Perry Engineering Co Ltd v Mermingis - [1964] HCA 67

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Windeyer and Owen JJ.

PERRY ENGINEERING CO. LTD. v. MERMINGIS

(1964) 112 CLR 468

5 November 1964

Workmen's Compensation (S.A.)

Workmen's Compensation (S.A.)—Redemption of weekly payments by payment of lump sum—Computation of amount—Disregard of weekly payments made prior to application for redemption—Workmen's Compensation Act, 1932-1963 (S.A.), ss. 4 (1), 18 (1), (3), 28.

Decisions

November 5.
The following written judgments were delivered:-
BARWICK C.J. A special magistrate sitting in the Local Court of Adelaide as an arbitrator under the Workmen's Compensation Act, 1932-1963 (S.A.) stated for the opinion of the Supreme Court of South Australia a case in which he asked in substance whether in awarding a lump sum in redemption of the appellant's obligation to make weekly payments of compensation to the respondent he should disregard the weekly payments of compensation which had already been made to the respondent. (at p469)

2. The case was one in which the respondent had suffered injury by accident arising out of and in the course of his employment occasioning him total incapacity for a period and thereafter partial but permanent incapacity. As at the date of the respondent's application for the redemption of the appellant's liability to make weekly payments of compensation, the respondent's incapacity was a permanent disability for work within the meaning of s. 28 of the Workmen's Compensation Act, 1932-1963. (at p469)

3. The sections of this Act which are relevant to the resolution of the questions asked in the case stated are - s. 4 (1) which makes an employer liable to pay compensation in accordance with the Act where personal injury by accident arising out of and in the course of the employment is caused to a workman ; s. 18 (1) which provides that in the case of total or partial incapacity for work resulting from such an injury, the amount of compensation shall be a weekly payment during the incapacity, within certain stated monetary limits ; s. 18 (3) which provides: "The total liability of the employer in respect of payments under this section shall not exceed" (as at the date of this injury) "three thousand pounds". (at p470)

4. Lastly, s. 28 which provides: "Where any weekly payment has been continued for not less than six months, the liability therefor may, on application by or on behalf of either the workman or the employer, be redeemed by the payment of a lump sum to be settled, in default of agreement, by arbitration under this Act, and such lump sum may be ordered by the arbitrator or special magistrate to be invested or otherwise applied as abovementioned. Where permanent disability for work results from the injury, weekly payments made prior to an application under this section shall, notwithstanding anything in this Act, be in addition to any such lump sum. Provided that nothing in this section shall be construed as preventing agreements being made for the redemption of a weekly payment by a lump sum." (at p470)

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.

Continue reading Perry Engineering Co Ltd v Mermingis

Details

AGLC: Perry Engineering Co Ltd v Mermingis [1964] HCA 67
Case: [1964] HCA 67
Decision Date: 5 November 1964

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Perry Engineering Co Ltd and Mermingis. The core of the disagreement related to the construction of a building and the alleged breach of a contract for the supply and erection of steelwork. Mermingis, the plaintiff, claimed that Perry Engineering, the defendant, had failed to complete the work within the agreed timeframe, leading to financial losses.

The central legal issue before the High Court was whether Perry Engineering had validly exercised a contractual right to suspend performance of its obligations due to alleged delays caused by Mermingis. This involved an examination of the terms of the contract, specifically clauses relating to time for completion, extensions of time, and the consequences of delays attributable to the owner. The court also had to determine the proper interpretation of the notice provisions within the contract concerning the exercise of such suspension rights.

The High Court, in its judgment, analysed the contractual provisions governing delays and extensions of time. It was held that the right to suspend performance was contingent upon strict compliance with the contractual requirements for notifying the owner of delays and seeking an extension of time. The court found that Perry Engineering had not adequately satisfied these notice requirements, and therefore, its purported suspension of work was not a valid exercise of its contractual rights. Consequently, the court concluded that Perry Engineering was in breach of its contractual obligations by failing to proceed with the work.

The High Court allowed the appeal, setting aside the judgment of the lower court and remitting the matter for a new trial on the issue of damages.

Orders