Wattyl Australia Pty Ltd v McArthur

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).