Armet v CFC Consolidated Pty Ltd
[2019] WASCA 165
•30 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ARMET -v- CFC CONSOLIDATED PTY LTD [2019] WASCA 165
CORAM: MURPHY JA
MITCHELL JA
VAUGHAN JA
HEARD: 8 OCTOBER 2019
DELIVERED : 30 OCTOBER 2019
FILE NO/S: CACV 113 of 2018
BETWEEN: STEPHANE ARMET
Appellant
AND
CFC CONSOLIDATED PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: Stone DCJ
File Number : CIV 625 of 2018
Catchwords:
Workers' compensation - Where appellant commenced action for damages for personal injuries allegedly sustained during course of employment - Where no election made - Where no registration of election - Whether abuse of process to continue proceedings - Whether judge erred in striking out primary proceedings for failure to comply with s 93K(4) of the Workers' Compensation and Injury Management Act 1981 (WA) - Whether considerations of fairness override the operation of s 93K(4) - Whether the appellant was afforded procedural fairness
Practice and procedure - Applications to adduce additional evidence on appeal - Where evidence not relevant - Where evidence not fresh - Not a proper case to adduce further evidence - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 93B, s 93C, s 93H, s 93K, s 93L, s 93M, s 93N, s 93O, s 93P, s 146, s 146A, s 146C, s 146H
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 23, reg 24, reg 25
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | T H Offer |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | SRB Legal |
Case(s) referred to in decision(s):
Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162
Armet v CFC Consolidated Pty Ltd [2018] WADC 71
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364
Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Catholic Education Office of WA v Granitto [2012] WASCA 266
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151
Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10
Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427
Kieronski v Woodside Energy Ltd [2017] WADC 151
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Mokta v Metro Meat International Ltd [2005] WASCA 143
Nocton v Lord Ashburton [1914] AC 932
Re Luck [2003] HCA 70; (2003) 203 ALR 1
Re White; Ex Parte Cunningham [2015] WASC 349
Saunders v The Public Trustee [2015] WASCA 203
St John of God Health Care Inc v Austin [2014] WASCA 11; (2014) 46 WAR 208
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152
Table of contents
Introduction
Background
30 May 2018 hearing before Deputy Registrar Hewitt
Deputy Registrar Hewitt's reasons and orders dated 5 July 2018
Mr Armet's appeal against Deputy Registrar Hewitt's orders of 5 July 2018
The hearing before Stone DCJ on 31 October 2018
The primary decision of Stone DCJ on 31 October 2018
The legislative provisions
Purposes
Liability to pay compensation under the Act
Both damages and compensation not recoverable
Constraints on award of damages
Division 2 of pt IV
Subdivision 1 of div 2 of pt IV
Subdivision 3 of div 2 of pt IV
Workers' Compensation and Injury Management Regulations 1982 (WA)
Grounds of appeal
Parties' submissions
Mr Armet's submissions
Ground 1
Ground 2
Ground 3
Employer's submissions
Mr Armet's applications in the appeal
Application of 2 January 2019
Application of 13 February 2019
Application of 19 July 2019
Application of 28 August 2019
Application of 23 September 2019
Application of 4 October 2019
Application of 11 October 2019
Disposition
The appeal to this court
The statutory scheme - constraints on the award of damages
The grounds of appeal
The interlocutory applications
Conclusion
JUDGMENT OF THE COURT:
Introduction
The appeal to this court is against the ex tempore decision of Stone DCJ of 31 October 2018 (primary decision).[1] The decision concerned an appeal in proceedings commenced by the appellant (Mr Armet) against the respondent in the District Court (primary proceedings). The appeal to Stone DCJ was against the orders of Deputy Registrar Hewitt dated 5 July 2018, striking out the primary proceedings. Deputy Registrar Hewitt published reasons dated 5 July 2018: Armet v CFC Consolidated Pty Ltd.[2] Those reasons were apparently, however, sent by 'computer error' to the parties on 31 May 2018.[3]
[1] The primary decision appears at ts 140 - 150, 31/10/18 (primary decision ts).
[2] Armet v CFC Consolidated Pty Ltd [2018] WADC 71 (Armet).
[3] ts 37 - 38, 05/07/18.
Mr Armet filed an appeal notice on 11 June 2018, having apparently received a copy of Deputy Registrar Hewitt's reasons on 31 May 2018. At the hearing on 5 July 2018, Deputy Registrar Hewitt made orders regularising that appeal notice by ordering, in effect, that it stand as Mr Armet's appeal against his decision dated 5 July 2018. According, on 5 July 2018, Deputy Registrar Hewitt ordered that:[4]
1.[The primary proceedings be] struck out.
2.[Mr Armet] pay [the respondent's] costs to be taxed.
3.The appeal lodged 11 June [2018] stand as an appeal against the decision delivered this day.
[4] No orders were formally extracted: see the letter of Acting Principal Registrar Kingsley to Mr Armet dated 20 July 2018, the handwritten notes of Deputy Registrar Hewitt on the Case Management Hearing Information Sheet dated 5 July 2018, and ts 38, 05/07/18.
The appeal against orders 1 and 2 of Deputy Registrar Hewitt's orders of 5 July 2018 came on for hearing before Stone DCJ on 31 October 2018. At the conclusion of the hearing, Stone DCJ delivered the primary decision ex tempore and ordered, relevantly, that:[5]
1.The appeal is dismissed;
2.The decision of [Deputy Registrar Hewitt], the subject of his orders of 5 July 2018, is affirmed.
[5] Orders of Stone DCJ in chambers dated 31 October 2018; BB 1.
This appeal ultimately concerns the proper construction and application of s 93K(4) of the Workers' Compensation and Injury Management Act 1981 (WA) (Act). Section 93K(4) of the Act provides, relevantly, that 'damages in respect of an injury can only be awarded if' (1) the worker elects, in the manner prescribed by the regulations, to retain the right to seek the damages, (2) the Director[6] registers the election in accordance with the regulations, (3) 'court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election', and (4) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%. The regulations are the Workers' Compensation and Injury Management Regulations 1982 (WA) (Regulations). By s 93L(4) of the Act, if a claim for compensation by way of weekly payments under the Act has been made with respect to the injury, an election cannot be made after the 'termination day'. Section 93M governs the operation of the 'termination day'.
[6] Section 5 of the Act defines 'Director' as the officer of WorkCover WA designated as the Director, Conciliation.
It was common ground in the court below that Mr Armet had commenced proceedings seeking damages in respect of a back injury for which he had claimed weekly compensation under the Act without first having elected to retain the right to seek damages, and without the Director (consequently) having registered the election in accordance with the Regulations. Stone DCJ held, in effect, that in the circumstances, the primary proceedings should be struck out. Mr Armet, in this appeal, contends, in effect, that Stone DCJ erred for four broad and interrelated reasons:[7]
1.The provisions of div 2 of pt IV of the Act operated unjustly and unfairly in the circumstances of his case.
2.The Director had a duty to Mr Armet to ensure that his right to recover common law damages was appropriately protected under the Act, and the Director breached that duty.
3.His former solicitors had failed to obtain an extension of the termination day to 30 July 2017, and had only obtained an extension until 12 February 2017.
4.The consequences of the three preceding matters is that Stone DCJ should have read s 93K(4) of the Act as not applying to him.
[7] Appeal ts 17, 22 - 23, 25 - 27.
For the reasons which follow, the appeal should be dismissed. Section 93K(4) operated in accordance with its terms, irrespective of Mr Armet's reasons why an election was not made and registered in accordance with the Act and the Regulations. A continuation of the proceedings constituted an abuse of process, and the action was properly struck out.
Background
Mr Armet is a former employee of the respondent (employer) and a worker for the purposes of the Act.[8] As noted below, he claimed that whilst employed by the employer, he suffered certain injuries including a back injury on 18 March 2015.
[8] Primary decision ts 141.
On 30 July 2015, Mr Armet lodged an application for workers' compensation in respect of an alleged injury to his lower back on 18 March 2015.[9]
[9] Primary decision ts 141.
On 14 October 2015, the employer's insurer accepted liability for payment of statutory workers' compensation benefits in respect of Mr Armet's injury to his lower back.[10]
[10] Primary decision ts 141 - 142.
On 14 January 2016, the employer's insurer informed Mr Armet, by his then solicitors, that the termination day for Mr Armet to make an election under s 93K(4)(a) of the Act for the alleged injury of 18 March 2015 was 30 July 2016.[11]
[11] Primary decision ts 142; GB 147 - 148.
On 29 February 2016, Mr Armet applied (by his former solicitors), pursuant to s 93M(4)(a) of the Act, to extend the termination day. The application was, in accordance with s 93M(4)(a), accompanied by the requisite certificate of an approved medical practitioner and a recommendation from the medical practitioner as to an extended termination day. The medical practitioner recommended that an extension should be given to 12 February 2017.[12]
[12] Primary decision ts 142; GB 150 - 160.
On 9 March 2016, the Director granted Mr Armet an extension of the termination day to 12 February 2017.[13]
[13] Primary decision ts 142.
Despite the extension to 12 February 2017, Mr Armet did not make an election to retain the right to seek common law damages against the employer in respect of the alleged injury of 18 March 2015 in accordance with s 93K(4) of the Act prior to the expiration of the extended termination day.[14]
[14] Primary decision ts 142.
On 21 February 2018, Mr Armet commenced the primary proceedings in the District Court by writ. The indorsement on the writ claimed damages for '6 personal injuries … which occurred between … 24 November 2014 and 15 September 2015' allegedly caused by the employer's negligence.[15] In his statement of claim filed 26 February 2018, Mr Armet alleged that the first injury, involving backache and sciatica, occurred on 18 March 2015 and that that first injury was the 'root', 'birth place', 'contributor' and 'cradle' of all the other injuries.[16]
[15] Primary decision ts 141; Armet [1].
