Pitacco v Ison & Co Pty Ltd [2002] NSWCC 27

Compensation Court of New South Wales

CITATION : Pitacco v Ison & Co Pty Ltd [2002] NSWCC 27 Silvio Pitacco PARTIES : v Ison & Co Pty Ltd MATTER NUMBER(S) : 16869 of 2002 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/05/02 EX TEMPORE JUDGMENT DATE : 05/07/2002

FOR APPLICANT: Mr F Austin instructed by Taylor & Scott appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Wilkens (solicitor) of Moray & Agnew appeared for the respondent.

JUDGMENT: 1. This summons seeks relief in the alternative. The first prayer for relief is that the applicant be granted leave to file an application for determination after 31 March 2002. In the alternative, the worker seeks that the Court "determine" that the application for determination was filed in this matter on 5 March 2002. It appears to me that the first prayer for relief is bad. However, there is merit in the second prayer for relief. On 4 March 2002 the applicant lodged with the Registrar for filing an application for determination in the form of annexure D to the affidavit of Michelle Allard sworn 19 April 2002. Annexure D is a properly completed application for determination. According to annexure B annexed to it was a "certificate of conciliation outcome" bearing date 25 October 2001 signed by Faye Robinson, a conciliator in which it is certified that the conciliation of the dispute was wholly unsuccessful and stating that that "proceedings can now be commenced by the worker before the Compensation Court of New South Wales to determine this dispute". 2. The Registrar, obviously by a clerk, rejected that document for filing on the basis that a certificate of compliance had not been attached to the application for determination. It is common ground that the filing of this application was governed inter alia by Pt 5 r 4C. That rule is in the following form: (1) This rule is made pursuant to s 104 of the 1998 Act. (2) This rule applies to claims for compensation referred to in sections 101, 102 and 103 of the 1998 Act. (3) A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either: (a) a copy of a conciliation certificate issued by the principal conciliator or a conciliation officer pursuant to s 84 indicating that the conciliation was wholly or partially unsuccessful, or (b) a copy of the notification by a conciliation officer under s 95(4) in relation to the dispute which is the subject matter of the proposed proceeding; and/or (c) a certificate of compliance in the form stipulated by sub-rule (6) of this rule certifying that the commencement of such proceedings is not contrary to provisions of section 101, 102 or 103 of the said Act as the case may be. (4) Where the certificate of the Principal Conciliator or conciliation officer or the notification under section 95(4) filed with initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall also file with the initiating process a certificate of compliance in relation to all other elements. (5) Any initiating process not accompanied by such appropriate certificate, certificates and/or notification shall not be accepted for filing. (6) Such certificate of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to a particular matter. (7) Where, leave of the Court having been previously obtained, a party seeks to file an amended application for determination adding an additional party or parties to the current proceedings then the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties. (8) This rule applies in respect of all initiating process presented for filing on or after 11 December 1998. 3. The certificate of conciliation outcome which was annexed to annexure D to the affidavit of Michelle Allard to which I have earlier referred does not identify the nature of the claim that was referred for conciliation. However, the claim made in the application is extremely discrete. It is only a claim for 19.2 per cent binaural loss of hearing, a consequential lump sum pursuant to s 67 and the s 60 expense of supplying and fitting hearing aids. No objection is taken to the fact that a certificate of conciliation outcome annexed to annexure D to Michelle Allard's affidavit does not cover the particular claims made in the application for determination which was sought to be filed on 4 March 2002 and it appears to be highly unlikely that it would be so. It is clear that where the claim is for binaural loss of hearing where the sum sought exceeds the statutory threshold that a claim under s 67 would be automatically involved and it is quite common to find where any loss of hearing exceeds 15 per cent binaural loss that a claim for hearing aids is made. 4. It is clear that the Registrar's clerk rejected the application for determination or refused to pass it under the seal of the court and because there had not been compliance with Pt 5 r 4C(3) par (c). However, there was compliance with Pt 5 r 4C(3) par (a). In those circumstances the Registrar ought to have passed under the seal of court on 4 March 2002 the application for determination which is currently annexure D to the affidavit of Michelle Allard to which I have earlier referred. Pursuant to Pt 31 of r 4 the Court may by order direct a Registrar or any other officer of the court to do or refrain from doing in any proceedings any act relating to the functions which he is authorised to exercise. Although these proceedings have been commenced by summons pursuant to Pt 31 r 4 the application ought to have been made by notice of motion but such procedural irregularities may be excused. 5. I direct the Registrar to pass under the seal of the court the application for determination which is annexure D to the affidavit of Michelle Allard sworn 19 April 2002 which is Exhibit AA before me and to date that application 4 March 2002. Since the default which I have identified is that of the Registrar it is inappropriate for me to make any order against the respondent as to costs. Furthermore, I point out that the applicant has been dilatory in making the current application. Each party will pay his or its own costs of the summons. I direct the Registrar to assign to the application for determination the same plaint number as the plaint number of this summons. Mr F Austin instructed by Taylor & Scott appeared for the applicant. Mr Wilkens (solicitor) of Moray & Agnew appeared for the respondent.