Reported Decision : (2002) 23 NSWCCR 442 Compensation Court of New South Wales CITATION : Central Tablelands County Council v Clow [2002] NSWCC 24 Central Tablelands County Council PARTIES : v Lynette R Clow MATTER NUMBER(S) : 9111 of 1989 JUDGMENT OF: Neilson J at 1 Miscellaneous Matters :- Whether claim an "existing claim" or "new claim". Whether claim is an existing claim matter. Continuing award under s 40 made on 26 September 1990. On 30 June 1999 employer filed application to diminish and/or terminate award (WCA 1987 s 55). Employer's application deemed struck out pursuant to Pt 10 r 4. On 20 March 2002 worker filed application to increase award (WCA 1987 s 55) and seeking lump sums under ss 66 & 67 ("related claims"). Court seized of jurisdiction over this application. CATCHWORDS: On 15 April 2002 employer filed notice of motion seeking to restore its application to the list pursuant to Pt 10 r 4(2). Held: 1. Court has jurisdiction to grant the relief claimed. Farris v CB Richard Ellis (C) Pty Ltd [2002] NSWCC 12 distinguished. 2. Under s 105 of 1998 Act Court has jurisdiction over "existing claim matters" not merely "existing claims". 3. Where one party seeks a review of a current award (such a claim being an "existing claim") the other party's counter application arises "in respect of an existing claim". 4. Semble although matter deemed struck out was restored Court would have jurisdiction to accept a fresh counter application in any event. (This is not stated in judgment but is logical corollary). LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 ss 105, 250 Compensation Court Rules Pt 10 r 4(2) CASES CITED: Farris v CB Richard Ellis (C) Pty Ltd [2002] NSWCC 12 DATES OF HEARING: 30/04/02 EX TEMPORE JUDGMENT DATE : 04/30/2002 FOR APPLICANT: Ms K Sibley instructed by Commins Hendriks appeared for the employer. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Wilson instructed by Whiteley Ironside Shillington appeared for the respondent. JUDGMENT: 1. This is a notice of motion filed by the employer's solicitor to restore to the Court's list two matters which have been deemed to have been struck out pursuant to Pt 10 r 4. On 26 September 1990 his Honour, Judge O'Meally, entered a continuing award in the worker's favour for partial incapacity at the rate of $73.20 per week commencing on that day. Credit was given to the respondent for any overpayments of compensation. Unfortunately, his Honour's reasons for judgment have not yet been transcribed and they need to be ordered. On 30 June 1999 the employer filed an application for determination seeking diminution of the award to NIL per week with effect from 1 July 1997 and termination of the award on 15 June 1998. The last date to service of that application was 30 June 1999 under the then Rule. It is common ground that an affidavit of service or answer was not filed to that application for determination and it was deemed struck out pursuant to Pt 10 r 4 some time after 30 December 1999. That matter bears number 9111/89/1. 2. On 2 October 2001 the worker filed an application of determination which bears number 9111/89/2 which application for determination sought an increase to a maximum continuing award for total incapacity with effect from 25 July 2001 to date and continuing. The last day for service of that application for determination was 2 December 2001 and by operation of the rules the matter was deemed struck out on 2 January 2002. It is in that matter that the notice of motion has been filed, but equally the notice of motion seeks relief in matter 9111/89/1 so I will take the notice of motion as having been filed in each of those matters. 3. On 20 March 2002 the worker filed a further application for determination which bears number 9111/89/3. That application for determination seeks an increase again to a full award for total incapacity with effect from 25 July 2001 to date and continuing as well as a lump sum under s 66 for 30 per cent impairment of the neck and an amount under s 67 for pain and suffering, anxiety and distress resulting from that loss. A general order is also sought under s 60. That claim is otiose because there exists already an award to that effect entered by his Honour, Judge O'Meally, on 26 September 1990 in the original proceedings. 4. The notice of motion before me was filed on 15 April 2002. It seeks that matter no 9111/89/1 be restored to the list and matter no 9111/89/2 be restored to the list and the costs of the motion be costs in the cause. The first thing to note is that the prayer for relief in Matter No 9111/89/2 is otiose because there exists in the Court a valid application for determination seeking the same relief, the 9111/89/3 matter. In effect the employer is merely seeking that its application be restored to the list so that the two matters can be heard together. The worker supports the employer's argument. 5. The words "existing claim" are defined in the Workplace Injury Management & Workers Compensation Act 1998. That definition is: 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). The same section also provides this definition: Existing claim matter means any matter arising under the Workers Compensation Acts in respect of an existing claim. 6. At first blush it might be thought that the application before me must fail for reasons which I gave in Farris v C B Richard Ellis (C) Pty Limited [2002] NSWCC12. However it must be borne in mind that in the 9111/89/3 matter there is before the Court a claim for an increase in the award entered up by Judge O'Meally on 26 September 1990 as well as related claims under s 66 and s 67. S 105 of the 1998 Act makes provision as to the jurisdiction of the Workers Compensation Commission and of this Court. Subsection (4) of that section is as follows: 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 Pt 5 of the 1987 Act. 7. Pt 5 of the 1987 Act relates to common law damages. It is important to note that the provision as to jurisdiction does not give the Court exclusive jurisdiction to hear and determine "all existing claims" but rather "all existing claim matters". There is before the Court an existing claim, that is a claim for the increase in the weekly payments. An existing claim matter is any matter arising under the Workers Compensation Acts "in respect of an existing claim". 8. A matter arising under the Workers Compensation Act would include an application by an employer to terminate or reduce the award which the worker seeks to increase. This is the argument advanced by Ms Sibley for the employer and supported by Mr Wilson for the worker. I accede to that argument. The argument has the advantage of practicality. It would appear to me to be completely impracticable to have the worker's application for an increase of an existing award heard in this Court but require the employer to have its application for termination of the existing award heard in another place. It is in the interests of the State that there be an end to litigation, interest rei publicae ut finis sit litium. That principle is not advanced by having two sets of proceedings in two different places. Clearly the Court has jurisdiction in respect of existing claim matters and once there is an existing claim an employer's counter claim on the same matter is an existing claim matter. 9. Accordingly, I restore to the list application Matter No 9111/89/1. 10. By consent I order employer to pay the applicant's costs of this motion. 11. Certify for counsel on the motion. 12. Matter No 9111/89/1 and Matter No 9111/89/3 are each sent to the bottom of the pending list at Orange. 13. Order that Matter No 9111/89/1 and Matter No 9111/89/3 be heard together. 14. In Matter No 9111/89/1 leave to the respondent worker to file notice of appearance in Court. 15. In Matter No 9111/89/3 order the applicant to file and serve a regular application for determination within 14 days. 16. Leave to respondent to file an answer thereto within 14 days of service of the amended application fro determination. Ms K Sibley instructed by Commins Hendriks appeared for the employer. Mr G Wilson instructed by Whiteley Ironside Shillington 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.