Ellis v GAM Steel (Ruling)

[2017] VCC 16

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-04258

JAYMIE BRIAN ELLIS	Plaintiff
v
GAM STEEL	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2017
DATE OF RULING:	3 February 2017 (Revised)
CASE MAY BE CITED AS:	Ellis v GAM Steel (Ruling)
MEDIUM NEUTRAL CITATION:	[2017] VCC 16

RULING
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Subject:  ACCIDENT COMPENSATION

Catchwords: Application by defendant to dismiss plaintiff’s serious injury application – application for summary judgment pursuant to sections 62 and 63 of the Civil Procedure Act 2010 – whether plaintiff’s serious injury application issued “within 30 days after the worker received advice …” as required by section 134AB(16)(b) of the Accident Compensation Act 1985 – whether plaintiff’s serious injury application a nullity – whether prayer for relief in serious injury application sufficient

Legislation Cited:     Accident Compensation Act 1985 (Vic), s134AB; Civil Procedure Act 2010, s62, s63; County Court Civil Procedure Rules 2008, r22.22(b); Transport Accident Act 1986, s93

Cases Cited:Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction)v BlanalkoPty Ltd (2013) 42 VR 27; Georgopoulos v Silaforts Painting Pty Ltd & WorkSafe Victoria [2011] VCC 1825; Wilson v Nattrass (1995) 21 MVR 41; Swannell & Anor v Farmer [1999] 1 VR 299; Primary Health Care Ltd v Giakalis (2013) 38 VR 165; State of Victoria v Robertson & Anor (2000) 1 VR 465; Key v Payne (2004) 10 VR 162; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Ruling:  The defendant’s application for summary judgment is granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Fehring	Ryan Carlisle Thomas
For the Defendant	Mr D Oldfield	Thomson Geer

HIS HONOUR:

Preliminary

1       By its Amended Summons dated 29 November 2016, the defendant (as applicant) seeks orders:

“1. That the plaintiff’s application under s134AB of the Accident Compensation Act 1985 (Vic) be dismissed pursuant to s63 of the Civil Procedure Act 2010 and Rule 22.22(b) of the County Court Civil Procedure Rules 2008;

2.     Such further or other orders as the Court deems appropriate.”

2       The application was supported by an affidavit of Ms Georgina Hedges, solicitor for the defendant, sworn 29 November 2016.  An affidavit of Ms Jodie Narelle Harris, solicitor for the plaintiff, sworn 12 December 2016, opposing the application, was also filed.

3 Pursuant to s62 and s63 of the Civil Procedure Act 2010, a proceeding may be dismissed if the claim has “no real prospects of success”. That phrase has been interpreted to mean that in order to avoid being dismissed, a claim has a real, as opposed to a fanciful, prospect of success.[1]

[1]See Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction)v BlanalkoPty Ltd (2013) 42 VR 27

Circumstances leading to the application

4       The plaintiff, Mr Ellis, suffered injury to his right hand in the course of his employment with the defendant on 20 September 2010.

5       On 27 August 2015, the plaintiff’s previous solicitor issued an Originating Motion.  The prayer for relief sought:

“A.     Damages for –

(i)     pain and suffering

(ii)    economic loss

B.     Costs

C.    Interest

D.    Any other orders the Court deems appropriate.”

6 Mr Fehring, for the plaintiff, conceded that the wording in the prayer for relief was inappropriate and rather, as is usually the case in originating motions of this nature, ought to have sought leave of the Court to bring common law proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).

7 Prior to the issue of that Originating Motion, no application was made on behalf of Mr Ellis to the Victorian WorkCover Authority (“the Authority”) pursuant to s134AB(3) and s134AB(4) of the Act (which I shall, generally, refer to as “the (or a) preliminary application”), as those subsections require. On 11 September 2015, the Originating Motion, and an affidavit of Mr Ellis in support, were sent by way of service to the defendant.[2] 

[2]Exhibit JNH-1 to the affidavit of Ms Harris

8       On 12 November 2015, the plaintiff’s former solicitor forwarded to the Authority a preliminary application in respect of physical injury said to have been sustained in the workplace incident.

9 That preliminary application was accompanied by various materials as required by s134AB(5)(c).[3]

[3]It would appear that some documents as required to be provided pursuant to the Ministerial Directions in relation to such applications were not provided.  The Authority agreed for an extension of time for that to occur.

10 On 19 April 2016, the defendant’s solicitors sent a letter to the plaintiff’s former solicitor rejecting the preliminary application, presumably on the grounds set forth in s134AB(7)(a), that is, that the Authority had determined Mr Ellis had not suffered a serious injury.

