Compensation Court of New South Wales CITATION : Summergreene v NIB health Funds [2002] NSWCC 42 Robyn Joy Summergreene PARTIES : v NIB Health Funds Limited t/as NIB Private Hospital MATTER NUMBER(S) : 50998 of 1998 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 04/03/2002, 05/03/2002 EX TEMPORE JUDGMENT DATE : 03/07/2002 FOR APPLICANT: Mr T R Edwards instructed by R.L. Whyburn & Associates LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Pearce instructed by Hicksons Lawyers JUDGMENT: 1. The matter before the Court is an application by the worker Susan Ainsley for reconsideration. An application for commutation was approved at Tweed Heads on the last day on which such an order could be made; that was, I think, 28 March 2002. Since then the matter has been mentioned in court but it was only on 29 May 2002 that a form of application seeking reconsideration of the commutation orders was made. In effect, in the affidavit which accompanies the application the worker wishes to rely on the fact that she was affected by medication at the time the commutation application was dealt with and to adopt the words of par (6) of her affidavit of 28 May 2002 she believes she was incapable of reaching an informed decision on the spot and in such a pressured environment. I do not for the moment wish to make any comment about her belief. 2. The view to which I have come unaided by the assistance of learned counsel is that the Court no longer has the jurisdiction to entertain the application. I say so because of the provisions of reg 93 of the Workers Compensation General Regulation 1995 and the provisions of s 105 of the Workplace Injury Management Act 1998. Briefly, the latter provision, that is s 105 of the Workplace Injury Management Act 1998 subpar (v) provides: Despite s 17(4) of the Compensation Court Act the Compensation Court does not have jurisdiction to reconsider a matter or to rescind or to amend any decisions previously made or given by the Court in relation to a matter once the matter has become a new claim matter. Reg 93(1) provides: On and from 1 April 2002 each existing claim in respect of which there is no pending application for determination by a Compensation Court is to be treated as a new claim for the purpose of the Workers Compensation Acts (under cl 5 of Pt 18C of Sch 6 to the 1987 Act). 3. It may be noted that in the present case final orders were made on 28 March 2002. Reg 93 subpar (iii) provides a limited power to reconsider a matter "to amend a judgment, award or order of the Compensation Court" within 28 days after the judgment, award or order was made or given. That very limited power is to be contrasted with the width of the power contained in s 17(4) of the Compensation Court Act. 4. The present application was filed on 29 May 2002, well outside the 28 days provided for in reg 93 subpar (iii). Even if it were otherwise, the power in reg 93 seems to me to be circumscribed considerably so that all that may be done pursuant to it is the amendment of a judgment. 5. But for the reasons I have already given it seems to me that the Court no longer has the power to deal with any reconsideration application lodged on behalf of the worker. Because the parties have not had the opportunity to deal with this view I propose to grant liberty to apply in case some argument can be developed or some reason shown as to why the view I have expressed today is wrong or needs modification. 6. The only other matter I wish to say is this: the removal of jurisdiction has been achieved by amendments to the Act passed by the government. The attitude of the Court is not a relevant consideration. The only power the Court has is the power conferred by statute by the government. It seems to me that in the prevailing circumstances that power has been taken away. 7. I propose to make no further order today. 8. In particular there seems to me to be no point in trying to fix a further date for hearing. I grant liberty to apply in case the parties wish to address the jurisdictional question. 9. I direct the matter be relisted on Friday, 19 July 2002. In the absence of any reason appearing in the meantime I will on that day dismiss the present application and order that each party pay its own costs. Finally, I grant liberty to apply in the event that a party wishes to argue the question of jurisdiction. Mr F Curran instructed by Short Flynn & Co appeared for the applicant Mr D Stanton instructed by P W Turk & Associates 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.