[16] Primary decision ts 141; statement of claim filed 26 February 2018; BB 11 - 15.
It was common ground that the injuries for which Mr Armet sued were allegedly sustained during the course of his employment.[17]
[17] Armet [3].
On 14 March 2018, the Director stated, in effect, in a letter to the employer's solicitors, that there was no record of Mr Armet having elected to retain the right to seek damages, and no election had been registered by the Director for the purposes of s 93K(4) of the Act.[18]
[18] Primary decision ts 142; GB 149.
By his amended statement of claim filed 3 September 2018, Mr Armet included a claim for losses in respect of tinnitus, lumbar spine injury, neck injury, foot injury, hair loss and psychiatric injury.[19] Mr Armet did not plead a date or dates of any accident or accidents on which these alleged injuries occurred.[20]
[19] Amended statement of claim filed 3 September 2018, annexure A, par 3, BB 21.
[20] Primary decision ts 142.
By 31 October 2018, Mr Armet had not made an election for the recovery of common law damages in respect of the alleged accident on 18 March 2015.[21]
[21] Primary decision ts 142.
Prior to the hearings before Deputy Registrar Hewitt and Stone DCJ, Mr Armet had made two applications to WorkCover in respect of his other alleged injuries in respect of (1) tinnitus, and (2) back ache with sciatica, neck injury, foot injury and hair loss. On 13 December 2017, an arbitrator determined that the tinnitus was not a compensable injury under the Act.[22] In relation to his alleged back ache with sciatica, neck injury, foot pain and hair loss, the arbitrator found that Mr Armet's foot pain resulted from his lower back injury,[23] but did not accept that his hair loss (alleged by Mr Armet to have arisen from medication taken for the back injury), or his neck injury, were consequences of his back injury.[24] Mr Armet has also appealed the arbitral determinations (in respect of the tinnitus, hair loss and neck pain) to the District Court.[25]
30 May 2018 hearing before Deputy Registrar Hewitt
[22] Primary decision ts 142 - 143.
[23] Primary decision ts 143.
[24] Primary decision ts 143.
[25] Primary decision ts 143.
On 27 March 2018, the employer applied for summary judgment against Mr Armet, alternatively an order that the action be struck out or stayed, on the basis that Mr Armet had failed to comply with the provisions of s 93K(4) of the Act by which, among other things, he was required to elect to retain the right to seek damages and have that election registered. On the employer's case, as a consequence of Mr Armet's failure to do so, Mr Armet was precluded from receiving any award of damages and the court should dismiss the action summarily or strike it out.[26]
[26] Armet [2].
Deputy Registrar Hewitt heard the employer's application for summary judgment on 30 May 2018. He said at the conclusion of the hearing that he would reserve his decision.[27]
Deputy Registrar Hewitt's reasons and orders dated 5 July 2018
[27] ts 30 - 31, 30/05/2018.
Deputy Registrar Hewitt delivered reasons in Armet on 5 July 2018.
Deputy Registrar Hewitt found that the facts in his previous decision in Gable v Steel Cap Recruitment Pty Ltd[28] were 'effectively identical to those which prevail here'. The Deputy Registrar extracted the following passages from his decision in Gable:[29]
2It will all [sic] be seen from the provisions which I have quoted [s 93K(4) of the Act] that necessary preconditions to an injured worker obtaining damages from his employer by action in this court are that he elects to retain the right to seek damages, that election is registered in accordance with the regulations and the court proceedings seeking the damages are commenced after the director gives notice that he has registered the election. In the present circumstances it is common ground that:
(1)the plaintiff is a worker within the meaning of the Act and the defendant was at the relevant time his employer.
(2)the worker has made no election to retain the right to seek common law damages and as a consequence there has been no registration of that election nor written notice that the election has been registered.
3Satisfaction of these requirements is a precondition to the court being empowered to grant to the plaintiff the remedy which he seeks namely compensation in respect of an injury.
[28] Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151. An appeal to Parry DCJ was dismissed: Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 (Gable No 2).
[29] Armet [3] - [4] citing Gable [2] - [3].
Deputy Registrar Hewitt said, in effect, that there was no doubt that an election had not been made, nor registered. He said that as a consequence, Mr Armet was precluded from obtaining the damages he sought in the action.[30] He observed that Mr Armet had obtained a substantial extension of the termination day, but, notwithstanding that extension, had not made an election within the time required.[31]
[30] Armet [4].
[31] Armet [6].
Deputy Registrar Hewitt said that, apart from s 93N and 's 93C(6)'[32] of the Act, neither of which applied, there was no basis for an extension of time which would permit Mr Armet to register an election and proceed with the action. He said that the power to make an extension is vested in the Director, not in the District Court, and that the Act made it clear that the election and its registration were pre‑conditions to the award of damages.[33]
[32] Deputy Registrar Hewitt was presumably intending to refer to s 93E(6) of the Act. However, s 93E is in subdiv (2) of div 2 of pt IV and not subdiv (3) of div 2 of pt IV of the Act.
[33] Armet [7].
Deputy Registrar Hewitt concluded that the action 'has no prospect whatever of obtaining an award of damages from [the] employer in this action'. Deputy Registrar Hewitt said, however (with apparent references to the appeals referred to in [19] above), that there were 'three appeals to [the District] Court from decisions made within the workers' compensation jurisdiction the outcome of which, may, not will, provide the [worker] a further opportunity to pursue a claim for damages'. Accordingly, the Deputy Registrar said that, instead of dismissing the action, it would be appropriate to order that the action be struck out.[34]
Mr Armet's appeal against Deputy Registrar Hewitt's orders of 5 July 2018
[34] Armet [7] - [8].
On 11 June 2018, Mr Armet filed an appeal notice appealing against Deputy Registrar Hewitt's orders of 5 July 2018.[35] As noted earlier, that appeal notice preceded the orders of 5 July 2018, but Deputy Registrar Hewitt regularised that by order 3 of his orders dated 5 July 2018.
[35] Primary decision ts 144.
Mr Armet's notice of appeal contained seven grounds of appeal, reproduced as follows:[36]
[36] Primary decision ts 144.
1.The deputy registrar ignored the principle of justice.
2.The deputy registrar ignored all the relevant and valuable documentations provided by the appellant related to the understanding of the case.
3.The appellant's case raised numerous and serious questions to be tried. Please refer to Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 92. Please also refer to Batistatos v Roads and Traffic Authority of New South Wales [2006] 226 CLR 256 at 46.
4.The deputy registrar ignored the reasons as to why the appellant didn't lodge the application to retain the right to seek common law damages.
5.The deputy registrar ignored the existence and content of the Whole Permanent Impairment Report made by neurosurgeon Dr Soni Narula dated 12 February 2018 (this WPI report also involving other four medical specialists).
6.The deputy registrar ignored the two criterias (quality and quantity) of the employer's negligence, GIO Insurance and WorkCover WA levels.
7.The deputy registrar violates appellant's right to seek common law damages by duplicating unscrupulously his previous decision (Please refer to Gable v Steel Cap Recruitment Pty Ltd [2017] WADC 10 (13 January 2017)).
The hearing before Stone DCJ on 31 October 2018
Mr Armet complained, in effect, that the extension of the termination day to 12 February 2017 ought to have been an extension to 30 July 2017.[37] Mr Armet appeared to rely upon s 93M(6) for this proposition, which provides that an 'extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day'.[38] Mr Armet submitted:[39]
So my termination day was on 30 July 2016. That's the day when Stephen Browne [Solicitors] should have elect for this termination day to be extended for a year.
So my common law action would have been - I mean, possible - I could have launched a common law action till 30 July 2017, not February.
[37] Primary decision ts 65, 68 - 70, 72 - 73, 79 - 80.
[38] Primary decision ts 69 - 70.
[39] Primary decision ts 70.
Mr Armet argued that he ought to have been notified that the extension to the termination day was approaching:[40]
[40] Primary decision ts 111 - 112.
[MR ARMET]: Why WorkCover WA official … Ms Wendy Attenborough did attend a conciliation and arbitration who acknowledge and certify the extension of termination they requested by Stephen Browne … dated 12 March 2016 till 12 February 2017 did not provide to the foreign individual self‑represent an injured worker sufficient guidelines, recommendations, suggestions, advice, directions, instructions, along the worker's compensation chain. Why she didn't appear to me at any time? Why did she not give somebody the possibility to explain what was coming up?
STONE DCJ: But isn't that your lawyer's job?
[MR ARMET]: I didn't have any lawyer. I told you, your Honour.
STONE DCJ: You had Stephen Browne acting for you when the extension was requested.
[MR ARMET]: No.
STONE DCJ: Yes.
[MR ARMET]: No, no. When the extension, yes, but not when the election was due. I was on my own since April 2016 ‑ ‑ ‑
STONE DCJ: But you'd received correspondence before that that dealt with those issues and you'd had ‑ ‑ ‑
THE APPLICANT: No.
STONE DCJ: ‑ ‑ ‑ on your own acknowledgment the nature of the election[.] (emphasis added)
The primary decision of Stone DCJ on 31 October 2018
Stone DCJ said that the threshold issue was whether the termination day had expired and Mr Armet had failed to make an election pursuant to the requirements of the Act within time, such that he is now precluded from being awarded common law damages in respect of the alleged personal injury arising out of his employment.[41]
[41] Primary decision ts 145.
Stone DCJ observed that Deputy Registrar Hewitt 'noted … [Mr Armet's] opposition to the … strike out application appears to be based on an argument that there was a reasonable excuse for failing to comply with s 93K of the Act'.[42]
[42] Primary decision ts 146.
