Reported Decision : (2002) 23 NSWCCR 701 Compensation Court of New South Wales CITATION : Ding v Electra Lift Co Pty Ltd [2002] NSWCC 35 Xian Ju Ding PARTIES : v Electra Lift Co Pty Ltd MATTER NUMBER(S) : 5490 of 2002 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 02/07/02 EX TEMPORE JUDGMENT DATE : 07/02/2002 FOR APPLICANT: Mr J Lichtenberger instructed by Austin Dunhill Barwick appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos instructed by Vandervords appeared for the respondent (Allianz). Mr Kettle of Messrs Hunt & Hunt appeared for the respondent (GIO). JUDGMENT: 1. This is a motion on notice. Notice of the original motion was filed on 17 May 2002. The substantive relief claimed in the original motion was this: Proceedings in Matter No 5490/02 be struck out due to non-compliance with s 101, s 102 and s 103 of the Act. 2. The only Act referred to in the motion is the Workers Compensation Act 1987 which is mentioned in the intitulement of the notice. However the reference to s 101, s 102 and s 103 is clear reference to those sections of the Workplace Injury Management & Workers Compensation Act 1998. The notice was initially listed for hearing on 7 June 2002 before Assistant Registrar Cox who referred it to me. It initially came before me on 24 June 2002 when Mr Lichtenberger of counsel appeared for the applicant and Mr Alexander Vandervord (solicitor) appeared for the respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited. There was then no appearance by the respondent in the interests of GIO Workers Compensation (NSW) Limited which subsequently filed a notice of appearance. 3. On 24 June 2002 I granted to the applicant an adjournment in order to enable the applicant to serve certain subpoenas for production on both the respondent and its insurance broker. The respondent in due course produced documents to this Court yesterday to which date the motion had been adjourned but the respondent's broker did not produce any documents but the applicant did not seek to enforce the subpoena. The final arguments I heard in this motion yesterday at 4.40 pm when I stood the matter over to give judgment today. 4. On 24 June 2002 I granted leave to Mr Vandervord to file an amended notice of motion but that was only done yesterday when Mr Catsanos of counsel, instructed by Mr Vandervord, filed a manuscript notice of motion, the substantive prayer for relief being this: Proceedings in Matter No 5490/02 be struck out due to non-compliance with s 65 of the Workplace Injury Management Act 1998[sic]. 5. I assume Mr Catsanos meant to refer to the Workplace Injury Management & Workers Compensation Act 1998. During the course of argument I pointed out to Mr Catsanos, as I had to Mr Vandervord, on 24 June 2002 the difficulty with the relief claimed in the motion. If I were to find that at some time 21 days prior to the commencement of the proceedings a claim for compensation had been made then the motion would have to be dismissed. 6. The originating process was filed on 26 February 2002. The originating process claimed weekly payments of compensation, pursuant to s 101 of the 1998 Act as modified by reg 87. A worker cannot commence court proceedings in respect of weekly payments of compensation within 21 days of the making of a claim for such compensation. Therefore if a claim were made sometime prior to 5 February 2002 the motion would have to be dismissed. This initially prompted Mr Catsanos to seek leave to amend the answer filed on 17 May 2002 to add a par 6A as follows: That the Court has no jurisdiction to hear and determine this matter as no claim for compensation was made prior to 1 January 2002. 7. The substance of this application is really about the jurisdiction of this Court. In the initiating process the applicant refers to two separate events. The first was on 9 November 1994 and the second was on 4 December 2001 although the date pleaded for the second injury was 4 December 2000. It is common ground that the second event to which the application for determination was referring was an event on 4 December 2001. 8. It is also common ground, and this is shown up by subsequent pleadings, that the injury of 9 November 1994 occurred when the applicant fell down from a garbage bin leading to a twisting injury to his left foot. There were earlier proceedings in this Court claiming a lump sum under s 66 for loss of efficient use of the applicant's left foot and a consequential lump sum for pain and suffering pursuant to s 67 but those proceedings were discontinued by the applicant on 24 March 1995. Although the date of the injury, 9 November 1994, was pleaded in the originating process, the circumstances of the injury occurring on that day were not pleaded, but they have been subsequently pleaded. In the initiating process the event of 4 December 2001 is thus described: The applicant sprained his right wrist and suffered a sharp pain in the upper back behind the chest while he was lifting the work bench. Due to the nature and conditions of his employment using such force violently, the alveolus pulmonis exploded to let part of the air in the lung leak into the thoracic cavity where the air piled up and pressed lung became smaller and smaller causing his breathing difficulties and lack of oxygen. 