Barminco Investments Pty Ltd v O'Brien

[2006] WASCA 88

BARMINCO INVESTMENTS PTY LTD & ANOR -v- O'BRIEN [2006] WASCA 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 88
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:49/2005	Heard:	21 MARCH 2006
Coram:	STEYTLER P MCLURE JA PULLIN JA	Delivered:	29/05/06
No of pages:	33	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	BARMINCO INVESTMENTS PTY LTD PLUTONIC GOLD PTY LTD GREGORY WILLIAM O'BRIEN
Catchwords:	Workers' compensation Amending Act Whether retrospective effect Right to sue for damages at common law Right to apply for leave to bring proceedings under repealed legislation Where proceedings not issued until after commencement of Amending Act Whether any right preserved by s 37(1) Interpretation Act 1984 (WA)
Legislation:	Interpretation Act 1889 (UK), s 38(2)(c) Interpretation Act 1984 (WA), s 37(1), s 37(2) Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 5 Workers' Compensation and Rehabilitation Act 1981 (WA), s 93C, s 93D, s 93E(3)(b), s 93E(4), s 93E(8) Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32
Case References:	Abbott v Minister for Lands [1895] AC 425 Boyce v Hughes (1970) 72 SR (NSW) 54 Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139 Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291 Director of Public Works v Ho Po Sang [1961] AC 901 Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197 Duca v Aherns Holdings Pty Ltd [2004] WADC 85 Esber v Commonwealth (1992) 174 CLR 430 Fisher v Hebburn Ltd (1960) 105 CLR 188 Hamilton Gell v White [1922] 2 KB 422 Hanna-Pauley v David Jones Limited [2004] WADC 69 Heading v Elston (1980) 23 SASR 491 Henderson v KCut Pty Ltd & Anor [2004] WADC 13 Jabar-Khail v Troon Holdings Pty Ltd [2004] WADC 108 JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 Mathieson v Burton (1971) 124 CLR 1 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Moray County Council v Maclean [1962] SLT 236 Plewa v Chief Adjudication Officer [1995] 1 AC 249 Re Monger; Ex parte Cross [2004] WASCA 176 Resort Management Services Limited v Noosa Shire Council [1997] 2 Qd R 291 Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 Smith v United KG Engineering Services Pty Ltd [2004] WADC 194 Starey v Graham [1899] 1 QB 406 Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228 Commonwealth v Flaviano (1996) 40 NSWLR 199 Commonwealth v Verwayen (1990) 170 CLR 394 Major Motors v Short (2004) 36 SR (WA) 107 Pinnacle Services Pty Ltd v Downsborough [2005] WASCA 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARMINCO INVESTMENTS PTY LTD & ANOR -v- O'BRIEN [2006] WASCA 88 CORAM : STEYTLER P

MCLURE JA
PULLIN JA

HEARD : 21 MARCH 2006 DELIVERED : 29 MAY 2006 FILE NO/S : CACV 49 of 2005 BETWEEN : BARMINCO INVESTMENTS PTY LTD

First Appellant

PLUTONIC GOLD PTY LTD
Second Appellant

AND

GREGORY WILLIAM O'BRIEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER STAVRIANOU

File No : CIVO 178 of 2004

(Page 2)

Catchwords:

Workers' compensation - Amending Act - Whether retrospective effect - Right to sue for damages at common law - Right to apply for leave to bring proceedings under repealed legislation - Where proceedings not issued until after commencement of Amending Act - Whether any right preserved by s 37(1) Interpretation Act 1984 (WA)

Legislation:

Interpretation Act 1889 (UK), s 38(2)(c)

Interpretation Act 1984 (WA), s 37(1), s 37(2)
Workers' Compensation (Common Law Proceedings) Act 2004 (WA), s 5
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93C, s 93D, s 93E(3)(b), s 93E(4), s 93E(8)
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), s 32

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

First Appellant : Mr G W Nutt
Second Appellant : Mr G W Nutt
Respondent : Mr J R Johnson

Solicitors:

First Appellant : Jarman McKenna
Second Appellant : Jarman McKenna
Respondent : Julian Johnson

(Page 3)

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

Abbott v Minister for Lands [1895] AC 425
Boyce v Hughes (1970) 72 SR (NSW) 54
Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139
Chief Adjudication Officer v Maguire [1999] 1 WLR 1778
Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291
Director of Public Works v Ho Po Sang [1961] AC 901
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197
Duca v Aherns Holdings Pty Ltd [2004] WADC 85
Esber v Commonwealth (1992) 174 CLR 430
Fisher v Hebburn Ltd (1960) 105 CLR 188
Hamilton Gell v White [1922] 2 KB 422
Hanna-Pauley v David Jones Limited [2004] WADC 69
Heading v Elston (1980) 23 SASR 491
Henderson v KCut Pty Ltd & Anor [2004] WADC 13
Jabar-Khail v Troon Holdings Pty Ltd [2004] WADC 108
JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161
Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647
Mathieson v Burton (1971) 124 CLR 1
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Moray County Council v Maclean [1962] SLT 236
Plewa v Chief Adjudication Officer [1995] 1 AC 249
Re Monger; Ex parte Cross [2004] WASCA 176
Resort Management Services Limited v Noosa Shire Council [1997] 2 Qd R 291
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
Smith v United KG Engineering Services Pty Ltd [2004] WADC 194
Starey v Graham [1899] 1 QB 406
Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1
Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595
Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228

Case(s) also cited:

Commonwealth v Flaviano (1996) 40 NSWLR 199
Commonwealth v Verwayen (1990) 170 CLR 394
Major Motors v Short (2004) 36 SR (WA) 107
Pinnacle Services Pty Ltd v Downsborough [2005] WASCA 142

(Page 4)

1 STEYTLER P: I have had the advantage of reading the judgment of Pullin JA.

Circumstances giving rise to the appeal

2 In a nutshell, the circumstances giving rise to the appeal are as follows.

3 The respondent worker suffered a disability, in the course of his employment, prior to 5 October 1999. The law as it then stood, under Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the former provisions"), was that the worker's right to recover common law damages in respect of a disability was conditional upon his being given leave to commence proceedings accordingly and leave could only be given, in the respondent's case, if the degree of his disability was or was agreed to be 30 per cent or more, or if he was likely to have future pecuniary loss that was at least equal to the then prescribed amount: s 93D(1), (2), (3) and (4) of the former provisions. Section 93C of the Act provided that a court was not to award damages to a person contrary to Div 2.

