Reported Decision : (2002) 23 NSWCCR 472 Compensation Court of New South Wales CITATION : Haynes v Haynes [2002] NSWCC 28 Dayne F Haynes PARTIES : v Jacqulyn D Haynes MATTER NUMBER(S) : 52393 of 1999 JUDGMENT OF: Neilson J at 1 :- Alleged employer's application struck out under Pt 10 r 4. Application in reality is under s 17(4) of Compensation Court Act 1984. Application to restore to the list is made after 1 April 2002. Whether Court has jurisdiction to restore "employer's" application to list. CATCHWORDS: Alleged worker had application pending before the Court on 31 March 2002 seeking weekly payments. That application recites an earlier award under s 66 in favour of "worker". Employment in issue in these proceedings. "Worker" maintains "employer" now estopped from denying employment. HELD: Whether claimant was a "worker" or not was an issue in respect of an "existing claim" in respect of which a matter was pending in the Court prior to 1 April 2002. That issue was an "existing claim matter". "Employer's" application concerned the same "existing claim matter" and was within jurisdiction. Application to restore to the list granted. LEGISLATION CITED: Workers Compensation General Regulation reg 93 Workplace Injury Management and Workers Compensation Act 1998 ss 105(4), 250(1) CASES CITED: DATES OF HEARING: 06/05/02 EX TEMPORE JUDGMENT DATE : 05/06/2002 FOR APPLICANT: Mr M Best instructed by Bussoletti Lawyers appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos instructed by Nevill & Edwards appeared for the respondent. JUDGMENT: 1. On 28 April 2000 Mr Dayne Francis Haynes filed an application for determination in matter number 52393 of 1999. That application alleged a frank injury to the applicant on 17 May 1997 when he was kicked by an ostrich, staggered backwards and fell to the ground injuring his left ankle. The application for determination claimed a lump sum under s 66 for 25 per cent permanent loss of efficient use of the applicant's left leg below the knee and a lump sum under s 67 for pain and suffering, anxiety and distress resulting from that loss. 2. On 24 November 1999 Messrs Nevill and Edwards filed an answer to that application for determination which really only raised issues relating to quantum. That application for determination was called over by her Honour Judge Ashford on 18 April 2000 with a view to its being heard in Goulburn during her forthcoming sittings. The matter was listed for hearing before her Honour at Goulburn on 6 June 2000 when the matter was settled. A consent award was entered in the applicant's favour for 17.5 per cent loss of efficient use of the applicant's left leg below the knee and for $12,750 pursuant to s 67. The applicant's claim for interest was withdrawn and a general costs order was made in favour of the applicant. The Registrar entered an award accordingly which bears the same date, 6 June 2000. 3. On 20 August 2001 the employer filed an application for determination in matter 52393/99/1. The respondent to the application was Dayne Francis Haynes. The application is said to be an application by an employer seeking a review of the existing award in matter 52393 of 1999 under the Workers Compensation Act 1987. That is the general intitulment for an application under s 55 of the Workers Compensation Act 1987 where it is sought to review an award of continuing weekly payments to either increase or diminish it or to terminate it. The award in the original matter is not one that could be reviewed pursuant to s 55. In the application for determination par 3, which ought give particulars of variations sought, says this: The applicant is not entitled to lump sum compensation on the basis that he is not a worker within the meaning of the Act. 4. The application then goes on to recite the earlier payment of the lump sums under s 66 and s 67. The form of the application for determination is wholly inappropriate to what in fact was being sought. What was in fact being sought was a reconsideration of the earlier award pursuant to s 17(4) of the Compensation Court Act 1984, that is to set aside the original award on the basis that the respondent to that application Dayne Francis Haynes had never been a worker within the meaning of the Act, and once the award had been set aside the moneys that had been paid to Mr Haynes could be recovered in a Court of competent jurisdiction provided that the appropriate grounds for the repayment were made out. Furthermore, despite the fact that what was in essence being sought was a reconsideration of an earlier award the employer appears to completely ignore the provisions of Pt 27 r 2 and indeed appears to have completely ignored all the provisions of Pt 27 of the rules. The last day for service of that application for determination filed by the employer