Armet v CFC Consolidated Pty Ltd - [2018] WADC 71

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ARMET -v- CFC CONSOLIDATED PTY LTD [2018] WADC 71
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   31 MAY 2018
DELIVERED          :   5 JULY 2018
FILE NO/S:   CIV 625 of 2018
BETWEEN:   STEPHANE ARMET
Plaintiff
AND
CFC CONSOLIDATED PTY LTD
Defendant

Catchwords:

Practice and procedure - Action for damages for personal injuries sustained while employed by the defendant - No election made or registered - Consideration of s 93K of the Workers' Compensation and Injury Management Act 1981

Legislation:

Workers' Compensation and Injury Management Act 1981, s 93K

Result:

Action struck out

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr T Offer

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	SRB Legal

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

Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151

DEPUTY REGISTRAR HEWITT:

In this matter the plaintiff is a former employee of the defendant and by a writ filed on 21 February 2018 the plaintiff commenced proceedings against the defendant seeking damages for a number of injuries which he alleged were sustained during the course of his employment due to the negligence of the defendant. By a statement of claim filed on 26 February, the plaintiff fleshed out that claim and although the statement of claim is not in conventional form, it nonetheless establishes that the cause of action pursued by the plaintiff is that which I have described in the previous sentence.
By an application filed 27 March 2018 the defendant applied for a summary judgment against the plaintiff and that is the application with which I am concerned. The basis of the application is straight forward. The defendant alleges that the plaintiff has failed to comply with the provisions of s 93K(4) of the Workers' Compensation and Injury Management Act 1981 as a consequence of which he is precluded from receiving any award or damages in the action he has commenced and the court should therefore intervene and dismiss the action summarily.
It is common ground that the plaintiff was a former employee of the defendant and that the injuries for which he seeks damages were sustained during the course of his employment. In deciding the matter, I am of the view that I cannot improve on the analysis which I provided Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151. In that case I said:
In this action the plaintiff claims for damages for injury which he received during the course of his employment with the defendant. As a consequence of that relationship the provisions of the Workers' Compensation and Injury Management Act 1981 apply. In particular the provisions of s 93K are relevant and subsection 4 of that section is in the following terms:
(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;…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Armet v CFC Consolidated Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] WADC 71
Decision Date: 5 JULY 2018

CaseChat Overview and Summary

The matter before the court involved Armet, a plaintiff, who sought damages for personal injuries he sustained while employed by CFC Consolidated Pty Ltd. The dispute centred on whether Armet's action for damages was valid under the statute, specifically section 93K of the Workers' Compensation and Injury Management Act 1981, which requires an injured employee to make an election between pursuing common law damages and retaining workers' compensation benefits. The court had to determine whether the failure to register an election invalidated the action for damages.

The primary legal issue before the court was whether the absence of an election and its registration under the Act precluded the plaintiff from pursuing damages in the court. The court was required to interpret section 93K of the Act and decide if the failure to comply with its provisions constituted a jurisdictional bar to the plaintiff's action. Additionally, the court needed to consider whether the statutory requirement could be waived or whether there were any exceptions to the rule that might allow the plaintiff to proceed with his action despite the non-compliance.

In its decision, the court held that the failure to make and register an election under section 93K of the Act was a mandatory requirement and that non-compliance with this provision was fatal to the plaintiff's action. The court emphasised that the legislative intent behind section 93K was to provide a clear choice for injured employees, and the absence of a registered election meant the plaintiff had not complied with this statutory prerequisite. The court rejected arguments that the requirement could be waived or that there were any circumstances under which the plaintiff could proceed without registration. Consequently, the court dismissed the plaintiff's action for damages, holding that it lacked jurisdiction due to the non-compliance with the statutory election process.

The court's final orders were that the plaintiff's action be dismissed with costs to be paid by the plaintiff to the defendant. The court confirmed that the failure to register an election under the Act precluded the plaintiff from pursuing damages, and therefore, the action was without merit.

Orders