4 By 5 October 1999 the respondent had neither commenced common law proceedings in respect of his disability nor applied for leave to do so. On that day, the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("1999 Act") was assented to and came into operation. That Act repealed s 93D of the former provisions. Instead, a regime was implemented whereby leave to commence proceedings for common law damages in respect of a disability was no longer required, but different restrictions were imposed on the awarding of common law damages. Damages could not be awarded if the degree of disability was less than 16 per cent: s 93E(3)(b) and (4). If the degree of disability was between 16 per cent and 30 per cent, damages could be recovered if the worker elected to recover them, but that election had the result that no workers' compensation payments could be recovered after the date upon which it was registered: s 93E(3)(b) and (8). If the degree of disability was 30 per cent or more, the worker could commence proceedings for the recovery of common law damages without losing the right to receive further payments of workers' compensation. The amount recoverable for non-pecuniary loss was capped for the first time. Section 93C remained in force.

5 Section 32(7) of the 1999 Act provided that the amendments effected by that Act did not affect the awarding of damages in proceedings commenced before 5 October 1999, or for the commencement of which the District Court gave leave under the former provisions before that day,

(Page 5)

and the former provisions continued to apply in relation to those proceedings. Because the respondent had neither commenced proceedings nor applied for leave to do so before 5 October 1999, he believed that the 1999 Act applied to him. He issued a writ, on 9 August 2000, claiming common law damages against his employer, the second appellant, who joined the first appellant as a third party. The respondent then applied for a determination that he had a degree of disability of 16 per cent or more.

6 On 4 December 2003, the High Court published its judgment in Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1. In that case, too, the worker had suffered a disability before 5 October 1999. However, he had, by that date, filed an application under s 93D(4) of the former provisions for leave to commence proceedings for common law damages. The High Court decided that, notwithstanding that the 1999 Act had come into effect before leave had been granted, leave could still be granted under s 93D(4) of the former provisions. The Court referred to s 37(1) and (2) of the Interpretation Act 1984 (WA) which, relevantly, provides that:

"(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –

…

(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable … prior to the repeal;

…


(2) The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."

The High Court held that s 32(7) of the 1999 Act manifested no intention to oust the operation of s 37(1) of the Interpretation Act and that s 93D of the former provisions applied to the worker's application.

7 Then, perhaps relying on a number of judgments which had been given in the District Court since the decision in Dossett (these are
(Page 6)

discussed in the judgment of Pullin JA), the respondent applied for leave, under s 93D(4) of the former provisions, to commence an action against the appellants in respect of his disability. He was given leave, by a Deputy Registrar of the District Court, on 3 September 2004.

8 On 25 October 2004 the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) ("CLP Act") came into effect. Section 5 of that Act reads as follows:

"5. Provisions applying to awarding of damages

(1) This section -


(a) is to be read in conjunction with section 32 of the 1999 Act as if this section were incorporated with and formed part of that section; and

(b) applies in addition to section 32(7) of the 1999 Act.


(2) Despite section 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in subsection (3) or in the amended provisions —

(a) the amended provisions apply to, and affect the awarding of damages in, a proceeding; and

(b) the former provisions do not apply to, or affect the awarding of damages in, a proceeding,

unless it is a proceeding -

(c) commenced before the assent day; or

(d) for the commencement of which a court gave leave under the former provisions before the assent day.


(3) Despite subsection (2), section 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in section 6(4) -

(a) the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and

(Page 7)

(b) the former provisions apply to, and affect the awarding of damages in, a proceeding,

that is a proceeding -

(c) commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provisions; or

(d) for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent … "

Questions arising in the appeal

9 The appellants' appealed against the decision of the Deputy Registrar, made on 3 September 2004, to a Commissioner of the District Court. They contended that leave should not have been granted to the respondent under the former provisions. The Commissioner dismissed the appeal. The questions that arise in the further appeal to this Court from the Commissioner's decision are essentially these:

1. Whether the former provisions applied to the respondent at the time at which he was given leave to commence his common law action.

2. Whether the respondent was bound by what was said to have been his election to commence proceedings on 9 August 2000 under the 1999 Act, either by way of the operation of the doctrine of election or by way of that of estoppel.

3. Whether, if the answer to either of questions 1 or 2 is "Yes", the Commissioner should have found that the grant of leave was consequently not preserved by s 5(3)(d) of the CLP Act.

Did the former provisions apply?

10 The answer to the first question is aided by an analysis of what was said in Dossett. While the decision in that case was made in the context of, and was directed to, an application for leave which was pending at the time of the coming into operation of the 1999 Act (see McHugh J at [15] and [17], Gummow, Hayne and Heydon JJ at [45] and Kirby J at [88]), and while it was there conceded ("properly", accordingly to Gummow,

(Page 8)

Hayne and Heydon JJ at [35]), that, at 5 October 1999, the situation of the appellant answered the terms of one or more of pars (b), (c) and (f) of s 37(1) of the Interpretation Act, the reasoning of the Court is instructive.

11 All of the Judges considered that s 32(7) of the 1999 Act was not exhaustive in its identification of the proceedings to which the former provisions were to apply and that there was nothing in that Act to exclude the operation of s 37(1) of the Interpretation Act: McHugh J at [11]; Gummow, Hayne and Heydon JJ at [44]; and Kirby J at [77] and [81]. They also considered that the operation of the 1999 Act was such as to amount to a repeal of the relevant former provisions for the purposes of s 37.

12 McHugh J, in his judgment, made no analysis of what was, or was not, a "right" for the purposes of s 37(1)(c) of the Interpretation Act. However, in the course of referring to s 32(7) of the 1999 Act, he said (at [11]) that that section had nothing to say about whether "the right to apply for leave" may continue. Gummow, Hayne and Heydon JJ, in their judgment, said (at [21]) that the common law of tort gave the appellant "well established rights" in respect of his injury and that, at the time he sustained that injury, there had been "a partial legislative inroad" into those rights. They went on to say (also at [21]) that the outcome of the appeal turned "upon the question as to whether a subsequently enacted and more restrictive legislative regime applies to the appellant's common law rights".

13 Kirby J, in his judgment, said (at [59]) that nothing in the Workers' Compensation Act, either before or after the 1999 Act, abolished the appellant's common law rights and that all that happened was that the enforcement of those rights was made the subject of procedural conditions, both before and after the 1999 Act. However, he went on to say (at [80]) that "the suggested interposition of an abolition of the entitlement to seek the District Court's approval to commence proceedings at common law, can hardly be described as procedural only". He said that, if the respondent's argument in that case was good, the combined effect of s 93C of the Workers' Compensation Act and s 32(7) of the 1999 Act would effectively destroy the entitlement of the appellant to enforce his rights and that such a "procedural burden" would be fatal. He also said (at [85]) that "the requirement that legislation having the propounded effect of abolishing individual rights must be clear and unambiguous is a longstanding and important one" and that it "applies to a right, such as the common law right of the appellant to damages, notwithstanding that such

(Page 9)

right has been made conditional upon fulfilment of procedural requirements".

14 The respondent in this case had, on 5 October 1999, a common law right to bring proceedings against his employer, which right had been subjected to a partial legislative restriction brought about by the requirement to obtain leave which, in turn, was conditioned by the requirements of s 93D(5) of the former provisions. That seems to me to have been recognised by Gummow, Hayne and Heydon JJ in Dossett at [21]. The common law right, albeit partially restricted by statute, was, as those Judges said, well established. The question which arises is consequently similar to that which arose in Dossett, namely whether a subsequently enacted and more restrictive legislative regime applies to the respondent's common law right.

