Abreu v Thomas Peacock & Sons Pty Ltd

[2013] HCATrans 217

[2013] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P10 of 2013

B e t w e e n -

OSWALD BRUCE ABREU

Applicant

and

THOMAS PEACOCK & SONS PTY LTD

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 11 SEPTEMBER 2013, AT 12.29 PM

Copyright in the High Court of Australia

MR T. LAMPROPOULOS, SC:   May it please, your Honours, I appear for the applicant.  (instructed by S C Nigam & Co)

MR G.R. HANCY:   May it please the Court, I appear for the respondent.  (instructed by WHL Legal Pty Ltd)

MR LAMPROPOULOS:   If your Honours please, the legal question we seek to argue in this matter concerns the proper interpretation of section 9 of the Limitation Act 2005, and that involves a couple of elements. First of all, it requires a consideration of the meaning of the term “limitation provision” as it is defined in section 9(2). Your Honours will note from the definition in that section that it is not limited to limitation periods as such but extends to provisions that establish, modify or extinguish a cause of action as well as a provision in respect of the limitation or exclusion of liability or the barring of a right of action if not commenced within a particular time limit.

I should say at this stage, your Honours, that the respondent does not dispute that the relevant provisions of the Workers’ Compensation Act do constitute limitation provisions within the meaning of section 9(2), so that first element is accepted. The question then becomes whether or not the application of section 14 of the Limitation Act, which deals with limitation periods generally for personal injury claims, affects the limitation provisions of the Workers’ Compensation Act which deals with of course a particular type of personal injury claim, one involving a claim against an employer. If one goes to section 9(1), it provides that the Limitation Act:

does not affect the operation of a limitation provision in another written law, or anything done under such a provision.

So it requires a consideration, in our submission, of whether and if so in what way if section 14 of the Limitation Act applies how it affects, if at all, the limitation provisions of the Workers’ Compensation Act.

GAGELER J:   Mr Lampropoulos, you really need to grapple with what is wrong with paragraph 29 of the Full Court’s judgment, page 58.

MR LAMPROPOULOS:   Yes, your Honour, I was about to take your Honours to that because the previous paragraph touches upon limitation provision but in relation to paragraph 29 of the Court of Appeal decision, it identifies the critical question and then their Honours say that section 14 of the Limitation Act:

does not ‘affect’ the operation of s 93K(4) of the Workers’ Compensation Act; the two provisions are directed to different ends and operate quite independently. 

Well, in our submission, that does not answer the question as to whether or not the Limitation Act affects the Workers’ Compensation Act.  They can operate quite independently but nonetheless the Limitation Act can affect either the operation of the Workers’ Compensation Act or something done under the Workers’ Compensation Act.  That is the critical issue that has not been addressed in a focused way, in our submission, in the Court of Appeal.

To say, as they do, that they are directed to different ends and operate quite independently, does not, in our submission, answer the question as to whether one affects the other and we say, of course, in this case, it does have that affect because if you look at section 93K of the Workers’ Compensation Act the limitation provisions in that Act in relation to common law actions against employers require workers to go through a series of steps, comply with a series of thresholds within a series of time limits before you come out at section 93K(4) which provides that:

Damages in respect of an injury can only be awarded if –

(a)the worker elects . . . to retain the right to seek the damages; and

(b)      the Director registers the election . . . ; and

(c)      court proceedings seeking the damages are commenced –

within the period of 30 days –

after the Director gives the worker written notice that the Director has registered the election –

Now, it is contemplated in section 93K(4) that after a worker goes through these various processes in a timely manner, he is then given the right to seek damages provided that the proceedings are commenced within 30 days after written notification of the election.  Now, the Workers’ Compensation Act contemplates that that may take more than three years from the date of the accident, and that is what occurred in this case of course before the worker was able to comply with the requirements of the Workers’ Compensation Act.

So this Act, the Workers’ Compensation Act, contemplates that a worker would then be in a position - would be given the opportunity to commence proceedings to enforce the right to claim damages even if three years have elapsed.

GAGELER J:   What do you say to the first sentence of paragraph 34 of the Full Court’s judgment that addresses the point you have just made?

MR LAMPROPOULOS:   Well, that does not, in our submission, address the question of whether or not, as part of this balance, the Limitation Act affects the Workers’ Compensation Act or anything done under the Workers’ Compensation Act.  That is the critical question, in our submission, because you have the general limitation provision in the Limitation Act that applies to all personal injury claims, you have the specific provisions in the Workers’ Compensation Act which contemplates proceedings being commenced outside the three years. There is an apparent conflict between the two. That conflict is resolved by looking at the words of section 9(1) of the Limitation Act, and what that requires a determination of is whether or not the application of section 14 of the Limitation Act would affect the operation of the workers’ compensation provisions or anything done under those provisions.

