Lagadinos v Sutro Hookhwa Pty Ltd [1998] NSWCC 3; (1998) 16 NSWCCR 44 (13 February 1998)

[1998] NSWCC 3; (1998) 16 NSWCCR 44

LAGADINOS v SUTRO HOOKHWA PTY LTD

t/as MARRICKVILLE TAXI CENTRE

Compensation Court of New South Wales: Moran J

10 February 1998 (H)

13 February 1998 (J)

Proceedings to obtain compensation - Preliminary requirements - Claim for lump sum compensation - Must be duly made to employer - Made to insurer only - Mandatory requirement not met - Restrictions on commencement of proceedings - Workers Compensation Act 1987, ss92A and 106E

R.F. Driver, for the applicant

A.M. Combe (solicitor), for the respondent

Cur adv vult

1 MORAN J: This is a notice of motion by the respondent under s106E of the Workers Compensation Act 1987 (the Act) to strike out an application for determination issued by the applicant.

2 At first, the application for determination made a claim for weekly payments and s66 lump sums and a lump sum under s67, and s60 expenses. When the motion came before Judge Quirk on 3 February 1997, by consent the matter was stood over. The applicant's solicitors were given leave to file an affidavit by 6 February. The matter was stood over to 10 February when it came before me. That affidavit was not filed.

3 However, before the hearing on 10 February, the respondent filed an amended notice of motion claiming that the application be struck out because of a failure to comply with ss106D, 106E, and 106F of the Act. But at the commencement of the hearing of the motion before me, the applicant, through Mr Driver, withdrew the claim for weekly payments and withdrew the claim for s60 expenses, leaving the claim for lump sums under ss66 and 67.

4 I mentioned the affidavit that was going to be filed but was not filed. I allowed, despite Mr Combe's objections, the applicant's counsel to tender a letter from Employers Mutual Indemnity (Workers Compensation) Ltd of 1 July 1996 to the applicant, and a copy of a letter from the solicitors for the applicant to Employers Mutual Indemnity, dated 20 December 1996.

5 The first letter from the insurer to the applicant referred to the fact that the company had been reviewing his file and it appeared to them that he may be entitled to a lump sum payment for permanent loss resulting from the injury. He was invited to submit medical reports, etc.

6 The applicant's solicitors in their letter of 20 December 1996 to the insurer enclosed copies of a medical report from Dr Conrad, and particulars of the percentages claimed and amounts claimed.

7 On 30 April 1997, the application for determination was filed making the claims that I have mentioned earlier. The respondent filed an answer to the application for determination on 25 July 1997, denying that there was any permanent loss or impairment and denying that the applicant was entitled to any lump sum under s66 of the Act. There was no mention in the respondent's answer about the weekly payments claim which, as I said, was withdrawn anyway.

8 Then on 9 January the first notice of motion was filed seeking an order for the matter to be struck out. It is clear from the matters put before me that there was no claim for compensation for these amounts and percentages claimed under s66 of the Act and for a claim under s67 addressed to the employer which is a requirement in s106E and s92A. As mentioned above the s66 claim was made on the insurer.

9 S92A(1) says that:

The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed.

10 And then subs(3) goes on to say that:

A claim for compensation may be made by serving the claim on an insurer who has indemnified the employer in respect of the claim if [(a), or (b), or (c), or (d), or (e)--being special circumstances which do not apply in this case.]

11 S106E(1) of the Act provides:

A worker cannot commence court proceedings in respect of compensation under section 66 until:

(a) 12 weeks after a claim for compensation is duly made. ...

12 The claim for compensation is duly made if it complies with s92A of the Act.

13 Counsel for the applicant worker said in his submissions that the applicant and his solicitor were misled by the letter of 1 July 1996, inviting the applicant to set out details of his claim under s66 and relies on High Court decisions of Waltons Stores (Interstate) v Maher [1988] HCA 7; (1988) 164 CLR 387, dealing with s54A of the Conveyancing Act 1919, and also Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, dealing with Limitations of Actions Act 1958 (Vic), s5(6). He submitted that there had been a waiver of defence by the conduct of the respondent and the letter of 1 July 1996, and that in the circumstances it was estopped from relying upon s106E of the Act.

14 Later, counsel for the applicant also made some submissions under the Trades Practices Act 1974 (Cth) but withdrew those submissions.

15 I have had the opportunity of considering a number of decisions of this Court, in particular the decision of Chief Judge, Justice Campbell, in the matter of Hayfield v Sydney Ports Pilot Service Pty Ltd [1997] NSWCC 6; (1997) 14 NSWCCR 298. In that matter he referred to the comments made by Kirby P, as he then was, in respect of s48 of the Motor Accidents Act 1988, which prohibits the commencement of the proceedings in certain circumstances.

16 The Chief Judge found that s106E was mandatory and that the discretionary factors upon which Assistant Registrar Cox relied in Hayfield's case were not open to her. He referred to a decision given the day before by his Honour Judge Burke, in the matter of Marques v Ferncon Pty Ltd, NSWCC, No. 3288/96, 6 February 1997, unreported, where he also found that s106E was mandatory.

17 I agree with the decisions made by the Chief Judge and Judge Burke, and I find that, as the applicant did not make his claim for the lump sums on the employer as required under s92A and s106E of the Act, he was not entitled to issue proceedings, and the order I make is that the application for determination be struck out.

[In pars18 - 22 of his reasons for judgment his Honour then made an order for costs not calling for report - Ed]

Orders accordingly

Solicitors for the applicant: De Mestre & Co

Solicitors for the respondent: PW Turk & Associates