BAGGS v DEPARTMENT OF SCHOOL EDUCATION [1998] NSWCA 29

BAGGS v DEPARTMENT OF SCHOOL EDUCATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and STEIN JJA 7 May 1998, 7 May 1998 [1998] NSWCA 29

WORKERS COMPENSATION — there was evidence that worker' disability was continuing

Sheller JA The applicant, Mr John Baggs, filed a further amended application for determination in the Compensation Court dated 5 August 1996 in which the Department of School Education was named as the respondent. A previous application had been filed in 1995 in which the State of New South Wales was named as a respondent. Apparently, the further amended application was filed following an order by Geraghty J on 25 July 1996 which was made on the application of either the State of New South Wales or the Department of School Education or the Department of Public Works, a second respondent added in the amended application.

Mr Baggs claimed that when he was employed as the general manager in the school furniture complex run by the Department between 1 January 1990 and 30 November 1993 the nature of his work caused, relevantly, him to suffer from diabetes. He claimed partial incapacity for work from 30 November 1993 to date.

The application came before Commissioner Hunt on 25 October 1996. On 23 January 1997 the Commissioner made an award in favour of the applicant and gave his reasons for so doing. On 19 February 1998 the Department applied to have the award set aside, proceeding apparently under s36 of the Compensation Court Act 1984 before it was repealed, or amended, by the WorkCover Legislation Amendment Act 1995.

This application, which under that section would have been an application for review of the Commissioner's decision, was heard by Truss J on 16 May 1997. On 26 May her Honour allowed the review, set aside the Commissioner's decision and substituted an award for the respondent Department. Mr Baggs appeals from that decision.