Asplundh Tree Expert (Australia) Pty Ltd v Robertson [2005] NSWCA 471

Asplundh Tree Expert (Australia) Pty Ltd v Robertson [2005] NSWCA 471

The proceedings referred to in the exception in cl 9(1) are the proceedings in which damages may be recovered. The respondent's first action, commenced before the amendments, had been discontinued and damages could never be recovered in it. The second action was commenced after the amendments, so it fell within the general rule in cl 9(1), not the exception. Because the respondent had not complied with the applicable threshold requirements, the second action was to be struck out.

Jurisdiction
Australia
Judgment Date
13 December 2005
Procedural Posture
Appeal by Leave Concerning Strike Out of District Court Common Law Damages Proceedings for Workplace Injury / New South Wales Court of Appeal
Outcome
Appeal allowed; District Court judgment set aside; second District Court action struck out.
Legal Topics
['common Law Damages for Workplace Injury' 'transitional Provisions' 'retrospective Legislation' 'threshold Requirements for Workers Compensation Damages Proceedings' 'strike Out of Proceedings']
['employment Law' 'workers Compensation' 'statutory Interpretation'] ['common Law Damages for Workplace Injury' 'transitional Provisions' 'retrospective Legislation' 'threshold Requirements for Workers Compensation Damages Proceedings' 'strike Out of Proceedings']

Case Brief

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Procedural Posture

Appeal by Leave Concerning Strike Out of District Court Common Law Damages Proceedings for Workplace Injury / New South Wales Court of Appeal

Legal Issues

  1. 1 ["Whether cl 9(1) of Pt 18C of Sch 6 of the Workers Compensation Act 1987 exempted the respondent's second damages action from amendments where an earlier action for the same injury had been commenced before the amendments but later discontinued." 'Whether the proceedings referred to in the exception in cl 9(1) were the proceedings in which damages may be recovered.' "Whether an action pending when the amendments commenced preserved the plaintiff's former rights for enforcement in another action commenced later."]

Ratio Decidendi

The proceedings referred to in the exception in cl 9(1) are the proceedings in which damages may be recovered. The respondent's first action, commenced before the amendments, had been discontinued and damages could never be recovered in it. The second action was commenced after the amendments, so it fell within the general rule in cl 9(1), not the exception. Because the respondent had not complied with the applicable threshold requirements, the second action was to be struck out.

Court Disposition

Appeal allowed; District Court judgment set aside; second District Court action struck out.

Orders

  • ['Appeal allowed.' 'Judgment of Hughes DCJ of 14 October 2004 set aside. In lieu thereof order that action No 1 of 2004 in the Lithgow Registry which became action No 1809 of 2004 in the Sydney Registry be struck out.' "Order that the respondent pay the appellant's costs of the action in the District Court and of...