| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AUSTIN -v- ST JOHN OF GOD HEALTH CARE INC [No 2] [2013] WADC 42 CORAM : BOWDEN DCJ HEARD : 11 MARCH 2013 DELIVERED : 25 MARCH 2013 FILE NO/S : CIV 1953 of 2011 BETWEEN : KELLI ROBIN AUSTIN Plaintiff
AND
ST JOHN OF GOD HEALTH CARE INC
Defendant
Catchwords: Writ issued before election made to retain the right to seek common law damages - Meaning of the word 'within' in s 93K(4)(c)(i) - Nunc pro tunc Legislation: Workers' Compensation and Injury Management Act 1918 (WA) Result: Defendant's application for summary judgment dismissed
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Representation: Counsel:
Plaintiff : Mr E Meyers
Defendant : Mr G Hancy
Solicitors:
Plaintiff : Stephen Browne
Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Aurion Gold v Bilos [2004] WASCA 270
Austin v St John of God Health Care Inc [2012] WADC 167
Bird v Commonwealth of Australia (1988) 78 ALR 469
Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449
Dickin v BHP Billiton Ltd [2004] VSC 215
Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428
Earl of Morton's Trustees v Macdougall [1944] SC 410
Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114
Hewitt v Benale Pty Ltd [2002] WASCA 163
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369
Plumor Pty Ltd v Handley (1996) 134 FLR 265
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Inland Revenue Commissioners, Ex parte Knight [1973] 3 All ER 721
R v Verwayen (1990) 170 CLR 394
Re Monger, Ex parte Cross [2004] WASCA 176
Syrett v Vorbach (2001) 213 LSJS 185; [2001] SADC 46
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Transfield Pty Ltd v Rawstron [2005] WASCA 78
Ward v Walton (1989) 66 NTR 20
Watson v WorkCover Queensland [2005] QSC 225
Wier v Wier (2007) SADC 113
Yamamori (Hong Kong) Ltd v CTG Pty Ltd (1992) 109 FLR 249
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Introduction 1 The plaintiff alleges that on 18 June 2008 she sustained injuries in an accident whilst employed by the defendant. 2 She subsequently lodged a claim for workers' compensation. Liability was not admitted and remains in dispute. 3 She issued a writ on 16 June 2011, shortly prior to the three-year limitation period expiring. The writ alleges that her injuries were caused by the defendant's negligence and/or breach of contract of employment and/or were caused by her work partner's negligence for which the defendant is vicariously liable. 4 Prior to issuing the writ the plaintiff had obtained an assessment of her whole of person permanent impairment percentage (WPI) pursuant to s 93L(2)(b) of the Workers' Compensation and Injury Management Act 1981 (WA) (Workers Compensation Act) and regulations however she had not elected to retain the right to seek common law damages pursuant to s 93K of that Act.
The issue to be determined 5 The issue to be determined is whether the writ issued by the plaintiff, before she has elected to retain her right to seek common law damages is 'unsustainable' and therefore summary judgment ought to be entered for the defendant.
The application for summary judgement 6 The defendant applied for summary judgment and an order dismissing the plaintiff's claim. That application was heard and dismissed by Deputy Registrar Hewitt on 26 November 2012: Austin v St John of God Health Care Inc [2012] WADC 167.
The appeal 7 The defendant appeals and pursuant to r 15(6) of the District Court Rules 2005 the matter comes before me as a new hearing of the chamber summons for summary judgment. 8 This court looks at the matter afresh and reaches its own decisions and it is not necessary for any party to show an error of law or fact in the decision subject to the appeal. (Page 4)
The Legislation 9 As at the date of the writs issue the Workers Compensation Act provided. (Page 5)
93M. Termination day defined (Page 6)
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 - (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 (Page 7)
(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. … [Section 93M inserted by No. 42 of 2004 s. 79.] 10 Section 93K(4)(c) was amended, after the issue of the writ, effective from 31 August 2011, and now reads: 93K(4) (c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and ...
