Davies v Barancewicz

Damien Davies v Belinda Barancewicz [2011] ACTSC 166 (11 October 2011)

LIMITATION OF ACTIONS – Limitation Act 1985 (ACT) – whether the Court has the power under s 36 to extend time for an employee entitled to claim workers compensation benefits from her employer to sue a third party tortfeasor – whether employee excluded by s 16B – whether s 16A is limited to claims for damages by employees against their employers

COURTS AND JUDGES – Judges – adequacy of reasons – the duty to give reasons does not require every argument to be addressed

Civil Law Wrongs Act 2002 (ACT)
Legislation Act 2001 (ACT)
Limitation Act 1985 (ACT)
Workers Compensation Act 1951 (ACT)
Workers Compensation Amendment Act 2001 (ACT)

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Buck v Comcare (1996) 66 FCR 359
Bull v Attorney-General for New South Wales (1913) 17 CLR 370
Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541
Comcare v Forbutt [2000] FCA 837
Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11
Goundar v Minister for Immigration (1994) 54 FCR 300
Harris v Commissioner of Taxation (2002) 125 FCR 46
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553
Huntsman Chemical Co Australia PtyLtd v Narellan Pools Pty Ltd [2011] FCAFC 7
Mifsud v Campbell (1991) 21 NSWLR 725
Mills v Meeking (1989) 1 ALR 16
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
O’Grady v Northern Queensland Company Ltd (1990) 169 CLR 356
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Young (1999) 46 NSWLR 681
Re Dingjan: ex parte Wagner (1995) 183 CLR 323
Richardson v ACT Health and Community Care Service (2000) 100 FCR 1
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252
Saraswati v R (1991) 172 CLR 1
Thompson v Goold & Co [1910] AC 409
Wills v Bowley [1983] 1 AC 57

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SC 198 of 2010
Judge: Katzmann J
Supreme Court of the ACT
Date: 11 October 2011

IN THE SUPREME COURT OF THE     )
  )          No. SC 198 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAMIEN DAVIES
Appellant

AND:BELINDA BARANCEWICZ
Respondent

ORDER

Judge:  Katzmann J
Date:  11 October 2011
Place:  Sydney/Canberra

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

On her way home from work on 13 March 2007 Belinda Barancewicz was involved in an accident when the vehicle she was driving was hit from behind by a vehicle driven by Damien Davies. Ms Barancewicz was injured in the accident. She lodged with her employer (Southern Cross Channel Ten Television) a claim for workers compensation and the claim was accepted.
Ms Barancewicz had three years in which to sue Mr Davies for damages but she did not file her statement of claim until 19 March 2010 – six days after the limitation period had expired. Mr Davies filed a defence in which he pleaded that the claim was statute-barred. Ms Barancewicz then applied for an extension of time under s 36 of the Limitation Act 1985 (ACT) (“the Act”), asserting that her claim fell within the terms of s 16A of the Act. Her application was supported by affidavit evidence but, as nothing turns on that evidence in this appeal, it is unnecessary to say anything more about it.
On 31 January 2011 Master Harper granted the application. This is an appeal from that decision.

The master’s reasons

The master said that he was satisfied that the failure to commence proceedings within the limitation period caused no prejudice to Mr Davies or his insurer and that there was no impediment to a fair trial of the action if the limitation period were to be extended. There was, however, a threshold question about whether s 16A applied to the facts of this case because, if it did not, it was common ground that there was no power to extend the period. Following the decision of Gray J in Driscoll v Iron Mountain Australia Pty Limited [2010] ACTSC 127 (“Driscoll”), the master rejected Mr Davies’s contention that s 16A did not apply and therefore held that there was power to extend the limitation period.
None of his Honour’s findings about the manner in which the power was exercised is challenged in this appeal. The appeal is concerned with whether the master had the power in the first place.