15 That question was touched upon by this Court in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1, the decision in which pre-dated Dossett. In that case, the appellant had applied for and been refused leave to commence proceedings under the former provisions. He appealed. Before the appeal could be heard, the 1999 Act came into force. Two issues arose on the appeal. The first was whether the primary Judge had erred in refusing the appellant leave to commence proceedings in the District Court. The second was whether, if the primary Judge had so erred, the Full Court should make an order giving the appellant leave to commence proceedings, after the 1999 Act had come into effect.

16 Parker J wrote the lead judgment. What he said as regards the second of the two issues (being that which is relevant for the purposes of this appeal) was agreed with by Malcolm CJ, Pidgeon and Owen JJ (Wheeler J having decided that issue upon a different basis). He categorised (at [57]) the appellant as having had a "contingent entitlement to an award of damages at common law in accordance with the [Workers' Compensation and Rehabilitation] Act" and said that the question arose:

" … whether by virtue of the failure to issue the writ the contingent right or entitlement of the appellant is properly to be categorised as perhaps merely 'a power to take advantage of an enactment', as in Mathieson v Burton (1971) 124 CLR 1 at 23, which power had not then been sufficiently exercised so as to give rise to a (contingent) right 'created, acquired, accrued, established or exercisable' prior to the appeal within the meaning of s 37(1)(c)".

(Page 10)

17 After considering the decision of the Privy Council in Abbott v Minister for Lands [1895] AC 425, Parker J said (at [60]) that the reasoning in that case led him "to the question whether the present appellant has taken steps towards availing himself of his contingent right or entitlement to an award of damages in accordance with the former provisions sufficient to give rise to a right 'created, acquired, accrued, established or exercisable' within the meaning of s 37(1)(c)". He went on to conclude (at [62]):

"In the context of this particular statutory scheme it seems to me that a worker claiming to have an entitlement to an award of damages at common law in accordance with the former provisions, who in accordance with the former provisions sought leave of the District Court to commence proceedings, and pursued that application for leave to the point of decision by the court only to have leave refused, and who had instituted an appeal against that refusal and was duly pursuing that appeal, and who thereby had a right to have that refusal of leave reversed and to have a grant of leave if it had been wrongly refused by the District Court, has taken clear and manifest steps, and at that stage cannot do more under the statutory scheme, 'towards availing himself' of the right."

18 Malcolm CJ made a number of additional comments. Relevantly, for present purposes, in a passage that was referred to by Gummow, Hayne and Heydon JJ in Dossett at [30], he said (at [17]):

"In my view, there is no inconsistency between the provisions of section 32(7) of the … [1999] Act and section 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the … [1999] Act applies, unless one or other of the saving provisions in section 37(2) applies."

19 The question whether a right has or has not been "acquired" or has or has not "accrued" for the purposes of s 37 of the Interpretation Act involves a close analysis of the right itself and of the basis upon which the Courts have, until now, approached provisions such as s 37.

20 First, it seems from the cases that a statutory right available to the public at large is unlikely to be regarded as an accrued right for the purposes of a provision such as s 37(1) unless the person asserting the

(Page 11)

right has taken appropriate steps, or some event has happened, to enable him or her to take advantage of the right by the date of the repeal: Abbott at 430 - 431 and Resort Management Services Limited v Noosa Shire Council [1997] 2 Qd R 291 at 303 [45]. As the Privy Council pointed out in Abbott at 431, it is common for repealing statutes to save all rights accrued and, if it were held that the effect of this was to leave it open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching. D C Pearce and R S Geddes Statutory Interpretation in Australia (5th ed) 2001 point out at [6.8] that the repeal of any Act must affect "rights" in the general sense as the law will henceforth be different from what it was and, if the Interpretation Act section was to preserve those "rights", the effect of the repeal would be rendered nugatory. The authors refer to what was said by Channell J in Starey v Graham [1899] 1 QB 406 at 411 (cited with approval by Sugerman P in Boyce v Hughes (1970) 72 SR (NSW) 54 at 57, whose reasons were, in turn, approved by a majority of the High Court in Mathieson v Burton (1971) 124 CLR 1) to the effect that a right acquired "means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got".

21 Similarly, in Hamilton Gell v White [1922] 2 KB 422 at 431, Atkin LJ, in a passage cited with approval by Gibbs J in Mathieson at 23, said of s 38(2)(c) of the Interpretation Act1889 (UK) (which provided that, "where … any Act … repeals any other enactment … the repeal shall not affect any right … acquired … under any enactment so repealed") that it was obvious that the provision was not intended to preserve "abstract rights" and that it only applied to the specific rights given to an individual upon the happening of one or other of the events specified in the statute.

22 The cases of Abbott, Hamilton Gell and Director of Public Works v Ho Po Sang [1961] AC 901 were considered by Lord Hunter in Moray County Council v Maclean [1962] SLT 236; [1962] SC 601 at 606 who extracted the following propositions from them:

(a) "[T]he mere abstract right to take advantage of a statutory enactment if 'right' it can properly be called, is not a 'right acquired' or a 'right accrued' within the meaning of section 38(2)(c) of the Act of 1889".

(b) "[E]ven if a person has taken steps to put statutory machinery in motion, the statutory proceedings

(Page 12)

may only by the date of repeal have reached the state when he has a hope or expectation of acquiring a right. In such a case it almost goes without saying that there is no right 'acquired' or 'accrued'".

(c) "[W]here statutory machinery has been set in motion and the statute is afterwards repealed, there may be a right 'acquired' or 'accrued' under the statute, although at the date of repeal further steps are still necessary to prove that the right did in fact exist at the date of repeal and even to prove the measure of the obligation incurred."

(d) "[A] right can, at any rate in certain circumstances, be a 'right acquired' although it may at the date of repeal still be of a contingent nature".

23 Section 16(1)(c) of the Interpretation Act 1978 (UK) (which had, by then, replaced s 38(2)(c) of the 1889 Act) was considered by the Court of Appeal in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778. Simon Brown LJ, who gave the lead judgment (Lord Justices Waller and Clarke were largely in agreement with him) referred (at 1784) with apparent approval to what had been said by Lord Hunter in Moray County Council. He also referred (at 1786) to Plewa v Chief Adjudication Officer [1995] 1 AC 249 in which Lord Woolf had said (at 259 - 260):

"Inchoate rights, obligations and liabilities are covered by (c). This was established by Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541. In that case the Privy Council had no difficulty in construing the Ceylon Interpretation Ordinance 1900 as including an inchoate or contingent right and the same approach should be adopted to the interpretation of 'right', 'obligation', or 'liability' in section 16 of the Act of 1978. The section clearly contemplates that there will be situations where an investigation, legal proceeding or remedy may have to be instituted before the right or liability can be enforced and this supports this approach."