Stone DCJ considered there to be two fundamental problems with Mr Armet's argument. The first was that the power to grant an extension is vested in the Director, not the District Court. Secondly, s 93K(4)(c) made it clear that damages can only be awarded in respect of proceedings commenced after the election and the registration of such an election.[43]
[43] Primary decision ts 146 - 147.
Stone DCJ referred to the decision of Parry DCJ in Gable No 2, and concluded that 'the decision of [Deputy Registrar Hewitt] was correct and a proper decision in all the circumstances. The action brought by [Mr Armet] in this court for common law damages for personal injury arising out of his employment cannot succeed because he has not complied with s 93K(4)(a), s 93K(4)(b) and s 93K(4)(c) of the Act'.[44]
[44] Primary decision ts 148.
Stone DCJ noted that it was 'unnecessary to deal with the other grounds of appeal' and was persuaded that the primary proceedings were bound to fail and should be struck out. Stone DCJ dismissed the appeal and affirmed Deputy Registrar Hewitt's decision of 5 July 2018.[45]
[45] Primary decision ts 148.
The legislative provisions
Purposes
Section 3 of the Act provides, amongst other things:
3.Purposes
The purposes of this Act are -
(a)to establish a workers' compensation scheme for Western Australia dealing with -
(i)compensation payable to or in respect of workers who suffer an injury; and
…
(b)to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and
(c)to provide for the resolution of disputes under this Act; and
(d)to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
Liability to pay compensation under the Act
By s 5 of the Act, an 'injury' means (relevantly for present purposes) 'a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions'.
Section 18(1) of the Act provides, in effect, that if an 'injury' of a worker 'occurs', then 'the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1'.
Section 21 of the Act provides, relevantly, that an employer is liable to pay compensation under the Act 'from the date of incapacity resulting from the injury'.
In Engine Protection Equipment Pty Ltd v Miller,[46] this court outlined, in general terms, the operation of the statutory scheme with respect to weekly payments of compensation, in the following terms:
Weekly payment of compensation is payable where an 'injury' of a worker occurs and where the worker has total or partial incapacity for work that 'results from the injury'. Thus, in order to obtain weekly payments, the worker must establish both incapacity and injury.
In common with other forms of workers' compensation legislation, the Act requires two forms of connection: first, a connection between the worker's employment and the injury; and, secondly, a connection between that injury and the worker's incapacity.
The concept of injury is defined so as to provide the requisite statutory causal connection with the worker's employment.
The focus of this appeal is on the other element of connection: the requirement that the incapacity 'results from' the injury. Satisfaction of that element does not require that the injury be the direct or proximate cause of the incapacity. It is sufficient if the injury was a material contributing cause to the incapacity. Whether the incapacity results from the injury is a factual inquiry involving a common sense evaluation of all the facts and circumstances, bearing in mind that the purpose of the inquiry is to determine whether compensation is payable by the employer because incapacity was casually related to the work-related injury.
Thus, more than one cause, including more than one injury, may contribute to an incapacity.
The burden of proving the elements of the claim, and thus proving the incapacity, the injury, and that the incapacity results from the injury, lies on the worker as applicant for compensation. (footnotes omitted)
[46] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [49] ‑ [54].
The term 'incapacity' is not defined in the Act. The concept of partial incapacity for work is that of reduced physical capacity, by reason of a physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.[47]
Both damages and compensation not recoverable
[47] Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171, 178; Catholic Education Office of WA v Granitto [2012] WASCA 266 [22].
Part IV of the Act is headed 'Civil proceedings in addition to or independent of this Act'. Division 1 of pt IV includes s 92, which relevantly provides:
92.Both damages and workers' compensation not recoverable
Where in respect of an injury an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as the defendant) or against both of them -
(a)if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;
(b)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;
(c)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;
(d)if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit;
(e)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer or the defendant or both or is settled by the acceptance of money paid into court by the employer or the defendant or by both of them, the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same injury[.] (emphasis added)
Constraints on award of damages
Division 2 of pt IV
Division 2 of pt IV is headed 'Constraints on awards of common law damages'. Division 2 of pt IV contains three subdivisions: 'Subdivision 1 - Preliminary provisions'; 'Subdivision 2 - 1993 scheme'; and 'Subdivision 3 - 2004 scheme'.
Subdivision 1 of div 2 of pt IV
Subdivision 1 of div 2 of pt IV includes s 93B and s 93C. Section 93B relevantly provides:
93B.Application of this Division
(1)This Division applies to the awarding of damages against a worker’s employer independently of this Act in respect of an injury suffered by a worker, or a noise induced hearing loss suffered by a worker that is not an injury, if -
(a)it was caused by the negligence or other tort of the worker’s employer; and
(b)compensation has been paid or is payable in respect of it under this Act, or would have been paid or be payable but for section 22. (emphasis added)
The word 'it' in subpars (a) and (b) of s 93B(1) evidently refers to (relevantly for present purposes) 'an injury suffered by a worker' in the chapeau of s 93B(1).
Section 93C provides:
93C.Limit on powers of courts to award damages
If this Division applies a court is not to award damages to a person contrary to this Division.
Subdivision 3 of div 2 of pt IV
Subdivision 3 (relating to the '2004 scheme') applies only if the cause of action arises on or after the date on which s 79 of the Workers' Compensation Reform Act 2004 (WA) came into operation: s 93I of the Act.[48] Subdivision 3 of div 2 of pt IV includes s 93H, s 93K, s 93L, s 93M, s 93N, s 93O and s 93P.
[48] By the Government Gazette WA (42 of 2004) dated 31 December 2004, s 79 of the Workers' Compensation Reform Act 2004 (WA) came into operation on 1 July 2005.
By s 93H(1) of the Act, the term 'degree of permanent whole of person impairment' means the degree of permanent whole of person impairment evaluated as described in s 146A and s 146C, resulting from the injury or injuries arising from a single event, as defined in s 93H(2).
Section 93K(4) of the Act provides:
93KConstraints on awards
…
(4) Damages in respect of an injury can only be awarded if -
(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b) the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%. (emphasis added)
By s 93K(5) of the Act, unless the court is satisfied that the worker's degree of permanent whole of person impairment is at least 25%, the amount of damages to be awarded is to be a proportion, determined according to the severity of the injuries, of the maximum amount that may be awarded. Section 93K(6) provides that s 93K(5) has effect in respect of the amount of the judgment before the operation of s 92(b).
Section 93L of the Act relevantly provides:
93LElection under s 93K to retain right to seek damages
(1)In this section -
termination day has the meaning given in section 93M.
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if -
(a)the worker and the employer agree -
(i)that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
or
(b)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
(3)The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.
(4)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day. (emphasis added)
Section 93M of the Act provides:
93MTermination day defined
(1)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).
(2)In subsection (1) -
claim for compensation by way of weekly payments means a claim for compensation by way of weekly payments for total or partial incapacity that has been made on an employer in accordance with section 178(1)(b).
(3)If, after the expiry of the period of 3 months after the day on which the claim is made -
(a)a dispute resolution authority, acting under section 58(1) or (2), determines the question of liability to make the weekly payments claimed; or
(b)the worker is first notified that liability is accepted in respect of the weekly payments claimed,
the termination day is the last day of the period of 9 months after the day of the act described in paragraph (a) or (b) that was most recently done unless a later day is fixed under subsection (4).
(4)The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
(a)before the termination day, an approved medical specialist, in writing -
(i)certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and
(ii)recommends a day until which the termination day be extended;
or
(b)the Director is satisfied that the employer has failed to comply with section 93O; or
(c)the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or
(d)the Director is satisfied that -
(i)the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker's degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or
(ii)the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker's degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.
(5)In subsection (4) -
normal evaluation has the meaning given to that term in section 146C(3);
special evaluation has the meaning given to that term in section 146C(4).
(6)An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.
(7)An extension is to be in writing and the Director is required to give the worker and the employer each a copy of the extension.
(8)An extension may be given even though the termination day has passed. (emphasis added)
Section 93N of the Act provides:
93NSpecial evaluation if worker's condition has not stabilised sufficiently
(1)This section applies if, after the expiry of the period of 6 months after the day that would have been the termination day had there been no extension under section 93M(4), an approved medical specialist certifies that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with sections 146A and 146C.
(2)The worker may request an approved medical specialist to make a special evaluation of the worker's degree of permanent whole of person impairment in accordance with sections 146A and 146C.
(3)The approved medical specialist requested to make a special evaluation may be the approved medical specialist who certified as described in subsection (1).
(4)The request is to be made in accordance with the regulations not later than 8 weeks before the termination day and is to be accompanied by a copy of the certificate referred to in subsection (1).
(5)The approved medical specialist is to make the special evaluation in accordance with sections 146A and 146C unless the worker's condition is found to have stabilised to the extent required for a normal evaluation, in which case the approved medical specialist is to make a normal evaluation in accordance with those sections.
(6)In this section -
normal evaluation has the meaning given to that term in section 146C. (emphasis added)
Section 93O of the Act provides, amongst other things, in broad terms that about six months prior to the termination day, the worker's employer is required to notify the worker in writing of certain matters, one of which is the day that would be the termination day if no later date were to be fixed under s 93M(4). Section 93O provides:
93O.Employer to give worker notice of certain things
(1)At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations -
(a)of the day that would be the termination day if no later day were to be fixed under section 93M(4); and
(b)that about 6 months remains before the termination day; and
(c)of the significance of the termination day for the worker's ability to seek damages; and
(d)of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker's degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.
(2)The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4). (emphasis added)
Section 93P, in broad terms, applies, in effect, to limit the amount of compensation to which a worker is entitled under the Act if an election is made in circumstances where the worker's degree of permanent whole of person impairment is recorded as less than 25%. Section 93P provides:
93P.Election under s 93K, effect of on compensation
(1)This section applies unless, according to an agreement or assessment that the Director has recorded as described in section 93L(2), the worker's degree of permanent whole of person impairment is at least 25%.
