Faber v Arrow Concrete Pumping Services Pty Ltd [2002] NSWCC 13

Reported Decision : (2002) 23 NSWCCR 401

Compensation Court of New South Wales

CITATION : Faber v Arrow Concrete Pumping Services Pty Ltd [2002] NSWCC 13 Anthony Faber PARTIES : v Arrow Concrete Pumping Services Pty Ltd MATTER NUMBER(S) : 36487 of 2001 JUDGMENT OF: Neilson J at 1 :- Matter struck out under Pt 10 r 4 (failure to file Affidavit of Service or Notice of Appearance or Answer within 3 months of commencement of proceedings). CATCHWORDS: Application to restore to list made before 1 April 2002. Held: Court had jurisidiction to grant relief claimed as there was something "pending" before the Court as at 1 April 2002. Matter remained an existing claim pending before the Court. LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/04/02 EX TEMPORE JUDGMENT DATE : 04/16/2002

FOR APPLICANT: Mr J H Lichtenberger instructed by Warwick Keay & Associates apperared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Ms Rouillon, solicitor of Moray & Agnew Solicitors, appeared for the respondent.

JUDGMENT: 1. This is an application to restore the matter to the list under Pt 10 r 4(2). The relevant facts are that an application for determination was filed on 6 June 2001. On 30 July 2001 Messrs Moray & Agnew wrote to the applicant's solicitors stating, inter alia, this: We advise we have been instructed by Employers Mutual Indemnity (Workers Compensation) Limited, to act on behalf of the respondent in this matter and accordingly have filed an answer. 2. The letter went on to give details of a medical examination arranged for the applicant with Dr Faithfull, a legally qualified medical practitioner. The letter went on to then request a number of particulars. In fact, Messrs Moray & Agnew did not file an answer at all. The matter was accordingly deemed struck out on 6 September 2001. The application to restore the matter to the list was made by notice of motion filed on 26 March 2002. The Registrar endorsed that motion with a return date of 9 April 2001 when the matter came before an Assistant Registrar who stood the matter over for hearing before me today because of the Assistant Registrar's doubts as to whether the Court had jurisdiction to grant the relief claimed. 3. Earlier today in Farris v C B Richard Ellis (C) Pty Ltd I dealt with a similar application where the notice of motion seeking restoration to the list had been filed on 2 April 2002. I held that the court had no jurisdiction to grant the relief claimed. However, the current matter is in a very different position. Here the worker had moved the court prior to 1 April 2002 that the matter be restored to the list. In Farris' case I posed the question whether the court could do anything with Mr Farris' case on 1 April 2001 and pointed out that the court could not do anything as Pt 10 r 4 specifically prevents the making of any order or the like, other than dealing with an application under Pt 10 r 4(2) and such an application was not pending in Farris' case as at 1 April 2002. 4. Here an application under Pt 10 r 4(2) was pending on 1 April 2002 so that the Court could make an order. The application for that order was pending, the Court could make an order restoring the matter to the list and therefore the Court in my view had jurisdiction to grant the relief claimed. The relief claimed is not opposed by the respondent and rightly so, as the applicant finds himself in his current position because of a misrepresentation made by the respondent's solicitors. 5. For those reasons, I restore the matter to the list. Stood over at the top of the Pending List. I order the respondent to pay the applicant's costs of the motion. Certify for Counsel on the motion. I order that matter number 11775 of 2002 be listed for hearing with the current matter and I direct that matter number 11775 of 2002 have the same priority as the current matter. Mr J H Lichtenberger instructed by Warwick Keay & Associates appeared for the applicant. Ms Rouillon, solicitor of Moray & Agnew Solicitors, appeared for the respondent.