MHG Plastic Industries Pty Ltd v Zickar [1999] NSWCA 366

New South Wales Court of Appeal CITATION : MHG Plastic Industries Pty Ltd v Zickar [1999] NSWCA 366 FILE NUMBER(S) : CA 40066/99 HEARING DATE(S) : 15 September 1999 JUDGMENT DATE : 8 October 1999

MHG Plastic Industries Pty Ltd PARTIES : v Darrin Zickar JUDGMENT OF : Mason P at 1; Priestley JA at 28; Stein JA at 29

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : CC 3212/89 LOWER COURT JUDICIAL OFFICER : Geraghty J

COUNSEL : A: SG Campbell, IA Todd R: P Webb QC, W Carney SOLICITORS : A: Curwood & Partners, Sydney R: Lewis & Fawkner, Wollongong CATCHWORDS : WORKERS' COMPENSATION - Worker collapsed at work - Claim for compensation under Workers Compensation Act 1987 s66, s67 - Award of interest on compensation payments pursuant to s19A of Compensation Court Act 1984 - Impact of WorkCover Legislation Amendment Act 1995 - Whether interest had been claimed Workers Compensation Act 1987 ACTS CITED : Compensation Court Act 1984 WorkCover Legislation Amendment Act 1995 CASES CITED: St Vincents Private Hospital v Maher (1996) 13 NSWCCR 118 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40066/99 CC 3212/89

MASON P PRIESTLEY JA STEIN JA

Friday, 8 October 1999

MHG PLASTIC INDUSTRIES PTY LTD v Darrin ZICKAR

JUDGMENT

1 MASON P: The respondent worker collapsed at work on 15 October 1987 after the rupture of a cerebral aneurism. He suffered severe brain damage with permanent consequences. 2 On 17 October 1989 he filed an Application for Determination in the Compensation Court. The details of the application are of relevance to the remaining issue in the appeal and I shall return to them. 3 After much litigation the worker established that he had suffered a personal injury within paragraph (a) of the definition of "injury" in s4 of the Workers Compensation Act 1987 (the 1987 Act) (see Zickar v MHG Plastic Industries Pty Ltd (1996) 187 CLR 310). 4 The orders of the High Court made on 14 November 1996 reversed the decision of the Court of Appeal in MHG Plastic Industries Pty Ltd v Zickar (1994) 34 NSWLR 617, thereby reinstating the award of his Honour Judge Thompson made on 12 September 1991. This was an award for weekly compensation and s60 expenses. Judge Thompson also ordered that the worker have liberty to apply in respect of s66 and s67 subject to a stay of proceedings put in operation pending the appellate proceedings which had obviously been foreshadowed. 5 On 14 August 1997 the parties filed terms of settlement in the Compensation Court. These finalised the worker's entitlement to lump sum compensation under s66 and s67 on the basis of the maximum award then available. Liberty to apply in respect of interest was reserved. 6 That liberty was taken up by notice of motion filed on 17 June 1998 and heard on 12 October 1998. It culminated in orders made by Judge Geraghty on 18 December 1998 in favour of the worker. 7 The employer appeals against the award of interest. The appeal is relevantly limited to a question of law. 8 Section 19 of the Compensation Court Act 1984 gave that Court an unrestricted power to award interest. This was the situation at the time of the injury. Section 19 was repealed by the WorkCover Legislation Amendment Act 1995 (the WorkCover Act) which relevantly commenced on 1 January 1996. 9 In lieu of s19, a new s113 was inserted into the 1987 Act. It restated the Compensation Court's power to award interest for the period before the order for payment, subject to limitations. Section 113(2) relevantly provided: Interest cannot be ordered under this section: (a) on any compensation payable under Division 4 of Part 3, or (b) on any compensation payable under this Act for any period before a claim for the compensation was duly made … .