Beasley v Pilbara Mining Alliance Pty Ltd
[2022] WASCA 25
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BEASLEY -v- PILBARA MINING ALLIANCE PTY LTD [2022] WASCA 25
CORAM: QUINLAN CJ
MURPHY JA
TOTTLE J
HEARD: 16 NOVEMBER 2021
DELIVERED : 24 FEBRUARY 2022
FILE NO/S: CACV 98 of 2020
BETWEEN: KAREN ANNETTE BEASLEY
Appellant
AND
PILBARA MINING ALLIANCE PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
Citation: BEASLEY -v- FORTESCUE METALS GROUP LTD [2020] WADC 118
File Number : APP 2 of 2020
Catchwords:
Workers' compensation - Appeal from a decision of a judge dismissing an appeal from an arbitrator's decision - Arbitrator dismissed appellant's application under s 217 of the Workers' Compensation and Injury Management Act 1981 (WA) - Whether s 91 and s 92 of the Workers' Compensation and Injury Management Act 1981 (WA) give rise to an implied prohibition against an injured worker seeking compensation under the Workers' Compensation and Injury Management Act 1981 (WA) other than under s 91 - No implied prohibition
Legislation:
Workers' Compensation Act 1902 (WA), s 7, s 9
Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 5, s 18, s 21, s 22, s 31C, s 86, s 91, s 92, s 93B, s 93C, s 93D, s 93E, s 93K, s 93L, s 93M, s 93P, s 176, s 177, s 178, s 179, s 182A, s 182ZT, s 217, s 219, s 254, s 303, Sch 1
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 6AA
Workers' Compensation Reform Act 2004 (WA), s 79
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | MJ Lourey |
| Respondent | : | CC Rimmer |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Beasley v Fortescue Metals Group Ltd [2020] WADC 118
Dosset v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486
McNair v Press Offshore Ltd (1997) 17 WAR 191
Mokta v Metro Meat International Ltd [2005] WASCA 143
Ta v Lucky Import and Export Co Ply Ltd [2002] WASCA 65
Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
JUDGMENT OF THE COURT:
Overview
This is an appeal from a decision of a judge of the District Court dismissing an appeal from a decision of an arbitrator made under pt XI of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).[1] The arbitrator had dismissed an application brought by the appellant under s 217 of the Act for an extension of the prescribed amount for weekly payments for incapacity. The appellant, who had elected to retain the right to seek damages at common law, made the application under s 217 as the trial of her action for damages was taking place. The action for damages was dismissed.
[1] Beasley v Fortescue Metals Group Ltd [2020] WADC 118 (primary reasons). At the hearing of the appeal an order was made that the respondent to the appeal be Pilbara Mining Alliance Pty Ltd.
The ultimate issue for determination in the present appeal is whether a worker who (1) has made a claim for, and obtained, compensation for weekly payments under the Act, (2) has made an election to commence, and has commenced, common law proceedings in the District Court, (3) has failed in the common law claim, and (4) subsequently seeks an order from an arbitrator under s 217 of the Act as to the 'total liability' of the employer for further compensation on the basis that the injury has resulted in 'permanent total incapacity for work',[2] is precluded from making a s 217 application because of an implied prohibition to that effect in s 91(1) of the Act.
[2] Subject to the six‑month constraint on the period of compensation after the election registration day referred to in s 93P(2)(b) of the Act.
The learned primary judge held that the combined effect of s 91 and s 92 of the Act is 'to necessarily and by implication prohibit' an injured worker who has brought an action for damages against his or her employer from commencing or continuing a claim for compensation under the Act otherwise than by invoking the s 91 jurisdiction in the court in which the action has been tried.[3] On that basis the primary judge held that the applicant was prohibited from continuing with her application under s 217 of the Act and his Honour dismissed the appeal.
[3] Primary reasons [64].
In summary, in this court, the appellant's primary argument was that s 91 had no operative effect. She argued the section was a redundant relic from an earlier statutory regime and it would be an absurd result if an injured worker who had not succeeded in an action was deprived of the right to make a claim for compensation under the 'no fault' scheme established by the Act. The appellant's fall‑back argument was that three conditions had to be satisfied before the jurisdiction conferred by s 91 was enlivened and they were not satisfied.
The respondent's arguments were directed primarily to defending the merits of the primary judge's reasoning.
The extensive amendments made to the Act over the last 40 years have made the task of discerning the legislature's intention through the process of construction difficult. For the reasons given later, with respect, we do not agree with the learned primary judge's conclusion that a prohibition of the nature described by him should be implied into the Act.
The appellant requires leave to appeal.[4] On 22 October 2021 Mitchell JA referred the application for leave to the hearing of the appeal. Leave to appeal should be granted and the appeal should be allowed. An order should be made remitting the appellant's application under s 217 to the arbitrator.
[4] Workers' Compensation and Injury Management Act 1981 (WA) s 254.
Relevant provisions of the statutory regime
The Act establishes a compulsory no fault workers' compensation insurance scheme covering the liability of employers for injuries suffered by employees in the course of their employment. Part I of the Act deals with preliminary matters.[5] It includes s 3 which sets out the purposes of the Act as follows:
[5] References to the provisions of the Act are references to the provisions as they were in 2013.
3.Purposes
The purposes of this Act are -
(a)to establish a workers' compensation scheme for Western Australia dealing with -
(i)compensation payable to or in respect of workers who suffer an injury; and
(ii)the management of workers' injuries in a manner directed at enabling injured workers to return to work; and
(iii)specialised retraining programs for injured workers; and
(iv)ancillary and related matters;
(b)to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and
(c)to provide for the resolution of disputes under this Act; and
(d)to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.
Part III of the Act is headed 'Compensation'. It establishes the regime for compensating workers who suffer an 'injury'. 'Injury' has an expanded meaning and, relevantly, means 'a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions'.[6]
[6] Workers' Compensation and Injury Management Act 1981 (WA) s 5.
