Kenneth John Minotti v State Rail Authority of NSW [2005] NSWSC 708

New South Wales Supreme Court

CITATION : Kenneth John Minotti v State Rail Authority of NSW [2005] NSWSC 708

HEARING DATE(S) : 15 July 2005

JUDGMENT DATE : 21 July 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The proceedings are dismissed; the plaintiff is to pay the costs of the proceedings (including the notice of motion).

CATCHWORDS : Claim for payment - election to make a claim for compensation or damages - entitlement to summary relief.

Supreme Court Rules 1970, Pt 13 r 5 LEGISLATION CITED : Transport Authorities Act 1980, Schedule 5, cls 2, 5

CASES CITED : Hereward v State Rail Authority of New South Wales (1989) 17 NSWLR 260

Kenneth John Minotti (Plaintiff) PARTIES : State Rail Authority of New South Wales (Defendant)

FILE NUMBER(S) : SC 14882 of 1990

Mr C Hart (Plaintiff) COUNSEL : Mr R Page (Defendant)

Bale Boshev Lawyers (Plaintiff) SOLICITORS : Moroney Betts (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

21 July 2005

14882 of 1990 Kenneth John Minotti v State Rail Authority of New South Wales

JUDGMENT 1 His Honour: The plaintiff was an employee of the defendant. During the course of that employment, he claims to have suffered, inter alia, four injuries. The first took place on 21 August 1984. Thereafter, he claimed to have suffered injuries on 11 September 1984, 27 March 1985 and 10 June 1986. 2 On 21 August 1990, the plaintiff filed a statement of claim in this court (on the last day prior to the expiration of the relevant limitation period for the first accident). The statement of claim propounds a claim for common law damages arising out of the said four accidents. 3 There has been little, if any, prosecution of the proceedings. As a consequence, in 1998 the proceedings were removed from the list of active matters. 4 It appears that in recent times, the condition of the plaintiff may have deteriorated and that his employment with the defendant has ceased. In these circumstances, some interest is now being shown in the proceedings and it is said that the plaintiff desires to have them restored to the list. 5 On 3 February 2005, the defendant filed a notice of motion. It sought to have the proceedings dismissed. The application was made on two bases. Firstly, it is sought to have them summarily dismissed pursuant to Part 13 Rule 5 of the Supreme Court Rules 1970. Secondly, it is sought to have them dismissed for want of prosecution. 6 The notice of motion came on for hearing on 15 July 2005. On that day, the court received evidence and heard argument on the summary dismissal application. The dismissal for want of prosecution application was stood over to abide the result of the summary dismissal application. 7 The only evidence placed before the court on the summary dismissal application is an affidavit sworn by Roger Michael Betts on 31 January 2005. Largely, it is a formal affidavit that annexes a number of documents (Annexures A – M). The plaintiff has not relied on any evidence in opposition to the application. 8 There is abundant authority for the proposition that summary relief is only granted in what may be described as clear cases. The onus rests on the party seeking summary relief to demonstrate an entitlement to it. 9 In support of its application, the defendant looks to the provisions of Schedule 5 of the Transport Authorities Act 1980 (the Act). 10 Clause 2 of the Schedule prescribes a rate of salary where an officer has been incapacitated by injury arising out of and in the course of his employment. Clause 5 contains provisions which confer an entitlement to such a salary (to the exclusion of any right while he remains in employment to compensation or damages) unless a prescribed election is made. The clause is as follows:- 5(1) Where an officer has, pursuant to clause 2, become entitled to payment of salary at a rate ascertained in accordance with that clause, he shall, to the exclusion of any right while he remains in the service of the relevant Authority to compensation or damages against the Authority, continue to be so entitled during incapacity attributable to the injury and while he remains in that service unless he elects to make a claim against the Authority for compensation or damages. (2) Any such election may be made by notice in writing given to the relevant Authority or by the institution of proceedings for the recovery of compensation or damages. (3) Any such election shall be made as soon as practicable after the injury was sustained, but not in any case later than 12 months after the beginning of the first period of incapacity resulting from the injury. (4) Where any such election is made – (a) the officer shall, as from the date of the election, cease to be entitled to payment of the salary at the rate ascertained under clause 2; and (b) any payment made to the officer before the date of the election by way of salary at the rate so ascertained, after making due allowance, in the case where the officer returns to duty before the date of the election, for any salary properly payable to him in respect of the duties of the classification in which he is employed after his return to duty and before the date of the election, shall, to the extent of its amount – (i) be a defence to a claim against the Authority for damages; and (ii) be set off against any sum which becomes payable by the Authority as compensation (including the cost of medical or hospital treatment or ambulance service). 11 Where no election has been made, the law is well settled (Hereward v State Rail Authority of New South Wales (1989) 17 NSWLR 260). For so long as an officer who has become entitled to payments under clause 2 remains in the railway's service, if he does not choose to pursue the alternative of claiming compensation or damages, he has no right to sue his employer for damages in respect of the relevant injury (Hereward p265). 12 During the hearing of the application for summary dismissal, the plaintiff placed only one matter in issue. There was no dispute on matters of law. The matter put in issue was one of fact. It was whether or not it was unarguable to contend that Annexure A to the affidavit of Mr Betts was an election pursuant to clause 5. It was a matter that excited but brief argument. 13 What is contemplated by clause 5 is an election to make a claim against the defendant for workers' compensation or common law damages rather than receive benefits under the Act. The clause further contemplates that any such election may be made by notice in writing given to the employer, or by the institution of proceedings for the recovery of compensation or damages. 14 A copy of the said Annexure A is annexed to and forms part of this judgment. On its face, it is a standard form used, inter alia, by the State Rail Authority of New South Wales. It is addressed to "Compensation Section" and bears the heading "Claim for payment because of incapacity arising out of and in the course of my employment". It is dated 23 August 1984. It has been completed and signed by the plaintiff. It expressly makes a claim for payment from 21 August 1984 under the provisions of, inter alia, Schedule 5 of the Act. 15 At the time of the making of the claim the plaintiff had become entitled to payment of a salary at a rate ascertained in accordance with clause 2. 16 Following the making of that claim, payments were made under Schedule 5 of the Act by the defendant. The payments were received and accepted by the plaintiff. 17 In my view, it is untenable to contend that Annexure A constitutes an election within the meaning of clause 5. it cannot be regarded as an election to make a claim against the defendant for workers' compensation or common law damages. I consider that the defendant has discharged the requisite onus for demonstrating an entitlement for summary dismissal. 18 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings (including the notice of motion). **********