The appeal

Mr Davies contends that the master erred in his interpretation of the Act, in particular, his interpretation of s 16A, which his Honour found applied in this case. He also contends that his Honour gave inadequate reasons for his decision. The substance of the argument is that the Court has no power to extend the limitation period in this case because that power is contingent on the cause of action falling within the terms of s 16A and it did not.
The essential issue is whether s 16A applies to a cause of action for damages at the suit of a person injured on the way home from work in circumstances entitling that person to workers compensation, where the action is brought against someone other than the person’s employer.
For the reasons given below I am of the opinion that it does and that the appeal must therefore fail.

Did the master err in his interpretation of s 16A?

It is convenient to begin with a discussion of the relevant provisions of the Act, for s 16A must be read in the context of the Act as a whole (Legislation Act2001 (ACT), s 140) and construed in a way that is consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
The Court of Appeal recently summarised the relevant principles in Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14 at [12]:
The starting point is the text itself (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (“Alcan”) at [47]), although a decision on the meaning of the text begins with an examination of its context (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) at [69]). “Context” is used in its widest sense to include such things as the existing state of the law and the mischief the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. That means that it is proper to have regard at the outset to extrinsic materials and not merely if the language is ambiguous. But historical considerations and extrinsic materials cannot displace the clear meaning of the text: Alcan. These principles of the common law are also reflected in the Legislation Act 2001 (ACT).
Section 11 of the Act relevantly provides that an action on any cause of action is not maintainable if brought after the end of a six-year limitation period running from the date when the cause of action first accrues, unless another limitation period is provided by the Act.
Sections 16A and 16B provide for a shorter, three-year limitation period. Section 16A reads:

Claims for common law compensation for workers compensation

(1) This section applies to a cause of action, other than a cause of action that is a claim for compensation under the Workers Compensation 1951, if—

(a) the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951; and

(b) a claim could be, or could have been, made in relation to the cause of action under the Workers Compensation Act 1951 if notice of the injury had been given as required under that Act.

(2) The action is not maintainable if brought 3 or more years after the day the injury happened.

Section 16B provides:

Other claims for damages for personal injury

(1)This section applies to a cause of action for damages for personal injury other than a cause of action to which section 16 (Compensation to relatives) or section 16A applies.
(2)The cause of action is not maintainable if brought—
(a)if the injury is or includes a disease or disorder—3 years or more after the day the person injured first knows—
(i) that the person has suffered an injury that is or includes a disease or disorder; and
(ii) that the injury is related to someone else’s act or omission; or

(b)in any other case—3 years or more after the day the injury happened.