24 Simon Brown LJ went on to say (at 1787) that the Court was concerned with a single question, being that of whether the claimant had established that, at the time of appeal, he had a right. He went on to say:
(Page 13)

"True, as Lord Evershed observed in the Free Lanka case, at p 552: 'The distinction between what is and what is not "a right" must often be one of great fineness'. But there are now to be found in the authorities helpful touchstones by which to reach the correct answer. A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right."

He concluded his review of the cases (at 1788) by saying that what they established was essentially that whether or not there was an acquired right dependent upon whether, at the date of repeal, the claimant had an entitlement (at least contingent) to money or other certain benefit receivable by him, provided only that the claimant took all reasonable steps by way of notices and/or claims thereafter.

25 In the same case, Clarke LJ, after dealing with the facts (which concerned a claimed right to a special hardship allowance under the repealed provisions of s 60 of the Social Security Act 1975 (UK)), said (at 1790):

"Mr Maguire could make a claim (as long as he did so in time) in order to enforce the right which was conferred on him by section 60 as soon as he satisfied the substantive criteria under the section. The right can be analysed in more than one way. It can be said that from that time he had a right to a benefit which he could enforce by making a claim in accordance with section 165A. Alternatively, it can be said that from that time he had a right to make a claim, which was the way in which Lord Hunter analysed the facts in the County Council of Moray case, 1962 S.L.T. 236, 240. As the authorities show, the fact that the right may be characterised as contingent on some future event, namely, the making of a claim, is not relevant provided that it can fairly be said that Mr Maguire had a right and not merely a hope or expectation at the date of the repeal."

26 In Resort Management Services, the Queensland Court of Appeal was required to consider s 20(1)(c) of the Acts Interpretation Act 1954 (Qld), which reads as follows:
(Page 14)

"Where any Act repeals … wholly or in part any former Act … then, unless the contrary intention appears, such repeal … shall not –

…

(c) Affect any right, interest, title, power, or privilege created, acquired, accrued, established, or exercisable, or any status or capacity existing, prior to such repeal … "

27 The facts in that case were that, on 15 December 1990, the respondent's land was injuriously affected by an amendment to a town planning scheme. As at that date, he was given a right, by s 33(10)(a) of the Local Government Act 1936 (Qld), to obtain compensation in respect of the injurious affection. On 14 December 1993, within the time which had been allowed by s 33, the respondent lodged a claim for compensation for the injurious affection. However, s 33 had by then been repealed. The question arose whether or not his entitlement to compensation survived the repeal. The Court held that it did.

28 The lead judgment was given by Fryberg J (with whom McPherson and Moynihan JJ were largely in agreement). After saying (at 302) that the language of s 20(1)(c) was not susceptible of precise definition, he went on to approve what had been said by Fox J in JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 at 163, as follows:

"It is not possible to define an 'accrued right', anymore than it is a 'right', but the notion which underlies the latter, when dealing with the present type of problem, is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to affect the situation adversely."

29 Then (at 304) Fryberg J dealt with an argument to the effect that the decision in Abbott required that an individual who wished to bring himself within the ambit of s 20 was obliged to take some step, before the repeal of the enactment upon which he relied, to take advantage of the enactment. He said, in that respect:

"In my view, the reference made by the Judicial Committee to an 'act done by an individual towards availing himself of that right' was intended as an example of the way in which a general

(Page 15)

right might be converted into a specific right in the sense referred to by Atkin LJ [in Hamilton Gell at 431]."

30 McPherson J, in his judgment, said (at 295) that the question whether or not a "right" survived a repeal of the statute that created it depends on the nature of that right, as well as the meaning to be ascribed to that word in s 20(1)(c) considered in the context of decided authorities and of analogies that fairly arise from them. Then, after addressing the facts of the case before him, he said (at 298):

"No doubt it is true that, unless a claim for compensation is made, no compensation will be paid; but it does not follow that, until such a claim is made, the entitlement has no existence, or that it is of such an inchoate or contingent character as to be beyond the scope or protection of s. 20(1)(c). By way of analogy, a common law right to recover damages is viewed as a chose in action before any judgment for damages is given, and even before any writ or claim to recover it has been issued or made. As such, it is a form of personal property capable of attracting the protection of the law: cf. Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 C.L.R. 297.

The 'entitlement' to compensation conferred by s. 33(10) of the Local Government Act is admittedly a creature not of the common law but of statute; but it is not, for that reason, less capable of being considered a 'right' within the meaning of s. 20(1)(c) of the Acts Interpretation Act. It may be taken away, as it was created, by statutory enactment; but so too may a right at common law. The primary purpose of s. 20(1)(c) is to prevent rights which have been created or conferred by statutes from being casually, or it may be unintentionally, destroyed by repeal of the statute and without any further or other specific indication of a legislative intention to do so going beyond the fact of the repeal itself. Apart from that, s. 20(1)(c) has no recognisable function."

31 Some of these cases, and others, were considered by the New South Wales Court of Appeal in Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291. In that case Handley JA, with whom Giles JA was in agreement, decided (at [30]) that the "right" contended for by the claimant was not protected by s 30(1) of the Interpretation Act 1987 (NSW) (which provided that the amendment or repeal of an Act did not
(Page 16)

"affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act") because he "had no ascertainable right or entitlement defined by reference to past facts" similar to the rights to compensation in such cases as Hamilton Gell, Resort Management Services and Maguire.

32 That brings me back to this case. The respondent had, at the time of the repeal, a real and ascertainable right defined by reference to past events, being the fact of the injuries which led to his disability which, the respondent said, were brought about by the negligence of his employer. His right was one to recover damages, arising out of a cause of action given to him by the common law. Because that cause of action had arisen before the repeal he had, in that respect, an accrued right, albeit one into which the legislature had, before the 1999 Act, made some statutory inroads. He was entitled to enforce that right by making a claim in accordance with the then legislative provisions.

33 While I appreciate that the conclusion that the respondent had an accrued right prior to the repeal effected by the 1999 Act, notwithstanding that he had taken no steps to exercise it, differs from that arrived at by Malcolm CJ (obiter) in Toolan, and from the assumption made (also obiter) by Parker J in that case, it seems to me that what those Judges said in this respect is not consistent with what was later said by Gummow, Hayne and Heydon JJ in Dossett. As I have stressed, they regarded the relevant "rights" as having been those given by the common law of tort to the appellant, albeit the legislature had made a partial inroad into them. If those rights were accrued rights, as it seems to me they must have been, then it follows that, unless the contrary intention appeared from the repealing statute, they were protected by s 37(1)(c).

