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 2007JUDGMENT 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, s318CASES 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 514PARTIES: 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 3813/042 APRIL 2007SPIGELMAN CJ
HODGSON JA
SANTOW JA
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…
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- Case
- [2007] NSWCA 72
- Decision Date
CaseChat Overview and Summary
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
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Evidence Before The Court
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