Jakovljevic v South Western Sydney Area Health Service [2003] NSWCC 17

Compensation Court of New South Wales

CITATION : Jakovljevic v South Western Sydney Area Health Service [2003] NSWCC 17 PARTIES : Bilijana Jakovljevic South Western Sydney Area Health Service t/as Liverpool Health Service MATTER NUMBER(S) : 57268 of 1999 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23rd July 2003 EX TEMPORE JUDGMENT DATE : 07/23/2003

FOR APPLICANT: Mr Adamo instructed by Stojanovic Solicitors. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Hargraves (sol) instructed by PricewaterhouseCoopers Legal.

JUDGMENT: 1. This is a motion by Bilijana Jakovljevic against South Western Sydney Area Health Service. The motion, which was filed on 4 July 2003, seeks orders that the matter be restored to the list and others that need not detain me now. It is supported by two affidavits. The first is of the claimant's solicitor, Chris Brennan. After swearing that affidavit on 3 July 2003, Mr Brennan filed in this Court a Notice of Change of Solicitor on 14 July 2003, indicating that he is now the solicitor for the claimant. Mr Brennan's affidavit relevantly reads: 3. I was instructed on 6 May 2003 to act on behalf of the applicant to have this matter restored to the list. 4. On examining the file and contacting the Workers Compensation Court [sic] I was informed that the matter had been struck out on 14 May 2001. 5. I was instructed that my client was unable to attend the hearing date on 8 February 2001 due to illness and that whilst her matter was struck out the applicant was granted leave to have the matter restored to the list. 6. I was further instructed that my client was not made aware as to why the matter was not re-listed or why an application to have the matter restored to the list was not put before the Court. 7. After examining the file I can indicate to the Court that the applicant was advised of the orders made on 8 February 2001. However, there does not appear to be any further advice given to the applicant as to what has occurred subsequent to that date. 2. The second affidavit supporting the motion is from the claimant herself, and relevantly it reads: 3. The matter was last listed before the Court on 14 May 2001. I advise that I was unable to attend Court as I aggravated my back pain early in the morning while moving around the kitchen. I went to the doctor at the Macquarie Street Medical Centre, Liverpool. He organised an x-ray and upon returning to the doctor with the x-ray he told me to go home and rest my back. 4. I rang my solicitor before 9 am and told his solicitor that I had to go to the doctor's because of my back problem. 5. On contacting my solicitors the next day I discovered that my matter had been struck out. 6. I then attended my solicitor's office and signed an affidavit explaining my absence and I gave him a medical certificate from my general practitioner. Attached and marked annexure "A" is Dr R. Bright's medical certificate dated 14 May 2001. Attached and marked annexure "B" is x-ray referral dated 14 May 2001. 7. Although I have contacted my solicitors by phone on numerous occasions and wrote to him on two occasions thereafter I have not been advised what further action I needed to take in order to have my matter re-listed for hearing. 8. I rang WorkCover between the middle and the end of 2002 and it was then that I took steps to instruct another solicitor. 3. The medical certificate annexed indicates that on 14 May 2001, the date on the certificate, the claimant was suffering from back pain and was unable to work from the date of the certificate until 14 August 2001. The x-ray referral annexed to the affidavit simply refers to the carrying out of an x-ray on the claimant's thoracic spine on 14 May 2001 by a Dr Cohen on referral from Dr Bright. 4. On 14 May 2001 I struck the application out on the respondent's application, reserving liberty to the applicant to apply to restore the matter on her affidavit, giving a reasonable explanation for her absence that day. I noted that the applicant had not attended for a second time (referring to her attendance at Court), no medical certificate having been provided, she having phoned her solicitors indicating she was ill. I indicated that she had not attended for the second time because I was told by the parties that it was agreed that this was the state of affairs when the matter was earlier adjourned before Commissioner Wright of this Court on 8 February 2001. 5. The current motion came before Quirk J on 15 July last when her Honour made orders regarding the conduct of the current motion which do not require attention as the parties do not suggest they were not complied with, and her Honour then adjourned the matter for hearing before me today. 6. Mr Hargraves, solicitor for the respondent on the motion, submits that the matter is caught by the combined operation of s 105 of the Workplace Injury Management and Workers Compensation Act 1998 ("the Act") and reg 93 of the Workers Compensation (General) Regulation 1995 ("Regulation 93"). He points first to s 105(1) which reads: Subject to this Act, the Commission [the Workers' Compensation Commission] has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. 7. He refers then to subs (3) which relevantly reads: The Commission does not have jurisdiction in respect of matters that the Compensation Court has jurisdiction to examine, hear and determine ... and says that this refers one to subs (4), which relevantly reads: