Our Experience | Edwards Michael Lawyers

Evidence of our extensive experience is demonstrated by reference to the following reported cases in a range of jurisdictions, in which the firm has been involved.

Federal Courts/Tribunals

High Court of Australia

Crown Glass Aluminium Pty Ltd v Ibrahim [2005] HCATrans 854 (7 October 2005)

(From High Court of Australia Transcripts; 7 October 2005; 9 KB)

Federal Court of Australia

Re: TILLMAN'S BUTCHERY PTY LIMITED (IN LIQUIDATION) And: ROBERT EDWIN HUNTINGFORD No. ACT G60 of 1990 FED No. 751 Practice

(From Federal Court of Australia; 24 December 1990; 24 KB)

Practice - Federal Court Rules - Application seeking extension of time for filing notice of appeal from Supreme Court of the Australian Capital Territory - Failure to file and serve notice within prescribed time - Test to be applied - Failure by applicant to comply with requirements of Federal Court Rules - Delay in informing respondent of intention to seek extension of time - Prejudice to respondent - Extension granted for appeal limited to quantum of damages.

Federal Court Rules, Order 52 sub-rules 15(2) and 15(6)

SMK PTY LTD (formerly CANBERRA ROOF TRUSSES PTY LIMITED) v. MILAN KRAMER No. ACTG42 of 1994 FED No. 831/94 Appeal - Negligence - Damages

(From Federal Court of Australia; 3 November 1994; 23 KB)

Catchwords:

Appeal against judgment for damages for personal injuries sustained by a worker against his employer - whether evidence established negligence on the grounds of failure to warn and instruct the worker - no duty to warn or instruct - no causal connection between failure to warn or instruct and the injuries sustained

Negligence - duty to maintain safe system of work - failure to warn or instruct re unusual or unexpected risks

Damages - sufficiency of evidence to support finding of negligent injury

Cases Cited:

Raimondo v State of South Australia (1979) 23 ALR 513
Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743
McLean's Roylen Cruises Pty Limited v McEwan (1984) 54 ALR 3
Duyvelshaff v Cathcart and Ritchie Ltd (1973) 1 ALR 125
Perkovic v McDonell Industries Pty Ltd (1987) 45 SASR 544

NSW Courts/Tribunals

Supreme Court-Court of Appeal

AMC Caterers Pty Limited amp [2005] NSWCA 480; 1 Or v Stavropoulos [2005] NSWCA 79(15March2005)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 15 March 2005; 8 KB)

Catchwords:

COSTS - Special circumstances when costs do not follow the event - Smallness of the judgment sum, particularly where it does not repersent money to be received by a plaintiff, is capable of constituting special circumstances - Berrico Estate Pty Ltd v Andersen [2003] NSWCA 23 applied.

Beecham (Australia) Pty Ltd v Alex Periera [2001] NSWCA 278 (27 August 2001)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 27 August 2001; 22 KB)

Catchwords:

Estoppel - former adjudication - judgment inter partes - issue estoppel - identity of issues - findings of Compensation Court as to incapacity

Legislation Cited:

Workers Compensation Act 1926
Suitors' Fund Act 1951

Bott v Suttons Motors Australia Pty Ltd Trading as Suttons City Holden [2006] NSWCA 307 (7 December 2006)

(From Supreme Court of New South Wales - Court of Appeal; 7 December 2006; 27 KB)

Catchwords:

Practice and Procedure: - motion to strike out appeal - failure adequately to identify grounds of appeal - contravention of Pt 51 r 11 of the Supreme Court Rules 1970. ND

Decision:

(1) Mr Bott's applications for leave to lead new evidence and to file further submissions dismissed with costs. (2) Leave refused to Mr Bott to file the fourth amended notice of appeal. (3) Suttons' application to strike out the third amended notice of appeal is upheld. Mr Bott to pay Suttons' costs.