Matters not in dispute 11 It is common ground that: (i) Section 93K(4)(c)(i) as it was at the date of the writs issue, and not as subsequently amended, is the applicable provision; (ii) The termination day prescribed in s 93M of the Workers Compensation Act has not occurred; (iii) The plaintiff has not elected to retain their right to seek common law damages pursuant to s 93K(4); and (iv) The plaintiff may at some future date make an s 93K(4) election and request the Director to record that election and receive written notification from the Director that the election has been registered.
s 93K(4)(c)(i) 12 The critical issue is the interpretation of s 93K(4)(c)(i), which as we have seen, provided at the relevant time:
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93K (4) Damages in respect of an injury can only be awarded if … (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) … 13 The plaintiff says this section should be interpreted as meaning court proceedings must be commenced no later than 30 days after the Director gives the worker written notice that he has registered the election. 14 The defendant says this section should be interpreted as meaning court proceedings must be commenced during the period of 30 days after the Director has given written notice that the worker's election has been registered.
The plaintiff's submissions 15 The plaintiff says that if there interpretation is correct, as the termination date has not expired, and they can still make their s 94K election at a future date the court proceedings were issued 'within' the required period of time notwithstanding that at the date of writs issue they have not made their election nor has it been registered and the Director has not yet given written notice that he has registered that election. 16 They rely on a number of decisions interpreting 'within' as setting the outer limit of the date by which compliance must be achieved. 17 In Ward v Walton (1989) 66 NTR 20 the Full Supreme Court of the Northern Territory considered the meaning of s 44(3)(b)(i) of the Limitation Act 1935. The section provided: (3) This section does not … (b) empower a Court to extend a limitation period prescribed by this Act unless it is satisfied that: (i) facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period of occurring after the expiration of that period , and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or … (Page 9)
18 Asche J, with whom Gallop J agreed, said: ... So far as the Oxford English Dictionary defines 'within' in temporal terms, those definitions are as follows. 'In the limits of (a period of time); most usually, before the end of, after, not more than; also, since the beginning of, not more than … ago; or generally between the beginning and end of, in the course of, during' Clearly some of those definitions favour the appellant ('before the end of') some, the respondent ('during'). In the context, however, and to avoid an otherwise absurd result, I consider the former meanings appropriate. For it seems to make good sense for the court to be satisfied that 'the action was instituted within' (i.e., before the end of or not later than) '12 months after the ascertaining of those facts by the plaintiff'. 19 Asche J referred to R v Inland Revenue Commissioners, Ex parte Knight [1973] 3 All ER 721, 727 (Russell LJ) where s 103(2) of the Taxes Management Act 1970 (UK) provided that proceedings for the recovery of any penalty for tax fraud or wilful default be commenced at any time within three years from the final determination of the amount of tax covered by the assessment. However proceedings were commenced before a final determination had been made. The Court of Appeal held that the words 'within three years' meant that proceedings may be commenced at any time 'not later than' the expiration of three years from the final determination. 20 Ward v Walton has been followed in Plumor Pty Ltd v Handley (1996) 134 FLR 265 where McClelland CJ noted: [T]he word 'within' is capable of meaning 'no later than' in an appropriate context … and in my opinion has that meaning in the context of this contract. 21 His Honour specifically rejected the argument that the phrase 'within 24 hours of the date of this contract'required the application to be made after the date of the contract, saying that it could be made no later than 24 hours from the date of the contract. 22 Ward v Walton was also followed in other cases including Dickin v BHP Billiton Ltd [2004] VSC 215, Yamamori (Hong Kong) Ltd v CTG Pty Ltd (1992) 109 FLR 249 and Watson v WorkCover Queensland [2005] QSC 225. 23 In the later case the section provided: 308(2) However, the proceedings must be brought within 60 days after a compulsory conference for the claim is held. (Page 10)
24 Mullins J held this required the proceedings to be brought before the expiration of 60 days after the compulsory conference whether or not the proceedings were brought before or after the compulsory conference [37]. 25 In Earl ofMorton'sTrustees v Macdougall [1944] SC 410, the Agricultural Holdings (Scotland) Act 1923 required a notice to be given, within one month after the expiration of the calendar year in which damage occurred, before a landlord could claim compensation for damages done to his crop by game. The landlords' notice was sent before the expiration of the calendar year in which the damage occurred. The majority held: …
… 'within' when applied to a period of time most usually means, ‘before the end of ‘…it seems to me that that is a sufficient meaning to give to the words of the statute – in other words to read them as prescribing a time limit on the expiry of which, if the claim and particulars have not been given, the claim will prescribe.