(2)If a worker elects under section 93K to retain the right to seek damages and this section applies -
(a)the amount of any weekly payment of compensation to which the worker is entitled under this Act in respect of the injury or injuries, to the extent that the payment is for any time during the first 6 months after the election registration day, is varied to the amount calculated as described in subsection (4); and
(b)the worker is not entitled to any weekly payment of compensation under this Act in respect of the injury or injuries to the extent that the payment would be for any time that is more than 6 months after the election registration day; and
(c)no other compensation under this Act is payable in respect of the injury or injuries -
(i)in relation to a time that is after the election registration day; or
(ii)under Part III Division 2 or 2A, irrespective of whether an election under that Division is made before or after the election registration day; or
(iii)for expenses incurred after the election registration day.
(3)In subsection (2) -
in respect of the injury or injuries includes wholly or partially in respect of the injury or injuries and also includes wholly or partially in respect of any recurrence, aggravation or acceleration of the injury or injuries.
(4)The amount of a weekly payment is -
(a)to the extent that it is for any time during the first 3 months after the election registration day, 70% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied; and
(b)to the extent that it is for any other time during the first 6 months after the election registration day, 50% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied. (emphasis added)
Part VII of the Act is headed 'Medical assessment and assessment for specialised retraining programs'. It includes div 2, which is headed 'Division 2 - Assessing degree of impairment'. It includes s 146, s 146A, s 146C and s 146H.
Section 146 relevantly provides:
146.Terms used
In this Part -
degree of impairment, in relation to a worker, means -
…
(b)the worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3[.]
…
secondary condition means a condition, whether psychological, psychiatric, or sexual, that, although it may result from the injury or injuries concerned, arises as a secondary, or less direct, consequence of that injury or those injuries. (emphasis added)
Section 146A deals with evaluations of the degree of impairment generally, and provides:
146A.Evaluating degree of impairment generally
(1)Subject to sections 146B, 146C, 146D and 146E, a worker's degree of impairment is to be evaluated, as a percentage, in accordance with the WorkCover Guides.
(2)If a worker and the employer do not agree about the evaluation of the worker's degree of impairment, it is to be assessed by an approved medical specialist or, if this Act so provides, an approved medical specialist panel. (emphasis added)
Section 146C provides for a 'normal evaluation' of the worker's degree of impairment and a 'special evaluation'. The latter evaluation applies where the worker's condition has not stabilised to the extent required for a 'normal evaluation'. Section 146C provides, relevantly:
146C.Evaluating degree of impairment for Part IV Div. 2 Subdiv. 3
(1)This section applies to an evaluation of a worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3.
(2)Section 146A(2) does not prevent a finding that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides.
(3)In subsection (2) -
normal evaluation means an evaluation that is not a special evaluation as defined in subsection (4).
(4)If this Act provides for a special evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with this section, the evaluation (a special evaluation) is to be made, even though the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, in accordance with any provisions of the WorkCover Guides that apply to a special evaluation.
(5)If the evaluation of a worker's degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3 is assessed on the basis that the worker's condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, the evaluation has to be a special evaluation made in accordance with this section.
(6)In evaluating the degree of permanent whole of person impairment of the worker, any secondary condition is to be disregarded.
(7)Subsection (6) does not prevent a secondary condition from contributing in the assessment of damages by a court. (emphasis added)
In relation to s 146C(4), as noted earlier, s 93N(2) provides that a worker may request a 'special evaluation' to be made in accordance with, relevantly, s 146C.
Section 146C(6), read with s 146, precludes a secondary condition (as defined) contributing to the evaluation of permanent whole of person impairment.
Section 146H relevantly provides:
146H.Approved medical specialist, duties of after making assessment
(1)An approved medical specialist making an assessment for the purposes of … Part IV Division 2 Subdivision 3 … is required to give to each of the worker and the employer, in writing in accordance with the regulations -
(a)a report of the worker's degree of impairment, including details of the assessment and reasons justifying the assessment; and
(b)a certificate specifying the worker's degree of impairment.
(2)An approved medical specialist giving a certificate -
…
(b)for the purposes of Part IV Division 2 Subdivision 3 that a worker's condition has not stabilised to the extent required for a normal evaluation to be made in accordance with the WorkCover Guides as described in sections 146A and 146C,
is required to give to each of the worker and the employer, in writing in accordance with the regulations -
(c)a report of any relevant details provided by the worker; and
(d)brief reasons justifying the finding certified.
(3)A certificate for the purposes of -
…
(b)Part IV Division 2 Subdivision 3; …
…
is to specify the provisions for the purposes of which it is made.
…
(5)If any of the documents described in subsection (1) or (2) is produced to the Director for the purposes of … Part IV Division 2 Subdivision 3, … and a factual error is apparent on the face of the document, the Director may reject the document and require the approved medical specialist to replace it with a correct document given to each of the recipients of the document that contained the error. (emphasis added)
Workers' Compensation and Injury Management Regulations 1982 (WA)
Part 3A of the Workers' Compensation and Injury Management Regulations 1982 (WA) (Regulations) is headed 'Constraints on awards of common law damages'. It includes div 2 which is headed 'Division 2 - 2004 scheme'. Division 2 includes regs 22 ‑ 25. Regulation 22 provides:
22.Electing to retain right to seek damages
(1)An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it with the Director.
(2)Unless under subregulation (3) the Director refuses to register the election, the Director is to -
(a)register the election in a register kept for that purpose on the day on which the Director receives the election form; and
(b)complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3)The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.
Regulation 23(1) and (2) provides:
23.Extending termination day
(1)A worker may apply for the Director to extend the termination day under section 93M of the Act.
(2)The application is made by -
(a)lodging with the Director a completed application form in the form of Form 35 in Appendix I; and
(b)providing to the Director, with the application form, anything that this regulation requires to be provided with the application form. (emphasis added)
In relation to an application for an extension under s 93M(4)(a) of the Act, reg 23(3) provides:
(3)If the application is made in the circumstances described in section 93M(4)(a) of the Act -
(a)when the application form is lodged, the Director has to be provided with -
(i)a copy of the approved medical specialist's certificate certifying that the worker's condition has not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C of the Act; and
(ii)a copy of the approved medical specialist's recommendation of a day until which the termination day be extended; and
(iii)a copy of the approved medical specialist's report under section 146H(2)(c) of the Act;
and
(b)the Director may, within the limits imposed by the Act, extend the termination day until a day that the Director, having regard to the approved medical specialist's recommendation, considers will give the worker a reasonable opportunity to make an election under section 93K(4)(a) of the Act. (emphasis added)
In relation to an application for an extension under s 93M(4)(b) of the Act (ie, where the employer has failed to comply with s 93O), reg 23(4) provides:
(4)If the application is made in the circumstances described in section 93M(4)(b) of the Act, the Director cannot extend the termination day to a day that is more than 6 months after the day on which the Director gives the extension. (emphasis added)
In relation to an application under s 93M(4)(c) of the Act, reg 23(5) provides:
(5)If the application is made in the circumstances described in section 93M(4)(c) of the Act -
(a)when the application form is lodged -
(i)if the worker has, in writing, requested an assessment of the worker's degree of permanent whole of person impairment, the Director has to be provided with a copy of the worker's request; and
(ii)if the approved medical specialist has notified the worker, in writing, that more time is or was required to give the worker the documents required by section 146H of the Act than the time described in section 93O(1)(d) of the Act, the Director has to be provided with a copy of the notification;
and
(b)the Director may, within the limits imposed by the Act, extend the termination day until a day that the Director, having regard to the further time needed by the approved medical specialist, considers will give the worker a reasonable opportunity to make an election under section 93K(4)(a) of the Act. (emphasis added)
In relation to an application for an extension under s 93M(4)(d)(i) or (ii) of the Act, reg 23(6) provides:
(6)If the application is made in the circumstances described in section 93M(4)(d)(i) or (ii) of the Act -
(a)when the application form is lodged -
(i)the Director has to be provided with a copy of the worker's request for an assessment of the worker's degree of permanent whole of person impairment; and
(ii)if the approved medical specialist has notified the worker, in writing, that it would be impracticable to give the worker the documents required by section 146H of the Act at least 7 days before the termination day, the Director has to be provided with a copy of the notification;
and
(b)the Director may, within the limits imposed by the Act, extend the termination day until a day that the Director considers will give the worker a reasonable opportunity to make an election under section 93K(4)(a) of the Act. (emphasis added)
Regulation 24 provides:
24.Expected time for approved medical specialist to give assessment documents
An approved medical specialist can reasonably be expected to take 6 weeks, after a worker requests an assessment of the worker's degree of permanent whole of person impairment, to give the worker the documents that the approved medical specialist is required by section 146H of the Act to give the worker. (emphasis added)
Regulation 25 provides:
25.Employer's obligation to notify worker
The notice that an employer is required by section 93O(1) of the Act to give to a worker has to be given by sending the worker a document in the form of Form 36 in Appendix I. (emphasis added)
Grounds of appeal
Mr Armet relies upon three grounds of appeal, which are to the following effect.
Ground 1 alleges that Stone DCJ erred in fact and in law in finding that Mr Armet 'was responsible for not electing … to seek common law damages' pursuant to s 93K(4) of the Act. In particular:
1.As to s 93K(4)(a), Mr Armet could not elect to seek common law damages at the time prescribed by the Director following the extension of the termination day.
