Trpenoski v BHP Flat Products

CITATION:	Sotir Trpenoski v BHP Flat Products [2003] NSWCA 176
HEARING DATE(S):	1 July 2003
JUDGMENT DATE:	1 July 2003
JUDGMENT OF:	Sheller JA at 1; Santow JA at 2; Tobias JA at 3
DECISION:	Appeal refused; Summons for leave dismissed with costs.
CATCHWORDS:	Application for leave to appeal and appeal - Workers Compensation Act 1987 - Proceedings for damages for injury sustained in course of employment - No Statement of Claim filed when Notice of Motion filed - Whether Notice of Motion for leave to commence proceedings sufficient - ND
LEGISLATION CITED:	Workers Compensation Act 1987, s151D(2) Workers Compensation Legislation Further Amendment Act 2001 District Court Act 1973, s44(1)(e) District Court Rules, Pt 1 r4(1), Pt 5 r4, s53, div 2 pt 5 Trade Marks Act 1905
CASES CITED:	Whisprun v Sams & Ors (2002) NSWCA 394 Cheney v Spurner (1928) Forrest v Kelly (1991) Keystone Knitting Mills Trademark (1929) Jol v State of New South Wales (1998) Dandashli v Dandashli (unreported)
PARTIES :	Sotir Trpensoki BHP Flat Products
FILE NUMBER(S):	CA 41123/03
COUNSEL:	Cl - Mr Porthouse O - Mr J D Hislop QC / Mr N E Chen
SOLICITORS:	Cl - Lough Wells Duncan - Wollongong O - Sparke Helmore

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	814/01
LOWER COURT JUDICIAL OFFICER :	Phelan J

CA 41123/03

SHELLER JA
SANTOW JA
TOBIAS JA

1 July 2003

SOTIR TRPENOSKI v BHP FLAT PRODUCTS

Judgment

1 SHELLER JA: I agree with Tobias JA.

2 SANTOW JA: I agree with Tobias JA.

3 TOBIAS JA: This is an application for leave to appeal against the decision of his Honour Judge Phelan of the District Court given on 5 August 2002 refusing the claimant leave pursuant to s 151D of the Workers Compensation Act 1987 (the 1987 Act) to commence proceedings in that Court for damages in respect of an injury sustained by the claimant whilst in the employ of the opponent. The appeal has been heard concurrently with the leave application.

4 The claimant is a 56 year old male who commenced employment with the opponent on or about 21 January 1970 and ceased that employment on 25 February 2000. He alleges that he suffered an injury to his back on 14 April 1998 when he was required to lift a 210 litre capacity drum of oil onto a pallet. In order to achieve this objective he had to place the drum on the pallet by lifting one end of it and manoeuvring it so that it stood upright on the pallet. In the course of so doing he felt pain the back of his neck and his lower lumbar region which, according to the medical evidence before the primary judge, significantly aggravated existing and ongoing degenerative and congenital changes in his lumbar spine. He continued working but ultimately the pain was so severe that, on 25 February 2000, he ceased his employment.

5 As he wished to claim common law damages against the opponent, he…