Section 16 is in the following terms:
Compensation to relatives
An action on a cause of action arising under the Civil Law (Wrongs) Act 2002, part 3.1 (Wrongful act or omission causing death) in relation to an act, neglect or default resulting in death is not maintainable after the end of—
(a)the period of 6 years immediately following the relevant wrongful act, neglect or default; or
(b)the period of 3 years immediately following the day of death of the person injured by that act, neglect or default;
whichever ends later.
Section 36 gives the Court the power to extend the limitation period in any action for damages that consists of or includes “damages in relation to personal injuries”. It applies to causes of action referred to in ss 16 and 16A: s 35. But it makes an exception, amongst other things, for causes of action to which s 16B applies: subs 36(5). Section 36 relevantly provides:
Personal injuries
(1)This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.
(2)If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it considers appropriate, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.
(3)…
(4)…
(5)This section does not apply in relation to a cause of action to which either of the following applies:
(a)section 16B (Other claims for damages for personal injury);
(b) …
(6)…
Mr Davies’s position is that this case relates to a cause of action for damages for personal injury other than one to which s 16 or 16A applies (in other words to which s 16B applies), and so there is no power to extend the limitation period.
Mr Davies argued that s 16A is ambiguous, should be read narrowly and only applies to causes of action against employers. In written submissions he advanced two broad arguments:
(a)There is an ambiguity in subs 16A(1)(b). If “cause of action” meant the cause of action first appearing in the subsection then, he contended, “arguably” that cause of action had to be a claim against the employer. It would otherwise be straining the meaning of “in relation to” in subs 16A(1)(b), he submitted, in the sense that any relationship between a common law claim against a non-employer tortfeasor and a workers compensation claim is far more distant than that between such claims against the same party. While there is a natural relationship between the latter, he said there is no real relationship between the former; and
(b)Section 16A was introduced as part of workers compensation amendments, and not as part of the more general changes relating to personal injury common law claims which were introduced by the Civil Law Wrongs Act 2002 (ACT).
In oral submissions Mr Davies put the ambiguity argument in the alternative, contending first that the meaning was clear.
Whichever way it is put, the argument must be rejected.
There is in my view no ambiguity about the section. On a plain reading, s 16A will be satisfied upon proving:
(a)the existence of a cause of action which relates to a personal injury;
(b)the personal injury is one for which compensation is payable under the Workers Compensation Act 1951 (ACT) (“WCA”); and
(c)a claim under the WCA could be made, or (had the requisite notice been given) could have been made in relation to the cause of action.
In the present case all those conditions were met. Ms Barancewicz sued Mr Davies in negligence for injuries to her back and neck. That is a cause of action which relates to a personal injury. Compensation is payable under the WCA for personal injury to a worker arising out of, or in the course of, the worker’s employment: WCA, s 31. Ms Barancewicz received her injuries on her way home from work. For the purpose of the WCA, a personal injury received by a worker on a journey between her home and her workplace is an injury arising out of or in the course of the worker’s employment: subss 36(1), (2)(a). Thus, the personal injury in this case was one for which compensation was payable under the WCA. Ms Barancewicz had made a claim for compensation, which was accepted. Thus, a claim under the WCA could be made in relation to the cause of action. That the cause of action is brought against a third party (that is, not the party liable to pay the compensation) does no violence to the statutory language. The relevant relationship is made out.
While, regardless of ambiguity, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation (Legislation Act, s 139), this principle of construction presupposes that there is more than one interpretation that is reasonably open. The author of the explanatory statement on the Legislation (Statutory Interpretation) Amendment Bill 2003 (ACT) noted at [49] that the proposed s 139 would not apply where there is no interpretation that would best achieve the purpose of the law, either because no such interpretation is reasonably open or a number of interpretations equally achieve the purpose.
In the context of a statute of limitations which provides for different periods of limitation for different causes of action and allows for extensions of time for some and not others, this may be a case where “the search for the intent of legislators rather than the meaning of legislation can be both delusive and lacking in utility”: Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at [85] per Heydon J.
Whatever the intention of the Parliament may have been, neither the text of the Act nor the extrinsic materials upon which Mr Davies relied indicate that the (or a) purpose of the Act was to exempt from s 16A causes of action brought against non-employers where the injuries for which workers compensation is payable resulted from the accident that is the subject of the cause of action.
Section 16A was inserted into the Act by the Workers Compensation Amendment Act 2001 (ACT), which commenced on 1 July 2002. The circumstance that it was included in that package of amendments is of no consequence. It certainly has no bearing on the way in which the section should be interpreted. According to both the explanatory statement and the second reading speech, its sole purpose was to reduce the limitation period from six years to three. Nothing in either document points to any intention to limit the proposed new provision to proceedings brought against employers. Nor is there anything in the literal interpretation of the section which would indicate that it could not accord with the intention of the Parliament: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (“Cooper Brookes”) at 320-321.
In this Court Mr Davies also relied on the headings to ss 16A and 16B, noting that subs 126(2) of the Legislation Act provides:
(2) A heading to a section or subsection of an Act or statutory instrument is part of the Act or instrument if—
(a)...
(b)the heading was amended or inserted into the Act or instrument after 1 January 2000.
That much is true. But there is nothing about the headings to ss 16A and 16B that assists in working out the scope or meaning of s 16A. The expression “common law compensation for workers compensation” is odd. There is no such thing as common law compensation for workers compensation. The section is concerned with actions for damages at common law for personal injuries for which workers compensation is payable. The heading appears to be an awkward way of referring to causes of action of this kind. Read in this way, which is the only sensible way, the reference to “common law compensation” for such injuries is not apparently limited to causes of action against employers.
The WCA recognises that causes of action may be brought against third parties for injuries for which compensation is payable. Although double-recovery is not permitted, s 183 expressly allows a worker to make a claim against the employer under the WCA and to sue at common law where the “injury in relation to which compensation is payable under this Act is caused under circumstances that appear to create a legal liability in a person other than the employer to pay damages in relation to the injury”.
Mr Davies submitted that the decision in Driscoll was wrong and therefore the master was wrong to rely on it. In Driscoll the plaintiff sued his employer for damages for personal injury arising out of two accidents in the course of his employment. The first accident occurred before s 16A came into effect when the general six year limitation period operated pursuant to s 11 of the Act. It was common ground that the cause of action was out of time and the plaintiff would need to seek an extension under s 36. The second accident allegedly occurred when the plaintiff was loading a cabinet into a truck of which his employer was also the registered owner. That, however, was at a time after s 16A had been enacted and when more than four years had elapsed before the plaintiff had commenced proceedings. In that case, the plaintiff argued that s 16A did not apply because the second accident was, in effect, a cause of action against the registered owner of a motor vehicle and so, he submitted, he had six years to sue on it. Gray J rejected the argument. After considering the background to the enactment of s 16A his Honour said at [12]-[13]:
As can be seen from the terms of s 16A, the focus of the section is on a cause of action described and qualified by being a personal injury “that is a compensable injury under the Workers Compensation Act”… [Section] 16A is predicated to operate on a “cause of action”.
His Honour then quoted from the judgment of Wilson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 (“Do Carmo”) at 245 in which Wilson J pointed out that a cause of action is merely the fact or combination of facts giving rise to a right to sue and, in an action in negligence, it consists of the wrongful act or omission and the resultant damage. In Driscoll, Gray J held that, as the cause of action for damages for personal injuries arose out of the same facts that founded the plaintiff’s claim for compensation under the WCA, the plaintiff was caught by s 16A. It did not matter that the facts constituting the cause of action could be described as a road accident.
Mr Davies submitted that, taking into account the heading of s 16A and Chapter 9 of the WCA which, he asserted, “provides for recovery of common law damages for work injuries”, Gray J misconstrued s 16A. He argued that the reference to a cause of action in subs 16A(1) should be interpreted as “a claim for common law compensation under the [WCA]”. There are several problems with this submission.
First, as I have already said, the heading provides no assistance at all. Secondly, there is no such thing as “common law compensation under the [WCA]”. The WCA does not provide for recovery of common law damages for work injuries. It provides for workers compensation. To the extent that it refers to common law claims, it is merely concerned to ensure that an employer recovers from any damages the worker may obtain at common law, or any workers compensation it paid, and to preclude a worker from recovering any workers compensation if damages are paid.

