New South Wales Court of Appeal CITATION : Lampson (Australia) Pty Ltd v Alistair Anthony Mackay [2004] NSWCA 152 HEARING DATE(S) : 10/5/04 JUDGMENT DATE : 17 May 2004 JUDGMENT OF : Ipp JA at 1; Bryson JA at 2; Stein AJA at 3 DECISION : Summons for leave to appeal is dismissed CATCHWORDS : Application for leave to appeal- dismissal of claimant's motion to amend defence to plead s.151C of Workers Compensation Act 1987- whether failure of claimant to reply to letter seeking admission of liability within seven days sufficent to enliven exceptions provided in s.151C- whether claimant, by filing of defence denying liability and preparation of matter for trial, estopped from amending defence and/or relying on s.151C- failure to offer explanation of delay Workers Compensation Act 1987; LEGISLATION CITED : Workers Compensation Legislation Amendment Act 2001; District Court Rules CASES CITED : Commonwealth v Verwayen [1990] 170 CLR 394; Sydney Ports Corporation v Collins (2003) 56 NSWLR 232 PARTIES : Lampson (Australia) Pty Ltd for the Appellant Alistair Anthony Mackay for the Respondent FILE NUMBER(S) : CA 40401 of 2003 COUNSEL : M J Fordham for the Appellant DJ Russell SC/ LK Crowley for the Respondent SOLICITORS : Hunt & Hunt Lawyers for the Appellant Armstrongs Solicitors for the Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 1437 of 2001 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40401 of 2003 DC 1437 of 2001 Ipp JA Bryson JA Stein AJA 17 May 2004 Lampson (Australia) Pty Ltd v Alistair Anthony Mackay Judgment 1 IPP JA: I agree with Stein AJA. 2 BRYSON JA: I agree with Stein AJA 3 STEIN AJA: Introduction: This is an application for leave to appeal by the claimant Lampson (Australia) Pty Ltd from a decision of Sidis DCJ in the District Court on 17 April 2003. Her Honour dismissed the claimant's notice of motion seeking to amend the defence and strike out the statement of claim of the opponent, Alistair Anthony Mackay. 4 The amendment of the defence sought by the claimant (defendant to the statement of claim) was to plead s 151C of the Workers Compensation Act 1987 (the WC Act). It is common ground that if the claimant was to plead s151 C the opponent plaintiff's statement of claim would be struck out. The provision 5 At the relevant time s151C of the WC Act provided: (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 partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted. Chronology of the facts 6 Some pertinent dates will be helpful to understand what occurred. The opponent was employed by the claimant as a rigger when he was injured on 25 June 2001. On that date the boom of a crane fell on the opponent squashing his left hand. Notice of the injury was given to the employer that same day. Pursuant to s151C (1) the opponent was not entitled to commence proceedings in court for damages until 6 months had passed, viz, 25 December 2001. 7 On 27 November 2001 the Workers Compensation Legislation Amendment Act 2001 came into force. It had the effect of severely curtailing claims for modified common law damages. The legislation affected any claim made after that date. Hence the significance of valid commencement of proceedings prior to that day. 8 On 15 November 2001 the solicitors for the opponent wrote to the claimant a letter, received by it the following day, which provided as follows: We advise we act for Mr Alistair Mackay. We are instructed that Mr Mackay suffered severe injuries to his left hand and fingers on that left hand in the course of his employment with you on 25 June 2001. We are instructed that these injuries occurred as a result of your negligence, particularly in failing to provide him with proper equipment in which to dismantle a crane. His injuries are such that they would entitle him to common law damages for negligence. We ask you within 7 days to admit liability for damages for negligence. If we have not heard from you within 7 days we will assume that no such admission will be forthcoming and we will without any further notice, commence proceedings in the District Court of NSW claiming damages for negligence. 9 The statement of claim was filed at the Newcastle District Court on 23 November 2001, i.e. within the 6 month period referred to in s151C (1). 10 The claimant did not reply to the letter of 15 November 2001. 11 On 23 August 2002, some 10 months after the filing of the statement of claim, the claimant filed a comprehensive notice of grounds of defence. The negligence alleged by the opponent was denied. Contributory negligence was alleged and two statutory defences were pleaded. No defence raising the bar in s151C of the WC Act was pleaded. 