Fraser v Commonwealth Bank [2002] NSWCC 50

Reported Decision : (2002) 23 NSWCCR 745

Compensation Court of New South Wales

CITATION : Fraser v Commonwealth Bank [2002] NSWCC 50 PARTIES : Grant J Fraser Commonwealth Bank of Australia MATTER NUMBER(S) : 59763 of 2001 JUDGMENT OF: Bishop J at 1 CATCHWORDS: Proceedings to Obtain Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 22nd July 2002 DATE OF JUDGMENT: 07/22/2002

FOR APPLICANT: Mr P R Boulten LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Shuttleworth

JUDGMENT: 1. This is a notice of motion by which the applicant seeks to restore to the list an application for determination. The background circumstances are these. The application for determination which claims continuing weekly payments was filed on 8 January 2002. Under Pt 10 r 4, it was then deemed to be struck out 3 months later, that is, on 8 April 2002. 2. In addition, there is with the current proceedings, a file in a matter which was originally a commutation, being matter number 8221 of 2001. It was ordered previously that the two matters be heard together. In the primary matter, that is the application for determination claiming weekly compensation, the Notice of Motion which is being dealt with today was filed by the applicant on 17 June 2002. 3. Tendered in support of the applicant's case Exhibit A was an affidavit from counsel's instructing solicitor referring amongst other things to correspondence between the parties relative to medical examinations. The affidavit went on to indicate that the applicant's legal representatives did not file an affidavit of service within time nor was any Appearance or Answer filed in the appropriate time frame by the respondent 4. In dealing with this application, it is useful at the outset to review a number of decisions made by his Honour Judge Neilson following the the recent extensively amended legislation. 5. His Honour held in these judgments that the deemed striking out of a matter under Pt 10 r 4 constitutes dismissal of the proceedings. His Honour expressed that view in Farris v C V Richard Ellis (2002) NSWCC12. 6. To explain this, it is necessary to set out the provisions of Pt 10 r 4 which are as follows: 1. Where in respect of any proceedings on a claim for compensation: (a) a respondent has not filed a Notice of Appearance or Attendance; and (b) the applicant has not filed an Affidavit of Service of the originating process on that respondent, within 3 months after the date of commencement of the proceedings as against that respondent are deemed to have been struck out, and no further may be taken in those proceedings (other than an application as mentioned is subrule 2) until the proceedings have been restored to the list. 2. The Court may, on an application by a party on terms, restore to the List any proceedings deemed to have been struck out under subrule 1. 7. Continuing the review of the decisions of his Honour Judge Neilson, it follows from this that if a matter was deemed to be struck out under Pt 10 r 4 before 1 April 2002, and there was not pending an application to restore it as at 1 April 2002, then the Court has no jurisdiction to deal with the matter. His Honour expounded that in more detail in Farris's case par (28). In Harder v Waterford Wedgwood (2002) NSWCC31, Neilson J following further argument, confirmed that he adhered to the view that he had expressed in the decision of Farris. 8. Nextly, his Honour noted in Haynes v Haynes (2002) NSWCC28, that there can be exceptions to these general principles because each case has to be decided in the light of its own actual background. His Honour also commented in the Haynes decision that the jurisdiction of the Court is not only over existing claims but over existing claim matters. 9. In considering the Notice of Motion, the applicant's arguments can be summarised in the following way. 10. The Application for Determination was pending on 1 April 2002 because the operation of Pt 10 r 4 meant that it was deemed to be struck out on 8 April 2002. Therefore, as at 1 April 2002, the Court was able to make an order on the issues set out in the Application by way, for example, of terms of settlement or interlocutory directions. This, it was said, made the matter a pending matter within the meaning of that term discussed in Norcal Pty Ltd v D'Amato (1988) 15 NSWLR 376 at 393E. 11. The argument of the applicant's counsel then turned to reg 93. It is necessary to set this out but subparagraph (3) may be excluded as it is not relevant. The Regulation provides as follows: 1. 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 to be treated as a new claim for the purposes of the Workers Compensation Acts (under clause 5 of Part 18C of Schedule 6 of the 1987 Act). 