Nassim Attileh v State Rail Authority of New South Wales

(2005) 62 NSWLR 439; [2005] NSWCA 64

NSW Court of Appeal

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Interrogate

Catchwords

1. Workers Compensation
2. › Work injury damages
3. › Pre-filing procedures
4. › Application of Chapter 7, Part 2, Division 2 of Workplace Injury Management and Workers Compensation Act 1998 (NSW)
5. › Whether mandatory procedures apply to claims for injuries sustained prior to 30 June 1987
6. › Whether s 259(1) must be read down to exclude pre-1987 injuries
7. › Effect of Schedule 6, Part 18C, cl 8 of Workers Compensation Act 1987 (NSW)
8. › Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 250, 251, 259, 262
9. › Workers Compensation Act 1987 (NSW), Sch 6, Pt 18C, cl 8
1. Statutes
2. › Construction
3. › Retrospective operation
4. › Procedural requirements
5. › Whether procedural provisions apply retrospectively to pre-existing causes of action
6. › Distinction between substantive rights and procedural requirements
7. › Interpretation Act 1987 (NSW), s 33

Quick Take

The mandatory pre-filing procedures in Chapter 7, Part 2, Division 2 of the WIM Act apply to all work injury damages claims commenced after 1 January 2002, regardless of when the injury was sustained. This includes claims for injuries prior to 30 June 1987 that are not subject to the substantive limitations in Part 5 of the WC Act. Claimants with pre-1987 injuries must comply with s 262 (making a claim before commencing proceedings) and other Division 2 requirements, notwithstanding that their claims are not 'new claim matters' within s 250. Whether s 259(1) alone is sufficiently specific to engage Division 2 for such claims remains an open question.