Ryde City Council v Cook [1999] NSWCA 380

New South Wales Court of Appeal CITATION : Ryde City Council v Cook [1999] NSWCA 380 FILE NUMBER(S) : CA 41031/98 HEARING DATE(S) : 13 September 1999 JUDGMENT DATE : 15 October 1999

PARTIES : Ryde City Council v Jason Cook JUDGMENT OF : Priestley JA at 1; Meagher JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 18652/97 LOWER COURT JUDICIAL OFFICER : Curtis CCJ

COUNSEL : Appellant: C. Hoeben SC Respondent: J. Wynyard SOLICITORS : Appellant: Pieterse & Pieterse Respondent: Gillis Delaney Brown CATCHWORDS : ss 66, 67 and 92A Workers Compensation Act - application to set aside benefits. ACTS CITED : Workers Compensation Act, 1987, Workcover Legislation (Amendment) Act 1996, DECISION : Summons dismissed with costs.

- 2 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA: 41031/98

PRIESTLEY JA MEAGHER JA DAVIES AJA

Friday, 15 October 1999 RYDE CITY COUNCIL v COOK The trial judge mistakenly calculated benefits under s.66 of the Worker's Compensation Act, from which calculation the appellant Council made application for reconsideration under s.17 of the Act on 23 November 1998, at which time the trial judge amended the benefits in favour of the respondent. On 23 November the appellant also sought to amend the award of benefits on grounds of s.92A - that s.92A of the Act demands a literal interpretation of service of a claim upon the employer from whom the compensation is claimed. The respondent served the employer's insurer. The Council appeals. HELD By Meagher JA, Priestley JA, Davies AJA agreeing: 1. To grant leave would be most unfair to the worker, who was never at any stage alerted to the s.92A issue until 23 November. Common justice demands the worker be aware as early as possible what obstacles are to be raised in his path. 2. The s.92A issue is one to be resolved, but this is not the appropriate case. ORDERS 1. Summons dismissed with costs