Ockers v Westcliff Colliery trading as South 32 (No 1) [2017] NSWDC 347

District Court New South Wales

Medium Neutral Citation: Ockers v Westcliff Colliery trading as South 32 (No 1) [2017] NSWDC 347 Hearing dates: 23 – 24 November 2017 Date of orders: 24 November 2017 Decision date: 24 November 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: Grant leave to the plaintiff to reopen his case Catchwords: PROCEDURE – District Court Act 1973 – Section 142J Legislation Cited: District Court Act 1973 Category: Procedural and other rulings Parties: Nathan Ockers (Plaintiff) Westcliff Colliery t/as South 32 (Defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr M Joseph SC (Defendant)

Solicitors: Slater & Gordon (Plaintiff) HWL Ebsworth (Defendant) File Number(s): RJ 188/2017 Publication restriction: Nil

Judgment 1. HIS HONOUR: When these proceedings were commenced by a statement of claim filed with on the 19 May 2017, the plaintiff was off work as a result of a problem with his right shoulder, which led to his undergoing operative treatment on 24 February 2017. The statement of claim made a claim for continuing weekly payments of compensation. However, the plaintiff was fortunate enough to be able to return to work at the Westcliff Colliery on 7 November 2017, so that when the hearing commenced the period was closed, so that the claim for weekly payments of compensation is from 9 January 2017 to 6 November 2017 - a period of some ten months. The hearing commenced yesterday, 23 November, and continued for most of today, albeit that for the first half of this morning, I was involved in hearing redemption applications. The case is in the compensation jurisdiction of this court. Section 142J of the District Court Act 1973 provides this: "(1) The following apply in the exercise of the Court's compensation jurisdiction: (a) a decision of the Court in any matter is to be on the real merits and justice of the case, (b) the Court is not bound to follow strict legal precedent, (c) subject to Subdivision 3: (i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and (ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and (iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its compensation jurisdiction, and (iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner." 1. Subsection (2) of the same section provides that the Court can reconsider any matter that has been dealt with by it, when exercising the compensation jurisdiction of the Court, or when reviewing any matter previously dealt with in the Compensation Court of New South Wales before its abolition. 2. The plaintiff is a relatively young man. He, on my calculations, is 45 years old. At the moment, his wife and child are dependant upon him. As I said, he has undergone repair of what appears to be a tear of the supraspinatus tendon of his right shoulder and he is right arm dominant. The finding of the Court on the question of the compensability of the surgery may have long term ramifications for the plaintiff's employment in the coal mining industry, and indeed for doing any other form of heavy work. The decision of the Court relating to the plaintiff's claim is very important to his industrial future. The claim is not simply one concerning ten months' weekly payments of compensation. 3. The issue, as I apprehend it, after the hearing the address for the respondent, is a medico legal one, and I pointed out to the plaintiff's counsel, in my view, a defect or lack of evidence which would enable me to consider finding in the plaintiff's favour. The plaintiff should not be disadvantaged because his lawyers did not foresee a possible hole in the medical evidence that is used in support of his case. It is in the interests of justice and will be fair to both parties to enable the plaintiff to call medical evidence, and to the defendant to call any evidence it wishes to call in response to such medical evidence as the plaintiff may call. 4. I certainly shall reserve the defendant's position on the question of costs. There is, in my view, no basis at all for requiring the defendant to pay the costs incurred by the plaintiff if I grant the plaintiff the leave which the plaintiff seeks, which is to reopen his case and adduce the desired medical evidence, if the plaintiff be able to do so. That itself is another interesting question. For those reasons, I allow the plaintiff leave to reopen his case.