De San Miguel v Ryanex Pty Ltd

[2003] WADC 263

DE SAN MIGUEL -v- RYANEX PTY LTD [2003] WADC 263

Last Update:  12/12/2003

DE SAN MIGUEL -v- RYANEX PTY LTD [2003] WADC 263
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 263
Case No:	CIV:1012/2000	Heard:	19 SEPTEMBER 2003
Coram:	COMMISSIONER GREAVES	Delivered:	28/11/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ROGER JOHN DE SAN MIGUEL RYANEX PTY LTD
Catchwords:	Practice Appeal from Deputy Registrar Application to strike out statement of claim as an abuse of process Cause of action unsustainable
Legislation:	Limitation Act 1935 Workers' Compensation and Rehabilitation Act 1981
Case References:	Archer v Jeanswest Corporation Pty Ltd [2003] WADC 166 Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230 Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : DE SAN MIGUEL -v- RYANEX PTY LTD [2003] WADC 263 CORAM : COMMISSIONER GREAVES HEARD : 19 SEPTEMBER 2003 DELIVERED : 28 NOVEMBER 2003 FILE NO/S : CIV 1012 of 2000 BETWEEN : ROGER JOHN DE SAN MIGUEL

Plaintiff

AND

RYANEX PTY LTD
Defendant

Catchwords:

Practice - Appeal from Deputy Registrar - Application to strike out statement of claim as an abuse of process - Cause of action unsustainable

Legislation:

Limitation Act 1935
Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal dismissed


(Page 2)

Representation:

Counsel:

Plaintiff : Mr J J Sheldrick
Defendant : Mr J S MacDonald

Solicitors:

Plaintiff : D'Angelo & Partners
Defendant : McAuliffe Williams & Partners

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

Archer v Jeanswest Corporation Pty Ltd [2003] WADC 166
Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230
Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150

Case(s) also cited:

Nil

(Page 3)

1 COMMISSIONER GREAVES: This is an appeal from the decision of the learned Deputy Registrar whereby he allowed the defendant's application to strike out the plaintiff's statement of claim on the ground that the continuation of the action would be an abuse of the process of the court. The learned Deputy Registrar reviews the history of the proceedings at [2] to [7] of his reasons and I do not repeat them.

2 Section 93E(3) and s 93E(4) of the Workers' Compensation and Rehabilitation Act 1981 provide:

"(3) Damages can only be awarded if —
(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or

(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

(4) For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."

3 The learned Deputy Registrar concluded at [16] of his reasons:

"As the matter presently stands the plaintiff is not entitled to an award of damages. His application for degree of disability has been dismissed; he is not entitled to file another application for a determination of a degree of disability of not less than 16 per cent as he is out of time to elect; the plaintiff has not sought to appeal from the Compensation Magistrate's decision, there is no evidence that may be capable of founding a referral of a question as to whether or not the plaintiff has a degree of disability of not less than 30 per cent. Accordingly the plaintiff's action for damages as pleaded is unsustainable."

4 Counsel for the plaintiff submitted the plaintiff would be able to pursue an application seeking the determination at the Directorate that his relevant level of disability is not less than 16 per cent pursuant to s 93D of
(Page 4)

the Act in the event that the proposed legislation outlined in pars 5 to 7 of the affidavit of Joel Joshua Sheldrick sworn 7 April 2003 be passed by Parliament. At pars 5 to 9 of the affidavit, Mr Sheldrick says:
"5. On 19 December 2002, I became aware of a media statement issued by the Honourable Mr John Kobelke, MLA, Minister for Consumer and Employment Protection and Training ('the Minister'), which was posted on his internet site. The media statement was entitled, 'Legislation to Fix "Dutch" decision on Workers' Compensation'. Annexed hereto and marked with the letter 'A' is a copy of the media statement as printed from the website.

6. That media statement stated, inter alia, 'Changes to the Workers' Compensation Act would enable workers to re-submit medical evidence in cases where initial referral and medical evidence was lodged on or before the September 30, 2001, two months after the 'Dutch' decision was delivered.'

