Dossett v TKJ Nominees Pty Ltd

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HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJ

BRADLEY JOHN DOSSETT  APPELLANT

AND

TKJ NOMINEES PTY LTD  RESPONDENT

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69

4 December 2003
P118/2002

ORDER

1.Appeal allowed with costs.

2.Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 15 June 2001.

3.In place thereof order that the appeal to that Court be allowed with costs, the orders of the District Court of Western Australia made on 3 May 2000 be set aside, and the application for leave to commence proceedings be remitted to the District Court for determination according to law.

On appeal from the Supreme Court of Western Australia

Representation:

B L Nugawela with J J Sheldrick for the appellant (instructed by Andrew Read & Associates)

M W Odes QC with G W Nutt for the respondent (instructed by Jackson McDonald)

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

  1. McHUGH J.   The question in this appeal is whether the Full Court of the Supreme Court of Western Australia correctly concluded that the enactment of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) abolished the power to grant leave to the appellant to commence proceedings for damages at common law.

    Statement of the case

  2. In July 1998, Mr Bradley John Dossett applied to the District Court of Western Australia, as required by s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA), for leave to commence common law proceedings for the recovery of damages in respect of an employment injury. To obtain leave, Mr Dossett had to show that he was "likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount." On 5 October 1999, before the District Court determined his application, the Workers' Compensation and Rehabilitation Amendment Act received the Royal Assent.  As a result, the Workers' Compensation and Rehabilitation Act thereafter imposed more restrictive conditions on the award of common law damages. Section 32(7) of the Workers' Compensation and Rehabilitation Amendment Act, however, enacted transitional provisions.  It provided:

    "The amended provisions do not affect the awarding of damages in proceedings –

    (a)      commenced before the assent day; or

    (b)for the commencement of which the District Court gave leave under the former provisions before the assent day,

    and the former provisions continue to apply in relation to those proceedings."

  3. Section 32(6) defined "assent day" to mean the day of the receipt of the Royal Assent.

  4. The District Court held that the amended provision applied to Mr Dossett's application and that it had no power to give him leave to commence proceedings under the old s 93D. Mr Dossett appealed to the Full Court of the Supreme Court of Western Australia but that Court dismissed his appeal. Scott J (with whom Anderson J and Stein AJ agreed) said that, because the District Court…

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Details
Case
[2003] HCA 69
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Full Court of the Supreme Court of Western Australia concerning a workers' compensation claim. The appellant, Mr. Bradley Dossett, had been injured in December 1996 and, in July 1998, applied to the District Court of Western Australia for leave to commence common law proceedings against his employer, TKJ Nominees Pty Ltd. This application was dismissed by the District Court in January 2000, a decision affirmed by the Full Court.

The central legal issue before the High Court was whether the appellant was entitled to a grant of leave to commence common law proceedings for personal injury under the regime applicable at the time of his injury and application, or if he was subject to a new, stricter regime introduced by an amending Act. Specifically, the court had to determine if the general saving provision in s 37(1) of the *Interpretation Act 1984* (WA) applied to preserve the appellant's claim, notwithstanding that his claim did not fall within a specific saving provision in the amending Act. This involved considering whether a repeal accompanied by the substitution of provisions constituted a "repeal" for the purposes of s 37(1) and the significance of the distinction between "amend" and "repeal" in statutory interpretation, particularly in light of the principle that the abolition of common law rights must be clearly expressed.

The High Court reasoned that the appellant had invoked the jurisdiction of the District Court before the amending legislation came into effect, and that the legislation did not clearly and unambiguously deprive him of the right to have his application determined according to the law in force at that time. The court found that the amending Act, when read with the *Interpretation Act 1984* (WA) and in the context of common law principles, preserved proceedings commenced in the District Court before the assent date for the purpose of determining whether to grant leave to commence a common law action. The court concluded that the respondent had not pointed to a clear law that had the effect of abolishing the appellant's accrued rights.

Consequently, the High Court allowed the appeal, set aside the orders of the Full Court of the Supreme Court of Western Australia, and ordered that the appeal to that Court be allowed with costs. The orders of the District Court of Western Australia were also set aside, and the application for leave to commence proceedings was remitted to the District Court for determination according to law.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 15 June 2001.

3. In place thereof order that the appeal to that Court be allowed with costs, the orders of the District Court of Western Australia made on 3 May 2000 be set aside, and the application for leave to commence proceedings be remitted to the District Court for determination according to law.