was 20 October 2001. No affidavit of service was filed. No answer was ever filed and pursuant to Pt 10 r 4 the matter was deemed struck out on 20 November 2001. In the meantime Mr Dayne Francis Haynes had filed a further application for determination which was filed on 6 April 2001. In that application Mr Haynes relies on the same event of 17 May 1997 relied upon in his first application for determination. He also alleges essentially a continuing problem with his left ankle. The relief claimed is weekly payments from 2 March 2001 to date and continuing pursuant to either s 37 or 38. That application recites that weekly payments of compensation were made to Mr Haynes up until 2 March 2001 and also recites the earlier payments pursuant to s 66 and s 67. 5. The worker's solicitors filed an affidavit of service of that application on 17 April 2001. The employer's solicitors, Messrs Nevill and Edwards, did not file an answer until 27 July 2001. It is noteworthy that par 1(e) of that answer makes the following averment. That the applicant was not employed by the respondent as alleged or at all. 6. There is a further averment in the next paragraph which merely reiterates that averment. The second averment is: That the applicant is not a worker within the meaning of the Act. 7. The next plea in the answer alleges that the applicant's claim was fraudulent and brought without proper justification, which, in my view, is a pleading as to costs, which is completely unnecessary. It can be seen therefore that at the time the employer filed the "application for review" in matter number 52393/99/1 the worker was well on notice that it was now alleged that Mr Haynes was not a worker employed by the respondent Jacqulyn Haynes. 8. On 12 March 2002 Messrs Nevill and Edwards filed a notice of motion returnable before the Registrar on 18 March 2002. Although that notice of motion was intituled in matter 52393/99 it should have been in intituled in matter 52393/99/1. The relief claimed in the notice of motion was that the original matter and that the 2001 matter be consolidated pursuant to Pt 6 r 3 and that the hearing date of 20 March 2001 be confirmed. The substantive orders sought by the worker were granted by Assistant Registrar Cox on 18 March 1993. It is noteworthy that the notice of motion did not seek to restore matter 52393/99/1 to the list. When the matter came on before her Honour Judge Ashford at Goulburn on 2 March 2002 her Honour noted that matter 52393/99/1 had been struck out pursuant to Pt 10 r 4 on 29 November 2001 and that therefore the order made by the Registrar was not a valid order as the matter was "extinct". I understand her Honour to have been indicating by that ruling that there was nothing she could do in matter 52393/99/1 which in fact had never even been listed for hearing with the 2001 number in any event because of the defective order made by the Registrar. 9. There is a further motion before me. That motion seeks that matter number 52393/99/1 be "reinstated" it also prays that the employer's application be consolidated with matter number 35406 of 2001, that is Mr Hayne's application for weekly payments. That motion was filed on 12 April 2002. This is not the first motion to restore to the list that I have had to deal with since 1 April 2002. One ought have regard to my decisions in Farris v C B Richard Ellis (C) Pty Ltd [2002] NSWCC 12 and Faber v Arrow Concrete Pumping Services Pty Ltd [2002] NSWCC 13. The point of those decisions is that if the application to restore a matter to the list was not pending before the Court on 1 April 2002 the Court did not have power to restore a matter to the list as was there was nothing pending for the Court as at 1 April 2002 which would give it jurisdiction. However, the generality of my findings in those cases must be strictly confined to their own particular facts. There can be exceptions to the general proposition that I established in those cases. One such exception I have already identified in Central Tablelands County Council v Lynette Clow (unreported, 30 April 2002, matter 9111/89/2). In that case an award of weekly payments of compensation pursuant to s 40 had been pronounced by his Honour Judge O'Meally on 26 September 1990. On 30 June 1999 the employer had filed an application for determination seeking diminution or termination of the earlier award. By operation of the then rules that application was deemed to have been struck out pursuant to Pt 10 r 4 on 30 December 2002. The worker had then filed an application to increase that award on 2 October 2001, but that was deemed to have been struck out pursuant to Pt 10 r 4 on 2 January 2002. 