2.As to s 93K(4)(b), the Director failed to 'administer [Mr Armet's] election' in accordance 'with the rules, the code of conduct and the code of ethics as required from [a person in the position of the] Director … at WorkCover WA'. Mr Armet appeared to submit that the Director ought to have identified in advance to him, as a self‑represented worker, 'any guidance and information in relation to the election for common law damages'.
3.As to s 93K(4)(c), Mr Armet could not commence proceedings until after the Director had given Mr Armet written notice that the Director has registered the election. However, Mr Armet commenced proceedings 'at the completion of the whole permanent impairment report notwithstanding'.
4.As to s 93K(4)(d), 'the court should be satisfied that [Mr Armet's] degree of permanent whole of person impairment is at least 15%'.
Ground 2 alleges that Stone DCJ erred in fact and in law in failing to (1) afford Mr Armet natural justice in accordance with the Act, (2) conduct the hearing fairly, and (3) reasonably exercise the power provided to him under the Act. Ground 2 also contains particulars 2.5 and 2.6, which collectively appear to allege (1) actual bias and the apprehension of bias (on the part of Deputy Registrar Hewitt and Stone DCJ), and (2) that the 'decision' 'obstruct[ed] and accommodate[d] the [employers'] amnesty and immunity under the shield of' s 93K(4)(b) - (c) of the Act.
Ground 3 alleges that Stone DCJ erred in fact and in law in (1) 'applying the correct law to the fact found or to be found' and (2) 'misconstrued the relevant evidence'. In particular:
1.Stone DCJ 'acknowledged' 4 out of 9 of Mr Armet's affidavits.
2.The decision of Deputy Registrar Hewitt and the judge's primary decision referred 'to an inappropriate case law to strike out the appellant's action to seek common law damages'.
3.Stone DCJ did not take into account (1) the length of negligence, (2) the nature of wrongdoings, (3) the employer's past misconduct, (4) the natural course of illness related to six injuries and symptoms suffered by Mr Armet, and (5) Mr Armet's financial hardship since the workplace incident.
Parties' submissions
Mr Armet's submissions
Mr Armet's submissions included oral submissions at the hearing on 8 October 2019, in addition to the written submissions filed as part of his appellant's case. Mr Armet's oral submissions encompassed the four broad themes referred to in [5] above.
Mr Armet's written submissions are summarised below.
Ground 1
Mr Armet submitted that his former solicitors wrongly lodged an application with the Director for an extension of the termination day six months earlier than they ought to have. Accordingly, the 'election date [was] wrongly granted by the Director … on 12 February 2017' and '[Mr Armet] could not provide 'whole permanent impairment of minimum 15%'. Rather, Mr Armet 'could only provide … 'whole permanent impairment of minimum 15%' in March 2017.[49]
[49] Appellant's written submissions, pars (b), (d), (e); WB 8.
Mr Armet recited the following statutory provisions:[50]
1.Section 93M(6) of the Act, which provides that 'the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election'.
2.Section 93M(8) of the Act, which provides that 'an extension may be given even though the termination day has passed'.
3.Section 93EC(a) - (b) of the Act, which provides that 'an action seeking damages in respect of the injury may, despite [any] written law, be commenced at any time before the expiry of a period of 2 years after the notification day'.
4.Section 93L(8) of the Act, which provides 'the Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election'.
[50] Appellant's written submissions, pars (a) - (c); WB 9.
Mr Armet recited passages from various sources on the topics of constructive fraud,[51] maladministration and defective administration by non-corporate Commonwealth entities,[52] knowing and deliberate breach of lawful duty by a public officer thus rendering him amenable to civil action,[53] and the principles of conduct applicable to public sector bodies under the Public Sector Management Act 1994 (WA).[54]
[51] Appellant's written submissions, par (d), WB 9 - 10 citing Nocton v Lord Ashburton [1914] AC 932.
[52] Appellant's written submissions, par (e); WB 10.
[53] Appellant's written submissions, par (f); WB 10 - 11.
[54] Appellant's written submissions, par (g); WB 11.
Mr Armet submitted that he 'legitimately and naturally' commenced the primary proceedings once the 'Whole Permanent Impairment' report was completed on 12 February 2018 'under the Disability Discrimination Act 1992 [(Cth)] and Equal Opportunity Act [1984 (WA)]'.[55]
[55] Appellant's written submissions, par (a), WB 11.
Mr Armet referred to the 'concept of utilitarianism' and 'consequentialism' to the effect that 'whether an act is right or wrong depends on the results of that act'.[56]
Ground 2
[56] Appellant's written submissions, pars (c) - (d), WB 12.
Mr Armet submitted, in effect, that the rules of natural justice protects legitimate expectations, which extend beyond enforceable legal rights provided that they are reasonably based,[57] such that the findings that have resulted from the conduct of public inquiries 'of their own force could not affect a person's legal rights [or] obligations'.[58]
[57] Appellant's written submissions, par (a); WB 13 citing, eg, Kioa v West [1985] HCA 81; (1985) 159 CLR 550.
[58] Appellant's written submissions, par (b); WB 13; see also pars (a) - (c); WB 14.
Mr Armet submitted that the appellant's case 'complies with the requirements of common law action as whole permanent impairment of 35% (30% AMA) and proven negligences of the employer'. Mr Armet further submitted that according to s 14(1) of the Limitation Act 2005 (WA), an action for damages relating to personal injury to a person can be commenced within three years since the cause of action accrued.[59]
[59] Appellant's written submissions, par 2.4; WB 14.
Mr Armet submitted that 'a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it'.[60]
Ground 3
[60] Appellant's written submissions, par 2.5; WB 15 citing Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.
Mr Armet submitted that Stone DCJ failed to 'acknowledge' Mr Armet's following affidavits:[61]
1.Affidavit of Mr Armet dated 13 April 2018 and sworn 4 April 2018; specifically, attachments 1 ('introduction and reasons of plaintiff's counter-action'), 4 ('form AMS 1 - official chronology of permanent impairment request'), 6 (reports of Dr Soni Narula, Dr Hannes Gebauer, Dr Ian Wallace and Dr Peter McCarthy) and 7 (chronological history of each injury) thereto.
2.Affidavit of Mr Armet dated and sworn 28 May 2018; specifically attachment 1 (submission and sub-submission in the primary proceedings).
3.Affidavit of Mr Armet dated and sworn 11 June 2018; specifically attachments 1 (submission and sub-submission in the primary proceedings), 2 ('introduction for affidavit related to appeal against arbitrator decision and writ of summons'), 3 ('chronological dissection of employer's negligence'), 4 ('statement related to the appointment at the District Court dated 30 May 2018'), 7 (reports of Dr Soni Narula, Dr Hannes Gebauer, Dr Ian Wallace, Dr Peter McCarthy and Pam Gabriels) and 13 (comparison between Mr Armet's case and Gable).
4.Affidavit of Mr Armet dated and sworn 4 July 2018; specifically attachment 6 ('characteristic of an effective law' by the Law Society).
5.Affidavit of Mr Armet dated and sworn 24 July 2018; specifically attachment 1 ('introduction and summary of analysis related to Deputy Registrar Hewitt's decision').
[61] Appellant's written submissions, pars (a) - (e); WB 15 - 17.
Mr Armet submitted, in effect, that unlike Gable, Mr Armet's case raises 'numerous and serious questions to be tried'. Mr Armet also referred to the decision of Deputy Registrar Harman in Kieronski v Woodside Energy Ltd.[62]
[62] Appellant's written submissions, par 3.2; WB 17 citing Kieronski v Woodside Energy Ltd [2017] WADC 151.
Mr Armet submitted that the employer's 'length of negligence' at the workplace is 10 months and 2 weeks.[63]
[63] Appellant's written submissions, par (a); WB 17.
Mr Armet submitted that the employer's 'nature of wrongdoings and misconduct' occurred on numerous occasions.[64]
[64] Appellant's written submissions, par (a); WB 17.
Mr Armet submitted that 'the onset of the 6 injuries' appeared within '6 months 1 week and 4 days', that the realisation of each injury has been different, that the primary investigations conducted by Mr Armet have been different for each injury, that each injury took a different time to stabilise as they had different times of appearance, and that the final investigations of each injury leading to the assessment and report of permanent impairment was completed at different times.[65]
[65] Appellant's written submissions, pars (b) - (f); WB 17.
Mr Armet submitted that the 'natural course of … the 6 injuries have been the natural cause of delay in relation to the whole permanent impairment's completion' which is 'the main requirement for … election to seek common law damages with the Director'. Importantly, the major cause of delay was due to a medical representative retained by the employer's insurer who 'permanently denied acceptance of liability [for] 5 injuries'. Consequently, Mr Armet has been financially responsible for all medical examinations, assessments, investigations, reports and other expenses since September 2015.[66]
Employer's submissions
[66] Appellant's written submissions, pars 3.4; WB 18.
In broad terms, the employer contended that Stone DCJ was correct for the reasons he gave.
Mr Armet's applications in the appeal
Mr Armet filed six applications prior to the hearing of the appeal. The applications were filed on 2 January 2019, 13 February 2019, 19 July 2019, 28 August 2019, 23 September 2019, and 4 October 2019. Each application involved an application to adduce further evidence in the appeal. The application filed 23 September 2019 also seeks an order to the effect that there be a stay of this court's orders of 13 September 2019.[67] Following the hearing of the appeal, on 11 October 2019, Mr Armet also sought to file a further application for two documents to be received as 'part of the documentation in the appellant's case (future public interest)'.
Application of 2 January 2019
[67] On 13 September 2019, this court ordered (1) that the appellant's application filed 5 September 2019 (in effect to adjourn the hearing of the appeal and vacate the hearing date) is dismissed, and (2) the appellant is to pay the respondent's costs fixed in the sum of $750.
The application of 2 January 2019 seeks to adduce as evidence in the appeal:
1.The transcripts of the proceedings before Deputy Registrar Hewitt on 30 May 2018 and 5 July 2018.