34 That brings me to the question whether or not any contrary intention does appear from the 1999 Act. Counsel for the appellants contended that, because the limitations on the right to bring proceedings that were imposed by the 1999 Act have been held to be procedural, as to which see Re Monger; Ex parte Cross [2004] WASCA 176 per Malcolm CJ at [76] - [77] and per Heenan J at [165], that Act should be presumed to have been intended to have a retrospective operation. I am unable to accept that proposition. The High Court has said, in Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 at 615 - 616 per Deane, Dawson, Toohey and Gaudron JJ, that:

"The relevant question for the purpose of determining whether it is to be presumed that a statutory provision was not intended

(Page 17)

to have retrospective operation in the sense of applying to past events is not … whether it can be broadly characterised as a procedural provision. It is whether the provision's operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable. As the Court explained in Rodway v The Queen (1999) 169 CLR 515 at 518, per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ:

'The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural — statutes of limitation, for example — may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation.'"

35 As Kirby J pointed out in Dossett, the abolition of the entitlement to seek the District Court's approval to commence proceedings in respect of a claim at common law has the consequence, in at least some cases, of effectively destroying a worker's entitlement to enforce his or her rights. That being so, it has a substantive operation and there is no basis for a presumption of retrospectivity.
(Page 18)

36 The answer to the first question is consequently "No".

Was there an election?

37 As to the second question, I agree with Pullin JA that there was no election or estoppel. As he has pointed out, the respondent had no choice between the different statutory regimes at the time at which he is said to have made his "election". Only one or the other applied and it was only his (or, more accurately, his legal advisors') mistaken construction of the 1999 Act (a mistaken construction which they had in common with many others) that led to him issuing a writ on 9 August 2000. As soon as the mistake was appreciated, the appropriate application was made.

38 The second question should accordingly also be answered "No".

The third question

39 Given the answers to questions 1 and 2, this question falls away.

Conclusion

40 I would dismiss the appeal.

41 MCLURE JA: I agree with Steytler P.

42 PULLIN JA: This is an appeal against the decision of Commissioner Stavrianou in the District Court who dismissed the appellant's appeal against the decision of Deputy Registrar Hewitt, who had granted leave to the respondent pursuant to s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) as it stood before certain parts of it were repealed on 5 October 1999 ("old WCR Act"), to commence action against the appellants.

Facts

43 On or about 11 May 1999 and on or about 16 September 1999 or between those dates, the respondent allegedly suffered an injury ("Disability" as defined in the old WCR Act) in the course of his employment with the first appellant. The respondent therefore had a "well established" (Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [21]) right of action for damages against the first appellant although it was affected by the provisions of the old WCR Act. The respondent alleges that the second appellant was the respondent's deemed employer pursuant to s 175 of the old WCR Act.

(Page 19)

44 At the time when the disability was suffered, s 93D(1) Pt IV Div 2 provided that damages could only be awarded if the disability resulted in the death of the worker or a serious disability. Section 93D(2) defined a disability to be serious where the degree of disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more, or the future pecuniary loss resulting from the disability was of an amount that is at least equal to the prescribed amount. Section 93D(4) provided that proceedings in which damages were sought were not to be commenced without the leave of the District Court. Leave was to be granted in certain circumstances including if the degree of disability was 30 per cent or more as agreed between the parties, or determined to be so, or if the court determined that the worker was likely to have future pecuniary loss resulting from the disability of an amount that was at least equal to the prescribed amount. Section 93C directed a court not to award damages contrary to Div 2. In summary, these restraints meant that without a grant of leave the court would not issue a writ and so the workers could not get proceedings underway. Leave would not be granted unless the worker could show that he had a disability of 30 per cent or more or could satisfy the court that his pecuniary loss would be likely to be at least equal to the prescribed amount.

45 On 5 October 1999 the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("1999 Act") was assented to and came into operation. Section 32 of the 1999 Act repealed s 93C and s 93D and substituted other sections which imposed restrictions on a court's authority to award damages at common law. The requirement to obtain leave to sue was removed in the 1999 Act. Under the 1999 Act, the court's jurisdiction to award damages was restricted by reference to, inter alia, the degree of the worker's disability which differed from the restrictions in the old WCR Act. A worker now had to demonstrate that he had a disability agreed or determined to be 30 per cent or more in which case the worker was free to issue common law proceedings while still drawing workers' compensation payments or to show he had a "significant disability" (being a disability between 16 and 30 per cent) in which case he could elect to proceed with the common law action, but in such event, workers' compensation payments then ceased. The court was restrained from awarding any damages to a worker whose disability was less than 16 per cent.

46 Under the 1999 Act, non-pecuniary loss was now capped for the first time.

47 Section 32(6) and (7) of the 1999 Act provided:

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"(6) In subsections (7) and (8) -

'amended provisions' means Part IV Division 2 of the principal Act as amended by this section;

'assent day' means the day on which this Act receives the Royal Assent;

'former provisions' means Part IV Division 2 of the principal Act before it was amended by this section.


(7) The amended provisions do not affect the awarding of damages in proceedings -

(a) commenced before the assent day; or

(b) for the commencement of which the District Court gave leave under the former provisions before the assent day,


and the former provisions continue to apply in relation to those proceedings."

48 No action had been commenced by the respondent and no application for leave had been made by the respondent under s 93D(4) of the old WCR Act before the 1999 Act came into operation. As a result, neither of the conditions in s 32(2) of the 1999 Act applied and therefore s 32(7) had no application to the respondent's claim.

49 On 9 August 2000, and without obtaining leave to do so, the respondent issued a writ in the District Court claiming damages against the second appellant in respect of the Disability. The second appellant joined the first appellant as a third party. It seems that the respondent believed that the 1999 Act applied to him because he made an application for a determination that he had a degree of disability of not less then 16 per cent or alternatively not less than 30 per cent.

50 Section 37 of the Interpretation Act 1984 (WA) at all material times provided:

"(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears –

…

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(b) affect the previous operation of the enactment repealed or anything done or suffered under that enactment;

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

…

(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.

(2) The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals."

51 On 4 December 2003 the High Court handed down its decision in Dossett v TKJ Nominees Pty Ltd (supra) which held that, in relation to a pre-5 October 1999 workplace injury in respect of which an application for leave to commence proceedings had been filed but not determined by 5 October 1999, s 93D of the old WCR Act applied and the District Court had jurisdiction to grant leave.

52 Between 4 February 2004 and 22 September 2004, six judgments of different Judges in the District Court concluded that in relation to pre-5 October 1999 workplace injuries, the Court had jurisdiction to grant leave under s 93D of the old WCR Act even though the application for leave had not been filed before 5 October 1999.

53 On 5 July 2004 the respondent (perhaps influenced by those District Court judgments which by then had been delivered), applied for leave to commence an action against the appellants. The application for leave was made pursuant to s 93D of the old WCR Act in relation to the disability

(Page 22)

suffered in 1999 between the dates referred to above. The respondent asked that the order be made retrospective to 8 August 2000.