7. The media statement further stated, 'Specifically the changes will provide validation of referrals to the Director of Conciliation and Review at WorkCover under section 93D where:

• the claim has not been finalised by way of redemption or other settlement;
and
• the worker is able to obtain current medical evidence complying with section 93D that the worker still has a permanent degree of disability of not less than the relevant level claimed. Or the worker, if after lodging their Form 22 has subsequently obtained medical evidence that complies with section 93D, the worker can use the subsequent evidence to support the referral and

• the disability is the same disability as submitted with the original referral and

• where the original referral:

(Page 5)

• was lodged with the Director on or before September 30, 2001 (two months after the decision on 'Dutch' was issued);

• was accepted by the Director; and

• where the degree of disability has not been determined by review officer.'

8. On 4 February 2003, I caused for a letter to be sent to the Minister referring to the media statement and enquiring of the Minister as to when he anticipated the proposed legislation to be introduced into State Parliament. Annexed hereto and marked with the letter 'B' is a copy of that letter.

9. On 26 February 2003, I received a letter dated 25 February 2003 from the Minister. The letter stated, inter alia, 'Cabinet has given approval to draft amendments relating to the Dutch and De Santos decisions, which will all be incorporated in a comprehensive package of amendments to the workers' compensation legislation.' The said letter further stated that the Minister 'anticipate[d] the package [to] be put to Cabinet in the near future.' Annexed hereto and marked with the letter 'C' is a copy of that letter."

5 Counsel for the plaintiff submitted the court should have regard to the intention of the legislature in introducing the present s 93D into the Act, in particular the apparent consideration given by the legislature to the relationship between s 93D and s 38 of the Limitation Act 1935. He referred to Thomas v Arimco Mining Pty Ltd & Anor [2000] WADC 150 and the judgment of Nisbet DCJ at [10]

"It is, of course, trite to say as Stapleton wrote in "The Gist of Negligence" 104 LQR 213, 389 that the gist of the action of negligence is damage (although some commentators use the wider 'injury'). But Parliament is not saying that a worker has no cause of action for damages for negligence unless the provisions of s 93E(3) are met, it is simply saying that a court may not award damages unless the provisions of the Act are complied with. And for this appeal to succeed the second defendant must show that it was Parliament's intention to remove the cause of action itself or so alter it that it could not be

(Page 6)

said to lie without the addition of some other necessary element before the cause was perfected in law. In my opinion it is abundantly clear that Parliament has not chosen this course."

6 As his Honour observed, s 93E(3) says among other things a court may not award damages unless the provisions of the Act are complied with. Counsel suggested that by its present application the defendant is seeking to deny the plaintiff his right to commence proceedings against his employer. That submission is not in accordance with the facts.

7 The defendant's case, which the learned Deputy Registrar upheld, is that the plaintiff's action for damages as pleaded is unsustainable on the facts. Counsel for the plaintiff sought to distinguish between the common law right to bring the action and a particular legislative "threshold" which the plaintiff must overcome before his entitlement to an award of damages can be realised. Counsel for the plaintiff sought to distinguish between questions concerned with procedural law rather than substantive law. He submitted the courts have been more ready to take into account future amending legislation in relation to procedural law. He referred to the judgment of Martino DCJ in Archer v Jeanswest Corporation Pty Ltd [2003] WADC 166 where his Honour said at [9]:

"Having regard to the statements by the responsible Minister to which I have referred, I do not regard the plaintiff's current action as vexatious or an abuse of process. It does not seem to me to be vexatious or an abuse to request time to enable the plaintiff to see whether or not the foreshadowed legislation entitles him to proceed with his claim. Clearly, however, no further costs should be incurred in this action until that issue is clarified."

8 Counsel for the plaintiff submitted in these circumstances it was not open to conclude that the plaintiff's action is frivolous or vexatious.

9 Counsel for the defendant submitted the projected legislation has not been introduced into Parliament, let alone passed or proclaimed. He submitted it can be seen there is no way in which the legislation can be guaranteed to be passed even if the Minister holds to his promise. He submitted the court must act on the law as it stands and referred to the judgment of Starke J in Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd (1935) 54 CLR 230 at 253 where his Honour said:

(Page 7)

"Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future."

10 In my opinion, the fact that on the evidence before me the projected legislation has not been introduced is significant in the present case. The present case cannot be distinguished from Archer v Jeanswest Corporation Pty Ltd. In this case, it is equally clear that on the legislation as it presently stands, damages cannot be awarded to the plaintiff. I decline to follow the approach of Martino DCJ. In my opinion, to continue this action is an abuse of the process of the court. The appeal should be dismissed.

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