CIVIL & CIVIC LIMITED v BREARTON [1993] NSWCA 59

CIVIL & CIVIC LIMITED v BREARTON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and HANDLEY JA 2 , 29 April 1993

[1993] NSWCA 59

FACTS: Plaintiff/respondent sustained injury in the course of his employment by a sub-contractor employed by the appellant. Plaintiff sued employer and appellant at Common Law. Proceedings against employer dismissed. Appellant claims under s23 of the now repealed Workers' Compensation Act (NT) that the respondent's claim is precluded where s14 Workers' Compensation Act (NT) operates to include a party in the position of the appellant, (a 'principal') under the term 'employer' for the purposes of this Act.

HELD: (per curiam)

Workers' Compensation Act (Northern Territory)(repealed) ss 14, 22, 23, Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR 120

McKain v R W Miller & Co Pty Ltd (1988) 169 CLR 41

Stevens v Head (High Court, 18 March 1993, unreported)

Hood Constructions v Nicholas (1987) 9 NSWLR 60

Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661

(1) Facts of the present case do not bring the appellant "principal" within s 14 "employer" and therefore s23 of the Act does not apply to the appellant.

(2) Section 23 is a substantive rather than procedural enactment of the Northern Territory. Accordingly, it has no application in NSW. McKain v R W Miller & Co (South Australia) Pty Limited; Stevens v Head.

Clarke JA. Peter Brearton ('the plaintiff') sued his employer, R W Bass Pty Ltd ('the employer'), for injuries he sustained on 14 January 1985 in Darwin during the course of his employment. At that time the employer was working on a construction site as a sub-contractor of Civil and Civic Ltd ('the defendant').

On 30 July 1990 the plaintiff commenced proceedings in this court against his employer and the defendant. Subsequently, the plaintiff consented to the entry of judgment in favour of his employer and since that time has sought to pursue his action only against the defendant. It would appear that the reason why he discontinued his proceedings against his employer was that he had received payments in about June or July of 1985 from his employer under the Workers" Compensation Act (Northern Territory) ('the Act') which was in force at the relevant time (it was then an Ordinance but that is presently of no moment). The plaintiff apparently accepted that his right to claim damages in anaction commenced in 1990 against his employer was barred by the provisions of s 23(3A) of the Act.