Crown Glass Aluminium P/L v Ibrahim [2005] NSWCA 195 (30 June 2005)

(From Supreme Court of New South Wales - Court of Appeal; 30 June 2005; 97 KB)

Catchwords:

WORKERS COMPENSATION - Employee assaulted outside his home - Whether injury occurred in the course of employment - Whether at the time of assault employee carrying sum of money for purpose of paying wages

EVIDENCE - Appeals - Question of law - Circumstances in which finding of fact can reveal error of law - Conflicting evidence concerning source of the sum of money - Employee's primary evidence regarding source of money altered as a result of cross-examination - Whether evidence as accepted by primary judge could properly base his finding of fact that employee had money on him when assaulted - Whether primary judge's conclusion of fact involved a form of rationalisation in order to enable a finding in employee's favour which was otherwise unsupported by evidence

Decision:

Appeal allowed in part
Orders 1(1) and 1(2) made by Walker DCJ on 3 June 2004 be set aside
Order 1(3) made by Walker DCJ on 3 June 2004 be varied by deleting therefrom the date "1 October 2000" and substituting in lieu thereof the date "30 November 2001"
Otherwise appeal dismissed
The appellant to pay the respondent's costs of the appeal.

Darke v El Debal; El Debal v Network Welding Pty Ltd (in liq);El Debal v Kari Ghossayn Pty Ltd [2006] NSWCA 86 (21 April 2006)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 21 April 2006; 92 KB)

Catchwords:

APPEAL AND NEW TRIAL – Improper admission or rejection of evidence – Failure to consider all relevant evidence – Decided points not put by counsel – Failure to address all pleaded causes of action – Failure to give reasons.

NEGLIGENCE – Employer’s duty of care – Duty to provide safe system of work – Where employer typically hires out the services of its employees – Employer to acquaint itself with the system of work in the place to which its sends its employees.

NEGLIGENCE – Construction safety – Requirement that any person who directly or by their servants or agents carries out construction work owes a duty of care – May be more than one person owing duty – Head contractor and subcontractor jointly liable – Construction Safety Regulations 1950, regs 73 and 80.

NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Recoverable only where degree of permanent impairment actually greater than ten per cent – Whether recoverable if degree of permanent impairment potentially greater than 10 per cent – Medical assessor’s certificate under motor accidents compensation legislation – Provides conclusive evidence as to whether degree of permanent impairment greater than 10 per cent – Whether evidence as to potential degree of permanent impairment certifiable – Motor Accidents Compensation Act 1999, s 61(2)(a).

NEGLIGENCE – Motor vehicle accidents – Damages – Non-economic loss – Medical assessor’s certificate under motor accidents compensation legislation – Provides conclusive evidence as to matters certified regarding degree of permanent impairment – Rejection where certificate not made in circumstances affording procedural fairness to a party – Where certifying doctor fails to consider plaintiff’s description of injuries – Procedural fairness concerned with process not outcomes – No basis for rejecting certificate established – Motor Accidents Compensation Act 1999, s 61(4).(D)

Legislation cited:

Construction Safety Regulations regs 73 and 80
Law Reform (Miscellaneous Provisions) Act 1946
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987, s151N

Decision:

New trial as to some issues.

Estate of the Late M T Mutton by its Executors R W Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340 (7 December 2007)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 7 December 2007; 191 KB)

Catchwords:

TORTS - negligence - duty of care - breach - accident which occurred at a place of work under the control of a third party (the appellants) - absence of control by respondent employer over working environment - whether, in the light of this, the respondent failed to take reasonable steps to avoid exposing its employees to unnecessary risks of injury and to provide them with a safe system of work

TORTS - breach of statutory duty - duties of employers to employees - duty to eliminate or, if not reasonably practicable, control risks to employees - risk control measures relating to working space - whether the respondent failed to ensure the provision of sufficient working space to allow persons to work safely - Occupational Health and Safety Act 2000 (NSW), ss 8, 10, 12 and Occupational Health and Safety Regulation 2001 (NSW), cll 11, 45(a) discussed - relationship between cl 11 (elimination or control of risks) and risk control measures set out in Pt 4.3 of the Occupational Health and Safety Regulation

TORTS - breach of statutory duty - duties of employers to employees - duties relating to use of plant - Occupational Health and Safety Regulation, cl 136(3)(d) - duty to control the risk of entanglement in plant with moving parts in situations where it is not possible for the employer to eliminate the risk - whether provision triggered - question of fact in this case as to whether it was possible for the respondent to eliminate the risk

TORTS - breach of statutory duty - defences - statutory defences - Occupational Health and Safety Act, s 28 - statutory defence available in respect of criminal prosecutions for breach of cl 11 of the Occupational Health and Safety Regulation by failing to comply with cl 45(a) - unresolved question as to whether s 28 also amounts to a restriction of any civil liability that may be imposed on an employer by s 32 for breach of a statutory duty

