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Bond v Johnson

Bond v Johnson

Case [2012] TASSC 81 4 December 2012

Statutory Construction

Retrospective Operation

Amendments to Acts

Statutory Interpretation

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[2012] TASSC 81

COURT: SUPREME COURT OF TASMANIA

CITATION: Bond v Johnson [2012] TASSC 81

PARTIES:  BOND, David
  v
  JOHNSON, Damien

FILE NO: 283/2009
JUDGMENT

APPEALED FROM: Storey's Maintenance Services Pty Ltd v Johnson
[2012] TASSC 23

DELIVERED ON:  4 December 2012
DELIVERED AT:  Hobart
HEARING DATE:  27 November 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Statutes – Acts of Parliament – Operation and effect of Acts – Retrospective operation – Amending Acts – Amendment taken to have commenced on past date – Exception as to proceedings commenced but not completed – Issue as to whether person would have been liable if sued between retrospective commencement date and date amendment made.
Workers Rehabilitation and Compensation Amendment Act 2007 (Tas), s2(3).
Wrongs Act 1954 (Tas), s3(1)(c).

West v Gwynne [1911] 2 Ch 1; R v Kidman (1915) 20 CLR 425; Coleman v Shell Co of Australia Ltd (1943) 45 SR(NSW) 27; Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; State of Victoria v Robertson (2000) 1 VR 465, referred to.

Aust Dig Statutes [1148]
Workers Compensation – Alternative rights against employer and/or third parties and consequences thereof – Rights of and against third parties – Right of employer to indemnity or contribution from third party – Indemnity from "person liable to pay damages" – Retrospective statutory amendment extinguishing liability.

Workers Rehabilitation and Compensation Act1988 (Tas), s134.
Workers Rehabilitation and Compensation Amendment Act 2007 (Tas), s2(3).
West v Gwynne [1911] 2 Ch 1; R v Kidman (1915) 20 CLR 425; Coleman v Shell Co of Australia Ltd (1943) 45 SR(NSW) 27; Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; State of Victoria v Robertson (2000) 1 VR 465, referred to.
Aust Dig Workers Compensation [281]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson
             Respondent:  B R McTaggart
Solicitors:
             Appellant:  Dobson Mitchell & Allport
             Respondent:  Wallace Wilkinson & Webster

Judgment Number: [2012] TASSC 81
Number of paragraphs: 28

Serial No 81/2012
File No 283/2009

DAVID BOND v DAMIEN JOHNSON

REASONS FOR JUDGMENT BLOW J

4 December 2012

This is an appeal from a decision of Holt AsJ granting leave to file and serve a third party notice, and granting an extension of time for that purpose: Storey's Maintenance Services Pty Ltd v Johnson [2012] TASSC 23. The appeal concerns the consequences of statutory restrictions on the rights of workers to sue for damages at common law when they have not suffered a prescribed degree of physical impairment.

The allegations in the relevant proceedings are as follows. In March 2006 a man named Michael Parke was injured in the course of his work at the premises of Cadbury Pty Ltd at Claremont. He was not an employee of Cadbury. He was employed by a labour hire company named Storey's Maintenance Services Pty Ltd. That company had provided his services to Cadbury. The appellant, David Bond, was a project manager employed by Cadbury. The respondent, Damien Johnson, was an independent sub-contractor. He had been engaged by…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Bond v Johnson

Details

AGLC: Bond v Johnson [2012] TASSC 81
Case: [2012] TASSC 81
Decision Date: 4 December 2012

CaseChat Overview and Summary

The case of Bond v Johnson was heard before the court, involving a dispute concerning the retrospective application of an amendment to an Act of Parliament. The plaintiff, Bond, argued that the amendment should not apply to the events in question as they occurred prior to the amendment's purported retrospective commencement date. The defendant, Johnson, contended that the amendment should apply because it was validly enacted and intended to have retrospective effect. The legal issue before the court was whether the amendment could validly be applied to the events in question, given that proceedings had not been commenced at the time the amendment purported to take effect.

The court was required to determine the validity of the retrospective application of the amendment. Specifically, the court needed to assess whether the amendment could be applied to the events that occurred before its purported retrospective commencement date, while considering the exception for proceedings that were commenced but not completed. The court had to decide if Bond would have been liable if sued between the retrospective commencement date and the date the amendment was made. The central question was whether the legislative intent to apply the amendment retrospectively could override the principle that a person should not be held liable for actions taken before the amendment was made, provided that proceedings had not been initiated within that timeframe.

The court held that the amendment could not be applied retrospectively to the events in question. It was found that the exception for proceedings that were commenced but not completed meant that Bond could not be held liable for the events that occurred before the amendment was made, as no proceedings had been initiated during that period. The court emphasised the importance of the principle that a person should not be held liable for actions taken before the amendment was made, unless proceedings had been commenced within the specified timeframe. Accordingly, the court ruled in favour of Bond, determining that the amendment did not apply to the events in question.

The final orders of the court were that the amendment could not be applied to the events in question, and Bond was not liable for those events. The court's decision was based on the exception for proceedings that were commenced but not completed, and the principle that a person should not be held liable for actions taken before the amendment was made, unless proceedings had been initiated within the specified timeframe.

Orders