Whisprun Pty Ltd v Sams

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Whisprun Pty Ltd v Sams & Ors [2002]  NSWCA 394

FILE NUMBER(S):
40226/02
40227/02
40536/02

HEARING DATE(S):    14 November 2002

JUDGMENT DATE:      10/12/2002

PARTIES:
Whisprun Pty Ltd
Scott Sams
Darryl Keith Wetzler
Michael Deverell

JUDGMENT OF:        Beazley JA Heydon JA Sperling J   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     9221/01
9756/01
9714/01

LOWER COURT JUDICIAL OFFICER:   Puckeridge DCJ

COUNSEL:
Mr C R R Hoeben SC for the Claimant
Mr C G Gee QC with Mr R W C Royle for the Respondents

SOLICITORS:
Hicksons for the Claimant
Abbott Pardy & Jenkins Solicitors for the Respondents

CATCHWORDS:
Damages
limitation of actions
whether leave to commence proceedings may be granted nunc pro tunc in relation to proceedings for damages brought pursuant to s151D(2) of the Workers Compensation Act 1987, that is, after the expiration of the limitation period prescribed by the section

LEGISLATION CITED:
Felons (Civil Proceedings) Act 1981, s4
Law Reform (Miscellaneous Provisions) Act 1946, s6
Motor Accidents Act 1988, s52
Workers Compensation Act 1987, s151D

DECISION:
In each case, leave to appeal granted, appeal dismissed.

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40226/02
DC 9221/01
CA 40227/02
DC 9756/01
CA 40536/02
DC 9714/01

Beazley JA
Heydon JA
Sperling J

Tuesday, 10 December 2002

Whisprun Pty Ltd v Sams
Whisprun Pty Ltd v Wetzler
Whisprun Pty Ltd v Deverell

Judgment

1. Beazley JA:  I agree with Sperling J.

2. Heydon JA:    I agree with Sperling J.

3. Sperling J:  The claimant, Whisprun Pty Limited, is the defendant in three proceedings in the District Court in which the opponents Mr S Sams, Mr M Deverell and Mr D Wetzler are the respective plaintiffs.  In the District Court proceedings, the opponents claim damages for personal injury allegedly received in the course of their employment with the claimant.

4. Each of the proceedings was commenced outside the limitation period prescribed by s 151D(2) of the Workers Compensation Act 1987 (hereafter “the WCA”) The subsection provides as follows:

   A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

5. In each case, a motion for leave was filed before the proceedings were commenced but was not heard until after the proceedings had been commenced. In each case, the claimant filed a notice of motion seeking an order striking out the statement of claim on the ground that the limitation period under s 151D(2) had expired before commencement of the proceedings and leave to commence the proceedings out of time had not been granted before commencement of the proceedings. In each case, Puckeridge DCJ granted leave nunc pro tunc and dismissed the claimant’s notice of motion.

6. The claimant now…