COSTS - apportionment - extension of right to contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act to costs - question as to whether the respondent should contribute to the costs required to be paid to the injured plaintiff by the appellants in the light of the fact that the respondent would not have been ordered to pay the injured plaintiff's costs had the injured plaintiff sued the respondent - James Hardie and Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679 distinguished on the facts - consideration of general rule as to costs in work injury proceedings - Workers Compensation Regulation 2003 (NSW), cl 91 - exceptions to general rule under cll 89, 90(1) and (2)
WORKERS' COMPENSATION - contribution - Workers Compensation Act 1987 (NSW), s 151Z(2)(d) - whether the assessment of damages by which the amount of contribution under s 151Z(2)(d) is to be calculated must be proportionate to the relevant heads of damage making up the damages which the party seeking a contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act is liable to pay the injured plaintiff.

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B(1)(f)
Factories, Shops and Industries Act 1962 (NSW), ss 27(1)(d), (5)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Motor Accidents Act 1988 (NSW)
Occupational Health and Safety Act 2000 (NSW), ss 8(1), (2), 10, 12, 28, 32, 108(1), (6)
Occupational Health and Safety Regulation 2001 (NSW), cll 5, 6, 9, 11, 45(a), 90, 135, 136(3)(d), 353, Sch 2
Workers Compensation Act 1987 (NSW), ss 151G, 151Z(1)(d), (2)(c), (d)
Workers Compensation Regulation 2003 (NSW), cll 89, 90(1),(2), 91
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; (2004) 217 CLR 424
Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338
Bourke v Victorian Workcover Authority [1998] VSCA 24; [1999] 1 VR 189
Clout Industrial Pty Limited (in liq) v Baiada Poultry Pty Limited [2004] NSWCA 89; (2004) 61 NSWLR 111
Council of the Municipality of Waverley v Lodge [2001] NSWCA 439
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Ferraloro v Preston Timber Pty Limited (1982) 56 ALJR 872
Forstaff Blacktown Pty Limited v Brimac Pty Limited (2005) 4 DDCR 179
Grljak v Trivan Pty Limited (1994) 35 NSWLR 82
Harrison v Lau Nay Nominees Pty Limited [2004] NSWCA 18
James Hardie and Company Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679
Kelman v Mutton; Howard Haulage Pty Limited v Mutton [2007] NSWSC 13
King v The Queen [2003] HCA 42; (2003) 215 CLR 150
Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 75 ALJR 867
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Nicol v Allyacht Spars Pty Limited [1987] HCA 68; (1987) 163 CLR 611
Roads & Traffic Authority of New South Wales v Dederer (2007) 81 ALJR 1773
Roads and Traffic Authority v Ryan; Blue Mountains City Council v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609
Rolls Royce Industrial Power (Pacific Limited) v James Hardie and Company Pty Limited [2001] NSWCA 461; (2001) 53 NSWLR 626
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88
Smith v Austin Lifts Limited [1959] 1 WLR 100
Sovar v Henry Lane Pty Limited [1967] HCA 31; (1967) 116 CLR 397
Taylor v Sims & Sims (1942) 167 LT 414; [1942] 2 All ER 375
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204
Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Decision:

Appeal dismissed with costs.

Falconer v Laird [2003] NSWCA 114 (15 May 2003) [20%]

(From Supreme Court of New South Wales - Court of Appeal Decisions; 15 May 2003; 58 KB)

Catchwords:

Actions for personal injuries brought in District Court - one defendant not properly named - statements of claim found not to have been served on defendants - actions not prosecuted in timely manner - no praecipes for trial filed - deemed dismissals under Pt 12 r 4C of the District Court Rules - applications to rectify position as to parties and service and rescind dismissals - whether statements of claim had been served - whether validity of statements of claim for service should be extended - whether dismissals should be rescinded - test of whether fair and just - overwhelming prejudice to defendants in defending plaintiff's claims - applications should be dismissed.

Decision:

In Court of Appeal proceedings 40309/02: (1) Grant leave to appeal; (2) Subject to filing the notice of apepal within 14 days, appeal allowed; (3) Set aside the orders made by Delaney DCJ on 25 March 2002 extending the time for applying to rescind the deemed dismissal and rescinding the deemed dismissal and in lieu thereof order that the notice of motion filed on 15 February 2002 be dismissed with costs so far as it claimed those orders; (4) Opponent/respondent pay the costs of the claimant/appellant and have a certificate under the Suitors Fund Act if otherwise qualified. In each of Court of Appeal proceedings 40979/02 and 40980/02 the summons is dismissed with costs.