26 Ward v Walton has not been followed in cases including: Wier v Wier (2007) SADC 113, Syrett v Vorbach (2001) 213 LSJS 185; [2001] SADC 46. 27 Further the plaintiff says that as the word 'within' is capable of several meanings and the Workers Compensation Act is remedial legislation a beneficial interpretation ought to be applied in the case of ambiguity: Bird v Commonwealth of Australia (1988) 78 ALR 469. 28 They also say that the plaintiff's common law rights cannot be taken away in the absence of clear words expressing Parliament's intent to do so: Dossett v TKJ Nominees Pty Ltd (2003) 202 ALR 428 (Kirby J). 29 The plaintiff says there is no basis to order summary judgement because the writ is not a nullity and they have complied with the Limitations Act and s 93K of the Workers Compensation Act does not effect their ability to issue a writ as it only prescribes limits on the damages which a court can award so that even if damages could not be awarded at the time the writ was issued, if by the time of judgment the prerequisites of s 93K have been met the court can award damages. 30 Alternatively they say that if s 93K(4)(c)(i) requires the writ to be issued during the period of 30 days after the Director gives written notice that he has registered their election that section is procedural and any (Page 11)
subsequent compliance with s 93K before judgement will validate the writ retrospectively, or as said in Latin nunc pro tunc. 31 They rely by analogy on a number of cases which have held that the constraints imposed by div 2 of the Act, (where s 93K(4) is found) prohibiting a court from awarding damages otherwise than in conformity with similar provisions, are procedural in nature as they prohibit or qualify the remedy which a court may grant rather than barring or eliminating the right to damages.Re Monger, Ex parte Cross [2004] WASCA 176 [164], [165], [184] (EM Heenan J). See also Transfield Pty Ltd v Rawstron [2005] WASCA 78 [44]. 32 One of the consequences of the sections being procedural is that where a grant of leave is required before proceedings are instituted, and had not been obtained, those proceedings are not invalid if leave is obtained subsequently on a nunc pro tunc basis: Re Monger, Ex parte Cross and Transfield Pty Ltd v Rawstron. 33 The plaintiff accepts that any non-compliance with s 93K(4) that exists at the time of the writs issue must be overcome by the time the court awards damages. If it is not the plaintiff cannot recover damages, however if it is, any invalidity attaching to the writ is overcome by giving the complying acts a retrospective effect.
The defendant's submissions 34 The defendant does not contend the writ is a nullity. 35 They say s 93L deals with the plaintiff's right to elect to retain a claim for common law damages and requires as prerequisites that the worker and the employer agree that the degree of the worker's permanent whole of body impairment is at least 15% or the impairment has been so assessed by an approved medical specialist, and the Director has, at the worker's written request, recorded that agreement or assessment and that the worker makes his election before the termination day. 36 Whilst they accept that the termination day has not been reached they point out the plaintiff has not made the required election. 37 They say s 93K(4) deals with the courts ability to award damages and has the prerequisites that (a) the worker makes an election (b) the Director registers that election (c) the Director gives written notice that the election has been registered (d) court proceedings are commenced (Page 12)
within 30 days after that notification has been received and (e) the court is satisfied that the WPI is not less than 15%. 38 The defendant says a combination of s 93K and s 93L and the statutory scheme of the Workers Compensation Act effectively means there is only a narrow window of opportunity for a plaintiff to issue a writ in workers' compensation/common law claims, that being 30 days after the plaintiff receives notification from the Director that her election has been registered. 39 The defendant says as that window has yet to present itself as, self-evidently the proceedings were not commenced during that 30 days period, the court cannot award damages and the action is unsustainable, frivolous and fertile and the action ought to be dismissed. 40 They say the statutory context of the legislation requires the court to interpret the word 'within' in s 93K(4)(c)(i) as meaning court proceedings seeking damages must be commenced during the period of 30 days after the Director has given written notice that the workers election has been registered. 41 They do not dispute there are many cases where the word 'within' has been interpreted as meaning 'no later than', however they say given the statutory context of the section and Thomas Peacock & Sons Pty Ltd v Abreu[2013] WASCA 19 the appropriate way to interpret the words is as they have outlined. 