9. The nature of the injury alleged was anxiety, depression, dysthymia and the psychological injury. 10. According to the evidence before me the applicant made a complaint to a co-worker, Aaron Cadet, of injuring himself at work on 4 December 2001 when he was lifting a work bench at the end of the work day. On the following day the applicant experienced anterior chest wall tightness, discomfort and severe pain in his left wrist. He went to work on that day and completed his normal work albeit with difficulty. On 6 December 2001 the applicant drove to work but his symptoms deteriorated to the extent that he had to consult a medical practitioner in the afternoon. That medical practitioner was a Dr Tse. Dr Tse referred the applicant to the Royal Prince Alfred Hospital as an emergency and the applicant was admitted to that hospital on that day and remained an in-patient until 17 December 2001. It appears that the applicant had suffered a pneumothorax. 11. On the day of his discharge from hospital the applicant attended upon Dr Ang of Campsie. The applicant had been treated at the Royal Prince Alfred Hospital with some form of morphia to which he was allergic. As a result of the prescription of the morphia-based medicine the applicant developed a rash over his body. That was what sent him to see Dr Ang. On the following day, 18 December 2001, the applicant called the respondent's premises and spoke to the receptionist. The applicant asked to speak to one of the principals of the respondent company. The applicant was told that that person was not at work at that time. The applicant deposed to the fact that he had the intention of discussing the issue of making a work-related injury claim with his employer but did not feel it appropriate to mention that issue to the receptionist. He asked the receptionist to inform the "boss" that the applicant had something important to discuss with him. 12. The boss in another affidavit filed on the applicant's behalf is described as "Paul". When the applicant had not received a telephone call from Paul on 18 December 2001 he phoned the employer's premises on 19 December 2001 and spoke to Aaron Cadet again. This time Mr Cadet was referred to as the applicant's "immediate supervisor". The applicant said that Mr Cadet asked how he was going and the applicant said that he was not very well. The applicant, in the conversation he had with Mr Cadet, said that "I will ask boss Paul do workers compensation." 13. On 2 January 2002 the applicant made a facsimile transmission to his employer. That document is Annexure F to the affidavit of the applicant's solicitor sworn on 18 June 2002 and is also Annexure A to the applicant's affidavit sworn on 25 June 2002. The facsimile transmission is lengthy but refers, inter alia, to the applicant's medical condition, his progress, the fact that he had been certified as unfit for work and that he currently had a certificate of unfitness for work until 11 January 2002. The document also states that the doctor had told the applicant he might be able to return to work "in about a month". The penultimate paragraph of the facsimile transmission says this: I wish to have a face-to-face discussion with you for an hour or one-and-a-half hours. This is because I may not have explained everything clearly although I may have explained something about me in this report. I may request for a claim form, I would appreciate if you could let me know the time and venue for the discussion so that I will be there on time. 14. The lengthy facsimile transmission was to apprise the employer as to what had happened to the applicant and to request a meeting at which the applicant might ask for a workers compensation claim form. On the day of that facsimile transmission the applicant attended upon Dr Jonathan Moore at the Campsie 24 Hour Medical and Dental Centre and obtained a certificate of unfitness for work until 11 January 2002 because of a diagnosis of "post-pleurodesis". Pleurodesis which I understand to be a term synonymous with pneumothorax. Shortly thereafter the applicant consulted solicitors who sent a communication to the respondent. That sets out the worker's name and underneath that the following matter: Date of Injury - 10/1994 (left foot) 4/12/2001 (right lung) Workers Compensation Claim. 15. The solicitors then state that they are instructed to act for Mr Ding in connection with his workers compensation claim. They point out that they were instructed that the applicant told them that he was employed by the respondent at the time of the relevant injuries and goes on to ask for copies of the respective accident reports in relation to the injury, asking for the workers compensation insurer's full name and address and policy number and enclosing the applicant's signed authority to enable the employer to supply to the applicant's solicitors details concerning the applicant. 