11      On 28 June 2016, the plaintiff’s former solicitor wrote to the Authority requesting the Originating Motion served on 17 September 2015 be “processed”.[4]  That letter included the following:

“…

Sub-section134AB(16)(b) requires the Plaintiff to make an Application by way of an Originating Motion within 30 days of receiving the advice under the sub-section (7). In this case the Plaintiff had issued an Originating Motion prior to receiving the letter of rejection from Thompson Geer.[5] That Application was still on foot at the time of Thompson Geer’s letter dated 19 April 2016. It is therefore our view that an Application has been made by way of Originating Motion and the Authority should accept that a valid Application had been made as of the date the Plaintiff received the advice. It is our view that the Authority should instruct Thompson Geer to file an appearance to the Originating Motion and process the Originating Motion in accordance with the requirements of the Act.

If you do not agree to process the Originating Motion as suggested above then we ask you to consider exercising your discretion under s134AB(20). In this case there has been no fault by the worker or his lawyer. The Originating Motion was issued out of caution rather than any fault.”

(sic)

[4]Exhibit JNH-2 to the affidavit of Ms Harris

[5]The defendant’s solicitors

12 By letter of 7 July 2016, the Authority agreed that the plaintiff’s former solicitor’s letter of the 28 June 2016 would stand as an application under s134AB(20) of the Act, that is an application that the Authority consent to the bringing of an application under s134AB(16)(b) notwithstanding there had been a failure to comply with that subsection. That application was refused.

13      On 23 August 2016, the plaintiff’s current solicitors served a copy of the Originating Motion on the Authority, and some days later, upon the defendant.  On 1 September 2016, the defendant’s solicitors filed a Notice of Appearance in respect of the Originating Motion.

14      On 16 September 2016, solicitors for the plaintiff served upon the Authority a further preliminary application in respect of psychiatric injury alleged to have been suffered as a result of the workplace injury.  The first preliminary application was in respect of physical injury.  No determination has yet been made by the Authority as to whether, in respect of psychiatric injury, the plaintiff has suffered a serious injury.

Submissions of Counsel

15      I hope I do no injustice to counsel by summarising their submissions, respectively, as follows:

16      Mr Oldfield, for the defendant (applicant) submitted:

(a)The Originating Motion filed 27 August 2015 is not an originating process seeking leave of the Court pursuant to s134AB(16)(b). It is, rather, an originating process seeking damages. The original Originating Motion is, thus, a nullity, and ought be struck out;

(b)The Originating Motion was issued before the preliminary application was provided to the Authority as required by the “gateway” provisions of s134AB, in particular ss134AB(1)-(5). It is necessary for those gateway provisions to be complied with prior to the issue of an originating motion. As such, the Originating Motion issued before the preliminary application was a nullity;

(c)The wording of s134AB(16)(b) is clear and unambiguous. It requires an originating motion to be issued within thirty days after[6] a worker received advice under s134AB(7). As the Originating Motion was not issued within that prescribed period, the subsection has not been complied with and, thus, the plaintiff could not bring proceedings for the recovery of damages.

[6]Emphasis added

17      Mr Fehring, on behalf of the plaintiff, submitted:

(a)While acknowledging the wording in the prayer for relief in the Originating Motion was inappropriate, that, of itself, was not sufficient to render that document a nullity;

(b)In particular, when consideration is given to other sub-sections of s134AB, there was nothing in s134AB(16)(b) to suggest that, in circumstances where an originating motion had been issued prior to the preliminary application, that that originating motion was a nullity. The fact was that there was no need to issue another originating motion as there was one “on foot” at the time;

(c)The legislation, given its nature, ought to be given a wide and benevolent interpretation.

Analysis

18 Section 134AB(16) relevantly provides:

“(16)If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless—

(a)the Authority or self-insurer—

(i)is satisfied that the injury is a serious injury; and

(ii)issues to the worker a certificate in writing consenting to the bringing of the proceedings; or

(b)a court, … on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.”

19 Neither party took issue with the words “If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum …” as restricting the operation of ss(16) only to an assessment of degree of impairment under s104B. Mr Fehring submitted ss(16) had application whether the assessment was as to the degree of impairment, or, as is the case in this application, an application under s134AB(4) that Mr Ellis has a serious injury.

(a)    the prayer for relief

20 In my view, there is little merit in Mr Oldfield’s first point. The prayer for relief in the Originating Motion is clearly inappropriate, but that should not, of itself, render the Originating Motion a nullity. Application may be made at any stage to amend the prayer for relief. It is clear from the surrounding documents in the possession of the Authority, in particular, the affidavit of Mr Ellis served on 11 September 2015, that the Origination Motion was concerned with an application for leave under s134AB(3) and s134AB(4).

(b)    the status of the Originating Motion issued 27 August 2015

21 Mr Oldfield submitted the Originating Motion was a nullity as the “gateway” provisions of the Act had not been complied with.