Section 18 expresses the central concept on which the regime established by pt III is based and provides, in effect, if an 'injury' of a worker 'occurs', then 'the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1'. Section 21 provides, relevantly, that an employer is liable to pay compensation under the Act from the date of incapacity resulting from injury. The effect of s 18 and s 21 has been held to impose a liability on an employer to pay compensation from the date of incapacity resulting from injury. Once incapacity is suffered, compensation is payable 'instanter'.[7]
[7] Mokta v Metro Meat International Ltd [2005] WASCA 143 [44] (Pullin JA, with whom Steytler P and Wheeler JA agreed).
Section 22 provides that, subject to specified exceptions, a claim for compensation shall be disallowed if it is proved, among other things, that the injury to the worker is attributable to voluntary consumption of alcoholic liquor or a drug of addiction (or both), which impairs the proper functioning of the worker's faculties.
For the purposes of this appeal detailed reference to the provisions of pt III is unnecessary - it is sufficient to observe that a worker who is either totally or partially incapacitated for work as a result of injury may be entitled to weekly payments of compensation calculated in accordance with sch 1,[8] and a worker who has suffered a permanent impairment as result of an injury may be entitled to a lump sum payment.[9]
[8] Workers' Compensation and Injury Management Act 1981 (WA) sch 1, cl 7.
[9] Workers' Compensation and Injury Management Act 1981 (WA) s 31C.
An entitlement to weekly payments for incapacity is limited and, relevantly, cl 7(3) of sch 1 provides:
An entitlement of a worker to weekly payments for an injury under this Act ceases if and when the total weekly payments for that injury reaches the prescribed amount, unless an arbitrator makes an order to the contrary under section 217, and there shall be no revival of, or increase in, that entitlement upon any subsequent increase in the prescribed amount.
A worker may make a claim for compensation under pt III of the Act without commencing any form of proceedings under the Act. An employee wishing to make a claim must serve a notice on the employer. The notice must set out relevant details and be in the prescribed form.[10]
[10] Workers' Compensation and Injury Management Act 1981 (WA) s 178 and s 179; and Workers' Compensation and Injury Management Regulations 1982 (WA) reg 6AA.
Part IV of the Act is headed 'Civil proceedings in addition or independent of this Act'. Before referring in more detail to the provisions of pt IV relevant to this appeal, an overview is helpful:
(a)Except as expressly provided, nothing in the Act affects any liability that exists independently of the Act.[11]
(b)Damages awarded in relation to a liability that exists independently of the Act and compensation under the Act are not both recoverable.[12]
(c)Division 2 of pt IV imposes constraints on the right of an injured worker to commence a civil action for damages and imposes constraints on the damages that may be awarded by a court.
(d)Division 2 of pt IV constraints apply if an injured worker seeks damages for an injury for which compensation under the Act is or would be payable.[13]
(e)Sub-division 2 of div 2 of pt IV contains provisions governing causes of action that arose before s 79 of the Workers' Compensation Reform Act 2004 (WA) came into operation - the 1993 scheme and sub-division 3 of div 2 contains provisions governing causes of action that arose thereafter - the 2004 scheme.[14]
(f)If div 2 of pt IV applies, a court is not to award damages to a person contrary to the provisions of the division.[15]
(g)When div 2 of pt IV applies, a worker can only bring an action for damages if he or she has elected to retain the right to do so, and such an election may only be made if certain conditions are met.[16]
(h)If an election to retain damages is made, then unless certain conditions are met, the worker's entitlements to weekly payments of compensation are progressively reduced over a period of six months from the date of the election.[17]
(i)The evident legislative purpose of the constraints on the award of common law damages is to restrict damages and thereby ensure the availability of insurance cover at reasonable rates.[18]
[11] Workers' Compensation and Injury Management Act 1981 (WA) s 86.
[12] Workers' Compensation and Injury Management Act 1981 (WA) s 92.
[13] Workers' Compensation and Injury Management Act 1981 (WA) s 93B.
[14] The 1993 scheme is governed by the provisions of subdivision 2 of div 2 of pt IV and the 2004 scheme is governed by subdivision 3 of div 2 of pt IV.
[15] Workers' Compensation and Injury Management Act 1981 (WA) s 93C.
[16] Workers' Compensation and Injury Management Act 1981 (WA) s 93K(4) and s 93L.
[17] Workers' Compensation and Injury Management Act 1981 (WA) s 93P.
[18] Dosset v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [71] (Kirby J); Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [105].
If an action for damages is brought, div 1 of pt IV contains provisions, s 91 and s 92, which may apply depending on the outcome of the action.
Section 91 provides:
91.Court's duties where action for damages unsuccessful but workers' compensation is payable
(1)If an action is brought to recover damages independently of this Act, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the court in which the action is tried shall assess that compensation, or refer the assessment of the compensation for determination by an arbitrator, and shall deduct from that compensation all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act, and shall enter judgment accordingly.
(2)To the extent that it is practicable to do so, and subject to the conciliation rules and the arbitration rules, a referral under subsection (1) is to be dealt with as if it were an application for resolution of a dispute under Part XI.
Section 92 provides:
92.Both damages and workers' compensation not recoverable
Where in respect of an injury an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as the defendant) or against both of them -
(a)if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;
(b)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;
(c)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;
(d)if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit;
(e)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer or the defendant or both or is settled by the acceptance of money paid into court by the employer or the defendant or by both of them, the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same injury.
Section 93K(4) provides that damages in respect of an injury can only be awarded if the worker elects to retain the right to seek damages and other certain conditions are met:
(4)Damages in respect of an injury can only be awarded if -
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
Section 93K(5) imposes a cap on the damages a court may award unless the court is satisfied that the worker's degree of permanent whole of person impairment is at least 25%.