10. The worker then filed a fresh application on 20 March 2002 which is an existing claim before the Court under Workers Compensation (General) Regulation 1995 reg 93. In that case I pointed out that the Court has jurisdiction not over existing claims but over existing claim matters. One need only go to the provisions of s 105(4) of the Workplace Injury Management and Workers Compensation Act 1996 and the definition of existing claim matter is given in the same Act in s 250(1). An existing claim matter means any matter arising under the Workers Compensation Acts in respect of an existing claim. An existing claim is defined as meaning a claim for compensation that is made before the commencement of s 250 or a related claim that is made or entitled to be made whether before or after the commencement of s 250. That commencement date was 1 January 2002. Related claims are also defined in the same subsection of s 250. 11. The Court has jurisdiction over Mr Hayne's claim for weekly payments of compensation. It is denied in those proceedings that the applicant is a worker within the meaning of the Workers Compensation Act 1987. Mr Haynes, through his counsel, Mr Best, maintains before me that the earlier award creates an estoppel. I find it very difficult to see how a consent award could create an issue estoppel but Mr Best in the alternative argues that it creates an estoppel by conduct, in other words the worker will seek to rely in the matter over which the Court has jurisdiction an estoppel arising from the earlier award which the employer had indicated prior to 1 April 2002 by filing matter number 52393/99/1 that she wishes to have set aside. 12. The facts in this case are, if not identical to, at least analogous to those in Clow's case. I pointed out in Clow's case that the scheme of the Act appears to seek to give jurisdiction over everything to the Court or other body which is seized of jurisdiction first. It would be contrary to the spirit and in my view the terms of the Acts with which I am dealing to refuse the employer leave to bring a reconsideration application of the earlier award which the worker seeks to rely upon in respect of an existing claim. In my view not only do I have jurisdiction to restore to the list the matter which is deemed to have been struck out, but the Court would have jurisdiction to entertain a fresh application filed by the employer because it relates to an existing claim matter, that is a matter which will be relied upon by the worker in an existing claim of which the Court is seized of jurisdiction. 13. I cannot refrain from observing, in passing, that the current problem has arisen because of an inadequate understanding of what was being sought to be done and an inadequate observance, and probably understanding, of the rules and procedures of this Court. The employer's original application was not in proper form; the employer then failed to file an affidavit of service; the employer failed to comply with the provisions of Pt 27; the employer obviously alert to the problem then moved the Court by motion filed on 12 March 2002, but failed either in the motion itself or orally when the matter was before the Registrar on 18 March 2002 to seek an order restoring the matter which is deemed to have been struck out pursuant to Pt 10 r 4. The current problem has arisen because of serious defaults in the conduct of the employer's solicitor in seeking relief which he seeks on his client's behalf. I shall accordingly make an order that the employer pay Mr Dayne Francis Hayne's costs. In using the words "worker" and "employer" throughout these reasons for judgment I am just using them in a shorthand fashion of referring to one or either of the parties because it is clear that some time the person alleged to the worker is the applicant and other times the person alleged to be the employer is the applicant and each of the parties at one time has the guise of the respondent and to use the general overall terminology makes clear what has been occurring. I make, of course, no suggestion whatever that Mr Dayne Francis Haynes is a worker or that Ms Jacqulyn D Haynes is an employer. 14. I make the following orders: Matter number 52393/91/1 is restored to the list. I order the applicant employer to file and serve an application in proper form within 14 days. I would point out to the applicant employer, who obviously does not read rules, that the form of application should be a notice of motion. I direct the applicant's solicitor comply with the provisions of Pt 27 r 2 forthwith. I order that matter number 52393/99/1 be heard together with matter number 35406 of 2001 and take its same place in the pending list. I order Jacqulyn Haynes to pay the cost of Dayne Francis Haynes. Mr M Best instructed by Bussoletti Lawyers appeared for the applicant. Mr J Catsanos instructed by Nevill & Edwards appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.