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

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 It repealed s 93D and substituted different conditions on the award of damages for personal injuries in an action…

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 Smith v United Kg Engineering Services Pty Ltd

Details

AGLC: Smith v United Kg Engineering Services Pty Ltd [2004] WADC 194
Case: [2004] WADC 194
Decision Date: 24 SEPTEMBER 2004

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