Prime v Colliers International (NT) Pty Ltd - [2006] NTMC 61

CITATION: Prime v Colliers International (NT) Pty Ltd [2006] NTMC 061

PARTIES: DAVID PRIME

COLLIERS INTERNATIONAL (NT) PTY LTD

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health

FILE NO(s): 20528796

DELIVERED ON: 28 June 2006

DELIVERED AT: Darwin

HEARING DATE(s): 25 May 2006

JUDGMENT OF: Dr J A Lowndes

CATCHWORDS:

WORK HEALTH – SUMMARY JUDGMENT – MEDIATION AS A PRECONDITION TO COURT PROCEEDINGS – RELATIONSHIP BETWEEN s82 AND s182(1) & (3) – AMENDMENT OF PROCEEDINGS

ss82, 103J & s182(1) & (3) Work Health Act

Johnson v Paspaley Pearls Pty Ltd (1996) 5 NTLR 199 applied
Maddalozzo v Maddick (1992) 108 FLR 159 applied

REPRESENTATION:

Counsel:
Plaintiff: Mr Morris
Defendant: Ms Mangan

Solicitors:
Plaintiff: Maleys
Defendant: Lavan Legal

Judgment category classification: A
Judgment ID number: [2006] NTMC 061
Number of paragraphs: 24

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20528796

BETWEEN:

DAVID PRIME
Plaintiff

AND:

COLLIERS INTERNATIONAL (NT) PTY LTD
Defendant

REASONS FOR DECISION

(Delivered 28 June 2006)

Dr LOWNDES SM:

1. On 15 May 2006 the employer filed an interlocutory application seeking summary judgment in its favour on the grounds that the worker had failed to comply with s 82(1) and (2) and s 103J of the Work Health Act. The application was supported by the affidavit of Kerry Robyn Wood sworn 15 May 2006. The application was brought pursuant to rule 21.02(1) (b) and (c) of the Work Health Court Rules.

2. On 31 May 2006 the Work Health Court ordered that summary judgment be entered in favour of the employer and the worker’s Statement of Claim be dismissed. On that day the Court indicated that its reasons for decision would be published in due course. Those reasons are contained herein.

3. I propose to deal first with the argument that the worker failed to comply with the precondition for court proceedings contained in s 103J of the Act.

4. Section 103J (1) provides that a claimant for compensation is not entitled to commence proceedings unless there has been an attempt to resolve the dispute by mediation and that attempt has been unsuccessful. Subsection (2) requires the mediator, at the conclusion of a mediation, to issue to each of the parties a certificate stating that mediation has occurred, listing the written information provided to the mediator by the parties during the mediation process, setting out the recommendations (if any) of the mediator and stating the outcome of the mediation.

5. The employer argued that as there had been no attempt to resolve the dispute by mediation, the worker was not entitled to commence the present proceedings and accordingly there should be summary judgment in favour of the employer.

6. In paragraph 12 of his Statement of Claim the worker alleged that the worker referred the dispute to mediation on or about 13 September 2005. It was further alleged that mediation took place on or about 9 November 2005. Paragraph 13 states the outcome of the mediation and also sets out…

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.

Keep reading for free

Create a free CaseChat account to read Prime v Colliers International (NT) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NTMC 61
Decision Date: 28 June 2006

CaseChat Overview and Summary

In the Work Health Court of the Northern Territory, David Prime brought a claim against Colliers International (NT) Pty Ltd for compensation under the Work Health Act. The employer sought summary judgment on the basis that the worker had not complied with the statutory preconditions for court proceedings, specifically the requirement to attempt mediation under s 103J and the procedural requirements for making a valid claim under s 82. The worker argued that he had satisfied these requirements and that he was entitled to invoke the excusatory provisions of s 182(3) to avoid dismissal of his claim.

The court found that the precondition for court proceedings under s 103J was satisfied as mediation had occurred, even though it was unsuccessful. However, the court agreed with the employer that the worker had not made a valid claim under s 82 as he had not provided the required certificate from a medical practitioner within the prescribed time period. The court held that the worker's failure to make a valid claim meant that the proceedings had not been validly commenced. The worker's reliance on s 182(3) to excuse his failure to comply with s 82 was rejected as the court held that s 182(3) only applies where a valid claim has been made outside the prescribed period.

Accordingly, the employer's application for summary judgment was granted and the worker's claim was dismissed. The court held that the worker had no real prospect of successfully defending the claim and that there were no triable issues of fact. The worker was ordered to pay the employer's costs of the proceedings.

Orders