Paper Coaters Pty Limited v Jessop

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Paper Coaters Pty Limited v Jessop [2009] NSWCA 1

FILE NUMBER(S):
40833/07

HEARING DATE(S):
27/11/08

JUDGMENT DATE:
30 January 2009

PARTIES:
Paper Coaters Pty Limited (Appellant)
Anthony Jessop (Respondent)

JUDGMENT OF:
Hodgson JA Bell JA Gyles AJA   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2018/07

LOWER COURT JUDICIAL OFFICER:
Judicial Registrar McDonald

LOWER COURT DATE OF DECISION:
6/11/07

COUNSEL:
J Jobson (Appellant)
SG Campbell SC / A Reoch (Respondent)

SOLICITORS:
McCulloch & Buggy (Appellant)
Ron Kramer Associates (Respondent)

CATCHWORDS:
LIMITATION OF ACTIONS – effect of service of pre-filing statement – claim for work injury damages – suspension of time - resumption of Workers Compensation Act 1987 (NSW) s 151DA
PRACTICE AND PROCEDURE – service of pre-filing statement – was a pre-filing statement defective or incomplete – whether claimant can file successive pre-filing statements – withdrawal of pre-filing statement – Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 315(1), 316, 317, 318
WORDS & PHRASES – “defective pre-filing statement”

LEGISLATION CITED:
Evidence Act 1995 (NSW)
Interim Workers Compensation Commission Rules 2001
Workers Compensation Act 1987 (NSW)
Workers Compensation Commission Rules 2003
Workers Compensation Commission Rules 2006
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
R v Welsh (1996) 90 A Crim R 364
Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354

TEXTS CITED:

DECISION:
1. Grant leave to appeal.
2. Direct that the amended notice of appeal be treated as filed pursuant to leave.
3. Allow the appeal and quash the orders made by the Judicial Registrar on 6 November 2007 striking out paragraphs 2 and 3 of the defence filed on 5 July 2007.
4. Dismiss the respondent’s notice of motion filed in the District Court on 15 August 2007.
5. The respondent is to pay the appellant’s costs of the appeal and in the court below and with respect to the appeal to have a certificate under the Suitors Fund Act 1951, if otherwise qualified. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40833/2007
DC 2018/2007

HODGSON JA
BELL JA
GYLES AJA

Friday 30 January 2009

Paper Coaters Pty Ltd v Jessop

Judgment

1. HODGSON JA: I agree with the orders proposed by Bell JA and, subject to what I say below, I agree substantially with her reasons.

1. The question of whether there has been service of a pre-filing statement, and if so on what date it was served, can have significant consequences under the relevant legislation (which I will refer to, as does Bell JA, as the 1987 Act and the 1998 Act).

1. Under s151DA of the 1987 Act, the service of a pre-filing statement stops time running for limitation purposes while it remains current (and it remains current from the time it is served until it is struck out or withdrawn).

1. Under s316 and s318(1)(c) of the 1998…