NSW Caselaw
Reported Decision : 53 ACSR 422 62 NSWLR 148
New South Wales Court of Appeal
Almario v Allianz Australia Workers Compensation (NSW) Insurance Limited; Almario v Allianz Australia Workers Compensation (NSW) Insurance Limited [2005] NSWCA 19 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 14/02/05
JUDGMENT DATE: 24 February 2005
JUDGMENT OF: Hodgson JA at 1; Ipp JA at 3; Hunt AJA at 48
DECISION: (1) The applications for leave to appeal against the judgments of Balla DCJ and Walmsley DCJ are granted (2) The appeals against the judgment of Balla DCJ and Walmsley DCJ are upheld with costs (3) The orders made by Balla DCJ are set aside; Allianz to pay the costs of the application before her Honour (4) Mr Almario's notice of motion claiming an extension of time in terms of s 151D(2) of the Workers Compensation Act is remitted to the District Court for rehearing (5) The orders made by Walmsley DCJ are set aside and in lieu thereof an order is made dismissing Allianz's application to strike out Mr Almario's statement of claim with costs (6) In respect of both applications for leave to appeal and appeals, Allianz to have certificates under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.
CATCHWORDS: LIMITATION OF ACTIONS - Statutes of limitation - Barring a cause of action or a remedy - When cause of action exists independently of statute, only remedy is barred - STATUTES - Construction - Purposive approach versus textual approach - Purposive approach preferred when it avoids anomalies and gives rise to equitable relief - WORKERS COMPENSATION - Deregistered company - Action brought against insurer under s 601AG of the Corporations Act 2001 (Cth) - Insurer can raise defences that would have been open to the deregistered company (subject to the qualifications attaching to those defences) - Section 151D(2) of the Workers Compensation Act 1987 (NSW). D
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