J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43 (31 March 2008)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 31 March 2008; 72 KB)

Catchwords:

Workers compensation - Lump sum compensation - Work injury damages - Whole person impairment - Permanent impairment - Whether acceptance of degree of whole person impairment for purposes of s 66 claim constituted acceptance for purposes of work injury damages claim- Legislative history of claims by injured workers in NSW - Dichotomy between statutory compensation and work injury or common law damages - Estoppel by conduct - Whether party estopped from denying degree of whole person impairment in respect of one claim when it agreed in respect of another.

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)
Suitor's Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Commission Rules 2003 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Berowra Holdings Pty Ltd v Gordon (2006) HCA 32; (2006) 225 CLR 364
Brown v Lewis (2006) 65 NSWLR 587; [2006] NSWCA 87
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Grundt v The Great Boulder Proprietary Gold Mines Limited (1937) 59 CLR 641
J C Equipment Hire Pty Limited v Registrar of the Workers Compensation Commission of New South Wales & Anor [2007] NSWSC 342

Decision:

Appeal allowed;
Set aside the orders made by Associate Justice Malpass on 20 April 2007;
Remove Matter No. 8070-06 from the Workers Compensation Commission of New South Wales to this Court;
The determination of the Delegate of the Registrar of the Commission that the pre-filing statement served by the respondent on the appellant on 10 August 2006 was not defective be quashed;
Remit the question of whether the said pre-filing statement was defective to the Registrar of the Commission for re-determination in accordance with the reasons of this Court;
The respondent to pay the costs of the appellant of the summons filed on 26 September 2006 and of the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

Josef Sons Contracting Pty Limited v Sidney Mabbett bhnf Noelene Apiata Anor [2007] NSWCA 237 (31 August 2007)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 31 August 2007; 8 KB

Laird v Raciti; Laird v Lemming; Falconer v Laird [2003] NSWCA 101 (11 April 2003)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 11 April 2003; 8 KB)

Catchwords:

PRACTICE - COURT OF APPEAL - DEATH OF PARTY - AMENDMENT OF RECORD - NO QUESTION OF PRINCIPLE

Legislation Cited:

Motor Vehicles Third Party Insurance Act 1942

New South Wales v Garry Donald Jeffery Ors [2000] NSWCA 171 (1 September 2000)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 1 September 2000; 49 KB)

Catchwords:

Liability for psychiatric injury - Negligence - Assessment of damages.

Legislation Cited:

Crown Proceedings Act 1988

Decision:

1. The appeal be dismissed with costs
2. The cross-appeal be dismissed with no order as to costs.

Nominal Defendant v Hi-Light Industries Pty Limited; The Nominal Defendant v New South Wales [2004] NSWCA 423 (26 November 2004)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 26 November 2004; 55 KB)

Catchwords:

WORKERS' COMPENSATION - Statutory interpretation - Recovery actions under s 151Z(1)(d) of the Workers' Compensation Act 1987 (NSW) - Whether a recovery action may be brought against the Nominal Defendant - Whether the Motor Accidents Compensation Act 1999 (NSW) denies the availability of such recovery actions - Applicability of Nominal Defendant v Australian Associated Press [1982] 1 NSWLR 127 - Whether s 37 of the Motor Accidents Compensation Act 1999 (NSW) is a code for the recovery of damages from the Nominal Defendant - Liability of the Nominal Defendant under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Availability of the Motor Accidents Authority Fund to pay liabilities of the Nominal Defendant arising from a recovery action - Effect of policy considerations. D

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) ss 31, 32, 33, 33, 34, 35, 36, 37, 39(1), 40, 41(4), 198, 206(1) 212, 213, 214, cl 10 Schedule 5
Motor Accidents Act 1988 (NSW), cl 5.6 Schedule 5
Workers Compensation Act 1987 (NSW), s 151Z(1)(d)
Workers Compensation Act 1926 (NSW), s 64(1)
Motor Vehicles (Third Party Insurance) Act 1942 (NSW), ss 29, 30, 31(1), 32(1)
Insurance Protection Tax Act 2001 (NSW), ss 16B, 16G
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)

Decision:

(1) In CA40124/04: Appeal dismissed with costs. (2) In CA 40376/04: Appeal dismissed with costs.