2. An existing claim in respect of which an application for determination by the Compensation Court is pending on 1 April 2002, is to be treated as a new claim for the purposes of the Workers Compensation Acts (under clause 5 Part 18C of Schedule 6 of the 1987 Act); (a) on the day on which the Compensation Court makes a final award or order determining the claim (including a consent award or order), or (b) on the day on which the claim is resolved by an agreement between the parties being registered under s 66A of the 1987 Act. 12. It was argued that reg 93 covers two situations. The first is where there is no claim pending as at 1 April 2002 and the second is where there is a claim so pending. It was argued that reg 93(2) covers the situation where there is at 1 April a pending claim. It was further submitted that Pt 10 r 4 by its operation does not constitute the situation where a final award or order has been made by this Court, as it is a type of order that is capable of being altered. In other words, under subsection (2) of the Rule an application to restore can be made. 13. It was submitted that within the terms of the above quotation from the Norcal decision, that meant that the Court had cognisance of the proceedings. 14. It was further submitted that the operation of Pt 10 r 4 did not constitute a final order as it operated under the Compensation Court Rules and was not, as a result thereof, an order of the Court. No authority was submitted for this proposition and for reasons which will appear, I consider that while the argument seems to me doubtful, it is not necessary to decide it. 15. Neilson J in his judgments, interpreted Pt 10 r 4 according to the applicant's counsel in a way that was either wrong or too narrow. If this argument is correct, then any last minute motion to restore a matter to the list would come under the operation of the discretion built into Pt 10 r 4(2). It was argued that the commutation application simply confirmed together with the application for weekly payments that there was a matter pending as at 1 April 2002. Counsel conceded that there was no way that approval could at this point be given to a commutation. 16. The respondent's position was essentially to leave the matter to the Court. 17. There is no doubt it seems to me that there was a matter pending at 1 April 2002 within the meaning of reg 93. Pt 4 r 10 could only operate one week later. I respectfully agree with Judge Neilson that the effluxion of 3 months in the circumstances cover by Pt 10 r 4 constitutes dismissal of the claim. However, this does not preclude in my opinion the applicant's argument. His Honour seems to me to be saying that there must be in any of these situations, an application for determination pending as at 1 April, and if this does not occur, then the operation of Pt 10 r 4 (1) is inflexible. 18. If Pt 10 r 4 does not operate until 8 April 2002, r 4(2) constitutes a mechanism to bring the application to life again and is in its terms discretionary. For this reason, I do not consider that Pt 10 r 4(1) when it operates, produces a final order or award of the court determining the claim as is required by reg 92, because of the existence of subrule (2). That rule as I have said is discretionary. The interpretation which I am placing on it will not open the floodgates, as Pt 10 r 4 will be redundant shortly because of the government's legislative direction as to the lodgment of new proceedings after 1 April. 19. The exercise of discretion cannot be fettered in futuro. However, any motion to restore a matter to the list filed say in 2003 would it seems to me in the light of Parliament's clearly expressed direction face a huge discretionary hurdle in the shape of delay. The delay here in filing the motion to restore the matter is some 9 weeks. In the light of the legislative changes, the commutation flood and the like, plus the exchanges of correspondence between the parties, I consider it is in the circumstances, reasonable to exercise the Court's discretion in the applicant's favour. 20. The orders I make are these. I restore matter 57963/01 to the List and stand it to the top of the pending list. 21. I direct the respondent to file and serve an Answer in 14 days. 22. As no affidavit of service was filed, the costs of the Notice of Motion should be costs in the cause. 23. I certify that it was appropriate for the applicant to brief counsel on the motion. 24. The commutation application 8221/01 was as I said earlier listed today with the current proceedings. Its present status is not totally clear, but it is in fact redundant. It should, in my opinion, be struck out with no orders as to costs. Mr P R Boulten instructed by Russell McLelland & Brown appeared for the applicant Mr Shuttleworth appeared for the respondent.