STRYKE CORPORATION PTY LIMITED v MISKOVIC [2007] NSWCA 72

New South Wales Court of Appeal

CITATION: STRYKE CORPORATION PTY LIMITED v MISKOVIC [2007] NSWCA 72

HEARING DATE(S): 27 February 2007

JUDGMENT DATE: 2 April 2007

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 10; Santow JA at 19

DECISION: Appeal dismissed with costs.

CATCHWORDS: PROCEDURE – Leave to amend proposed statement of claim under compulsory pre-trial process of s318 of Workplace Injury Management and Workers' Compensation Act 1998 (NSW) ("WIM") – Whether applicable to the leave sought where the amendment was to insert claim for liability for misleading conduct in relation to employment under s53B of the Trade Practices Act – Meaning of the expression "for work injury damages" incorporated in s318(1) and in particular whether a contravention of s53B covered by the words "caused by the negligence or other tort of the employer" – No necessity to consider constitutional question of consistency between s318 and s53B of the Trade Practice Act as s318 WIM not applicable – Otherwise no basis for appellate intervention in relation to exercise and of discretion to grant leave to amend.

Judiciary Act 1903 (Cth) s78A Trade Practices Act 1974 (Cth) s51A, s52, s53B, s82 LEGISLATION CITED: Uniform Civil Procedure Act s64 Workers Compensation Commission Rules 2003 (NSW) Rule 80(1) Workplace Injury Management & Workers Compensation Act 1998 s4, s250, s318

Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Esso Australia Limited v Victorian WorkCover Authority (2000) 1 VR 246 CASES CITED: Gibson v Parkes District Hospital and Another (1991) 26 NSWLR 9 Henville v Walker (2001) 206 CLR 459 Parkdale Custom-built Furniture Pty Ltd v Paxu Pty Ltd (1982) 149 CLR 191 Phillip Morris Limited v Ainley & Inc Nominal Defendant [1975] VR 345 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514