New South Wales Supreme Court CITATION : Davis v Owen t/as Bondi Junction Timber [2002] NSWSC 527 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20727/2001 HEARING DATE(S) : 11 April 2002 JUDGMENT DATE : 14 June 2002 Glen Christopher Davis (Plaintiff) PARTIES : J R Owen t/as Bondi Junction Timber & Hardware (Defendant) JUDGMENT OF : Master Harrison Mr S Ioamnou (Plaintiff) COUNSEL : Mr D Hooke (Defendant) G H Healey & Co - Bondi (Plaintiff) SOLICITORS : Nevill & Edwards (Defendant) CATCHWORDS : Section 151C WCA - notice of claim 6 month period: mandatory or discretionary LEGISLATION CITED : Workers Compensation Act 1987 (as amended) Workers Compensation Legislation Further Amendment Act 2001 CASES CITED : N/A DECISION : (1) The statement of claim is dismissed; (2) The plaintiff is to pay the defendant's costs. - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 14 JUNE 2002 20727/2001 - GLEN CHRISTPHER DAVIS v J R OWEN t/as BONDI JUNCTION TIMBER & HARDWARE JUDGMENT (Section 151C WCA – notice of claim 6 month period: mandatory or discretionary) 1 MASTER: By amended notice of motion filed 11 April 2002 the defendant seeks an order that the proceedings be dismissed for breach of s 151C of the Workers Compensation Act 1987 (as amended) (the Act). The plaintiff relied on the affidavit of Margaret McCue sworn 11 April 2002. The defendant relied on the affidavit of Christopher Michael sworn 16 January 2002. 2 It is alleged that on 26 May 2001 the plaintiff during the course of his employment with the defendant suffered an injury to his right hand while using a circular dock saw [S/C para 3]. The undisputed facts are that on 30 May 2001 the plaintiff forwarded the notice of claim to his employer. On 17 August 2001 the statement of claim was filed. Thus the statement of claim was about 2½ months after the notice of claim was served. The period of 6 months had not elapsed between service of the notice of claim and the commence of court proceedings. 3 Section 151C of the Act provides: "6-months delay before commence of court proceedings against employer for damages (1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer. (2) Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs: (a) the employer denies all liability in respect of the injury, (b) the employer admits all liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted." 4 The defendant submitted that the terms of s 151C of the Act are mandatory and that the plaintiff's proceedings are bad in law, cannot be maintained and should be dismissed. 5 The plaintiff submitted that under s 151C(1) of the Act the plaintiff would not have been entitled to commence court proceedings for common law damages in respect of the injury, until 6 months have elapsed since notice of the injury was given to the employer. The statement of claim could not have been filed until 30 November 2001. However on 26 November 2001 legislative changes were made that meant that to be entitled to non economic damages the plaintiff has to have suffered a 15% total body impairment. Thus, if proceedings were commenced after 26 November 2001 would have the effect of reducing or denying to any potential plaintiffs the remedy of common law damages. Had the solicitor met the terms of s 151C(1) of the Act, and waited for 6 months from 30 May 2001, then the plaintiff lost his entitlement to sue in common law, or else he would have had such a rights curtailed. The plaintiff further submitted that the court had a discretion to permit the proceedings to continue where it is just and reasonable to do so. Further that s 151C is a procedural provision and not substantive. 6 The legislative changes referred to by the plaintiff were introduced by the Workers Compensation Legislation Further Amendment Act 2001 No 94. The amended s 151H(1) provides: "No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%." 7 The Schedule 1.1 amendments, of which s 151H(1) is a part, commenced at 9.00 am on 27 November 2001, being the date the Bill for this Act was introduced into Parliament (as provided by s 2(2)). 8 It is my view that the terms of s 151C(1) "a person … is not entitled to commence court proceedings" is mandatory. There is no discretion to be exercised. The plaintiff submitted that when the insurer ceased making workers compensation payments to the plaintiff, it denied liability and therefore s 151C(1) does not apply. The cessation of workers compensation payments does not amount to a denial that a defendant breach its duty of care and was negligent. 9 As these proceedings were commenced in contravention of s 151C they cannot be maintained. The statement of claim is dismissed. Costs are discretionary. Costs follow the event. The plaintiff is to pay the defendant's costs. 10 The court orders: (1) The statement of claim is dismissed. (2) The plaintiff is to pay the defendant's costs. ********** Last Modified: 06/17/2002 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.