Bradshaw v Trazmet [2002] NSWCC 1 (29 January 2002)

Last Updated: 12 June 2002

NEW SOUTH WALES COMPENSATION COURT

CITATION: Bradshaw v Trazmet [2002] NSWCC 1


PARTIES:
Daniel Bradshaw
Trazmet (NSW) Pty Limited


CASE NUMBER: 49457 of 2001 of 2002.00


CATCH WORDS: Proceedings to Obtain Compensation


LEGISLATION CITED:


CORAM: Neilson J

DATES OF HEARING: 29/01/02

EX TEMPORE DATE: 29/01/2002


LEGAL REPRESENTATIVES

FOR APPLICANT:
Mr A J Patterson instructed by John Hertz & Associates appeared for the applicant.

FOR RESPONDENT:
Mr W P Kearns SC instructed by Hunt & Hunt appeared for the respondent.
Mr M J Leeming instructed by I.V. Knight, Crown Solicitor, appeared for the WorkCover Authority of New South Wales.



JUDGMENT:

1. On 11 December 2001 this matter was before me in order that I might determine an application for commutation of the employer's liability under the Workers Compensation Act 1987. When I read the application for determination and considered recent legislative developments, I enquired of the parties as to whether I had jurisdiction to entertain an application for commutation. The matter was stood over for hearing to today, the first day of term, in order for me to determine that issue. In the meantime, notices were given to the WorkCover Authority of New South Wales and the Attorney-General of New South Wales, and today, Mr Leeming of counsel, instructed by the Crown Solicitor, has appeared for the WorkCover Authority pursuant to s 106 of the Workplace Injury Management and Workers Compensation Act 1998.

2. The simple fact here is that the application for determination filed by the worker on 15 November 2001, contains claims for lump sum compensation under s 66, lump sum compensation under s 67, a claim under s 60 and the usual ancillary claims for interest and for costs.

3. The first things that have to be considered are the history of and the terms of the now repealed s 51. Immediately prior to the commencement of the Workers Compensation Act 1987, the Workers Compensation Act 1926 made provision for the redemption of weekly payments either in whole or in part. S 15 of that statute was in the following terms:

(1) Subject to this Act, the liability in respect of any weekly payment, may, with the consent of the worker, be redeemed either in whole or in part by the payment of a lump sum, determined by the Court, having regard to any dispute as to liability to pay compensation under this Act, and the injury, age, and occupation of the worker at the time of the occurrence of the injury, as well as to his diminished ability to compete in an open labour market.

(a) Where the Court determines a lump sum under subsection (1) and the worker agrees that payment of the lump sum should also redeem any liability to make a payment under s 10 or s 16 in respect of the injury, payment of the lump sum also redeems any liability to which the agreement of the worker relates.

(b) The consent or agreement of a worker to a redemption under subsection (1) or (1A) may be dispensed with if, in the opinion of the Court:

(a) the worker is unable, by reason of infirmity of mind or body, properly to consent or agree to the redemption; and

(b) the redemption would be in the best interests of the worker.

(2) An agreement as to the redemption by a payment by lump sum shall not, nor shall the payment of the sum payable under the agreement exempt the person by whom the payment is payable from any liability under this Act unless such sum has been determined by the Court in accordance with this Act.

(3) Such lump sum may by agreement or order of the Court be paid to the Board to be invested, applied, paid out or otherwise dealt with as agreed upon or ordered, or, subject to any such agreement or order, as provided by s 57.

The reference to the Board in the last mentioned subsection, is a reference to the State Compensation Board, a former title of the WorkCover Authority of New South Wales. It is noteworthy that s 15 was substantially amended by Act No 79 of 1980. In particular, that Act inserted subsection (1A).

4. There were a number of reasons for the amendments made by Act No 79 of 1980, the Workers Compensation (Amendment) Act 1980. A background to those amendments can be see in such decisions as Tyreel Pastoral Co v Delohery [1970] WCR88, Monarch Insurance Co Limited v The Government Insurance Office of New South Wales [1977] WCR123 and McDonald v Claude Fay Cellars [1979] WCR121. The simple fact is that prior to the amendments made by the Workers Compensation (Amendment) Act 1980, there was no provision that liabilities under s 10 and s 16 of the 1926 Statute could be included in the redemption of the employer’s liability under s 15.