RIVERINA WINES PTY LTD v REGISTRAR OF THE WORKERS COMPENSATION COMMISSION OF NSW ORS [2007] NSWCA 149 (25 June 2007)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 25 June 2007; 119 KB)

Catchwords:

WORKERS' COMPENSATION - Medical Assessment Certificate (MAC) - where statute allows appeal against Medical Assessment Certificate on limited grounds - where grounds of appeal were deterioration of the worker's condition that resulted in an increase in the degree of permanent impairment and availability of additional relevant information - where appeal not to proceed unless it appears to the Registrar of the Workers Compensation Commission that at least one of the grounds for appeal exists - criterion for appeal proceeding is not the objective existence of any of the grounds of appeal but the opinion of the Registrar concerning whether one of those grounds exists - what counts as a ground of appeal 'existing' - whether Registrar required to decide if ground of appeal is made out on balance of probabilities before appeal can proceed - where statute confers on Registrar the power to refer a matter for further medical assessment as an alternative to an appeal before an Appeal Panel - whether pre-conditions for appeal must exist before Registrar can refer a matter for further medical assessment - Workplace Injury Management and Workers Compensation Act 1998 - Workers Compensation Act 1987

ADMINISTRATIVE LAW - particular tribunals of bodies - Workers Compensation Commission - Medical Assessment Certificate (MAC) - where statute allows appeal against Medical Assessment Certificate on limited grounds - where appeal not to proceed unless it appears to the Registrar of the Workers Compensation Commission that at least one of the grounds for appeal exists - criterion for appeal proceeding is not the objective existence of any of the grounds of appeal but the opinion of the Registrar concerning whether one of those grounds exists - where Registrar allowed appeal to proceed - whether 'no evidence' to support Registrar's decision - whether Registrar bound to provide reasons for decision - whether Registrar's decision of a judicial character - whether Registrar engaged in determining the legal rights and duties of parties - where Registrar not making any inquiry concerning facts - where Registrar's decision did not finally decide any legal rights and duties - whether special circumstances required Registrar to provide reasons for decision

WORKERS' COMPENSATION - transitional arrangements on introduction of new system for the calculation of compensation for non-economic loss - conclusiveness of Medical Assessment Certificate - Workers Compensation Act 1987 - Workplace Injury Management and Workers Compensation Act 1998

COURTS AND JUDGES - appeals - whether trial judge failed to accord natural justice - whether opportunity to put additional submissions to appellate court cures breach of natural justice

COURTS AND JUDGES - appeals - whether trial judge failed to provide adequate reasons

STATUTES - Acts of parliament - construction - construction by reference to objectives of statute - illegitimacy of construing statute by reference to practice directions - Workplace Injury Management and Workers Compensation Act 1998, s 327

Legislation Cited:

Judiciary Act 1903 (Cth)
Public Sector Management Act 1988
Workers Compensation Act 1987
Workers Compensation Regulation 2003
Workers' Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Attorney General of NSW & Anor v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Campbelltown City Council v Vegan [2004] NSWSC 1129
Campbelltown City Council v Vegan [2006] NSWCA 284
FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342
Inghams Enterprise v Iogha & Ors [2006] NSWSC 456
Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor; Carey v Blasdom Pty Ltd T/As Ascot Freightlines & Anor (2003) 57 NSWLR 282; [2003] NSWCA 146
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board v Osmond [1986] HCA 7; (1985) 159 CLR 656
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361
Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260
Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

Decision:

[By majority]

Appeal dismissed.
(2) Appellant to pay costs of the first and second respondent of the appeal.

Scalise v Bezzina Ors [2003] NSWCA 362 (12 December 2003)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 12 December 2003; 72 KB)

Catchwords:

Negligence - personal injuries - alternative statutory counts under Construction Safety Regulations - plaintiff fell from upper floor of building site - plaintiff's case that there was no fence rejected - plaintiff's case that any fence was defective not considered - rule in Browne v Dunn - sufficient if fair notice of alternative case raised by plaintiff in pleadings, opening and evidence in chief - not necessary for plaintiff to cross-examine all of defendants' witnesses on the point - new trial ordered on all issues (ND)

Legislation Cited:

Occupational Health and Safety Act 1983
Construction Safety Regulations regs 73 and 75

Decision:

Appeal upheld. See para 105 for further orders.

