Brighton Und Refern Plaster Pty Ltd v Boardman

Case [2006] HCA 33

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ

BRIGHTON UND REFERN PLASTER

PTY LIMITED (UNDER EXTERNAL
ADMINISTRATION AND/OR

CONTROLLER APPOINTED)  APPELLANT

AND

SCOTT RAYMOND BOARDMAN  RESPONDENT

Brighton Und Refern Plaster Pty Limited v Boardman
[2006] HCA 33
15 June 2006
S479/2005

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

R S Toner SC with M J Jenkins for the appellant (instructed by Rankin Nathan Solicitors)

M I Bozic SC with D M Shoebridge for the respondent (instructed by Taylor & Scott Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Brighton und Refern Plaster Pty Limited v Boardman

Workers' Compensation − Plaintiff did not comply with s 151C of the Workers Compensation Act 1987 (NSW) − Defendant did not take any point as to non‑compliance until after an order for judgment had been made under Pt 11 r 1(1) of the District Court Rules − Whether proceedings commenced by the plaintiff invalid or a nullity because of non-compliance with s 151C − Whether procedural steps taken by the parties under the District Court Rules invalid or nullities because of non-compliance with s 151C − Whether defendant entitled to an order setting aside the order for judgment − Whether the concept of waiver relevant.

Statutory construction − Where statute imposed a restriction upon the commencement of court proceedings but made no provision for consequences of non-compliance − Construction of s 151C of Workers Compensation Act 1987 (NSW).

Workers Compensation Act 1987 (NSW), Pt 5, s 151C.

  1. GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ.   This appeal from the New South Wales Court of Appeal (Giles and McColl JJA)[1] was heard concurrently with the appeal in Berowra Holdings Pty Ltd v Gordon[2] and the issues for determination were, to a great extent, common.  It is unnecessary to repeat what is said in Berowra Holdings concerning the proper construction to be given to s 151C of the Workers Compensation Act 1987 (NSW) ("the 1987 Act") and the significance of the context of the relevant District Court Rules ("the Rules").

  2. Like the worker in Berowra Holdings, the respondent in this case ("the worker") commenced proceedings in the District Court of New South Wales without complying with s 151C. The appellant ("the employer") did not take any point in relation to non-compliance until some considerable time had elapsed, and after various steps had been taken pursuant to the Rules. Submissions in the District Court and the Court of Appeal were cast in terms of "waiver", a concept which is of limited utility in this context[3]. The appeal to this Court was conducted on the basis that non‑compliance with s 151C rendered the proceedings a "nullity", with the result that waiver could not occur.

    [3]See Berowra…

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AGLC
Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33
Case
[2006] HCA 33
Decision Date

CaseChat Overview and Summary

The parties to this appeal were Brighton Und Refern Plaster Pty Limited (appellant) and Mr. Boardman (respondent). The dispute concerned the validity of proceedings commenced by the respondent for damages for personal injury sustained while working for the appellant. The appellant contended that the respondent's proceedings were invalid due to non-compliance with section 151C of the *Workers Compensation Act 1987* (NSW). The matter was heard by the High Court of Australia.

The central legal issues before the High Court were whether the respondent's proceedings were invalid or a nullity because of non-compliance with section 151C of the *Workers Compensation Act 1987* (NSW), and consequently, whether the appellant was entitled to an order setting aside a judgment for the respondent. The court was also required to consider whether the concept of waiver was relevant in this context, particularly given that the appellant did not raise the issue of non-compliance until after an order for judgment had been made.

The High Court reasoned that neither the language nor the purpose of section 151C(1) of the Act demanded that proceedings be considered "invalid" or "null and void" for non-compliance. The court found that the proceedings were not invalid, null, or void. The court applied principles of statutory construction, referencing *Project Blue Sky Inc v Australian Broadcasting Authority*, to determine that the statute did not mandate such consequences for non-compliance, nor did the circumstances otherwise require the provision of relief to the appellant. The court noted that the appellant had conceded that its conduct amounted to a waiver, although it argued this was legally irrelevant. The court ultimately concluded that the appellant was entitled, as it chose, not to rely on the respondent's failure to comply with section 151C(1).

