Dossett v TKJ Nominees Pty Ltd

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.