Southern Health Service Ors v Smith [2000] NSWCA 369 (18 October 2000)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 18 October 2000; 42 KB)

Catchwords:

TORT - Negligence - Damages - Appeal - Failure to allow for vicissitudes - Whether balanced by other errors - Whether new trial should be ordered.

SURESH v JACON INDUSTRIES PTY LTD [2007] NSWCA 317 (30 October 2007)
(From Supreme Court of New South Wales - Court of Appeal Decisions; 30 October 2007; 18 KB

Catchwords:

APPEAL - damages - challenge to assessment

Legislation Cited:

District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), s 75A

Cases Cited:

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Suresh v Jacon Industries Pty Ltd [2005] NSWCA 202
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Decision:

Appeal dismissed with costs.

Walfertan Processors Pty Ltd v Dever [2006] NSWCA 289 (1 November 2006)

(From Supreme Court of New South Wales - Court of Appeal; 1 November 2006; 35 KB)

Catchwords:

Worker injured - insufficient permanent impairment for modified common law damages - claimed damages under Motor Accidents Compensation Act on basis of "injury" within definition in that Act - pin in coupling between trailer and towing vehicle removed - trailer drawbar became separated from towing vehicle and fell on worker's foot - trailer had mounting for jockey wheel but no jockey wheel - whether absence of jockey wheel a defect in the trailer - whether injury caused by absence of jockey wheel.

Legislation Cited:

Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Motor Vehicles (Third Party Insurance) Act 1942
Workers Compensation Act 1987

Decision:

Appeal dismissed with costs.

Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279 (12 October 2006)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 12 October 2006; 100 KB

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

Decision:

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
Appeal allowed
Set aside the orders made by his Honour Judge Phelan on 11 August 2005
Remit the proceedings to the District Court for the hearing of the whole of the opponent's action
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
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

Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 (21 July 2004)

(From Supreme Court of New South Wales - Court of Appeal Decisions; 21 July 2004; 27 KB)

Catchwords:

Assessment of damages - adequacy of reasons - no question of principle. ND

Decision:

Appeal upheld, verdict and judgment and order for costs made below be set aside, matter remitted to the District Court for a new trial as to the assessment of damages. Defendant to have a certificate under the Suitors Fund Act if otherwise qualified.

Supreme Court

Altos v Registrar of the Workers Compensation Commission of NSW [2008] NSWSC 148 (29 February 2008)

(From Supreme Court of New South Wales Decisions; 29 February 2008; 16 KB)

Catchwords:

Administrative Law
Judicial review
Reconsideration
Obvious error

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998

Decision:
Summons dismissed; plaintiff to pay the costs of the Summons.

Armstrong v Bowport All Roads and 2 Ors [2007] NSWSC 491 (18 May 2007)

(From Supreme Court of New South Wales Decisions; 18 May 2007; 37 KB)

Catchwords:

Review decision of Registrar and Medical Appeal Panel - Workers Compensation Commission

Legislation Cited:

Supreme Court Act 1970 - s 69(3)
Workplace Injury Management and Workers Compensation Act 1998 - ss 323, 327, 328
Cases Cited:
Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163
Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd & Ors [2006] NSWSC 235
Inghams Enterprises v Iogha & Ors [2006] NSWSC 456
Massie v Southern NSW Timber & Hardware Pty Limited [2006] NSWSC 1045
Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
Southgate v Waterford (1990) 21 NSWLR 427
Wikaira v Registrar of Workers Compensation Commission of NSW & Anor [2005] NSWSC 954
Zuanic v Gypro-Tech (Australia) Pty Limited (in liquidation) & Ors [2006] NSWSC 739

Decision:

The decision of the Delegate of the Registrar of the Workers Compensation Commission dated 2 December 2005 is quashed
The decision of the Medical Appeal Panel of the Workers Compensation Commission dated 15 May 2006 is quashed
The appeal proceedings giving rise to the decision dated 2 December 2005 are remitted to the Registrar or her Delegate to be dealt with according to law
The defendants are to pay the plaintiff's costs as agreed or assessed.

Cameron v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWSC 704 (14 July 2008)

(From Supreme Court of New South Wales Decisions; 14 July 2008; 110 KB)

Catchwords:

ADMINISTRATIVE LAW - workers compensation - satisfaction of Registrar that ground of appeal exists or is made out - reconsideration of decisions under s 378 - assessment of whole person impairment - deductions for previous injury - role of Medical Appeal Panel

WORKERS COMPENSATION - appeal against medical assessment - role of Registrar in allowing appeal to proceed - reconsideration of decision - role of Medical Appeal Panel - not de novo hearing - requirement to find error.