12 The matter proceeded to trial and was listed for hearing on 3 April 2003. It appears that on that day the claimant instructed its solicitors to take the point that the proceedings had been commenced invalidly within 6 months of the giving of the notice of injury. Her Honour adjourned the proceedings to enable the claimant to file a notice of motion seeking amendment of its defence. This was filed on 9 April 2003 and sought to amend the defence and, as a consequence, seek to strike out the statement of claim. 13 The notice of motion was accompanied by an affidavit in support by Susan Moran, solicitor for the claimant. The brief affidavit provided no explanation as to the delay of the claimant of more than 16 months in taking the s151C point. 14 The motion was heard on 16 April 2003 and her Honour delivered an ex-tempore decision the next day dismissing the motion with costs. Her Honour found that the failure to respond to the letter of 15 November 2001 constituted conduct on the part of the claimant which amounted to a denial of liability entitling the opponent to commence proceedings within the 6 month period. Second, her Honour found that the claimant was estopped by the principles discussed in Commonwealth v Verwayen [1990] 170 CLR 394. Consideration 15 In Sydney Ports Corporation v Collins (2003) 56 NSWLR 232 Giles JA said in commenting on the strong words in s151C(2): [66] The words "denies all liability in respect of the injury" in s 151C(2)(a) are strong. (With the 2001 amendments they became "wholly denies liability in respect of the injury", although we are concerned with the earlier form of words.) Denial of all liability does not need an express claim by the worker upon the employer – anticipatory rejection of any claim to damages will show that negotiation is unlikely to be fruitful just as much as rejection of a claim once made, if not more so. A denial of liability can be found in conduct as well as words. But the strong words will not be fulfilled by failure to volunteer liability, and are unlikely to be fulfilled by failure to respond to a claim. Silence or equivocation is not denial. There must be true denial of liability. 16 While his Honour's statement was obiter, it is undoubtedly correct. There is simply no way that the claimant's silence in failing to respond to the opponent's solicitors letter can amount to a denial of liability. Not answering the letter cannot be seen as accepting the letter. The failure to volunteer liability in the circumstances of this case cannot be relied upon as a denial of liability. It follows that there was no "true denial of liability" by the employer. 17 However, that is not the end of the matter. The claimant was seeking the indulgence of the court in the amendment of its defence. The amendment was required in order to comply with Pt 9 R 9(2) of the District Court Rules. To obtain the amendment it needed to explain the reason why it had delayed more than 16 months in deciding to raise s151C, particularly because to raise the bar would lead to the striking out of the statement of claim. 18 Not only was no explanation whatever forthcoming in the evidence, no attempt was made from the bar table to satisfactorily inform her Honour why the claimant had waited so long to take the point. Was it an oversight or negligence? Was it deliberate or an attempt to overreach? 19 Counsel appearing on behalf of the claimant before her Honour was delightfully frank. Instructions to take the point were only received around 3 or 4 April 2003. Nothing more was forthcoming. There was in fact no attempt made by the claimant to demonstrate to the court that it was not overreaching. As I have said, no attempt was made to show that there was a bona fide mistake or that the amendment was not a strategy intended to overreach the opponent. 20 Because her Honour concentrated on the arguments about the opponent's solicitors letter and estoppel, she did not specifically deal with the application to amend the defence. 21 Bearing in mind the complete absence of any satisfactory explanation and the Draconic consequence of the amendment, the discretion ought be exercised to refuse the amendment. Certainly, on any re-exercise of the discretion by this court the amendment should be refused in the absence of any explanation being forthcoming. 22 It follows that it would be futile to grant leave to appeal since her Honour was correct to dismiss the motion for amendment. The summons for leave to appeal should be dismissed with costs. 23 I have not dealt with the Verwayen argument because it is unnecessary, suffice to say that an estoppel by representation may have been made out by the opponent. * * * Last Modified: 07/02/2004 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.