Brighton Und Refern Plaster Pty Limited v Boardman [2006] HCA 33

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

BRIGHTON UND REFERN PLASTER

PTY LIMITED (UNDER EXTERNAL

ADMINISTRATION AND/OR

CONTROLLER APPOINTED) APPELLANT

AND

SCOTT RAYMOND BOARDMAN RESPONDENT

Brighton Und Refern Plaster Pty Limited v Boardman

[2006] HCA 33

15 June 2006

S479/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

R S Toner SC with M J Jenkins for the appellant (instructed by Rankin Nathan Solicitors)

M I Bozic SC with D M Shoebridge for the respondent (instructed by Taylor & Scott Lawyers)

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

CATCHWORDS

Brighton und Refern Plaster Pty Limited v Boardman

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 an order for judgment had been made under Pt 11 r 1(1) of the District Court Rules − 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 setting aside the order for judgment − 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. This appeal from the New South Wales Court of Appeal (Giles and McColl JJA)[1] was heard concurrently with the appeal in Berowra Holdings Pty Ltd v Gordon[2] and the issues for determination were, to a great extent, common. It is unnecessary to repeat what is said in Berowra Holdings concerning the proper construction to be given to s 151C of the Workers Compensation Act 1987 (NSW) ("the 1987 Act") and the significance of the context of the relevant District Court Rules ("the Rules"). 2. Like the worker in Berowra Holdings, the respondent in this case ("the worker") commenced proceedings in the District Court of New South Wales without complying with s 151C. The appellant ("the employer") did not take any point in relation to non-compliance until some considerable time had elapsed, and after various steps had been taken pursuant to the Rules. Submissions in the District Court and the Court of Appeal were cast in terms of "waiver", a concept which is of limited utility in this context[3]. The appeal to this Court was conducted on the basis that non‑compliance with s 151C rendered the proceedings a "nullity", with the result that waiver could not occur. 3. Consistently with the reasons given in Berowra Holdings, the proceedings in this case cannot be characterised as a "nullity", and accordingly this appeal must fail.