42 They say that s 93K(4) should not be interpreted as having a beneficial operation for workers but as a legislative provision that had the intended effect of imposing constraints on awards of common law damages: Hewitt v Benale Pty Ltd [2002] WASCA 163 [124] - [126] (Heenan J), [75] - [76] (Hasluck J). 43 In Abreuthe Court of Appeal considered, albeit in a different context, s 93K of the Workers Compensation Act. 44 The principle issue determined in Abreu was whether s 14(1) of the Limitation Act 2005(WA) (the Limitation Act) applied to a claim for damages for personal injury suffered by a plaintiff in the course of his employment and whether the cause of action for damages accrues for the purpose of s 14(1) of the Limitation Act when the worker obtains an assessment that he or she has a permanent impairment greater than 15% or when they first become aware, or there is the first manifestation consistent (Page 13)
with such an injury, that they have suffered a personal injury which is not insignificant. 45 During the course of their reasons, the Court of Appeal dealt with the general structure of the Act, obviously in light of the issues before them. 46 The Court said: 15 … Section 93K was introduced as part of wide-ranging amendments to the Workers' Compensation Act made by the Workers' Compensation Reform Act 2004 (WA). They included a number of amendments to the provisions of the Act relating to restrictions on the awarding of damages for personal injury … For present purposes, the significant alteration was the imposition, by s 93K(4), of a 30-day period after the Director gives the worker written notice that the Director has registered the worker's election to retain the right to damages within which the worker was required to commence any proceedings for damages. Previously, no time period was specified. … 24 The evident purpose of div 2 of pt IV of the Workers' Compensation Act is to impose constraints on the award of damages in actions for common law damages against employers by employees who are injured in the course of their employment … 25 Under s 93K(4), an injured worker can only be awarded common law damages against an employer if the worker elects to retain the right to do so. The right to elect only arises if the worker and the employer agree that the degree of the worker's permanent whole of body impairment is at least 15% or the impairment has been so assessed by an approved medical specialist, and the Director has, at the worker's written request, recorded that agreement or assessment: s 93L(2) … 26 If a claim for weekly compensation has been made with respect to the injury, the election to retain the right to seek damages cannot be made after the 'termination date': s 93L(4). The 'termination date' is one year after the date on which the claim for weekly compensation was made (s 93M(1)), unless the Director extends the time under s 93M(4). One of the circumstances in which the Director may extend the time is where an approved medical specialist has certified that the worker's condition has not sufficiently stabilised to allow an assessment to be made as to whether the worker's impairment is at least 15%: s 93M(4)(a) … 27 Once the Director gives the worker notice that the worker's election to retain the right to seek damages has been registered, the worker (Page 14)
must commence proceedings for damages within 30 days: s 93K(4). 28 The effect, therefore, of s 93K(4) is that no award of damages can be made unless by the termination date the worker has elected to retain the right to seek damages and, within the 30-day period after notice of registration of that election, has commenced an action for damages. Section 93K(4) does not extinguish the cause of action, it prescribes a time within which an action for damages must be commenced if the court is to have the power to award damages. Whether this makes s 93K(4) a limitation provision within the meaning of s 9(2) of the Limitation Act was not the subject of any submissions. However, even if it is it makes no difference to what follows. … 30 … The procedure set out in div 2 is directed to ensuring that an injury meets the statutory threshold before proceedings are commenced. The election by a worker to 'retain' his or her right to damages can only be made once it has been determined that the injury meets the threshold. Once that has been determined and the election registered, it is then incumbent upon the worker to commence any legal proceedings promptly (that is, they must be commenced within the 30-day period after notice that the election has been registered), failing which the court will have no authority to award damages. 31 The time limits under the Workers' Compensation Act by which the relevant steps are to be taken envisage that the process will not be unduly prolonged. Section 178 of the Workers' Compensation Act contemplates that ordinarily proceedings for recovery of compensation under the Act must be made within 12 months of the injury. Subject to certain limited circumstances in which the time may be extended (s 93M(4)), the termination date by which an election to retain the right to damages must be made will ordinarily be one year from the first date upon which a claim for weekly payments of compensation is made.