16. Thereafter there was further correspondence passing between the applicant himself and the employer. On 19 February 2002 the employer wrote to the applicant saying the following: Ding, I have no doubt that your solicitor's advice is in line with the new guidelines recently introduced. We have, as I told you I would, forwarded your claim and report to our insurance broker for delivery to the appropriate insurer. As for your solicitor being puzzled, I think that is fairly normal. I do not know what the last sentence is supposed to mean. 17. A formal claim for worker's compensation, that is filling out a form on insurance company stationery, was not done until 23 March 2002. The applicant submits that a claim for compensation was made some time in December 2001. I pointed out to Mr Lichtenberger of counsel that in the originating process - in the first, second and third amended applications for determination - it was alleged that the claim for compensation was made on 15 February 2002. Mr Lichtenberger rapidly made an amendment to state that the claim for compensation was made in December 2001. 18. S 105 of the 1998 Act relates to the jurisdiction of the Workers Compensation Commission (WC) and of this Court. This section is as follows: (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common Law Remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act. (3) The Commission does not have jurisdiction in respect of matters that the Compensation Court has jurisdiction to examine, hear and determine. (4) Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. (5) Despite section 17(4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to re-consider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. (6) References in this Act to the Commission are, for the purposes of giving effect to subsection (4), to be read as references to the Compensation Court to the extent that the reference is in respect of an existing claim matter. 19. Appropriate definitions are given in s 250 of the same Act. "Existing claim" is defined thus: "Existing claim" means a claim for compensation that is made before the commencement of this section or a related claim that is made or entitled to be made (whether before or after the commencement of this section). " Existing claim matter " is defined thus: "Existing claim matter" means any matter arising under the Workers Compensation Acts in respect of an existing claim. 20. It is to be noted that this Court has jurisdiction not merely regarding existing claims but regarding existing claim matters, which is a broader concept. I have drawn attention to that in Central Tablelands County Council v Clow [2002] NSWCC 24 and Haynes v Haynes [2002] NSWCC 28. The Act does not given jurisdiction to this Court and the WC based on the date of the occurrence of the injury but rather on the date of the making of a claim for compensation. The commencement of s 250 was on 1 January 2002. Accordingly, this Court has jurisdiction where a claim for compensation was made before 1 January 2002 but not where the claim for compensation was made after that time. That also, of course, is subject to regulations made pursuant to Sch 6 Pt 18C of the Workers Compensation Act 1987, under which regulations, which have not been challenged, purport to remove the jurisdiction of this Court unless proceedings had been commenced before 1 April 2002. 21. Accordingly whether this Court has jurisdiction depends on whether the applicant made a claim for compensation about the injury alleged on 4 December 2001 prior to 1 January 2002. Hence one can see Mr Lichtenberger's amending the application for determination to allege the claim for compensation was made in December 2001. S 65 of the 1998 Act applies to the making of a claim for compensation before 1 January 2002 (see s 68A (2)). S 65 is in the following terms: (1) A claim for compensation must be: (a) in writing, and (b) in such form or contain such information as may be prescribed by the regulations or approved by the Authority, and (c) in the case of a claim for weekly payments of compensation - accompanied by a medical certificate that is in or to the effect of the approved form, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in the determination of the claim, and (d) accompanied by such additional medical certificates or other documents as may be prescribed by the regulations, and (e) made in the manner described by section 66. (2) A claim for compensation need not be accompanied by a medical certificate or other document under this section if the medical certificate or document relates to information that is substantially available to the person on whom the claim is made from other appropriate documentation given or served by or on behalf of the claimant. (3) To the extent that information has been furnished or the material provided in the