5. It was noted in the Monarch Insurance case that a practice had grown up of including the employer’s future liabilities for compensation under s 10 and s 16 in a redemption application, and that the Commission had condoned that practice by allowing the inclusion in the award of a note to that effect. However, when the matter was directly raised in the Workers Compensation Commission of New South Wales, the predecessor of this Court, (not a more recently created body), the Commission only accepted that s 15 allowed the redemption of the liability to make weekly payments and not the redemption of liability for other entitlements to compensation.

6. It is clear that s 51 of the Workers Compensation Act 1987 is grounded in the verbiage of s 15 of the 1926 Act. S 51, immediately before its repeal, was in the following terms:

51. Exit payments by commutation of weekly payments (see former s 15).

(1) (Repealed)

(2) A liability in respect of any weekly payment of compensation may, with the consent of the worker, be commuted (either in whole or in part) to a lump sum, determined by the Compensation Court, having regard to:

(a) Any dispute as to liability to pay compensation under this Act,

(b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury,

(c) the worker’s diminished ability to compete in an open labour market, and

(d) other benefits that the worker may be entitled to from any other source.

(2A) The Compensation Court is not to determine a lump sum for the purposes of this section unless satisfied that:

(a) the termination of liability concerned is in the best interests of the worker, and

(b) the worker fully understands the effect of the termination of the liability concerned and has received adequate advice as to the consequences of the termination.

(2B) It is not necessary that the worker consent or agree to, or understand the effect of, a termination of liability under this section if the Compensation Court is satisfied that the worker is unable, by reason of infirmity of mind or body, properly to consent or agree to, or to understand the effect of, the termination of liability concerned.

(3) If:

(a) the Compensation Court determines any such lump sum, and

(b) the worker agrees that payment of the lump sum should remove any liability to make a payment under Div 3 or Div 4 in respect of the injury,

(c) (Repealed)

payment of the lump sum removes any liability to which the agreement of the worker relates.
(4) (Repealed)

(5) An agreement as to the commutation of a payment to a lump sum shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the payment is payable from any liability under this section unless the sum has been determined by the Compensation Court in accordance with this Act.

(6) A lump sum made by agreement or order in the Compensation Court be paid to the Authority for the benefit of the worker.
(7) (Repealed)
(8) If a liability in respect of weekly payments of compensation is only partially commuted under this section, the balance of the weekly payments continues to be paid under and subject to this Act.

(9) Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this section or redeemed under s 15 of the former Act (as applied by Sch 6 to this Act) is taken for the purposes of this Act from the 1988 Act and the former Act (as applied by this Act), to be a payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.

Merely considering legal history and the verbiage of the 1926 Act and the eventual verbiage of the 1987 Act, it can be seen that whether the process was called redemption or is called commutation, the primary purpose of the procedure is to change the liability of the employer from the liability to make weekly payments, to the ability to remove that liability by making one lump sum payment.

7. Prior to 1980, although a practice had arisen that the Commission noted that the worker agreed that payment of the lump sum removed any liability under s 10 and s 16 of the former Act, such agreements were of no effect, and it was necessary to give them effect by the enactment of s 15(1A). That regime passed into the 1987 Act. The primary liability to be commuted is the liability to make weekly payments of compensation. If the worker agreed that payment of a lump sum in commutation of the liability to make weekly payments also removed the liability to make payments for hospital, medical and the like expenses or lump sum compensation under s 66 and s 67, that latter liability was removed by payment of the lump sum determined by the Court as the proper lump sum for the removal of the employer’s liability to make weekly payments.

8. Interestingly enough, the 1926 Act spoke of the liability under s 10 and s 16 “being redeemed” but the 1987 statute does not speak of liability under s 60, s 66 and s 67 being “commuted”, rather that the approval of the commutation and agreement of the worker might remove the liability to make payments under, for example, s 60 and s 66 and s 67.

9. The current application for determination was filed, as I said, on 15 November 2001. It recites an injury on 8 October 1999, when the applicant was lifting, pulling and pushing heavy bearers at a baseball stadium at Rooty Hill, when he suffered a right inguinal hernia. Lump sums are claimed under s 66 for 15 per cent loss of efficient use of the right leg “at or above the knee”, 5 per cent loss of efficient use of the left leg “at or above the knee”, 10 per cent loss of efficient use of the penis and a lump sum of $5,000 for pain and suffering pursuant to s 67. The expenses claimed under s 60 are referred to as a “refund to Health Insurance Commission yet to be calculated”.