Section 93L specifies the circumstances in which a worker can make an election of the nature referred to in s 93K(4)(a). It provides, relevantly:
(1)In this section -
termination day has the meaning given in section 93M.
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if -
(a)the worker and the employer agree -
(i)that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
or
(b)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
(3)The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.
(4)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
Section 93M contains provisions defining the 'termination day' for the purposes of an election under s 93K(4). In this appeal there is no issue that the appellant elected to retain the right to seek damages before the 'termination day'.
The procedures to be followed for the purposes of determining a worker's degree of 'permanent whole of person impairment' are contained in pt VII of the Act.
When it applies, s 93P regulates the effect of an election to retain the right to seek damages on a worker's entitlements to receive weekly payments under the Act.[19] Section 93P provides:
[19] Subdivision 2 of div 2 of pt IV, which governs the 1993 scheme, contains a provision similar to s 93P, s 93E(8), which provides that when a worker elected to retain the right to seek damages under the 1993 scheme compensation is not payable (subject to certain exceptions) after the day on which the election is registered.
93P.Election under s 93K, effect on compensation
(1)This section applies unless, according to an agreement or assessment that the Director has recorded as described in section 93L(2), the worker's degree of permanent whole of person impairment is at least 25%.
(2)If a worker elects under section 93K to retain the right to seek damages and this section applies -
(a)the amount of any weekly payment of compensation to which the worker is entitled under this Act in respect of the injury or injuries, to the extent that the payment is for any time during the first 6 months after the election registration day, is varied to the amount calculated as described in subsection (4); and
(b)the worker is not entitled to any weekly payment of compensation under this Act in respect of the injury or injuries to the extent that the payment would be for any time that is more than 6 months after the election registration day; and
(c)no other compensation under this Act is payable in respect of the injury or injuries -
(i)in relation to a time that is after the election registration day; or
(ii)under Part III Division 2 or 2A, irrespective of whether an election under that Division is made before or after the election registration day; or
(iii)for expenses incurred after the election registration day.
(3)In subsection (2) -
in respect of the injury or injuries includes wholly or partially in respect of the injury or injuries and also includes wholly or partially in respect of any recurrence, aggravation or acceleration of the injury or injuries.
(4)The amount of a weekly payment is -
(a)to the extent that it is for any time during the first 3 months after the election registration day, 70% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied; and
(b)to the extent that it is for any other time during the first 6 months after the election registration day, 50% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied.
Part XI of the Act is headed 'Dispute Resolution'. Part XI establishes a regime for the resolution of disputes by conciliation followed by arbitration.
Division 1 of pt XI is headed 'General'. It includes s 176 which defines the disputes to which pt XI applies and establishes the jurisdiction of arbitrators as follows:
176.Exclusive jurisdiction of arbitrators
(1)In this Part -
dispute means -
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;
(b)a dispute in connection with an obligation imposed under Part IX;
(c)any other dispute or matter for which provision is made under this Act for determination by an arbitrator;
(d)any other matter of a kind prescribed by the regulations.
(2)A proceeding for the determination of a dispute is not capable of being brought other than under this Part.
(3)Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
Section 177 sets out the objects of pt XI as follows:
177.Object of this Part
(1)The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that —
(a)is timely; and
(b)is accessible, approachable and professional; and
(c)minimises costs to parties to disputes; and
(d)in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
(2)Dispute resolution authorities and officers of WorkCover WA mentioned in section 181(2)(b)(ii) or 182ZO(2)(b)(ii) are to have regard to the object of this Part when they perform their functions.
Division 2 of pt XI sets out a number of conditions that must be met before a dispute can be dealt with under pt XI.
Division 3 of pt XI establishes the Workers' Compensation Conciliation Service and regulates the conciliation of disputes under pt XI.
Division 4 of pt XI establishes the Workers' Compensation Arbitration Service and regulates the arbitration of disputes under pt XI. Division 4 includes s 182ZT that provides:
182ZT.Application for arbitration
If a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar in accordance with this Act and the arbitration rules for determination of the dispute by arbitration.
Division 4 of pt XI also includes s 217. Section 217 provides:
217.Order as to total liability of employer
(1)This section applies where -
(a)an arbitrator considers that an injury to a worker that is compensable under this Act has resulted in the permanent total incapacity for work of the worker; and
(b)an order for redemption of the liability for the incapacity has not already been made under section 67; and
(c)no memorandum of agreement for the payment of a lump sum in redemption of the liability for the incapacity has been recorded under section 76; and
(d)the total weekly payments by way of compensation payable under clause 7 for that injury have reached the prescribed amount.
(2)If this section applies, the arbitrator may, subject to this section, make any order as to the total liability of the employer for the incapacity that the arbitrator thinks proper in the circumstances.
(3)An arbitrator is not to make an order under subsection (2) unless the arbitrator considers an order ought to be made, having regard to the social and financial circumstances and the reasonable financial needs of the worker.
(4)The total liability of the employer ordered under this section is not to exceed the lesser of -
(a)an amount equal to 75% of the prescribed amount; or
(b)weekly payments at the rate to which the worker was entitled at the time when the total weekly payments for the injury of the worker reached the prescribed amount ‑
(i)for the period of the expectation of life of the worker; or
(ii)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, up to the date when weekly payments would cease by reason of age,
whichever is the shorter.
(5)An arbitrator is to deal with the payment of the final liability by ordering weekly payments at such rate as the arbitrator thinks proper in the circumstances, having regard to the matters referred to in subsection (3), but not at a rate that exceeds the rate to which the worker was entitled at the time when the total weekly payments for the injury of the worker reached the prescribed amount.
(6)In making an order as to final liability under this section an arbitrator may order payment of an amount for arrears of such weekly payments from the time when the total weekly payments for the worker's injury reached the prescribed amount to the date of the order.
On filing a certified copy of an arbitrator's decision in a court of competent jurisdiction, the decision is taken to be an order of that court and may be enforced accordingly.[20]
[20] Workers' Compensation and Injury Management Act 1981 (WA) s 219.
