Klein v Domus Pty Ltd [1963] HCA 54

High Court of Australia Dixon C.J. McTiernan and Windeyer JJ. Klein v Domus Pty Ltd [1963] HCA 54

ORDER Appeal dismissed with costs.

The following judgments were delivered:—

Dixon C.J.

This is an appeal brought as of right from an order of the Full Court of the Supreme Court of New South Wales. The order which is under appeal is for the dismissal of an appeal from an order made by Wallace J. The order of Wallace J. was made on a reference from a decision of the Prothonotary on an application made pursuant to s. 63 of the Workers' Compensation Act, 1926-1960 N.S.W. for an extension of time within which the appellant could—notwithstanding that she had applied for workers' compensation and had received workers' compensation to an extent—exercise the right which s. 63 (1) nevertheless gives her of pursuing what was alleged to be a cause of action at common law, in respect of the injury which she had received.

The Prothonotary, Wallace J. and the Full Court all purporting to exercise a discretion, refused the application. The appeal was brought to this Court on the ground that the Full Court, being the tribunal appealed from, was misguided in the manner in which it approached the exercise of the discretion and that we should therefore review the exercise of the discretion.

Section 63 has a long history and has been the subject not only of various decisions but of various amendments, but it has stood in its present form for a very considerable time. I regret to say that this Court was rendered, some years ago, only too familiar with the difficulties to which s. 63 then gave rise. After Latter v. Muswellbrook Corporation [1] we heard little of the provision. What s. 63 does in its present form is not really intricate. It assumes, as of course one would suppose, the existence of a claim for workers' compensation conferred by the anterior sections of the Act. Sub-section (1) then says, "Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible."