Acebrook Corporation Pty Ltd v McEwan - [2014] WASCA 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ACEBROOK CORPORATION PTY LTD -v- McEWAN [2014] WASCA 162

CORAM: McLURE P
NEWNES JA
EDELMAN J

HEARD: 18 JUNE 2014

DELIVERED : 2 SEPTEMBER 2014

FILE NO/S: CACV 113 of 2013

BETWEEN: ACEBROOK CORPORATION PTY LTD
First Appellant
INSURANCE AUSTRALIA LTD t/as CGU WORKERS COMPENSATION
Second Appellant
AND
KELLY ANNE McEWAN
First Respondent
DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :McEWAN -v- DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE [2013] WASC 355
File No  :CIV 1263 of 2012

Catchwords:

Workers' compensation - Extension of termination day - Workers' Compensation and Injury Management Act 1981 (WA), s 93M(6) - Calculation of 'last day of the period of one year after' termination day - Interpretation Act 1984 (WA), s 61(1)(b), s 62(3)

Legislation:

Interpretation Act 1984 (WA), s 61(1)(b), s 62(3)
Workers' Compensation and Injury Management Act 1981 (WA), s 93M(1),(4), (6)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant              :     Mr G R Hancy
Second Appellant          :     Mr G R Hancy
First Respondent           :     Mr M A Tedeschi
Second Respondent       :     Not applicable

Solicitors:

First Appellant              :     SRB Legal
Second Appellant          :     SRB Legal
First Respondent           :     Waterside Legal
Second Respondent       :     Not applicable

Case(s) referred to in judgment(s):

Nil

McLURE P: I agree with Newnes JA and Edelman J.
NEWNES JA: This is an appeal from a decision of Kenneth Martin J, who ordered that a writ of certiorari be issued for the purpose of quashing a decision of the delegate of the second respondent (the Director) of 14 July 2011. By that decision, the delegate refused an application by the first respondent for an extension of the date by which the first respondent was required under s 93K of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) to elect to retain the right to seek common law damages.
The appeal turns on whether the extension sought by the first respondent exceeded the maximum period permitted under the Act.

Background

The first respondent was injured on 18 May 2009 when she fell off or through a roof while employed by the first appellant. An unsigned claim form for weekly compensation under the Act was lodged on behalf of the respondent on 25 May 2009. A signed claim form was submitted on 29 June 2009 and the first respondent thereafter received weekly compensation payments under the Act.
The respondent also wished, however, to keep alive a right to claim damages in respect of her injuries.
Pursuant to s 93K of the Act, damages in respect of an injury can only be awarded if, among other things, the worker elects in the prescribed manner to retain the right to seek damages and the Director registers the election: s 93K(4). Where (as in this case) a claim has been made for compensation by way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASCA 162
Decision Date: 2 SEPTEMBER 2014

CaseChat Overview and Summary

Acebrook Corporation Pty Ltd v McEwan is a case involving workers' compensation and the interpretation of statutory provisions. The case was heard by the court of appeal and revolved around the application for an extension of the termination day under section 93K of the Workers' Compensation and Injury Management Act 1981 (WA). The appellants, Acebrook Corporation Pty Ltd, sought an extension of time to make an election to retain the right to claim damages. The Director of the second respondent, however, refused the application, considering that the extension would exceed the maximum period permitted under the Act. The first respondent challenged this decision, and the primary judge ordered that a writ of certiorari issue to quash the decision of the Director. The appellants appealed against this order, arguing that the Director had correctly refused the extension of time. The court found in favour of the appellants, setting aside the orders of the primary judge. The case raised issues regarding the interpretation of the relevant statutory provisions, specifically the calculation of the 'last day of the period of one year after' the termination day, as well as the consequences of the Director's decision on the validity of the first respondent's election.

The legal issues in this case primarily centred on the interpretation of the Workers' Compensation and Injury Management Act 1981 (WA) and the Interpretation Act 1984 (WA). The central issue was the calculation of the 'last day of the period of one year after' the termination day under section 93M(6) of the Act, and whether the Director had correctly refused the extension of time sought by the first respondent. Another issue was the impact of the Director's decision on the validity of the first respondent's election. The court had to determine whether the Director's refusal to register the first respondent's election was justified and whether the primary judge's order to issue a writ of certiorari was appropriate. The case also involved the consideration of costs, as the first respondent contended that the appellants were not entitled to their costs despite being successful on the appeal.

The court found that the Director had correctly refused the extension of time sought by the first respondent, for the reason he gave. The court held that the primary judge had erred in ordering that a writ of certiorari issue to quash the decision of the Director. The court set aside the orders of the primary judge and ordered that the question of costs be dealt with on the papers. The court found that the appeal was not hypothetical, as the Director had not extended the termination day at the time of the hearing of the appeal. The court also found that the first respondent's solicitors had not informed the Director of the appeal, and that the registration of the first respondent's election was not relevant to the outcome of the appeal. The court concluded that the appellants were entitled to their costs, as they were successful on the appeal and the first respondent had not demonstrated any grounds for refusing to award costs.

In conclusion, the court found in favour of the appellants in Acebrook Corporation Pty Ltd v McEwan and set aside the orders of the primary judge. The court held that the Director had correctly refused the extension of time sought by the first respondent and that the primary judge had erred in ordering that a writ of certiorari issue to quash the decision of the Director. The court also found that the appellants were entitled to their costs, as they were successful on the appeal. The case highlights the importance of proper interpretation of statutory provisions and the consequences of the Director's decisions on the validity of workers' compensation claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 2 September 2014, this court allowed an appeal by the appellants against an order of Kenneth Martin J that a writ of certiorari issue to quash a decision of a delegate of the second respondent (the Director) under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act): Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162. The Director, by his delegate, had refused an application by the first respondent for an extension of time to 30 June 2011 to make an election to retain the right to claim damages under s 93K of the Act. He considered that the extension of time sought by the first respondent would exceed the maximum period permitted under the Act for the election to be made. The Director had therefore declined to register the first respondent's election as it was out of time. We found that the Director had correctly refused the extension of time, for the reason he gave, and that the primary judge had erred in ordering that a writ of certiorari issue to quash the decision. We set aside the orders of the primary judge. It was ordered that the question of costs be dealt with on the papers. Both sides have filed written submissions on costs, in each case supported by an affidavit. The first respondent contends that notwithstanding the appellants were successful on the appeal, they are not entitled to their costs. Counsel for the first respondent submitted, in effect, that the appeal was unnecessary because the question it raised was hypothetical. It was hypothetical because, on 30 May 2014, some 19 days before the hearing of the appeal, the Director had extended the termination day to 30 June 2011 and registered the first respondent's election. It was submitted that in those circumstances the appeal served no purpose as any subsequent decision of this court to set aside the order of the primary judge would not affect the validity of the registration of the first respondent's election. The appellants should not therefore have pursued the appeal. The affidavits of the parties explain the circumstances in which the registration of the first respondent's election came about. The relevant events were as follows. On 26 September 2013, following the delivery of his reasons for decision, the primary judge made an oral order that a writ of certiorari issue for the purpose of quashing the decision of the Director. For reasons which are not apparent, it seems the order was not settled until 4 November 2013. In the meantime, on 10 October 2013, the appellants had commenced the appeal. The appeal notice was served on the first respondent's solicitors on 16 October 2013. The appellants' case was filed on 14 November 2013 and the first respondent's answer was due to be filed by 9 December 2013. It was in fact filed on 6 December 2013. On 4 December 2013, upon receipt of the settled order, the first respondent's solicitors wrote to the Director enclosing a copy of the order and asking that the first respondent's election be registered. Remarkably, the first respondent's solicitors did not mention in the letter that an appeal had been commenced. Nor did the first respondent's solicitors inform the Director of that subsequently.

Ratio Decidendi

Legal Principle Established

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