Section 303 restricts the extent to which compensation may be assigned, charged or attached. It provides:
303.Compensation payments not assignable
(1)A payment of compensation, or a sum paid by way of redemption thereof, is not capable of being assigned, charged or attached, and shall not pass to another person by operation of the law, nor shall any claim be set off against such payment or sum, except in respect of voluntary advances of future compensation made by an employer or insurer with the approval of the Director.
(2)A person who purports or agrees to do anything the doing of which is prevented by subsection (1) commits an offence and is liable to a fine of $5 000.
The factual background
On 17 August 2012 the appellant was injured in the course of her employment with the respondent. The appellant accepted liability for the injury and the appellant was paid weekly compensation payments until on or about 16 November 2012 when she was 'medically cleared' to return to work earning her pre-accident wage.
On 30 March 2013 the appellant suffered a further injury in the course of her employment with the respondent. On 15 April 2013 the appellant made a claim for compensation.[21] The respondent's insurers accepted liability for this injury.[22] The appellant was paid weekly payments until the end of 2014 or beginning of 2015 when the prescribed amount limiting weekly payments was exhausted.
[21] GAB 20.
[22] GAB 22 - an amended 'insurer's notice that liability is admitted' was issued on 10 March 2014.
In March 2015 the appellant elected to seek damages from the respondent at common law for losses arising from the injury suffered by her in March 2013. On 27 March 2015 the Director (being the officer of Workcover WA designated under s 182A as the Director, Conciliation), registered the appellant's election to seek damages. There was no dispute about the appellant's right to elect to seek damages.
On 29 April 2015 the appellant commenced her action for damages for the injury suffered by her in March 2013.[23]
[23] GAB 151.
On 20 August 2018, following an unsuccessful process of conciliation undertaken pursuant to div 3 of pt XI of the Act, the appellant applied to have a dispute between her and the respondent determined by arbitration in accordance with div 4 of pt XI of the Act. At that time there were two matters in dispute, one related to the injury sustained by the appellant in August 2012. That dispute is no longer relevant. The second matter in dispute was the appellant's application under s 217 of the Act.
In the appellant's written submissions relied on in this appeal, the appellant stated that her s 217 claim was for:[24]
[W]eekly payments of compensation as for total incapacity from [the respondent's insurer] from the time weekly payments ceased following the exhaustion of the prescribed amount for the 30 March 2013 injury, to the day 6 months after her day of election.
[24] Appellant's submissions [17] - see also the appellant's application at GAB 9.
The proceedings before the arbitrator under the Act were stayed pending the determination of the action.
The trial of the appellant's action in the District Court took place on various dates between February and September 2018. On 18 April 2019 judgment in the District Court action was delivered and the appellant's claim was dismissed.[25] On 16 August 2019 an order was made that the applicant pay the respondent's costs of the District Court action.
[25] GAB 176 - 232.
No application was made to the trial judge to invoke the jurisdiction conferred by s 91 of the Act.
In the proceedings before the arbitrator under the Act the respondent applied for the determination of preliminary issues constituted by questions of law which (relevantly) included the question of whether s 93P(2) of the Act operated to preclude the appellant from pursuing her application under s 217.
On 18 December 2019 the arbitrator published reasons for concluding that the application was incompetent by reason of the operation of s 93P(2) and dismissed the application.
The appellant appealed against the arbitrator's orders dismissing her application. The primary judge published reasons for dismissing the appeal on 27 August 2020.
The arbitrator's reasons
The arbitrator published written reasons for his decision to dismiss the appellant's s 217 application.[26] In those reasons the arbitrator referred to the appellant's election to retain the right to seek damages under s 93K(4) and to the provisions of s 93P.
[26] BAB 47.
The arbitrator expressed his conclusions in relation to the effect of s 93P on the entitlement to pursue an application under s 217 as follows:[27]
In my view the prohibition in s 93P(2)(c)(i) on payment of compensation after "the election registration day" includes weekly payments in excess of the prescribed amount under s 217. Accordingly I construe the legislative intent underlying s 93P(2)(c)(i) to be that jurisdiction under the Act to determine a s 217 dispute over entitlement to an extension of the prescribed amount for weekly payments is terminated on ''the election registration day" and transferred to the court presiding over the worker's claim for damages. Thus, afortiori an application under s 217 filed after "the election registration day"(as in this case) is incompetent.
I consider that this construction is consistent with s 93P(2)(a) and (b) which operates to freeze entitlements under the Act from "the election registration day", pursuant to which "any weekly payment of compensation to which the worker is entitled under this Act" is reduced in stages in accordance with s 93P(4) over a period of 6 months, beyond which there is no further entitlement, meaning that an employer may lawfully discontinue weekly payments at that time.
…
For reasons indicated above, I construe the effect of s 93P(2)(c)(i) to be that jurisdiction under the Act to determine Ms Beasley's entitlement under s 217 with respect to the second injury on 30 March 2013 ceased as at the election registration day on or about 27 March 2015 and was effectively transferred to the District Court to be considered as part of the overall claim by Ms Beasley for damages.
[27] BAB 47 at 52 - 53 and 56.
The primary reasons
The primary judge summarised the factual background, the arbitrator's reasons, the nature of the appeal and the grounds of appeal.[28] His Honour referred to uncontroversial principles of statutory construction before turning to consider whether s 93P of the Act contained a prohibition on an injured worker, who has made an election under s 93K(4), subsequently making an application under s 217.[29] The primary judge gave three reasons for concluding that s 93P did not contain such a prohibition:[30]
(a)The express words of the section do not contain a prohibition of the nature held by the arbitrator to exist.
(b)The arbitrator had implied a prohibition into s 93P(1)(c)(i) but that provision only prohibits the payment of 'other compensation', that is, compensation beyond that provided for in s 93P(2)(a). The appellant's s 217 application did not involve a claim beyond that provided for in s 93P(2)(a).
