Ostojic v Trazmet Pty Limited

[2005] NSWCA 145

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…