Background

Background to the litigation

In explaining why I have concluded that the Full Court erred in this case, I will start with a number of general propositions. After identifying what I see as the strongest arguments in favour of the conclusion that the Full Court reached, I will list those considerations that have brought me to the opposite outcome. The relevant facts The facts are stated in the other reasons and were not in doubt[31]. Mr Bradley Dossett (the appellant) was injured in December 1996. On 1 July 1998, in accordance with the law then applicable in Western Australia, he applied to the District Court of that State for leave to proceed at common law against his employer, TKJ Nominees Pty Ltd (the respondent). To that extent, the appellant had invoked the judicial branch of government for a determination of his entitlements. In the normal course of events, he was entitled to expect that his claim against the respondent, which pre-existed his invocation of the jurisdiction of the District Court, would be determined, according to law, by that court whose jurisdiction and powers he had engaged.[31]Reasons of McHugh J at [2]-[4]; reasons of Gummow, Hayne and Heydon JJ ("joint reasons") at [20]-[28]. In accordance with the then procedure, the appellant's originating summons was listed for hearing before a Registrar of the District Court on 8 October 1999. That hearing was adjourned to a special appointment before a Registrar. Eventually, a hearing date was fixed for 19 January 2000. On that day, the appellant's originating summons was dismissed by the District Court on the basis of the legislation now under consideration. That decision was affirmed on the appeal from which, by special leave, the further appeal now comes to this Court.The constitutional setting The task of a court in a case such as the present is to give effect to the law applicable to the foregoing facts. By the law, I mean both the statute law and the common law of Australia understood as the background against which the relevant Acts were enacted. Statute law and the common law must always conform to constitutional requirements[32]. Here, the proceedings between the parties had been commenced before a court which was a part of the independent and integrated judicature of the nation[33]. The constitutional setting is therefore not irrelevant[34]. Having invoked the courts, the appellant would usually be entitled to expect that his rights would not be altered whilst his application to the courts was pending, awaiting determination[35]. Where changes are effected in ways that have an impact upon already accrued legal rights, privileges and entitlements, statutory exceptions are commonly made to exclude those that are the subject of pending proceedings[36]. Subject to the Constitution[37], supervening legislation may alter the rights of parties whose suits are awaiting judicial determination. So much was not contested. But when this occurs, it is not unusual for Australian courts to say (in part defensive of their own constitutional position and function) that such legislation must be clear[38]. [32]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566.[33]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 115-118, 137-139.[34]cf British American Tobacco Australia Ltd v Western Australia (2003) 77 ALJR 1566; 200 ALR 403.[35]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 104-106; cf Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 390-391.[36]See the instances cited in Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 391.[37]cf Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 304-305, 314.[38]cf Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 at 22 [65] per Parker J.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HUGH J GUMMOW, HAYNE AND HEYDON JJ KIRBY J (dissent)
The statement by the Minister to the Western Australian Parliament, made after the enactment of the 1999 Act (assuming that it was admissible and relevant in this appeal), scarcely represented the kind of considered adoption by Parliament of a law abolishing established rights and privileges that can be expected where law-makers set out to take away such legal entitlements. Further, as mentioned in Daniels Corporation[82], those who set out to abolish existing rights are obliged to face the consequences of what they have done. In the modern processes of democratic government they are required to assume political accountability for their actions[83].[82](2002) 77 ALJR 40; 192 ALR 561.[83]Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 60 [106]; 192 ALR 561 at 588-589; Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 at 462 [30]; 195 ALR 24 at 34; Attorney-General (WA) v Marquet [2003] HCA 67 at [164], [180] each citing R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann. See also R (Morgan Grenfell & Co Ltd)v Special Commissioner of Income Tax [2003] 1 AC 563 at 615 [44]. Conclusion: pending claims preserved The result is that the Workers' Compensation Act, read with the Interpretation Act and in the context of the longstanding principles of the common law, preserves otherwise valid proceedings commenced in the District Court before the assent day. It does so where such proceedings have been commenced for the purpose of securing the decision of that court on whether to grant or refuse leave to a party to commence an affected common law action in that court. This is not a surprising outcome. When the jurisdiction and power of the independent courts of Australia are invoked by anyone in this country, it requires a clear and valid law to deprive that person of the right to have a decision on that claim. Instead of a clear law, the most that the respondent could point to was an ambiguous, non-exhaustive provision that did not have the effect claimed.Orders The appeal should be allowed. The consequent orders proposed in the joint reasons should be made.

Ratio Decidendi

Legal Principle Established

Established by: HUGH J, GUMMOW, HAYNE AND HEYDON JJ,

Full text does not contain this section.