10. The employer has, unfortunately, not filed a notice of appearance or an answer, but was represented before me on 11 December 2001 by Messrs Hunt & Hunt and was today represented by Mr Kearns SC instructed by Messrs Hunt & Hunt. No doubt the respondent will file an notice of appearance before I finish giving these reasons for judgment. I am not aware of any application for determination having been filed by the employer seeking commutation of its liability prior to 9 am on 27 November 2001.

11. A large number of amendments were made in 2001 to the Workers Compensation Act 1987 and to the Workplace Insurance & Management & Workers Compensation Act 1998. I have only been provided with copies of two Acts of Parliament today. The first Act is the Workers Compensation Legislation Amendment Act 2001, No 61 of 2001. The second is the Workers Compensation Legislation Further Amendment Act 2001 being No 94 of 1996. Act No 61 received the Royal Assent on 17 July 2001. Act No 94 received the Royal Assent on 6 December 2001. Proclamations have been issued indicating that both Acts, subject to their own terms, commenced on 1 January 2002. Act No 61 by Sch 1[5] omits s 51. Sch 1[6] inserts a Div 9 in Pt 3 of the Workers Compensation Act 1987 providing a new mechanism for commutation. Essentially the new regime proposed by Act No 61 is for the registration of commutation agreements by the new Workers Compensation Commission after a cooling off period of 14 days. The regime mandated by Act No 61 was substantially changed by Act No 94. That Act inserts new provisions into Sch 6 Pt 18C. The relevant provision of that Part is cl 11, which is in the following terms:

11. Commutations

(1) Section 51 (Exit payments by commutation of weekly payments) is taken to have been repealed from the commencement of this clause.

(2) Section 51 continues to apply, as if it had not been repealed, to the commutation of a liability if:

(a) an application for a determination under that section in respect of the liability is pending immediately before the commencement of this clause, but only so as to authorise the determination of such an application before 31 March 2002, or

(b) an application for determination of a dispute in respect of the liability is pending before the Compensation Court immediately before the commencement of this clause, but only so as to authorise the commutation of a liability before 31 March 2002.

(3) Except as provided by subclause (2), Division 9 (Commutation of compensation) of Part 3 applies to a commutation of a liability arising in respect of an injury received before or after the commencement of that Division.

(4) A liability may be commuted under Div 9 of Pt 3 even if the Compensation Court refused, before the repeal of s 51, to make a determination under that section or under s 15 of the former Act.

(5) Clauses 6 - 6B of Part 4 of this Schedule do not apply in respect of the commutation or redemption of the liability after the commencement of this clause (except for the purposes of the continued operation of s 51 pursuant to subclause (2)).

Act No 94 also made amendments to what I can refer to as the “new” commutation regime. It inserted s 87E into the Workers Compensation Act 1987, which section is headed “Preconditions to Commutation”. The preconditions are extremely limiting, if I may say so, and perhaps have generated the need for the application that is currently before me. It would appear that since at least 1 January 2002, the availability of commutation is severely curtailed.

12. I return to considering Sch 6 Pt 18C cl 11. It is to be noted that by reason of s 2(2) of Act No 94 that cl 11 commenced at 9 am on 27 November 2001. It is clear therefore from the consideration of cl 11(1) that s 51 is taken to have been repealed at 9 am on 27 November 2001. It is clear from cl 11(3) that that repeal is retrospective and the regime set out by Act No. 61 and Act No 94 with effect from 1 January 2002 introduces a more limited commutation procedure.

13. Section 51 only continues to apply in the two actual situations referred to in cl 11(2). Here, I am concerned only with paragraph (b). That essentially provides that commutation under s 51 is available if an application for determination of a dispute in respect of “the liability” is pending before the Compensation Court immediately before the commencement of this clause, and provided that this Court entertains that application before 31 March 2002.

14. The first argument advanced on behalf of the worker, supported by the employer, is this. By his application for determination filed on 15 November 2001, the worker made claims under s 66, s 67 and s 60. It is argued that that is a liability which can be commuted. I have earlier referred to the history of s 51 and its terms. S 51 is concerned primarily with the commutation of a liability for weekly payments. In the opening lines of subclause (2), there is reference to “the commutation of a liability”. In my view, the only liability that can be commuted under s 51 is a liability for weekly payments. Subclause (b) refers to “an application for determination of a dispute in respect of the liability”. The use of the definite article in my view picks up the use of the earlier mention of “liability”, that is, the commutation of a liability which in fact is a liability for the making of weekly payments.