2.Deputy Registrar's Hewitt's reasons in Armet.
3.An unfiled (and apparently proposed) amended statement of claim against the employer.
4.Email chains between Mr Armet and his previous solicitors, Perth City Legal and Stephen Browne Lawyers.
Application of 13 February 2019
The application of 13 February 2019 seeks to adduce as evidence in the appeal the medical reports of Dr Soni Narula dated 12 February 2018, Dr Ian Wallace dated 8 September 2016, Dr Hannes Gebauer dated 22 March 2017, and Dr Peter McCarthy dated 17 November 2017.
By this application, Mr Armet also seeks to adduce as evidence in the appeal a document prepared by Mr Armet alleging negligence and breaches of various Acts by the employer, the employer's representatives, Mr Armet's former solicitors, the arbitrator and the Principal Registrar and Deputy Registrar of the District Court.
Application of 19 July 2019
The application of 19 July 2019 seeks to adduce a document referred to by Mr Armet as a 'written plea'. The 'written plea' appears to be a submission to the effect that certain alleged acts and omissions of the employer, and third parties including, but not limited to, the employer's representatives, the arbitrator and the District Court have 'led to the incapacity and impossibility for [Mr Armet] to comply with the Act … and [elect] to retain his right to seek common law damages'.
Application of 28 August 2019
The application of 28 August 2019 seeks to adduce, in effect, the following evidence in the appeal:
1.Mr Armet's Freedom of Information application to WorkCover and WorkCover's decision to grant access to the documents requested.
2.Documents by which Mr Armet, in effect, questions the conduct and decisions of the arbitrator.
3.'Sections of interest' identified by Mr Armet.
4.Documents prepared by Mr Armet alleging irregularities within WorkCover's files provided to the District Court.
5.Letters from Mr Armet for the arbitrator's consideration.
6.Correspondence between the employer's solicitors and medical practitioners, correspondence between Mr Armet and medical practitioners, correspondence between the employer's insurer and medical practitioners, correspondence between the employer's insurer and Mr Armet, and correspondence between Mr Armet and Perth City Legal.
7.Documents filed by the employer and Mr Armet for the arbitration heard between 21 and 24 February 2017 in A34043, A34818 and A36114.
8.Orders made by the arbitrator.
9.Tax invoices and receipts, spreadsheets of costs, Medicare statements, certain expert and medical reports, medical certificates, checklists, records and forms maintained by the employer.
10.Mr Armet's resume.
11.Reference letters from previous employers.
12.A 'Hazard / Near Miss' report.
13.Workers' compensation claim forms.
14.Workers' compensation progress certificates.
15.Certain webpages, brochures and documents containing practices and procedures.
Application of 23 September 2019
The application of 23 September 2019 seeks to adduce about 105 documents as evidence in the appeal and in support of the application to stay the court's orders of 13 September 2019. The documents are, in effect:
1.Web, academic and journal articles.
2.Brochures, blog posts, and checklists.
3.The arbitrator's reasons for decision in A36114.
4.Documents prepared by Mr Armet alleging breaches of law by the employer, certain medical practitioners and the arbitrator.
5.Draft amended notices of appeal in relation to two of the arbitrator's decisions.
6.Submissions filed in the District Court.
7.Medical certificates, expert and medical reports and medical forms.
8.The employer's and Mr Armet's incident notification reports and forms.
9.Letters from Mr Armet 'to whom it may concern' and to the arbitrator.
10.WorkCover certificates of capacity, WorkCover medical certificates, workers' compensation claim forms, and a 'Hazard / Near Miss' report.
11.Correspondence between Stephen Browne Lawyers and Mr Armet.
12.Photographs of Mr Armet's feet, scalp and certain machinery.
13.Reference letters from previous employers.
14.Tax invoices and receipts.
15.Correspondence between Mr Armet and medical practitioners.
16.Correspondence between Mr Armet and the employer's insurer.
17.The arbitrator's reasons for decision in A34042.
18.Extracts of an occupational health and safety code of conduct.
19.Correspondence between Mr Armet and manufacturers of machinery.
20.Statements filed by the employer for the arbitration.
21.Correspondence between the employer's solicitors and experts.
22.A curriculum vitae of Pam Gabriels, an audiologist.
23.A 'WorkSafe Investigation Report'.
24.Mr Armet's Freedom of Information application to WorkCover.
25.WorkCover's decision to grant access to the documents requested.
Application of 4 October 2019
The application of 4 October 2019 seeks to adduce as evidence in the appeal a disparate range of documents, including:
1.'Final written plea'.
2.The Australian Constitution and various documents relating to various legal topics, including the Civil Liability Act 2002 (WA).
3.Various documents relating to human rights and international conventions, including the 'Convention on the Rights of Persons with Disabilities'.
Application of 11 October 2019
By this application, which Mr Armet attempted to file after the hearing of the appeal, Mr Armet, in effect, asked the court to receive as part of his case a document marked 'A.1' comprising nine pages, together with another document and accompanying email marked 'A.2', which referred, in terms, to 'Counter‑action Towards Cover‑up Operations at WorkCover WA'. The first document was an aide‑memoire handed up to this court by Mr Armet in the course of his oral submissions read by the coram.
Disposition
The appeal to this court
Stone DCJ's order to strike out the primary proceedings was not a judgment, order or determination in proceedings in the District Court under pt XIII of the Act for the purposes of s 254 of the Act. Part XIII of the Act deals with appeals to a District Court against an arbitrator's decision under pt XI of the Act. Stone DCJ's orders were not to that effect.
Accordingly, the appeal to this court arises under s 79(1) of the District Court Act 1969 (WA), which provides:
(1)A party to an action or matter who is dissatisfied with -
(a)a final judgment, may appeal from that judgment to the Court of Appeal;
(b)a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal,
notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act.
Although neither party directed attention to whether the orders of Stone DCJ were interlocutory or final, in the case of Re Luck,[68] the High Court held, in effect, that an order dismissing an action because it is frivolous, vexatious or an abuse of process, or does not disclose a reasonable cause of action, is an interlocutory order for appeal purposes.[69] The same must be true of an order to strike out on those grounds. On this basis, Mr Armet required leave to appeal under s 79(1)(b) of the District Court Act. Albeit in the context of an application for leave to appeal under s 254 of the Act, the following observations in Engine Protection Equipment Pty Ltd v Miller[70] are apposite:
Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed. (footnotes omitted)
The statutory scheme - constraints on the award of damages
[68] Re Luck [2003] HCA 70; (2003) 203 ALR 1.
[69] Re Luck [8] - [9].
[70] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46].
The statutory scheme in div 2 of pt IV of the Act is to be read consistently with the general principle that where the common law of tort gives the worker well‑established rights, they are not to be abrogated by statutory intervention in the absence of clear words or a necessary implication to that effect.[71]
[71] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [21].
An evident purpose of div 2 of pt IV of the Act is to deter the litigation of small, disproportionately costly, claims for damages in respect of workplace accidents.[72] On the other hand, s 93C in div 2 does not preclude the bringing or instituting of an action in circumstances where the Act does not permit the award of damages. The prohibition in s 93C is directed to the stage of the award of damages, rather than the institution of the action.[73]
[72] cf Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [30].
[73] Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152 [28] ‑ [30].
Further, another purpose of the Act is to make provision for disputes between parties involved in workers' compensation matters to be determined fairly, justly, economically, informally and quickly.[74] Although that object has particular relevance to pt XI ('Dispute resolution'), it has broader application in the context of div 2 of pt IV of the Act, read with div 2 of pt VII of the Act, insofar as provision is made for, in effect, the resolution of disputes by medical specialists as to the worker's degree of permanent whole of person impairment in accordance with particular timeframes.
[74] Section 3(d) of the Act.
The statutory scheme of subdiv 3 of div 2 of pt IV of the Act was summarised by Newnes JA (McLure P & Edelman J agreeing) in Acebrook Corporation Pty Ltd v McEwan,[75] from which the following is to a considerable extent taken.
[75] Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 [6] - [10]; Re White; Ex Parte Cunningham [2015] WASC 349 [14].
Pursuant to s 93K(4), 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.[76]
[76] Acebrook [6].
By s 93L(2) of the Act, the right to elect only arises if (1) the worker and the employer agree that the worker's 'degree of permanent whole of person impairment' is at least 15% and as to whether or not the worker's 'degree of permanent whole of person impairment' is at least 25%, or (2) the whole of person impairment has been so assessed to be a percentage that is not less than 15%, and (3) the Director has, at the worker's written request, recorded that agreement or assessment.
By s 93H of the Act, the worker's 'degree of permanent whole of person impairment' is evaluated in accordance with s 146A and s 146C.
By s 93L(4) of the Act, where a claim has been made for compensation by way of weekly payments, an election to retain the right to seek damages cannot be made after the 'termination day'.[77]
[77] Acebrook [6]; Re White [16].
The 'termination day' is defined in s 93M(1) to mean 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made', unless an extension of that time is granted by the Director under s 93M(4).[78]
[78] Acebrook [6]; Re White [17].
There are four circumstances in which an extension of the termination day may be granted under s 93M(4). They are, broadly speaking:[79]
1.Where before the termination day, an approved medical specialist[80] has certified that the worker's condition has not sufficiently stabilised for a 'normal evaluation' of the worker's degree of whole of person impairment to be assessed, and recommends some extended termination date: s 93M(4)(a).
2.The Director is satisfied that the employer has failed to comply with the notice requirements of s 93O: s 93M(4)(b).
3.The Director is satisfied that an approved medical specialist requires, or has required, more time (more than the time provided for in s 93O(1)(d) - effectively six weeks[81]) to provide the documents required by s 146H in relation to the worker's degree of whole of person impairment: s 93M(4)(c).
