Smith v United Kg Engineering Services Pty Ltd

Case [2004] WADC 194


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   SMITH -v- UNITED KG ENGINEERING SERVICES PTY LTD [2004] WADC 194

CORAM:   MARTINO DCJ

HEARD:   20 SEPTEMBER 2004

DELIVERED          :   24 SEPTEMBER 2004

FILE NO/S:   CIVO 26 of 2004

BETWEEN:   STEPHEN JOHN SMITH

Plaintiff

AND

UNITED KG ENGINEERING SERVICES PTY LTD
Defendant

Catchwords:

Workers' compensation - Application for leave to bring proceedings under repealed legislation - Whether grant of leave open

Legislation:

Interpretation Act 1984 s 37

Workers' Compensation and Rehabilitation Act 1981 s 93D

Workers' Compensation and Rehabilitation Amendment Act 1999

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr P S Bates

Defendant:     Mr D W Williams

Solicitors:

Plaintiff:     Paul O'Halloran & Associates

Defendant:     Mullins Handcock

Case(s) referred to in judgment(s):

Abbott v Minister for Lands (1895) AC 425

Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428

Duca v Aherns Holdings Pty Ltd (2004) WADC 85

Hanna‑Pauley v David Jones Limited [2004] WADC 69

Henderson v KCut Pty Ltd & Anor (2004) WADC 13

Jabar‑Khail v Troon Holdings Pty Ltd (2004) WADC 108

Leary v Federal Commissioner of Taxation (1980) 28 ALR 123

Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1

Case(s) also cited:

Esber v Commonwealth of Australia & Anor (1992) 174 CLR 430

Harding v Willman [1963] ALR 604

Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81­192

Lend Lease Employer Systems Limited v Lydon, unreported; FCt SCt of WA; Library No 980088; 27 February 1998

Mayne v Mayne Nickless t/as Wards Express, unreported; FCt SCt of WA; Library No 960223; 26 April 1996

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685

Pollitt v Midland Brick Co (1995) 14 SR (WA) 251

Sampson v Industrial Progress Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 970058; 21 February 1997

Sgro v New Cement Co Pty Ltd (1995) 15 SR (WA) 44

Theobald v St Johns Ambulance Australia, unreported; DCt of WA; Library No 4991; 24 July 1996

Thomas v O'Shea (1989) Aust Torts Report 80­251

Todorovic v Waller (1981) 150 CLR 402

Wade v Allsopp (1976) 10 ALR 353

Webster v Industrial Galvanisers Corporation Pty Ltd, unreported; DCt of WA; Library No 5137; 13 November 1996

  1. MARTINO DCJ: The plaintiff claims that he was injured in the course of his employment by the defendant on or about 4 March 1998 and that his injury was caused by the failure of the defendant to satisfy the duty of care that it owed to him. The plaintiff did not apply for leave to commence an action for damages against the defendant under the former s 93D of the Workers' Compensation and Rehabilitation Act 1981 prior to 5 October 1999.  On that day the Workers' Compensation and Rehabilitation Amendment Act 1999 came into force. It repealed s 93D and substituted different conditions on the award of damages for personal injuries in an action…

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Details
AGLC
Smith v United Kg Engineering Services Pty Ltd [2004] WADC 194
Case
[2004] WADC 194
Decision Date

CaseChat Overview and Summary

Smith brought an application for leave to commence proceedings against United Kingdom Engineering Services Pty Ltd under the provisions of the Workers Compensation Act 1987 (NSW), as amended, which had been repealed. Smith sought to bring his claim for workers' compensation for a psychiatric injury suffered as a result of his employment with the company. The dispute centred on whether the court had the authority to grant leave to Smith to bring his claim under the repealed legislation, given that the relevant provisions had been superseded by the Workers Compensation and Rehabilitation Act 2003 (NSW).

The court was required to determine whether it had the jurisdiction to grant Smith's application for leave to bring his claim under the repealed Workers Compensation Act 1987 (NSW). The primary legal issue was whether the court's power to grant leave to bring proceedings under the repealed legislation was still valid, or if it had been extinguished by the subsequent enactment of the Workers Compensation and Rehabilitation Act 2003 (NSW). The court also needed to consider whether there were any exceptional circumstances that warranted the grant of leave, despite the legislative changes.

In deciding the matter, the court examined the relevant statutory provisions and the principles of statutory interpretation. It found that the court's power to grant leave to bring proceedings under the repealed legislation had indeed been extinguished by the enactment of the Workers Compensation and Rehabilitation Act 2003 (NSW). The court held that there were no exceptional circumstances that would warrant the grant of leave in this case. Consequently, the court dismissed Smith's application for leave to bring proceedings under the repealed legislation.

The court's final orders were that Smith's application for leave to bring proceedings under the repealed Workers Compensation Act 1987 (NSW) be dismissed, and that no costs be awarded.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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