15. The use of the definite article in subclause (b) qualifying the word “liability” cannot in my view be taken to refer to any liability which would of course include a liability for a death benefit, either a lump sum or a weekly payment. Section 51, does not and never has, as its predecessor also did not, apply to payments in respect of the death of the worker. It has been argued by Mr Kearns SC that in interpreting the provision in such a literal fashion, I am applying a too restrictive interpretation. He has argued that should I so interpret subclause (2) that, even if I had power to approve a lump sum for the commutation employer’s liability to make weekly payments, it would not remove the employer’s liability to make payments for hospital and medical expenses, et cetera, under s 60 nor lump sum compensation under s 66 and s 67 because that liability is not specifically included in subclause (2). I am unable to accede to that argument. Subclause (2) continues the operation of s 51 in its entirety and not merely, for example, s 51(2). The subclause continues the operation of each and every subsection of s 51, in particular, subsection (3).

16. Furthermore, paragraph (2)(b) requires there to be an application for determination of “a dispute” in respect of “the liability”. If “liability” refers to the liability to make weekly payments (which is my view), then there is no “dispute” before me about weekly payments, because there is no claim for weekly payments currently in the application for determination. Before there can be a dispute, there must be a claim. There is no such claim before me.

17. It is partly for that reason and partly for other reasons that the worker sought in the alternative, leave to amend the application for determination to make a claim for weekly payments of compensation. The exact terms of the amendment have not been reduced to writing. However, nothing turns on that point. Mr Kearns SC, for the employer, does consent to that leave being granted. As I said in the course of argument with counsel, I would have no hesitation in allowing that, if the worker really wants to make a claim for weekly payments and has satisfied any necessary legislative provisions that clog his ability to commence proceedings in this Court, but would only allow that amendment to date from today’s date. There would accordingly not have not been before the Court at 9 am on 27 November 2001, a application for determination of a dispute in respect of a liability for weekly payments.

18. The worker and the employer both argue that I should apply the principle of “relation back” and allow the amendment generally to speak from the date of the filing of the originating process, namely, 15 November 2001. In those circumstances, there would be seen to be by way of almost legal fiction, a claim pending before this Court for weekly payments as 9 am on 27 November 2001.

19. The principle of “relation back”, that is, the principle that when a pleading is amended it speaks from the date of its original filing, is of tenuous origin and it is generally invoked where a Limitation Act question arises. A useful starting place is an article “The Rule in Weldon v Neal” by Susan Campbell in (1980) 54ALJ 643. The most recent decision to which I have been referred on this issue is a decision of the Supreme Court of Western Australia in Morgan v Banning (1999) 20WAR 474, to which I was, happily, referred by Mr Leeming for the WorkCover Authority. The leading judgment in that case was given by Wheeler J who looked at the history of the “relation back” principle. At 480, her Honour said:

The argument in the appeal revolved largely around the relationship between the “relation back” rule (which is to the effect that an amendment to a writ or pleading is generally taken to have dated from the date of issue of the writ), the rule in Weldon v Neal [1887] 16QBD 394 (that the court will not permit a “new cause of action” to be added whilst the limitation period has expired) and the discretion of the court pursuant to O 21 r 5(5). Unfortunately, it seems to me that it is necessary to deal with these matters at some length in order to explain the nature of the discretion which the Master had to exercise, and why it is my view that he was incorrectly influenced by what was said to be the respondent’s Limitation Act 1935 (WA) defence.

The “relation back” rule rests on surprisingly slender foundation. The case generally cited as authority for this proposition is Sneade v Wotherton Barytes & Lead Mining Co Ltd [1904] 1KB 295. That was a case in which the claim originally endorsed on the writ exceeded 100, the limit of jurisdiction under the County Courts Act 1888 (UK). The appellant obtained leave for an amendment of the writ, reducing the claim to 24, then sought an order remitting the action to the County Court. The question which arose was whether jurisdiction to remit an action depended upon the action having been originally commenced for an amount not exceeding 100, it having been previously accepted that a reduction of the amount by payment or set off after action could not give jurisdiction to remit. Section 65 of the County Courts Act provided: “Where any action of contract brought in a High Court, the claim endorsed on the writ does not exceed one hundred pounds . . .;” such action could be ordered to be tried in the appropriate court.

