Ryde City Council v Cook

[1999] NSWCA 380

CITATION:	Ryde City Council v Cook [1999] NSWCA 380
FILE NUMBER(S):	CA 41031/98
HEARING DATE(S):	13 September 1999
JUDGMENT DATE:	15 October 1999
PARTIES :	Ryde City Council v Jason Cook
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	18652/97
LOWER COURT JUDICIAL OFFICER:	Curtis CCJ

COUNSEL:	Appellant: C. Hoeben SC Respondent: J. Wynyard
SOLICITORS:	Appellant: Pieterse & Pieterse Respondent: Gillis Delaney Brown
CATCHWORDS:	ss 66, 67 and 92A Workers Compensation Act - application to set aside benefits.
ACTS CITED:	Workers Compensation Act, 1987, Workcover Legislation (Amendment) Act 1996,
DECISION:	Summons dismissed with costs.

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 41031/98

PRIESTLEY JA
MEAGHER JA
DAVIES AJA

Friday, 15 October 1999

RYDE CITY COUNCIL v COOK

The trial judge mistakenly calculated benefits under s.66 of the Worker’s Compensation Act, from which calculation the appellant Council made application for reconsideration under s.17 of the Act on 23 November 1998, at which time the trial judge amended the benefits in favour of the respondent. On 23 November the appellant also sought to amend the award of benefits on grounds of s.92A - that s.92A of the Act demands a literal interpretation of service of a claim upon the employer from whom the compensation is claimed. The respondent served the employer’s insurer. The Council appeals.
HELD By Meagher JA, Priestley JA, Davies AJA agreeing: 1. To grant leave would be most unfair to the worker, who was never at any stage alerted to the s.92A issue until 23 November. Common justice demands the worker be aware as early as possible what obstacles are to be raised in his path. 2. The s.92A issue is one to be resolved, but this is not the appropriate case. ORDERS

1. Summons dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 41031/98

PRIESTLEY JA
MEAGHER JA
DAVIES AJA

Friday, 15 October 1999

RYDE CITY COUNCIL v COOK

JUDGMENT

1   PRIESTLEY JA: I agree with Meagher JA.
2 MEAGHER JA: In this matter Mr Cook suffered an injury when working for the Council. He hurt his knee, which has led to some unfortunate consequences. His application for an award of compensation was heard by Curtis CCJ, who awarded him pursuant to s.67 of the Act a lump sum equal to 35% of the compensation payable in a most extreme case. He also made an award of $18,750.00 under s.66 in respect of a 25% permanent loss of efficient use of his right leg. His Honour’s judgment was given on 20 November 1998. 3 Something approaching pandemonium occurred on 23 November 1998, during the course of the appellant Council’s application for reconsideration under s.17 of the Compensation Court Act. It all revolves around the fact that s.66 benefits were reduced by the Workcover Legislation (Amendment) Act 1996 on 12 January 1997. 4   His Honour had mistakenly applied the new rates where he thought he should have applied the old rates. If he had done so the figure would have been $24,346.87, not $18,750. Counsel for the Council had relisted the matter because he thought the $18,750. was the old rate not the new one. Counsel for the worker discovered that the new rate and not the old one had been used and sought a correction under the slip rule. His Honour found for the worker and made an order for the payment of the higher sum in lieu of that awarded by him three days earlier. 5   The Council seeks leave to appeal from that decision of Curtis J. 6   Why should the new rates be applied? Because clause 18 of part 6 of Schedule 6 of the Workcover Legislation (Amendment) Act 1996 provides that the compensation payable under s.66 and 67 in respect of any injury received before the commencement of the amendment of those sections by the Workcover Legislation (Amendment) Act 1996 where no claim for compensation under either s.66 or s.67 in respect of the claim was duly made by the worker before the commencement, is to be calculated by reference to the requisite percentage of the amounts in force under the relevant section immediately after its amendment of that Act (italics supplied). The Workcover Legislation (Amendment) Act 1996 was a statute which lowered the rates. 7 In the present case, the worker suffered his injuries in August and November 1993. On 30 December 1996, he had made a claim in a form which complied with all statutory and regulatory requirements and served it on the Council’s insurer. The legislation to which I have referred came into effect on 12 January 1997. 8 Nevertheless, it has been alleged against him that no claim under ss66 or 67 had been “duly” made by him before 12 January 1997. 9 When I say “alleged against him” I refer to the allegations made in the second set of proceedings before Judge Curtis on 23 November 1998. 10 The Council takes the point that no claim was “duly” made because it was served on the insurer of the Council, not on the Council. The point was not mentioned in the Council’s pleadings. 11 Section 92A of the Act provides, insofar as is relevant:

“(1) The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed.”

12   What approach the Compensation Court should take in such cases is a matter of great dispute. 13   However, I do not think this an appropriate case to grant leave so as to resolve that dispute. It is a little late for the Council to take the point now, when it should have done so in its Answer, or - at the very latest - in the 20 November hearing. To grant leave would be most unfair to the worker, who was never at any stage alerted to it until 23 November, and who in common justice should have known as early as possible what obstacles were to be raised in his path. 14   The summons should be dismissed with costs. 15   DAVIES AJA: I agree with Meagher JA.