Waters v Commonwealth of Australia

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Waters v Commonwealth of Australia [2013] NSWCA 5

Hearing dates:

31 January 2013

Decision date:

06 February 2013

Before:

McColl JA at [1];
Basten JA at [2]

Decision:

(1) Dismiss the application for leave to appeal from the judgment and orders in the Common Law Division.

(2) Order the applicant to pay the respondent's costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - application for leave to appeal - whether errors in judgment below material - where wrong provision applied, need to consider prospects of different outcome under correct provision

TORT - claim for damages for injury arising in course of employment - whether claim extinguished by statute

Legislation Cited:

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 24, 25, 27, 44, 45
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

Austral Pacific Group Ltd (In liq) v Air Services Australia [2000] HCA 39; 203 CLR 136
Telstra Corporation Ltd v Flynn [2002] NSWCA 315; 55 NSWLR 303

Category:

Principal judgment

Parties:

Natalie Elizabeth Waters (Applicant)
Commonwealth of Australia (Respondent)

Representation:

Counsel:

P E King (Applicant)
T M Glover (Respondent)
Solicitors:

Gells Lawyers (Applicant)
DLA Piper (Respondent)

File Number(s):

CA 2012/ 223452

 Decision under appeal 

Jurisdiction:

9111

Citation:

Waters v Commonwealth of Australia [2012] NSWSC 790

Date of Decision:

2012-07-13 00:00:00

Before:

Barr AJ

File Number(s):

SC 2010/367053

Judgment

1. McCOLL JA: I agree with Basten JA.

1. BASTEN JA: In 2010 the applicant commenced proceedings against the Commonwealth seeking damages for psychological or psychiatric conditions which arose in the course of her employment. The Commonwealth contended that she was bringing an action for damages for an injury sustained by her in the course of her employment for the purposes of s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Compensation Act"). That section extinguishes any such cause of action contingently upon the operation of s 45: Austral Pacific Group Ltd (In liq) v Air Services Australia [2000] HCA 39; 203 CLR 136 at [21]-[22] (Gleeson CJ, Gummow and Hayne JJ) and [67] (McHugh J) and [80] (Callinan J).

1. Section 45 permits the bar to be lifted where the claimant elects to bring an action for damages, rather than receive statutory compensation. However, a precondition to the application of s 45 is that compensation "is payable" in respect of the injury under one of ss 24, 25 or 27. Each of those sections is contingent upon the employee suffering a "permanent impairment as a result of"…