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Neither the language nor the purpose of s 151C(1) demanded the provision of relief to the appellant on the ground that the proceedings were "invalid" or "null and void". They were not invalid, null or void. Nor did the circumstances otherwise require the provision of relief. The decision of the Court of Appeal refusing leave was open to it. The appeal to this Court should be dismissed.The facts There was no relevant dispute about the facts. They can be derived from the findings made by the primary judge[19].[19]Boardman v Brighton Und Refern Plaster Pty Ltd, unreported, 13 February 2004 ("reasons of Balla DCJ") at 2-3. The respondent claims that he was injured whilst working for the appellant on 13 February 2001[20]. He asserts that his injuries were caused by the negligence of the appellant. By a letter of 28 March 2001, the appellant's insurer (described as "the GIO") referred to the respondent's claim for compensation under the Act. It asked the respondent to complete a notification form[21]. [20]Reasons of Balla DCJ at 2. [21]Reasons of Balla DCJ at 2. On 19 July 2001, the respondent caused his statement of claim for damages for personal injury to be filed in the District Court[22]. He named the appellant as the defendant in an action for damages in respect of his injury. On 23 July 2001, by registered mail, the statement of claim and a court timetable were served on the appellant. The timetable nominated a "review date" of 16 January 2002[23]. [22]Reasons of Balla DCJ at 2.[23]Reasons of Balla DCJ at 2. By letter of 28 September 2001, the appellant's insurer wrote to the respondent's solicitor acknowledging receipt of a claim brought under the Act. The letter stated[24]: "We wish to advise that this office is presently in the process of assessing your client's loss under sec 66 and compensation under sec 67 in an attempt to resolve this matter."The insurer arranged a medical appointment and sought particulars.[24]Reasons of Balla DCJ at 2. When the review date was reached and the matter returned before the District Court on 16 January 2002, there was no appearance for the appellant. The Court ordered the appellant to file a defence within 28 days[25]. On 18 January 2002, the solicitor for the respondent wrote to the administrator of the appellant, since appointed, informing the administrator of the orders so made, including the order for the filing of a defence by 16 February 2002[26]. No such defence was filed.[25]Reasons of Balla DCJ at 3. [26]Reasons of Balla DCJ at 3. In accordance with the court timetable, a "status conference" was listed in the District Court on 13 March 2002. Once again, there was no appearance for the appellant. The matter was then listed for a "show cause" hearing on 17 April 2002[27].[27]Reasons of Balla DCJ at 3. By letter of 28 March 2002 the appellant's administrator was informed that the respondent was considering the need to seek leave from the Supreme Court to continue the action on the basis that the proceedings had begun before the "liquidation" of the appellant. The administrator was also notified of the show cause hearing scheduled to take place on 17 April 2002.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ KIRBY J
Because the respondent's proceedings were commenced before the time specified in s 151C(1), the appellant contended that the respondent's proceedings in both the District Court and in the Court of Appeal were invalid. By this, it meant null and void. Because the appellant contended that s 151C(1) of the Act had been enacted for reasons of public policy that transcended the individual interests of the parties to the proceedings, it argued that it was not open to the parties to disregard, or waive, non-compliance with the sub-section. Rather, it was the duty of the courts to uphold the law as expressed in the sub-section and to give effect to its purpose. The appellant complained that neither the primary judge in the District Court nor the judges in the Court of Appeal had done this.The decision of the primary judge In the hearing of the motions in the District Court, concessions were made on behalf of each of the parties. The record (and the findings of the primary judge) did not disclose exactly when the appellant had been given notice of the respondent's injury, commencing the running of time for which s 151C(1) provides. However, it was clear that the commencement of the proceedings for damages, having occurred within six months from the date of the injury, had likewise occurred within six months of the notice. The respondent conceded that this was the case. He also conceded that neither the appellant nor its insurer had wholly or partly denied liability for his injuries, so as to engage s 151C(2) of the Act[40].[40]Reasons of Balla DCJ at 4. For its part, the appellant conceded that, in the light of the foregoing history, the respondent "was entitled to a finding that the failure to act by the [appellant] and its insurer amounted to waiver"[41]. No equivalent concession on the part of the employer was made in Gordon. Whilst making this concession, the appellant submitted that it was legally irrelevant. It would only be relevant if non-compliance with s 151C(1) was solely for the interests of the appellant. This was an interpretation that the appellant disputed.[41]Reasons of Balla DCJ at 6. The respondent submitted that non-compliance with s 151C could be, and had been, waived by the appellant. Alternatively, the respondent argued that the appellant, by the course of the proceedings, should be taken to have admitted liability. This was reflected in the order of Bowden DCJ, for default of appearance of the appellant, that the respondent's claim was for hearing as on an assessment of damages. That order, so it was said, precluded the appellant from "relying on a breach of any procedural requirement" in the Act, such as s 151C(1)[42]. [42]Reasons of Balla DCJ at 6. The primary judge rejected the submissions for the appellant, contending that the language of s 151C of the Act was such as to forbid waiver by the employer. More relevantly, her Honour rejected the appellant's submission that the statement of claim was "a nullity"[43]. By reference to authority, including a decision of this Court concerning the proper approach to deriving the meaning of contested statutory language[44], the primary judge concluded that the proceedings were not invalid and that a party such as the appellant was entitled, as it chose, not to rely on a failure of the respondent to comply with s 151C(1).[43]Reasons of Balla DCJ at 5.[44]Project Blue Sky Inc v Australian Broadcasting Authority (1997) 194 CLR 355.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ, KIRBY J

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