Reported Decision: 74 NSWLR 229
New South Wales
Court of Appeal
CITATION: Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326 HEARING DATE(S): 16/04/08 [then written submissions]
JUDGMENT DATE:
28 November 2008JUDGMENT OF: Beazley JA at 1; Young CJ in Eq at 102; Grove J at 186 DECISION: 1. Leave to appeal granted.
2. Notice of appeal to be filed within seven days.
3. Appeal allowed.
4. Orders of Balla DCJ set aside.
5. In lieu, order that the opponent's claim for work injury damages be dismissed.
6. Order that the opponent pay the claimant's costs of the appeal.
7. Order that the opponent receive a certificate under the Suitors' Fund Act 1951.CATCHWORDS: WORKERS COMPENSATION- Opponent worker claims work injury damages- Opponent did not make a claim for lump sum compensation before or at the same time as required by s 280A WIM Act 1998- Whether primary judge in error in finding that the opponent did not have to comply with s 280A and Ch 7 procedural provisions because he had no entitlement to lump sum compensation- Whether primary judge in error in finding that in any event, the opponent had abandoned any such lump sum claim- Held that in the light of Sch 6 Pt 18C Workers Compensation Act, Ch 7 procedural provisions apply equally to existing claims prior to 2001 amendments- Legislative scheme is focussed on the making of a claim, rather than on one's entitlement or likelihood to succeed- Section 280A acts as gateway to ensure work injury claims cannot succeed unless the plaintiff has suffered permanent impairment in excess of 15%- Statutory obligation to make a claim cannot be avoided by abandonment. LEGISLATION CITED: Interpretation Act 1987, s 35
Statute of Frauds 1677 (Eng) 24 Car II c 3
Workers Compensation Act 1987, ss 2A, 66, 67, 149, 151, 151A, 151B, 151C, 151D, 151DA, 151E, 151F, 151G, 151H, 151L, Sch 6 Pt 18C cl 8
Workers Compensation Legislation Amendment Act 2001
Workplace Injury Management and Workers Compensation Act 1998, ss 3, 4, 7, 41, 43, 44, 45, 47, 250, 251, 259, 260, 261, 262, 263, 280A, 281, 282, 283, 285, 286, 312, 313, 314, 315, 318A, 318D, 320, 321, 322, 323, 325, 326CATEGORY: Principal judgment CASES CITED: Admiralty Commissioners v Valverda; Brown v The Queen; Bonner v Wilkinson (1822) 5 B & Ald 682; (1822) 106 ER 1340
Allianz Australia Insurance Limited v GSF Australia Pty Limited [2003] NSWCA 174; (2003) 57 NSWLR 321
Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439
Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364
CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59
Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427
J C Equipment Hire Pty Ltd v Registrar of Workers Compensation Commission of NSW [2008] NSWCA 43
Kimberly-Clark Australia Pty Ltd v Thompson (2006) 67 NSWLR 187
Parisienne Basket Shoes Pty Ltd v Whyte [1938]…
Keep reading for free
Create a free CaseChat account to read Wattyl Australia Pty Ltd v McArthur and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2008] NSWCA 326
- Decision Date
CaseChat Overview and Summary
Wattyl Australia Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had found that an opponent, Mr. McArthur, was not required to comply with section 280A of the *Workers Compensation Act 1998* (NSW) and the procedural provisions of Chapter 7 of that Act. The dispute concerned Mr. McArthur's claim for work injury damages.
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that Mr. McArthur did not need to comply with section 280A and Chapter 7 because he had no entitlement to lump sum compensation, and whether the primary judge was correct in finding that Mr. McArthur had abandoned any such claim.
The Court of Appeal held that the procedural provisions of Chapter 7 of the *Workers Compensation Act 1998* applied to existing claims prior to the 2001 amendments, by virtue of Schedule 6, Part 18C of the Act. The Court reasoned that the legislative scheme focuses on the *making* of a claim, rather than the claimant's entitlement or likelihood of success. Section 280A was characterised as a gateway requirement, ensuring that work injury claims could not succeed unless the plaintiff had suffered permanent impairment exceeding 15%. Furthermore, the Court determined that a statutory obligation to make a claim could not be avoided by abandonment.
Consequently, leave to appeal was granted, the notice of appeal was to be filed within seven days, and the appeal was allowed. The orders of the primary judge were set aside, and in lieu, an order was made dismissing Mr. McArthur's claim for work injury damages. Mr. McArthur was ordered to pay Wattyl Australia Pty Ltd's costs of the appeal and was to receive a certificate under the *Suitors' Fund Act 1951* (NSW).
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that Mr. McArthur did not need to comply with section 280A and Chapter 7 because he had no entitlement to lump sum compensation, and whether the primary judge was correct in finding that Mr. McArthur had abandoned any such claim.
The Court of Appeal held that the procedural provisions of Chapter 7 of the *Workers Compensation Act 1998* applied to existing claims prior to the 2001 amendments, by virtue of Schedule 6, Part 18C of the Act. The Court reasoned that the legislative scheme focuses on the *making* of a claim, rather than the claimant's entitlement or likelihood of success. Section 280A was characterised as a gateway requirement, ensuring that work injury claims could not succeed unless the plaintiff had suffered permanent impairment exceeding 15%. Furthermore, the Court determined that a statutory obligation to make a claim could not be avoided by abandonment.
Consequently, leave to appeal was granted, the notice of appeal was to be filed within seven days, and the appeal was allowed. The orders of the primary judge were set aside, and in lieu, an order was made dismissing Mr. McArthur's claim for work injury damages. Mr. McArthur was ordered to pay Wattyl Australia Pty Ltd's costs of the appeal and was to receive a certificate under the *Suitors' Fund Act 1951* (NSW).
Orders
Orders of the court
1. Leave to appeal granted. 2. Notice of appeal to be filed within seven days. 3. Appeal allowed. 4. Orders of Balla DCJ set aside. 5. In lieu, order that the opponent's claim for work injury damages be dismissed. 6. Order that the opponent pay the claimant's costs of the appeal. 7. Order that the opponent receive a certificate under the Suitors' Fund Act 1951.
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.