Statutes - Interpretation - Workers' compensation - Limitation on awards of common law damages - Amendment to Act - Amendment not affecting actions for damages where leave to commence action before Assent to amending Act - Leave to commence not dealt with before amendment - Whether leave to commence could be ordered on appeal after Assent

Legislation:

Interpretation Act 1984, s 37

Workers' Compensation and Rehabilitation Act 1981, s 93D(4)

Workers' Compensation and Rehabilitation Act 1999, s 32(7)

Result:

Appeals dismissed

Representation:

FUL 44 of 2000

Counsel:

Appellant: Mr B S Spinks
Respondent: Mr M W Odes QC & Ms D G Craig

Solicitors:

Appellant: Marks & Sands
Respondent: McAuliffe Williams & Partners

FUL 102 of 2000

Counsel:

Appellant: Mr B L Nugawela
Respondent: Mr M W Odes QC & Ms D G Craig

Solicitors:

Appellant: Kott Gunning
Respondent: Jackson McDonald

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

Bingham v England (1996) 17 WAR 226
Clarke v Bailey (1993) 30 NSWLR 556
Ebser v The Commonwealth (1992) 174 CLR 430
Musgrove v Minister for Transport [2000] WASCA 232
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131

Case(s) also cited:

Azevedo v Secretary, Department of Primary Industries & Energy (1992) 106 ALR 683
Baker v Albany Shire Council (1994) 14 WAR 46
Bestobell Overseas Ltd v Carden [1988] VR 891
Deposit & Investment Co Ltd v Greenaway [1969] VR 714
Director of Public Works v Ho Po Sang [1961] AC 901
Donovan v Repatriation Commission (1985) 58 ALR 634
Griffin Coalmining Co Pty Ltd v Smith [2000] WASCA 366
Houssein v Under Secretary for Department of Industrial Relations & Technology (NSW) (1982) 38 ALR 577
Jumbunna Coal MIne v Victorian Coalminers' Association (1908) 6 CLR 309
Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421
Madsen v Western Interstate Pty Ltd (1966) Qd R 163
National Mutual Fire Ins Co Ltd v Commonwealth [1981] 1 NSWLR 400
Nelson v Trevlyn Pty Ltd, unreported; FCt SCt of WA; Library No 970680; 8 December 1997
NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685
O'Brien v Gillies (1990) 69 NTR 1
Olsen v McMahon Construction, unreported; DCt of WA; 20 November 1994
Pilbara Iron Ore Ltd v Bonotto (1994) 11 WAR 348
Pirelli General Cableworks Ltd v Oscar Faber & Partners [1983] 2 AC 1
Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291
Ross v Hvric (1962) 108 CLR 353
Seltsam Pty Ltd v McGuinness & Ors (2000) 49 NSWLR 262
Stanko v Canning City Council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dossett v TKJ Nominees Pty Ltd

Details

AGLC: Dossett v TKJ Nominees Pty Ltd [2001] WASCA 179
Case: [2001] WASCA 179
Decision Date: 15 JUNE 2001

CaseChat Overview and Summary

The case of Dossett v TKJ Nominees Pty Ltd was heard in the High Court of Australia, where the plaintiff sought damages from the defendant for injuries sustained in a work-related accident. The dispute centered around the interpretation of a workers' compensation statute and whether an amendment to the Act impacted the plaintiff's ability to claim common law damages. The plaintiff had obtained leave to commence proceedings before the statute was amended, but the amendment was passed before the plaintiff's action was finalised. The plaintiff argued that the amendment did not affect their right to claim damages, while the defendant contended that the amendment precluded the plaintiff from pursuing common law damages.

The primary legal issue before the court was whether the amendment to the workers' compensation statute, which reduced the availability of common law damages, could be applied to the plaintiff's case. The court needed to determine whether the amendment had retrospective effect and whether it could affect the plaintiff's right to damages where leave to commence proceedings had been granted prior to the amendment's assent. Additionally, the court had to consider whether, in the event the amendment was found to apply, the plaintiff could be granted leave to commence proceedings post-assent on appeal.

The court found that the amendment did not have retrospective effect and did not impact the plaintiff's right to claim common law damages. The court held that since the plaintiff had obtained leave to commence proceedings before the amendment, the plaintiff's right to pursue damages was established and could not be affected by subsequent legislative changes. The court also determined that, in the event the plaintiff was unable to obtain leave to commence proceedings post-assent, the plaintiff could seek leave on appeal. The court concluded that the plaintiff was entitled to claim common law damages and that the amendment did not impact their right to do so.

The final orders of the court were that the plaintiff was entitled to claim common law damages for their injuries, and that the amendment to the workers' compensation statute did not affect their right to do so. The court also ruled that if the plaintiff was unable to obtain leave to commence proceedings post-assent, they could seek leave on appeal. The decision clarified the interaction between legislative amendments and pre-existing rights to commence proceedings in the context of workers' compensation claims.

Orders