Mr Davies also submitted that Gray J was wrong because the authorities on the meaning of “cause of action” indicate that in an action in negligence the phrase necessarily involves the act of the wrongdoer and emphasised the reference in the judgment of Wilson J in Do Carmo to the “wrongful act”. That much may be accepted. But nothing in Gray J’s judgment in Driscoll suggests he was unaware of this. Indeed, his Honour’s reference to the passage in the judgment of Wilson J in Do Carmo points in the opposite direction. The act of the wrongdoer, however, is the conduct giving rise to the cause of action. What makes the act wrongful in an action in negligence is that it is in breach of the duty of care. The fundamental flaw in Mr Davies’s argument is that the identity of the wrongdoer is not an element of the cause of action.
Finally, Mr Davies submitted that subs 16A(1)(b) could not be satisfied if “cause of action” were to include a cause of action by a person on a work journey against a negligent motorist. He argued that that was because a claim could not be made “under the [WCA] in relation to a cause of action in negligence against a non-employer tortfeasor”.
This submission appears to be based on a misreading of subs 16A(1)(b). The paragraph does not refer to a cause of action in negligence under the WCA because there is no such thing; a cause of action in negligence is independent of the WCA. The reference to “the cause of action” is descriptive of the claim. The paragraph is concerned with whether a claim could be made under the WCA in relation to the cause of action (as defined in paragraph (a)).
The expressions “relates to” and “in relation to” used in s 16A are expressions of wide import. As McHugh J said in O’Grady v Northern Queensland Company Ltd (1990) 169 CLR 356 at 376 (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (2002) 125 FCR 46 at [68]):
The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