(c)The limitations in s 93P are expressed not to apply where 'the worker's degree of permanent whole of person impairment is at least 25%',[31] was a contextual reason why the provisions of pt IV of the Act should be interpreted as allowing the payment of workers' compensation to continue pending determination of a common law claim, unless expressly limited.
[28] Primary reasons [1] - [28].
[29] Primary reasons [29] - [37].
[30] Primary reasons [38] - [41] - the primary judge's reasoning in respect of s 93P was not challenged in this appeal.
[31] Workers' Compensation and Injury Management Act 1981 (WA) s 93P(1).
The primary judge gave detailed consideration to s 92 of the Act and concluded that s 92 neither expressly nor impliedly prohibited an injured worker whose common law claim is finalised against the injured worker from commencing or continuing proceedings for compensation under the Act in respect of the same injury.[32]
[32] Primary reasons [42] - [48].
The primary judge then considered s 91 of the Act. His Honour noted that the fact a worker has commenced a common law action does not automatically bar the worker from receiving workers' compensation.[33] His Honour addressed the appellant's submission that s 91 was a 'relic from older regimes'. His Honour noted these earlier regimes had been considered by this court in Ta v Lucky Import and Export Co Pty Ltd,[34] and by the High Court in Ivanhoe Gold Corporation Ltd v Symonds.[35] His Honour gave a number of reasons for rejecting the submission that s 91 was redundant and concluded that s 91 applies in accordance with its terms.[36]
[33] Primary reasons [50].
[34] Ta v Lucky Import and Export Co Ply Ltd [2002] WASCA 65.
[35] Ivanhoe Gold Corporation Ltd v Symonds [1906] HCA 71; (1906) 4 CLR 642.
[36] Primary reasons [56] - [60].
Having concluded that s 91 operated in relation to the appellant's District Court action, his Honour identified the issue to be determined as follows:[37]
The issue then becomes whether an injured worker who could have invoked WCIMA s 91, but did not do so, can nonetheless recommence proceedings in the WorkCover jurisdiction to recover the compensation that could have been recovered pursuant to WCIMA s 91. Significantly, this approach would avoid the costs consequences of an order pursuant to WCIMA s 91.
[37] Primary reasons [62].
The appellant contended that the last sentence of this passage of the primary judge's reasons amounted to a finding of fact to the effect that the appellant made her s 217 application to the arbitrator to avoid the cost consequences that might flow from the dismissal of her action for damages. This contention formed the basis of the appellant's second ground of appeal.
The primary judge expressed his reasons for holding that there was an implied prohibition as follows:[38]
[38] Primary reasons [63] - [67].
In my view, between WCIMA s 91 and s 92 Parliament set out a regime which comprehensively covers all the scenarios which can arise where an action is brought by an injured worker to recover damages independently of WCIMA for an injury for which the worker is entitled to receive compensation under WCIMA. The evident purposes are that:
(a)an injured worker cannot recover both damages and compensation; and
(b)if the injured worker cannot recover damages either because the employer is not liable (WCIMA s 91) or the action is discontinued (WCIMA s 92(d)), the injured worker maintains their entitlement to workers compensation, but must pay the employer its costs of the defending (sic) the common law action.
In that context, the combined effect of WCIMA s 91 and s 92 is to necessarily and by implication prohibit an injured worker from circumventing the regime by otherwise commencing or continuing proceedings for or in relation to compensation in respect of the same injury. This outcome does not cancel out the entitlement of the injured worker to compensation under the no fault scheme: it simply makes that entitlement subject to payment of the employer's costs of the unsuccessful common law action.
In other words, the only way in which the Appellant in this case could have claimed further compensation was by using the process in WCIMA s 91 at the end of the District Court action.
Coming back to WCIMA s 93P, reading the provisions of WCIMA pt 4 as a coherent whole, there no need or justification to imply into WCIMA s 93P any wider prohibition on an injured worker being paid further compensation where the common law action was either dismissed or discontinued. A prohibition in these terms would prohibit the entitlement to seek further compensation which WCIMA s 91 (expressly) and s 92 (by necessary implication) allow.
It follows that the Arbitrator was correct to dismiss the Application in so far as it sought an order pursuant to WCIMA s 217, but on a different basis than that actually expressed in the Decision.
Grounds of appeal
The appellant relied on three grounds. The first ground contended that the primary judge erred in law by denying the appellant procedural fairness. The second ground contended that the primary judge had erred by making a factual finding that the appellant had commenced her s 217 application to avoid the costs consequences of s 91, a finding, so the appellant contended, which was not open on the evidence. The third ground raised the central question in this appeal, that is, whether s 91 and s 92 operate to prohibit the appellant from pursuing her s 217 application.
In the course of this appeal, counsel for the appellant accepted that if ground 3 succeeded, grounds 1 and 2 fell away and if ground 3 failed, success on grounds 1 and 2 would not lead to success on the appeal.[39] Accordingly grounds 1 and 2 will be dealt with quite shortly and it is convenient to deal with them together.
[39] Appeal transcript 7.
Grounds 1 and 2
In support of the contention raised by ground 1 that she was denied procedural fairness, the appellant essentially makes three points. First, she argues that she 'won' the appeal because the primary judge accepted her submission to the effect that the arbitrator erred in concluding that s 93P(2)(c)(i) effectively prevented her from advancing her s 217 application and in those circumstances it is unfair for the appeal to be decided by reference to s 91. Second, she argues it was the primary judge, rather than the respondent, who raised the issue of whether s 91 impliedly prohibited the appellant from pursuing her s 217 application. Third, she argues the primary judge made a finding that the appellant had made her s 217 application to avoid the costs consequences of s 91. The third point forms the basis of ground 2.
There is no merit in either ground 1 or ground 2.