54 On 3 September 2004, Deputy Registrar Hewitt granted leave and granted liberty to apply for an order that leave be "retrospective to 8 August 2000".

55 On 25 October 2004 the Workers' Compensation (Common Law Proceedings) Act 2004 (WA) ("Common Law Act") came into operation. Section 5 of that Act is in the following terms:

56 "5. Provisions applying to awarding damages

(1) This section -

(a) is to be read in conjunction with section 32 of the 1999 Act as if this section were incorporated with and formed part of that section; and

(b) applies in addition to section 32(7) of the 1999 Act.


(2) Despite section 37 of the Interpretation Act 1984 and any other law, written or unwritten but except as otherwise stated in subsection (3) or in the amended provisions —

(a) the amended provisions apply to, and affect the awarding of damages in, a proceeding; and

(b) the former provisions do not apply to, or affect the awarding of damages in, a proceeding,

unless it is a proceeding -

(c) commenced before the assent day; or

(d) for the commencement of which a court gave leave under the former provisions before the assent day.


(3) Despite subsection (2), section 37 of the Interpretation Act 1984 and any other law, written or unwritten, but except as otherwise stated in section 6(4) -

(a) the amended provisions do not apply to, or affect the awarding of damages in, a proceeding; and

(Page 23)

(b) the former provisions apply to, and affect the awarding of damages in, a proceeding,

that is a proceeding -

(c) commenced on or before the day on which this Act receives the Royal Assent with the leave of a court under the former provisions; or

(d) for the commencement of which a court gave leave under the former provisions on or before the day on which this Act receives the Royal Assent or on District Court file number WC 93D 1194/1998."

57 The appeal by the appellants against Deputy Registrar Hewitt's grant of leave was dismissed by Commissioner Stavrianou on 8 April 2005. Commissioner Stavrianou followed the six District Court judgments.

Dossett's case

58 Before I refer to the arguments advanced before Commissioner Stavrianou and repeated in this Court, I will refer to aspects of the Dossett case.

59 In Dossett's case the disability was suffered before the 1999 Act came into operation and an application for leave had also been made. It was pending but undetermined on the date when the 1999 Act commenced. After that date the application came on for hearing in the District Court which concluded that it lacked power to grant leave because of the 1999 Act. The worker appealed and the Full Court of this Court dismissed the appeal. The worker appealed to the High Court which allowed the appeal. At the hearing in the High Court the issue was whether the application for leave pending at the time the 1999 Act commenced, was saved by s 37 of the Interpretation Act. The employer respondent made an important concession which was recorded by Gummow, Hayne and Heydon JJ at [35]. The concession was conditional as I explain below. It was to the effect that, in the events that had happened (in particular, the suffering by the appellant of his injury on 2 December 1996 and the pendency of his leave application to the District Court), at the critical date of 5 October 1999, when s 32(5) of the 1999 Act came into effect and, in its terms, repealed s 93D of the Workers' Compensation Act, the situation of the worker answered the terms of one or more of par (b), par (c) and par (f) of s 37(1) of the Interpretation Act.

(Page 24)

Their Honours said that the concession was "properly" made. The concession was conditional because the respondent submitted that s 37 did not apply because of the arguments referred to in the next paragraph. Only if those submissions were rejected did the concession apply.

60 The respondent submitted that reliance on s 37 of the Interpretation Act must fail because the opening words required a "repeal" and it was submitted that the 1999 Act did not repeal s 93D of the WCR Act but rather "substituted" another provision. That submission was held to have no substance. See McHugh J at [8], Gummow, Hayne and Heydon JJ at [37] and Kirby J at [83]. The respondent also submitted that s 37 of the Interpretation Act did not apply if another enactment contained a contrary intention, and that s 32(7) of the 1999 Act did contain such a contrary intention. This submission was rejected by the Court. See McHugh J at [11], Gummow, Hayne and Heydon JJ at [44] and Kirby J at [84]. Finally, the respondent's submission that s 37 of the Interpretation Act had been impliedly repealed by the 1999 Act was also rejected. As a result the Court held that s 93D of the old WCR Act "continued to apply" to the pending application and that the District Court did have power to grant leave under that section (Gummow, Hayne and Heydon JJ at [45], McHugh J at [17] and Kirby J at [88]).

Dossett extension cases

61 There then followed a series of District Court judgments where the Court held that in circumstances where a disability had been suffered by a worker before the 1999 Act came into operation, and yet there had been no pending application for a grant of leave under the old s 93D, that the Court could, by virtue of s 37 of the Interpretation Act, grant leave to commence proceedings on applications instituted after the commencement of the 1999 Act. See Henderson v KCut Pty Ltd & Anor [2004] WADC 13 (Macknay DCJ), Hanna-Pauley v David Jones Limited [2004] WADC 69 (Williams DCJ), Duca v Aherns Holdings Pty Ltd [2004] WADC 85 (Chaney DCJ), Jabar-Khail v Troon Holdings Pty Ltd [2004] WADC 108 (O'Sullivan DCJ) and Smith v United KG Engineering Services Pty Ltd [2004] WADC 194 (Martino DCJ) and Downsborough v Pinnacle Services Pty Ltd [2004] WADC 197 (Martino DCJ). In the first of those cases, Macknay DCJ noted that the respondent in Dossett had made the concession about the application of s 37 of the Interpretation Act if its other arguments failed. Macknay DCJ said that he did not consider that the High Court distinguished between the situation where an application had been made and the situation where no application had been made before the 1999 Act had come into force. His Honour said:

(Page 25)

"31 Further, counsel for the second defendant was unable to point to any reason why such a distinction ought be drawn.

32 None comes to mind.

33 In my view the necessary effect of the finding of the High Court is that the interpretation [sic]Act s 37(1) has application in all cases that fall within it.

34 And a right to make an application to bring proceedings in negligence clearly falls within s 37(1)(c) and (f)."

62 Williams DCJ in the Hanna-Pauley case also said that he was unable to find in the High Court's reasons, anything to the effect that there should be a difference between an injured person who had commenced proceedings before the assent date and an injured person who had not. He therefore considered that the case was not distinguishable from Dossett. Chaney DCJ in Duca's case, noticed what was said by Malcolm CJ at [17] in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 at [17]:

"In my view, there is no inconsistency between the provisions of s 32(7) of the Amendment Act and s 37 of the Interpretation Act. The result is, where no relevant proceedings are pending as at 5 October 1999, then, irrespective of the date of the accident or the date upon which the injury or disability occurred, the Amendment Act applies unless one or other of the saving provisions in s 37(2) applies."

63 Chaney DCJ noted that this passage had been quoted in the joint judgment in Dossett with apparent approval, but also noted that it was quoted in the context of observations as to the existence of inconsistency between the provisions of s 32(7) of the 1999 Act and s 37 of the Interpretation Act.

