Berowra Holdings Pty Ltd v Gordon [2006] HCA 32

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

BEROWRA HOLDINGS PTY LTD APPELLANT

AND

RODNEY JOHN GORDON RESPONDENT

Berowra Holdings Pty Ltd v Gordon

[2006] HCA 32

15 June 2006

S473/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with P L Perry for the appellant (instructed by Lyons Barnett Kennedy)

J E Sexton SC with P A Regattieri for the respondent (instructed by Peacocke Dickens & Price)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Berowra Holdings Pty Ltd v Gordon

Workers' Compensation − Plaintiff did not comply with s 151C of the Workers Compensation Act 1987 (NSW) − Defendant did not take any point as to non‑compliance until after it had made an offer of compromise pursuant to Pt 19A of the District Court Rules − Plaintiff accepted defendant's offer of compromise after the point as to non‑compliance had been raised – Whether proceedings commenced by the plaintiff invalid or a nullity because of non‑compliance with s 151C − Whether procedural steps taken by the parties under the District Court Rules invalid or nullities because of non-compliance with s 151C − Whether defendant entitled to an order that its offer of compromise be withdrawn − Whether the concept of waiver relevant.

Statutory construction − Where statute imposed a restriction upon the commencement of court proceedings but made no provision for consequences of non-compliance − Construction of s 151C of Workers Compensation Act 1987 (NSW).

Workers Compensation Act 1987 (NSW), Pt 5, s 151C.

1. GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ. Part 5 (ss 149-151AC) of the Workers Compensation Act 1987 (NSW) ("the 1987 Act") is headed "Common law remedies". Section 151 provides that "except to the extent that this Act otherwise expressly provides", it "does not affect any liability in respect of an injury to a worker that exists independently of this Act". However, s 151C stipulates a six months delay before the commencement of court proceedings against an employer for damages. 2. The grounds of appeal for this appeal from the New South Wales Court of Appeal[1] show that it turns upon an issue of construction of Pt 5 of the 1987 Act. This may be shortly stated: does the prohibition apparently imposed by s 151C deny legal effect both to proceedings for common law damages commenced in contravention of that prohibition and to all steps later taken by the parties under the relevant Rules of Court with respect to such proceedings? 3. The appellant ("the employer") submits that the Court of Appeal erred and that, on its proper construction, s 151C(1) does have this result. Therefore, it is said, an action commenced by the respondent ("the worker") in the District Court, together with the employer's own offer of compromise made under the District Court Rules ("the Rules"), were null and void. 4. The question of the construction of s 151C falls to be resolved in the light of two significant facts about which there was no controversy. First, the worker did commence an action in the District Court without complying with s 151C. Secondly, the employer did not take any point (in pleadings or otherwise) regarding failure to comply until the day before the matter was listed for hearing in the District Court some 18 months later. That day fell at a time when the employer's offer of compromise pursuant to Pt 19A of the Rules remained open. The employer contends that the second fact is irrelevant and that the first fact constitutes a complete answer to the case. 5. The submissions by the employer should not be accepted. We turn to explain why this is so.