course of the making of a claim for compensation, it is not necessary to furnish that information or provide that material when making any further claim for compensation in respect of the same injury. (4) The medical certificate required to accompany a claim for weekly payments of compensation must (unless the claim is made under section 10, 11 or 12 of the 1987 Act) include a statement of the medical practitioner's opinion (however expressed) concerning the likelihood of the worker's employment being a substantial contributing factor to the injury or whether the worker's condition is consistent with his or her employment being such a factor. (5) If a claim is deficient because subsection (4) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as possible after receiving the deficient claim, then (unless the insurer or self-insurer waives that requirement): (a) the claim is not considered to have been duly made for the purposes of section 93 until subsection (4) is complied with, and (b) court proceedings cannot be commenced in respect of the claim until subsection (4) is complied with. (6) [Relevant only to claims under s 66 and s 67]. (7) Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months of the date of death. (8) [Relevant to death claims only]. (9) [Relevant to death claims only]. (10) [Relevant to claims under s 66 only]. (11) If a claim for compensation and any medical certificate or other document required to accompany the claim are not given or served at the same time, the claim for compensation is taken not to have been made until the day on which the last of those documents is given or served. In that case, all those documents are taken to have accompanied the claim. (12) The failure to make a claim in accordance with subsection (1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause. (13) The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either: (a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or (b) the claim is not made within 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker. (14) The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if the insurer or self-insurer concerned determines to accept the claim outside that period. An insurer or self-insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority. (15) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of subsections (7) and (13) taken to have been received when the worker first became so aware. If death results from an injury and a person who is entitled to claim compensation under this Act in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application in subsections (7) and (13) to a claim by that person, taken to be the date that the person became so aware. (16) [Where two or more people are liable to pay compensation the claim need only be served on one of them]. (17) Where particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of subsections (7) and (13) as the making of a claim for compensation in respect of the injury. (18) In this section, "approved form", in relation to a medical certificate, means a form in or to the effect of: (a) a form approved by the Authority for the purposes of this section or any form previously approved by the Authority for the purposes of this section, or (b) any form previously prescribed by the regulations for the purposes of this section. (19) [Regulations may be made concerning forms]. (20) [Re prescribed claim forms]. 22. S 66 governs the manner of making a claim for compensation and is fairly detailed. 23. The first submission put to me by Mr Lichtenberger is that in interpreting s 250, in particular the definition of existing claim, I should read into the words "claim for compensation" the definition provided in s 4 of the same Act. S 4 gives this definition of "claim": "Claim" means a claim for compensation or work injury damages that a person has made or is entitled to make. Mr Lichtenberger has emphasised the matter "or is entitled to make". If the draftsman of s 250 had intended that the word "claim" used in it should bear the defined meaning given in s 4, the existing claim could have been written thus: Existing claim means a claim that is made before the commencement of this section or a related claim. 24. Clearly, the definition of "existing claim" is not in those terms. In the definition of "existing claim" a dichotomy is drawn between a claim for compensation that is made and the related claim that is made or is entitled to be made. If the first claim for compensation is one that could have been entitled to be made then there would be no need to qualify a related claim indicating that it is one that is entitled to be made. In looking at the definition of "existing claim" it appears to me that I should apply the principal of construction that expressio unius est exclusio alterius because the related claim is qualified as being one that is entitled to be made, but the claim for compensation is not so modified. That interpretation must be excluded. Generally, I do not, and cannot, import the defined meaning of "claim" into s 250. It appears to me that in looking at those two provisions I should apply the principal of construction that generalia specialibus non derogant. 