Unsurprisingly, a similar approach has been taken to the phrase “relates to” (which appears in paragraph (a) of subs 16A(1)): HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 at [35]; Re Dingjan: ex parte Wagner (1995) 183 CLR 323 (“Dingjan”) at 334 per Mason CJ; and “relating to” which McHugh J described in Dingjan at 370 as “extremely wide”.
There is nothing, in my opinion, about the context or the drafting history of the Limitation Act that requires anything more in paragraph (b) than a relationship, whether direct or indirect, between the workers compensation claim and the cause of action. That is established here where the subject matter of both the cause of action and the claim for compensation consists of injuries to the one person sustained in the same accident.
Mr Davies submitted that the construction given by Gray J in Driscoll and applied by the master means that people who suffer injuries in motor vehicle accidents for which workers compensation is not available are worse off than those who are entitled to claim workers compensation, in that they have no right to apply for an extension of time. Mr Davies argued that such a construction was manifestly absurd or unreasonable, noting that for the purpose of Part 14.2 of the Legislation Act, “working out the meaning of an Act” includes “finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable”: Legislation Act, s 138.
It is true that a distinction based on the availability of workers compensation appears to be an arbitrary one. But in considering whether the apparent meaning is manifestly absurd or is unreasonable, the Act must be read as a whole. In my opinion, neither epithet applies. After all, the Act grants the benefit of an extension of time to workers with rights to sue their employers but it denies that benefit to retirees, the unemployed or the self-employed who have no workers compensation entitlements. There was no question that an employee of a supermarket owner who slips and falls on a wet, greasy floor may apply for an extension of time to sue the owner for the injuries she sustained in the fall but a customer who also slipped may not. These are policy decisions for the Parliament, not the courts. A court cannot depart from the ordinary meaning of a legislative provision merely because the ordinary meaning results in anomalies: Cooper Brookes at 320, Saraswati v R (1991) 172 CLR 1 at 22.
In effect, Mr Davies’s position is that the words “brought against an employer” qualify the expression “cause of action” wherever it appears in s 16A. But that would involve, at best, giving the section a strained construction when it could not be said that by inadvertence the Parliament had overlooked an eventuality: see Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J (“Mills”); Newcastle City Council. At worst, the approach Mr Davies urged would involve reading words into the Act when it is unnecessary to do so either to achieve the apparent purpose of the Act or to make the section intelligible: Thompson v Goold & Co [1910] AC 409 at 420; Wills v Bowley [1983] 1 AC 57 at 78B. Words cannot be inserted, unless the general words must be read down to conform to the intention of the Parliament, which is to be deduced from the text of the legislation. See R v Young (1999) 46 NSWLR 681 per Spigelman CJ at [32]:
The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what parliament meant by the words it used, not to determine what Parliament intended to say: see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236G; [1978] 1 All ER 948 at 952; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G and 645C-D; Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459: Young at [5].
[Emphasis added.]
There are two additional reasons for rejecting Mr Davies’s contention.
First, the Legislation Act is not a code; common law presumptions continue to apply: Legislation Act, s 137. Ms Barancewicz’s application was brought under s 36 of the Act. Section 36 is plainly a remedial section. It should therefore be interpreted beneficially (Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384) and the exceptions should be construed narrowly (Goundar v Minister for Immigration (1994) 54 FCR 300 at 307). In other words, the entitlement should not be excluded or confined by the exceptions save to the extent that one of those exceptions clearly applies: Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 543 per Kirby P; Goliath Portland Cement Co Ltd v Chief Executive Officer of Customs (2000) 101 FCR 11 at [29]. cf. Richardson v ACT Health and Community Care Service (2000) 100 FCR 1 at [24] per Finkelstein J, Heerey J agreeing at [7]. Here, the exception in subs 36(5)(a) does not clearly apply.
Secondly, the legislative history does not support Mr Davies’s argument. Before s 16A was introduced, all workers injured in motor vehicle accidents occurring between their places of employment and their homes in circumstances disclosing negligence on the part of someone other than their employer had six years in which to sue the negligent party. Section 16A reduced that period to three years. At the time it was introduced, s 16B was not in the Act. Section 16B was introduced more than two years later, on 9 September 2003. Before then, workers who brought proceedings against third party wrongdoers within the three year limitation period had the benefit of s 36. In the absence of clear words to indicate otherwise, it is reasonable to conclude that the Parliament did not intend to remove that benefit: cf. Buck v Comcare (1996) 66 FCR 359 at 364-365 per Finn J.