The operation of s 91 was the subject of submissions made by the appellant's counsel at the hearing of the appeal which commenced on 19 August 2020.[40] The primary judge convened a further hearing on 24 August 2020 at which s 91 was the subject of further submissions by the appellant's counsel who also addressed the authority of Ta.[41] At the conclusion of the hearing on 24 August 2020 counsel for the respondent raised with the primary judge whether he should file a notice of contention raising the issues ventilated at the hearing about s 91 and s 92. The primary judge responded:[42]
Look, let's do it this way …
I'll - it seems to me, I'll give you leave to argue that the arbitrator's decision be upheld on different grounds, namely, the proper application of section 91 and 92.
Mr Lourey, any reason I shouldn't do that?
To which the appellant's counsel's response was:
Well, given the hearing and we've been heard, your Honour, in terms of the substance of all that so there's no disadvantage to the appellant in light of that but I think it just makes things more smooth.
[40] Transcript 19 August 2020, 14 and 23.
[41] Transcript 24 August 2020, 56 - 60 and 64 - 65.
[42] Transcript 24 August 2020, 65.
Given the express acknowledgement by the appellant's counsel to the effect that the appellant suffered no disadvantage from the way the hearing had proceeded, it is difficult to understand on what basis ground 1 has been included in the appeal.
The primary judge did not make a finding of fact that the appellant had made her application under s 217 to avoid the costs consequences of s 91. It is plain that the observation of the primary judge relied on by the appellant was directed to the consequences of adopting a certain construction of s 91. It was not a factual finding about the appellant's conduct, nor did it purport to be such a finding.
Ground 3
Ground 3 was expressed as follows:
The Court below erred in law in not correctly interpreting and/or in not correctly applying the provisions of s 91 of the Workers' Compensation and Injury Management Act 1981 in dismissing the Appellant's appeal.
The appellant's contentions
In addition to the submissions incorporated in the appellant's case the appellant was given leave to rely on supplementary submissions filed and served on 8 November 2021. At the hearing of the appeal the appellant was given leave to file further supplementary submissions limited to identifying any statutory provisions or authority that restrict the persons who may bring common law proceedings to persons who have made a claim for compensation under the Act that has been accepted or determined as being payable.[43] Relying on that leave the appellant filed and served further supplementary submissions on 23 November 2021.
[43] Appeal transcript, 66.
In summary the appellant's primary contentions were to the following effect:
(a)Section 91 serves no purpose within the scheme constituted by the Act in its present form. The utility of the section has been progressively diminished by amendments to the Act made between 1993 and 2011. By 2011 (when s 93K(4)(c) was included in the Act) s 91 had ceased to have any utility - it was 'a relic' or 'effectively defunct'.[44]
(b)One reason why s 91 no longer serves any purpose is that it is not possible for a worker to commence or succeed in an action for damages for an injury 'instead of' taking proceedings under the Act for the same injury. At the appeal hearing the appellant's counsel maintained that there was a provision of the Act that provided that a worker must seek weekly payments under the Act before filing an action at common law.[45] Counsel was unable to identify the provision on which he relied. It was to overcome this difficulty that the appellant was given leave to file further supplementary submissions. In the further supplementary submissions filed on 23 November 2021 the appellant's counsel maintained (incorrectly) that it had never been the appellant's position that there existed an express statutory provision to restrict the persons who may bring common law proceedings to those persons who have made a claim for compensation under the Act.[46] In the further supplementary submissions the appellant advanced a different point (not within the ambit of the leave granted to her) to the effect that a common law action could be commenced by a plaintiff who had not made a claim for compensation under the Act, however, such proceedings would be pointless because they would be liable to be struck out and would have 'no prospect of ever reaching the point where s 91 could have any relevance or application'.[47]
(c)Support for the argument that s 91 was a relic of an earlier regime was to be found in tracing the legislative history of s 91 back to s 9 of the Workers' Compensation Act 1902 (WA) (the 1902 Act). Section 9 of the 1902 Act was materially identical in its terms to s 91. The appellant contended that the relevance of s 9 of the 1902 Act lay in s 7 of that Act, which the appellant contended required a worker to elect between claiming compensation under the Act and making a claim for damages independently of the Act. She argued that the requirement in the 1902 Act for an election gave s 9 of that Act a purpose or utility which s 91 of the Act did not have. The appellant argued this was because the Act did not require a worker to make an election between making a claim for common law damages and claiming compensation under the Act.[48] The appellant contended that this was the context in which the decision in Ivanhoe Gold had to be read.
(d)The decision of the Full Court of this court in Ta, in which the Full Court had given effect to s 91, had been overtaken by subsequent amendments to the Act, as was evident from the decisions in Mokta v Metro Meat International Ltd,[49] and Armet v CFC Consolidated Pty Ltd.[50] In any event, Ta was wrongly decided.
(e)The implied prohibition identified by the primary judge should not be accepted because it is absurd to suggest that a worker could lose entitlements to 'no fault' compensation under the Act simply because the worker was unsuccessful in a negligence action.
(f)If s 91 had a purpose, it did not apply on the dismissal of the appellant's action for damages because the conditions upon which the court's jurisdiction depended had not been satisfied and, in any event, neither party had attempted to invoke the s 91 jurisdiction.
The respondent's contentions
[44] Appeal transcript, 26 - 27 and 45; Appellant's supplementary submissions filed 8 November 2021 [26] - [27].
[45] Appeal transcript, 15 and 17.
[46] Appellant's further supplementary submissions filed 23 November 2021 [4].
[47] Appellant's further supplementary submissions filed 23 November 2021 [5].
[48] Appellant's supplementary submissions filed 8 November 2021 [13] and [20] - [21].
[49] Mokta v Metro Meat International Ltd [2005] WASCA 143.
[50] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165.
