Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66 Hearing dates: 19 February 2013 Decision date: 05 April 2013 Before: Macfarlan JA at [1]
Barrett JA at [29]
Preston CJ of LEC at [30]Decision: (1) Appeal allowed.
(2) Set aside the orders made by Delaney DCJ dismissing the respondent's Notice of Motion and ordering that the costs of the Motion be costs in the cause.
(3) Order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the respondent's Statement of Claim filed in the District Court be struck out.
(4) Order the respondent to pay the applicant's costs in the District Court and on appeal.
(5) Grant the respondent a certificate under the Suitors' Fund Act 1951, if he is qualified.
[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: PRIVATE INTERNATIONAL LAW - entitlement to damages for work-related injury - injury suffered out of jurisdiction - choice of law - Victorian law the lex loci delicti - s 134AB Accident Compensation Act 1985 (Vic) - damages only recoverable where a serious injury within the meaning of that section - whether statutory provisions stipulating the steps to be taken to determine whether injury a serious injury applied to proceedings in New South Wales District Court - whether provisions substantive or procedural
WORKERS' COMPENSATION - entitlement to damages for work-related injury - injury suffered out of jurisdiction - choice of law - Victorian law the lex loci delicti - s 134AB Accident Compensation Act 1985 (Vic) - damages only recoverable where a serious injury within the meaning of that section - whether statutory provisions stipulating the steps to be taken to determine whether injury a serious injury applied to proceedings in New South Wales District Court - whether provisions substantive or proceduralLegislation Cited: Accident Compensation Act 1985 (Vic)
Compensation to Relatives Act 1897
Motor Accidents Compensation Act 1999
Personal Injuries Proceedings Act 2002 (Qld)
Suitors' Fund Act 1951
Transport Accident Act 1986 (Vic)
Uniform Civil Procedure Rules 2005Cases Cited: Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; 14 VR 622
Dwyer v Calco Timbers Pty Limited [2008] HCA 13; 234 CLR 124
Fuller v K & J Trucks Coffs Harbour Pty Ltd [2006] NSWCA 88; 67 NSWLR 516
Hamilton v Merck and Co Inc [2006] NSWCA 55; 66 NSWLR 48
James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Martin v Bailey [2009] VSCA 263
Maurice Blackburn Cashman v Brown [2011] HCA…
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- AGLC
- Wickham Freight Lines Pty Ltd v Ferguson [2013] NSWCA 66
- Case
- [2013] NSWCA 66
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the provisions of section 134AB of the Accident Compensation Act 1985 (Vic), which stipulate the steps for determining whether an injury constitutes a "serious injury" for the purpose of recovering damages, were applicable to proceedings heard in New South Wales. This involved considering whether these provisions were substantive, thus governing the right to sue, or procedural, relating to the conduct of the litigation. The court also had to consider the choice of law principles applicable to tortious claims arising out of jurisdiction.
The Court of Appeal reasoned that Victorian law was the *lex loci delicti*, meaning it governed the substantive rights and obligations of the parties. Section 134AB of the Accident Compensation Act 1985 (Vic) was found to be a substantive provision that defined the threshold for entitlement to damages, rather than a procedural rule. Consequently, the requirements of this section, including the necessity of establishing a "serious injury," applied to the respondent's claim, irrespective of where the proceedings were brought.
The appeal was allowed, and the orders of the District Court dismissing the respondent's Notice of Motion and making costs a cost in the cause were set aside. The Court of Appeal ordered that the respondent's Statement of Claim be struck out and that the respondent pay the applicant's costs in both the District Court and on appeal. A certificate under the Suitors' Fund Act 1951 was granted to the respondent, if qualified.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the orders made by Delaney DCJ dismissing the respondent's Notice of Motion and ordering that the costs of the Motion be costs in the cause.
(3) Order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the respondent's Statement of Claim filed in the District Court be struck out.
(4) Order the respondent to pay the applicant's costs in the District Court and on appeal.
(5) Grant the respondent a certificate under the Suitors' Fund Act 1951, if he is qualified.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: PRESTON CJ
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