25. S 250 is a specific provision which governs the procedures for claims before and after 1 January 2002 and inter alia governs the jurisdiction of this Court and of the WC. If I were to give "a claim for compensation" the same meaning as "claim" in s 4, I would be authorising a very elastic system for a system which, in my view, was designed to be more rigid. That is so when one considers that it governs where cases can be heard and determined. This is really the same principle that I referred to in Franklins Limited v Richards (2002) 23 NSWCCR 103 at par 16 and in Harder v Waterford Wedgwood Australia Limited [2002] NSWCC 31 at par 18. 26. In the Franklins Limited v Richards I was construing Sch 6 Pt 18C cl 11(2) and in particular the word "pending". At par 16 I said this: Another problem with the construction urged upon me by Mr Barter is that it requires me to use a technical legal word in an Act of Parliament dealing with technical issues (one might say "lawyer's law" as far as jurisdiction goes were the effect on workers and employers not as draconian) in a non-technical way. "Pending" is clearly used technically in par (b). To assign it a non-technical use in par (a) appears to me to be perverse and hardly the intention of Parliament. 27. In Harder v Waterford Wedgwood Australia Limited I said in par 18: Mr Graham urges that I should not interpret either Pt 10 r 4 or reg 93 in such terms as to terminate his client's right to have her case heard and determined in this Court. However, the question here involved is not one in which I am determining whether the applicant's rights have been terminated or otherwise taken away but rather merely one as to in which forum those rights might be determined. The current applicant and many applicants clearly wish their case to be heard and determined in this Court but Parliament has established another body to hear and determine claims in the future. In other words, what I am dealing with here is not a provision which takes away established legal rights or theoretically diminishes them but rather with what may be described, using the language of industrial relations, as a demarcation dispute between a Court and a non-judicial tribunal. 28. Mr Lichtenberger's submissions savoured of the submission as put to me by Mr Graham who appeared for the worker in Harder's case. I cannot accede to Mr Lichtenberger's submission that the definition of existing claim extends to a claim that is entitled to be made but not yet made. For this Court to have jurisdiction there must have been a claim made before 1 January 2002. Mr Lichtenberger has submitted there must be substantial compliance with s 65. I accede to that submission. He cited to me in Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1 and in particular the judgment of Davies AJA. His Honour pointed out that provisions such as the then s 106 E may fall into one of three categories: some provisions require strict compliance, other provisions require substantial compliance and, thirdly, there are stipulations, the total non-compliance with which, will not result in the invalidity of the act done. The question here is whether there was substantial compliance with s 65 prior to 1 January 2002. Mr Lichtenberger submits that the substantial compliance with the statement by the applicant to Mr Aaron Cadet on 19 December 2001 that "I will ask boss Paul do workers compensation". 29. The language used by the applicant indicates a future intention, certainly the future tense was used. Mr Lichtenberger has submitted, quite correctly, that the applicant is a migrant from the People's Republic of China, that is his English is extremely limited, and that can be seen quite frankly from the fact that he can only sign his name in Chinese ideograms and not the Roman alphabet. However, the applicant's subjective intention is not what is important. What is important is what he conveys to the person who is alleged to represent the employer. The representation made to Mr Aaron Cadet can only be described as a statement of intention. That statement of intention of course is reiterated by the applicant himself in his facsimile transmission to the employer on 2 January 2002, in particular in the sentence "I may request for a claim form". Clearly, the first definite document which could be seen to be a claim for compensation is the applicant's solicitor's letter of 7 January 2002 which sets out the name of the applicant, dates of injuries, the nature of the injuries, and the fact that a workers compensation claim was being pressed. 