Slater & Gordon Ltd v Sellars [2020] NSWSC 1793

Slater & Gordon Ltd v Sellars [2020] NSWSC 1793

Ms Sellars' cross-claim sought work injury damages and she had not complied with the mandatory statutory preconditions under the workers compensation legislation. The statutory scheme applies according to the character of the remedy sought and is not avoided because the claim is brought by cross-claim or pleaded defensively. Section 22 of the Civil Procedure Act 2005 (NSW) is procedural only and did not confer a substantive entitlement to relief that could not presently be granted in separate proceedings. Equity follows the law and did not recognise a present equitable set-off where the work injury damages claim could not presently be maintained. The identified parts of the defence and...

Jurisdiction
Australia
Judgment Date
08 December 2020
Procedural Posture
Application to Strike Out Portions of a Cross Claim and Defence / Interlocutory Motion
Outcome
Strike out part of defence and cross-claim.
Legal Topics
['strike Out of Pleadings' 'abuse of Process' 'reasonable Cause of Action' 'work Injury Damages' 'pre Filing Requirements' 'equitable Set Off' 'cross Claims']
['civil Procedure' 'equity' 'workers Compensation' 'employment Law'] ['strike Out of Pleadings' 'abuse of Process' 'reasonable Cause of Action' 'work Injury Damages' 'pre Filing Requirements' 'equitable Set Off' 'cross Claims']

Case Brief

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Procedural Posture

Application to Strike Out Portions of a Cross Claim and Defence / Interlocutory Motion

Legal Issues

  1. 1 ["Whether portions of Ms Sellars' defence and cross-claim seeking work injury damages should be struck out for non-compliance with workers compensation legislation." 'Whether the workers compensation legislation applies where work injury damages are raised by cross-claim and defence rather than by principal claim.' 'Whether Ms Sellars could rely on an equitable set-off notwithstanding non-compliance with the workers compensation statutory scheme.']

Ratio Decidendi

Ms Sellars' cross-claim sought work injury damages and she had not complied with the mandatory statutory preconditions under the workers compensation legislation. The statutory scheme applies according to the character of the remedy sought and is not avoided because the claim is brought by cross-claim or pleaded defensively. Section 22 of the Civil Procedure Act 2005 (NSW) is procedural only and did not confer a substantive entitlement to relief that could not presently be granted in separate proceedings. Equity follows the law and did not recognise a present equitable set-off where the work injury damages claim could not presently be maintained. The identified parts of the defence and...

Court Disposition

Strike out part of defence and cross-claim.

Orders

  • ['Pursuant to rule 14.2 of the Uniform Civil Procedure Rules 2005 (NSW), strike out paragraphs [5] to [7] of the Cross Claim dated 12 October 2020.' 'Pursuant to rule 14.2 of the Uniform Civil Procedure Rules 2005 (NSW), strike out "the breaches of the Employment …. on 14 August 2020" in paragraph 38 of the first...