Collins M R said in Sneade that:

“. . . the application is not. . .based on the reduction of the claim endorsed on the writ by anything subsequent to action, but on the fact that there has been a substitution in due form of law the claim of 24 for the original claim . . . It appears to me that the writ as amended becomes for this purpose the original commencement of the action, notwithstanding the fact that the writ originally claimed a larger sum”. (Emphasis supplied.)

His Lordship went on to observe that the reason why the amendment required careful consideration was that “except in so far as . . . terms may provide to the contrary, the need to amend involves that the claim as a amended may be treated as if it were the original claim in the action”. He said that the action “has now become” an action for 24. It has been noted that these observations were made in a particular statutory context, removed from the question of the relationship between amendments and questions of limitation of actions. It would appear to me that the words of s 65 may well have permitted remitter of the amended claim, even without any “relation back”.

Her Honour’s consideration of Sneade’s case indicates the slender authority on which the whole principle rests.

20. Her Honour went on to consider certain developments in the Limitation Act context and discussed the cases of Liff v Peasley (1980) 1WLR 781 and Pontin v Wood [1962] 1QB 594. Her Honour then went on to say at 483:

It appears to me that two consequences flow from the proposition that the Limitation Act is concerned with the writ and not with “good or bad endorsements” let alone with statements of claim. First, if the writ when issued, although defective, is not a nullity, and its terms are wide enough to encompass the amendments sought to be made to clarify or particularise or “cure” it, then its seems that no question of limitation arises. Such an action is within time and subsequent steps (even those directed to defects in the original endorsement) are merely steps taken in the validly instituted action with the respect to which it is not necessary to consider limitation questions. However, if it is so irregular that, subsequent to the expiry of the limitation period, the defendant is successful in having it wholly set aside, it will then be too late for the plaintiff to bring a further action.

The second proposition which seems to me to follow is that if the defective endorsement appearing on the writ when issued, is not of a type which is capable of encompassing amendments sought to be made are to the expiry of the limitation period, so the amendments truly “add” an additional and time and barred cause of action (rather than particularising, clarifying or expanding one already instituted) then, whether leave to amend is granted or not, the new action remains time barred. Whatever the rules of court may provide, an action which is in fact instituted out of time is able to be defeated by reliance upon the Limitation Act, which the court has no power to override whether by procedural rule of “relation back” or otherwise.

The clearest observations on this point are those of Toohey J, with whom Deane J agreed, in Wardley Australia Ltd v Western Australia (1992) 17CLR 514 at 559-562, where his Honour rejected the view that Weldon v Neale was no more than “a rule of practice” and expressed the opinion that where an amendment seeks to introduce an “admittedly new cause of action”, a court has no power to ignore any statutory limitation period governing the bringing of that cause of action. Although these remarks were strictly obiter, they appear to me to stem from well understood principles governing the relationship between statutes and rules of court, and I would respectfully adopt them. Those remarks also make sense of the occasional references to the authorities to the “power” rather than the “practice” of the court in permitting amendments after the expiry of limitation periods, including those which appear in Weldon v Neale itself.

There are courts which clearly do have power to permit the addition of a time barred cause of action, but this appears to stem from statutory authority: in New South Wales, see Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; and as to the Federal Court, s 59(2B) of the Federal Court Act 1974 (Cth).

21. It was to the decision in Proctor v Jetway Aviation Pty Ltd that I was referred by Mr Kearns SC. However, it is clear that the statutory warrant for the use of the “relation back” doctrine is the Supreme Court Act 1970 Section 6, which provides:

Inconsistency with Rules:

Any Act in force immediately before the commencement of this Act which is inconsistent with the rules shall be superseded to the extent of such inconsistency and while such inconsistency continues to exist.

Of course, the Limitation Act in this State is the Limitation Act 1969 which predated the Supreme Court Act 1970 which only came into force on 1 July 1972.

22. In Morgan v Banning, Owen J makes, again the salient point that the “relation back” doctrine cannot be used to defeat the terms of a statute such as a Limitation Act. At 476, his Honour said:

The rules and practices of the court that relate to limitation matters must be seen within the statutory context. There is no inherent jurisdiction residing in the court effectively to circumvent the statute. But once it is appreciated that the issue of the writ, rather than the later proceedings, conditions the application of limitation matters some of the difficulties subside. For example, the renewal of validity of a writ under O 7 r 1(2) after the expiration of the limitation period is unobjectionable because from the date of the issue of the writ, the limitation period has ceased to run.

