Wickham Freight Lines Pty Ltd v Ferguson

(2013) 83 NSWLR 162; [2013] NSWCA 66

NSW Court of Appeal

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Interrogate

Catchwords

1. Private International Law
2. › Choice of law
3. › Lex loci delicti
4. › Substance and procedure distinction
5. › Whether statutory pre-conditions to commencing damages proceedings are substantive or procedural
6. › Accident Compensation Act 1985 (Vic), s 134AB
1. Workers' Compensation
2. › Actions for damages for work-related injury
3. › Statutory limitations on right to recover damages
4. › Serious injury threshold
5. › Pre-conditions to commencement of proceedings
6. › Whether pre-conditions substantive or procedural when applied interstate
7. › Accident Compensation Act 1985 (Vic), s 134AB
1. Practice and Procedure
2. › Striking out statement of claim
3. › Proceedings commenced in contravention of statutory pre-conditions
4. › Whether proceedings of no legal effect
5. › Uniform Civil Procedure Rules 2005, r 14.28

Quick Take

When Victorian law is the lex loci delicti for a work-related injury, the pre-conditions in s 134AB(3) and (4) of the Accident Compensation Act 1985 (Vic) — including the requirement for a determination of degree of impairment and an application under s 134AB(4) — must be complied with before proceedings for damages can be commenced in a NSW court. These provisions are substantive, not procedural, and proceedings commenced without compliance are of no legal effect. Section 134AB(16)(b) does not provide a means to bypass the s 134AB(3) and (4) requirements.