30. I turn now to the various matters that one must consider under s 65. Under s 65 the claim for compensation must be in writing. The oral communication to Aaron Cadet was not in writing. It must be accompanied by a medical certificate that is in or to the effect of the approved form. Though the first medical certificate in evidence before me is the certificate of Dr Jonathan Wall of 2 January 2002 which is not in the approved form and really does not tell anybody anything about the nature of the applicant's alleged injury. 31. The first medical certificate in the approved form is from Dr Ang and bears date 11 January 2002. It is headed "Initial Medical Certificate", states the date of injury as being 4 December 2001, diagnoses a pneumothorax, a left wrist strain and a right shoulder injury, contains a treatment plan, certifies unfitness for work from 6 December 2001 until 25 January 2002, and provides for re-assessment of the worker on 25 January 2002. The statement of the applicant to Mr Aaron Cadet, even if it could be construed as a claim for compensation, needed to be accompanied by a medical certificate because no medical material had been previously supplied to the employer. When one looks at the detailed provisions of s 65, it is impossible to see in the applicant's statement on 19 December 2001 any substantial compliance at all with s 65. As I have previously indicated, the first document where there could be thought to be a substantial compliance might be the solicitor's communication of 7 January 2002 or perhaps even the applicant's lengthy facsimile transmission of 2 January 2002. The only problem is that each of those documents was generated after 31 December 2001. 32. In his submissions Mr Lichtenberger has stated the following: However, s 65(12) provides a discretion to allow non-compliance as follows: "The failure to make a claim in accordance with sub(1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause." so long as a claim in due form is later made (see s 65(13)). Informality or indeed no claim at all is not a bar "to recovery" of compensation. Further, under the law applicable to the compensation provisions, it has long been held that a claim for compensation means any claim made on the employer (Powell v Main Colliery Co (1900) AC 366; Garratt v Tooheys Limited (1949) WCR 80 at 84. As noted in the authoritative text Mills Workers Compensation (NSW) 2nd edition (1979) at p 465 par 372: (a claim) may be made in an informal manner, even orally. In Swinney v Whittle (1926-1927) WCR 66 the remark by the father of the deceased worker: "I suppose that we will get compensation?" was enough. It is not necessary that any amount be specified in the claim: Thomson v Gould & Company Ltd (1910) AC 409 (HL). 33. The problem with submissions of this nature is that here I am not dealing with a bar to the recovery by Mr Ding of workers compensation, rather I am dealing with which body has jurisdiction to determine Mr Ding's claim. Is it this Court or is it the WC? That is really re-iterating the sort of submission that Mr Graham put to me in Harder's case. 34. Furthermore, the submission ignores legal history. One need only consider s 53 of the Workers Compensation Act 1926 which is set out on p 462 and p 463 of Professor Mill's book cited by Mr Lichtenberger to me. S 53 (3) was as follows: The notice may be given orally, or in writing, to the employer or any person designated for the purpose by the employer or any foreman or other official under whose supervision the worker is employed. If there is more than one employer, the notice may be given to any one of such employers. 35. Notice could be given orally under the 1926 Act. The primary provision of s 53 was in s 53 (1) which commenced as follows: Proceedings for the recovery, under this Act, of compensation for an injury shall not be maintainable unless notice of the injury has been given to the employer as soon as practicable after the happening thereof, and before the worker has voluntarily left the employment in which he was at the time of the injury, unless the claim for compensation with respect to such injury has been made within 6 months from the happening of the injury or in the case of death within 6 months from the time of death; There went on to be the usual provisos as to defects, inaccuracies and a failure to make a claim being excused by reason of ignorance, mistake, absence from the State or other reasonable cause. It can be seen by looking at the text of s 53 of the 1926 Act that there were no formal provisions as to the claim for compensation as such. One can therefore understand the learning of the provision set out in Professor Mills' book and cases such as Powell v Main Colliery Co [1900] AC 366 (HL) and Garratt v Tooheys Ltd [1949] WCR 80 at 84. 36. I should indicate that the text of s 53 of the 1926 Act appears to be modelled very very closely on s 14 of the Workmen's Compensation Act 1925 (Imp). One can see, therefore, how the English cases are relevant to the former New South Wales provisions. Clearly the current legislation requires a claim for compensation to be in writing. Prior, at least, to 1987 there was no such requirement. Even the requirement of giving notice of injury did not need to be in writing but clearly that is now also required. I am unable to accept the proposition that there had been substantial compliance with s 65 prior to 1 January 2002. 