In summary the respondent's primary contentions were to the following effect:
(a)On the appellant's argument the outcome for an injured worker would be different if liability for compensation were accepted by the employer rather than being determined by a court. The respondent argued it is unlikely that the legislature intended to bring about a situation in which an employer could only offset its legal costs of defending an action if the employer had not accepted liability under the Act. If the appellant's construction was accepted it would encourage employers to deny liability for an injury under the Act to preserve the entitlement to offset costs of a successful defence to an action against the worker's entitlement to workers' compensation.
(b)The court should not accept that s 91 had no utility or purpose. Although it had advanced a contrary position in its written submissions,[51] the respondent contended that an injured worker could bring an action for damages at common law without having liability for weekly payments determined or accepted.[52]
(c)The effect of the primary judge's reasoning was not to 'cancel' a worker's entitlement to compensation under the Act. Rather it was to oblige a worker who wished to pursue weekly payments to account for the employer's costs of successfully defending an unsuccessful civil action.[53]
(d)If the appellant's submission was accepted a worker who proceeded with an action and failed would be in a better position that a worker who commenced an action and discontinued it and thereby became liable to pay the employer's costs on discontinuance because of the operation of s 92(d).[54]
(e)It is clear from the decision in Ta that if a worker, who was unsuccessful in a civil action, wished to pursue her workers' compensation entitlements, the worker was required to invoke the jurisdiction of the court to do so. The appellant failed to do so and she is unable to 'sidestep' the operation of s 91.[55]
[51] Respondent's submissions [21].
[52] Appeal transcript, 16 and 47 - 49.
[53] Respondent's submissions [22].
[54] Respondent's submissions [23].
[55] Respondent's submissions [24] - [25].
The respondent's counsel accepted the appeal should be allowed if the court concluded that the combined effect of s 91 and s 92 did not give rise to an implied prohibition as identified by the primary judge.[56] Conversely, the appeal should be dismissed if the court concluded that there was such a prohibition.
Disposition
[56] Appeal transcript, 58.
For ease of reference the text of s 91(1) is set out again below:
If an action is brought to recover damages independently of this Act, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the court in which the action is tried shall assess that compensation, or refer the assessment of the compensation for determination by an arbitrator, and shall deduct from that compensation all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act, and shall enter judgment accordingly.
The following observations may be made.
First, it was not in dispute that there is no provision in the Act prohibiting a worker from commencing common law proceedings having made and registered the requisite election without commencing proceedings for compensation under the Act. Indeed, s 92(e) of the Act, with its reference to 'the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act', involves a recognition that a worker might not have commenced proceedings for compensation under the Act before reaching final judgment in his or her common law claim.
Secondly, in s 91(1), the words 'instead of taking proceedings under this Act' indicate that its subject matter concerns a worker who has taken common law proceedings without taking proceedings for compensation under the Act. That is confirmed by the words in s 91(1) 'and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act'.
Thirdly, the italicised words above also indicate that the court has jurisdiction to determine the employer's potential for liability under the Act, in addition to the claim for damages.[57]
[57] See also Ivanhoe Gold Corporation Ltd v Symonds (653), (661).
Fourthly, the legislative grant of power to a court, including the conferral of the jurisdiction, should not be construed as subject to a limitation not appearing in the words of the grant.[58]
[58] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 [10].
Fifthly, the effect of s 91(1) of the Act is that upon the court determining the issue of the employer's liability under the Act in favour of the worker, the court is obliged to ('shall') assess the amount of compensation or refer the assessment of the compensation to an arbitrator for determination.
Sixthly, s 91(1) is a provision with links back to the first legislative instrument, in 1902, in relation to workers' compensation in this State. In Ta Pullin J (Parker & Hasluck JJ agreeing) said:[59]
Section 91, or its equivalent, has been in the Western Australian Workers Compensation legislation since the Workers Compensation Act 1902. The Ivanhoe Gold Corporation case was concerned with the equivalent section in the 1902 Western Australian Act. A similar provision in one form or another has appeared in all legislation relating to workers' compensation in Great Britain and several Australian States ever since workers' compensation legislation was first enacted. It first appeared in the first British Workman's Compensation Act of 1897. See Caravidas v Holeproof Ltd [1964] VR 146 at 147.
[59] Ta v Lucky Import and Export Co Pty Ltd [68].
The Workers' Compensation Act 1902 (WA) (1902 Act) included the following provisions:
7.(1) NOTHING herein shall affect any civil liability of the employer independently of this Act where the injury is caused by the negligence of the employer or of some person for whose act or default the employer is responsible.
(2)The worker may claim compensation under this Act or take the same proceedings as are open to him independently of this Act; but the employer shall not be liable to pay compensation independently of and also under this Act.
…
9.IF, within the time limited by section eleven, an action is brought to recover compensation, independently of this Act, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the Court in which the action is tried shall assess such compensation, and shall deduct therefrom all the costs which have been caused by the plaintiff bringing the action instead of taking proceedings under this Act, and shall enter judgment accordingly.
That the form of s 91(1) may be traced to s 9 of the 1902 Act may serve to explain why, as noted above, its subject matter concerns a worker who has taken common law proceedings without taking proceedings for compensation under the Act. Section 9 of the 1902 Act harkens back to a simpler age in which, without concern for the complex of 'gateways', limitations and registration requirements that now beset the Act, a worker could choose between two relatively straightforward means of establishing liability for compensation for a work related injury. The fact that, as a practical matter, a worker may now be less likely to commence common law proceedings without taking proceedings for compensation under the Act, however, does not affect the effect or the operation of s 91(1) itself.
Seventhly, in Ivanhoe Gold, Barton J described the operation of s 9 of the 1902 Act (the predecessor of s 91(1)) as a provision:[60]
designed … to secure [the worker] compensation assessed under the Act where he would have succeeded by taking advantage of it instead of mistakenly pursuing another remedy … [T]he efforts of the legislature [are] to prevent a circuity of action the continuance of which may be very harassing to the class for whom the protection of this Act is designed.