Legislation Cited:

Supreme Court Act 1970
Workers Compensation Act 1987
Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411
Builders Registration Board (QLD) v Rauber (1983) 57 ALJR 376
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839
Ex parte Hebburn Ltd v Kearsley Shire Council (1947) 47 SR(NSW) 416; (1947) 64 WN(NSW) 107
Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369
Public Service Association of South Australia v Federated Clerks' Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2005] NSWSC 1260
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149
Smith v Liquip Services Pty Ltd [2007] NSWSC 687
Summerfield v Registrar of the Workers Compensation Commission [2006] NSWSC 515

Decision:

The reconsideration of the matters arising under s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 by the delegate of the Registrar, Mr Wayne Wormald, issued on 5 February 2007 in matter number 6209-2005 between Plymold Seating Pty Ltd trading as Brookvale Tyres and Michael Cameron, be quashed.
The assessment of the Medical Appeal Panel dated 6 March 2007 in matter number 6209-2005, being an appeal by Plymold Seating Pty Ltd trading as Brookvale Tyres in relation to an application for assessment by Michael Cameron, be quashed.
The application by the aforesaid Plymold Seating Pty Ltd trading as Brookvale Tyres, for reconsideration of the refusal of the Registrar to allow to proceed an appeal, by the aforesaid Plymold Seating Pty Ltd trading as Brookvale Tyres, against the medical assessment of 4 November 2005, be remitted to the Registrar to deal with in accordance with law.
Liberty to apply in relation to costs and any consequential order.

Corbett v Toll Stevedoring Pty Ltd and Ors [2007] NSWSC 749 (11 July 2007)

(From Supreme Court of New South Wales Decisions; 11 July 2007; 40 KB)

Legislation Cited:

Civil Procedure Act 2005
Workers Compensation Act 1987
Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules
Workers Compensation Regulation 2003

Cases Cited:

Corbett v Toll Stevedoring Pty Ltd & Ors [2007] NSWSC 656
Gould v Vaggelas [1985] HCA 75; (1983-85) 157 CLR 215
Roads and Traffic Authority & Ors v Palmer [2005] NSWCA 140
Bullock v London General Omnibus Co & Ors (1907) 1 KB 264
Sanderson v Blyth Theatre Co (1903) 2 KB 533
Leichhardt Municipal Council v Green [2004] NSWCA 341

Corbett v Toll Stevedoring Pty Ltd and Ors [2007] NSWSC 656 (27 June 2007)

(From Supreme Court of New South Wales Decisions; 27 June 2007; 132 KB)

Legislation Cited:

Factories, Shops and Industries Act 1962
Construction Safety Act 1912
Navigation Act 1912
Civil Liability Act 2002
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987

Cases Cited:

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1985-86) 160 CLR 16
Boral Rooftiles Ltd v O'Brien (unreported, NSWCA, 15 December 1994)
Samsung Electronics Australia Pty Ltd v Macura [2005] NSWCA 386
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Smith v Austin Lifts Ltd (1959) 1 WLR 100
Bourke v Victorian Workcover Authority [1998] VSCA 24; (1999) 1 VR 189
Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203
Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Nigel Watts Fashion Agency Pty Ltd v GIO General Ltd (1995) 8 ANZ Ins Cas 61-235
Multiplex Constructions Pty Ltd v Irving & Ors [2004] NSWCA 346

Davis v Owen t/as Bondi Junction Timber [2002] NSWSC 527 (14 June 2002)

(From Supreme Court of New South Wales Decisions; 14 June 2002; 8 KB)

Catchwords:

Section 151C WCA - notice of claim 6 month period: mandatory or discretionary

Acts Cited:

Workers Compensation Act 1987 (as amended)
Workers Compensation Legislation Further Amendment Act 2001

George v Lifese Steel Erections [2002] NSWSC 779 (30 August 2002)

(From Supreme Court of New South Wales Decisions; 30 August 2002; 13 KB)

Catchwords:

Extension of limitation period - delay and inadequate explanation of delay (despite further opportunity to adduce relevant evidence).

Acts Cited:

Limitation Act 1969, s60C.