37. Having said that it is clear that the applicant had in the past made a claim for compensation for the left foot injury of 9 November 1994. Indeed the applicant had commenced proceedings in this Court in 1995 for lump sum compensation under s 66 and s 67 but discontinued them. Insofar as the applicant's claim for weekly payments of compensation might depend upon his left foot injury of 9 November 1994, that is clearly a claim related to the lump sum claim previously made and, indeed, I hazard the observation that it is likely that there was some claim which was paid for a closed period of incapacity in the past. Mr Kettle for the respondent in the interests of GIO Workers Compensation (NSW) Ltd rightly concedes that a claim for compensation had been duly made upon his client prior to 1 January 2002 and that the applicant's claim for weekly payments was a related claim and therefore the further claim, insofar as it related to the injury of 9 November 1994, was within the jurisdiction of this Court, proceedings having been commenced prior to 1 April 2002. 38. I should indicate that in the second amended application for determination filed on 19 March 2001 by the applicant, correctly pleads the facts of the injury of 9 November 1994. In a second amended application for determination filed on 14 May 2002 the applicant adds an allegation that, between 1 January 1992 and 6 December 2001, the nature and conditions of the applicant's employment also contributed to his injury. He alleges also injuries to the right arm, neck, back, left leg and sexual organs. I was told by Mr Lichtenberger from the Bar table, without any objection, that the applicant has available to him evidence that the applicant's left foot problem has been made worse due to his work since the time of the applicant's left foot injury. That appears to me to be a related claim matter for reasons which I gave in Coleman v Denison Hydraulics Australia Pty Limited (2002) 23 NSWCCR 376. 39. Whether the claims for injuries to the right arm, the neck, back and sexual organs are claims related to the applicant's left leg or left foot injury, I do not know. Nor have I heard any submission thereon. It may well be that because of altered gait due to the left foot injury the applicant may have developed problems in the low back. Whether that might create problems in the cervical spine is a matter for the medical experts. Accordingly, part of the current application for determination is within jurisdiction and another part is not. Clearly the lung injury alleged to have occurred on 4 December 2001 is not within jurisdiction because a claim for compensation relating to weekly payments for that injury was not made before 1 January 2002. 40. I believe that in the circumstances the appropriate order is that the applicant file and serve an amended application for determination consonant with these reasons for judgment within 14 days. To ensure that the position is clear I will have this matter mentioned again after my return from circuit and vacation on 5 August 2002. 41. Mr Vandervord, for the respondent in the interests of Allianz, rightly concedes that he has only been partly successful in the motion to strike out the proceedings. Furthermore there is another consideration which I have to bear in mind. The proceedings, as I said, were commenced by an application for determination filed on 26 February 2002. The first amended application for determination was filed on 19 March 2002. On 18 April 2002 the respondent in the interests of Allianz Australia Workers Compensation (NSW) Ltd filed a notice of appearance. On 14 May 2002 the applicant filed a second amended application for determination to which I have already referred. On 17 May 2002 the respondent filed an Answer in the interests of Allianz Australia Workers Compensation (NSW) Ltd. 42. In par 6 of that Answer it was alleged that the applicant had not complied with the provisions of s 102, presumably of the 1998 Act. The respondent sought that the application be struck out with an order for costs pursuant to the provisions of s 116 "of the Act". On the same day the original notice of motion was filed. However, as I have indicated at the commencement of these reasons it was not until yesterday that the real issue was raised and that was the jurisdictional issue. The respondent has been tardy in raising the issue. 43. In the circumstances I order the respondent in the interests of Allianz Workers Compensation (NSW) Ltd to pay the worker's costs of the motion. 44. I certify for counsel on the motion. Mr J Lichtenberger instructed by Austin Dunhill Barwick appeared for the applicant. Mr J Catsanos instructed by Vandervords appeared for the respondent (Allianz). Mr Kettle of Messrs Hunt & Hunt appeared for the respondent (GIO). 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