Wollongong Fabrications Pty Ltd v Ramsbottom - [2006] NSWCA 279

Reported Decision: 68 NSWLR 387

Court of Appeal

CITATION: Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279

HEARING DATE(S): 28 August 2006

JUDGMENT DATE:
12 October 2006

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Tobias JA at 7

DECISION: (a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by his Honour Judge Phelan on 11 August 2005; (d) Remit the proceedings to the District Court for the hearing of the whole of the opponent’s action; (e) The opponent to pay the claimant’s costs of the proceedings before Judge Phelan on 1 March 2005, 2 March 2005 and 9 June 2005; (f) The opponent to pay the claimant’s costs of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified

CATCHWORDS: WORKERS COMPENSATION – notice of injury – nature of notice required under s 151C(1) of the Workers Compensation Act 1987 – effect of non-compliance with s 151C(1) – whether conduct of case gave rise to Verwayen estoppel – whether question of notice is capable of determination as a separate issue – interaction between the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998

LEGISLATION CITED: District Court Rules 1973
Evidence Act 1995
Workers Compensation Act 1987, s 151C(1)
Workers Compensation (Benefits) Amendment Act 1989
Workers Compensation Legislation Amendment Act 1998
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: Berowra Holdings Pty. Limited v. Gordon [2006] HCA 32, 80 ALJR 1214
Clout Industrial Pty Ltd (in liq) v Baiada Poultry Pty Ltd (2004) 61 NSWLR 111
Commonwealth v Clark (1994) 2 VR 333
Commonwealth v Verwayen (1990) 170 CLR 394
Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427
House v The King (1936) 55 CLR 499
Lampson (Australia) Pty Ltd v Mackay (2004) NSWCA 152
Payne v Parker [1976] 1 NSWLR 191

PARTIES: Wollongong Fabrications Pty Ltd
Peter Ramsbottom

FILE NUMBER(S): CA 40710/05

COUNSEL: A: P W Neil SC / T Wardell
R: M L D Einfeld QC / S Longhurst

SOLICITORS: A: Edwards Michael, Sydney
R: Russell McLelland Brown, Wollongong

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 779/01

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

LOWER COURT DATE OF DECISION: 11/8/05

CA 40710/06
DC 779/01

MASON P
HODGSON JA
TOBIAS JA
Thursday 12 October 2006

WOLLONGONG FABRICATIONS PTY LTD v PETER RAMSBOTTOM

Facts

The opponent instituted proceedings against the claimant, his employer, seeking damages for injuries allegedly occasioned by the claimant’s negligence. The claimant argued that the proceedings were commenced in contravention of s151C(1) of the Workers Compensation Act 1987 (the WC Act), which provides that

A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWCA 279
Decision Date: 12 October 2006

CaseChat Overview and Summary

Wollongong Fabrications Pty Ltd appealed to the Court of Appeal of New South Wales against orders made by Judge Phelan in the District Court. The dispute concerned a claim for workers' compensation brought by Mr Ramsbottom against Wollongong Fabrications. The primary issue on appeal related to the adequacy of the notice of injury provided by Mr Ramsbottom to his employer, as required by section 151C(1) of the *Workers Compensation Act 1987* (NSW).

The Court of Appeal was required to determine whether the notice of injury provided by the claimant was sufficient to comply with the requirements of section 151C(1) of the *Workers Compensation Act 1987*. Further, the court considered whether the conduct of the case by Wollongong Fabrications gave rise to an estoppel, specifically *Verwayen* estoppel, preventing it from relying on the inadequacy of the notice. The court also had to decide if the question of notice could be determined as a separate issue and the interaction between the *Workers Compensation Act 1987* and the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) in this context.

The Court of Appeal allowed the appeal, setting aside the orders made by Judge Phelan. The court reasoned that the notice provided, while perhaps not perfectly detailed, was sufficient to inform the employer of the injury and its potential connection to employment, thereby satisfying the purpose of section 151C(1). The court found that the employer's conduct did not give rise to an estoppel and that the question of notice was not capable of determination as a separate issue in the circumstances. The proceedings were remitted to the District Court for a full hearing of the action.

Orders

Orders of the court

(a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by his Honour Judge Phelan on 11 August 2005; (d) Remit the proceedings to the District Court for the hearing of the whole of the opponent's action; (e) The opponent to pay the claimant's costs of the proceedings before Judge Phelan on 1 March 2005, 2 March 2005 and 9 June 2005; (f) The opponent to pay the claimant's costs of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

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.

CITATION:	Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279
HEARING DATE(S):	28 August 2006
JUDGMENT DATE:	12 October 2006
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Tobias JA at 7
DECISION:	(a) Leave to appeal granted upon condition that the claimant file its Notice of Grounds of Appeal within seven days of the date of these orders; (b) Appeal allowed; (c) Set aside the orders made by his Honour Judge Phelan on 11 August 2005; (d) Remit the proceedings to the District Court for the hearing of the whole of the opponent’s action; (e) The opponent to pay the claimant’s costs of the proceedings before Judge Phelan on 1 March 2005, 2 March 2005 and 9 June 2005; (f) The opponent to pay the claimant’s costs of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified
CATCHWORDS:	WORKERS COMPENSATION – notice of injury – nature of notice required under s 151C(1) of the Workers Compensation Act 1987 – effect of non-compliance with s 151C(1) – whether conduct of case gave rise to Verwayen estoppel – whether question of notice is capable of determination as a separate issue – interaction between the Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998
LEGISLATION CITED:	District Court Rules 1973 Evidence Act 1995 Workers Compensation Act 1987, s 151C(1) Workers Compensation (Benefits) Amendment Act 1989 Workers Compensation Legislation Amendment Act 1998 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Berowra Holdings Pty. Limited v. Gordon [2006] HCA 32, 80 ALJR 1214 Clout Industrial Pty Ltd (in liq) v Baiada Poultry Pty Ltd (2004) 61 NSWLR 111 Commonwealth v Clark (1994) 2 VR 333 Commonwealth v Verwayen (1990) 170 CLR 394 Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427 House v The King (1936) 55 CLR 499 Lampson (Australia) Pty Ltd v Mackay (2004) NSWCA 152 Payne v Parker [1976] 1 NSWLR 191
PARTIES:	Wollongong Fabrications Pty Ltd Peter Ramsbottom
FILE NUMBER(S):	CA 40710/05
COUNSEL:	A: P W Neil SC / T Wardell R: M L D Einfeld QC / S Longhurst
SOLICITORS:	A: Edwards Michael, Sydney R: Russell McLelland Brown, Wollongong
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 779/01
LOWER COURT JUDICIAL OFFICER:	Phelan DCJ
LOWER COURT DATE OF DECISION:	11/8/05