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
P118/2002ORDER
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.
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
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."
Section 32(6) defined "assent day" to mean the day of the receipt of the Royal Assent.
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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- Case
- [2003] HCA 69
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: HUGH J, GUMMOW, HAYNE AND HEYDON JJ,
Full text does not contain this section.