22      There is no issue the plaintiff’s Originating Motion was not “made within 30 days after the worker received advice under ss(7)” as was required by ss(16).  In fact, the Originating Motion had been issued well before that.

23 Section 138A provides that a number of provisions of the Act, including s134AB, contain matters that are substantive law, and are not procedural in nature.

24      The sequence of events envisaged by ss(16) follows a logical path.  It is necessary for a preliminary application to be made, supported by appropriate material, in order for the Authority to determine whether a worker is deemed to have a serious injury.  There is no point in issuing an Originating Motion before that time, as the Authority may well deem a workplace injury as serious.  If the Authority deems the worker not to have a serious injury, then the Originating Motion should be issued, seeking leave of the Court.  It is clear from ss(16) that a worker may not bring proceedings for common law damages unless the Authority deems an injury as serious or, failing that, a court makes a finding that an injury is serious and gives leave to bring proceedings.  The thirty-day period referred to in ss(16)(b) is inserted, presumably, to ensure that prompt action is taken to bring an originating motion before a court in the event the Authority refuses to deem an injury serious.

25      I was not taken to any authority of this Court or the Court of Appeal, on the issue as to whether the issue of the Originating Motion issued before the preliminary application, left the Originating Motion a nullity.

26      Mr Oldfield relied upon the decision of his Honour Judge Bowman in Georgopoulos v Silaforts Painting Pty Ltd & WorkSafe Victoria.[7] In that proceeding, the plaintiff lodged a preliminary application in July 2008 in respect of physical injury suffered in the course of employment. In November of that year, the Authority advised the physical injury was not deemed a “serious injury” within the meaning of s134AB(37). Pursuant to s134AB(16)(b), the plaintiff had thirty days in which to bring an originating motion. His solicitors failed to do so, and it was not until several days after the expiration of the thirty-day period that the Originating Motion was issued. When it was brought to the attention of the plaintiff’s solicitors that the Originating Motion was out of time, the parties executed consent orders that the proceeding be dismissed with no orders as to costs. Mr Oldfield pointed out that there was no criticism of the course taken in that proceeding when the matter came on before Kaye J on a subsequent related application,[8] or when his Honour’s decision received the scrutiny of the Court of Appeal.[9]  However, neither before Kaye J, nor the Court of Appeal, was the issue of the time limit prescribed by ss(16) the subject of consideration or comment.  The fact that the parties signed consent orders dismissing the Originating Motion is of little relevance. 

[7][2011] VCC 1825

[8][2012] VSC 56

[9][2012] VSCA 179

27      It is clear from a number of authorities that in respect of serious injury applications under the provisions of the Transport Accident Act 1986 (“the TAA”), s93 operates as a substantive provision to conditionally extinguish the rights of transport users to common law damages. The cause of action only arises once the requirements of s93 are complied with.[10]

[10]Wilson v Nattrass (1995) 21 MVR 41; Swannell & Anor v Farmer [1999] 1 VR 299. See further Primary Health Care Ltd v Giakalis (2013) 38 VR 165

28      In Wilson v Nattrass,[11] Ashley J said:

“… the proper construction of subs(1) subs(2) and subs(4) appears to me to be that, subject to a condition or contingency being established, the common law right of action previously enjoyed by persons injured in transport accidents in this State is extinguished … .”[12]

[11](Supra)

[12](Supra) at 54

29      Further, Hedigan J said:

“In my opinion, the effect of s93(1) is contingently to extinguish the right to recover common law damages for personal injuries in Victoria in respect of a transport accident, wherever occurring. … The attainment or fulfilment of any one of the contingencies - conditions set out in s93(2), (3) and (4) will enable the bringing of a proceeding for the recovery of common law damages. My present view is that it is likely that those damages are subject to the inhibitions imposed by subs(7) and subs(9) to subs(16).  However, I have not had the benefit of submissions on this aspect and reserve any final view on that.  … .

…

… Once one of these criteria is fulfilled, the contingently extinguished right to bring common law proceedings springs into life … .”[13]

[13](Supra) at 59

30      In Swannell v Farmer,[14] the Court of Appeal said:

“ … .  Once the deceased sustained his injuries, all the elements of the cause of action that would spring into life if the requirements of s93 were satisfied were present, but no damages could be recovered until there was a determination of the deceased’s impairment by the Commission and his injury met the description of a serious injury.  In that state of affairs there was no cause of action vested in the deceased, for the cause of action was extinguished.  The same result ensues if the cause of action is regarded as contingent, that is, rather than its non-existence being defeated by satisfaction of the requirements of a determination by the Commission and serious injury, its existence depends upon that satisfaction.  … .

