Compensation Court of New South Wales CITATION : Rush v Tenix [2001] NSWCC 105 Colin William Rush PARTIES : v Tenix Properties Pty. Ltd (formerly known as Marra Contracting Pty. Ltd. Baradom Pty. Ltd. (in Liquidation) MATTER NUMBER(S) : 46636 of 1999 JUDGMENT OF: Moran J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/05/01 DATE OF JUDGMENT: 05/07/2001 FOR APPLICANT: Mr R Hanrahan of counsel instructed by Steve Masselos & Co. solicitors FOR FIRST RESPONDENT In the interests of Nem and IGF - Mr M Crimmins Barrister instructed by PW Turk & Associates, Solicitors FAI Traders Insurance Co Ltd - Mr Carr of Curwood & Partners, Solicitors LEGAL REPRESENTATIVES: FAI Workers Compensation NSW Limited - Mr V Jurisich of counsel instructed by Hunt and Hunt Solicitors SECOND RESPONDENT - Mr Loche of John Sharpe, Solicitors JUDGMENT: 1. This is a notice of motion brought by the first respondent in the interests of the previous insurer of the first respondent as it then was, Marrs Contracting Pty Ltd in the interests of the Insurers Guarantee Fund and NEM General Insurance Association Ltd (in liquidation), (IMG) and the motion seeks that the Court make an order that the applicant pay the applicant's costs of that first respondent in that interest pursuant to the provisions of s 112(3) of the Workplace Injury Management Act 1988. That section says: Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for proper compensation is frivolous or vexatious, fradulent or made without justification. The first respondent relies upon that part of the subsection where he says "made without proper justification" . 2. These proceedings were for weekly compensation and lump sum compensation for an injury to the applicant's neck. On 3 July 1988, and/or as a result of the nature and conditions of his employment between 6 June 1984 and 3 July 1988. The insurer mentioned above insured the employer for liability under the Act from 6 June 1984 to 31 December 1985, and in fact was involved in a settlement of a common law action and workers compensation proceedings brought by the applicant against Marrs Contracting in respect of an injury on 24 January 1985, again involving the applicant's crane driving work alleging there was a fracture to his left wrist. 3. I am told that the claim was settled at common law and by agreement following the Supreme Court action. At the request of the employer's insurer, it was also the subject of a consent for redemption including any common law liability in the sum of $30,000. That was in matter number 4669 of 1990, and under the heading of Orders and ..............., par (4) of the application for determination was amended to include any and all other injuries sustained by the respondent arising out of and/or in the course of his employment and/or any journey during the period .......... by the applicant ....................... and par (4) of the short minutes of order noted that the worker undertakes to the employer to execute a common law release if called upon to do so in respect of all injuries the subject of the application for determination, save that of 24 January 1985. 4. It is on that basis that that agreement that the respondent in the interests of I.M.G. submits that the application for compensation against it was made without proper justification. There were a number of letters written by the respondent's solicitors to the applicant and vice versa suggesting that the applicant withdraw the proceedings and also there was a paragraph in the answer filed by the respondent solicitors on 8 September 2000 in par (1L) that the applicant consented to a redemption under s 15 of the 1926 Act in proceedings No 49669 of 1990 and the respondent relied on that redemption as a defence to the present claim. 5. Now, as I said, this present claim was for a neck injury which also it is alleged in the medical reports to have an effect on the applicant's left arm and counsel for the employer drew my attention to Exhibits which were put before his Honour Judge Maguire when he approved of a redemption and commutation between the same parties on 13 March this year. The short minutes of order however amended the claim in respect of the nature and conditions injuries not commencing from 6 June 1984, but that was deleted and commencing from 31 December 1985 until 31 December 1989, when later insurers were on risk. As I understand it - so that any claim in respect of the period 6 June 1984 to 31 December 1985 by nature and conditions of the applicant's employment with the first respondent is not pressed. 6. Mr Hanrahan for the applicant the respondent worker in the motion, points out that the solicitor has to look at the evidence that is available to him and consider the client's situation as to whether or not all injuries should be left in or not and he points out that Dr Chaseling's report which went into evidence before Judge Maguire for the purpose of the approval of the redemption, indicated that the applicant specifically stated to him that the work involved on that particular day, that is in July 1998, when he had the symptoms in his neck was no different to any other day, nor was there anything peculiar or different about the particular crane. He stated to him that work on all cranes is the same, in that he had to look up and down constantly watching the hook going up to clear obstructions, et cetera. 7. Whilst Dr Patrick at first blamed the incident in July 1998 and subsequent work as the cause of the applicant's condition. He did in a later report of May 2000 say at page 4 that: Mr Rush's ongoing symptoms are genuine. I believe....... significantly resulting from the nature and conditions of his work and the work injuries in July 1988 and 1992. 8. Any order I make under s112(3) can only be against the applicant. No order can be made against the applicant's solicitors. After considering all submissions made to me by counsel, I am not satisfied that the proceedings were brought without proper justification based on the evidence in the medical reports. The first claim was in respect of left arm injury and although under the heading of "or all other orders in the short minutes of order" in matter number 4669 of 1990 referring to "all other injuries", I am not satisfied that the employer has made out a case that the proceedings were brought without proper justification and the notice of motion. 9. I order that the costs against the applicant is dismissed. 10. I order the applicant employer to pay the respondent worker's costs of the motion and I certify it appropriate to brief counsel on the motion. Mr R G Hanrahan of counsel appeared for the applicant Mr M T Crimmins of counsel 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.