[60] Ivanhoe Gold Corporation Ltd v Symonds (660), (663).
Although s 9 of the 1902 Act was enacted in the context of s 7 of that statute (referred to above), the observations of Barton J as to the sense of avoiding circuity of action in circumstances where the worker commences proceedings under the common law rather than taking proceedings for statutory compensation, continue to be apposite where that is in fact the course adopted by the worker although the worker's rights to compensation are governed by the (present) Act.
Eighthly, it is to be inferred that Parliament intended that the court's jurisdiction under s 91(1) would be exercised in the conventional way in which a court exercises its jurisdiction - by a party putting the matter in issue in the proceedings. A party must 'invoke' the jurisdiction under s 91(1), and if neither party does so, then the court is not obliged to make a s 91 order.[61] It is unnecessary to explore procedurally how that might be done, although under modern case management principles, it might be thought that the issue could, for example, be pleaded as alternative in the statement of claim by the worker.[62] As both Ivanhoe Gold and Ta indicate, the matter might also be put in issue by the employer who seeks to take the benefit of the costs deduction provided for. The obligation of the court ('shall deduct') to deduct the costs before entering judgment in favour of the worker under s 91(1) is to be contrasted with the inability on the part of the employer itself to deduct from the employer's liability to pay compensation to the worker any amount owed by the worker to the employer: s 302 of the Act.
[61] Ta v Lucky Import and Export Co Pty Ltd [62] - [63].
[62] cf Ivanhoe Gold Corporation Ltd v Symonds (654).
Ninthly, where a worker has commenced common law proceedings instead of taking proceedings under the Act, it would be expected that the resolution of the proceedings would produce issues estoppel in relation to matters such as the injury, the circumstances of the accident and the nature and degree of the worker's disability. It makes evident sense that, in that context, the court seized with the jurisdiction of the common law claim would go on to decide whether the employer would have been liable to pay compensation under the Act. Given that much of the evidence would likely be the same whether the employer's liability were determined in the common law proceedings or by an arbitrator, there may be a question as to the scope of the liability for costs contemplated by the phrase 'all the costs which have been caused by the plaintiff bringing the action, instead of taking proceedings under this Act'. It is unnecessary to consider that matter for present purposes.
Tenthly, it is to be recalled that s 91(1) applies where the worker has not taken 'proceedings under the Act'. While, 'proceedings' are not defined in the Act, according to its ordinary and natural meaning, the fact that a worker has been in receipt of compensation under the Act would not have the result that he or she had taken 'proceedings' under the Act. It may be that liability for compensation under the Act is not disputed by the employer. Indeed in Mokta v Metro Meat International Ltd, Pullin JA (with whom Steytler P and Wheeler JA) said that that may be assumed to be the position in most cases:[63]
In most cases there will be no dispute between the parties and the compensation payable will be paid without the need for any proceedings. It may be assumed that the bulk of workers' compensation payments are made without the need for any proceedings.
[63] Mokta v Metro Meat International Ltd [45].
In those circumstances, where a worker has taken common law proceedings, and failed to establish liability for negligence, there may well be outstanding issues as to the amount of compensation that is payable, in relation to which the court will assess that compensation under s 91(1) at the instance of either party. Ta may be regarded as such a case.
Where liability for compensation under the Act is disputed (for example because the employer denies that the worker suffered a work-related injury) it might be doubtful that it would be in the interests of the worker to take proceedings at common law without taking proceedings under the Act, given the potential for costs to be deducted from the award of compensation under s 91(1) of the Act. The answer to the question of why a worker might adopt that course is not immediately obvious. It might perhaps be thought that there may be circumstances in which a worker, either for personal reasons or because of limitation issues, seeks the urgent resolution of proceedings under the common law without the distraction of proceedings under the Act. Similarly, a worker might wish to avoid any potential for an issue estoppel to arise in the common law proceedings as a result of an adverse determination by an arbitrator in proceedings under the Act.[64] Whatever the answer to the question as to why a worker would take proceedings at common law without taking proceedings under the Act, it is clear that s 91(1) contemplates that that might occur. The court cannot simply ignore the statutory text, as the appellant at one point in the argument suggested.[65]
[64] See Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [22]; McNair v Press Offshore Ltd (1997) 17 WAR 191, 196 - 198.
[65] See Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [38] - [40], [65].
Nevertheless, whatever the precise scope of s 91(1) of the Act, it is evident from the preceding observations that there is no implied term in that subsection prohibiting a worker, where liability under the Act is not in issue or has been determined in proceedings under the Act, from bringing an application under s 217 of the Act. In those circumstances, the employer's liability for compensation under the Act is not (or no longer) in issue and, indeed, neither party could put it in issue in the common law proceedings, as the employer's liability for compensation has already been determined pursuant to the worker's claim under the Act. The reading in of such a prohibition to operate in these circumstances is entirely unwarranted. It 'is too big' and 'too much at variance with the language in fact used by the legislature'.[66]
[66] Taylor v Owners - Strata Plan No 11564 [38].
Section 92 does not point to a different conclusion. Section 92 is directed to a different issue - where the worker succeeds in his or her claim under the common law. In that event, before proceeding to judgment, the worker is given a reasonable opportunity to elect whether to have the judgment or to discontinue the proceedings: s 92(a). If the worker elects to discontinue (presumably because of a concern that his or her entitlement to compensation under the Act would exceed the entitlement to common law damages), the worker has to pay the costs of the action or such costs as the court thinks fit: s 92(d). But there is no power to order the costs to be deducted from the worker's compensation payments. There is nothing in the text, context or purpose of s 92 which would justify reading into s 91(1) an implied prohibition of the kind found by the learned primary judge in the circumstances.
Conclusion
Leave to appeal will be granted, the appeal will be allowed and the matter remitted to the arbitrator. We will hear the parties as to the orders to be made and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
24 FEBRUARY 2022
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