Determination 47 The principles applicable to statutory construction were considered by Beech J in Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449, [33] - [42] and for these purposes can be stated as follows: 48 The starting point for the construction of a statute is the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27. (Page 15)
49 The words of the statute must be interpreted having regard to their context and the legislative purpose. Context is used in a wide sense Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [153] - [155]. 50 Pursuant to s 18 of the Interpretation Act 1984 (WA) a construction that promotes the purpose or object underlying a written law (whether that purpose is expressly stated in the written law or not) shall be preferred to a construction that would not promote the purpose or object. 51 A provision of a statute must be construed consistently with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]. 52 The word 'within' can have the meaning suggested by both parties. The context in which it is used and the intents, objects and purposes of the legislation is critical to its interpretation. 53 I do not consider the doctrine of beneficial interpretation of remedial statutes applies. I consider, as in Hewitt v Benale Pty Ltd, the intended effect of this section is to remove or restrict access to common law remedies. 54 Construing s 93K(4)(c)(i) as requiring the worker to commence proceedings by a date no later than 30 days after the Director has given notification that the election has been registered gives effect to one of the ordinary meanings of the word 'within' and has much to commend it. 55 The statutory scheme in which the section appears includes s 93M which specifies the latest date a worker can make an election to retain the right to seek common law damages (the termination day). The worker's right to make that election no later than the termination day is protected by statute. 56 To interpret the section in the manner in which the defendant suggests could result in a plaintiff whose statutory given right to elect to retain the right to seek common law damages has not expired effectively being unable to issue a common law writ for damages within the period allowed him by the Limitation Act. 57 Notwithstanding this I consider the Court of Appeals dicta in Abreu to be decisive. Whilst I accept the issues for the Court of Appeal's consideration were different the court clearly dealt with the legislative (Page 16)
scheme. In particular the court recognised that there may be cases where the limitation period expires before the requirements of s 93K(4) of the Workers Compensation Act are complied with [34]. 58 The observations contained at [27], [28] and [30] and [34] deal with the scheme of the act and lead me to conclude that the legislative scheme is such that there must be a determination that the injury meets the 15% WPI threshold, followed by an election, followed by the registration of that election, followed by notification to the worker that the registration has been elected, followed by the commencement of proceedings during the 30 day period after receiving that notice. 59 I therefore conclude that the preferred construction, consistent with the Court of Appeal's decision in Abreu, and one of the ordinary meanings of the word 'within', and the purposes and intent of the legislation is as contended by the defendant and the section does requires court proceedings to be commenced during the period of 30 days after the Director has given written notice that the worker's election has been registered. 60 However the issue of whether s 93K(4) is procedural in nature and therefore any irregularity in the issue of the writ can by cured by retrospective compliance with s93K(4) was not raised for the courts consideration in Abreu. 61 In Re Monger, Ex parte Cross Malcom CJ [70], EM Heenan J [163] - [164] and Wheeler J [115], were of the opinion that the constraints imposed by div 2 part IV of the Act, were procedural and 'non-jurisdictional' in nature because the constraints bar the remedy rather than the right and one of the consequences was that proceedings instituted, in those cases without a grant of leave would not be invalid if leave was obtained subsequently on a retrospective basis. This was followed in Transfield Pty Ltd v Rawstron (Steytler P, with whom McClure JA and Pullin JA agreed). 62 Whilst Re Monger, Ex parte Cross and Transfield Pty Ltd v Rawstron both dealt with sections other than s 93K(4) by analogy they apply. 63 It appears the test is whether s 93K(4)(c)(i) contains a condition being effectively a condition precedent to the exercise of a court's power to award damages such that compliance after the writ has been issued cannot validate proceedings with retrospective effect or whether it is truly procedural such that proceedings can be validated subsequently: (Page 17)
Commonwealth v Verwayen (1990) 170 CLR 394, 422 - 428, Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114; Re Monger, Ex parte Cross and Transfield Pty Ltd v Rawstron. 64 There is a presumption against facts or matters being considered 'jurisdictional' unless the intention of Parliament to the contrary is clearly expressed: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, 391 (Dixon J), Aurion Gold v Bilos [2004] WASCA 270 [63] (EM Heenan J). 65 The prohibition referred in s 93K(4)(c)(i) is against the court awarding damages, that must relate to the point in time when damages are assessed, there is no expressed intention by Parliament that the prohibition be treated as 'jurisdictional' or an 'essential preliminary' to the exercise of the power to awards damages such that it applies at the time the writ is issued. This fact and the persuasiveness of Re Monger, Ex parte Cross and Transfield Pty Ltd v Rawstron leads me to conclude that the section is indeed procedural and provided at the time the court assess damages the requirements of s 93K(c)(i) are fulfilled the proceedings are validated on a retrospective or nunc pro tunc basis and therefore the defendant's application for summary judgment must be dismissed and I order they pay the plaintiff's costs of the appeal and the hearing before Deputy Registrar Hewitt.
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