Sotir Trpenoski v BHP Flat Products [2003] NSWCA 176

Sotir Trpenoski v BHP Flat Products [2003] NSWCA 176

A notice of motion seeking leave under s 151D(2) of the Workers Compensation Act 1987 was not the commencement of proceedings for the recovery of damages within clause 9(1) of Part 18C of Schedule 6. In the District Court, such proceedings could only be commenced by lodging an ordinary statement of claim with a registrar. Because no statement of claim was lodged before 27 November 2001, the claimant had not commenced proceedings for recovery of damages before the commencement of the 2001 amendments, and the primary judge was correct to refuse leave.

Jurisdiction
Australia
Judgment Date
01 July 2003
Procedural Posture
Application for Leave to Appeal and Appeal in Workers Compensation Damages Proceedings / New South Wales Court of Appeal; Appeal Heard Concurrently With Leave Application From District Court Decision Refusing Leave Under S 151 D of the Workers Compensation Act 1987
Outcome
Appeal refused; leave to appeal refused; summons for leave dismissed with costs.
Legal Topics
['commencement of Proceedings' 'leave to Commence Damages Proceedings Out of Time' 'common Law Damages for Workplace Injury' 'effect of Transitional Amendments']
['workers Compensation' 'civil Procedure' 'limitation of Actions'] ['commencement of Proceedings' 'leave to Commence Damages Proceedings Out of Time' 'common Law Damages for Workplace Injury' 'effect of Transitional Amendments']

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Procedural Posture

Application for Leave to Appeal and Appeal in Workers Compensation Damages Proceedings / New South Wales Court of Appeal; Appeal Heard Concurrently With Leave Application From District Court Decision Refusing Leave Under S 151 D of the Workers Compensation Act 1987

Legal Issues

  1. 1 ['Whether filing a notice of motion seeking leave under s 151D(2) of the Workers Compensation Act 1987 constituted commencement of proceedings for the recovery of damages before 27 November 2001 within clause 9(1) of Part 18C of Schedule 6 to the 1987 Act.' 'Whether the claimant could rely on Whisprun v Sams & Ors (2002) NSWCA 394 to treat proceedings as commenced despite no statement of claim having been lodged.' 'Whether leave could or should be granted nunc pro tunc so that a statement of claim was deemed filed on the date of the notice of motion.']

Ratio Decidendi

A notice of motion seeking leave under s 151D(2) of the Workers Compensation Act 1987 was not the commencement of proceedings for the recovery of damages within clause 9(1) of Part 18C of Schedule 6. In the District Court, such proceedings could only be commenced by lodging an ordinary statement of claim with a registrar. Because no statement of claim was lodged before 27 November 2001, the claimant had not commenced proceedings for recovery of damages before the commencement of the 2001 amendments, and the primary judge was correct to refuse leave.

Court Disposition

Appeal refused; leave to appeal refused; summons for leave dismissed with costs.

Orders

  • ['Leave to appeal refused.' 'Summons for leave dismissed with costs.']