Abnett v Metal Manufacturers Ltd and State Rail Authority of NSW [2002] NSWCC 34

Reported Decision : (2002) 23 NSWCCR 517

Compensation Court of New South Wales

CITATION : Abnett v Metal Manufacturers Ltd and State Rail Authority of NSW [2002] NSWCC 34 Garry S Abnett v PARTIES : Metal Manufacturers Ltd and State Rail Authority of NSW MATTER NUMBER(S) : 16904 of 2002 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 09/05/02 EX TEMPORE JUDGMENT DATE : 05/09/2002

FOR APPLICANT: Mr Wilson instructed by The Chamber Practice Lawyers appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: No appearance by the respondent.

JUDGMENT: 1. The notice of motion currently before me essentially prays that an application for determination which was physically received by the Registrar on 3 April 2002 be given an actual date of filing 27 March 2002. The application for determination was forwarded to the Court via Australia Post. It was sent with a covering letter bearing date 26 March 2002 and an extract from the solicitor's postal book indicates that it was in fact put in the postal system on 26 March 2002. The Evidence Act 1995 contains a Pt 4.3 which relates to "facilitation of proof". That contains s 160 which relates to "postal articles". The section is in the following terms: (1) It is presumed (unless evidence sufficient to raise doubt about presumption is adduced) that a postal article sent by pre-paid post addressed to a person at a specified address in Australia or in an external territory was received at that address on the fourth working day after having been posted. (2) This section does not apply if: (a) The proceeding relates to a contract; and (b) all the parties to the proceeding are parties to the contract; and (c) subsection (1) is inconsistent with a term of the contract. (3) In this section: "working day" means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or a bank holiday in the place to which the postal article was addressed. 2. Assuming that s 160 of the Evidence Act (1995) governs the current situation it can be seen that one must count four working days after Tuesday 26 March 2002 to ascertain when the document ought to have been received. The first of those four days is clearly Wednesday 27 March, the second Thursday 28 March. Friday 29 March was Good Friday, a public holiday, and is not counted. Saturday 30 March is obviously not counted under the section nor is Sunday 31 March which was in fact Easter Sunday. Monday 1 April 2002 was in fact Easter Monday, proclaimed a public holiday. The third day, accordingly, was Tuesday 2 April 2002 and the fourth day, that is the day on which pursuant to s 160 the document ought to have been received, was Wednesday 3 April 2002 which is the day upon which it was actually received. 3. The significance of course of this discussion, is the provisions of the Workers Compensation (General) Regulation 1995, reg 93, which provides that on and from 1 April 2002 each existing claim in respect of which there is no pending application for determination by the Compensation Court is be to be treated as a new claim for the purposes of the Workers Compensation Acts and by dint of the provisions of s 105 of the Workplace Injury Management & Workers Compensation Act 1998, this Court does not have jurisdiction unless the claim was pending in this Court on 1 April 2002. 4. I would be prepared to entertain an argument where an application ought been seen to be pending if it had been received by the Registrar by 31 March 2002 by being placed in the Court's Locked Mail Bag No 15 at the Haymarket in New South Wales by that date. However, no direct evidence has been adduced on that point. One could argue, following upon the decision of the Court of Appeal in Macrae v St Margaret's Private Hospital, that receipt by the Registrar in the Court's mail box at the post office at the Haymarket could be seen as receipt by the Registrar. However, as I said, no direct evidence has been adduced on that point. 5. Furthermore, if the application for determination was physically in the Court's locked mail bag on Sunday 31 March 2002 it would have been collected by the Registrar on Tuesday 2 April 2002 and would have had affixed to it a "received" stamp indicating receipt on 2 April 2002. However, it was not so received. It was only received on 3 April 2002 indicating it was not in the Court's locked mail bag on Tuesday 2 April 2002 and therefore could not have been in the Court's locked mail bag on Sunday 31 March 2002. 6. Accordingly, by operation of reg 93, the applicant's claim against the current respondent, Metal Manufacturers Limited, is deemed to be a "new claim" and is not within the jurisdiction of this Court. I should indicate that Mr Wilson, who appeared for the applicant today and was of great assistance to the Court, indicated that the applicant was not seeking to proceed against the second named respondent, the State Rail Authority of NSW. Mr Wilson also advised me that the relevant claims officer of Metal Manufacturers Limited's insurer consented to the application that has been made to the Court but, of course, parties cannot give to a Court jurisdiction which it does not otherwise possess as Mr Wilson rightly pointed out. 7. Accordingly, the Court has no jurisdiction to entertain the substantive claim made by the worker in the application for determination that was received by the Registrar on 3 April 2002. The motion is dismissed. Mr Wilson instructed by The Chamber Practice Lawyers appeared for the applicant. No appearance for the respondent.