Stryke Corporation Pty Ltd v Miskovic - [2007] NSWCA 72

New South Wales

Court of Appeal

CITATION: STRYKE CORPORATION PTY LIMITED v MISKOVIC [2007] NSWCA 72

HEARING DATE(S): 27 February 2007

JUDGMENT DATE:
2 April 2007

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 10; Santow JA at 19

DECISION: Appeal dismissed with costs.

CATCHWORDS: PROCEDURE – Leave to amend proposed statement of claim under compulsory pre-trial process of s318 of Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (“WIM”) – Whether applicable to the leave sought where the amendment was to insert claim for liability for misleading conduct in relation to employment under s53B of the Trade Practices Act – Meaning of the expression “for work injury damages” incorporated in s318(1) and in particular whether a contravention of s53B covered by the words “caused by the negligence or other tort of the employer” – No necessity to consider constitutional question of consistency between s318 and s53B of the Trade Practice Act as s318 WIM not applicable – Otherwise no basis for appellate intervention in relation to exercise and of discretion to grant leave to amend.

LEGISLATION CITED: Judiciary Act 1903 (Cth) s78A
Trade Practices Act 1974 (Cth) s51A, s52, s53B, s82
Uniform Civil Procedure Act s64
Workers Compensation Commission Rules 2003 (NSW) Rule 80(1)
Workplace Injury Management & Workers Compensation Act 1998 s4, s250, s318

CASES CITED: Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Esso Australia Limited v Victorian WorkCover Authority (2000) 1 VR 246
Gibson v Parkes District Hospital and Another (1991) 26 NSWLR 9
Henville v Walker (2001) 206 CLR 459
Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (1982) 149 CLR 191
Phillip Morris Limited v Ainley & Inc Nominal Defendant [1975] VR 345
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

PARTIES: STRYKE CORPORATION PTY LIMITED trading as KSS SECURITY (Appellant)
Zoran MISKOVIC (Respondent)
THE ATTORNEY GENERAL FOR NEW SOUTH WALES (Intervenor)

FILE NUMBER(S): CA 40872/05

COUNSEL: J MACONACHIE, QC/ F DOAK (Appellant)
T BATHURST, QC/ H KELLY, SC/ T McKENZIE (Respondent)
I MESCHER/ B O’DONNELL (Intervenor)

SOLICITORS: Turks Legal (Appellant)
Petrovich Accident Lawyers (Respondent)
Crown Solicitor’s Office (Intervenor)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3813/04

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 31 October 2005

CA 40872/05
DC 3813/04

SPIGELMAN CJ
HODGSON JA
SANTOW JA
2 APRIL 2007

STRYKE CORPORATION PTY LIMITED v Zoran MISKOVIC

Judgment

1 SPIGELMAN CJ: The facts, issues, statutory provisions and submissions are set out in the judgments of Hodgson JA and Santow JA which I have read in draft.

2 The focus of submissions on behalf of the Appellant was whether an action under s53B of the Trade Practices Act 1974 (Cth) (“TPA”) was an action for a “tort” within the meaning of the definition of “work injury damages” in s250(1) of the Workplace Injury Management & Workers Compensation Act 1998 (“WIM”).

3 I…

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: [2007] NSWCA 72
Decision Date: 2 April 2007

CaseChat Overview and Summary

Stryke Corporation Pty Ltd (the appellant) sought leave to amend its proposed statement of claim against Mr Miskovic (the respondent) in proceedings concerning a work injury. The dispute centred on whether the proposed amendment, which introduced a claim for misleading conduct under section 53B of the *Trade Practices Act 1974* (Cth), fell within the scope of section 318 of the *Workplace Injury Management and Workers' Compensation Act 1998* (NSW). The appeal was heard by Spigelman CJ, Hodgson JA, and Santow JA.

The primary legal issue before the court was the interpretation of section 318(1) of the *Workplace Injury Management and Workers' Compensation Act 1998* (NSW), specifically whether the expression "for work injury damages" encompassed a claim for misleading conduct under section 53B of the *Trade Practices Act 1974* (Cth). This involved determining whether a contravention of section 53B could be considered as "caused by the negligence or other tort of the employer" within the meaning of section 318(1).

The court reasoned that section 318 of the *Workplace Injury Management and Workers' Compensation Act 1998* (NSW) was not applicable to the proposed amendment. Consequently, the court found no necessity to consider any potential constitutional inconsistency between section 318 and section 53B of the *Trade Practices Act 1974* (Cth). Furthermore, the court held that there was no basis for appellate intervention in the exercise of the discretion to grant leave to amend.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal 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:	STRYKE CORPORATION PTY LIMITED v MISKOVIC [2007] NSWCA 72
HEARING DATE(S):	27 February 2007
JUDGMENT DATE:	2 April 2007
JUDGMENT OF:	Spigelman CJ at 1; Hodgson JA at 10; Santow JA at 19
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – Leave to amend proposed statement of claim under compulsory pre-trial process of s318 of Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (“WIM”) – Whether applicable to the leave sought where the amendment was to insert claim for liability for misleading conduct in relation to employment under s53B of the Trade Practices Act – Meaning of the expression “for work injury damages” incorporated in s318(1) and in particular whether a contravention of s53B covered by the words “caused by the negligence or other tort of the employer” – No necessity to consider constitutional question of consistency between s318 and s53B of the Trade Practice Act as s318 WIM not applicable – Otherwise no basis for appellate intervention in relation to exercise and of discretion to grant leave to amend.
LEGISLATION CITED:	Judiciary Act 1903 (Cth) s78A Trade Practices Act 1974 (Cth) s51A, s52, s53B, s82 Uniform Civil Procedure Act s64 Workers Compensation Commission Rules 2003 (NSW) Rule 80(1) Workplace Injury Management & Workers Compensation Act 1998 s4, s250, s318
CASES CITED:	Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Esso Australia Limited v Victorian WorkCover Authority (2000) 1 VR 246 Gibson v Parkes District Hospital and Another (1991) 26 NSWLR 9 Henville v Walker (2001) 206 CLR 459 Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (1982) 149 CLR 191 Phillip Morris Limited v Ainley & Inc Nominal Defendant [1975] VR 345 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
PARTIES:	STRYKE CORPORATION PTY LIMITED trading as KSS SECURITY (Appellant) Zoran MISKOVIC (Respondent) THE ATTORNEY GENERAL FOR NEW SOUTH WALES (Intervenor)
FILE NUMBER(S):	CA 40872/05
COUNSEL:	J MACONACHIE, QC/ F DOAK (Appellant) T BATHURST, QC/ H KELLY, SC/ T McKENZIE (Respondent) I MESCHER/ B O’DONNELL (Intervenor)
SOLICITORS:	Turks Legal (Appellant) Petrovich Accident Lawyers (Respondent) Crown Solicitor’s Office (Intervenor)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3813/04
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	31 October 2005