George v Lifese Steel Erections Pty Ltd and Anor [2003] NSWSC 1146 (8 December 2003)

(From Supreme Court of New South Wales Decisions; 8 December 2003; 103 KB)

Catchwords:

Industrial accident
Actions against employer and entity to whom plaintiff's services made available
Apportionment of fault. Damages
Assessments under workers' compensation act and civil liability act.

Acts cited:

Civil Liability Act, ss 12, 13, 15A, 16, 18
Supreme Court Rules, Pt 8 r 11, Pt 20 r 4
Workers' Compensation Act

Howard Haulage Pty Limited v Mutton ors [2007] NSWSC 237 (19 March 2007)

(From Supreme Court of New South Wales Decisions; 19 March 2007; 20 KB)

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Irvine v McGrath and Anor [2003] NSWSC 8 (27 January 2003)

(From Supreme Court of New South Wales Decisions; 27 January 2003; 7 KB)

Catchwords:

No question of principle

J C Equipment Hire Pty Limited v Registrar of the Workers Compensation Commission of New South Wales and Anor [2007] NSWSC 342 (20 April 2007)

(From Supreme Court of New South Wales Decisions; 20 April 2007; 23 KB

Catchwords:

Threshold dispute
Degree of permanent impairment
Service of pre-filing statement
Alleged defective pre-filing statement
Jurisdiction of registrar

Legislation Cited:

Workers Compensation Act 1987 (NSW)
Workers Compensation Rules 2003 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Supreme Court Act 1970 (NSW)

Johnson and Johnson Pty Ltd v Manufacturers Mutual Insurance Ltd and Ors [2000] NSWSC 155 (29 February 2000)

(From Supreme Court of New South Wales Decisions; 29 February 2000; 32 KB)

Catchwords:

Workers Compensation [244]- Common law liability; Occupational disease; Last person liable self insurer; Whether contribution rights exist; Workers Compensation Act, 1987, s 151AB.

Acts cited:

Workers Compensation Act, 1987, s 151AB

Karayannis v Smith [2004] NSWSC 667 (27 July 2004)

(From Supreme Court of New South Wales Decisions; 27 July 2004; 27 KB)

Catchwords:

Family Provision. Claim by two children of deceased's first marriage. Deceased's joint property received by her third husband. Orders made for legacies and designation of notional estate.

Kelman v Mutton; and Howard Haulage Pty Limited v Mutton [2007] NSWSC 13 (29 January 2007)

(From Supreme Court of New South Wales; 29 January 2007; 90 KB)

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Occupational Health & Safety Regulation
Civil Liability Act 2002 (NSW)
Workers Compensation Act 1987 (NSW)
Motor Accidents Act 1986 (NSW)

Cases Cited:

Nevin v B & R Enclosures Pty Limited [2004] NSWCA 339
TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Qualcast (Wolverhampton) Limited v Haynes (1959) AC 743
Wilson v Tyneside Window Cleaning Co. [1928] 2 QB 110
Roads and Traffic Authority v Ryan: Blue Mountains City Council v Ryan [2005] NSWCA 34; (2005) 62 NSWLR 609
Lanza v Codemo [2001] NSWSC 72
Rolls Royce Industrial Power (Pacific) Limited v James Hardie & Company Pty Limited [2001] NSWCA 461; (2001) 53 NSWLR 626

Mabbett v Josef Sons Contracting Pty Ltd [2006] NSWSC 1452 (6 November 2006)

(From Supreme Court of New South Wales; 6 November 2006; 120 KB)

Acts cited:

Law Reform (Miscellaneous Provisions) Act 1946 s26
Limitation Act 1969 s52
Motor Accidents Act 1988 s 52(4)
Occupation Health and Safety Act 1983
Workers Compensation Act 1987 s151D

OP Industries Ltd v MMI Workers Compensation (NSW) Ltd Matter No Ca 40022/96 [1998] NSWSC 632 (23 October 1998)

(From Supreme Court of New South Wales Decisions; 23 October 1998; 22 KB)

Catchwords:

Workers Compensation Act, 1987 Clause 1 Schedule 1 - employers negligence at common law - damages - definition of "employer" - insurance indemnity.

Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW ors [2005] NSWSC 1260 (8 December 2005)

(From Supreme Court of New South Wales; 8 December 2005; 26 KB)

Catchwords:

Administrative law
Workplace Injury Management and Workers Compensation Act 1998 s 329
Review of Registrar's decision to refer matter for further assessment.