State of NSW v Connor - [2003] NSWCA 200

CITATION: STATE OF NEW SOUTH WALES v CONNOR [2003] NSWCA 200

HEARING DATE(S): 8th July 2003

JUDGMENT DATE:
19 August 2003

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 19; Santow J at 20

DECISION: Summons dismissed with costs.

CATCHWORDS: Workers Compensation - Limitation Period - Election to commence proceedings under the Workers Compensation Act 1987 - Where order granting leave to commence proceedings set aside on appeal

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590
Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394
Jol v State of New South Wales (1998) 45 NSWLR 283
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Macksville & District Hospital v Mayze (1987) 10 NSWLR 708
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242

PARTIES :
State of New South Wales - Appellant
Barry Connor - Respondent

FILE NUMBER(S): CA 40012/99

COUNSEL: C R R Hoeben SC/W S Strathdee - Appellant
B J Gross QC/S W Hickey - Respondent

SOLICITORS: Hunt & Hunt - Appellant
Carroll & O'Dea - Respondent

LOWER COURTJURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 13920/96

LOWER COURT
JUDICIAL OFFICER : Hidden J

CA 40012/99
CL 13920/96
SHELLER JA
HODGSON JA
SANTOW JA

STATE OF NEW SOUTH WALES v CONNOR

The respondent, while working as a prison officer, suffered injuries on 4 July 1992 when he slipped descending from a watchtower. In July 1994 he further injured himself while changing a fan belt at his home. He was awarded weekly compensation and medical expenses by the Compensation Court for the injuries suffered on both occasions. No award was made for permanent injuries or pain and suffering.

On 19 September 1996 the respondent filed a summons in the Supreme Court for leave to begin common law proceedings out of time pursuant to power conferred by s151D of the Workers Compensation Act 1987. On 28 October 1996 Master Greenwood refused leave. On 2 December 1998, on Mr Connor’s appeal, Hidden J reversed the Master’s decision and gave the respondent leave to commence proceedings for damages against the appellant claiming damages in respect of the 1992 injury. Pursuant to that grant of leave Mr Connor filed a statement of claim in the Supreme Court on 29 December 1998.

The appellant then successfully appealed the decision of Hidden J to the Court of Appeal, which reinstated the orders made by Master Greenwood.

A further application to the Compensation Court in April 2001 was struck out. On 26 November 2001 the respondent again filed an application against the Department of Corrective Services for determination for compensation for non-economic loss and for permanent injuries to his back, sexual organs and legs. The Department of Corrective Services filed its answer on 6 February 2002 denying the claim on various grounds but not on the ground of election pursuant to s151A of the Act. On 23 October 2002 the Department filed an…

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.

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Details

Case: [2003] NSWCA 200
Decision Date: 19 August 2003

CaseChat Overview and Summary

The State of New South Wales (the appellant) sought to appeal an order of the Supreme Court of New South Wales that had granted leave to the respondent, Mr Connor, to commence proceedings under the *Workers Compensation Act 1987* (NSW) outside the prescribed limitation period. The dispute concerned the validity of that leave order, which the appellant argued should not have been granted. The appeal was heard by Sheller and Hodgson JJA, and Santow J.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in granting Mr Connor leave to commence proceedings out of time. This involved considering the criteria for granting such leave under the relevant legislation and whether those criteria were satisfied in the circumstances of the case. The Court also had to determine the appropriate course of action given the appellant's challenge to the initial grant of leave.

The Court of Appeal found that the primary judge had erred in granting leave. Their Honours reasoned that the requirements for extending the limitation period had not been met. Consequently, the order granting leave to commence proceedings was set aside. The Court concluded that Mr Connor was therefore out of time to bring his claim.

The summons was dismissed with costs.

Orders

Orders of the court

Summons dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	STATE OF NEW SOUTH WALES v CONNOR [2003] NSWCA 200
HEARING DATE(S):	8th July 2003
JUDGMENT DATE:	19 August 2003
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 19; Santow J at 20
DECISION:	Summons dismissed with costs.
CATCHWORDS:	Workers Compensation - Limitation Period - Election to commence proceedings under the Workers Compensation Act 1987 - Where order granting leave to commence proceedings set aside on appeal
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394 Jol v State of New South Wales (1998) 45 NSWLR 283 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
PARTIES :	State of New South Wales - Appellant Barry Connor - Respondent
FILE NUMBER(S):	CA 40012/99
COUNSEL:	C R R Hoeben SC/W S Strathdee - Appellant B J Gross QC/S W Hickey - Respondent
SOLICITORS:	Hunt & Hunt - Appellant Carroll & O'Dea - Respondent

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	13920/96
LOWER COURT JUDICIAL OFFICER :	Hidden J