4.The Director is satisfied that:
(a)the worker, in accordance with the Regulations, has requested an assessment of the degree of their whole of person impairment within a specified time[82] which gives the medical specialist the opportunity to make the assessment and give the requisite documents under s 146H to the worker at least seven days before the termination day; and
(b)the worker was not given, or it was not practicable to give, the requisite documents required by s 146H at least seven days before the termination day: s 93M(4)(d).[83]
[79] Acebrook [7].
[80] An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCoverWA by order published in the Government Gazette: s 146F(1) of the Act.
[81] See s 93O(1)(d) of the Act, read with reg 24.
[82] In the case of a 'normal evaluation', the specified time is effectively six weeks: s 93M(4)(d)(i) and s 93O(1)(d) of the Act, read with reg 24. In the case of a 'special evaluation', the specified time is seven weeks: s 93M(4)(d)(ii) of the Act.
[83] Acebrook [7].
Section 93N relates to 'special evaluations' and provides, in effect, that if, after the expiration of six months after the day that would have been the termination day had there been no extension under s 93M(4), an approved medical specialist certifies that the worker's condition has not stabilised sufficiently for a 'normal evaluation' of their degree of permanent whole of person impairment (under s 146A and s 146C), then:
1.the worker may request a 'special evaluation' (in accordance with s 146A and s 146C) of the worker's degree of permanent whole of person impairment;
2.such request is to be made in accordance with the Regulations not later than eight weeks before the termination day, and is to be accompanied by the certificate referred to in subsection (1) to the effect that the worker's condition has not stabilised sufficiently for a 'normal evaluation'; and
3.the approved medical specialist is to make the 'special evaluation' (in accordance with s 146A and s 146C), unless by then the worker's condition has stabilised to the extent required for a 'normal evaluation', in which case the approved medical specialist is to make a 'normal evaluation' in accordance with those sections.
Under s 93O of the Act, about six months prior to the termination day the employer is required to notify the worker in writing of various matters, including (1) the day that would be the termination day if no later day were to be fixed under s 93M(4),[84] and (2) the amount of time that, according to the Regulations, an approved medical specialist can reasonably be expected to take to give the worker the documents required under s 146H after the worker has requested an assessment of the worker's degree of permanent whole of person impairment.
[84] Acebrook [10]; Re White [20].
By reg 23(6), if an application is made to the Director in the circumstances described in s 93M(4)(d)(i) or (ii) of the Act, the application must be accompanied by a copy of the worker's request for an assessment of the worker's degree of permanent whole of person impairment and, if the specialist has notified the worker that it would be impractical to give the documents required by s 146H within seven days of the termination day, the worker must also provide that notice to the Director.
By s 93M(8) of the Act, an extension of the termination day may be granted even though the termination day has passed.[85] Thus, for example, an extension might be sought if the termination day expired without the worker having been informed of the termination day and its future expiry in accordance with s 93O(1)(a) and (b). Although there is power to grant an extension of the termination day even though the termination day has passed, any application for an extension must still be in accordance with the Act and the Director has no power to extend other than in accordance with the provisions of the Act.
[85] Acebrook [8].
The extent to which the Director can extend the termination day under s 93M(4) is not unlimited. Section 93M(6) provides that, except in the circumstances described in s 93M(4)(d), an extension under s 93M(4) 'is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection'. That is, the time cannot be extended under any of s 93M(4)(a), (b) or (c) beyond one year after the day on which the termination day would have fallen if no extension had been granted.[86]
[86] Acebrook [9].
In general terms, the effect of s 94M(6) in its application to s 93M(4)(a), (b) and (c), is that the legislature has considered that an additional year, beyond what would otherwise have been the termination day, but no more, is sufficient to enable the worker to make an election in circumstances where:
1.An approved medical specialist had certified that an extension was required because the worker's condition had not, at the time of the certification, stabilised sufficiently for the purposes of making an election, and had recommended that a further specified time was necessary for that purpose (s 93M(4)(a)).
2.The worker was not given the requisite notice by the employer containing information relevant to the making of an election (s 93M(4)(b)).
3.The worker had requested the requisite documents, but the approved medical specialist required or indicated that they required, more than the specified time (of six weeks) to provide the requisite documents.
On the other hand, the effect of s 93M(6), in its application to s 93M(4)(d), is to allow the Director to extend the termination day (even beyond the one‑year period in relation to applications under s 93M(4)(a), (b) and (c)), 'for as long as the Director considers necessary to give the worker an opportunity to make an election'. It indicates that, in the contemplation of the legislature, where s 93M(4)(d) applies, the worker has not had a proper opportunity to make an election. The circumstances which enliven the power under s 93M(4)(d) are, broadly speaking, where the Director is satisfied that the worker has (effectively through no fault of his or her own) sought the requisite documents within time and in accordance with the Regulations, but the requisite documents are not made available to the worker at least seven days before the termination day, thereby effectively prejudicing the worker's ability to consider whether to make an election, and to make one, before the termination day.
The grounds of appeal
Ground 1, and the oral and written submissions in support of it, are ultimately to the effect that (1) Mr Armet's failure to make an election and to have the election registered for the purposes of s 93K(4)(a) and (b) of the Act was the fault of Mr Armet's former solicitors and/or the Director, and (2) the application of s 93K(4) would not produce a fair or just result to Mr Armet in the circumstances and, accordingly, s 93K(4) should not be taken to apply to the circumstances of his case.
These arguments have no merit. Section 93K(4) applies according to its terms, irrespective of the reasons why the election was not made and registered in accordance with the Act. Mr Armet's rights are governed by the provisions of the Act, and there is no broader consideration of justice which Mr Armet can invoke in order to circumvent the operation of the Act. On the proper construction of the Act, the Director did not owe Mr Armet any duties alleged by Mr Armet. In any event, there was no evidence of any impropriety or neglect by the Director or Mr Armet's former solicitors. In relation to Mr Armet's former solicitors, they effectively sought an extension of the termination day to 12 February 2017 consistently with the approved medical specialist's recommendation that the termination day be extended to that date.
The true question remains, however, whether Stone DCJ was correct to strike out Mr Armet's proceedings in the circumstances.
In Gable, Deputy Registrar Hewitt referred to, and distinguished, the decision of this court in St John of God Health Care Inc v Austin,[87] which was decided at a time when s 93K(4) was materially differently worded. In Austin, the worker alleged that she was injured on 18 June 2008. At that time, s 93K(4) of the Act provided:[88]
[87] St John of God Health Care Inc v Austin [2014] WASCA 11; (2014) 46 WAR 208.
[88] Austin [26].
93KConstraints on awards
…
(4)Damages in respect of an injury can only be awarded if -
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced within -
(i)the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or
(ii)any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;
and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%. (emphasis added)
In Austin, the majority held that under s 93K(4)(c)(i) of the Act (as it then stood) proceedings were required to be commenced by no later than 30 days after the Director gave the worker notice that the election had been registered. Proceedings were not required to be commenced during the 30‑day period commencing with the giving of the Director's notice that the election had been registered and expiring 30 days after that date. Accordingly, it was held that s 93K(4)(c)(i), as it then stood, did not preclude the recovery of damages in proceedings commenced prior to the making and registration of an election. The only limitation was that any proceedings had to be commenced by no later than 30 days after the Director gave the worker written notice of the registration of the election.
Section 93K(4) had been amended to its current form prior to the decision in Austin. The amendment was effected by s 96 of the Workers' Compensation and Injury Management Amendment Act 2011 (WA) as follows:
96.Section 93K amended
Delete section 93K(4)(c) and 'and' after it and insert:
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election[.]
In Kieronski, referred to by Mr Armet in his submissions, Deputy Registrar Harman declined to apply the reasoning in the two Gable cases. In Kieronski, the plaintiff commenced proceedings seeking damages for alleged psychiatric injury suffered in the course of her employment. No election had been made or registered. The plaintiff contended, in effect, that the reasoning in Gable No 2 was inapplicable because (1) s 93B(1) provided that div 2 of pt IV applied where, relevantly, 'compensation has been paid or is payable' in respect of the injury under the Act, and (2) the plaintiff in that case had not received compensation, and compensation was not 'payable', as she was awaiting a determination as to whether she had any entitlement to compensation. Deputy Registrar Harman accepted the plaintiff's contentions, and said:[89]
The defendant proposed that the reasons for decision of Parry J [sic] in Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 provides support for the proposition that it should succeed in the application. In that case the court awarded summary judgment to a defendant in circumstances where the plaintiff had not complied with s 93K(4). There is nothing in the reasons for decision that suggest consideration had been given to s 93B(1). The defendant did not suggest that the determination was binding.
[89] Kieronski [9].
Deputy Registrar Harman was apparently not referred to the decision of this court in Mokta v Metro Meat International Ltd.[90] In that case, the court considered the proper construction and application of s 93B(1) of the Act as it then stood. Section 93B(1) was then in materially identical terms to its present form, save that it referred to 'disability' rather than 'injury'. Section 93B(1) then provided:
(1)This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if -
(a)the disability was caused by the negligence or other tort of the worker's employer; and
(b)compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.
[90] Mokta v Metro Meat International Ltd [2005] WASCA 143.
In Mokta, the plaintiff brought proceedings in the District Court for common law damages in respect of alleged injuries suffered in the course of her employment caused by the negligence of the employer.[91] At the time, s 93C, read with s 93E, prohibited a court from awarding damages unless the worker's disability was agreed or determined to be 16% or more.[92] The plaintiff alleged that she suffered a disability of more than 16%. This was disputed by the employer, and the plaintiff said she would refer the dispute for determination. The plaintiff did not, however, refer the dispute for determination and no determination was made. She then filed the writ in the action, and the employer applied to strike it out. The primary judge initially stayed the proceedings to allow the plaintiff to have her level of disability determined.[93] The plaintiff then applied to the Director to determine her entitlement to compensation. Her application was dismissed by a Review Officer on the basis of non‑compliance with s 84I of the Act as it then stood (requirement to give notice) and s 64 of the Act as it then stood (failure to submit to a medical examination).[94]
[91] Mokta [4].