64 Chaney DCJ also noted that the principal reasons in Toolan were delivered by Parker J and that all the other members of the Court agreed with his Honour's reasons and that Malcolm CJ's observations were additional (and therefore non-binding obiter) remarks. Chaney DCJ noted that Parker J in Toolan's case discussed the application of s 37(1) to conditional rights and that he had accepted the proposition recognised by the majority in Esber v Commonwealth (1992) 174 CLR 430 at 440 that a right was nonetheless a right because it was conditional. His Honour then

(Page 26)

agreed with Macknay and Williams DCJ that the rationale of Dossett could be applied equally to a right to damages subject to the condition of applying for, and obtaining leave "as it can to a right that is subject to the condition of obtaining leave on an application already made". In Jabar-Khail v Troon Holdings, O'Sullivan DCJ said that he noted the concession made in Dossett but thought there was no reason to think that the concession was only made because the worker had both been injured and had an application for leave pending on the assent day. His Honour said:

"The 'well established rights' which Gummow J et al refer to at [21] of their reasons for judgment included a right of action for damages which had not been abrogated before 5 October 1999 but only subjected to 'legislative inroad'."

65 In Smith, Martino DCJ referred to Abbott v Minister for Lands [1895] AC 425 where the Privy Council held that a proviso in legislation which preserved "all rights accrued and obligations incurred or imposed" under repealed legislation, did not preserve a right to make conditional purchases of land where an individual had not done an act towards availing himself of that right. He also referred to Toolan's case where Parker J at [60] referred to Abbott and raised the question about whether the appellant in Toolan's case had taken steps towards availing himself of his contingent right or entitlement to an award of damages sufficient to give rise to a "right created, acquired, accrued, established or exercisable" within the meaning of s 37(1)(c). Martino DCJ noted that in Toolan, the Full Court had held that a worker, who had appealed against a refusal to grant leave and was pursuing that appeal, had taken steps towards availing himself of his contingent right to damages against his employer. Martino DCJ said that the Full Court in Toolan did not decide what the position would be if the worker had not taken that step and that Toolan thereforedid not decide the position. He referred to the earlier decisions of Judges of the District Court. He said:

"There are two actions the plaintiff might have commenced in 1999 prior to the 1999 amending Act that could be described as the pursuit of rights. One is an application for leave under s 93D. The other is an action for damages if that leave had been granted. While both rights may be described as contingent Toolan makes clear that contingent rights can be protected by s 37(1)(c) of the Interpretation Act".

(Page 27)

The submissions of the parties before Commissioner Stavrianou

66 The appellant's submissions to the learned Commissioner were first, that Dossett was distinguishable because it concerned a case where an application for leave was pending on 5 October 1999 whereas no application had been made in this case, and also because the respondent in the Dossett case conceded that s 37 of the Interpretation Act applied, whereas in this case the appellant did not make such a concession and in fact argued that s 37 did not apply (for reasons which differ from those offered by the respondent in Dossett's case). The appellant's submission therefore was that the provisions of the 1999 Act applied and not the provisions in the old WCR Ac,t and so the District Court had no power under s 93D of the old WCR Act to grant leave.

67 Secondly, the appellant submitted that the relevant "right" for the purposes of the Interpretation Act was the contingent cause of action for damages and not any right to apply for leave, and that even if the respondent had the right to seek leave under s 93D of the old WCR Act, then s 37(1) of the Interpretation Act merely provided that a legal proceeding in respect of that right "may" be instituted, continued or enforced irrespective of the amendment. The appellant further submitted that there was nothing in the provisions of the Interpretation Act (or Dossett) to the effect that the respondent must exercise that right "or was unable to exercise any right that he acquired under the provisions of the [1999]Act" and that the respondent could "elect in those circumstances as to whether to exercise any right that he might have under the former or amended provisions" of the legislation. (Whether the requirement for leave and an application for leave may be described as a "right" will be discussed below). The appellant pointed to evidence which was placed before the learned Commissioner, namely that the respondent had issued a writ against the second appellant in respect of the same cause of action and that he had made an application for a determination of degree of disability of not less than 16 per cent or alternatively not less than 30 per cent against each of the two appellants (therefore relying on the provisions of the 1999 Act). The appellant therefore submitted that it must "be assumed that he proceeded in that way on the basis that he had a right to seek damages without the need for a grant of leave" and that "having made that election and acted in such a way as to represent to the first and second [appellants]" that he would "seek to exercise his contingent common cause of action subject to the procedural limitations in the [1999] Act" and that as a result, the respondent was "estopped from purporting to assert a right under the [old WCR Act]".

(Page 28)

68 Thirdly and finally, the appellants submitted that even if leave could be granted under the old WCR Act "a grant of leave to issue a separate action in respect of the same cause of action is an abuse of process and the court should not grant leave to allow the [respondent] to abuse the processes of the court".

69 The respondent submitted that the Commissioner should follow the Dossett extension cases.

The Commissioner's decision

70 As to the first of the appellant's submissions, the Commissioner said that he would follow the Dossett extension cases and particularly the reasoning of Martino DCJ in Smith.

71 As to the second submission, the learned Commissioner said (at [23]):

"I respectfully agree with the above analysis of Martino DCJ in Smith … One of the rights the plaintiff could have pursued was the s 93D application. It was a right to make an application to bring proceedings in negligence. In terms of s 37(1)(c) and s 37(1)(f) of the Interpretation Act 1984 this was a right created, acquired, accrued, established or exercisable prior to repeal."

72 In addition, he held that the issues of estoppel and election were matters to be pleaded and then determined at trial.

73 As to the third submission, the learned Commissioner noted that at the hearing of the appeal, counsel for the respondent gave an undertaking to discontinue one of the actions, or alternatively to have the actions consolidated and in the circumstances the Commissioner held there was no merit in the abuse of process submission.

74 The Commissioner also said that while it was not strictly necessary for him to decide the issue, he considered that the effect of the Workers' Compensation (Common Law Proceedings) Act 2004, assented to on 25 October 2004, to be that s 93D as it was prior to the 1999 Act, applied to the action.

The appellant's grounds of appeal

(a) The appellant's first ground of appeal is that the Commissioner erred in finding that the District Court had power to grant leave

(Page 29)

under s 93D of the old WCR Act and that he ought to have found that:

(i) The savings provisions of s 32(7) of the Amendment Act read with s 37(1) of the Interpretation Act 1984 saved only proceedings already commenced prior to the assent date;

(ii) In the absence of such proceedings, the provisions of the new regime introduced into the Act by the Amendment Act applied to all accidents/injuries and causes of action occurring prior to the assent date;

(iii) By reason of the failure of the respondent to commence the relevant proceedings prior to the assent date, his claim for damages and cause of action was governed by the new regime introduced into the Act pursuant to the Amendment Act; and

(iv) The right preserved by s 37(1) of the Interpretation Act 1984 was the contingent right to pursue a claim for common law damages subject to the procedural requirement of s 93D of the Act and that, absent any proceedings being commenced to exercise or [to] seek to exercise that contingent right prior to the assent date, the respondent could only exercise that contingent right subject to the procedural requirements of the Act as it was after the assent date.