Now, all these steps have been taken by the worker, culminating in a period of time within which the worker is given the ability to commence proceedings and recover damages – and even though that is outside the three years – but that is then precluded, so that the whole process is of no effect and the worker does not get the right contemplated by section 93K(4) if you apply section 14 of the Limitation Act. 

KEANE J:   But is not the problem with your submission that you are speaking about 93K(4) as if it was conferring a right?  Earlier you put the proposition as damages may be awarded if a condition is complied with.  That is not what 93K(4) says.  It says damages can only be awarded if court proceedings are commenced within.  It is not the provision of a right.  It is a condition on an entitlement.

MR LAMPROPOULOS:   Yes, your Honour, but without compliance with the provisions of the Workers’ Compensation Act the worker cannot commence proceedings and recover damages.  So the ability to commence proceedings and recover damages is given by section 93K.  If you do not comply with that, you cannot recover damages.  If you do comply with that, you are then given the opportunity to commence proceedings and recover damages.

KEANE J:   Well, it seems to me that it is really creating a condition on the court’s power to award damages, so that what you have is section 14 which requires the proceedings be commenced – all proceedings be commenced within a particular time, and 93K(4) which, in relation to particular kinds of proceedings, has another condition, a condition specifically directed to the authority of a court to award damages, so that the plaintiff who is covered by the Workers’ Compensation Act is required to meet two conditions.

MR LAMPROPOULOS:   Well, if the worker is required to meet two conditions, one of them being in section 14, then, in our submission, section 14 affects the operation of the first condition which permits a worker to recover damages if he or she complies with the requirements of the Workers’ Compensation Act.

KEANE J:   Well, I think we are probably getting around in circles because I think we are coming back to your view that 93K(4) is creating an entitlement rather than providing a condition of an entitlement that otherwise exists, that otherwise exists under the law.  This is a further condition upon that entitlement.

MR LAMPROPOULOS:   Well, your Honour, section 93K – and perhaps I should also mention section 93C says:

If this Division applies a court is not to award damages to a person contrary to this Division.

So unless what your Honour described as an entitlement in relation to a right which cannot be exercised because of the effects of the Workers’ Compensation Act or whether it is described in some other way, nonetheless what section 4 does do is give a worker the opportunity to recover damages where otherwise he or she would not.

GAGELER J:   Does your proposition come down to saying where section 93K(4) is complied with, section 14 does not apply?

MR LAMPROPOULOS:   Yes, and that is why the operation of section 9(1), if section 14 would affect the operation of the Workers’ Compensation Act or anything done under that Act ‑ ‑ ‑

GAGELER J:   Does that necessarily involve reading section 93K(4) as granting a permission that extends beyond simply lifting the bar that is imposed by section 93C?

MR LAMPROPOULOS:   In our submission, lifting the bar would be sufficient because before that there is a bar there, the so‑called right to claim damages cannot be exercised. That bar is lifted; the worker then can exercise the right to claim and recover damages, but if you apply section 14 then that is precluded again. So, in our submission, it affects what was done under the Workers’ Compensation Act, both in terms of complying with the procedural and other requirements in a timely manner and the issue of the writ which was purportedly done pursuant to section 93K(4). So in terms of section 9(1), we say that that then affects the operation of 93K(4).

GAGELER J:   Yes.

MR LAMPROPOULOS:   In relation to whether this is a special leave point, your Honours, the Court of Appeal recognises there may be hard cases where the – if you apply section 14:

There may, of course, be hard cases where the limitation period expires before the requirements of s 93K(4) . . . are complied with –

and that appears from paragraph 34 of the Court of Appeal’s reasons for decision.  Our simple submission, your Honours, is if the Court of Appeal decision is right well, so be it, these are hard cases, but if the Court of Appeal decision is wrong these are injustices which will continue unless corrected by this Court.

GAGELER J:   Yes, thank you, Mr Lampropoulos.  We will not need to call on you, Mr Hancy. 

This case turns on the construction and application of two Western Australian statutes.  As the Court of Appeal observed in paragraph 34 of its reasons for judgment, to which we were taken, hard cases like the present are unlikely to arise frequently.  They are also peculiar to Western Australia.  The decision of the Court of Appeal is not attended by significant doubt and does not raise a question of law of sufficient general importance to warrant the grant of special leave to appeal.  The application for special leave to appeal will be dismissed. 

Do you seek costs?

MR HANCY:   Yes, your Honour, the respondent seeks costs.

GAGELER J:   The application is dismissed with costs.

AT 12.46 PM THE MATTER WAS CONCLUDED