[92] Mokta [7].
[93] Mokta [10].
[94] Mokta [11].
After the claim for compensation was dismissed, the plaintiff then sought, in effect, to revive the proceedings which she had commenced. She contended that the constraints on the award of damages in div 2 of pt IV of the Act did not apply to her. That was because compensation was not 'payable' within the meaning of s 93B(1) because the Review Officer had rejected her claim for compensation as a result of her non‑compliance with s 64(1) and s 84I.[95] The court rejected the plaintiff's argument and said, in effect, that the plaintiff's right to compensation was not 'enforceable' by reason of s 64(1) and s 84I, but that this did not mean that compensation was not 'payable' for the purposes of s 93B(1).[96] Pullin JA (with whom Steytler P & Wheeler JA agreed) said:[97]
Sections 18 and 21 of the Act have the effect that an employer comes under a 'liability to pay' compensation ipso facto from the date of incapacity resulting from the disability. Once such incapacity is suffered, compensation is 'payable' instanter.
[95] Mokta [13], [20].
[96] Mokta [48] - [49].
[97] Mokta [44].
Similar reasoning is applicable to s 93B(1) in its current form. Section 93B(1) does not mean that the provisions of subdiv 3 of div 2 of pt IV of the Act are not applicable unless and until either compensation had been paid under the Act, or there is a determination that the worker is entitled to be paid compensation. In particular, compensation is 'payable' for the purposes of s 93B(1)(b) if and as soon as the worker has suffered an 'injury' (as defined in s 5) resulting in total or partial incapacity.[98] Those matters may be admitted or proven in proceedings in which they are a relevant issue between the parties, prior to payment of compensation, or without a determination under the Act that the worker is entitled to recover compensation under the Act.
[98] See s 18 and s 21 of the Act, and Engine Protection [49] - [54].
Two further decisions should be mentioned, although they were not referred to by the parties. In Gordon v Berowra Holdings Pty Ltd,[99] the New South Wales Court of Appeal addressed the operation of s 151C(1) of the Workers' Compensation Act 1987 (NSW), which provided:
A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.
[99] Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427.
In that case, the worker commenced proceedings prior to the expiration of the six‑month period after which notice of the injury had been given to the defendant. No point was taken by the defendant, and the parties ultimately settled the proceedings pursuant to an offer of compromise, which was accepted. After the acceptance of the offer, the defendant sought to file a defence pleading a contravention of s 151C(1) and contended that the proceedings were a nullity. The Court of Appeal found that the proceedings were not a nullity. Nevertheless, the court said:[100]
A defendant faced with a clear breach may move for summary dismissal. The court has no power to excuse non-compliance or to grant leave for the proceedings to continue. Most of the cases referred to above involved clear cases with no suggestion of waiver on the defendant's part. In many of them the only issue was whether the facts fell within the exceptional categories provided in s 151C(2) and its counterparts.
It is, however, fallacious to conclude that proceedings in breach have failed to engage the jurisdiction of the court, or are a nullity. The remarks of Glass JA in National Mutual Fire Co Ltd, referred to by the primary judge and relied on in this Court by the defendant, recognise that an additional inquiry must always be made. This is whether one can discern from the legislative scheme an intention that invalidity or nullity will be the consequence of non-compliance with a prohibition, however clearly it is expressed. Glass JA observed that the word 'mandatory' can be used in differing senses.
[100] Gordon [39] - [40].
An appeal to the High Court was dismissed: Berowra Holdings Pty Ltd v Gordon.[101] The plurality said:[102]
The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.
The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The 'right' which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.
Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a 'nullity'. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject matter with which the statute deals is 'rights' in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.
The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms. (footnote omitted)
[101] Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364.
[102] Berowra Holdings [34] - [37].
In this case, s 93K(4) of the Act was applicable, pursuant to s 93B(1), given that it was common ground that (1) Mr Armet was a worker within the meaning of the Act, and (2) he had suffered an injury (within the meaning of s 5) to his lower back on or about 18 March 2015, resulting in incapacity.
Mr Armet's cause of action, on which he sued the employer, was complete on or about 18 March 2015, when he suffered the back injury in the course of his employment allegedly through the negligence of the employer. The other injuries alleged in the statement of claim were alleged to be consequential upon the back injury. The applicable limitation period to the cause of action was three years.[103]
[103] Section 14(1) of the Limitation Act 2005 (WA) (unless an extension of time were given: s 39 of the Limitation Act).
Section 93K(4)(c) of the Act provides that damages can only be awarded if proceedings are 'commenced after' the Director gives the worker written notice of the registration of the election. The Director can only in turn give written notice after an election has been made and registered: s 93K(4)(a) and (b). There is no dispute that in this case, the primary proceedings were commenced by Mr Armet before Mr Armet had made an election and had it registered in accordance with the Act.
Whilst s 93C of the Act does not preclude a worker from commencing an action for damages,[104] s 93C, read with s 93K(4)(c), provides, in effect, that the court is not to award damages unless the proceedings in which the damages are claimed are commenced after the Director gives the worker written notice that the Director has registered the requisite election. It is unnecessary to decide for present purposes (there being no debate on the matter) whether s 93K(4)(c) operates as a substantive prohibition directed to the court in which the damages are claimed, or whether it operates to give the employer the right to require any such proceedings to be brought in conformity with s 93K(4) to be exercised in accordance with the procedural rules of court.[105]
[104] Western Metals [28] - [30].
[105] cf Berowra Holdings [34].
In this case, at least once the point was taken by the employer that s 93K(4) of the Act had not been complied with, Mr Armet could not properly continue to use the court's processes in the primary proceedings to obtain an award of damages contrary to s 93K(4). The continuation of the primary proceedings contrary to the legislative scheme governing the award of such damages would bring the administration of justice into disrepute.[106] In other words, at least once the point was taken by the employer in the circumstances of this case, the continuation of the primary proceedings constituted an abuse of process[107] and the proceedings were amenable to being struck out.[108] Stone DCJ was correct to strike out the primary proceedings.
[106] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [15].
[107] Batistatos [15].
[108] Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 95.
That is sufficient to dispose of ground 1, although it may also be observed that as at 31 October 2018, Mr Armet had, in any event, lost any prospect of making an election and having it registered in accordance with s 93K(4)(a) and (b) of the Act. By s 93M(6), there could be no extension beyond one year after the day that would have been the termination day had there been no extension - in this case 30 July 2016 - unless the circumstances in s 93M(4)(d) applied, and the circumstances which would enliven the Director's power to extend time under s 93M(4)(d) did not apply. Mr Armet had obtained an extension of the termination day to 12 February 2017. That date became the termination day for the purposes of any application for a further extension under s 93M(4)(d) of the Act. Mr Armet did not, however, request either a 'normal evaluation' in the time and in accordance with the Regulations as required under s 94M(d)(i), or a 'special evaluation' in the time and in accordance with the Regulations as required under s 94M(d)(ii) and in accordance with the provisions of s 93N(1) and (4).
There is no merit in ground 2. Having considered the transcript of the hearing, both before Deputy Registrar Hewitt and Stone DCJ, there is no basis upon which it could arguably be said that Mr Armet was not afforded procedural fairness. In particular, there is no evidence of bias or apprehended bias.
Ground 3 also lacks merit. The single issue before Stone DCJ concerned the proper construction and application of s 93K(4) of the Act, against a background in which the material facts were not in dispute. There was no material error in not referring to other affidavits of Mr Armet, or in failing to take into account allegations such as negligence, wrongdoing, past misconduct and financial hardship to Mr Armet. There was no discretion in the District Court to, in effect, waive the operation of s 93K(4) of the Act. None of the matters referred to by Mr Armet in relation to ground 3 has any bearing on the proper disposition of the appeal.
The interlocutory applications
The first six interlocutory applications of Mr Armet to adduce further evidence in this appeal should be dismissed. The documents referred to in [93.1] and [94] are already within the Green Appeal Book. The document referred to in [93.2] is in the Blue Appeal Book. The documents referred to in [93.3], [95], [96] and [99] are not evidence of anything. The documents referred to in [97] and [98] are, at least for the most part, not fresh evidence[109] or relevant to any issue in the appeal. Further, there is nothing to indicate that there was a significant possibility that the materials would lead to a different result if admitted.[110]
[109] cf Saunders v The Public Trustee [2015] WASCA 203 [88].
[110] Saunders [89].
Also, Mr Armet's application filed 23 September 2019 has no merit insofar as it is alleged that the documents justify the grant of a stay of this court's orders of 13 September 2019. The documents are irrelevant to the operation of this court's orders of 13 September 2019.
As to the application dated 11 October 2019, the document marked 'A.1' may be received as part of Mr Armet's submissions. The document marked 'A.2' has no relevance and should not be received.
Conclusion
None of the grounds of appeal has any reasonable prospect of succeeding, and none of Mr Armet's interlocutory applications to adduce additional evidence has any merit. The orders should be:
1.The appellant's applications filed 2 January 2019, 13 February 2019, 19 July 2019, 28 August 2019, 23 September 2019 and 4 October 2019 are dismissed.
2.The appellant have leave to file the application dated 11 October 2019 and rely on the document marked 'A.1' referred to in that application, and that application is otherwise dismissed.
3.Leave to appeal is refused.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza30 OCTOBER 2019
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