(b) The second ground is that the learned Commissioner erred in granting leave when he ought to have found that, by issuing proceedings against the second appellant in the District Court on 8 August 2000 without leave, the respondent had elected to exercise his right to pursue his contingent cause of action against the first appellant and second appellant under the provisions of the Act, particularly s 93D, as it stood after the assent day and was therefore estopped by purporting to exercise any rights under the Act as it stood prior to the assent day, including pursuing a grant of leave.

(c) The third ground is that the learned Commissioner erred in that, having wrongly found that a grant of leave could and should be made, [he] indicated that the Workers' Compensation (Common Law Proceedings) Act 2004 applied to the respondent's action when there was nothing in the Common Law Proceedings Act that validated the grant of leave wrongly made.

(Page 30)

First ground

75 This ground requires a decision to be made about whether any "right" existed and which was preserved by s 37. The only part of s 37 which could arguably apply would be s 37(1)(c) which reads:

"(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

…

(c) affect any right … created, acquired, accrued, established or exercisable … prior to the repeal."

76 The meaning of the word "right" in the phrase "right … accrued" does not call for a narrow conception of a right: Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139 at 151. In considering whether a right exists, the Court is "not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld": Mathieson v Burton (1971) 124 CLR 1 at 12 per Windeyer J.

77 In my opinion, there were two "rights" accrued and preserved by s 37(1)(c) of the Interpretation Act in this case. The first was the respondent's right to sue for damages under the general law. This right existed before the 1999 Act was passed. See Dossett per Gummow, Hayne and Heydon JJ at [21]. This is not a case which can be equated with Abbott v Minister for Lands (supra). In Abbott's case the appellant had not done any act to establish a right to purchase land and he could not therefore seek to avail himself of that right governed by the old legislation after the amending legislation came into effect. In this case the respondent had been injured before the 1999 Act came into force and the alleged breach of duty to the respondent gave the respondent a cause of action in tort and the consequential right to sue for damages. The respondent therefore had a "right" to sue which had "accrued" "prior to the repeal" of the old WCR Act. Undoubtedly, the right was contingent upon the District Court granting leave, but it was nevertheless a right accrued therefore unaffected by the 1999 amendment.

78 In addition, I consider that the entitlement conferred under the 1999 legislation to apply for leave was also a right accrued. This seems to have been the view of McHugh J in Dossett's case. See [11] and [17].

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79 It is then necessary to deal with the assertion in ground 1 that the respondent had a contingent right "subject to the procedural requirements of the Act" as it was after the assent date. The characterisation of a statutory provision as relating to procedural requirements rather than having substantive effect often arises when construing a statute and deciding whether it has prospective or retrospective operation. An Act is said to be retrospective if it affects not only future events but also events which occurred prior to the date of commencement: Heading v Elston (1980) 23 SASR 491 at 496 per Wells J. Statutes are prime facie construed as having a prospective operation only, meaning that they are not to be taken as "attaching new legal consequences to facts or events which occurred before … commencement": Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194 per Fullagar J and Dossett (supra) at [80]. The presumption is that a statute is not to be read "in such a way as to change accrued rights the title to which consists in transactions past and closed or in facts or events that have already occurred": Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 at 652 per Dixon J (as he then was). This is a rule of construction only and not a rule of law, so the construction of the relevant statute is the determinant.

80 If, however, a statute introduces only procedural provisions, then the principle against retrospective operation does not apply. Procedural amendments are ordinarily retrospective: see Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228.

81 The requirement for a grant of leave under the 1999 Act has been characterised as procedural. See Re Monger; Ex parte Cross [2004] WASCA 176 per Malcolm CJ at [76] - [77] and per EM Heenan J at [165]. However, to characterise such a provision as procedural is not the end of the matter. Merely because the provision has been characterised in the Crosscase as procedural, does not necessarily mean that it will be retrospective. A statutory provision may be characterised as procedural, but also have substantive operation. See McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 42 per Brennan, Dawson, Toohey and McHugh JJ and Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 336 per Moffitt P, Reynolds JA agreeing.

82 In deciding whether or not the 1999 legislation had substantive effect, it is necessary to consider the position under the old WCR Act and under the 1999 Act. Under the old WCR Act, no damages could be awarded by the Court unless it was a serious disability and a serious disability involved a degree of disability of 30 per cent or more or pecuniary loss would be at least equal to the prescribed amount. There

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was no action possible without leave of the Court and there was a restriction on the award of damages in relation to non-pecuniary loss and damages for gratuitous services in relation to all claims. Under the 1999 legislation, although the need for leave was removed, there was now no right to common law damages unless the degree of disability was determined or agreed at 30 per cent or more, or in the case of a person with a disability between 16 per cent and up to 30 per cent, no right to damages unless an election was made in which workers' compensation payments ceased. Furthermore, there was a cap on the award of common law damages in the case of that latter category.

83 Overall, it is difficult to say without evidence that more people were better off or worse off under the new legislation or the old, but it is clear that Parliament was taking steps to try and restrict and constrain the jurisdiction of the Court to award common law damages. In particular, a person who suffered injury determined or agreed at less than 30 per cent, but suffered a pecuniary loss of at least equal to the prescribed amount, was better off under the old WCR Act than under the 1999 Act. This is because leave would be granted in those circumstances whereas under the 1999Act there was no right to damages without sacrificing immediately the right to workers' compensation payments. The affidavit material placed before this Court in relation to the application for leave which had been made in this case suggests that the respondent was seeking to establish a pecuniary loss of at least equal to the prescribed amount.

84 In those circumstances, the new regime created under the 1999 Act had a substantive effect.

85 In my opinion, therefore, the presumption against retrospectivity would apply and there is nothing in the legislation which shows any intention that such presumption should not be applied.

86 In my opinion the application for leave in this case was one that the Court was obliged to entertain because the old WCR Act applied, rather than the 1999 Act which made substantive changes to the law. This is because s 37(1) provides that the repeal of the old WCR Act provisions did not affect the right to sue under the conditions then existing.

Ground 2

87 Ground 2 implies that the respondent had a choice about whether the old WCR Act applied. I disagree. The question to be determined is whether the 1999 Act applied or not. Because it worked substantive changes it does not have retrospective effect unless Parliament has

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expressly said so or by necessary intendment has said so. It did neither. Therefore the old WCR Act applies. The 1999 Act does not. It is not a matter of election or choice. It is a matter of application of the relevant law and the relevant law is the old WCR Act.

Ground 3

88 This ground must fail because it is premised on the assumption that either ground 1 or ground 2 succeeds. Neither has succeeded. The District Court had jurisdiction to grant leave. In any event, the District Court granted leave before the Common Law Act received the Royal Assent. Section 5(3) provides that the "former provisions" ie the old WCR Act applies.