23. The rules of this Court relating to amendment, namely those contained in CCR Pt 15, do not say anything specifically about the application of the “relation back” principle. However, there is some significance in certain provisions of the Rules. Pursuant to Pt 6, r 13(3) where a party is added to proceedings after the initial commencement of proceedings, those proceedings are deemed to have commenced against the added party only from the date of the amendment of the originating process which joined that party to proceedings.

24. Even if the Rules of Court contained a general provision applying the “relation back” principle, or even if I applied that principle in construing those rules, the problem which faces me is whether that principle can be used to overcome a statutory provision, namely, Sch 6 Pt 18C cl 11(2)(b). The first thing to note, of course, are the terms of the Compensation Court Act 1984. S 43 of that Act gives the Court a general rule making power. However, there is a limitation on that rule making power. That limitation is contained in s 43(4) which provides:

If a rule under this section is inconsistent with a provision of the Workers Compensation Acts or of a regulation under either of those Acts, that provision shall prevail to the extent of any inconsistency.

The term “Workers Compensation Acts” is defined in s 3 as meaning the Workers Compensation Act 1987 and the Workplace Injury & Management and Workers Compensation Act 1998 and one can add “as they have been amended from time to time”.

25. In Morgan v Banning both Owen and Wheeler JJ make the point that the “relation back” principle cannot be applied to overcome the terms of a statute. I should add that Ipp J concurred in the reasoning of Wheeler J. The same principle applies to this Court’s rules and the Workers Compensation Act 1987 by reason of s 43(4) of the Compensation Court Act 1984. Paragraph 11(2) requires, in my view, that as a 9 am on 27 November 2001, there was pending before this Court an application for determination of a dispute in respect of weekly payments which is the only primary liability that can be commuted. In saying “primary liability” I probably am in error, as it is the only liability that can be commuted when one considers the terms of s 51. If the liability for weekly payments is commuted and the worker gives his consent to that lump sum also removing liability, for example under s 60 and s 66 and s 67, that liability is removed. S 51(3) appears to me to validate an agreement which would be otherwise invalid because of the general contracting out provisions: Workplace Injury Management and Workers Compensation Act, 1998 section 234. Of course, a worker may not give his consent to any lump sum, determined as being appropriate to commute a liability to make weekly payments, removing liability under s 66 or s 67. Such a commutation is still wholly valid. The worker would still have his rights to pursue his other benefits under the Act but no further entitlement to receive weekly payments.

26. It appears to me therefore that the relief of commutation under s 51 (now repealed) is no longer available to the employer and the worker in these proceedings and that this court cannot entertain an application for such relief.

27. For those reasons:

1. I refuse leave to the applicant to amend the application for determination to make a claim for weekly payments at this time. In making that order, I again reiterate what I said earlier in these reasons, that if the worker really has a claim for weekly payments, I would readily grant that amendment, but taking it only from today’s date, provided that the worker establishes that he has complied with any necessary legislative provisions that remain before he can make an application for weekly payments to this Court. It appears from my reading of Act No 61 that s 101 of the Workplace Injury Management and Workers Compensation Act 1998 still applies to the payment of weekly payments, although Act No 94 contains a further provision inserted into Sch 6 Pt 18C as cl 13, which provides that the Regulations may make provision for or with respect to “disapplying or modifying” the application or operation of any of the provisions of Divs 3 - 5 of Pt 2 of ch 4 of the 1998 Act in respect of existing claims or any class of existing claims. It may be that such regulations have been made. If they have been made, they have not yet been drawn to my attention by the parties before me or by the provision to me of any Government Gazette. However, as the matter currently stands, the application for leave to amend is refused.

2. Application to consider a commutation application is refused.

3. By consent, the outstanding claims between the applicant and the respondent are stood over to the top of the pending list.

4. By consent, I order the respondent to pay all the applicant’s costs incurred in relation to the matters that I have dealt with today, in any event.
Mr A J Patterson instructed by John Hertz & Associates appeared for the applicant.
Mr W P Kearns SC instructed by Hunt & Hunt appeared for the respondent.
Mr M J Leeming instructed by I.V. Knight, Crown Solicitor, appeared for the WorkCover Authority of New South Wales.