G P & A Sergi v Slavko Jurcevic [1999] NSWCA 254

Reported Decision : 46 NSWLR 672

New South Wales Court of Appeal CITATION : G P & A Sergi v Slavko Jurcevic [1999] NSWCA 254 FILE NUMBER(S) : CA 40740/97 HEARING DATE(S) : 5 July 1999 JUDGMENT DATE : 22 July 1999

PARTIES : G P & A Sergi - Appellants Slavko Jurcevic - Respndent JUDGMENT OF : Beazley JA at 1; Giles JA at 2; Davies AJA at 32

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 4850/94 LOWER COURT JUDICIAL OFFICER : O'Toole CCJ

COUNSEL : G P McNally - Appellants N/A - Respondent SOLICITORS : Hunt & Hunt, Canberra - Appellants N/A - Respondent CATCHWORDS : WORKERS COMPENSATION - review of weekly compensation - application for determination - no answer filed - Pt 11 r 3 of Rules providing for deemed admission of applicant's claim and particulars subject to matter of defence in answer - whether applied to application for review as well as application for compensation (yes) - whether applied if no answer filed as well as if answer filed which did not traverse matter (yes) - construction of rule. WORKERS COMPENSATION - review of weekly compensation - Workers Compensation Act s 55 - whether discretion not to reduce compensation although proof that worker no longer incapacitated - not necessary to decide - worker duly served but did nothing - if discretion, could only have been exercised to reduce compensation - relief should not be refused because worker does nothing. DECISION : Appeal allowed; order below set aside and in lieu thereof it be ordered that the weekly payment of compensation to the respondent be reduced to nil from 1 July 1993. No order as to costs; grant liberty to the appellant to apply by written request to have matter relisted within fourteen days.