COMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH and ORS [1994] NSWCA 57

COMMERCIAL UNION WORKERS' COMPENSATION NSW LTD v SMITH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 28 April 1994, 19 May 1994 [1994] NSWCA 57

WORKERS' COMPENSATION — appeal — appeal limited to point of law or challenge to fact finding — transitional provisions of Compensation Court (Amendment) Act 1989 — determination of when "proceedings commenced" — addition of insurer to proceedings — whether proceedings against insurer commenced on addition of insurer to proceedings already commenced — proper construction of Act and Rules — held: (by Kirby P; Meagher JA semble and Priestley JA expressing no opinion):

(1) For the purpose of determining the application of Compensation Court Act 1984, s32 the relevant date is the commencement of the initial proceedings not the date of the addition of a party to those proceedings;

(2) Accordingly, the added party's appeal was limited to one in point of law.

Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190 (CA) applied; Fernance v Nominal Defendant and Anor (1989) 17 NSWLR 710 (CA); Ketteman and Ors v Hansel Properties Ltd and Ors [1987] 1 AC 189 (HL) distinguished,

(3) There were facts to support the primary judge's determination that the deceased was a worker of the insured employer.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) applied;

(4) The judge's reasons, although brief, adequately expounded the grounds of his decision.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) applied.

PRACTICE and PROCEDURE - workers' compensation - appeal - regime of appeal - whether limited to point of law or includes review of facts - determination by reference to "commencement" of "proceedings" - held: Proceedings commence when original proceedings instituted and not when later application made to join a party to such proceedings.