Harder v Waterford Wedgewood Australia Ltd [2002] NSWCC 31

Reported Decision : (2002) 23 NSWCCR 551

Compensation Court of New South Wales

CITATION : Harder v Waterford Wedgewood Australia Ltd [2002] NSWCC 31 Barbara Mary Harder PARTIES : v Waterford Wedgewood Australia Ltd MATTER NUMBER(S) : 48155 of 2001 JUDGMENT OF: Neilson J at 1 :- Application to restore to the list pursuant to Pt 10 r 4(2). Correctness of Farris v C B Richard Ellis (C) Pty Ltd [2002] NSWCC 12 challenged. Held: CATCHWORDS: 1. Pt 10 r 4 is not ultra vires Harding v Bourke (2000) 48 NSWLR 598 applied. 2. A "striking out" of a matter is different to a "stay". 3. What cannot be done directly (commencing fresh proceedings) cannot be done indirectly (by restoring struck out proceedings). 4. Farris was correctly decided. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 06/06/02 EX TEMPORE JUDGMENT DATE : 06/06/2002

FOR APPLICANT: Mr G R Graham instructed by J H Fisher & Sons appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Pearce instructed by Hunt & Hunt appeared for the respondent. Mr M Leeming instructed by the State Crown Solicitor appeared for The WorkCover Authority of New South Wales.

JUDGMENT: 1. This is an application under Pt 10 r 4(2) of the Compensation Court Rules 1990. The application for determination was filed on 10 October 2001. The last day for service of that application for determination was 10 December 2001. The matter was deemed to have been struck out on 10 January 2002, no affidavit of service or answer or notice of appearance having been filed. The application to restore the matter was filed on 1 May 2002. If my decision in Farris v C B Richard Ellis (C) Pty Limited [2002] NSWCC 12 be correct, the current application before me under Pt 10 r 4(2) must be dismissed for want of jurisdiction. 2. The question which has arisen in this case is whether my decision in Farris be correct. The matter was before the Court on 23 May 2002 when Mr Graham of Counsel appeared for the applicant. Mr Hing, a solicitor employed by Messrs Hunt and Hunt, appeared for the respondent. After Mr Graham's address I was concerned as to the correctness of my decision in Farris and stood the matter over for further hearing today with the exhortation to the respondent that counsel be retained and requiring the Registrar to notify the WorkCover Authority of the argument before me so that it could, if it wished to, exercise its rights under s 106 of the Workplace Injury Management and Workers Compensation Act 1998. 3. Today Mr Graham of counsel again appears for the applicant. Mr Pearce of counsel appears for the respondent and Mr Leeming instructed by the State Crown Solicitor appears for the WorkCover Authority of New South Wales. There are before me as well four other applications under Pt 10 r 4 in three of which Ms Wood of counsel appears for the applicant. Ms Wood has been heard in this argument as the outcome in this case may determine the result in the three matters in which she is involved. Mr Graham points out that the decision of the Court of Appeal in Norcal Pty Limited v D'Amato (1988) 15 NSWLR 376 is only strictly authority for the proposition that the earliest time that proceedings can cease to be pending before this Court is when there has been a final determination of a claim on its merits. In that regard he is quite correct. 4. Mr Graham then argues that Pt 10 r 4 is ultra vires the Compensation Court Act 1984. Mr Graham points to the Court's obligation to hear and determine matters and relies on the provisions of s 6(1) of the Compensation Court Act 1984. That provision is as follows: The functions of the Court shall, subject to the provisions of this Act, the Workers Compensation Acts, or any other Act, be exercised by a single judge who shall constitute the Court. 5. Mr Graham argues that this requires that a judge of the Court, subject to the provisions relating to Commissioners, hear and determine any case before it on its merits. His argument is that until that has occurred a matter is pending before the Court and furthermore an administrative striking out under a provision such as Pt 10 r 4 is inconsistent with the terms of the Act and therefore it is ultra vires. In argument on the last occasion Mr Graham said this: What I am saying is the Court has never done anything which it was empowered to do by the Act in the sense of finally determining these proceedings. Further at page 7 Mr Graham said this: