GIO GENERAL LTD v BOJKO and ANOR [1996] NSWCA 213

GIO GENERAL LTD v BOJKO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY JA and WADDELL AJA

15 April 1996, 20 December 1996

[1996] NSWCA 213

WORKERS COMPENSATION ACTS 1926 AND 1987

WORKERS COMPENSATION ACTS, 1926 (OLD ACT) AND 1987 (NEW ACT — worker suffering old Act and new Act injuries — liability of old Act insurer in light of factual findings of trial judge — transitional provisions — argument not raised below not, in circumstances of case permitted on appeal — interpretation of orders of court below — subject to some adjustments, appeal to be dismissed.

ORDERS Draft minutes of orders according with the reasons of the court to be filed with Court of Appeal Registrar within twenty-eight days.

Gleeson CJ I have had the advantage of reading, in draft form, the judgment of Priestley JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Priestley JA PRELIMINARY.

This appeal requires the court to decide issues stemming from the commencement in 1987 of a Workers Compensation Act (which I will call either the new Act or the 1987 Act) which replaced the previous one (the old Act or the 1926 Act). The new Act continued many of the main ideas and kept much of the language of the previous one. It also changed the language and expanded the scope of some of the main ideas; eg s16 of the old Act and the table of injuries which followed it were replaced by s66 and other sections appearing in Pt3 Division 4 of the new Act and the table at the end of Division 4. The fact that s16 and its Table of the old Act are the immediate parents of parts of Division 4 and its Table of the new Act is clear enough; but there are many significant differences in the two tables and the words of the relevant provisions. Also, included in Division 4 is s67 which introduced a head of compensation into the new Act which had no counterpart in the old Act. Transitional provisions in the new Act provided for some problems foreseen to follow from the changes in the new Act. These provisions have been amended quite frequently. Substantive amendments have also been made to the new Act, bringing their own transitional provisions in their train.