costs.

CATCHWORDS:

STATUTORY INTERPRETATION - Section 151A of Workers Compensation Act 1987 and elections thereunder - History of section and its predecessors - Claimant held to have made his election in circumstances - No abuse of process by making second application in the circumstances.

LEGISLATION CITED:

District Court Rules Pt 11A r3 and/or Pt 9 r17
Workers Compensation Act 1987 (NSW) s151A
Workers Compensation Legislation Amendment Act 1998 (No 85) Schedule 1[65]
Workers Compensation Legislation Amendment Act 2000 (No 87)
Workers Compensation Legislation Further Amendment Act 2001 (No 94)
Workers Compensation (Benefits) Amendment Act 1989 (No 133), Sch 1[1], s151A(3)(b)

CASES CITED:

Allina Pty Ltd v FCT (1991) 99 ALR 295
Commonwealth v Verwayen (1990) 170 CLR 394
Corcoran v Tyre Marketers Australia [2001] NSWCA 300
DA Christie Pty Ltd v Baker [1996] 2 VR 58
Giannarelli v Wraith (1988) 165 CLR 543
Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70
House v The King (1936) 55 CLR 499
Hunter v Chief Constable of the West Midlands [1982] AC 529
Nominal Defendant v Manning (2000) 50 NSWLR 139
North Broken Hill Limited v Vockins (1999) 19 NSWCCR 193
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re MacManaway and Re House of Commons (Clergy Disqualification) Act 1901 [1951] AC 161
Rogers v R (1994) 181 CLR 251
Technical Products Pty Limited v State Government Insurance Office (Queensland) [1988] 167 CLR 45
Walton v Gardiner (1992-93) 177 CLR 378
Workers' Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642

PARTIES:

Veljko OSTOJIC (Claimant)
TRAZMET PTY LIMITED (Opponent)

FILE NUMBER(S):

CA 40452/04
COUNSEL:

B W INGRAM (Claimant)
S G CAMPBELL, SC/ S M KETTLE (Opponent)

SOLICITORS:

Taylor & Scott (Claimant)
Hunt & Hunt (Opponent)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

DC 11673/01

LOWER COURT JUDICIAL OFFICER:

Maguire DCJ



                          CA 40452/04
                          DC 11673/01

                          GILES JA
                          SANTOW JA
                          TOBIAS JA

                          5 MAY 2005
Veljko OSTOJIC v TRAZMET PTY LIMITED
Judgment

1 GILES JA: I agree with Santow JA.

2 SANTOW JA:

      INTRODUCTION
      This is fundamentally a question of statutory interpretation of an earlier version of the workers compensation legislation namely the Workers Compensation Act 1987 (NSW) (“WCA” or “Act”). It arises in the context of a workplace injury. By the time the injured claimant worker Mr Ostojic, brought his original claim against his defendant employer Trazmet Pty Limited (“Trazmet” or “the opponent”) in the Compensation Court (7 January 2000), access to (modified) common law rights had been reinstated. This was under the 1987 version of that Act. But they were reinstated in such a way that the worker had to elect between those rights and a lesser level of statutory compensation.

3 The primary question in this…

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Details
Case
[2005] NSWCA 145
Decision Date

CaseChat Overview and Summary

The parties to this appeal were the claimant, Mr Ostojic, and the respondent, Trazmet Pty Limited. The dispute concerned the claimant's entitlement to workers compensation benefits under the *Workers Compensation Act 1987* (NSW). The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the claimant had validly made an election under section 151A of the *Workers Compensation Act 1987*. This section, and its predecessors, governed the circumstances in which a claimant could elect to pursue a claim for common law damages rather than accepting statutory compensation. A secondary issue arose regarding whether the claimant's second application constituted an abuse of process.

The court considered the history and interpretation of section 151A and its predecessors. It was held that the claimant had made his election in the circumstances presented. The court found that the claimant's second application did not amount to an abuse of process, implying that the specific facts of the case did not support such a finding. The court's reasoning appears to have involved a broad interpretation of the concept of an "award" as used in the context of the repealed Act, which included "award, order, determination, ruling and direction".

Orders

Orders of the court

” was defined for the purpose of s17 of the repealed Act as including “award, order, determination, ruling and direction”. The opponent relies upon those definitions as indicating that the concept of the Compensation Court making an “award” is a broad one.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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