Telstra Corporation Ltd v Flynn

Reported Decision: (2002) 55 NSWLR 303

New South Wales

Court of Appeal

CITATION:	Telstra Corporation Ltd v Flynn [2002] NSWCA 315
FILE NUMBER(S):	CA 40868/01
HEARING DATE(S):	7 August 2002
JUDGMENT DATE:	26 September 2002
PARTIES :	Telstra Corporation Limited (Appellant) Troy Michael Flynn (Respondent)
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 47; Santow JA at 52

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9456/00
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	A: A Robertson SC/B Kelly R: C Stevens QC/B O'Sullivan
SOLICITORS:	A: Henry Davis York R: Brydens Law Office
CATCHWORDS:	whether strike out statement of claim - injury sustained during course of employment - workers compensation - whether entitled to bring claim for common law damages - administrative decision - whether legislative pre-conditions satisfied - construction of legislation
LEGISLATION CITED:	Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 11, 14, 19, 24, 25, 26, 27, 28, 44, 45, 64 Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 29, 42, 42A, 43
CASES CITED:	Janssen v The Commonwealth [1994] 2 Qd R 596 Walsh v The Commonwealth (1988) 155 ALR 182 Minister for Immigration and Ethnic Affairs v Daniels (1981) 61 FCR 354 Commonwealth v Sciacca (1988) 17 FCR 476 Midland Metals Overseas v Customs (1991) 30 FCR 87 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 483
DECISION:	Appeal allowed

CA 40868/01
DC 9456/00

BEAZLEY JA
HODGSON JA
SANTOW JA

26 SEPTEMBER 2002

TELSTRA CORPORATION LIMITED v TROY MICHAEL FLYNN

FACTS

The respondent claimed common law damages under s 45 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act) for injuries he sustained during the course of his employment with the appellant. The appellant had previously rejected the respondent’s application for lump sum compensation under s 24 of the SRC Act. Section 45 of the SRC Act allows an employee to elect to bring an action for common law damages against the appellant where compensation is payable under s 24 of the SRC Act.

The appellant submitted that the respondent’s statement of claim should be struck out, as he was not entitled to bring an action under s 45 because a determination had been made under s 24. Sidis DCJ refused to strike out the respondent’s statement of claim.

HELD per Beazley JA (Hodgson JA and Santow JA agreeing)

(i) As there was a determination under s 24 the respondent had lost his right to make an election to claim common law damages under s 45: Walsh v The Commonwealth (1998) 155 ALR 182, per Sheppard AJA, Janssen v The Commonwealth [1994] 2 Qd R 596 considered.

(ii) The trial judge was incorrect in holding that there needs to be ‘at least a final tribunal decision before a court is prevented from making a determination as to whether an employee is entitled to damages under s 45’.

Held per Hodgson JA

(i) As the appellant determined the amount of compensation under s 24 to…