In our opinion the lack of an enforceable right at the date of the deceased’s death leads to the result that there was no cause of action which survived for the benefit of his estate pursuant to s29 of the Administration and Probate Act. … .”[15]

[14](Supra)

[15](Supra) at 307

31 There is no reason why the status of a proceeding under the Act ought to be considered in any way different from a proceeding under the TAA. The principles established by Wilson and Swannell should apply to proceedings under the Act, including this proceeding.

32 Even although the Originating Motion had earlier been issued, at the point of issue, all Mr Ellis held was either an extinguished right of action for damages which could only be maintained after the gateway provisions of the Act were complied with; alternatively no cause of action at all. Thus, the Originating Motion issued on 27 August 2015 sought to claim an entitlement which the plaintiff, Mr Ellis, did not have. The Originating Motion was a nullity. The subsequent issuing of the preliminary application, given the Authority’s decision not to deem the physical injury as serious, did not bring any cause of action to life. Thus, there was no valid originating motion on foot when the preliminary application was made and the advice under ss(7) issued.

(c) the mandate contained in s134AB(16)

33 Mr Fehring referred to other sub-sections of s134AB which mandate against the commencement of proceedings in certain circumstances. Section 134AB(12) provides that a worker must not commence proceedings other than by originating motion in accordance with ss16(b), unless a range of steps are taken. Sub-section 12(e) provides that one of the requirements for the commencement of proceedings is that certain time limits be observed in relation to statutory offers. The worker must not commence proceedings unless those statutory offers are made within those time limits.  Mr Fehring emphasised there was no such mandatory prohibition in s16(b).

34      Sub-section (16) uses the phrase “may not bring proceedings”.  Further, there is nothing in ss(16)(b) to suggest that in the event the application (that is the originating motion) is brought at a time other than thirty days after the receipt of advice under ss(7), that proceedings may not be brought.

35      Mr Fehring emphasised that the prohibition on the bringing of proceedings is directed to circumstances where either the injury is not deemed a serious injury by the Authority, or a court refuses leave to bring proceedings.  The prohibition, Mr Fehring submitted, was not intended to apply to that part of ss(16)(b) which requires the originating motion to be made within the thirty-day period.

36 There are a number of authorities which emphasise the importance of compliance with the timetabling requirements of the Act. Although concerned more with amending legislation and the provisions of s135A of the Act, the Court of Appeal in both State of Victoria v Robertson & Anor[16] and Key v Payne[17] concluded that timetabling steps which had not been complied with, resulted in the proceeding being dismissed.

[16](2000) 1 VR 465

[17](2004) 10 VR 162

37 Some sub-sections of s134AB prescribe strict compliance with steps to be taken and time limits to be met. Sub-section (1) provides that a worker “shall not recover damages” under certain circumstances. Sub-section (4A) provides that a worker “must not make an application” save in certain circumstances. Certain other provisions provide that certain documents “must be served”.[18]  There are other mandatory requirements imposed upon the parties and the Court.[19]

[18]See ss(5A) and (18)

[19]See ss(7), (12), (19), (21), (22), (23) and (24)

38      Other sub-sections provide that if certain steps are taken or timetabling requirements complied with, a worker “may recover damages” (ss(2)); “may … make an application” (ss(4)); “may” provide material (ss(10)); or that a worker “may not bring proceedings” (ss(3)).  The different emphasis given as to whether a step “must” be taken as opposed to whether damages “may” be recovered, or that a proceeding “may” be brought, is explained by the context of those sub-sections.  A worker may bring a proceeding, or may recover damages (but is not obliged to), if certain steps are complied with, applications made and proceedings issued.  Other subsections are strictly mandatory and steps “must be” undertaken.  Sub-section (16), in my view, should be interpreted to mean that a worker may bring a proceeding (if he or she chooses to do so) if either the Authority deems an injury to be serious, or a court grants leave to bring proceedings, and if an application is made within the thirty-day period.  The mandatory requirement of ss(16) is that if a worker is to bring proceedings, then either ss(a) or ss(b) must be complied with.

39      In my view, the contentions of Mr Oldfield should be preferred.  The wording of the sub-section is clear.  There is no basis on which to suggest extrinsic material need be considered.[20]  It is not a question of whether a benevolent interpretation ought be given.  Section (b) has two parts.  The first is that an application (being an originating motion) is to be made within thirty days after the advice is provided (or consent given by the Authority under ss(20)) and the Court gives leave to bring proceedings.  In my view, each part contains a mandatory requirement and must be complied with.  A failure to abide each part means the gateway provisions are not met and the worker may not bring proceedings for the recovery of damages.

[20]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at paragraph [39]

40      The defendant’s application should succeed.  The plaintiff’s claim has no real prospects of success.

41      No part of this Ruling bears upon the plaintiff’s application in relation to psychological injury.

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