Did the master fail to give adequate reasons?

Mr Davies complained that the master did not deal with his arguments concerning the need for a narrow construction of s 16A. The master did not expressly advert to the arguments but that does not necessarily mean that he did not deal with them. Neither does it mean that he failed to provide adequate reasons for his decision, as Mr Davies submitted.
The extent of the duty to give reasons depends on the circumstances of the case: Mifsud v Campbell (1991) 21 NSWLR 725. It is not necessary for a judge to address every argument advanced by an unsuccessful party: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; (“Tatmar”); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444; Huntsman Chemical Co Australia PtyLtd v Narellan Pools Pty Ltd [2011] FCAFC 7 at [44]. As Mahoney JA said in Tatmar:
[The] duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. [The judge] may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309, at 350.
Provided the judgment discloses sufficient reasoning to indicate to the parties why the decision was made and allow them to exercise their rights of appeal if they so desire, the duty is fulfilled.
Although the master did not, in terms, refer to the argument that the section should be narrowly construed, he did consider whether s 16A should be confined in its operation to claims for damages brought against the claimant’s employer. In short, his reasons for holding otherwise were as follows. The cause of action is a cause of action relating to a personal injury. That injury is a compensable injury under the WCA. A claim could be or could have been made under that Act in relation to the cause of action, a condition that inexorably follows from the fact that such a claim was made and accepted. It is irrelevant that the respondent to the workers compensation claim is a different entity to the defendant. In reaching that conclusion the master applied the reasoning of Gray J in Driscoll. In my view these reasons, though arguably spare, were not appealably inadequate.
Even if they were, however, I would not set aside the decision. That is because I am not persuaded it is wrong. As Heerey J said in Comcare v Forbutt [2000] FCA 837 at [62], where the argument with which the primary judge did not deal is one of law, not of fact, a court would hardly set aside a decision which was not wrong in law.

Conclusion

The cause of action upon which Ms Barancewicz sued Mr Davies was a cause of action to which s 16A of the Limitation Act applied. She was therefore entitled to apply for an extension of time. This means that the order of the master should be confirmed and the appeal dismissed with costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Katzmann.
Associate:
Date: 11 October 2011

Counsel for the appellant:   Mr M A McDonogh
Solicitor for the appellant:   DLA Piper Australia
Counsel for the respondent:   Mr D P Shillington
Solicitor for the respondent:   Slater & Gordon

Date of hearing: 19 September 2011
Date of judgment: 11 October 2011

[2011] ACTSC 166

October 11, 2011